People v. Washington
| Decision Date | 10 September 2002 |
| Docket Number | Docket No. 221851. |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allan WASHINGTON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence, Detroit, for the defendant.
Before: K.F. KELLY, P.J., and HOOD and ZAHRA, JJ.
Following a jury trial, defendant was convicted of armed robbery, M.C.L. § 750.529, and assault with intent to do great bodily harm less than murder, M.C.L. § 750.84. Defendant was sentenced to a term of six to fifteen years for the armed robbery conviction and a term of six to ten years for the assault conviction, the sentences to run concurrently. Defendant appeals as of right. We reverse and remand for a new trial.
During the late evening hours of May 7, 1998, the victim was shot and robbed by two men. His watch, pager, and $71 were taken. The first officer responding to the scene broadcast a description of the perpetrators over the air to other police officers.
Approximately five minutes later, two other police officers, at this time unaware of the shooting, observed defendant and his cousin, Daniel Mathis, pull into an alley behind a gas station. Because the area is known for drug and prostitution activities, they approached the vehicle. As one officer approached the driver's side of the vehicle, defendant left the vehicle and walked into the gas station. According to the testimony adduced at trial, when defendant did not respond to the officer's verbal commands to stop, the officer followed defendant into the gas station and promptly returned him to the vehicle. The officer indicated that when defendant unsuccessfully attempted to start the vehicle, defendant was physically removed from the car. According to the officers, defendant resisted, and both officers subdued defendant, handcuffed him, and placed him in the rear of the police cruiser.
As the defendant was being subdued, the officers heard the broadcast concerning the shooting over the police radio. As the officers listened to the description of the perpetrators, Mr. Mathis, who was detained in the passenger seat of the defendant's vehicle, blurted out: "I did it—I'm the shooter". Defendant and Mathis were arrested and placed together in a lineup. At the lineup, the victim identified defendant as one of the perpetrators, but did not identify the codefendant, Mathis. No gun, bullets, pager, or watch were recovered from either defendant or the vehicle.
Before trial, defense counsel filed a motion for a separate trial, or alternatively for a separate jury, on the ground that defense counsel believed the prosecution would attempt to introduce codefendant Mathis' statement identifying himself as the shooter. During the final conference, the trial court indicated that it would grant defendant's motion for separate juries, but did not address the issue of the statement.
On the first day of trial, the prosecutor raised the issue of introducing Mathis' statement as substantive evidence against defendant on the grounds that the statement was against codefendant's penal interest and did not otherwise inculpate defendant. In response, defense counsel indicated that codefendant was previously diagnosed as mentally ill and had a history of psychological disturbances requiring psychiatric treatment. Thus, defense counsel argued that there was an issue pertaining to codefendant's competency. Additionally, defense counsel argued that admitting the statement against defendant in defendant's trial would unfairly prejudice defendant. Despite defense counsel's arguments, the trial court ruled that it would permit the statement to come in as substantive evidence against defendant.
On the third day of trial, defendant brought suspected juror misconduct to the court's attention. Defendant indicated that a juror went to lunch with and drove with a police officer who was present during the first two days of trial. The police officer was also alleged to have had contacts with the victim or his family. Although the court questioned the juror, it did not permit defense counsel to conduct a voir dire of the juror or to present a potential witness to the alleged misconduct. The jury convicted defendant. We now reverse and remand for a new trial.
Defendant argues that the trial court erred in admitting codefendant's statement identifying himself as the perpetrator. We agree.
This court reviews decisions regarding the admissibility of evidence for an abuse of discretion. People v. Schutte, 240 Mich.App. 713, 715, 613 N.W.2d 370 (2000). When the decision regarding the admission of evidence involves a preliminary question of law, such as whether a statute or rule of evidence precludes admissibility of the evidence, the issue is reviewed do novo. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). Similarly, because this issue implicates the Confrontation Clauses1 of the state and federal constitutions, the issue is constitutional and is reviewed de novo. People v. Beasley, 239 Mich.App. 548, 557, 609 N.W.2d 581 (2000).
In the instant matter, the prosecution introduced in defendant's trial as substantive evidence of defendant's guilt an out-of-court statement made by a codefendant. As the Court in People v. Richardson, 204 Mich.App. 71, 73-74, 514 N.W.2d 503 (1994), quoting People v. Petros, 198 Mich. App. 401, 409, 499 N.W.2d 784 (1993), observed:
[Citations omitted.]
Codefendant's statement identifying himself as the perpetrator of the shooting incident is indeed an unsworn out-of-court statement offered to prove the truth of its assertion. On appeal, the prosecution contends that the statement was not offered to prove that codefendant was actually the shooter but rather, to establish a justification for the officers' conduct in arresting defendant and placing him in a lineup for purposes of identification. We do not agree.
A review of the record indicates that the introduction of codefendant's statement identifying himself as the perpetrator was offered to prove that he actually perpetrated the crime. Because codefendant was a passenger in the defendant's vehicle five minutes after the shooting occurred, the admission of the statement leads to the inescapable conclusion that defendant was an accomplice to the shooting. Because the statement was offered to prove the truth of its assertion, the statement constitutes hearsay. People v. Poole, 444 Mich. 151, 158-159, 506 N.W.2d 505 (1993). Hearsay is inadmissible unless there is a specific exception allowing for its introduction. People v. Ivers, 459 Mich. 320, 331, 587 N.W.2d 10 (Boyle, J., concurring); 459 Mich. 320, 587 N.W.2d 10 (1998).
The prosecution suggests that the statement is a statement wholly against codefendant's penal interest and thus admissible pursuant to MRE 804(b)(3). Indeed it would be difficult to imagine a statement more against one's penal interest than a statement admitting guilt. Because codefendant's statement identifying himself as the shooter is a statement that implicates the declarant himself, it clearly comes within the purview of MRE 804(b)(3). See Richardson, supra at 76, 514 N.W.2d 503. This, however, does not end our inquiry.
Here, the prosecution introduced the statement as substantive evidence of defendant's guilt in defendant's trial without any opportunity for cross-examination. As our Supreme Court aptly stated, the "`truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination.'" People v. Watkins, 438 Mich. 627, 656, 475 N.W.2d 727 (1991), quoting Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (emphasis omitted). Indeed, "the principal protection provided by the Confrontation Clause to a criminal defendant is the right to conduct cross-examination," People v. Gearns, 457 Mich. 170, 186, 577 N.W.2d 422 (1998), to ensure that "`the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement,'" Petros, supra at 418, 499 N.W.2d 784, quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).
Because counsel on behalf of codefendant appeared and indicated that he would assert his client's Fifth Amendment privilege if codefendant were called upon to testify, defendant's constitutional right to confrontation was implicated and the otherwise hearsay statement could not come in as substantive evidence unless the statement "falls within a firmly rooted hearsay exception or if it bears adequate indicia of reliability." Schutte, supra at 717-718, 613 N.W.2d 370.
The issue presented in the case sub judice is whether codefendant's statement contains sufficient "particularized guarantees of trustworthiness" considering the totality of the circumstances surrounding its utterance to justify its admission. See Schutte, supra at 719, 613 N.W.2d 370, quoting Poole, supra at 165, 506 N.W.2d 505 (...
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People v. Washington
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