People v. Washington

• Court: Michigan Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: People v. Washington, 664 N.W.2d 203, 468 Mich. 667 (Mich. 2003)
• Decision Date: 09 July 2003
• Docket Number: Docket No. 121864.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Allan WASHINGTON, Defendant-Appellee.

664 N.W.2d 203

468 Mich. 667

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Allan WASHINGTON, Defendant-Appellee.

Docket No. 121864.

Supreme Court of Michigan.

Decided July 9, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, Detroit, MI, for the people.

Opinion

PER CURIAM.

Defendant was convicted of armed robbery and assault with intent to do great bodily harm less than murder. The Court of Appeals reversed the convictions because the accomplice's statement, in which the accomplice identified himself as the shooter, was improperly admitted against defendant. 251 Mich.App. 520, 650 N.W.2d 708 (2002). It also found that the trial court abused its discretion in denying defense counsel the opportunity to conduct voir dire of a juror in mid-trial. We reverse the judgment of the Court of Appeals and reinstate the verdict.

I

On May 8, 1998, two men robbed James Turner while he was using a public pay phone at a Detroit gas station. One of the men pulled a gun, pointed it at Turner's head, and demanded money. The other went through Turner's pockets and took his watch and pager. When Turner told his assailants that he didn't have anything else of value, he was shot in the back.

A few minutes later, two police officers saw a car containing defendant and Daniel Mathis drive into an alley behind a gas station that was approximately a mile from the scene of the robbery. The officers decided to investigate because the area was known for drug sales and prostitution. Defendant was uncooperative with the officers and, following a scuffle, he was handcuffed pending further investigation. As the officers returned to talk to Mathis, who had remained in the car, the report of the Turner robbery and a description of his assailants were broadcast over the police radio. When one of the officers asked to have the description repeated, Mathis blurted out, "I did it—I'm the shooter." Turner identified defendant in a lineup as one of his assailants. He failed to identify Mathis.

Defendant and Mathis were charged with armed robbery, M.C.L. § 750.529, and assault with intent to murder, M.C.L. § 750.83. They were tried separately. On the morning of defendant's trial, the issue whether Mathis's statement was admissible was raised. Without elaboration, the trial court decided that the statement would be allowed into evidence. Defendant was convicted of armed robbery and assault with intent to do great bodily harm less than murder, M.C.L. § 750.84.

The Court of Appeals reversed defendant's convictions. It concluded that Mathis's statement was improperly admitted as a statement against penal interest because it was not reliable. According to assertions made by defense counsel, Mathis was mentally ill.¹ In addition, the panel found that the trial court should have allowed defense counsel to question a juror in mid-trial.

II

The decision to admit evidence is reviewed for an abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). 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 de novo. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999).

III

Declarations against penal interest constitute an exception to the general proscription against hearsay provided by MRE 802. MRE 804(b)(3), in pertinent part, defines a declaration against penal interest as

[a] statement which was at the time of its making ... so far tended to subject the declarant to civil or criminal liability... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The exception is based on the assumption that people do not generally make statements about themselves that are damaging unless they are true. People v. Poole, 444 Mich. 151, 161, 506 N.W.2d 505 (1993), citing the comment of the Advisory Committee on Federal Rules of Evidence relating to FRE 804(B)(3). Mathis's statement is against his penal interest and, therefore, is admissible.

The inquiry, however, does not stop there because the Confrontation Clauses of the federal and state constitutions are implicated. U.S. Const., Am. VI; Const. 1963, art. 1, § 20. The admission of Mathis's statement as substantive evidence does not violate the Confrontation Clause if the prosecution can establish that Mathis was unavailable as a witness and that his statement bore adequate indicia of reliability. Alternatively, the Confrontation Clause is not violated if the statement fell within a firmly rooted hearsay exception. Poole, supra at 163, 506 N.W.2d 505.

Some jurisdictions have held that the hearsay exception for statements against penal interest is a firmly rooted hearsay exception. See, e.g., United States v. McKeeve, 131 F.3d 1, 9 (C.A.1, 1997), People v. Wilson, 17 Cal.App.4th 271, 278, 21 Cal.Rptr.2d 420 (1993), and State v. Tucker, 109 Or.App. 519, 526, 820 P.2d 834 (1991).² However, we need not decide that issue because Mathis had been charged with the crimes and was considered unavailable because it was expected that he would assert his Fifth Amendment right not to testify. Additionally, Mathis's statement bears adequate indicia of reliability.

In Poole, supra at 165, 506 N.W.2d 505, we instructed:

In evaluating whether a statement against penal interest that inculpates a person in addition to the declarant bears sufficient indicia of reliability to allow it to be admitted as substantive evidence against the other person, courts must evaluate the circumstances surrounding the making of the statement as well as its content.

The presence of the following factors would favor admission of such a statement: whether the statement was (1) voluntarily given, (2) made contemporaneously with the events referenced, (3) made to family, friends, colleagues, or confederates—that is, to someone to whom the declarant would likely speak the truth, and (4) uttered spontaneously at the initiation of the declarant and without prompting or inquiry by the listener.

On the other hand, the presence of the following factors would favor a finding of inadmissibility: whether the statement (1) was made to law enforcement officers or at the prompting or inquiry of the listener, (2) minimizes the role or responsibility of the declarant or shifts blame to the accomplice, (3) was made to avenge the declarant or to curry favor, and (4) whether the declarant had a motive to lie or distort the truth.

Courts should also consider any other circumstance bearing on the reliability of the statement at issue. See, generally, United States v. Layton, 855 F.2d 1388, 1404-1406 (C.A.9, 1988). While the foregoing factors are not exclusive, and the presence or absence of a particular factor is not decisive, the totality of the circumstances must indicate that the statement is sufficiently reliable to allow its admission as substantive evidence although the defendant is unable to cross-examine the declarant.

When those precepts are applied to the facts at bar, we find that Mathis's statement to the police officers bears sufficient indicia of reliability to satisfy Confrontation Clause concerns and to allow its admission as substantive evidence at trial. The statement was voluntarily given and made contemporaneously with the events referenced. It was uttered spontaneously by Mathis and without prompting or inquiry by the officers. In fact, the officers had just heard of the robbery when Mathis made the statement. Mathis did not minimize his role in the crimes, admitting that he shot the victim, and he had no motive to lie or distort the truth. In addition, there is nothing in the statement indicating that the declarant was attempting to curry favor at the time he made the statement.

We agree with the dissenting judge of the Court of Appeals that there was no record evidence establishing that Mathis "suffered from mental illness." The unsubstantiated assertions of defense counsel are not substantive evidence and cannot be used to undermine the indicia of reliability contained in the accomplice's statement.

IV

We also find that the trial court did not abuse its discretion in denying defense counsel's request to voir dire a juror during the trial.

On the third day of trial, after deliberations had begun, defense counsel reported that a juror had been seen talking with a trial spectator who counsel believed was familiar with the victim or the victim's family. The trial court summoned the juror and, in response to the court's direct questions, the juror stated that she had not discussed the case with her friend. She affirmed that her friendship would not influence her ability to make a fair decision in the case. The trial court did not allow defense counsel to make further inquiry of the juror.

"The trial court has discretion in both the scope and the conduct of voir dire." People v. Tyburski, 445 Mich. 606, 618-619, 518 N.W.2d 441 (1994). A defendant does not have a right to have counsel conduct the voir dire. Id. However, where the trial court, rather than the attorneys, conducts voir dire, the court abuses its discretion if it does not adequately question jurors regarding potential bias so that challenges for cause can be intelligently exercised. Fedorinchik v. Stewart, 289 Mich. 436, 438-439, 286 N.W. 673 (1939). Here, the trial court more than adequately questioned the juror about the allegations of grounds for her possible disqualification. There was no need for defense counsel to interrogate her...