People v. Watkins

• Decision Date: 19 September 1991
• Docket Number: Nos. 86776,86806 and 87091,s. 86776
• Citation: People v. Watkins, 475 N.W.2d 727, 438 Mich. 627 (Mich. 1991)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald WATKINS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael HUNTER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christian PHILLIPS, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 727

475 N.W.2d 727

438 Mich. 627

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Donald WATKINS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Michael HUNTER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Christian PHILLIPS, Defendant-Appellant.

Nos. 86776, 86806 and 87091.

Supreme Court of Michigan.

Argued April 4, 1991.

Decided Sept. 19, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol.Gen., John D. O'Hair, Pros.Atty., and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for the People.

Chodak & Robiner by Norman R. Robiner, Detroit, for defendant-appellant Watkins.

Gerald M. Lorence, Detroit, for defendant-appellant Hunter.

Daniel J. Rust, Redford, for defendant-appellant Phillips.

OPINION

MICHAEL F. CAVANAGH, Chief Justice.

Two distinct, though interrelated, issues arise in this case: (1) whether the accusatory hearsay statements inculpating the complaining defendants, contained within the codefendant confessions at issue, fall within the "statement against interest" exception of MRE 804(b)(3), and (2) whether the admission of those statements as substantive evidence against the complaining defendants violated their rights--under both the United States and Michigan Constitutions to confront the witnesses against them.We discuss the first issue in part II(A) and the second issue in part II(B).We discuss in part II(C) whether the admission of the codefendant confessions at the joint trial, whether that be deemed evidentiary or constitutional error or both, can be deemed harmless with regard to any of the complaining defendants.

I.THE FACTS

Although we generally adopt the statement of facts in the dissent, seepp. 752-753, we find it necessary to revisit the crucial, disputed codefendant confessions by Kerry Jordan and Walter Miller.The complete text of those statements is set forth in appendices to the dissent.Even a casual reading of the confessions leads to the unavoidable conclusion that they contain precisely the kind of inherently suspect and unreliable accusatory hearsay which has historically concerned courts and commentators.Codefendant Jordan said it all when he responded to the interrogator's question, "Why are you telling me [this statement]," by saying: "Because I'm not going to take the fall alone."(Emphasis added.)

We set forth in the appendix to this opinion the specific statements in the confessions that appear to inculpate, directly or indirectly, one or more of the complaining defendants, with the surnames of the participants substituted for the various nicknames used in the confessions.

II.ANALYSIS

A.The Hearsay Issue

MRE 802 provides that hearsay evidence is not admissible except where the rules provide otherwise.MRE 804(b)(3), worded almost identically to FRE 804(b)(3), ¹ provides for the admission as substantive evidence of hearsay "statements against interest," defined as follows:

"Statement against interest.A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable person in his position would not have made the statement unless he believed 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."²

Michigan, unlike the United States and many other states, has not adopted any "catch-all" exception to the rule against hearsay, cf.FRE 803(24);FRE 804(b)(5), and no other exception has been suggested or appears to apply to the disputed hearsay statements in this case.Thus, if those statements do not properly constitute statements against interest, their admission was erroneous.

It is undisputed that Jordan's and Miller's confessions each contain numerous specific statements admitting their own involvement in the crime, which were clearly against their penal interests when made and would therefore undoubtedly be admissible as substantive evidence against anyone under MRE 804(b)(3). ³ Those statements, however, are not the ones that concern us here.The relevant issue is whether the various statements detailed in the appendix, inculpating the complaining defendants, are also admissible under MRE 804(b)(3) simply because they appear within the same confession as statements concededly against the confessor's interest, or whether each discrete and specific statement must be shown to separately and intrinsically satisfy the requirements of MRE 804(b)(3).

The dissent would follow a "carry-over" rule.⁴ Under this rule, discrete assertions within a broader statement are viewed as against interest and therefore admissible--even though they, specifically, are not in fact against the interest of the declarant, and may even favor the interest of the declarant--on the theory that the trustworthiness of other assertions within the broader statement (which are concededly against the declarant's interest)"carries over" and permeates the entire statement with a sort of aura of trustworthiness.Simply to state the rule suggests its inherent implausibility.As we discuss below, the rule is neither generally sound nor, more importantly, can it properly be applied in the special context of accusatory hearsay statements in codefendant confessions, with their unique and long-recognized dangers of self-serving unreliability.

The most distinguished authority which might arguably be read to support the carry-over rule is Dean Wigmore's treatise, which states that

"[s]ince the principle is that the statement [against interest] is made under circumstances fairly indicating the declarant's sincerity and accuracy (Sec. 1457), it is obvious that the situation indicates the correctness of whatever he may say while under that influence.In other words, the statement may be accepted, not merely as to the specific fact against interest, but also as to every fact contained in the same statement."5 Wigmore, Evidence (Chadbourn rev), Sec. 1465, p 339(emphasis in original).

But this passage leaves undefined the scope of the "statement."Does "statement" refer to the narrowest discrete or severable assertions uttered by a declarant?Or, as the dissent apparently assumes without analysis, does "statement" automatically encompass an entire confession which may run many pages and contain dozens if not hundreds of discrete and severable assertions?In other words, how does one determine whether a given statement is truly and properly "contained in" a statement against interest?Wigmore, referring to "the living principle" underlying the exception, states that "a ... useful test appears to be this: All parts of the speech or entry may be admitted which appear to have been made while the declarant was in the trustworthy condition of mind which permitted him to state what was against his interest."Id. at 341.

Unfortunately, with all due respect to Dean Wigmore, the quoted passages suggest a fundamental misunderstanding of the "living principle" which in fact underlies the statement against interest exception.Wigmore's references to the declarant's "trustworthy condition of mind," to the "circumstances" under which the statement is made, and to what the declarant says "while under that influence" depart from the true and proper rationale for trusting the reliability of statements against interest.⁵ That rationale, properly understood, has nothing to do with the situational or environmental "circumstances" or pressures surrounding the declarant as he makes the statement.The declarant is not necessarily in any generally "trustworthy condition of mind," nor is he under any "influence" which would automatically render anything he said at that time and under those "circumstances" trustworthy.

Rather, as Wigmore himself states, "[t]he basis of the exception is the principle of experience that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect...."Id., Sec. 1457, p 329.In other words, the rule is based on the common-sense intuition that a reasonable person would be expected to lie, if at all, only in his own favor, and would not harm himself by his own words." 'The principle is founded on a knowledge of human nature.Self interest induces men to be cautious in saying any thing against themselves, but free to speak in their own favour.We can safely trust a man when he speaks against his own interest.' "Id., quotingGibblehouse v. Stong, 3 Rawle 437, 438(Pa., 1832).

It thus follows by the most elementary logic that our confidence in the trustworthiness of a purported statement against interest extends only insofar as the specific factual assertions contained within the statement are, in fact, against the declarant's interest."Such a statement ... has a guaranty of trustworthiness only insofar as the truth-telling stimulus of the declarant is operative; that is only insofar as the statement or portions of the statement, is against the declarant's interest."Deike v. Great Atlantic & Pacific Tea Co., 3 Ariz.App. 430, 433, 415 P.2d 145(1966)(emphasis added), cited and quoted in5 Wigmore, Sec. 1465, p 340, n 2.

The rationale for the statement against interest exception is thus fundamentally different from the rationale for many of the other traditional hearsay exceptions, such as those admitting dying declarations and excited utterances.As the United States Supreme Court has recently noted:

"The basis for the 'excited utterance' exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the...