State v. Gilliam, No. 93-531

• Court: United States State Supreme Court of Ohio
• Writing for the Court: FRANCIS E. SWEENEY, Sr.; MOYER; WRIGHT; A. WILLIAM SWEENEY
• Citation: 70 Ohio St.3d 17,635 N.E.2d 1242
• Docket Number: No. 93-531
• Decision Date: 03 August 1994
• Parties: The STATE of Ohio, Appellee, v. GILLIAM, Appellant.

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70 Ohio St.3d 17 635 N.E.2d 1242 The STATE of Ohio, Appellee,
v.
GILLIAM, Appellant. No. 93-531. Supreme Court of Ohio. Submitted April 20, 1994.
Decided Aug. 3, 1994.

[635 N.E.2d 1244]

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On August 26, 1991, defendant-appellant, Edward Gilliam, made a statement to the police. Detective Mike Medders of the Elyria Police Department testified that Gilliam admitted that on August 21, he rode to Rite Nau Beverage in Elyria with William Moore and Bruce Treadwell. Appellant went inside and ordered a bottle of wine from the employee on duty, who was identified later as Joseph Pleban. Pleban told appellant that the total came to $2.01. Appellant handed Pleban $2.00, and while appellant was digging in his pockets for a penny, Treadwell appeared with a shotgun and demanded money.

Pleban testified the man who had ordered the wine did not appear surprised when Treadwell appeared with the shotgun. Pleban explained that he followed Treadwell's orders, and went to the cooler to get the money bag. As Pleban walked to the cooler, Treadwell said, "Don't try anything funny, I'll put a hole in your back." Treadwell took the money from the cash register and the money bag, and closed Pleban in the cooler. Pleban watched through the glass windows on the side of the cooler. He could no longer see appellant, but he could see Treadwell stuffing money into his pants. As Treadwell left, Pleban noticed that he could no longer see the shotgun.

Appellant stated to police that he and Treadwell left together and met Moore back at the car. A witness, Vicki Glover, testified that she had seen two black males laughing and running from the direction of Rite Nau. The men ran to a parked car four houses down from Rite Nau, in which car a third man (whom she identified as Moore) was waiting. The car was parked in front of the witness' house and she was in her front yard approximately ten feet away from the vehicle. The four-door vehicle was gray in color. One man got into the front seat. The other man got in behind the driver, but had trouble getting in, "like he had a stiff leg or something." The witness heard Moore ask the men either, "What did you get?" or, "How much did you get?"

When questioned by the Elyria police, Moore admitted that he had driven appellant and Treadwell to Rite Nau to "check it out." Moore admitted that he assumed this meant they were "gonna rob the place." In his taped confession, Moore also admitted that he had seen a shotgun before the robbery, which he believed Treadwell had brought, but Moore thought was owned by appellant. Moore stated that appellant and Treadwell went inside while Moore waited with the car. Gilliam and Treadwell returned to the car together, with money in a bag, and told Moore that they had gotten some money. Both men got into the car; appellant got into the front seat. Moore then drove them to Treadwell's house. Treadwell carried the shotgun inside and appellant went home.

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Appellant was tried before the court, separately from Moore and Treadwell. The state called Moore to the witness stand, but he exercised his Fifth Amendment privilege and refused to testify. Consequently, the state offered Moore's taped confession into evidence over appellant's objection. The state also introduced appellant's taped statement into evidence. Based on these tapes and other evidence, the trial court convicted appellant of aggravated robbery with both a firearm and a prior crime of violence specification. The court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

[635 N.E.2d 1245] Gregory A. White, Lorain County Pros. Atty., and Robert F. Corts, Asst. Pros. Atty., for appellee.

Joel D. Fritz, Elyria, for appellant.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John S. Pyle, Cleveland, urging reversal for amicus curiae, Ohio Ass'n of Crim. Defense Lawyers.

FRANCIS E. SWEENEY, Sr., Justice.

The sole issue before this court is whether the admission of a co-defendant's taped statement after the co-defendant becomes unavailable violated appellant's Sixth Amendment right to confront adverse witnesses. For the following reasons, we find that admission of the statement did not violate the Confrontation Clause. Accordingly, we affirm the judgment of the court of appeals.

The Confrontation Clause and the hearsay rules stem from the same roots and generally protect the same values; however, the prohibitions of the Confrontation Clause cannot be equated with the general rule prohibiting the admission of hearsay statements. White v. Illinois (1992), 502 U.S. 346, ----, 112 S.Ct. 736, 741, 116 L.Ed.2d 848, 857.

The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 525. Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright (1990), 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651. When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that he is unavailable and that the statement bears adequate "indicia of reliability." Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 607-608. The reliability standard can be satisfied without more in a case where the evidence falls within a

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firmly rooted hearsay exception. Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. Otherwise, to satisfy the Confrontation Clause the evidence must be supported by a showing of "particularized guarantees of trustworthiness." Id.

In the present case, we initially find that Moore's statement falls within an established hearsay exception as a statement against interest, Evid.R. 804(B)(3). The state called Moore to testify in its case-in-chief, but Moore asserted his Fifth Amendment right against self-incrimination and refused to testify. By doing so, Moore became "unavailable" for purposes of the unavailability requirement of Evid.R. 804. State v. Landrum (1990), 53 Ohio St.3d 107, 113, 559 N.E.2d 710, 719.

Pursuant to Evid.R. 804(B)(3), a statement may be admitted as an exception to the hearsay rule if the declarant is unavailable and it is a "statement against interest." To qualify as a statement against interest, it must be shown that the statement "tended to subject" the declarant to criminal liability so that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. United States v. Garcia (C.A.7, 1990), 897 F.2d 1413, 1420.

Clearly, in the present case Moore's statement tended to subject the declarant, Moore, to criminal liability. Moore admitted he had driven appellant and Treadwell to Rite Nau "to check it out." Moore admitted that he assumed this meant they were "gonna rob the place." Moore further admitted that he had seen a shotgun before the robbery, which he believed Treadwell had brought but Moore thought was owned by appellant. Moore stated further that appellant and Treadwell returned to the car together, with money in a bag, and that Moore drove them away from Rite Nau....