State v. Madrigal, 97-98.

• Citation: 87 Ohio St.3d 378,721 NE 2d 52
• Decision Date: 05 January 2000
• Docket Number: No. 97-98.,97-98.
• Parties: THE STATE OF OHIO, APPELLEE, v. MADRIGAL, APPELLANT.
• Court: United States State Supreme Court of Ohio

87 Ohio St.3d 378

721 NE 2d 52

THE STATE OF OHIO, APPELLEE, v. MADRIGAL, APPELLANT.

No. 97-98.

Supreme Court of Ohio.

Submitted July 28, 1999.

Decided January 5, 2000.

Jeffrey M. Gamso and James W. VanDeilen, for appellant.

Julia Bates, Lucas County Prosecuting Attorney, Dean Mandross and Brenda J. Majdalani, Assistant Prosecuting Attorneys, for appellee.

MOYER, C.J.

In this appeal, Madrigal raises seventeen propositions of law. Finding no reversible error, we affirm his convictions. In addition, we have independently reviewed the record, weighed the aggravating circumstance against the mitigating factors, and examined the proportionality of the death sentence in this case in comparison to the penalty imposed in similar cases. Upon a complete review of the record, we affirm Madrigal's convictions and sentences.

Admission of Co-Defendant's Statements

Chris Cathcart was an accomplice to the robbery of the KFC and murder of Misty Fisher. Cathcart remained in the car while Madrigal went into the KFC to carry out the robbery in which Fisher was killed. After Cathcart was arrested, he gave two audio-taped statements to the police. In both statements he implicated Madrigal in the robbery-murder. In the first statement, Cathcart denied knowing anything about a planned robbery of the KFC. He told police he was at Madrigal's house and Madrigal asked him to go over to a "girl's" house with him. He rode with Madrigal, and fell asleep in Madrigal's car and when he woke up, he was at the KFC. Madrigal jumped into the car and they drove off. Cathcart found out about the robbery-murder the next day on the news. At the conclusion of the first statement, Cathcart told the police everything he told them was the truth.

The second statement was taken on the same day, approximately four hours after the first. In his second statement Cathcart told police that he knew that Madrigal was going to rob the KFC and that Cathcart agreed to ride along with him. Madrigal went into the KFC and came out three to five minutes later, but would not say what happened while he was in the KFC. They went back to the house and counted the money, which was around $300.

The state called Cathcart during its case in chief; however, Cathcart had not yet been tried and invoked the Fifth Amendment, refusing to testify. Defense counsel objected to the admission of the statements, but the trial court allowed both statements, in their entirety, to be read into the record.

In his fifth proposition of law, Madrigal argues that the trial court erred when it allowed the state to read into evidence the taped statements of Cathcart, who refused to testify at trial. Madrigal claims the out-of-court statements were inadmissible hearsay. Madrigal argues that admission of these statements violated his right to confront the witnesses against him as secured by the Ohio and federal Constitutions. The trial court permitted the admission of Cathcart's statements pursuant to Evid.R. 804(B)(3) and on the authority of State v. Gilliam (1994), 70 Ohio St.3d 17, 635 N.E.2d 1242.

Evid.R. 804(B)(3) states in part:

"(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"* * *

"(3) Statement against interest. A statement that * * * 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

Pursuant to Evid.R. 804(B)(3), the trial court erred in admitting the first statement into evidence. Cathcart's attempts to portray himself as the innocent bystander do not qualify as a statement against interest and should have been excluded. His second statement, while also tending to minimize his own involvement, could qualify as an exception to the hearsay rule.

However, even if Cathcart's statements fit within an exception to the hearsay rule, his statements may still be excludable as a violation of Madrigal's Confrontation Clause rights. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him."

"The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig (1990), 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678. In cases such as this, where the declarant remains unavailable at trial and the state seeks to offer his out-of-court statements against the accused, we must decide whether the Confrontation Clause permits the state to deny the accused his usual right to force the declarant to submit to cross-examination.

The state may deny the accused the right to cross-examination without violating the Confrontation Clause if the court deems the proffered out-of-court statements to be "so trustworthy that adversarial testing can be expected to add little to [the statements'] reliability." White v. Illinois (1992), 502 U.S. 346, 357, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860. That is, the right to confrontation is not absolute and "does not necessarily prohibit the admission of hearsay statements against a criminal defendant." Idaho v. Wright (1990), 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651. Hearsay statements are deemed sufficiently reliable to allow their admission without the benefit of cross-examination when the statements (1) "[fall] within a firmly rooted hearsay exception," or (2) contain "`adequate indicia of reliability.'" Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608. Therefore, to be admissible, Cathcart's statements must meet one of the prongs of Roberts.

The trial court, in making the Roberts determination, relied on our decision in Gilliam, which held that "[t]he reliability standard can be satisfied without more in a case where the evidence falls within a firmly rooted hearsay exception." Gilliam, 70 Ohio St.3d at 19-20, 635 N.E.2d at 1245. There, we found that a statement against interest was a firmly rooted hearsay exception, and allowed the statement to be admitted.

However, in Lilly v. Virginia (1999), 527 U.S. ___, 119 S.Ct. 1887, 144 L.Ed.2d 117, an opinion issued during the pendency of this appeal, the United States Supreme Court explicitly considered the use of statements against penal interest offered by the prosecution in the absence of the declarant to incriminate a criminal codefendant. The court held that such statements do not categorically satisfy Confrontation Clause concerns. See id., 527 U.S. at ___, 119 S.Ct. at 1899-1901, 144 L.Ed.2d at 133-136.

Justice Scalia, concurring separately, took the most resolute stance against the use of such statements, calling it "a paradigmatic Confrontation Clause violation." Id., 527 U.S. at___, 119 S.Ct. at 1903,144 L.Ed.2d at 138. The four-member plurality took a more nuanced approach. It divided the category of statements against penal interest into three subcategories: (1) those used as voluntary admissions against the declarant; (2) those used as exculpatory evidence offered by a defendant who claims that the declarant committed, or was involved in, the offense; and (3) those used as evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant. Id., 527 U.S. at___, 119 S.Ct. at 1895-1897,144 L.Ed.2d at 128-131. The plurality recognized that statements in this last category—like those at issue here—do not fall into a firmly rooted hearsay exception. Id., 527 U.S. at___, 119 S.Ct. at 1899,144 L.Ed.2d at 133.

In so doing, the plurality observed that the court had "over the years `spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants.'" Id., 527 U.S. at___, 119 S.Ct. at 1897, 144 L.Ed.2d at 131 (quoting Lee v. Illinois [1986], 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526). It reaffirmed the court's prior recognition that "`th[e] 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. * * * "Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence."'" Id., 527 U.S. at ___, 119 S.Ct. at 1898, 144 L.Ed.2d at 131.

After examining its previous cases concerning admission of co-defendant's statements, the court concluded:

"It is clear that our cases consistently have viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those `hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements'] reliability.' White [v. Illinois (1992),] 502 U.S. [346] at 357 [112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860]. * * * The decisive fact, which we make explicit today, is that accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." (Emphasis added.) Lilly, 527 U.S. at___, 119 S.Ct. at 1898-1899, 144 L.Ed.2d at 132-133. The holding of the Supreme Court in Lilly requires us to overrule the contrary holding in State v. Gilliam, that a "statement against interest," under Evid.R. 804(B)(3), falls...