State v. Rafferty, 2013 Ohio 1585

Rafferty was convicted by a jury of aggravated robbery with firearm specifications and theft; counts merged as allied offenses, and he received 10 years for aggravated robbery plus a mandatory 3-year firearm spec, plus fines and restitution.
Rafferty appeals claiming trial court erred in not applying Evid.R. 804(B)(3) to admit co-defendant Rose's statements made to Shoffner while Rose and Shoffner were detained together.
Defense sought to call Rose and McCarty/Shoffner; State objected, contending testimony was hearsay and not within co-conspirator exception.
Court allowed cross-examination of Rose but barred Shoffner’s testimony about Rose’s statements; Rose invoked his Fifth Amendment rights when questioned about the statements.
Rafferty argued 804(B)(3) rendered Rose’s statements admissible; State argued Rafferty waived the issue and invited error.
Appellate court held Rafferty did not preserve the issue; even if preserved, the court would affirm exclusion because the statement portions relevant to other’s guilt were not against Rose’s penal interest and lacked corroborating trustworthiness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of Evid.R. 804(B)(3) issue	Rafferty preserved or should be allowed to appeal	Waived by failure to request 804(B)(3) after Fifth Amendment invocation	Waived; plain error only
Admissibility of Rose’s statements under Evid.R. 804(B)(3) after fifth amendment invocation	Statements were against Rose’s interest and trustworthy	Statements were not made during conspiracy; not against Rose’s penal interest and not trustworthy	Not admissible; no clear trustworthiness

State v. Sumlin, 69 Ohio St.3d 105 (Ohio Supreme) (unavailability for Evid.R. 804(B)(3) when invoking Fifth Amendment)
State v. Williamson, 512 U.S. 594 (U.S. Supreme) (constitutional requirement for reliability in statements against interest)
State v. Newsome, 2012-Ohio-6119 (Ohio 3d Dist. Putnam) (assessing trustworthiness and scope of 804(B)(3))