Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of eight to twenty years for the murder conviction plus the mandatory two years for the felony-firearm conviction. He appeals as of right. We affirm.
Defendant originally was charged with first-degree murder, MCL 750.316; MSA 28.548, conspiracy to commit first-degree murder, MCL 750.157a MSA 28.354(1), and possession of a firearm during the commission of a felony. Following a preliminary examination, the conspiracy charge was dismissed because of insufficient evidence. Defendant then successfully moved to suppress statements that he and his codefendant made to the police, and the remaining charges were dismissed.
The prosecutor appealed, and this Court reversed, holding that both statements were admissible against defendant.
People v Spinks,
Defendant first argues that the accomplice’s statement was improperly admitted against him. We agree.
We note, first, that this issue was decided in defendant’s prior appeal and that consideration is therefore technically precluded by the law of the case doctrine.
CAF Investment Co v Saginaw Twp,
For a nontestifying codefendant’s statement to be admissible against a defendant, it must be admissible under the Michigan Rules of Evidence and it must not violate the defendant’s constitutional right to confront his accuser.
People v Poole,
In this case, the statement made by defendant’s accomplice inculpated the declarant and several other people, including defendant. Defendant’s role in the crime was to purchase the murder weapon. He was not alleged to have been present during the shooting. The victim was the declarant’s brother, and the killing was the result of a dispute involving drugs.
After carefully reviewing the accomplice’s statement, we conclude that those portions implicating defendant were inadmissible against him. We note that, overall, the statement tended to shift blame by inculpating others more than it inculpated the declarant, although defendant’s role was described as being relatively minor. Also, the statement was made in response to custodial interrogation and, therefore, may have been motivated by a desire to curry favor with the authorities. The trial court abused its discretion in admitting it.
Whether the admission of the nontestifying accomplice’s statement also violated defendant’s constitutional right of confrontation, US Const, Am VI, and Const 1963, art 1, § 20, depends on whether it bears "adequate indicia of reliability.” Poole, supra at 162. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. However, reliability may not be inferred from the blanket categorization of a statement as being against penal interest. Watkins, supra at 653-655. In fact, accusatory statements in a codefendant’s custodial confession are "properly presumed at the outset to be uniquely and especially suspect and unreliable, much more so than typical, run-of-the- *493 mill hearsay.” Id. at 656 (emphasis in original). We note that the lack of indicia of trustworthiness may not be overcome with corroborating evidence. Id. at 665. In Poole, on the other hand, no violation of the Confrontation Clause was found where 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.” Poole, supra at 165.
Here, there are no indicia of reliability. To the contrary, the accomplice’s statement in this case presents all the factors that favor a finding of unreliability because it: "(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[s], (3) was made to avenge the declarant or to curry favor, and (4) . . . the declarant had a motive to lie or distort the truth.” Poole, supra at 165. Thus, admitting the accomplice’s statement in this case also violated defendant’s right of confrontation.
However, a violation of the Confrontation Clause —like the erroneous admission of evidence — may be harmless if the appellate court can "confidently conclude, beyond any reasonable doubt, that the error did not affect the jury’s verdict.”
Watkins, supra
at 667; see also
People v Banks,
In this case, the people introduced a receipt from a gun shop showing that defendant purchased the murder weapon. There was also forensic evidence to the same effect. Further, defendant’s confession was introduced — which he challenges on appeal — in which he admitted not only purchasing the murder weapon but also knowing what his accomplice was considering doing with it.
We acknowledge that the jury deliberated for two days before reaching a verdict and that they twice asked for and examined the accomplice’s inadmissible statement. However, defendant’s own confession was just as detailed and devastating as his accomplice’s statement and it was, by itself, sufficient to prove beyond a reasonable doubt that defendant aided and abetted the commission of second-degree murder when he purchased the murder weapon with knowledge that the principal intended to use it to kill the victim. See
People v Genoa,
Defendant next argues that the trial court erred *495 in allowing defendant’s accomplice, who had already been convicted, to refuse to testify after the accomplice asserted his Fifth Amendment privilege regarding self-incrimination. Defendant further argues that the trial court erred in allowing the prosecutor to refuse to request a court order granting immunity to the accomplice and thereby force the accomplice to testify. These errors, defendant alleges, violated his right of confrontation by making the accomplice unavailable for cross-examination and allowing his statement to be introduced.
Because we have already concluded that defendant’s right of confrontation was violated by introducing his accomplice’s statement, we do not address the merits of these arguments. We note, however, that the violation of defendant’s right of confrontation was, as discussed above, harmless beyond a reasonable doubt.
Next, defendant complains that the trial court improperly instructed the jury regarding the elements of aiding and abetting. We disagree.
Defendant opposed the prosecutor’s request to instruct the jury using the first edition of the criminal jury instructions. Counsel did this even after a discussion was held on the record regarding a possible error in the second edition’s version of the aiding and abetting instruction, CJI2d 8.1. The jury was given the instruction defendant insisted on. He may not now complain.
People v Buck,
Lastly, defendant challenges the admissibility of *496 his confession on the ground that it was the fruit of an illegal arrest without a warrant. We disagree.
Generally, if an "unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee,” the resulting evidence should be excluded as the fruit of the poisonous tree.
People v Mallory,
According to the evidence presented at the hearing regarding defendant’s motion to suppress, defendant was arrested at about midnight and was not interrogated until about noon the next morning. The parties stipulated that the delay was the result of the arresting officers’ busy schedule. The arresting officers testified that defendant’s brother allowed them inside the house after they knocked and identified themselves. The officers entered the house with their weapons drawn. However, none of the witnesses testified that they saw the weapons before opening the door.
During defendant’s prior appeal, this Court overturned the trial court’s decision to suppress defendant’s confession on the basis of prearraignment delay. Spinks, supra at 561-565. The panel examined the totality of the circumstances and found that the confession was voluntary. Id. at 564-565. The panel did not consider defendant’s argument *497 that the confession should be suppressed as the fruit of an illegal arrest.
We acknowledge that the trial court did not rule on this issue below. However, we find — as did the prior panel — that the factual record below is sufficient for us to decide this issue as a matter of law. See id.
Our review of the record discloses only a moderate preinterrogation delay of about twelve hours. The officers’ conduct was not flagrant; in fact, defendant’s brother may have consented to their entry. See MCL 764.15; MSA 28.874; see also
City of Troy v Ohlinger,
Affirmed.