PEOPLE v TAYLOR; PEOPLE v KING; PEOPLE v SCARBER
Docket Nos. 135666, 135683, and 135692
Supreme Court of Michigan
December 19, 2008
482 Mich 368
Eric Taylor, Robert L. King, and Marlon Scarber were convicted in the Wayne Circuit Court, Annette J. Berry, J., of multiple crimes in connection with the kidnapping and murder of Fate Washington. Taylor and King were convicted by the same jury, while Scarber was given a separate jury so that Scarber‘s out-of-court statements to a friend, in which Scarber described the circumstances of the crimes and identified King as Washington‘s killer, could be placed into evidence. All three defendants appealed. After consolidating the cases, the Court of Appeals, ZAHRA, P.J., and WHITE and O‘CONNELL, JJ., set aside, on double-jeopardy grounds, King‘s convictions and sentences for second-degree murder and kidnapping and Taylor‘s conviction and sentence for kidnapping. The Court affirmed all the other convictions and sentences. Specifically, the Court rejected King‘s argument that the trial court erred by failing to consider the reliability of Scarber‘s out-of-court statements before ruling that their admission would not violate King‘s right of confrontation, notwithstanding the fact that King could not cross-examine Scarber about the statements. The Court held that the statements in question were admissible under the hearsay exception for statements against the declarant‘s penal interest, MRE 804(b)(3), and that the statements bore sufficient indicia of reliability under the analysis in People v Poole, 444 Mich 151 (1993), to avoid violating King‘s right of confrontation. Unpublished opinion per curiam of the Court of Appeals, issued November 29, 2007 (Docket Nos. 273443, 273543, and 273955). The defendants sought leave to appeal in the Supreme Court.
In lieu of granting leave to appeal, in an opinion per curiam signed by Chief Justice TAYLOR and Justices WEAVER, CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
Insofar as People v Poole, 444 Mich 151 (1993), held that the admissibility of a codefendant‘s nontestimonial hearsay statement is governed by both MRE 804(b)(3) and the Confrontation Clause
- The portion of Poole pertaining to the requirements of the Confrontation Clause is no longer good law because it was premised on Ohio v Roberts, 448 US 56 (1980), which has been overruled by Crawford v Washington, 541 US 36 (2004), and Davis v Washington, 547 US 813 (2006). Crawford held that, where testimonial evidence is at issue, the Confrontation Clause requires the unavailability of the declarant and a prior opportunity for cross-examination. Under Davis, evidence that is nontestimonial is subject to traditional rules limiting the admissibility of hearsay, but does not implicate the Confrontation Clause.
- The codefendant made the challenged hearsay statements informally to an acquaintance, not during a police interrogation or other formal proceeding. Accordingly, the statements were nontestimonial, and their admission is governed solely by MRE 804(b)(3). Although the Court of Appeals engaged in a Confrontation Clause analysis, it reached the correct result by sufficiently addressing the issue of the statements’ admissibility under MRE 804(b)(3).
Affirmed.
Justice CAVANAGH, joined by Justice KELLY, concurring in part and dissenting in part, agreed that Poole is no longer controlling law to the extent it relied on Roberts, but would grant leave to reconsider the validity of Poole in light of the United States Supreme Court‘s decision in Williamson v United States, 512 US 594 (1994), which held that the federal counterpart of MRE 804(b)(3) does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory, and particularly if the statement implicates someone else.
EVIDENCE — HEARSAY — STATEMENTS AGAINST INTEREST — INCULPATION OF ACCOMPLICES — CONFRONTATION OF WITNESSES — RIGHT OF CONFRONTATION.
The admissibility of nontestimonial hearsay is governed solely by MRE 804(b)(3) and does not implicate a defendant‘s constitutional right to confront witnesses (
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.
PER CURIAM. In this case, two juries convicted three defendants of multiple crimes related to the kidnapping and murder of Fate Washington. Defendant Robert L. King argues that the inculpatory statements of codefendant Marlon Scarber, admitted through the testimony of an acquaintance, violated the rules of evidence and King‘s right of confrontation under People v Poole, 444 Mich 151; 506 NW2d 505 (1993). In lieu of granting leave to appeal, we hold that, insofar as Poole held that the admissibility of a codefendant‘s nontestimonial hearsay statement is governed by both MRE 804(b)(3) and the Confrontation Clause of the United States Constitution, it is no longer good law. We nevertheless affirm the decision of the Court of Appeals because we conclude that the Court sufficiently addressed the issue of the statements’ admissibility under MRE 804(b)(3). We deny defendants’ applications for leave to appeal in all other respects.
I. FACTS AND PROCEDURAL HISTORY
The Court of Appeals summarized the facts of this case as follows:
The victim, Fate Washington, was sitting in the driver‘s-side seat of his Ford Expedition on the street outside his house. He had just finished speaking with a neighbor when defendant Scarber and an unidentified man, both clad in black, approached the vehicle and forced Washington, at gunpoint, further into the vehicle. Both the neighbor and Washington‘s adult son, who was near a window inside the house, witnessed the scene. Washington scuffled with the men long enough that the neighbor was able to run home, retrieve a handgun, and open fire on the vehicle from his front porch. The eyewitnesses verified that Scarber climbed into the driver‘s seat while a second vehicle[,] driven by defendant King, rolled up and opened fire on the
neighbor with an automatic rifle. Other witnesses confirmed that the tandem of vehicles sped off through the streets after the shots were fired. Soon afterward, defendant King forced Washington to make a series of calls demanding ransom in return for his life. A former friend of Scarber‘s and associate of [Taylor and King], Troy Ervin, provided a detailed account of events after Washington was taken captive. The group took Washington to a house owned by Ervin‘s sister, and defendant King persuaded Ervin to trade cars with him for a while. When Ervin visited the house, he was initially denied access into the home. Scarber later called him and told him that he and the other defendants had kidnapped Washington and held him at the house. Scarber explained that Taylor had helped and that King had shot at the man‘s defenders. Scarber also admitted that he almost blew himself up burning the man‘s vehicle. This information was confirmed at trial by a witness who heard a large explosion that night and saw a vehicle, later identified as Washington‘s Expedition, on fire outside her home. Ervin visited the house again and found Washington lying on the floor of a back room wearing nothing but a sheet. Taylor guarded the man with an automatic rifle like the one described by witnesses to Washington‘s capture, and King was armed with a handgun like the one Scarber had used. While Ervin was there, he heard Taylor deny Washington‘s request to use the phone again to make more ransom calls.
Ervin left, but returned again later after Scarber called and told him that King had shot Washington in the legs and he had bled to death. Ervin was agitated at finding that Washington was killed in his sister‘s house, because it associated him with the murder. He saw the dead body in the back room, and then he went to the hardware store for King and purchased tools for burying the body. After he dropped off the tools, he was again called and informed that the group had buried the body in the back yard of the property. Ervin was again agitated at the use of his sister‘s property, but Taylor assured him that the burial site was inconspicuously concealed by the doghouse and the body was secure under a layer of concrete. Searchers later found
the body buried as Ervin described it. The body was found with two gunshot wounds, one through each leg. Upon hearing that Ervin, who was not charged with a crime, had made a statement to police about Washington‘s murder, defendant Scarber also decided to make a statement. Except for Scarber‘s self-serving insistence that he participated in the crimes under duress and tried to care for Washington by bandaging his first gunshot wound and bringing him water, Scarber‘s statement to police was remarkably consistent with Ervin‘s. Scarber‘s statement confirmed the details of a successful ransom recovery that involved a peculiar delivery method, a particular mailbox, and a relatively small amount of money and drugs. Scarber‘s statement described defendant King as Washington‘s killer, and explained that, before he shot Washington a second time, King expressed a frustrated lack of concern with Washington‘s life and an unabashed willingness to kill him. Because the prosecutor wanted to place defendant Scarber‘s statement into evidence, Scarber received a separate jury for the purpose, isolating defendant King‘s and defendant Taylor‘s jury from Scarber‘s blame-shifting account of Washington‘s captivity. [People v Taylor, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2007 (Docket Nos. 273443, 273543, and 273955), at 2-3.]
A jury convicted King and Taylor of second-degree murder,1
A separate jury convicted defendant Scarber of first-degree premeditated murder,
After consolidating defendants’ appeals, the Court of Appeals affirmed Scarber‘s convictions and sentences, but set aside King‘s second-degree murder and kidnapping convictions and Taylor‘s kidnapping conviction on double jeopardy grounds.4 All three defendants sought leave to appeal in this Court.
Defendant King challenges the trial court‘s admission, through Ervin‘s testimony,5 of defendant Scarber‘s statements to Ervin that (1) Scarber, King, and Taylor had kidnapped Washington and were holding him at the house owned by Ervin‘s sister and that (2) King had shot Washington once in each leg, causing him to bleed to death. King argues before this Court, as he did before the Court of Appeals, that Scarber‘s statements to Ervin were inadmissible hearsay and that the trial court erred in failing to consider their reliability before holding that the statements would not violate the Confrontation Clause. The Court of Appeals held that the rules of evidence did not preclude admission of the statements because they fell within the hearsay exception for statements against the declarant‘s penal interest, MRE 804(b)(3). Taylor, supra at 5. It also held that the trial court‘s failure to analyze the reliability of the statements was harmless because the statements bore sufficient indicia of reliability under the factors articulated in Poole, supra at 165, and they therefore did not violate King‘s right of confrontation. Taylor, supra at 5-6.
We hold that the portion of Poole pertaining to the requirements of the Confrontation Clause is no longer good law because it was premised on Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has been overruled by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Because the hearsay statements in this case were nontestimonial, they do not implicate the Confrontation Clause, Davis, supra at 821, and their admissibility is governed solely by MRE 804(b)(3). We never-
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”
In Poole, this Court considered the admissibility of a declarant‘s voluntary, out-of-court statement made to someone other than a police officer, implicating the declarant and the defendant in criminal activity. Id. at 153-154. It held that in order for such a statement to be admissible as substantive evidence against the defendants at trial, it must be admissible under both MRE 804(b)(3) and the Confrontation Clause. Id. at 157. After concluding that the statement was admissible under MRE 804(b)(3), the Court considered whether admission of the statement at issue violated the defendants’ right of confrontation. Id. at 162. Following a discussion of Roberts and Idaho v Wright, 497 US 805, 819, 822-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990)
In evaluating whether a statement against penal interest that inculpates a person in addition to the declarant bears sufficient indicia of reliability to allow it to be admitted as substantive evidence against the other person, courts must evaluate the circumstances surrounding the making of the statement as well as its content.
The presence of the following factors would favor admission of such a statement: whether 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.
On the other hand, the presence of the following factors would favor a finding of inadmissibility: whether the statement (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, (3) was made to avenge the declarant or to curry favor, and (4) whether the declarant had a motive to lie or distort the truth. [Poole, supra at 165.]
Applying these factors, the Poole Court concluded that the witness did not prompt the declarant to make the statement or inquire about events referenced in the statement. The statement did not minimize the declarant‘s role in the attempted robbery or his responsibility for the murder, and was not made in order to shift blame to the defendants, avenge the declarant, or curry favor. Nor was there any indication that the declarant had a motive to lie. On that basis, the Court concluded that the statement and the circumstances
The United States Supreme Court subsequently decided Crawford and Davis, which in combination overruled Roberts in its entirety. In Crawford, the Court overruled the Roberts “indicia of reliability” analysis where testimonial statements are concerned. It held that, “[w]here testimonial evidence is at issue,” “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, supra at 68. The Court declined to “spell out a comprehensive definition of ‘testimonial,‘” but stated that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.
In Davis, the United States Supreme Court revisited the question of the application and requirements of the Confrontation Clause. It held that the clause only restricts the admissibility of testimonial statements because “[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Id. at 821. While nontestimonial statements are subject to traditional rules limiting the admissibility of hearsay, they do not implicate the Confrontation Clause. Id. The Court considered the circumstances under which statements made during a police investigation were testimonial. It concluded that such “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822. “They are testimonial when the circumstances objectively indicate that there
The overruling of Roberts by the United States Supreme Court in Crawford and Davis undermines the analytical underpinnings of this Court‘s decision in Poole, which was entirely predicated on Roberts. Thus, the holding in Poole that a codefendant‘s nontestimonial statement is governed by both MRE 804(b)(3) and the Confrontation Clause is no longer good law. Scarber‘s statements to Ervin were nontestimonial because they were made informally to an acquaintance, not during a police interrogation or other formal proceeding, see Crawford, supra at 68, or under circumstances indicating that their “primary purpose” was to “establish or prove past events potentially relevant to later criminal prosecution,” Davis, supra at 822. Accordingly, the admissibility of the statements in this case is governed solely by MRE 804(b)(3). This Court‘s MRE 804(b)(3) analysis in Poole remains valid, however, and provides the applicable standard for determining the admissibility of a codefendant‘s statement under the hearsay exception for statements against a declarant‘s penal interest. MRE 804(b)(3) provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(3) 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 the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant‘s position would
not have made the statement unless believing 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.
In Poole, this Court held:
[W]here, as here, the declarant‘s inculpation of an accomplice is made in the context of a narrative of events, at the declarant‘s initiative without any prompting or inquiry, that as a whole is clearly against the declarant‘s penal interest and as such is reliable, the whole statement—including portions that inculpate another—is admissible as substantive evidence at trial pursuant to MRE 804(b)(3). [Poole, supra at 161.] 6
In this case, Scarber made his first statement, implicating himself, King, and Taylor in the kidnapping, during a telephone conversation with Ervin on the day of the kidnapping. During another call to Ervin the following day, apparently shortly after Washington died,
In all other respects, defendants’ applications for leave to appeal are denied, because we are not persuaded that the questions presented should be reviewed by this Court.
TAYLOR, C.J., and WEAVER, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.
Under MRE 804(b)(3), a nontestimonial hearsay statement is not excluded if the declarant is not available as a witness and the statement “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 believing it to be true.” Poole interpreted MRE 804(b)(3) to allow a declarant‘s statements to be admitted as a whole against a codefendant, even where some of the statements inculpate the codefendant without inculpating the declarant, if made “in the context of a narrative of events” that as a whole was against the declarant‘s penal interest. Poole, supra at 161. The Poole Court stated that it was “guided by the comment of the Advisory Committee for the Federal Rules of Evidence concerning
As the majority opinion acknowledged in this case, one year after Poole was decided, the United States Supreme Court repudiated the interpretation of the federal commentary advanced in Poole. See Williamson, supra at 600-601. Specifically, Williamson held that “the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory state-
This Court should grant leave to appeal to reconsider the validity of Poole in light of Williamson. The majority opinion dismisses Williamson in a footnote by tersely stating that “[w]e note this development in federal law, but believe that the portion of Poole pertaining to MRE 804(b)(3) was correctly decided.” Ante at 379 n 6. While the United States Supreme Court‘s interpretation of
The United States Supreme Court‘s express rejection of the interpretation of the federal commentary on which Poole relies is significant. The majority misses the point when it notes that this Court is not bound by the FRE by stating that “this Court finds commentary and caselaw on the [FRE] helpful and, in some cases, persuasive.” Ante at 379 n 6, citing People v VanderVliet, 444 Mich 52, 60 n 7; 508 NW2d 114 (1993). When this Court bases its interpretation of an MRE on the federal
Further, as stated in my dissent in Poole, I continue to think that it is more consistent with the text of MRE 804(b)(3) to exclude the portions of a declarant‘s statements that implicate a codefendant but are not against the declarant‘s penal interest. See Poole, supra at 166-169 (CAVANAGH, J., dissenting). The exception to the general rule against hearsay in MRE 804(b)(3) allows admission of statements against interest only insofar as a “reasonable person in the declarant‘s position would not have made the statement unless believing it to be true.” As stated in Williamson, supra at 599-600:
Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.... The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession‘s non-self-inculpatory parts. One of the most effective ways to lie is to
mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
Poole‘s interpretation of MRE 804(b)(3) is an imprecise proxy for when a “reasonable person in the declarant‘s position would not have made the statement unless believing it to be true.” MRE 804(b)(3). Poole incorrectly assumed that any statement made in the context of a narrative of events that as a whole is against the declarant‘s penal interest is one that a reasonable person in the declarant‘s position would not have made unless it were true. Williamson‘s interpretation more accurately reflects the rule‘s text and the reality that the underlying justification for inferring that self-inculpatory statements are true does not necessarily extend to contemporaneous non-self-inculpatory statements. This is especially true when, as in this case, the non-self-inculpatory statements exculpate the declarant and inculpate a codefendant.2
This Court should grant leave to appeal to reconsider Poole in light of Williamson because Williamson rejected the interpretation of the federal commentary on which Poole was based. Further, the facts of this case illustrate the flaws in Poole‘s interpretation of MRE 804(b)(3) as compared to Williamson‘s interpretation.
KELLY, J., concurred with CAVANAGH, J.