*1 PEOPLE WASHINGTON September 11, 2001, at Detroit. Decided Submitted No. 221851. Docket May appeal sought. 31, 2002, at a.m. Leave to 9:20 Wayne Court, jury by Washington in the Circuit was convicted a Allan robbery Jackson, J., and assault with intent to E. of aimed Thomas bodily great his code- less than murder. Defendant and do harm custody investigation Mathis, police fendant, were for of Daniel in police was a radio transmission con- another matter when there police robbery cerning shooting in matter. As the the this transmission, listening to the radio Mathis blurted officers were Although sought and “I it—I’m shooter.” the defendant out: did the separate jury, ultimately permitted granted was a the court Mathis’ against the be as substantive evidence defen- statement to admitted trial, brought During to the of the the defendant the dant. course juror suspected involving contact court’s attention misconduct police spectator a trial and officer who had been at the between a questioned jurors. juror, Although it the court did one of the juror permit to defense counsel conduct voir dire or to alleged present potential to misconduct before mak- witness ing was The its there no misconduct. determination appealed. defendant Appeals held: Court inculpatory 1. of the codefendant’s statement as The admission presented status of the evidence two related issues: the substantive hearsay proffered admitting and the concern that such evidence as right to be con- evidence violated the defendant’s constitutional against fronted him. the witnesses 2. was introduced to show Because codefendant’s statement actually perpetrated crime, the state- that the codefendant had prove of its and was thus ment was offered to the truth assertion excep- it that was inadmissible unless fell within one hearsay rule. Because the codefendant’s statement tions to the clearly penal interest, admitting guilt against his the state- his clearly penal exception of MRE ment came within the interest 804(b)(3). though a 3. To admissible as substantive evidence even defen- be declarant, a statement must dant is unable cross-examine particularized guarantees of trustworthiness con- contain sufficient totality sidering surrounding its utterance of the circumstances justify admission. Because there an indication that the non- its Washington testifying illness, codefendant suffered from mental the trial court admitting abused its discretion in the codefendant’s statement as defendant, particularly light substantive provided presented the fact that none of the other evidence a basis *2 may placed to bolster the reliance that be in the trustworthiness of admitting the in statement. error the statement cannot be said to be harmless. refusing 4. its The trial court abused discretion in to allow question juror alleged defense counsel to about the misconduct juror refusing person allegedly in of the and to allow the who wit- testify. juror nessed the misconduct to 5. The defendant was afforded effective assistance of counsel at trial, having professional duty trial counsel his fulfilled ethical and zealously to advocate the of interests his client within the bounds of the law.
Reversed and remanded. J., concurring part part, dissenting in and in stated that Zahra, effectively the defendant’s trial counsel assisted the defendant at trial, requiring but that the trial court did commit error reversal admitting against in the codefendant’s statement as evidence denying defendant and did not abuse its discretion in the defense opportunity juror counsel the to conduct a mid-trial voir dire of the allegedly engaged juror who had misconduct. Given circum- surrounding making stances the codefendant’s of the statement and solely the fact that the statement related to the codefendant’s role crime, adequate in the the statement was surrounded with indicia reliability of to warrant its admission as substantive evidence against the defendant. the trial Because court’s of examination juror anything revealed that the had not discussed about the during spectator juror’s case her lunch with the trial and that the spectator ability association with the would not her influence to decision, render a fair the court did not abuse its discretion in denying request question juror. defense counsel’s to The defen- dant’s convictions should be affirmed. — — — — Hearsay Criminal Law Evidence Confessions of Codefendants — Constitutional Law Confrontation Clause. inculpatory An out-of-court statement of a codefendant who is not may available for cross-examination be admitted as substantive evi- prosecution dence a defendant in a criminal without violat- ing where, totality considering the Confrontation Clause proffered surrounding circumstances statement’s utter- ance, particularized guarantees the statement contains sufficient justify Const, (US VI; trustworthiness to its admission Am Const 1, 20). § art
Opinion of the Court Attorney General, Thomas Granholm, M. Jennifer O’Hair, D. Casey, L. John Pros- General, Solicitor A. ecuting Attorney, Timothy Baughman, Chief of Steer, M. Valerie and and Research, Training, Appeals, for the Prosecuting Attorney, people. Assistant Lorence, for Gerald M. the defendant. Kelly, P.J., JJ. Zahra, and
Before: K. F. and Hood trial, defendant was Following jury Per Curiam. 750.529, MCL and assault robbery, convicted of armed bodily murder, harm less great with intent to do than MCL 750.84. Defendant was sentenced a term robbery years for the armed conviction six fifteen years to ten for the assault convic- term of six concurrently. to run Defendant tion, sentences as We and remand a new appeals right. reverse for trial.
I. AND BASIC FACTS PROCEDURAL HISTORY May During evening 7, 1998, the late hours of the watch, two men. victim was shot and robbed His $71 first pager, respond- and were taken. The officer description perpe- the ing to scene broadcast a of the to police trators over the air other officers. Approximately later, police five two minutes other the officers, shooting, at this time unaware of cousin, Mathis, observed defendant and his Daniel pull alley into an behind a station. Because the gas prostitution activities, for drug area known and they approached the As one officer vehicle. defendant approached vehicle, the driver’s side gas the and into the station. left vehicle walked According testimony trial, adduced when respond defendant to the officer’s verbal com- did to officer defendant into the stop, mands the followed the Court promptly gas returned station and him the vehicle. officer indicated that when defendant unsuccess- fully attempted to start vehicle, the defendant was physically According the removed from car. the officers, resisted, defendant and both officers sub- placed defendant, him, dued handcuffed and him in police the rear the cruiser. being the defendant subdued,
As the officers concerning shooting heard the broadcast the over the police descrip- radio. theAs officers listened to the perpetrators, tion of Mathis, Mr. who was passenger detained seat of the defendant’s vehi- blurted “I did cle, out: it—I’m the shooter.” Defendant placed together and Mathis were arrested and in a lineup. lineup, At the victim identified defendant perpetrators, identify as one of the but did not gun, pager, codefendant, Mathis. No bullets, or watch were recovered from either or the defendant vehicle. trial,
Before defense counsel filed motion for a separate alternatively separate jury, trial, or for a on ground pros- that defense counsel believed the attempt ecution would to introduce codefendant identifying Mathis’ statement himself as the shooter. During conference, the final the trial court indicated grant separate it that would defendant’s motion for juries, but did not address issue of the statement. day prosecutor
On the first of trial, raised the introducing issue Mathis’ statement as substantive against grounds defendant on the penal statement was codefendant’s interest inculpate did not otherwise In defendant. response, defense counsel indicated that codefendant previously diagnosed mentally was history as ill and had *4 psychological psy- requiring
of disturbances argued Thus, chiatric treatment. defense counsel that pertaining compe- there was an issue codefendant’s App 524 251 Mich the Court of argued Additionally, tency. that counsel defense admitting in defen- defendant the statement prejudice unfairly defendant. would dant’s trial Despite arguments, court the trial counsel’s defense permit to come the statement it would ruled that against defendant. evidence as substantive brought day sus- trial, defendant the third On juror pected attention. to the court’s misconduct juror with went to lunch that a Defendant indicated present police who was dur- officer drove with a police days ing The officer was of trial. the first two alleged with the victim or have had contacts also questioned juror, family.Although it the court his permit dire to conduct a voir defense counsel did not present potential witness or to alleged misconduct. jury We now reverse and defendant. convicted a new trial.
remand for MATHIS’ STATEMENT H. ADMISSIBILITY OF CODEFENDANT argues erred in the trial court Defendant identifying admitting himself codefendant’s statement perpetrator. agree. We as the regarding the admissi This court reviews decisions bility for an abuse of discretion. of evidence (2000). 613 NW2d370 713, 715; Schutte, regarding the admission of evi When the decision question preliminary law, such as dence involves precludes whether a statute or rule of admissibility de evidence, the issue is reviewed People Lukity, 596 NW2d novo. implicates Similarly, (1999). this issue because of the state and federal Confrontation Clauses1 US Const, Am VI; Const art § 20. *5 525 v
Opinion
Court
constitutions,
the issue is constitutional and is
People
Beasley,
reviewed de novo.
v
239 Mich
App
(2000).
557;
548,
In the instant matter, the
introduced in
defendant’s trial as substantive
of defen-
guilt
dant’s
an out-of-court statement
made
code-
People
fendant. As the Court in
Richardson,
v
204
App
(1994), quoting
71,
Mich
73-74;
patory presents statement as substantive evidence two dis- prof- tinct but related issues. first is The the status of the hearsay. fered evidence as The second is the concern that testimony admitting right such will violate the defendant’s ” against ‘to be confronted with the witnesses him.’ [Cita- tions omitted.] identifying Codefendant’s statement himself as the perpetrator shooting incident is indeed an prove unsworn out-of-court statement offered to appeal, prosecution truth of its assertion. On con- prove tends that the statement was not offered to that actually codefendant the shooter, but rather to justification establish a for officers’ conduct in arresting placing lineup defendant and him in a for purposes agree. of identification. We do not
A review the record indicates that the introduc- identifying tion of codefendant’s statement himself as perpetrator prove actually was offered to that he perpetrated the crime. Because codefendant was a passenger in the defendant’s vehicle five minutes after shooting occurred, the admission of the statement inescapable leads to the conclusion that defendant accomplice shooting. was an the state- Because prove ment was offered to the truth of assertion, its hearsay. People Poole, statement constitutes 444 Mich the Court Hearsay (1993). NW2d 505 151, 158-159; specific exception is a inadmissible unless there Ivers, for its introduction. allowing J., concurring); (1998). (Boyle, is a prosecution suggests statement wholly penal interest against statement codefendant’s pursuant 804(b)(3). admissible to MRE and thus imagine it would be difficult to statement Indeed than a statement penal more one’s interest Because codefendant’s statement admitting guilt. *6 is a that himself as the shooter statement identifying himself, clearly it comes implicates the declarant MRE purview 804(b)(3). within the of See Richard however, end our son, supra This, at 76. does not inquiry.
Here, prosecution introduced the statement as in guilt substantive evidence of defendant’s defen- any opportunity dant’s trial without for cross- Supreme aptly stated, examination. As our Court “ ‘truthfinding function of the Confrontation Clause is uniquely accomplice’s threatened when an confession is to be introduced a criminal defen- sought ” dant the benefit of cross-examination.’ Peo without ple Watkins, 627, 656; v Illinois, 530, 541; Lee v 476 US 106 (1991), quoting L 2056; (1986) (emphasis omitted). S Ct 90 Ed 2d 514 principal protection provided by “the the Con Indeed, criminal right frontation Clause to a defendant is the cross-examination,” People Gearns, conduct 457 to ensure that 186; (1998), NW2d. “ satisfactory of fact a basis ‘the trier for evalu [has] ” prior statement,’ Petros, supra truth of ating 418, quoting Evans, at Dutton v 400 US 91 S Ct 27 L Ed 2d 210; (1970).
Because counsel on behalf codefendant appeared and indicated that he would assert his cli-
Opinion of the Court privilege ent’s Fifth Amendment if codefendant were upon testify, right called defendant’s constitutional implicated to confrontation was and the otherwise statement could not come as substantive firmly evidence unless the statement “falls within a hearsay exception adequate rooted or if it bears indi- reliability.” supra cia of Schutte, at 717-718. presented judice The issue in the case sub whether codefendant’s statement contains sufficient “particularized guarantees of trustworthiness” consid- ering totality surrounding of the circumstances its justify supra Schutte, utterance to its See admission. supra quoting (“ totality Poole, ‘[T]he at 165 the circumstances must indicate that the statement is sufficiently reliable to allow its admission as substan- although tive evidence the defendant is unable to ”). cross-examine the declarant.’ On the record here us, before we it find that does not.
A review of the record an reveals assertion defense counsel that codefendant Mathis suffered history psy- from mental illness and that he had psychological Certainly, chiatric and treatment. an inculpatory by mentally statement made ill code- tacitly inculpates fendant as defendant his *7 accomplice “particu- is not a statement that contains sufficient, guarantees larized of trustworthiness” to introduce the statement as substantive evidence against opportunity defendant without the for cross- Permitting examination. codefendant’s statement to against come in as substantive defendant, evidence depriving opportunity while defendant the to chal- lenge through process, that statement the adversarial principles underlying violates bedrock the Con- “ frontation Clause Indeed, itself. ‘the Confrontation generally given Clause is satisfied when the defense opportunity probe expose a full and fair to . . . the Court thereby calling through cross-examination, infirmities giv for the reasons the factfinder attention of to the ing ” testimony.’ weight Gearns, witness’ scant quoting supra US Fensterer, Delaware at (emphasis (1985) Ed 2d 15 292; 88 L 22; 106 S Ct omitted). incul- of codefendant’s court’s admission
The trial patory as substantive statement any opportu- providing defendant without defendant through nity challenge cross- the statement on the evi- harmless error. Based is not examination probable presented than not trial, it is more dence have resulted without outcome would that a different statement. the admission of codefendant’s prosecution appeal, that defendant asserts On testimony police officers, but neither the ran from the supports this assertion. nor the officers of defendant prosecution tried to contends that defendant Also, the testimony away. of the officers However, the drive actually never started and indicates that the car was attempted they if were not even sure defendant keys ignition. Furthermore, into the to insert alleged $71, but, when was to have stolen defendant person. apprehended, $500 had over on his Neither he gun, pager, codefendant had a the stolen he nor in the watch, and these items were not found stolen they traveling. The fact that defen- car in which were robbery within was found within minutes of the dant not tend to estab- mile of the crime scene does one any any person guilt who more than other lish his gas at the and was also at the station lives in the area Finally, description gave victim same time. “quite vague” police and did not match either the defendant or codefendant.
Although acknowledge the victim identified we standing lineup, this, in a we do not believe defendant *8 v Court alone, clothes the codefendant’s statement with “ade- quate reliability.” lineup indicia was conducted days robbery ten after the and after the victim had hospital been sedated and medicated in the for five days. The victim identified the defendant as the man who him, shot but defendant was as tried the accom- plice of the shooter. In addition, the victim did not identify the codefendant. People Spinks, App
As we
noted
v
206 Mich
(1994),
People
quoting
493;
from a verdict when information juror’s ability impartially to act is discovered after jury (1) if the is sworn the defendant can establish actually prejudiced by presence that he was juror question juror (2) properly in or that the People Daoust, for cause. v 228 excusable Mich (1998), citing NW2d 179 1, 8-9;577 v Han- (1961), num, 660, 666-667; 107 NW2d People DeHaven, 327, 330-334; and (1948). NW2d468 requested oppor- case,
In this defense counsel tunity question juror to he because had reason to suspect juror presented misconduct. He the trial suspicion underlying court with the facts this presented alleged a witness to corroborate mis- conduct. The trial court refused to allow the witness speak request to and denied defense counsel’s to question juror facts, himself. On these we find the refusing ques- trial court abused its discretion in to allowing opportu- tion, or in not defense counsel the nity question, alleged about the mis- conduct.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL Although previous the resolution of the issues does require remaining us to address the issue raised appeal, defendant on we do, however, comment upon defendant’s claim for ineffective assistance of complete counsel. We note that a review of the record reveals trial counsel for defendant did
Opinion by J. Zahra, provide effective assistance on defendant’s behalf despite unfavorable rulings from the trial court. Trial counsel thus fulfilled professional duty his ethical and zealously advocate the interests of his client within of the law. bounds To trial impugn per- counsel’s formance on the record contained in the instant mat- precariously ter teeters on edge frivolity. Reversed and remanded for a new trial. We do not jurisdiction. retain J. (concurring part and dissenting in
Zahra, part.) I agree majority’s with the conclusion that defendant’s effectively trial counsel assisted defen- dant at trial. I write separately I disagree because with majority’s conclusion that the trial court committed error requiring reversal in admitting code- inculpatory fendant’s statement as *10 defendant. I also disagree majority’s with the conclu- sion that the trial court abused its discretion in deny- ing defense opportunity counsel the to conduct a voir dire of a midtrial. I would affirm defendant’s convictions.
I. ADMISSIBILITY OF CODEFENDANT’S STATEMENT
Counsel
for codefendant
indicated that codefen-
dant would assert his Fifth Amendment
right against
self-incrimination. Therefore, defendant’s right to con-
front
In People v Petros,
implicated.
codefendant
is
App 401;
198 Mich
unavailable
right
if
statement falls
to confront his accusers
firmly
hearsay exception or if it bears
within a
rooted
reliability.” People
adequate
Schutte,
indicia of
(2000), citing
717-718;
Whether
declaration
interest hear-
say exception
“firmly
ques-
is
in law a
rooted”
is close
upon
tion,
which state and federal courts have
Lilly Virginia,
reached different conclusions. See
v
533
v
Zahra, J.
527
1887;
US
119 S Ct
144 L Ed 2d 117
(1999) (plurality, opining
“accomplices’
that
confes-
inculpate
sions that
a criminal defendant
are not
firmly
exception
within
rooted
rule
concept
as that
has been defined in our Confrontation
Clause
and
jurisprudence.”),
Rivers,
Neuman v
F3d 315 (CA 6, 1997), cert den
In Poole, supra at 165, Supreme our Court instructed: evaluating In against penal whether a statement interest inculpates person
that
in addition to the declarant bears
1 Michigan
squarely
No
case has
addressed the issue whether MRE
804(b)(3)
“firmly
Richardson,
rooted” in
In
law.
204 Mich
App 71, 77;
(1994),
“suggest[ed]
Opinion by J. Zahra, reliability sufficient indicia of to allow it to be admitted as person, substantive evidence the other courts must surrounding making evaluate the circumstances the of the statement as well as its content. presence following of the factors would favor admis- sion of such a (1) statement: whether the statement was voluntarily given, (2) contemporaneously made with the referenced, (3) family, friends, colleagues, events made to is, or confederates —that to someone to whom the declarant likely speak truth, spontaneously
would (4) and uttered at prompting the initiation of the declarant and without or inquiry by the listener. hand, presence On following the other of the factors finding inadmissibility: would favor a whether the state- (1) ment was made to law enforcement officers or at the inquiry prompting listener, or (2) minimizes the role responsibility or of the declarant or shifts blame to the accomplice, (3) avenge was made to the declarant or to curry favor, (4) whether the declarant had a motive to lie or distort the truth. any Courts should also consider other circumstance bear- ing reliability on See, gener- of the statement at issue. ally, Layton, United States v (CA 9, 855 F2d 1404-1406 1988). foregoing exclusive, While the factors are not and the presence particular decisive, or absence of a factor is not totality of the circumstances must indicate that sufficiently statement reliable to allow its admission as although substantive evidence the defendant is unable to cross-examine the declarant. In present case, codefendant’s statement “I did it—I’m the shooter” vohmtarily given. Moreover, the statement was uttered spontaneously within min- utes of the events referenced. While the statement police was made officers, significant it is that code- fendant did not minimize his role in the crime. To the contrary, his statement indicates an attempt to assign responsibility only to him. Unlike majority, I do not consider codefendant’s alleged mental status rea- son to find his statement unreliable. While defen- appellate dant’s speculates counsel that codefendant Opinion by J. Zahra, “may mentally psychologically have or unstable been made],” time statement was there is no [the establishing that codefendant was record mentally time Code- unstable at the of the offense. mentally fendant was evaluated and determined com- petent to stand trial. circumstances sur- Given the rounding making codefendant’s of the statement and content, the statement’s I conclude there were suffi- *13 reliability. supra Poole, Thus, cient indicia of at 165. admission of the statement did not violate rights under defendant’s the Confrontation Clause. supra Schutte, at 717-718.
H. DENIAL OF MIDTRIAL VOIR DIRE Í further conclude that the trial court did not abuse its discretion when it denied defendant’s counsel’s request juror to conduct a voir dire of a in the midst During of trial. suggested a in trial, break defendant’s counsel judge juror
to the trial that had been seen during previous associating lunch break with a trial spectator, suspected degree who counsel had some family. with contact the victim or the victim’s The judge questioned juror regarding incident, juror person question which time the indicated the in was a “friend” who had come to meet her for lunch. juror specified anything The that she did not discuss regard person in to the case with the and verified person her association with the would not influence ability her to make a fair in decision this case. Under deny circumstances, these the trial court’s decision request question defendant’s counsel’s to further juror grossly logic. was violative of fact and judge’s pointed questions. answered the trial suspicion regard Defendant’s counsel’s juror’s merely speculative. question- bias was Further posed ing intimidating counsel the real risk of
Opinion by Zahra, J.
juror and, thereby, ultimately
serving
chill the free
juiy
and full
deliberations on the
evidence. See
v Adams,