Docket No. 210668.
Submitted April 8, 1999, at Lansing.
Decided February 1, 2000, at 9:05 a.m.
Appeal from Washtenaw Circuit Court, Michigan, LC No. 97-008328 FC.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, for the people.
Don Ferris, for the defendant, Ann Arbor.
Before: Wilder, P.J., and Cavanagh and Zahra, JJ.
The prosecution appeals as of right from the circuit court's final order of acquittal/dismissal/remand of the charges against defendant. We reverse and remand.
Defendant was charged with two counts of open murder, MCL 750.316; MSA 28.548, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). At the preliminary examination, the district court rejected defendant's challenge to the admissibility of a statement made by codefendant Andre Freeman. It is undisputed that this statement, made by Freeman to Darnia Townsend, his ex-girlfriend and the mother of his son, is the primary evidence against defendant in the charged offenses. Townsend testified during the preliminary examination that Freeman called her and told her that he and defendant had gone to the victims' house to purchase drugs and that, when they arrived, they discovered more drugs than expected. Townsend further testified that Freeman told her he and defendant decided to take advantage of this "opportunity," and Freeman shot the man and woman in the house. Freeman allegedly further related that after he shot the woman but before he believed she had died, his gun jammed, and that defendant then shot the woman "because she was still alive." Townsend testified that Freeman told her he discussed the killings with her because he needed to get it off his chest and she was the only one he could talk to.
At the completion of the preliminary examination, the district court bound defendant over for trial. Thereafter, defendant filed a motion to quash the information, contending that the codefendant's statement was inadmissible hearsay and that, without the statement, the prosecution could not establish probable cause that defendant committed the crimes charged. The circuit court found that the statement was hearsay not otherwise admissible against defendant under MRE 804(b)(3) and held that admission of the statement as substantive evidence would violate defendant's right to confrontation. The circuit court further found that, without the statement, the prosecution failed to show "probable cause to believe Beasley committed the charged crime. . . ." Accordingly, the circuit court entered an order of acquittal/dismissal/remand ordering that the information against defendant be quashed and defendant be released from custody immediately.
On appeal, the prosecution first argues that the circuit court erred in determining that defendant's statement was inadmissible as substantive evidence pursuant to MRE 804(b)(3). Specifically, the prosecution contends the circuit court erroneously applied Williamson v United States, 512 U.S. 594; 114 S.Ct. 2431; 129 L.Ed.2d 476 (1994), to the facts presented, rather than follow Michigan Supreme Court precedent established by People v Poole, 444 Mich. 151; 506 N.W.2d 505 (1993). We agree.
Whether federal or Michigan law governs the admissibility of a hearsay statement involves mixed questions of fact and law. A trial court's factual findings are reviewed on appeal for clear error, while application of the law to the facts is reviewed de novo. People v Barrera, 451 Mich. 261, 269; 547 N.W.2d 280 (1996).
The decision to bind a defendant over is reviewed for abuse of discretion. People v Justice (After Remand), 454 Mich. 334, 344; 562 N.W.2d 652 (1997); People v Orzame, 224 Mich. App. 551, 557; 570 N.W.2d 118 (1997). In reviewing a district court's decision to bind over a defendant for trial, a circuit court must consider the entire record of the preliminary examination, and it may not substitute its judgment for that of the magistrate. Id. Reversal is appropriate only if it appears on the record that the district court abused its discretion. Id. This Court reviews the circuit court's decision de novo to determine whether the district court abused its discretion. Id.
In Poole, supra, the defendants were bound over on charges of first-degree felony murder and assault with intent to rob while being armed. During the preliminary examination, prosecution witness Andre Berry, who was defendant Kevin Downer's cousin, testified Downer initiated a conversation with him during which Downer admitted killing someone in an attempted robbery in which the other defendants participated. Poole, supra at 155-156. The trial court ruled that Downer's statement to Berry inculpating himself as well as his accomplices Edward Poole and Zina Dhue was properly admitted as substantive evidence under MRE 804(b)(3) because "`[t]he circumstances in which Downer gave his [statement] attests to its inherent trustworthiness and indicia of reliability.'" Poole, supra at 156. The court reasoned that Downer voluntarily and spontaneously confessed to the killing because he confessed while still under the stress from the event, he told a family member as opposed to a law enforcement officer, he was not yet under suspicion for the offense and therefore had no motive to lie or mitigate his own liability, and he made no effort to exonerate himself to the detriment of his accomplices. Id. This Court reversed in part the trial court's ruling, finding that Downer's statement inculpating the other defendants was not admissible as substantive evidence because it was not against Downer's interest to inculpate the others. People v Poole, unpublished opinion per curiam, issued July 28, 1992 (Docket No. 139161).
On appeal, the Michigan Supreme Court concluded that the trial court correctly determined that Downer's statement inculpating the other defendants satisfied the requirements of MRE 804(b)(3) and the Confrontation Clause, US Const, Am VI; Const 1963, art 1, § 20, and the Supreme Court reversed the Court of Appeals judgment and remanded for trial. Poole, supra at 157. The Supreme Court first concluded that the self-inculpatory portion of Downer's statement to Berry was clearly against Downer's penal interests at the time it was made, tended to subject to him to criminal responsibility, and therefore clearly satisfied the requirements of MRE 804(b)(3). Id. The Supreme Court then held that while MRE 804(b)(3) did not directly address the non-self-inculpatory portions of Downer's statement "where, 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.
In Williamson, supra, the defendant was charged with possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine. At trial, the prosecution's chief witness, the defendant's accomplice, Reginald Harris, refused to testify against the defendant. The district court ruled that the officer in charge of the investigation, who had interrogated Harris, could testify regarding statements Harris made during the interrogation that inculpated the defendant. The defendant was ultimately convicted and he appealed his conviction, claiming that the admission of Harris' statements violated FRE 804(b)(3) and the Confrontation Clause. The Eleventh Circuit Court of Appeals affirmed. Williamson v United States, 981 F.2d 1262 (CA 11, 1992).
On appeal, the United States Supreme Court vacated the Eleventh Circuit Court of Appeals ruling and remanded, holding:
In our view, the most faithful reading of [FRE] 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. [ Williamson, supra, 512 U.S. 600-601.]
The Williamson Court thus remanded for an evidentiary hearing regarding the admissibility of Harris' non-self-inculpatory statements. The Court noted that out-of-court statements made by codefendants traditionally have been viewed with suspicion and are deemed less credible than other hearsay evidence because of the strong motivation of the codefendant to implicate the other defendant and exonerate himself. Id. at 601. However, "confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Id. at 603. Therefore, whether a statement is truly self-inculpatory, and thus clearly admissible, can be determined only by viewing it in light of all the surrounding circumstances. Id. at 603-604. The Court ultimately concluded that while some of Harris' confession would be clearly admissible those statements that were truly self-inculpatory — other statements that implicated the defendant did little to subject Harris himself to criminal liability, and were, therefore, not clearly admissible under FRE 804(b)(3). Williamson, supra, 512 U.S. 604.
We find that Freeman's statement to Townsend satisfies the Poole criteria for admission of substantive evidence. First, Freeman was unavailable to testify in this case. MRE 804(a)(1). Second, Freeman's statement to Townsend "as a whole" was against his penal interests at the time it was made. While the statement does inculpate defendant, it in no way operates to exonerate Freeman. Rather, the statement tends to subject Freeman to criminal responsibility to the extent that a reasonable person in his position would not have said what he reported unless it was true. Thus, the circuit court erred as a matter of law in finding Freeman's statement inadmissible under MRE 804(b)(3).
Counsel for Freeman and Beasley each asserted during the preliminary examination and again before the circuit court that their respective clients would claim their codefendant fired the fatal shot. Accordingly, the circuit court ruled that the trials of the codefendants would be severed pursuant to MCR 6.121(C). Thus, although no formal finding was made for the record, Freeman is an unavailable witness in this case.
We reject defendant's argument that Williamson applies to this case with regard to the evidentiary question. In Poole, our Supreme Court stated its reliance on the comment of the Advisory Committee for the Federal Rules of Evidence concerning FRE 804(b)(3) in reaching the conclusion that non-self-inculpatory statements were admissible under MRE 804(b)(3). It is clear that Williamson clearly repudiates our Supreme Court's interpretation of the Advisory Committee's comment and that Williamson is relevant in interpreting MRE 804(b)(3). Nevertheless, the Michigan Supreme Court is not bound by the federal application. People v Malone, 445 Mich. 369, 408; 518 N.W.2d 418 (1994) (Cavanagh, C.J., dissenting); People v Vander Vliet, 444 Mich. 52, 60, n 7; 508 N.W.2d 114 (1993), amended on other grounds 445 Mich. 1205 (1994) ([b]ecause the Michigan Rules of Evidence in general parallel the text of the federal rules on which the state committee's product was based, we find helpful and, in some instances, persuasive, commentary and case law that refers to the Federal Rules of Evidence). (Emphasis added). In addition, this Court is bound by Michigan Supreme Court precedent, even if such precedent has become obsolete. Boyd v W G Wade Shows, 443 Mich. 515; 505 N.W.2d 544 (1993).
There is no obvious answer to the question whether the interpretation of MRE 804(b)(3) is obsolete in light of Williamson. In Poole, supra at 159, n 11, the Supreme Court implied that while MRE 804(b)(3) did not specifically address non-self-inculpatory statements, a "catch-all" exception to the rule against admission of hearsay evidence might apply. When Poole was decided, the Michigan Rules of Evidence did not contain a "catch-all" exception. However, the 1996 adoption of MRE 803(24) and MRE 804(b)(6) incorporated such "catch-all" exceptions.
The prosecution also argues that the circuit court erred in finding that the admission of Freeman's statement as substantive evidence against defendant would violate defendant's right to confrontation. We agree.
This issue presents a constitutional question that we review de novo. People v McIntire, 232 Mich. App. 71, 93; 591 N.W.2d 231 (1998). In Poole, the Michigan Supreme Court held that a statement against penal interest, admissible as substantive evidence under MRE 804(b)(3), does not violate the Confrontation Clause if the prosecutor establishes that the declarant is unavailable as a witness and that the statement bears adequate indicia of reliability or falls within a firmly rooted hearsay exception. Poole, supra at 163. The Court explained at length how to evaluate the reliability of a statement against penal interest:
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.
Courts should also consider any other circumstance bearing on the reliability of the statement at issue. While the foregoing factors are not exclusive, and the presence or absence of a particular factor is not decisive, the totality of the circumstances must indicate that the statement is sufficiently reliable to allow its admission as substantive evidence although the defendant is unable to cross-examine the declarant. [ Id. at 165, citing Idaho v Wright, 497 U.S. 805; 110 S.Ct. 3139; 111 L.Ed.2d 638 (1990) (citation omitted).]
We conclude from our review of the evidence that on the basis of the totality of the circumstances, the admission of Freeman's statement as substantive evidence against defendant does not violate the Confrontation Clause. Freeman's statement was voluntarily given to Townsend, who was someone to whom Freeman would likely speak truthfully. Furthermore, Freeman sought out Townsend to initiate the making of the statement. In addition, as stated earlier, Freeman's statement was clearly against his penal interest, and does not shift blame but makes reference to defendant only in the context of Freeman's narration of the events of the incident. Poole, supra at 161. The district court judge, who sat as the trier of fact at the preliminary examination, reasonably found the circumstances of the making of the statement were sufficiently indicative of reliability to weigh in favor of admission.
We are not persuaded that Lilly v Virginia, 527 U.S. 116; 119 S.Ct. 1887; 144 L.Ed.2d 117 (1999), requires a different result. In Lilly, the United States Supreme Court held that the admission into evidence of a nontestifying accomplice's confession violated the defendant's Confrontation Clause rights. A majority of the Court, however, did not decide that the Confrontation Clause imposes a "blanket ban on the government's use of accomplice statements that incriminate a defendant. . . ." Id., 119 S.Ct. 1905; 144 L.Ed.2d 141 (Rehnquist, C.J., and O'Connor and Kennedy, JJ., concurring). An elemental tenet of our jurisprudence, stare decisis, provides that a decision of the majority of justices of the Michigan Supreme Court is binding on lower courts. People v Mitchell, 428 Mich. 364, 369; 408 N.W.2d 798 (1987). See Negri v Slotkin, 397 Mich. 105, 107; 244 N.W.2d 98 (1976). We are bound, then, by our state Supreme Court precedent, unless the United States Supreme Court has addressed a federal constitutional question. Bundo v Walled Lake, 53 Mich. App. 317; 218 N.W.2d 869 (1974), rev'd on other grounds 395 Mich. 679; 238 N.W.2d 154 (1976). A plurality opinion of the United States Supreme Court, however, is not binding precedent. Texas v Brown, 460 U.S. 730, 737; 103 S.Ct. 1535; 75 L.Ed.2d 502 (1983). Therefore, Lilly is not binding precedent in this case, and Poole's finding that the admission into evidence of a nontestifying accomplice's statement does not violate the Confrontation Clause remains binding precedent that we are obliged to follow.
Reversed and remanded for reinstatement of the charges against defendant. We do not retain jurisdiction.
Zahra, J., concurred.
Because we are bound by our Supreme Court's opinion in People v Poole, 444 Mich. 151; 506 N.W.2d 505 (1993), I concur with the result reached by the majority. I write separately, however, to express serious reservations regarding our Supreme Court's conclusion that non-self-inculpatory statements are admissible under MRE 804(b)(3), and to urge the Court to reconsider this issue and adopt the United States Supreme Court's interpretation of the corresponding federal rule set forth in Williamson v United States, 512 U.S. 594; 114 S.Ct. 2431; 129 L.Ed.2d 476 (1994).
When a hearsay declarant is not present for cross-examination during trial, the Confrontation Clause, US Const, Am VI; Const 1963, art 1, § 20, normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "`indicia of reliability.'" Ohio v Roberts, 448 U.S. 56, 66; 100 S.Ct. 2531; 65 L.Ed.2d 597 (1980). This reliability requirement is fulfilled when the hearsay statement either "`"falls within a firmly rooted hearsay exception"'" or occurs under circumstances with "`"particularized guarantees of trustworthiness."'" People v Welch, 226 Mich. App. 461, 467; 574 N.W.2d 682 (1997) (citations omitted).
Generally, a hearsay statement is deemed to possess an indicia of reliability when made under specific circumstances that make it more probable than not that the substance of the statement is true. People v Malone, 445 Mich. 369, 402, n 12; 518 N.W.2d 418 (1994) (Cavanagh, C.J., dissenting). Thus, MRE 804(b)(3) provides that, if the declarant is unavailable as a witness, the following is not excluded by the hearsay rule:
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.
The underlying rationale of the exception is that a reasonable person will not incriminate himself by admitting a damaging fact unless he believes that fact to be true. People v Barrera, 451 Mich. 261, 271-272; 547 N.W.2d 280 (1996).
MRE 804(b)(3) was modeled on FRE 804(b)(3). Poole, supra at 161. In Williamson, the Supreme Court addressed whether statements that were not self-inculpatory, but that were made in the course of a narrative of events that as a whole is against the declarant's penal interest, were admissible under FRE 804(b)(3). The Court first considered whether the word "statement" in the court rule could be applied to an extended narrative or whether it applied only to individual declarations within the narrative. In rejecting the former interpretation, the Court explained:
Although the text of the Rule does not directly resolve the matter, the principle behind the Rule, so far as it is discernible from the text, points clearly to the narrower reading. 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. This notion simply does not extend to the broader definition of "statement." 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.
. . . And when part of the confession is actually self-exculpatory, the generalization on which Rule 804(b)(3) is founded becomes even less applicable. Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements. [ Williamson, supra at 599-600.]
A reasonable person will not be likely to make a self-inculpatory statement if it is not true. However, the fact that a non-self-inculpatory statement is made in proximity to a self-inculpatory statement does not provide any information regarding the reliability of the statement. Accordingly, such non-self-inculpatory statements should be treated no differently from other hearsay statements that are generally excluded.
In sum, were it not for our Supreme Court's decision in Poole, I would affirm the trial court's order.