People v. Taylor

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 *371neighbor 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 *372the 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 MCL 750.317; first-degree felony murder, MCL 750.316(l)(b); kidnapping, MCL 750.349; and possession of a firearm during the commission of a felony, MCL 750.227b. It also convicted King of armed robbery, MCL 750.529, but acquitted Taylor of armed robbery. The trial court sentenced King to life imprisonment for the first-degree felony murder conviction, 25 to 80 years for the second-degree murder, armed robbery, and kidnapping convictions, and two years for the felony-firearm conviction. It sentenced Taylor to life *373imprisonment for the first-degree murder conviction, 25 to 80 years for the kidnapping conviction, and two years for the felony-firearm conviction.2

A separate jury convicted defendant Scarber of first-degree premeditated murder, MCL 750.316(l)(a); felony murder; armed robbery; kidnapping; felony-firearm; and felon in possession of a firearm, MCL 750.224Í. The trial court sentenced him to life imprisonment for the premeditated murder conviction, 38 to 80 years for the armed robbery and kidnapping convictions, and two years for the felony-firearm conviction.3

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.

*374Defendant 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*375theless affirm the decision of the Court of Appeals on the basis of the Court’s determination that the statements were admissible under MRE 804(b)(3).

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” US Const, Am VI. This Court’s Confrontation Clause analysis in Poole was predicated on the Confrontation Clause analysis articulated by the United States Supreme Court in Roberts. In Roberts, the Court considered the relationship between the Confrontation Clause and the hearsay rule. It held that the Confrontation Clause limits the scope of admissible hearsay in two ways: first, it generally requires the prosecution to either produce the declarant or demonstrate that he is unavailable; second, it requires that the statement bear certain “indicia of reliability.” Id. at 65-66. The Court further held that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. at 66. Otherwise, the evidence is inadmissible “absent a showing of particularized guarantees of trustworthiness.” Id.

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, *376819, 822-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990) (applying Roberts), this Court set forth guidelines for analyzing the reliability of a declarant’s out-of-court statement:

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 *377under which it was made bore sufficient indicia of reliability to satisfy the requirements of the Confrontation Clause. Id. at 165-166.

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 “[statements 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 *378is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id.

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:

(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 *379not 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:

[Wlhere, 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, *380Scarber made the second statement impheating Kang alone in the shooting of Washington. Scarber did not make any self-inculpatory statements dining this call. The Court of Appeals concluded that both statements feh within the hearsay exception for statements against penal interest, stating that “because the statements at issue were provided in a narrative, both those portions that inculpated Scarber alone and those that inculpated his codefendants were admissible.” Taylor, supra at 5. Moreover, in discussing the admissibility of the second statement under the Confrontation Clause, the Court acknowledged that “it is arguable that defendant Scarber’s desire to disassociate himself from the murder provided him with a motive to he about the identity of the individual (perhaps Scarber himself) who actually shot Washington.” Id. at 6. The Court concluded, however, that the second statement was part of “a pattern of impugning communications” volunteered spontaneously and without reservation to a friend, not delivered to police, and “without any apparent secondary motivation other than the desire to maintain the benefits of the relationship’s confidence and trust — and according to the record, to brag.” Id. Accordingly, the Court concluded that “Scarber’s statements to Ervin constituted a ‘narrative of events,’ so the statements were admissible at trial in their entirety.” Id. Given these determinations, we are satisfied that the Court of Appeals sufficiently considered the issue of the statements’ admissibility under MRE 804(b)(3) and Poole, supra at 161, and affirm on that basis.

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.