State v. Gilliam

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellee, v. Gilliam, Appellant.

[Cite as State v. Gilliam (1994), Ohio St.3d .]

Criminal procedure -- Evidence -- Admission of co-defendant's

taped statement after co-defendant becomes unavailable

does not violate Sixth Amendment right to confront adverse

witnesses, when.

(No. 93-531 -- Submitted April 20, 1994 -- Decided August

3, 1994.)

Appeal from the Court of Appeals for Lorain County, No.

92CA005331.

On August 26, 1991, defendant-appellant, Edward Gilliam,

made a statement to the police. Detective Mike Medders of the

Elyria Police Department testified that Gilliam admitted that

on August 21, he rode to Rite Nau Beverage in Elyria with

William Moore and Bruce Treadwell. Appellant went inside and

ordered a bottle of wine from the employee on duty, who was

identified later as Joseph Pleban. Pleban told appellant that

the total came to $2.01. Appellant handed Pleban $2.00, and

while appellant was digging in his pockets for a penny,

Treadwell appeared with a shotgun and demanded money.

Pleban testified the man who had ordered the wine did not

appear surprised when Treadwell appeared with the shotgun.

Pleban explained that he followed Treadwell's orders, and went

to the cooler to get the money bag. As Pleban walked to the

cooler, Treadwell said, "Don't try anything funny, I'll put a

hole in your back." Treadwell took the money from the cash

register and the money bag, and closed Pleban in the cooler.

Pleban watched through the glass windows on the side of the

cooler. He could no longer see appellant, but he could see

Treadwell stuffing money into his pants. As Treadwell left,

Pleban noticed that he could no longer see the shotgun.

Appellant stated to police that he and Treadwell left

together and met Moore back at the car. A witness, Vicki

Glover, testified that she had seen two black males laughing

and running from the direction of Rite Nau. The men ran to a

parked car four houses down from Rite Nau, in which car a third

man (whom she identified as Moore) was waiting. The car was

parked in front of the witness' house and she was in her front

yard approximately ten feet away from the vehicle. The

four-door vehicle was gray in color. One man got into the

front seat. The other man got in behind the driver, but had

trouble getting in, "like he had a stiff leg or something."

The witness heard Moore ask the men either, "What did you get?"

or, "How much did you get?"

When questioned by the Elyria police, Moore admitted that

he had driven appellant and Treadwell to Rite Nau to "check it

out." Moore admitted that he assumed this meant they were

"gonna rob the place." In his taped confession, Moore also

admitted that he had seen a shotgun before the robbery, which

he believed Treadwell had brought, but Moore thought was owned

by appellant. Moore stated that appellant and Treadwell went

inside while Moore waited with the car. Gilliam and Treadwell

returned to the car together, with money in a bag, and told

Moore that they had gotten some money. Both men got into the

car; appellant got into the front seat. Moore then drove them

to Treadwell's house. Treadwell carried the shotgun inside and

appellant went home.

Appellant was tried before the court, separately from

Moore and Treadwell. The state called Moore to the witness

stand, but he exercised his Fifth Amendment privilege and

refused to testify. Consequently, the state offered Moore's

taped confession into evidence over appellant's objection. The

state also introduced appellant's taped statement into

evidence. Based on these tapes and other evidence, the trial

court convicted appellant of aggravated robbery with both a

firearm and a prior crime of violence specification. The court

of appeals affirmed.

The cause is now before this court pursuant to the

allowance of a motion for leave to appeal.

Gregory A. White, Lorain County Prosecuting Attorney, and

Robert F. Corts, Assistant Prosecuting Attorney, for appellee.

Joel D. Fritz, for appellant.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John

S. Pyle, urging reversal for amicus curiae, Ohio Association of

Criminal Defense Lawyers.

Francis E. Sweeney, Sr., J. The sole issue before this

court is whether the admission of a co-defendant's taped

statement after the co-defendant becomes unavailable violated

appellant's Sixth Amendment right to confront adverse

witnesses. For the following reasons, we find that admission

of the statement did not violate the Confrontation Clause.

Accordingly, we affirm the judgment of the court of appeals.

The Confrontation Clause and the hearsay rules stem from

the same roots and generally protect the same values; however,

the prohibitions of the Confrontation Clause cannot be equated

with the general rule prohibiting the admission of hearsay

statements. White v. Illinois (1992), 502 U.S. , , 116

L.Ed.2d 848, 857, 112 S.Ct. 736, 741.

The Confrontation Clause is a constitutional safeguard

that ensures a defendant will not be convicted based on the

charges of unseen, unknown, and unchallengeable witnesses. Lee

v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90

L.Ed.2d 514, 525. Thus, the Confrontation Clause bars the

admission of some evidence that would otherwise be admissible

under a hearsay exception. Idaho v. Wright (1990), 497 U.S.

805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651. When a

hearsay declarant is not present for cross- examination at

trial, the Confrontation Clause requires a showing that he is

unavailable and that the statement bears adequate "indicia of

reliability." Ohio v. Roberts (1980), 448 U.S. 56, 66, 100

S.Ct. 2531, 2539, 65 L.Ed.2d 597, 607-608. The reliability

standard can be satisfied without more in a case where the

evidence falls within a firmly rooted hearsay exception. Id.

at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. Otherwise, to

satisfy the Confrontation Clause the evidence must be supported

by a showing of "particularized guarantees of trustworthiness."

Id.

In the present case, we initially find that Moore's

statement falls within an established hearsay exception as a

statement against interest, Evid.R. 804(B)(3). The state

called Moore to testify in its case-in-chief, but Moore

asserted his Fifth Amendment right against self-incrimination

and refused to testify. By doing so, Moore became

"unavailable" for purposes of the unavailability requirement of

Evid.R. 804. State v. Landrum (1990), 53 Ohio St.3d 107, 113,

559 N.E.2d 710, 719.

Pursuant to Evid.R. 804(B)(3), a statement may be admitted

as an exception to the hearsay rule if the declarant is

unavailable and it is a "statement against interest." To

qualify as a statement against interest, it must be shown that

the statement "tended to subject" the declarant to criminal

liability so that a reasonable person in the declarant's

position would not have made the statement unless the declarant

believed it to be true. United States v. Garcia (C.A.7, 1990),

897 F.2d 1413, 1420.

Clearly, in the present case Moore's statement tended to

subject the declarant, Moore, to criminal liability. Moore

admitted he had driven appellant and Treadwell to Rite Nau "to

check it out." Moore admitted that he assumed this meant they

were "gonna rob the place." Moore further admitted that he had

seen a shotgun before the robbery, which he believed Treadwell

had brought but Moore thought was owned by appellant. Moore

stated further that appellant and Treadwell returned to the car

together, with money in a bag, and that Moore drove them away

from Rite Nau. This statement exposes Moore to criminal

liability and, thus, is a "statement against interest" as

provided by Evid.R. 804(B)(3).

Finally, Evid.R. 804(B)(3) requires that corroborating

circumstances clearly indicate the trustworthiness of the

statement before the statement against interest becomes

admissible. The determination of whether sufficient

corroborating circumstances exist generally rests within the

sound discretion of the trial court. State v. Landrum, supra,

53 Ohio St.3d at 114, 559 N.E.2d at 720. In the present case,

there are sufficient corroborating circumstances which indicate

that the statement is trustworthy. The declarant, Moore, gave

a statement to Detective Medders while Moore was in custody.

Moore was read his Miranda rights and stated that he understood

his rights and indicated his willingness to voluntarily make a

statement. Prior to making the statement, Moore was advised

that the statement was in regard to the robbery at Rite Nau.

The evidence shows no discussion of any promises or offers in

exchange for the statement. Furthermore, the content of

Moore's statement was corroborated by other witnesses'

testimonies.

Based on all the surrounding circumstances, we find that

the trial court did not abuse its discretion in determining

that Moore's statement was trustworthy. Accordingly, we

conclude that the statement met the requirements of a statement

against interest under Evid.R. 804(B)(3) and, therefore, did

not violate the Confrontation Clause as the evidence was

admissible pursuant to a firmly rooted exception to the hearsay

rule.

In addition, we also find that Moore's statement did not

violate the Confrontation Clause, since it is supported by

"particularized guarantees of trustworthiness." See Ohio v.

Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d

at 608. The guarantees of trustworthiness must be shown from

the totality of the circumstances. Idaho v. Wright, supra, 497

U.S. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at 655. As the

lower court concluded, the reliability of Moore's confession

was not as inherently suspect as the typical co-defendant's

confession referred to in the United States Supreme Court case,

Lee v. Illinois, supra, 476 U.S. at 541, 106 S.Ct. at 2062, 90

L.Ed.2d at 526. Moore's statement did not attempt to exonerate

Moore and shift the blame to another co-defendant. As

previously discussed, Moore admitted that he drove Treadwell

and appellant to Rite Nau; that he knew these two men planned

to "rob the place" and that they had a shotgun; and that he

waited outside to drive the men away after they left Rite Nau.

Other witnesses at trial corroborated Moore's statement. Thus,

the content of the statement is "particularly worthy of

belief," as the declarant incriminated himself by making the

statement. See Idaho v. Wright, supra, at 819, 110 S.Ct. at

3148, 111 L.Ed.2d at 665. In addition, Moore gave the

statement to police after having been fully advised of both his

rights and the reason for the questioning. The evidence shows

no discussion of any promise or consideration in exchange for

the statement. Thus, the circumstances surrounding the making

of the statement tend to demonstrate its trustworthiness.

Considering the totality of the circumstances discussed

above, we conclude that the trial court did not abuse its

discretion in concluding that the evidence was supported by

"particularized guarantees of trustworthiness" such that its

admission did not violate the Confrontation Clause of the Sixth

Amendment to the United States Constitution.

Accordingly, we affirm the judgment of the court of

appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick and Pfeifer, JJ., concur.

A.W. Sweeney and Wright, JJ., dissent.

Wright, J., dissenting. I respectfully dissent.

The majority correctly recognizes that the Confrontation

Clause bars the admission of some evidence that would otherwise

be admissible as a hearsay exception. The majority also

correctly states the Roberts test that the declarant must be

available for cross-examination and the declarant's statement

must bear adequate "indicia of reliability." Finally, the

majority correctly states that the reliability standard can be

satisfied where the evidence falls within a firmly rooted

hearsay exception or is supported by a showing of

"particularized guarantees of trustworthiness." Unfortunately,

after stating the law correctly to this point in its analysis,

the majority misunderstands what constitutes a firmly rooted

hearsay exception and a showing of particularized guarantees of

trustworthiness.

The majority finds that the Roberts reliability standard

is met in both ways: Moore's statement falls under an

established hearsay exception as a statement against interest

pursuant to Evid. R. 804(B)(3) and the statement is supported

by particularized guarantees of trustworthiness. The majority

finds the statement is an established hearsay exception as a

statement against interest because Moore's statement "tended to

subject the declarant, Moore, to criminal liability." What the

majority ignores, but the court of appeals recognized, is that

the United States Supreme Court has specifically rejected

justifying the admission of co-defendants' statements on this

basis. The court stated:

"We reject respondent's categorization of the hearsay

involved in this case as a simple 'declaration against penal

interest.' That concept defines too large a class for

meaningful Confrontation Clause analysis. We decide this case

as involving a confession by an accomplice which incriminates a

criminal defendant." Lee v. Illinois (1986), 476 U.S. 530,

544, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514, 528, fn.5.

Since Moore's statement cannot be admitted against Gilliam

as a firmly rooted hearsay exception, it must be supported by a

showing of particularized guarantees of trustworthiness to be

admissible. The majority makes two errors in concluding

Moore's statement meets this test. First, the majority looks

beyond the circumstances surrounding the making of the

statement to other evidence admitted at trial. Second, the

majority concludes that Moore's statement is reliable, since

Moore implicated himself in criminal activity. Again, the

United States Supreme Court has specifically rejected both

aspects of the majority's approach.

Ironically, the majority cites the very page of the

opinion in Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct.

3139, 111 L.Ed.2d 638, which repudiates its position. The

United States Supreme Court noted that the state of Idaho

argued that "a finding of 'particularized guarantees of

trustworthiness' should instead be based on the consideration

of the totality of the circumstances including not only the

circumstances surrounding the making of the statement, but also

other evidence at trial that corroborates the truth of the

statement. We agree that 'particularized guarantees of

trustworthiness' must be shown from the totality of the

circumstances, but we think the relevant circumstances include

only those that surround the making of the statement and that

render the declarant particularly worthy of belief." (Emphasis

added.) Id. at 819, 110 S.Ct. at 3148, 111 L.Ed.2d at

654-655.

The court further stated that "[i]n other words, if the

declarant's truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be of

marginal utility, then the hearsay rule does not bar admission

of the statement at trial." The court gave the "excited

utterance" and "dying declaration" hearsay exceptions as

examples where "the circumstances surrounding the making of the

statement provides sufficient assurance that the statement is

trustworthy and that cross-examination would be superfluous."

Id. at 820, 110 S.Ct. at 3149, 111 L.Ed.2d at 655. Thus, the

majority impermissibly looked to other evidence beyond the

circumstances surrounding the making of Moore's statement to

justify its conclusion that Moore's statement was reliable.

The majority also incorrectly concludes that the fact

Moore implicated himself in criminal activity makes his

statement reliable. To justify this conclusion, the majority

states that "the reliability of Moore's confession was not as

inherently suspect as the typical co-defendant's confession

referred to in the United States Supreme Court case, Lee v.

Illinois ***. Moore's statement did not attempt to exonerate

Moore and shift the blame to another co-defendant." (Citation

omitted.)

Again, the majority gives the impression that Supreme

Court precedent justifies its position. However, the majority

does not discuss the facts of Lee v. Illinois (1986), 476 U.S.

530, 106 S.Ct. 2056, 90 L.Ed.2d 514. Those facts make it

apparent that Lee is not distinguishable from the present

case. The co-defendant in Lee did not try to "exonerate"

himself or "shift" the blame to the other co-defendant. What

he did was make a statement which inculpated both defendants.

Co-defendants Lee and Thomas were charged with murder. Lee

gave a statement to the police indicating the murders occurred

without premeditation. Thomas gave a statement to the police

indicating that he and Lee had discussed the murders in

advance. Despite the fact Thomas inculpated himself in the

murder, the Supreme Court ruled that Thomas's statement could

not be admitted against Lee because to do so violated the

Confrontation Clause of the Sixth Amendment.

The majority's conclusion that Moore did not attempt to

exonerate himself or shift blame to the other co-defendants

also is not supported by the statement itself. What were the

circumstances surrounding the making of Moore's statement?

Moore's vehicle was identified by a witness as the vehicle

involved in the robbery. The police took Moore into custody to

interrogate him. Listening to Moore's statement it is apparent

he was trying to minimize his involvement and maximize the

involvement of Gilliam and Treadwell. Moore initially claimed

that he just gave Gilliam and Treadwell a ride but did not know

what they planned to do. Moore said they merely told him they

wanted to "check something out." Moore continued to deny any

prior knowledge about the robbery. Finally under persistent

questioning by police, Moore stated he "guessed" you could say

that he knew they were going to the Rite Nau to rob it.

Neither the circumstances surrounding the making of

Moore's statement nor the statement itself overcomes the

presumption of unreliability accorded to a co-defendant's

statements. As the Supreme Court has said, "[o]ur cases

recognize that this truthfinding function of the Confrontation

Clause is uniquely threatened when an accomplice's confession

is sought to be introduced against a criminal defendant without

the benefit of cross-examination. As has been noted, such a

confession 'is hearsay, subject to all the dangers of

inaccuracy which characterize hearsay generally. *** More

than this, however, the arrest statements of a co-defendant

have traditionally been viewed with special suspicion. Due to

his strong motivation to implicate the defendant and to

exonerate himself, a codefendant's statements about what the

defendant said or did are less credible than ordinary hearsay

evidence.' ***

"***

"*** The true danger inherent in this type of hearsay is,

in fact, its selective reliability. As we have consistently

recognized, a codefendant's confession is presumptively

unreliable as to the passages detailing the defendant's conduct

or culpability because those passages may well be the product

of the codefendant's desire to shift or spread blame, curry

favor, avenge himself, or divert attention to another." Lee v.

Illinois, at 541, 545, 106 S.Ct. at 2062, 2064, 90 L.Ed.2d at

526, 529.

The admission of Moore's statement into evidence against

Gilliam violated Gilliam's Sixth Amendment right to confront

witnesses. For that reason, I would reverse the court of

appeals.

A.W. Sweeney, J., concurs in the foregoing dissenting

opinion.