The opinion
Michael J. Kelly, J.
(dissenting). I respectfully dissent.
I do not think there is any question that the statement given by Demetrius Underwood was against his penal interest at the time it was given and qualifies for admission under MRE 804(b)(3). It certainly tended to subject him to criminal liability and would have been admissible without a preliminary showing of corroborating circumstances which would indicate trustworthiness but for that requirement enacted in the Michigan Rules of Evidence. See People v Ernest Edwards, 396 Mich 551 ; 242 NW2d 739 (1976). The question then is whether or not "corroborating circumstances clearly indicate the trustworthiness of the statement.”
In People v Miller, 141 Mich App 637 ; 367 *790 NW2d 892 (1985), this Court ruled that the defendant must show the corroborating circumstances. Similarly, in People v Sanders, 163 Mich App 606 ; 415 NW2d 218 (1987), we found no abuse of discretion in excluding a statement offered to exculpate the defendant where the defendant failed to establish the "trustworthiness” of the statement. Trustworthiness was equated with corroboration and we held:
The only circumstance corroborating Nix’s statement was the fact that the victim received a bullet wound to her lower back, suggesting that the bullet was fired from the back seat of the car, where Nix was sitting. However, the injury inflicted by the second bullet suggests the bullet was fired by defendant, from the driver’s seat. Significantly, there was testimony from witnesses suggesting that the victim was shot by defendant as she hastily exited from the car. The victim testified that it was the defendant who had shot her. Under these circumstances, the trial judge did not abuse his discretion in excluding Nix’s statement. [Id., p 610.]
Obviously in Sanders there was some corroborating evidence. There is also some corroborating evidence here and I think the quantum is such as to require the admission of the statement for appropriate assessment of its weight by the trier of fact. I do not even examine the question of the propriety of shouldering on the defense the burden of proof of the trustworthiness of the statement. This question is not addressed by either party.
On the morning after the killing, Demetrius Underwood made a full statement to the police confessing to the crime. Demetrius, who is deaf, gave the statement through an interpreter. Demetrius said that Horton and another man attacked him that night, but that the second man left and *791 Horton continued to pursue him. Horton chased Demetrius to his friend Kevin’s house. At Kevin’s house, Demetrius, Kevin, and two other friends of Demetrius, who were also deaf, beat Horton with pieces of wood. Demetrius said he kicked Horton and beat him in the head with a shovel. Demetrius said that afterwards they threw him in the garbage. Demetrius said that Horton had always harassed him and two of his deaf friends and had twice beaten up one of his deaf friends. He explained, "[T]he man is nuts. That’s why I had to kill him.” In response to police questioning, Demetrius said that defendant was not around and did not do anything to Horton and that defendant tried to stop the fight.
The court held that Demetrius’ confession was contrary to the other evidence in the case and refused to admit it on the ground that there were no corroborating circumstances to indicate its trustworthiness. The "other evidence” was given by defendant’s mother, stepfather, and a cell mate. In ruling against the admission of the confession, the trial court necessarily assessed the credibility of those witnesses against the testimony of the defendant and completely discounted the three other persons named and referred to in the confession whose versions of the crime are neither accounted for nor explained in the record. Neither party addresses this glaring omission. Since these witnesses were inculpated, their unexplained absence cannot be weighed against the defendant.
Other indicia of trustworthiness must be weighed in favor of admission of the confession. First of all, Demetrius confessed the morning after the crime while unrepresented and in police custody. Though deaf, he was provided an interpreter and his statement was recorded and transcribed. His confession does give at least an arguably plau *792 sible explanation of the circumstances of the crime and contains his own motive for killing the victim. I believe the trial court erred in excluding this important exculpatory evidence and that the error requires reversal.
I would reverse.