Petition for Writ of Certiorari — Michigan v. Barrera

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96 189 Jul 31 199%

IN THE SUPREME COURT OF THE UNITED STATES

NO » _OBRICE of Here x

OCTOBER TERM, 1995

THE PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER,

VS.

MARK BARRERA & PATRICK MUSALL,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF MICHIGAN

JOHN D. O'HAIR

Prosecuting Attorney

County of Wayne

TIMOTHY A. BAUGHMAN*

Chief of Research

Trianing and Appeals

JOSEPH A. PULEO P 34080

Assistant Prosecuting Attorney

1441 St. Antoine, 12th Floor

Detroit, MI 48226

Phone: (313) 224-5748

* Counsel of Record

a me Mee — — <

QUESTION PRESENTED

DOES DUE PROCESS REQUIRE, AS THE

MICHIGAN SUPREME COURT HAS HELD, THAT

WHENEVER THE DEFENDANT IN A CRIMINAL

TRIAL DESIRES TO OFFFR EXCULPATORY

EVIDENCE, THE FOUNDATIONAL REQUIREMENTS

FOR THE ADMISSIBILITY OF THAT EVIDENCE

UNDER THE RULES OF EVIDENCE DESIGNED TO

INSURE ITS RELIABILITY MUST BE CON-

SIDERED ON AN INVERSELY PROPORTIONAL

BASIS TO THE DEFENDANT'S NEED FOR THE

EVIDENCE, SO THAT LESS MAY BE DEMANDED

WITH REGARD TO FOUNDATIONAL REQUIREMENTS

WHEN THE EVIDENCE IS “IMPORTANT” TO THE

DEFENSE; OR MAY, CONSISTENT WITH THE

CONSTITUTION, FOUNDATIONAL REQUIREMENTS

FOR THE ADMISSION OF EVIDENCE BE APPLIED

ON A CONSISTENT BASIS NO MATTER WHO THE

PARTY AND NO MATTER HOW IMPORTANT THE

EVIDENCE?

TABLE OF CONTENTS

WUBSTION PRESENTED. cc cccccccccccccccceces 1

Bums GF AUTHORITIEG. cc cccccccccccccccces 2-4

OPINIONS BELOW. .cscccccccscccccccccs coeese 6

STATEMENT OF JURISDICTION.......ccccceces 6

CONSTITUTIONAL PROVISIONS INVOLVED..... . 6

Bamaammne OF THE CABR. cccccccccccccnccces 7

REASONS FOR GRANTING THE WRIT............ 14

PUUPAMP Aces eee c ce edecscsess ee ecesecccas 26

(te. eet Peete cacandeaheteeeeaseseceeca 22

APPENDIX "A"

Michigan Supreme Court Opinion....... la

APPENDIX "B"

Michigan Court of Appeals Opinion... 119a

INDEX OF AUTHORITIES

CASE PAGE

Bourjaily v. United States,

QOS Gale ATA CAOGT) cred dan 6hs odes ocd 26

Bright v. State,

826 P.2d 765 (Alas. ee Ss } a ee 25

Bruton v. United States,

wee Velo Ame: CAGE) ss sco eke dna ch eue wes 8

Carson v. Peters, 42 F.3d 384

(CR Fp: SOOED s bcas on 0%4a se be ee eke 26

Chambers v. Mississippi,

CE Ueber. O46 CAN sass 0404 bbe 0k ko kw eke aa

Montana v. Egelhoff,

igh a a i FF moe 2 59 Cr. L. 2153

(No. 95-566, decided June 13, 3996) ..22.135

State v. Henry,

176 Ariz. 569; 863 P.2da 861 (2993) .ess% 20

Taylor v. Illinois,

SOS Vile Se Ch sé i xchat cedadecceace. 17

United States v. Annese,

631 F.2d 1041 (CA i, BOOS ccc ce veavesvect®?

United States v. Bahadar,

954 F.2d 821 (CA 2, 1992),

cert. den. 113 S. Ct. 149 (1992)....... 22

United States v. Barrett,

539 F.2d 244 (CA i Pe og | Pye 3, 2s

United States v. Edwards,

BO4 7.26 417 (CA G, 3908) i si ke vocal 21

INDEX OF AUTHORITIES

CASE PAGE

United States v. Evans,

635 F.2d 1124 (CA 4, 1980),

cert. den. 452 US 943 (1981)........00. 21

United States v. McDonald,

688 F.2d 244 (CA 4, 1982),

cert. den. 459 U.S. 1103 (1983)........ 21

United States v. Oropeza,

564 F.2d 316 (CA 9, 1977),

cert. den. 434 U.S. 1080 (1978)........ 24

United States v. Rodriguez,

706 F.2G Si CCA 2, 2BES} cccacvsscecesece 19

United States v. Satterfield,

572 F.2d 687 (CA 9, 1978),

cert. den. 439 U.S. 840 (1978)......... 22

United States v. Slaughter,

891 F.2d 691 (CA 9, 1989)

cert. den. 112 S&S. Ct. 3053 (1992)...... 20

United States v. Tovar,

GS7 F.aG i240 (CA 8, BSCR) ccc caeseecees 21

OTHER AUTHORITIES

MCE, 750. S52Gs SBA BE. Ridin occ cee csuuane 12

FOR 004 th) (3) id 6s ckscweceses cen ijos.cue 27

ME COT CR) CB) oan cvncndasasctenctaaueeeee

MAR: 064 the) (9) ca ccavadeure ih ow kw 00a Oe 10

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

STATE OF MICHIGAN

Petitioner,

vs.

MARK BARRERA AND PATRICK MUSALL

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF MICHIGAN

NOW COME the People of the State of

Michigan, by JOHN D. O'HAIR, Prosecuting

Attorney, County of Wayne, TIMOTHY A.

BAUGHMAN, Chief of Research, Training and

Appeals, and JOSEPH A. PULEO, Assistant

Prosecuting Attorney, Appeals, and pray that

a writ of certiorari issue to review the

judgment of the Supreme Court for the State

of Michigan entered on May 7, 1996, one

justice dissenting and one justice abstaining

as she sat on the Court of Appeals panel that

decided defendants' appeal in that court.

OPINIONS BELOW

The opinion of the Michigan Supreme

Court is reported (People v. Barrera, 450

Mich. 261; 547 N.W.2d 280 (1996)) and is

appended hereto as Appendix A. The opinion

of the Michigan Court of Appeals is unreport-

ed and is appended hereto as Appendix B.

STATEMENT OF JURISDICTION

The judgment of the Michigan Supreme

Court was entered on May 7, 1996. The

jurisdiction of this Honorable Court is

invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United

States Constitution provides, in pertinent

part, that:

No State shall...deprive any person

of life, liberty, or property,

without due process of law...

The Sixth Amendment to the United States

Constitution provides, in relevant part,

that:

In all criminal prosecutions, the

accused shall...have compulsory process

for obtaining witnesses in his favor...

STATEMENT OF THE CASE

During the early morning hours of

Friday, October 28, 1988, Debra Louisa

Haynes, a black female and known prostitute,

was beaten, raped, robbed, and stabbed to

death at Balduck Park on Detroit's east side.

Four white youths and alleged gang members

were charged with committing the crimes

resulting in the death of Debra Haynes; those

four were Matthew Copeland, Mark Berrara,

Patrick "Mike" Musall, and Fred Johnson.

After a six day investigation into this

homicide, the police arrested the four

defendants during the evening hours of

November 3, 1988. The defendants were

interrogated during the late evening hours of

the 3rd and on into the early morning hours

of the 4th; each of the four gave the police

a statement that was memorialized in writing.

The charges against these defendants

were brought at the same time, but Copeland's

case was split from the others at the

preliminary examination as he was referred

for a mental competency evaluation and was

subsequently determined to be [temporarily]

incompetent to proceed to trial. As a

result, the prosecution of Barrera, Musall,

and Johnson preceded that of Copeland.

Barrera, Musall, and Johnson were tried

in a joint jury trial, but before separate

juries as the statement of each defendant was

used as evidence against him but not against

his codefendants as they were referenced in

the statements. Bruton v. United States, 391

U.S. 123 (1968). The State's theory of the

case was that Copeland was the leader of this

gang, who was aided and abetted by the

codefendants, and that this murder was

committed with premeditation ana

deliberation, or during the course of a

statutorily enumerated felony. MCL 750.316;

MSA 28.548. The defendants interposed the

defense of mere presence, arguing that

Copeland was solely respensible for the

murder. 450 Mich. 287, 292.

Essentially, the State's proofs at trial

consisted of the following: (1) discovery of

the naked body; (2) identification of the

deceased and expert testimony as to the cause

of death (multiple stab wounds); (3) habit

and routine evidence, given by the decedent's

live-in boyfriend (or arguably, pimp), that

Ms. Haynes never got into a car with more

than one "john" and never "performed" more

than a block or two from her neighborhood

(N.B., the scene of the crime, Balduck park,

was some 6 miles from her neighborhood]; this

witness also described the decedent's attire

as the two parted shortly before the criminal

ee eee a eee ST ane Oe

- 10 -

episode commenced; (5) crime scene evidence

revealing that the victim's clothes were

strewn about over a large area, and that

portions of them were cut or torn into

pieces; (6) the respective statement of each

defendant, and; (7) testimony from Carol

Keane, Copeland's girlfriend, whom the

defendants visited immediately after the

crime.

The defendants did not take the stand in

their own defense, nor did they call any

witnesses in support. Instead, they sought

to have Copeland's statement to the police

admitted as substantive evidence in their

respective cases-in-chief under Michigan Rule

of Evidence 804(b)(3), the declaration

against penal interest hearsay exception

which is patterned after its federal

counterpart.

The trial court denied the requests,

finding that the statement was really an

excuse for Copeland's conduct and therefore

- jl =

not truly inculpatory; that although the

statement was somewhat exculpatory as to the

codefendants, it was also inculpatory and

prejudicial to them, and that; insufficient

corroborating circumstances existed to

clearly indicate that the statement was

trustworthy.

Defendants Barrera and Musall were

convicted of first-degree felony murder by

their respective juries, while codefendant

Johnson was acquitted by his jury.

After he was found competent to stand

trial, Copeland was subsequently convicted by

a jury of first-degree murder; his statement

was used as evidence against him under

Michigan Rule of Evidence 8Oi(d)(2),

admission of a party-opponent; the prosecutor

argued to Copeland's jury that while

Copeland's admission that he stabbed the

deceased was believable, the "excuse" his

gave for doing so was not; his jury found

this to be the case as evidenced by their

verdict.

———

- 12 «

Barrera and Musall appealed their

convictions to the Michigan Court of Appeals;

the Michigan Court of Appeals affirmed,

finding insufficient corroborating

circumstances clearly indicating that

Copeland's statement was trustworthy. The

Michigan Court of Appeals limited their

analysis to the Michigan rule of evidence.

Defendants then sought leave to appeal

to the Michigan Supreme Court; the Michigan

Supreme Court granted leave, and on plenary

review, reversed and remanded for a new

trial; the Court found that the Due Process

Clause of the United States Constitution was

violated by the trial court's precluding the

admission of Copeland's statement as

substantive evidence in the defendants'

cases~-in-chief. The Court ruled that due

process required that the foundational

requirements for the admission of evidence

under MRE 804(b)(3) must be considered on an

inversely proportional basis to the

- ]3-

defendant's need for the evidence. The

Michigan Supreme Court based its ruling on

this Court's decision in Chambers v.

Mississippi, 410 U.S. 284 (1973). The

Michigan Supreme Court held that:

",..defendant's constitutional right to

present exculpatory evidence in his

defense and the rationale and purpose

underlying MRE 804(b)(3) of ensuring the

admission of reliable evidence must reach

a balance. We believe they may be viewed

as having an inverse relationship: the

more crucial the statement is to the

defendant's theory of defense, the less

corroboration a court may constitution-

ally require for its admission. Rivera v

Director, Dep't of Corrections, 915 F2d

280, 281 (CA 7, 1990) (excluding vital

evidence was an abuse of discretion). In

contrast, the more remote or tangential a

statement is to the defense theory, the

more likely other factors can be inter-

jected to weigh against admission of the

statement. Thomas, 62 F3d 1338 (where

evidence was cumulative, exclusion was

not an abuse of discretion); Fowlie, 24

F3d 1069 (exclusion of tangential

evidence was not an abuse of discretion).

Nevertheless, the constitutional

background of this balancing test must be

of foremost consideration." [451 Mich.

279-280, emphasis supplied).

The State of Michigan now petitions this

Honorable Court for a writ of certiorari to

the Supreme Court of the State of Michigan.

sii

- 14 =

REASONS FOR GRANTING THE WRIT

The primary reason for granting this

writ is that the Michigan Supreme Court's

ruling conflicts with opinions from this

Honorable Court; secondarily, the opinion

also conflicts with decisions from several

circuits of the Court of Appeals and as well

with opinions from state supreme courts who,

like Michigan, have relied on federal

authority to resolve like issues.

The Michigan Supreme Court rendered its

decision based upon its interpretation of

this Court's decision in Chambers v.

Mississippi. The specific ruling of the

Michigan Supreme Court, to wit, that due

process requires that the foundational

requirements for the admissibility of

evidence under MRE 804(b)(3) must be

considered on an inversely proportional basis

to the defendant's need for the evidence,

conflicts with a recent decision of this

Court in which Chambers was discussed. In

- 15 =

Montana v. Egelhoff, U.S. _? 59 Cr. L. 2153

(No. 95-566, decided June 13, 1996), this

Court said that:

Thus, the holding of Chambers -- if one

can be discerned from such a fact-inten-

not that a

Lode agi } Ss ‘'s accu-

& " Ww ver "™ al evidence"

favo ° m is excluded, but rather

that erroneous evidentiary rulings can,

in combination, rise to the level of a

due process violation." [59 Cr. L. 2158;

emphasis supplied].

Petitioner thus respectfully submits

that the crux of the Michigan Supreme Court's

holding directly conflicts with the language

highlighted above from this Honorable Court's

most recent statement on the subject.

Additionally, petitioner asserts that

the Michigan Supreme Court's holding

conflicts with the Chambers decision on

several key points. First, the Michigan

Supreme Court interpreted Chambers as

creating a new rule of constitutional law;

ee

-~ 16-

this Court statec otherwise in Chambers:

In reaching this judgment, we establish

no new principles of constitutional law.

Nor does our holding signal any

diminution in the respect traditionally

accorded to the States in the

establishment and implementation of their

own criminal trial rules and procedure.

[410 U.S. 302-303]

The Michigan Court's holding that due

process requires that the defense not be held

to the usual demands of the rules of evidence

where the proffered evidence is important to

the defense (thus increasing the likelihood

that unreliable evidence will be admitted

into the record) is also at odds with

Chambers per the following:

Few rights are more fundamental than

that of an accused to present witnesses

in his own defense. In the exercise of

this right, the accused, as is required

of the State, must comply with

established rules of procedure an

evidence designed to assure both fairness

and reliability in the ascertainment of

guilt and innocence. [410 US 302,

io

emphasis supplied].

- 17 «

See also Taylor v. Illinois, 484 U.S. 400

(1988), at pp 410 and 412-413 respectively,

the latter quoting United States v. Nobles,

422 U.S. 225 (1975) wherein the Court said:

The accused does not have an unfettered

right to offer testimony that is

incompetent, privileged, or otherwise

inadmissible under standard rules of

evidence. The Compulsory Process Clause

provides him with an effective weapon,

but is a weapon that cannot be used

irresponsibly.

x* *& & & &

The Sixth Amendment does not confer the

right to present testimony free from the

eqitimate demands of the adversarial

system; ° Vv Lxth

°

resenting what might have been a

half-truth. [Emphasis in original].

Furthermore, as a practical matter the

adifferences in the reliability of the

statements involved in Chambers and those

presented to the Michigan Supreme Court could

not be more dramatic. In Chambers, the Court

had considerable assurances that the

statements were trustworthy, ie: (1) they

were made spontaneously and to close

a en

ee

- 18 =

acquaintances shortly after the murder; (2)

each was corroborated by some other evidence

in the case, and; (3) the statements were in

a very real sense self-incriminatory and

unquestionably against interest. [410 U.S.

300-301)

By contrast, the statement with which

the Michigan Supreme Court had before them

was not made spontaneously or to a close

acquaintance shortly after the murder;

rather, it was made to Detroit police

officers who were conducting a custodial

interrogation of Copeland some 6 days after

the murder.

Second, (and contrary to the position

taken by the majority of the Michigan Supreme

Court (at 451 Mich. at 278)) there was no

evidence in the case corroborating Copeland's

general statement that he stabbed the

decedent other than the respective statement

of the codefendants [whose cases were

- 19 =

considered separately], and more importantly,

as for Copeland's statement as to "why" he

did what he said he did, there was absolutely

no corroborating evidence even if one

considers the statements of the defendants on

trial. Petitioner makes mention of this

aspect of the Michigan Supreme Court's

holding because it is in direct conflict with

federal precedent. See eg, United States v.

Rodriguez, 706 F.2d 31, 40 (CA 2, 1983)

[defendant's own statements cannot supply the

requisite corroboration], United States v.

Annese, 631 F.2d 1041, 1045 (CA 1, 1980),

("The bare testimony of a codefendant charged

with the same crimes as the one calling him

as a witness is utterly devoid of

corroboration." ] Also see United States v.

Barrett, 539 F.2d 244 (CA 1, 1976), [quoting

House Judiciary Committee Notes to the effect

that the lone testimony from the defendant

proffering the evidence in question will not

satisfy the corroboration requirement; see

- 20 =

also State v. Henry, 176 Ariz. 569; 863 P.2d

861, 868 (1993), [citing with approval

Rodriquez, supra, and United States v. Tovar,

infra}. But see by contrast United States v.

Slaughter, 891 F.2d 691, 698 (CA 9, 1989),

sexs. dan. i122 8. Ck. 3033 (1992 }

[defendant's testimony found to be sufficient

corroboration to satisfy the rule].

Third, unlike the statements in

Chambers, Copeland's statement was not in a

very real sense self-incriminatory and

unquestionably against interest; rather, the

trial court correctly held that the overall

tenor of the statement was really an excuse

for Copeland's actions. Copeland's statement

admitted what the police already knew, then

offered a reason in mitigation for his

conduct. Quaere whether such a statement is

included within the rationale for excepting

declarations against penal interests from the

hearsay rule. Petitioner suggests that they

are not. In support, petitioner cites to

- 21-

United States v. McDonald, 688 F.2d 244,

232-233 (CA 4, 1982), cert. den. 459 U.S.

1103 (1983), where the court cited United

States v. Evans, 635 F2d 1124, 1126 (CA 4,

1980), cert. den. 452 U.S. 943 (1981) for the

following:

It may well be doubted whether a

statement satisfies the declaration

against interest exception to the hearsay

rule where, viewed in narrow context, it

technically constitutes a confession of a

crime and so is “against interest", but

in actuality, the principal, and perhaps

only function of the statement is to

support a defense against a charge of a

more serious crime. In reality, looked at

in its totality, the statement is one for

the declarant's penal interest, not

against.

See also United States v. Edwards, 994 F.2d

417, 425 (CA 8, 1993); United States v.

Tovar, 687 F.2d 1210, 1213 (CA 8, 1982)

[holding that such statements do not come

under the exception to the hearsay rule].

While on the subject of the degree to

which the statement must be against interest,

this Court's attention is directed to the

ie COLELLO

——

- 22-=-

fact that there is some disagreement in the

federal circuits over the operative language

Of FRE 804(b)(3)? some use the "so far

contrary" language, while others the "tends

to" language of the rule. Compare as eg,

United States v. Bahadar, 954 F.2d 821,

828-829 (CA 2, (1992), cert. den. 113 S. Ct.

149 (1992), with United States v.

Satterfield, 572 F.2d 687 (CA 9, 1978), cert.

den. 439 U.S. 840 (1978). The distinction is

one with a difference and may be outcome

determinative in a given case. Petitioner

argued to the Michigan Supreme Court that the

"so far contrary" language is in keeping with

the rationale for the hearsay rule's

exception.

On yet another subject a conflict in the

federal circuits was noted by the Michigan

Supreme Court in their opinion. (See 451 Mich

272-273) The Michigan Supreme Court stated:

We make a further preliminary observation

that federal courts are split over

whether the court must assess the

- 23 -

credibility of the witness, or of the

declarant, or of only the statement.

[Footnotes omitted].

Petitioner further suggests that

certiorari is appropriate in this case to

resolve the notion held by some courts that

due process requires that the defendant be

allowed to use the codefendant's statement in

his favor if the prosecution uses the

codefendant's statement as evidence against

the codefendant at the codefendant's separate

trial. (See 451 Mich 284-285 and cases cited

therein). The problem with this blanket rule

is that the prosecution uses the statement in

this scenario under the hearsay exception

entitled admission of a party opponent, the

rationale for which differs greatly from the

against penal interest exception, and is that

"vou said it, you explain it". Under this

rule the prosecution may seek to introduce

any statement defendant makes, including, for

example, a false exculpatory statement, as

such statements may be indicative of guilt.

The use of such a statement is far removed

= 94 =

from the purpose underlying the declaration

against penal interenst hearsay exception.

One can readily discern the problems that

would ensue if the rule were simply that any

statement of the defendant which is used by

the prosecution against that defendant is

equally available when the codefendant seeks

to use that statement in his favor.

In conclusion, petitioner wonders

whether, consistent with the constitution,

the court rules may not be applied with equal

vigor to both sides without regard to the

proponent's need for the evidence. This was

the position taken by petitioner in the

Michigan Supreme Court. Petitioner notes

that courts have held that the defendant has

greater latitude under the court rule than

under any so-called constitutional standard.

See as egs, United States v. Barrett, 539

F.2d 244, 253 (CA 1, 1976); United States v.

Oropeza, 564 F.2d 316, 325 (CA 9, 1977),

cert. den. 434 U.S. 1080 (1978), n ll. For

- 25 =

all intents and purposes then, the two

standards merge into one and the court rule

controls. The State of Alaska, one of the

states that has adopted FRE 804(b) (3) without

change (see Weinstein, Evidence, §

804(b)(3)[04], pp 804-158 - 804-159), spoke

to the interplay between the rule of evidence

and the constitution in Bright v. State, 826

P.2d 765, 771-772 (Alas. App., 1992). The

Court there said:

In a related argument, Bright argues

that the exclusion of K.'s and Closson's

statements violated his constitutional

right to due process of law. He relies

on Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We

rejected a similar claim in Garroutte:

The standards of admissibility

prescribed by Evidence Rule 804 (b) (3)

parallel the constitutional mandate

of Chambers. Our holding that [the

exculpatory hearsay statement) was

not clearly corroborated therefore

controls Garroutte's constitutional

clain.

683 P.2a at 267 (citing United States v.

McDonald, 688 F.2d 224, 232 n. 13 (4th

Cir.1982), cert. denied, 459 U.S. 1103,

103 S.Ct 726, 74 L.Ed.2d 951 (1983)).

Similev+ly, our conclusion that Judge

Greene did not err in finding that K.'s

and Closson's statements were not

sufficiently trustworthy to admit into

- 26 =

evidence compels the conclusion that her

failure to admit these statements into

evidence did not violate Bright's right

to due process of law." [Emphasis

supplied].

See also United States v. McDonald, supra,

f.n. 13 at 688 F.2d at 232; Carson v. Peters,

42 F.3d 384, 387 (CA 7, 1994); cf. Bourjaily

v. United States, 483 U.S. 171, 182 (1987).

CONCLUSION

Petitioner respectfully requests that

certiorari be granted to review the decision

of the Michigan Supreme Court primarily

because the state court's decision is clearly

at odds with this Court's decision in

Chambers v. Mississippi and the more recent

statement of the Court in Montana v. Eqgelhoff

on the interpretation of Chambers.

The Michigan Supreme Court's decision is

also at odds with decisions from federal

circuits and state supreme courts alike on

the interpretation of Chambers, the Due

Process Clause of the United States

- 27 -

Constitution, and the interplay between due

process and the operation of FRE 804 (b) (3)

and its state counterparts which are

patterned after the federal rule. Lest it be

argued that the Michigan Supreme Court

reached its decision on an independent and

adequate state ground, petitioner reiterates

that the Michigan Supreme Court held that the

Due Process Clause of the United States

Constitution required that the foundational

requirements for the admissibility of

evidence under MRE 804(b)(3) (which are

designed to ensure reliability) must be

considered on an inversely proportional basis

to the defendant's need for the evidence (a

position diametrically opposed to this

Court's statement in Montana v. Egelhoff);

had the Michigan Supreme Court not predicated

their decision on federal constitutional

grounds, it is likely that the court would

have reached a different result. Plenary

review is therefore appropriate anc will

provide the Court with the opportunity to

—

- 28 =

clarify the misconceptions surrounding

Chambers, the Due Process Clause, and their

impact on the operation of the rules of

evidence.

- 29 -

RELIEF

WHEREFORE, Petitioner requests that this

Honorable Court grant certiorari and give

plenary consideration to this matter.

Respectfully submitted,

JOHN D. O'HAIR

Prosecutin Attorney

County o ayne

LIA —

“oie

TIMOTHY\A. BAUGHMAN

Chief of Research,

Training and

}

JOSEPH A. PULEO P 34080

sistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

Phone: (313) 224-5748

Dated: July 3, 1996

JAP/jh

APPENDICES

- la =

APPENDIX "A" MICHIGAN SUPREME COURT

LANSING, MICHIGAN 48909

Chief Justice Justices

James H. Brickley Charles L. Levin

Michael F. Cavanagh

Patricia J. Boyle

Dorothy Comstock Riley

Conrad L. Mallett, Jr.

Elizabeth A. Weaver

FILED MAY 7, 1996

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 98663

MARK BARRERA,

Defendant~Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 98683

PATRICK MICHAEL MUSALL,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH (except Weaver, J.).

CAVANAGH, J.

The issue presented in this consolidated

appeal is whether the trial court erroneously

excluded a statement by a codefendant that

was offered by the instant defendants as

- 2a-

exculpatory evidence. We hold that the trial

court erred and that the error was not

harmless. We reverse the Court of Appeals,

vacate the convictions, and remand for new

trials.

I.

Codefendants Mark Barrera, Fred Johnson,

and Patrick (Mike) Musall were prosecuted in

a consolidated trial before three separate

juries for the murder of Deborah Haynes.1

Another defendant, Matthew Copeland, was

1 They were originally charged with

first-degree felony murder during alleged

criminal sexual conduct, and first-degree

premeditated murder, MCL 750.316; MSA 28.548.

At a preliminary examination on November 17,

1988, the prosecution was allowed to amend

the felony-murder count to include larceny

and to add charges of first-degree criminal

sexual conduct (penetration during another

felony or penetration with the use of force),

MCL 750.520b; MSA 28.788(2) and armed

robbery, MCL 750.529; MSA 28.797. On January

27, 1989, the trial court quashed the

criminal sexual conduct count because of the

corpus delicti rule and quashed the armed-

robbery count because there was insufficient

evidence independent of the defendants'

statements that there was a taking of the

victim's property or that any taking was

armed.

- 3a -

tried in a separate trial. The undisputed

facts were that the victim was stabbed to

death during the night of October 27, 1988,

or in the early morning hours of October 28,

1988, in Balduck Park in Detroit. The victim

was a part-time prostitute. The next

morning, a passerby discovered the mostly

nude body of the victim and the police were

notified. The police discovered several

items of clothing strewn about the area. An

autopsy revealed that the victim had died of

multiple stab wounds.

At first, the police investigation

focused on the victim's live-in boyfriend who

was also her pimp. Within a week the

investigation turned to the four defendants.

During the course of the night of November 3,

1988, and into the early morning hours of

November 4, 1988, all four defendants gave

written statements to the police. They

revealed that they had been driving around in

Barrera's car on October 27, 1988, and had

picked up the victin. The four stated that

EE

- 4a =

they negotiated with her for sex. They

proceeded to the park. All four further

stated that Copeland did have oral sex with

her and each defendant identified Copeland as

the sole stabber. There were several

additional facts that were in dispute, which

will be discussed later in this opinion.

Each defendant's statement was used by

the prosecution against him in the respective

prosecutions.2 Barrera, Musall, and Johnson

called Copeland to testify at the

consolidated trial. After Copeland asserted

his Fifth Amendment right not to testify,

Barrera, Musall, and Johnson each sought to

use Copeland's statement for exculpatory

purposes under MRE 804(b)(3).

2 Barrera's statement was redacted to

remove irrelevant and potentially prejudicial

questions and answers.

- 5a =

Copeland alleged in his statement that

the victim also had oral sex with Musall.

Copeland admitted that he was acting under

the of mescaline and alcohol, and that he

began to believe that the victim was

"Spooner," his former girlfriend. He stated

that he had previously caught his girlfriend

having sex with someone else and that he had

threatened to kill her if he caught her

again. Copeland stated that while watching

the victim and Musall having oral sex, he

tola the victim that he was going to kill

her, and then he pulled a knife out of his

sleeve and stabbed her.

The trial court refused to allow

admission of Copeland's statement because it

found that the statement was not against

Copeland's penal interest and that there was

insufficient corroborating evidence of

Copeland's statement. Barrera and Musall

were convicted of first-degree felony murder

by their respective juries and were sentenced

- 6a =

accordingly to mandatory life in prison

without parole. Johnson was acquitted by his

jury. In a subsequent trial, Copeland was

convicted by a jury of first-degree

premeditated murder and was sentenced to

mandatory life without parole.

The Court of Appeals affirmed the

convictions of Barrera and Musall.3 We

granted leave to appeal limited to the issue

whether the trial court abused its discretion

in denying the request of the two defendants

to admit Copeland's confession. 448 Mich 867

(1995).

II.

At issue is the admissibility of

Copeland's out-of-court statement, which

Barrera and Musall proffered to prove the

3 Unpublished opinion per curiam, issued

January 5, 1994 (Docket Nos. 119344, 146673).

- 7a -

truth it asserted: that Copeland spon-

taneously acted alone in stabbing the victin.

The defendants maintain that this hearsay

statement falls within MRE 804(b)(3), the

statement against penal interest exception to

the hearsay rule.* They additionally argue

that exclusion of this evidence violated

their federal due process right to present

witnesses in their defense. Chambers v

Mississippi, 410 US 284, 302; 93 S Ct 1038;

35 L E@ 2a 297 (1973)? Washington v Texas,

388 US 14, 19; 87 S Ct 1920; 18 L ed 2d 1019

(1967).

MRE 804(b) provides that if a declarent

is unavailable, as defined in MRE 804(a), his

out-of-court statement against interest may

avoid the hearsay rule if certain thresholds

are met:

4 MRE 802 provides that "Hearsay is not

admissible except as provided by these

rules."

ann

a

- 8a =<

A statement which was at the time of

its making so far contrary to the

declarent'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 state-

ment 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.

We have previously considered MRE 804(b) (3)

from the reverse position: where the

prosecution seeks to use a statement against

the penal interest to inculpate a defendant.

People v Poole, 444 Mich 151; 506 NW2d 505

(1993); People v Watkins, 438 Mich 627; 475

NW2d 727 (1991). Although many of the

separate opinions in Poole and Watkins

speculated about the requirements for use of

a statement against penal interest to

exculpate the defendant, we are now required

to address the relevant issues.

- 9a -

MRE 804(b)(3) is modeled after its

Federal Evidentiary Rule 804(b)(3).°

Accordingly, we can look to federal precedent

for guidance. Poole, 444 Mich 160-162.

Iil.

A. Standard of Review

We must first determine the appropriate

standard of review for evaluating a trial

court's decision to exclude a statement

against penal interest offered under MRE

804(b) (3) to exculpate a defendant. Although

many federal courts have tersely stated that

the standard of review is abuse of

discretion,® we find that there are four

5 MRE 804(b)(3) is identical except that

the phrase “reasonable person" is used

instead of “reasonable man."

6 E.g., United States v Noel, 938 F2d

685, 688 (CA 6, 1991). We find that the

federal cases that were required to

separately address the standard of review

with respect to the separate elements to be

more persuasive than those cases simply

stating a rule.

ii i,

- 10a -

subissues that may be presented on review:

(1) whether the declarant was unavailable,

(2) whether the statement was against penal

interest, (3) whether a reasonable person in

the declarant's position would have believed

the statement to be true, and (4) whether

corroborating circumstances clearly indicated

the trustworthiness of the statement.

In the instant cases, we need not

address the standard of review of a trial

court's determination whether the declarant

was unavailable at trial, because the

prosecutor concedes that Copeland, who

invoked his right not to testify, was

unavailable. We find that the determination

whether a "statement was against the

declarant's penal interest presented a

question of law." United States v Bagley,

537 F2d 162, 165-166 (CA 5, 1976). There-

fore, appellate review is de novo. See

United States v Arthur, 949 F2d 211, 216 (CA

6, 1991) (no deference to the trial court's

determination).

- lla =

We further find that the determination

whether a reasonable person in the

declarant's shoes would have believed the

statement to be true and the determination

whether circumstances sufficiently indicated

the trustworthiness of the statement depend

in part on the trial court's findings of fact

and in part on its application of the legal

standard to those facts. Bagley, 537 F2d

166. Accordingly, like many federal courts,

we will use a clearly erroneous standard in

reviewing the trial court's findings of fact

and an abuse of discretion standard in

reviewing the trial court's decision to

exclude the evidence. ”

7 £E.g., United States v Fowlie, 24 F3d

1059, 1068 (CA 9, 1994) (the reasonable

person requirement was reviewed for abuse of

discretion); United States v Garcia, 986 F2d

1135, 1139 (CA 7, 1993) (the only issue

involved the corroborating circumstances

requirement under FRE 804(b)(3), review was

under the clearly erroneous standard); Noel,

n 6 supra 688 (a determination that the

statement was not sufficiently corroborated

“was not clearly erroneous"). Cf. United

States v Thomas, 62 F3d 1332, 1336 (CA ll,

1995): "Questions of law and questions of

SR aP ene RT Gee HLT Se AE OPENSIM TET RENTS aE ROO

- 12a -

In exercising its discretion, the trial

court must conscientiously consider the

relationship between MRE 804(b)(3) and a

defendant's constitutional due process right

to present exculpatory evidence. See United

States v Barrett, 539 F2d 244, 253 (CA il,

1976). Likewise, appellate review neces-

sarily requires a review of the importance of

the statement to the defendant's theory of

defense in determining whether the trial

court abused its discretion by excluding the

evidence.

B. Against Penal Interest

The next issue is the extent to which

the declarant's statement must be against his

penal interests, as defined by MRE 804(B) (3).

7 cont'd

the application of the law to the facts

receive de novo review, while a trial court's

findings of fact are reviewed under the

clearly erroneous standard." (Citation

omitted. )

- 13a -

That rule requires that the "statement ... at

the time of its making ... so far tended to

subject the declarant to ... criminal

liability, ... that a reasonable person in

the declarant's position would not have made

the statement unless believing it to be

true." (Emphasis added).® After reviewing

federal cases that have applied the actual

language enacted by Congress, we believe that

the phrase "tended to subject" includes a

broad scope of inculpatory statements. See,

8 The prosecutor urges us to alter the

express language of the rule and require the

statement to be "so far contrary" to penal

interest, to parallel the corresponding

provisions for statements against pecuniary

and proprietary interests. The prosecutor

relies on United States v Bahadar, 954 F2d

821, 828 (CA 2, 1992). We reject such a

reading of MRE 804 (b)(3) in light of the

actual language used in the rule, which

Suggests a broader interpretation of

statements against civil or penal interest

than statements against pecuniary or

proprietary interest. MRE 804(b)(3) only

requires that the statement "so far tended to

subject" the declarant to criminal liability.

(Emphasis added.) See Poole, 444 Mich 159

("tended to subject").

- l4a -

e.g., United States v Satterfield, 572 F2d

687, 691 (CA 9, 1978) (in enacting FRE 804

(b) (3), Congress rejected a restrictive

approach by choosing the phrase "tended to

subject").

Federal case law has developed some

general parameters that can guide our

determination when a statement sufficiently

"tended to subject" the declarant to criminal

liability. First, the mere fact that the

declarant invoked his Fifth Amendment right

not to testify does not make the statement

against penal interest. United States v

Thomas, 62 F3d 1332, 1338 (CA 11, 1995). On

the other hand, statements against penal

interest are not limited to direct

confessions. United States v Slaughter, 891

F2dqd 691, 698 (CA 9, 1989); Barrett, 539 F2d

251 (it is sufficient if the statement would

be "important evidence" against the

declarant). Moreover, it is well established

that a particular piece of evidence need not

- 15a -

by itself prove the declarant guilty. The

proffered statement need only be "a brick in

the wall" of proving the declarant's guilt.

MRE 804(b)(3), like its federal counterpart,

"encompasses disserving statements by a

declarant that would have probative value in

a trial against the declarant." United

States v Thomas, 571 F2d 285, 288 (CA 5,

1978) .9 By the same token, the statement

would be against the declarant's penal

interest if it intensified his culpability,

such as by shifting criminal liability away

from the accused and toward the declarant.

United States v Lopez, 777 F2d 543, 554 (CA

10, 1985). Furthermore, the statement need

not have been incriminating on its face, as

long as it was self-incriminating when viewed

in context. Williamson v United States, 512

US ---, ---; 114 S Ct 2431, 2436-2437; 129 L

Ed 2d 476 (1994).

9 "A statement may satisfy this

requirement if it would be probative at trial

against the declarant." United States v

Nagib, 56 F3d 798, 804 (CA 7, 1995) (citation

omitted).

- 16a -

However, in order to be probative of the

declarant's guilt, the statement must be

against the declarant's interest in "a real

and tangible way." Arthur, 949 F2d 216. It

must actually assert the declarant's own

culpability to some degree - it cannot be a

statement merely exculpating the accused.

United States v Oropeza, 564 F2d 316, 325 (CA

9, 1977).

Furthermore, as required by MRE

804(b)(3), a reasonable person in the

declarant's shoes must have realized that the

statement could implicate the declarant in a

crime. Williamson, 114 S Ct 2437. This

flows from the underlying rationale of the

exception: the statement's reliability flows

from the postulate that a reasonable person

will not incriminate himself by admitting a

damaging fact unless he believes that fact to

be true. See 4 Weinstein & Berger, Evidence,

§ 804 (b)(3)[01], p. 804-138. If the

declarant faces no reasonable threat of

4

- 478 =

punishment, the justification underlying the

exception would not be met. United States v

Fowlie, 24 F3d 1059, 1068 (CA 9, 1994)(a

statement made by a declarant while out of

the country and facing no threat of punish-

ment would not be against penal interest).

In short, whether a declarant's

statement was sufficiently against penal

interest is whether the statement would be

probative of an element of a crime in a trial

against the declarant, and whether a reason-

able person in the declarant's position would

have realized the statement's incriminating

element. If so, tnen the statement tended to

subject the declarant to criminal liability.

Cc. Trustworthiness of the Statement

Bey»nd the requirement that a statement

must be against penal interest, MRE 804

(6b) (3) further requires that exculpatory

statements must be trustworthy. We note that

the rule "does not require that the state-

ments themselves be clearly corroborated."

- 18a =

United States v Garcia, 986 F2d 1135, 1141

(CA 7, 1993). We make a further preliminary

observation that federal courts are split

over whether the court must assess the

credibility of the witness,1° or of the

declarant, or of only the statement.11 We

believe that the credibility of the declarant

inherently affects the trustworthiness of the

statement, and therefore it is not inappro-

priate for a court to exclude a statement

10 This is not an issue in this case

because Copeland's statement is in writing.

However, we agree with Satterfield, 572 F2d

691-692, that, in general, assessing the

credibility of the testifying witness is a

function of the jury.

11 Compare United States v Salvador, 820

F2dad 558, 561-562 (CA 2, 1987) (corro-

boration of both the declarant's trust-

worthiness and of the statement's trustworth-

iness was required), with United States, v

Brainard, 690 F2d 1117, 1124 (CA 4, 1982):

"The rule requires not a determination that

the declarant is credible, but a finding that

the circumstances clearly indicate that the

statement was not fabricated."

SV State ti li

- 19a =

where the declarant's veracity is seriously

doubtful or entirely lacking. United States

v Moore, 936 F2d 1508, 1517 (CA 7, 1991);

United States v MacDonald, 688 F2d 224, 233

(CA 4, 1982); Satterfield, 572 F2d 692.

Therefore, we are faced with two

remaining questions respecting the corro-

borating circumstances requirement: (1) what

facts may a judge properly consider, and (2)

what level of corroboration is necessary?

Appropriate Factors

There is no clear rule in the federal

cases regarding which factors should be

considered,1i2 Fundamentally, the

determination of trustworthiness invokes

12 Some federal courts have used a

general four-factor test based on Chambers.

E.g., Qropeza, 564 F2d 325. The “Chambers"

factors are:

- 20a -

"two distinct elements .... [T]he statement

must actually have been made by the

declarant, and it must afford a basis for

believing the truth of the matter asserted."

Bagley, 537 F2d 167.

We also note that MRE 104(a) provides

that, in determining the admissibility of

evidence, the trial court generally "is not

12 cont'd

(a) the time of the declaration and

the party to wnom it was made;

(b) the existence of corroborating

evidence;

(c) the extent to which the

declaration is really against the

declarant's penal interest; and

(d) the availability of the declarant

as a witness. [Citations omitted. ]

Chambers did not involve FRE 804(b) (3), which

already addresses three of the factors.

Consequently, one can surmise that this test

has questionable usefulness.

Other courts have used an ad hoc test,

considering the facts presented in the case.

Noel, 938 F2d 688-689; Salvador, 820 F2d 562;

Lopez, 777 F2d 554; Brainard, n 11 supra at

1125; Satterfield, 572 F2d 693.

= 248 =

bound by the Rules of Evidence," which

Supports a broad scope of permissible

considerations. Although the defendant's

statement may often be self-serving, we

believe that the trial court may consider it

as a factor of corroboration if appropriate.

Slaughter, 891 F2d 698.

In Poole, a majority of this Court

adopted a totality-of-the-circumstances test

and listed eight nonexclusive factors to

consider in determining whether a statement

against penal interest was sufficiently

reliable to be used to jnculpate the

defendant without violating his consti-

tutional right of cross-examination. Poole,

444 Mich 165. The majority explained:

In evaluating whether a statement

against penal interest that inculpates a

person in addition to declarant bears

sufficient indicia of reliability to

allow it to be admitted as substantive

evidence against the other person, courts

must evaluate the circumstances sur-

rounding the making of the statement as

well as its content.

- 22a -

The presence of the following factors

would favor admission of such a state-

ment: whether the statement was (1)

voluntarily given, (2) made contempor-

aneously 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 resence 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.

(id. ]

Poole also directed courts to consider

any other relevant factor in the case in

order to analyze whether, under the totality

of the circumstances, the statement was

sufficiently reliable. Id.

With respect to custodial statements, we

find useful the three-factor inquiry

developed by the United States Court of

Appeals for the Seventh Circuit. United

- 23a -

States v Garcia, 986 F2d 1140. Under that

test, the court should first consider "the

relationship between the confessing party and

the exculpated party and... [whether] it was

likely that the confessor was fabricating his

story for the benefit of a friend. Thus, if

the two involved parties do not have a close

relationship, one important corroborating

circumstance exists." Id. (citation

omitted).13 The second factor is "whether

the confessor made a voluntary statement

after being advised of his Miranda rights."

United States v Nagib, 56 F3d 798, 805 (CA 7,

1995), citing Garcia, 986 F2da 1140. The

third is “whether there is any evidence that

the statement was made in order to curry

favor with authorities." Id.

13° See United States v Tovar, 687 F2d

1210, 1213 (CA 8, 1982) (the declarant was

helping out "a friend for whom he felt

responsible"),

- 24a -

In sum, we believe that the totality-of-

the-circumstances test adopted in Poole, 444

Mich 165, may be applied in the instant

context. It requires the trial court to

consider the contents of the statement

itself, the circumstances surrounding the

declarant making the statement, and all other

relevant facts in the case. In addition,

where the statement was made to the

authorities while the declarant was in

custody, the trial court should consider the

three-factor inquiry.

Extent of Corroboration

Perhaps the consideration with the

greatest range of divergent views is the

level of corroboration that should be

required with respect to exculpatory state-

ments against penal interest. Defendant

Musall asks us to adopt the threshold

suggested in Weinstein:

The court should only ask for

sufficient corroboration to "clearly"

permit a reasonable man to believe that

- 25a

the statement might have been made in

good faith and that it could be true.

If, for example, the proof is undisputed

that the person confessing to a shooting

could not have been at the scene of the

crime because he was in prison, it will

be excluded. But if there is evidence

that he was near the scene and had some

motive or background connecting him with

the crime that should suffice.

(Weinstein, § 804(b) (3) [03}, pp 804-154

to 804-155. ]

In contrast, the prosecutor argues for a

higher standard, contending that it is

legally insufficient for a defendant to offer

his own statement as the only corroborating

circumstance for the declarant's statement.

For guidance, we turn to the legislative

history of FRE 804(b)(3) for assistance in

ascertaining Congress' intent.14 The

abbreviated version of the evolution of FRE

804(b)(3) is that the United States Supreme

Court proposed rules of evidence, which in

turn went through various changes in the

14 For general background information

see 10 Moore, Federal Practice (2d ed),

Introduction, § 1-2, pp 4-13 (general

a en en a

» 26a -

House of Representatives and the Senate

before final enactment. For our proposes,

important changes occurred with respect to

the corroboration requirement. The Supreme

Court's version of what became FRE 804(b) (3)

provided: "A statement tending to exculpate

the accused is not admissible unless

corroborated." ll Moore, Federal Practice

(2a ed), § 804.01[12.-2], pp VIII-230

(emphasis added). The House of Represent-

atives revised and subsequently enacted this

sentence, deleting “corroborated" and adding

"corroborating circumstances clearly indicate

the trustworthiness of the statement." Id.

The House Committee Report stated in relevant

part:

As for statements against penal interest,

the [House] Committee shared the view of

the Court that some such statements do

possess adequate assurances of relia-

+4 Cont'd

introduction), § 55, pp 83-84 (chronology of

the Federal Rules of Evidence), and § 56, pp

85-86 (use of background materials).

- 27a -

bility and should be admissible. It

believed, however, as did the Court, that

statements of this type tending to

exculpate the accused are more Suspect

and so should have their admissibility

conditioned upon some further provision

insuring trustworthiness. The proposal

in the Court Rule to add a requirement of

Simple corroboration was, however, deemed

ineffective to accomplish this purpose

since the accused's own testimony might

suffice while not necessarily increasing

the reliability of the hearsay statement.

The Committee settled upon the language

"unless corroborating circumstances

clearly indicate the trustworthiness of

the statement" as affording a proper

standard and degree of discretion. It

was contemplated that the result in such

cases as Donnelly v United States, 228 US

243 [33 S Ct 449; 57 L Ed 820] (19[13)),

where the circumstances plainly indicated

reliability, would be changed. Moore, §

804.01[12.-2], p. VIII-231, quoting House

Conference Committee Report to Rule

804(b) (3), pp. 16-17.]

Accordingly, although we need not decide

the issue in the instant cases, if the only

corroborating circumstance was the indivi-

dual defendant's statement, standing alone,

we might have a different situation. See,

for example, United States v Rodriquez, 706

- 26a =

F2d 31, 40 (CA 2, 1983).15 However, we find

other corroborating circumstances presented

in this case, which we will explain below.

Although Congress indicated what it

believed would not be sufficient

corroboration, it left the answer to what

would be sufficient to case-by-case

development. However, we need to be

cognizant of the competing interests that

were at issue in Donnelly. The state's

interest in ensuring that evidence be

credible has been recognized for centuries.

As noted by the Court in Donnelly:

15 “The bare testimony of a codefendant

charged with the same crimes as the one

calling him as a witness is utterly devoid of

corroboration." United States v Annese, 631

F2d 1041, 1045 (CA 1, 1980).

- 29a -

"It was very justly observed by a

great judge that ‘all questions upon the

rules of evidence are of vast importance

to all orders and degrees of men; our

lives, our liberty, and our property are

all concerned in the support of these

rules, which have been matured by the

wisdom of ages, and are now revered from

their antiquity and the good sense in

which they are founded.'" [Donnelly, 228

US 276, quoting Chief Justice Marshall in

Queen v Hepburn, 11 US (7 Cranch) 290,

295; 3 L Ed 348 (1813), quoting Lord

Kenyon in Rex v Eriswell, 3 TR 721

(1790).]

However, Congress, in enacting FRE 804(b) (3),

expressly rejected the result in Donnelly and

indicated that the historic rules of evidence

should not be rigidly applied to exclude

reliable exculpatory evidence. Justice

Holmes' dissent in Donnelly persuasively

explained why:

The confession of Joe Dick, since

deceased, that he committed the murder

for which the plaintiff in error was

tried, coupled with circumstances

pointing to its truth, would have a very

strong tendency to make any one outside

of a court of justice believe that

Donnelly did not commit the crime. I say

this, of course, on the supposition that

it should be proved that the confession

really was made, and that there was no

ground for connecting Donnelly with Dick.

- The rules of evidence in the main are

based on experience, logic and common

sense, less hampered by history than some

- 30a -

parts of the substantive law. There is

no decision by this court against the

admissibility of such a confession; the

English cases since the separation of the

two countries do not bind us; the

exception to the hearsay rule in the case

of declarations against interest is well

known; no other statement is so much

against interest as a confession of

murder; ... and when we surround the

accused with so many safeguards, some of

which seem to me excessive, I think we

ought to give him the benefit of a fact

that, if proved, commonly would have such

weight. [Id., 228 US 277-278. ]

In short, the defendant's constituti-

tional right to present exculpatory evidence

in his defense and the rationale and purpose

underlying MRE 804(b)(3) of ensuring the

admission of reliable evidence must reach a

balance. We believe they may be viewed as

having an inverse relationship: the more

crucial the statement is to the defendant's

theory of defense, the less corroboration a

court may constitutionally require for its

admission. Rivera v Director, Dep't of

Corrections, 915 F2d 280, 281 (CA 7, 1990)

(excluding vital evidence was an abuse of

discretion); Slaughter, 891 F2d 698

(excluding crucial evidence was an abuse of

3

>

=

x

*

- 3la -

discretion). In contrast, the more remote or

tangetial a statement is to the defense

theory, the more likely other factors can be

interjected to weigh against admission of the

statement. Thomas, 62 F3d 1338 (where

evidence was cumulative, exclusion was not an

abuse of discretion); Fowlie, 24 F3d 1069

(exclusion of tangential evidence was not an

abuse is discretion).

Nevertheless, the constitutional

background of this balancing test must be of

foremost consideration. Because there can be

no bright-line rule in this area, resolution

must be case by case. But, as Justice Holmes

observed, “experience, logic and common

sense" should guide us in reaching a point

where the appellate court will find that the

trial court abused its discretion by

excluding the exculpatory evidence.

ll ia i a is Oe

- 328 <=

IV.

We turn now to the instant cases. There

is no question that Copeland's statement was

in fact made, which is a considerable factor

when reviewing whether a witness should be

allowed to repeat the statement at trial.

Donnelly, 228 US 277 (Holmes, J.,

dissenting). The entire text of Copeland's

statement is reprinted in the appendix

following this opinion. Copeland's custodial

statement was given after he had been advised

of his Miranda+® rights. Additionally, in

the statement, he expressly stated that he

had not been promised anything to make the

statement. Indeed, Copeland was later

convicted of first-degree premeditated murder

in large part on the basis of this statement.

16 Miranda v Arizona, 384 US 436; 86 S

Ct 1602; 16 L Ed 2d 694 (1966).

- 33a =

He was subsequently sentenced to life in

prison without parole. We find no facts

surrounding the making of the statement that

suggest that Copeland was promised a deal or

that he would not face the full punishment of

the law for anything that he would say.

Given that he had been advised that anything

he said could have been used against him, we

find that a reasonable person in Copeland's

position would have realized that any

admissions by him could implicate him in a

crime.

The trial court found that Copeland's

statement was not inculpatory. We disagree.

We find that Copeland's statement would have

been probative of many possible crimes. He

admitted taking an illegal controlled

Substance: "We took hits of mescaline." He

admitted negotiating with a prostitute for a

sex act. More importantly, he admitted to

stabbing the victin:

- 34a =-

We took her back to Chandler Park -

Balduck. The girl told us that she would

give us all a good price for sex. I...

was doing all the talking to the girl

because my friends Fred, Mike and Mark

are id{iojts they don't know how to talk

to the girl. So we got there and we

started taking her clothes off because

she told me that she liked it rough. So

we all proceeded to take her clothes we

was ripping the clothes off her. That's

when I started to get hyperactive. From

then on she gave Mike head. I kept

thinking about that and the more I though

about that that's when I had it in me

that she was Spooner. Jenifer Spooner is

a girl that I use[d] to go out with. I

walked over while she was giving Mike

head and I looked at her and it appeared

to be Spooner to me. I became upset

because about 7 months ago I caught

Spooner having sex with another guy.

Then I told the girl I would kill her. I

told her I'm going to kill you. I called

her Spooner. Then that's when I did it.

I pulled the knife down out of my sleeve.

My left sleeve is where I keep my knife.

I grabbed [the] knife out of my sleeve,

pulled it out and I stabbed her in the

body I'm not sure where. All I could do

then was fell confused and happy.

After the defendants sought to use this

statement as exculpatory evidence, the

prosecutor argued before the trial court that

the statement was not against Copeland's

penal interests:

- 35a -

Mr. Less: Yes. In that statement

Mr. Copeland[] denies any plan with

anyone

The Court: The statement says no

premeditation on anyone's part?

Mr. Less: Correct. His statement -

to use Mr. Rex's words - in essence,

while this sex was going on with the

girl, who, quote, liked - not Mr. Rex,

Mr. Copeland = liked it rough. So

everybody [was] tearing her clothes off.

Mr. Copeland experienced a psychotic

experience from taking mescaline, and LSD

and started hallucinating; that it was

someone else. That's not against penal

interest. What you are saying - almost

exculpatory - saying, I'm under the

influence of something. I'm not in the

right mind.

The trial court excluded that statement

in part because it found that Copeland was

"really making an excuse for his conduct"

rather than making "a clear statement of his

own criminal responsibility." However, MRE

804(b) (3) merely requires that the statement

be probative against the declarant. We find

that we can present no argument more

persuasive than the prosecutor's later

position regarding why Copeland's statement

was probative of criminal responsibility. At

- 36a -

Copeland's trial, the prosecutor argued

during his closing argument:

(Mr. Less:] Now, Mr. Copeland makes

a statement to Sergeant Sanders, and that

statement, you heard it yesterday

afternoon, and you can take that into the

jury room with you. There are certain

things that I went through when I read

that statement that just struck me as

being - jumping out at me, jumping out.

And I'm going to tell you ....

Mr. Copeland, in his statement, kind

of sets the mood. Yeah, he's out with

his friends, he says, and they're going

to drive around, have some laughs. He

tells you: "We decided to get together

and have a few laughs." Him and Mr.

Barrera and Mr. Musall and Mr. Johnson.

They're going to have a few laughs.

Then he tells you, going to take some

mescaline an drink some beer. And then

he tells in the statement all about

mescaline because, in his words, "I took

a drug class. That's how I know." He's

an expert, man. He's a self-made expert

on drugs.

So what does he do? He's going to

tell you how these drugs inflamed his

mind and clouded his mind and he couldn't

form an intent to do any crime. Well,

let's see what he tells us. He takes the

mescaline. "We were out cruising around,

looking for people to laugh at." Mr.

Copeland is going to drive around, and

that's a fun way to have a date. We're

just going to go up and down Van Dyke,

out of our neighborhood, look for people

to laugh at.

- 37a -

Page 4 is where his contradictions

start. After he claims they pick up the

deceased, the victim in this: "We left

that neighborhood because there is racial

problems over there, you know." And his

next sentence after he says that is:

"By that time, I had the full effect of

the mescaline going."

Well, let's think about something.

If you leave a neighborhood because you

perceive there to be some kind of

problem, what does that show you? If you

can think of that - I mean, if you can

make that determination, doesn't it show

that you're conscious? Doesn't it show

that you're purposeful? Doesn't that

show that you know where you're at and

what's going on and you can make a

decision?

* ~ ~

Then we come on page 5, while the

victim is "giving Mike head, I kept

thinking about that, and the more I

thought about that, that's when I had it

in me that she was Spooner." Well, he's

thinking about it. I mean, he's out here

and he's weighing it in his mind.

* * *

Then, on page 6, he says, "I told

her, ‘I'm going to kill you.'" Well,

what could be clearer of a person's

intent? If someone says, "I'm going to"

- if someone comes up to me and says,

"I'm going to kill you," I'm going to

take that kind of seriously because, if

someone's saying that, ... it shows what

they're doing. And then, if they do

something, if they pull a gun out or get

something pointed a: me after they said

- 38a -

those words, I would have no doubt of

what their intent is

* * *

On page 9, Sergeant Sanders asked him

some questions and he says: "I forced

myself to stab her." No one is - the

drugs aren't forcing him. It's not that

he doesn't know what he's doing. It's

not that he's not aware of what's going

on ... [T])here's something else on page

9.... [H]e says, "I got some head from

her, hut I stopped because I was afraid

of getting a disease." Here's a guy

that's supposed to have the full effect

of the mescaline going. He doesn't know

what he's doing. The drugs have

obliterated his good judgment and he

can't form any intent, and yet he can

think about communicating diseases...

[T}hat shows a consciousness, that shows

a sense of surrounding, that shows a mind

free and clear of any wild and =- you

know, hallucinations.

The prosecutor obviously found

Copeland's statement to be reliable probative

evidence of Copeland's guilt. He cannot now

argue that it was not. Green v Georgia, 442

US 95, 973 99 8&8 Ct 21503; 60 Lb Bd 2a 738

(1979) (the statement was sufficiently

reliable for the state's case); Rivera, 915

F2d 282 ("The confession was reliable enough

to be used to put [the declarant] away for

- 39a -

the rest of his life, and no reason is

suggested why, if only it had been made to be

close friend - but not otherwise - it would

be reliable evidence of [the defendant's}

innocence as well"); (United States v

Brainard, 690 F2d 1117, 1125 (CA 4, 1982)

("The government's attempt to have it both

ways strikes us as imprudent and unfair");

Thomas, 571 F2d 289 ("The statement may be

offered by the government to inculpate the

declarant or by the accused to exculpate

himself").

The trial court also found that

Copeland's statement was not exculpatory with

respect to Barrera, Musall, and Johnson. We

disagree. In the statement, Copeland was

asked: "Did Mark, Mike or Fred stab the

woman(?}" He replied: "They had knives on

them but not to my knowledge." This

statement was exculpatory with respect to

Barrera's and Musall's defense: they

- 40a -

admitted being there, but denied stabbing

her. In addition, Musall himself admitted

that he possessed a knife that night. The

prosecutor argued to Musall's jury that

Musall also stabbed the victin. Therefore,

Copeland's statement that Musall did not stab

the victim did exculpate Musall on a critical

issue in the case. More importantly, the

statement provided a motive for the killing

(Copeland thought the victim was Spooner) and

established that the idea of stabbing the

victim was spontaneous. This was exculpatory

evidence with respect to the defendant's

theory that they did not anticipate

Copeland'a actions. Therefore, the trial

court erroneously held that the statement was

not against Copeland's penal interests and

that it was exculpatory with respect to

Barrera and Musall.

The trial court also found that there

was insufficient corroborating evidence of

statements made within the context of the

EID RC LES AP POF

- 4la -

confession. The Court of Appeals likewise

held that there were insufficient

corroborating circumstances to Support

admission of Copeland's statement.17 The

panel did not address the defendant's

constitutional arguments.

17 The panel reasoned:

In the case at bar, we are not

persuaded that there is sufficient

corroboration of the trustworthiness of

the statement to merit its admission.

Indeed, many aspects of Copeland's

statement were at odds with evidence

offered by defendant. In particular,

Copeland stated that both he and Barrera

had used mescaline, with Copeland

attributing his actions to the effects of

mescaline, while Barrera never mentioned

the use of mescaline in his own state-

ment. Moreover, Copeland contended that

the victim voluntarily rn yak ty in the

sexual acts which occurre efore the

killing, which is contrary to the

statements of both defendants in this

case. Similarly, Copeland claimed that

everyone involved in the offense

participated in taking off the victim's

Clothes, while both defendant's here

denied doing so in their respective

statements. Finally, Copeland stated

that he stabbed the victim while she was

performing fellatio on Musall, while

Musall claimed that he had finished and

was walking away with Copeland came over

and stabbed the victin. (N 3 supra, slip

Op at 1=-2.]

- 42a =

In order to address whether there were

sufficient corroborating circumstances of the

trustworthiness of the statement to satisfy

constitutional requirements, we first must

separately consider the evidence and the

theories of both the prosecution and the

defense with respect to each defendant to

ascertain the level of each defendant's need

for presenting the evidence.

People v Barrera

In Barrera's statement to the police, he

indicated that he was the driver that night.

He also stated that he had kicked the victim

in the head:

I kicked her in the head before Matt

stabbed her because she was on her knees

when I kicked her and she was yelling and

screaming[.] (Tjhat's why I kicked her

in the head.18

18 The medical examiner testified that

she found two separate bruises on the

victim's scalp. One was consistent with a

fall and the other was not caused by a heavy

instrument. She further testified that the

wounds would have been inflicted shortly

before death. She also concluded that these

wounds were not the contributing cause of

BR a Ses kl cn

- 43a <=

He denied that there was any plan to rob or

rape the woman. He admitted that a cassette

tape that was found at the scene was his. He

also admitted that he ripped up the victim's

jacket.

Barrera was tried for first-degree pre-

meditated murder and first-degree felony

murder. With respect to the first count, the

prosecution's theory was that Barrera aided

and abetted in the killing, in particular by

driving the car and by kicking the victim

down before her throat was cut. The

prosecutor repeatedly argued that this was a

"(fjour against one," planned gang attack.

Further, he argued that Barrera was in

control of the car and drove to a remote,

secluded spot to accomplish the rape,

robbery, and murder.

18 cont'd

death. We contrast this case with United

States v Silv , 732 F2d 1338, 1347 (CA

7, 1984), in which the medical evidence

directly contradicted the declarant's story.

648 = |

With respect to felony murder, the

prosecutor argued that Barrera helped create

the situation with knowledge that death or

great bodily harm would occur. He argued

that this was the requisite malice.19 The

prosecutor also argued that even if the crime

was spontaneous, Barrera was guilty of

second-degree murder because he helped

destroy her clothes and left her to die

behind a secluded building.

In contrast, Barrera's defense was that

there was no premeditation because there was

no plan to rob, rape, or kiil the victim. He

only thought that they had hired a

prostitute, and that they would have sex and

then leave. He thought that they there "to

party." He did not know that Copeland had a

knife with him. He further argued that

kicking the victim an assault and battery,

did not amount to an intent to create a high

19 People v Aaron, 409 Mich 672; 299

NW2d 304 (1980).

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=-45a °

risk of death by multiple stab wounds.

In his statement, Barrera described his

version of the stabbing:

We all got out of the car and we went

behind the bathrooms. I can't remember

exactly who made the first move but Matt

and Fred grabbed the hooker and ripped

her shirts and pants off. They grabbed

her and pulled her shirt off and she fell

on the ground and that's when they, Matt

and Fred tore her pants off. Matt made

her suck his dick and after she was done

he slapped her and then Mike stepped up

and made her suck his dick.

Q. What were you and Fred doing at this

time?

A. We were drinking Labatts Beer

watching and talking to each other. Fred

was saying how sick it was what Matt and

Mike was doing. Then while she was

sucking Mike's dick, Mike stepped back

and Matt started [to] beat the girl with

his fist. He kicked her and then he

pulled out this big Rambo knife. I think

he had it in the back of his pants. He

pulled the knife out and stabbed her.

Fred said "Oh my God." I couldn't

believe this was happening. I turned

around and went to the car.

Barrera was convicted of first-degree

felony murder. Under People v Aaron, 409

Mich 672; 299 NW2d 304 (1980), the jury was

required to find that Barrera himself had

- 46a -

malice.29 In this case, Barrera's intent was

the critical issue. Barrera's jury was told

through Barrera's statement that Copeland did

the stabbing. However, by excluding

Copeland's statement, the trial court did not

permit the jury to hear why Copeland killed

the victim.21 We find that this explanation

of the stabbing was evidence crucial to

Barrera's defense that he had no reason to

expect that someone would kill the victim and

that Copeland acted spontaneously and without

warning. There was no evidence suggesting

that Barrera could have antici- pated that

the prostitute resembled Copeland's former

girlfriend, or that

20 In other words, Barrera must have

“acted with intent to kill or to inflict

great bodily harm or with a wanton and

willful disregard of the likelihood that the

natural tendency of his behavior is to cause

death or great bodily harm." Id. at 733.

21 see United States v Friel, 588 F Supp

1173, 1185 (ED Pa, 1984) (the statement

provided a rationale for the crime).

- 47a -

Copeland would hallucinate and believe that

she was his old girlfriend, or that Copeland

would pull out a knife and stab her to death.

Because the explanation for the stabbing

was evidence crucial to Barrera's theory of

defense, his constitutional right to present

this evidence limited the threshold of

corroborating circumstances that the court

could require of Copeland's statement. We

find that the trial court improperly focused

on minor inconsistencies in the statement.

Those inconsistencies go to the weight of the

evidence - not to its admissibility. Garcia,

986 F2d 1140-1141. The primary statement in

the confession was corroborated by the

statements of all three co-defendants:

Copeland spontaneously acted alone in the

stabbing.

Additionally, we find the following

factors further corroborated the trust-

worthiness of Copeland's statement. Applying

- 48a -

the three-factor inquiry set out above, we

find that there was not a close relationship

between Copeland and Barrera that would

induce Copeland to "take the rap" for

Barrera.?2 Further, Copeland made a

voluntary statement after being advised of

his Miranda rights. Moreover, there was no

evidence that Copeland did so in order to

curry favor with the authorities: he said

that he was not promised anything for giving

the statement,23 and, more importantly, he

was later sentenced to life without parole on

the basis of his statement. 24

22 cf. Tovar, n 13 supra at 1213. The

declarant "knew that he was going to prison

and wished to help out a friend

felt responsible." (Emphasis added.)

23 cf. United States v , 983 F2d

1185, 1190 (CA 2, 1993) (the statement was

made while cooperating with the police and

the declarant would not be prosecuted).

24 We also note that Copeland denied

being high on an ing at the time of the

statement. cf. v Guillette,

547 F2d 743, 754 (CA 2, 1976) (a statement

made while drinking).

- 49a -

Under the Poole factors, we note that

although the statement was made to law

enforcement officers, instead of shifting

blame to the other three participants,

Copeland directed blame to himself by

explaining his personal motive for the

killing, and by expressly stating that to his

Knowledge no one else stabbed the victin.

However, "(hjis incentive, one might think,

was to inculpate an many other persons as

possible and minimize his own involvement."

Rivera, 915 F2d 283.

We conclude that the trial court abused

its discretion in excluding Copeland's

statement and violated the Due Process Clause

of the Fourteenth Amendment.25 This

preserved constitutional error is not harn-

25 We note this comment by our

colleague:

Moreover, if one carried the lead

Opinion's argument to its logical

conclusion, a trial judge could preclude

a statement offered by a defendant which

- 50a -

less because we cannot declare beyond a

reasonable doubt that the exclusion of this

evidence do not contribute to the jury

verdict by undermining Barrera's defense.

Chapman v California, 386 US 18, 24; 87 S Ct

824; 17 L Ed 2d 705 (1967). We therefore

reverse the decision of the Court of Appeals,

vacate Barrera's conviction, and remand the

case for a new trial consistent with this

opinion.

People v Musall

Musall recounted in his statement that

he had hit the victim in her face while they

were traveling in the car. He also stated

that he started to engage in fellatio witn

the victim but then stopped because he was

25 cont'd

inculpates a codefendant declarant and

exculpates the defendant who seeks its

admission. This, evidentiary barrier ...

Clearly violates the Due Process Clause

of the Fourteenth Amendment. [Watkins,

438 Mich 703 (Riley, J., dissenting)

(emphasis added). ]}

2

-

4

9

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- 5la-

scared. He further admitted that he had been

carrying a six-inch knife that night, and

that he threw it away at the top of a hill

after he and Fred started running when

Copeland began stabbing the victin.

There was also evidence that Musall cut

his right hand during the evening. In his

statement, Musall asserted that he cut it

later in the car while looking for a lighter

on the floor. In contrast, Copeland's girl-

friend, Carol Keane, testified that Musall

cut his hand by hitting a beer bottle on a

mirror on Barrera's car. On cross-examin-

ation, she testified that Musall's hand was

not cut when she first saw him on the morning

of October 28, 1988. However, the prosecutor

argued that Musall cut his hand while he was

stabbing the victin.

Musall was tried on alternate counts of

first-degree premeditated murder and first-

degree felony murder. As in Barrera‘s case,

-. 32a -

the prosecutor repeatedly argued that this

was a "four against one" gang attack. The

prosecutor presented essentially three

theories. First, as in the Barrera's case,

the prosecutor argued that Musall was guilty

of premeditated murder under an aiding and

abetting theory because this was a thought-

out plan to rape, rob, and then kill the

victin. Second, the prosecutor argued that

Musall actually stabbed the victim,2© drawing

on inferences that he cut his hand sometime

during the night.27 And finally,

26 Musall stated that his knife was six

inches long, likewise, Copeland described his

knife as six inches long. The medical

examiner testified that the stab wounds were

up to four inches deep. Therefore, the

evidence was consistent with a six-inch knife

being used. Additionally, the medical

examiner testified that she could not tell

whether more than one knife had been used.

27 In closing, the prosecutor argued:

Inference can be made that Copeland

is not only cutting, stabbing, but Mr.

Musall is participating. Mr. Musall cut

his hand in the frenzy of stabbing this

young lady. That's why he gets rid of

the knife.

- 53a -

the prosecutor argued that Musall was guilty

of felony murder because his conduct demon-

strated a wilful and wanton act, knowing that

death or great bodily harm might occur

because he participated in the four-against-

one scheme, hit her in the car, and got to

the park and stayed there, while forcing her

to engage in oral sex with him. The

prosecutor contended that this conduct

satisfied the malice requirement.

Musall's defense was that he had not

intended that the victim die, that he did not

participate in killing her, and that there

was no preconceived plan to kill her. He

admitted hitting her in the car, but

contended that that occurred well before they

reached the park. He argued that Copeland

was the instigator of the group's activities

and that Copeland, alone and spontaneously,

stabbed the victim.

We note that Musall's jury did hear

- 54a -

testimony from a police officer that all of

the defendants had stated that Copeland had

done the actual stabbing. However, as in

Barrera's case, the jury did not hear why

Copeland stabbed her. This explanation of

Copeland's motive for killing her was crucial

to Musall's defense that he did not

anticipate Copeland's actions. For the same

reasons explained above with respect to

Barrera, here too we consider the three-

factor inquiry along with the Poole factors

and reach the same conclusion: we believe

that the trial court abused its discretion in

excluding Copeland's statement. This

violated Musall's constitutional right to

present his defense, and the error was not

harmless beyond a reasonable doubt.

We find that the reasons for finding

prejudicial error are even more compelling in

Musall's case because the prosecutor's theory

before the Musall jury was directly contra-

dictory to his theory before Copeland's jury.

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In his closing statement before the Copeland

jury, the prosecutor stated:

I'm not quite sure how Mike avoided

getting parts of his body cut off

because, if this woman is performin oral

sex on him, and [Copeland is} looking at

them and, all of a sudden, [Copeland]

pulls out a knife and starts chopping,

Mike is, I guess, miraculously, not

chopped up out there, too.

If the prosecutor is not sure whether Musall

stabbed the victim or whether he "“miracu-

lously" avoided being stabbed, then this

Court cannot be convinced beyond a reasonable

doubt that Musall's jury was sure either.

Had the jury heard Copeland's explanation of

why he killed the victim, it may have

accepted Musall's defense, as the prosecutor

apparently did in the subsequent trial.

Therefore, we reverse the decision of

the Court of Appeals, vacate the conviction,

and remand for a new trial.

Vv.

Response to Dissenting Opinion

The dissent argues that Barrera and

- 56a <

Musall were not constitutionally entitled to

use Copeland's statement as exculpatory

evidence with respect to proving their state

of mind at the time of the stabbing because

the dissent believes that Copeland's state of

mind was not relevant to his co-participants'

defenses to aiding and abetting felony

murder. Slip op at 15-16. However, the

respective juries did not articulate whether

they convicted the defendant's of felony

murder as principals or as aiders and

abettors. Nevertheless, in Michigan, an

aider and abettor must possess the same

requisite intent as that required of a

principal. People v Kelly, 423 Mich 261,

278; 378 NW2d 365 (1985). Kelly explained

the aiding and abetting felony-murder theory:

The requisite intent is that

necessary to be convicted of the crime as

a principal. Meister v People, 31 Mich

99 (1875). In this instance, under

a it therefore must be shown that

the aider and abettor had the intent to

kill, the intent to cause great bodily

harm or wantonly and PAE ALLS |

disregarded the likelihood of the natura

tendency of his behavior to cause death

- 37a =

or great bodily harn. Aaron, 409 Mich

732% Further, if the aider and abettor

participates in a crime with knowledge of

principal's intent to kill or to cause

great bodily harm, he is acting with

"wanton and willful disregard" sufficient

to support a finding of malice under

Aaron. [423 Mich 278-279. ]}

Hence, it would not be sufficient for the

jury to conclude only that Barrera or Musall

had assisted another in committing or

attempting to commit a larceny or rape.28

Aaron requires the jury to take the

additional step of finding, beyond a

reasonable doubt, that the defendant himself

possessed the requisite intent with respect

to the murécer.29 That requisite intent is

malice, whether proven or inferred from the

28 Accordingly, the dissent's reliance

on Sharlow v Israel, 767 F2d 373 (CA 7,

1985), is misplaced. That diversity case

applied Wisconsin law, which does not require

any mental state for felony murder. State v

Oimen, 184 Wis 2d 423, 445; 516 NW2d 399

(1994).

29 With respect to felony murder, the

juries were properly instructed that they had

to find proof beyond a reasonable doubt that

the individual defendant possessed the state

of mind of malice at the time of the killing.

With respect to aiding and abetting, the

Ee

- 58a -

circumstances.

The dissent states:

Copeland's statement regarding his

hallucination speaks only to his own

state of mind. The relevant inquiry is

whether Barrera and Musall possessed the

requisite state of mind.

Stated otherwise, that Copeland

confessed to stabbing the woman does not

negate the possibility that Barrera and

Musall also possessed a state of mind

sufficient to be found guilty of felony-

murder. [Slip op at 18 (emphasis added). ]

29 cont'd

juries were properly instructed that they had

to find beyond a reasonable doubt that:

the defendant must have intended the

commission of the crime charged or have

known that the other person intended its

commission at the time of giving aid and

encouragement.

It does not matter how much aid,

advice or encouragement was given but,

however, you must find that the defendant

intended the commission of the crime, and

that the aid, advice or encouragement

that the defendant gave did, in fact,

aid, advise or encourage the commission

of the crime.

Mere presence, even with knowledge

that an offense is plan{ned] or being

committed is insufficient to establish

that a defendant aided or assisted in the

commission of the crime.

- 59a -

We do not disagree with the dissent that

there is "a possibility" that a jury, even

after hearing Copeland's statement, may find

that the defendant's also acted with malice.

However, "a possibility" of malice is in-

sufficient - malice must be proven beyond a

reasonable doubt.

It is in this respect that the dissent

is missing the forest for the trees. Four

defendants were involved in some way with the

events that occurred that night. All four

defendants stated that one, and one alone,

stabbed the victim. All four stated the

stabbing was spontaneous, and three stated

that it was unanticipated by then. The

decisive question before the respective

juries was whether Barrera or Musall intended

to create a very high risk of serious harm to

the victim and knew that such harm was a

probable result of his actions. The dissent

contends that Copeland's statement "does not

Support a defense that the defendants did not

- 60a -

aid or abet a felony murder." Slip op at 19.

We disagree. Copeland's motive and thought

process in killing the victim, "she resembled

Spooner," would have a direct effect on the

required felony-murder element of malice,

whether under a co-felon theory as addressed

in Kelly, because the spontaneity of the

killing was probative of the defense theory

that the stabbing was unanticipated and

beyond the scope of the alleged common

enterprise of rape or larceny. People v

Pitts, 84 Mich App 656, 662; 270 NW2d 482

(1978).

Michigan case law requires the jury to

find a casual link between the felony and the

death. People v Datema, 448 Mich 585,

601-602; 533 NW2d 272 (1995). The dissent

points to evidence that Barrera kicked the

victim and that Musall hit the victim in her

face. Slip op at 21. However, the dissent

must concede that a mere intent to "to

injure" falls short of malice, Datema, supra

:

4

.

i

- 6la -

at 606, and that mere participation in

committing the underlying felony, without a

finding of malice with respect to the death,

likewise falls short of felony murder, Id. at

601. Accordingly, evidence that would tend

to prove that Barrera's and Musall's

respective intents fell short of malice would

indeed support the defendants' theories that

they did not have any reason to anticipate

that death or great bodily injury would

occur.

Finally, we do not hold that a trial

court should allow a defendant to present

unreliable evidence as suggested by the

dissent. Slip op at 3. Instead, we hold

that a trial court cannot place too many

hurdles in front of admitting evidence that

is not only crucial to the defense theory and

uncontradicted by any other evidence in the

case, but also has some common-sense basis of

trustworthiness.

- 62a =

As to redacting the portions of the

statement that do not directly inculpate

Copeland, we note that the prosecutor has not

argued that such redaction is required. We

leave this issue for the trial court for

further analysis. We «o> note that in

Williamson, the Supreme Court did not address

application of the carry-over rule in the

context presented by the instant cases. We

also note that Carson v Peters, 42 F3d 384

(CA 7, 1994), a case on which the dissent

relies, expressly recognized that Williamson

dealt with situations in which the

prosecution seeks to use a codefendant's

statement and further stated that "defendants

have an easier time under the second sentence

of Rule 804(b)(3) ..." Id. at 386. We find

that the critical portions of Copeland's

statement, where he described why and how we

stabbed the victim, and that the other three

aid not stab the victim (which would be

ee

- 63a -

inculpatory because it intensified his

culpability and depravity through the number

of stab wounds), were against his penal

interests and should be admitted on retrial.

Signed Signatures

- 64a -

APPENDIX

MATTHEW COPELAND'S STATEMENT

Q. Mr. Copeland, were you advised of

your constitutional rights?

A. Yes.

Q. Do you have any questions regarding

your rights?

A. No I don't.

Q. Have you been threatened or promised

anything to make a statement?

A. No I haven't.

Q. Do you now wish to make a statement

of your own free will and accord?

A. Yeah.

Q. Tell me what your involvement was

regarding the murder of a black female in

Balduck Park last Thursday night Oct[ober]

27th and Friday morning Oct[ober] 28th -

early morning hours.

A. Me, my three friends Mark, Fred and

Mike we decided to get together and go out

last Thursday night and to have a few laughs

and get high off Mescaline drugs. That's

what we did. We took hits of Mescaline. Me

and Mark did. I did three hits, Mark did

three also.

Q. Explain what a hit of Mescaline is

and how you take it.

A. A hit of Mescaline is a hallucinogen

- like you swallow or eat then. It can

sometimes make you see stuff or eat stuff

that

SORELY AL EOL LO NE FEED IEE.

Pech GaN sper tices sed ROSS ata

Oe Oe en ee ee

= 63a =

ain't there. I took a drug class that's how

I can explain it to you. It{']s got traces

of strychnine poison. It's a homemade drug.

It's like you do it and hope that you don't

die or freak our or have a bad trip.

Q. Ok. So you and Mark took some

Mescaline. Then what happenfed]}] as it

relates to the murder of the black female?

A. We was - were just cruising along

with Mark driving his car. We got to 7 Mile

and Van Dyke and we were riding around

looking form some people to laugh at - fat

people, punk rockers or weird persons, when

we saw this black female prostitute. She

flagged us down and so we SS her up. We

left that neighborhood because there is

racial ah ye Nag over there you know. By that

ee I had the full [{e]ffect of the Mescaline

going.

Q. By the way, have you had any

Mescaline today?

A. No, I did it Saturday and Sunday.

Somebody put Mescaline in my beer.

Q. Are you high off anything now.

A. No, I'm not.

Q. So you['re]}] alert, responsive and

awake to all of my questions, is that

correct?

A. Yes.

Q. Continue at the point that you've

picked up the black female and leaving the

Van Dyke area.

A. We took her back to Chandler Park -

Balduck. The girl told us she would give us

all a good price for sex. I was doing all

the talking to the girl because my friends

- 66a -

Fred, Mike and Mark are id{iojts - they don't

know how to talk to the girl. So we got

there and started taking her clothes off

because she told me that she liked it rough.

So we all proceeded to take her clothes - we

was ripping the clothes off her. That's when

I started to get hyperactive. From then on

she gave Mike head. I kept thinking about

that an the more I thought about that -

that's when I had it in me that she was

Spooner. Jen[n]ifer Spooner is a girl that I

use[d] to go out with. I walked over while

she was giving Mike head and I looked at her

and it appeared to be Spooner to me. I became

upset because about 7 months ago I caught

Spooner having sex with another guy. Then I

told the girl I would kill her. I told her

I'm going to kill you. I called her Spooner.

Then that's when I did it. I pulled the

knife down out of my sleeve - my left sleeve

is where I keep my knife - I grabbed [the]

knife out of my sleeve - pulled it out and I

stabbed her in her body - I'm not sure where.

All I could do then was feel confused and

happy.

Q. Are you left or right handed?

A. Left handed.

Q. So how many times did you stab the

woman that night?

A. I don't know, I remember the first

blow it may have been more stabs.

Q. Did Mark, Mike or Fred stab the

woman?

A. They had knives on them, but not to

my knowledge.

Q. Did you see blood coming from the

woman?

A. Yes, on my hands.

- 67a -

Q. Did you got blood on your clothes?

A. No.

Q. Where are the clothes that you wore

that night of the murder?

Lying around in my room some where.

Have the clothes been washed?

No.

Tell me what you had on that night.

A. I had on blue jeans and my leather

jacket or my army coat, I don't remember my

shirt.

Q. So after the stabbed the woman, what

did you do?

A. I turned and faced the sky and from

then on I was feeling like I overdosed on the

Mescaline.

Q. You knew exactly what you were doing

when you pulled the knife out and stabbed the

woman, is that correct?

A. I was in a different state of mind.

I looked at a tree and could taste the color

of the tree.

; Q. No one forced you to stab the woman,

i did they?

A. I forced myself to stab her.

5 Q. How did the woman's clothes get

thrown about the ground?

A. My friends threw them around. I was

just trying to pull her pants off.

- 68a =

Q. Did you have sex with this woman?

A. No, I didn't. I got some head from

her, but I stopped because I was afraid of

getting a disease.

Q. At what point did you have oral sex

with the female?

A. Shortly after we got there.

Q. Did you force the woman to commit

oral sex on you?

A. No, I didn't, she offered it.

Q. After you tore her clothes off, she

willingly had sex orally with you. Is that

correct?

A. Yes, she said she liked it rough.

Q. Did you plan to rape and kill this

woman prior to you arriving at Balduck Park?

A. No, I did not.

Q. Did you discuss with Mark, Fred and

Mike that you were going to rape and kill the

woman before arriving at the park?

A. No, I didn't.

Q. Just exactly where did you stab the

woman, where were you in the park, I should

say?

A. It was by the oo with all the

spray paint on it. The building is all

boarded up.

* * *

Q. What exactly did Mark, Mike and Fred

do as it relates to their activity in the

park that you could see and remember

- 69a -

A. Mike, got some head from the woman, I

don't recall what Fred and Mark were doing

exactly.

Q. Who kicked the woman?

A. I don't remember.

Q. Did you kick the woman?

A. Yes I might have, I don't remember

exactly.

Q. What type of beer were you drinking?

A. I was drinking Budweiser.

Q. Did you take anything from the woman?

A. Not that I can remember, no I didn't.

. Where is the knife that [you] used to

kill the woman?

A. I lost it that night. It could be

anywhere from Balduck Park to 10 Mile and

Hoover, cause I went to pick up my girl-

friend Carol Kean. She lives on 10 Mile at

Hoover. I told her I needed someone to say

with me that night.

Q. Did you tell Carol what you had done

regarding stabbing the woman in the park?

A. I told her that I had stabbed someone

that night.

Q. Did you tell anyone else that you

stabbed a woman in Balduck Park?

A. Yes I did. I told Steve, he lives in

Sterling Heights, you can contact Steve

through Eddie - whether he lives on Glenwood.

The old phone is 526-7567. It's been changed

- 70a =

though. I told Eddie to. They told everyone

else cause they're the only two I told about

the murder, but I didn't know I killed her

though.

Q. Was the woman moving when you left

her lying in the park?

A. I don't remember.

Q. What did this woman have on as far as

clothes, describe her clothes if you

remember?

A. She had on a blue or dark jacket and

some jeans.

Q. So | did you stab this woman again.

Explain briefly.

A. I thought she was Spooner. She

appeared to be Spooner. That's what made me

go off like I did.

Q. Where exactly may you have put the

knife after this incident?

A. I don't recall.

Q. Why didn't you put the knife back up

your sleeve?

A. I don't know.

Q. Is there anything else you can

Sr pon regarding this incident at this

ime:

A. That's it, you've got everything.

Q. I now want you to read you entire

statement, check it for any errors, make any

additions or corrections that you wish, then

sign the bottom of each page indicating

you've read your entire statement. Do you

understand Mr. Copeland?

- 7la -

A. Yes I do.

Q. Isn't it true that when you arrived

out there in Balduck Park, you along with

your friends, forced the woman to disrobe

against her will, and attempted to rob her?

A. No.

Q. Did you have the opportunity to read

your entire statement and make any necessary

corrections?

A. Yes I did.

Q. Is this statement true to the best of

your knowledge?

A. Yes, the statement is true to the

best of my knowledge.

/8/ Matthew Copeland

/8/ Sgt. Ronald Sanders

- Fae =

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 98663

Vv

MARK BARRERA,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 98683

Vv

PATRICK MICHAEL MUSALL,

Defendant-Appellant.

BOYLE, J. (dissenting).

I respectfully dissent. The Court

concludes that the Constitution of the United

Statesl and MRE 804(b)(3) compel the

admission of Matthew Copeland's self-serving

statement. I disagree.

The jury in each case learned of

Copeland's causative act through other

1 US Const, Am XIV.

- 73a -

evidence. What was contained in the

statement that the juries did not know was

denial and disavowal: Copeland did not rob,

Copeland did not rape, Copeland did not pre-

meditate, and Copeland did not know what he

was doing because he was under the influence

of drugs. Thus, the Court's conclusion that

the statement is self-incriminating to the

degree that a reasonable person would not

have said it unless it were true is clearly

not warranted. The statement was not truly

inculpatory.

Second, the statements regarding the

defendants were neutral or self-serving and

were not exculpatory of them. Finally, there

are insufficient, corroborating circumstances

that clearly indicate the truthworthiness of

Copeland's statement. Nothing in the

constitution or MRE 804(b)(3) compels the

admission of Copeland's statement. The trial

court properly suppressed it.

- 74a -

The test for admissibility under MRE

804(b)(3) is not whether the statement would

be probative in the declarant's trial. Nor

is admissibility determined by how "crucial

the statement is to the defendant's theory of

defense ..." Slip op at 18. While the

importance of the evidence in relation to the

theory of defense is critical to a claimed

due process violation, the foundation of the

exception is circumstances indicating

trustworthiness. The preliminary question of

admissibility clearly cannot turn on rote

application of the hearsay rule.? Just as

clearly, necessity does not determine

admissibility. The Court's formulation

construes the Due Process Clause as if it

guaranteed the use of unreliable evidence,

é Rivera v Illinois Dep't of Correction,

915 F2d 280, 281-282 (CA 7, 1990) (the

declarant confessed that he alone had beaten

decedent; there was so suggestion of an

motive to exculpate or that the declaran

might simply have failed to notice; due

process was violated by the trial court's

exclusion of the confession for no better

reason than that it was hearsay).

- 75a -

provided it is crucial. Correctly

understood, due process requires the state to

put reliable third-party statements before

the jury, despite the hearsay rule.

I.

The Definition of Statement

The Court does not address a preliminary

question regarding the definition of the term

"statement" for statements against penal

interest. MRe 804(b) (3).

MRE 804(b)(3) tracks the language of FRE

804(b)(3) and in pertinent part provides as

follows:

A statement which was at the time of

its making so far ... tended to subject

the declarant to civil or criminal

liability ... that a reasonable person in

the declarant's position would not 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 it not

admissible unless corroborating

circumstances clearly indicate the

trustworthiness of the statement.

- 76a -

In People v Watkins, 438 Mich 627, 636,

646; 475 NW2d 727 (1991), Justice Cavanagh

concluded that the term "statement" should

not be read broadly to encompass the

declarant's entire confession. In the

context of hearsay "statement" inculpating an

accused, Justice Cavanagh reasoned:

fOjur confidence in the trustworth-

iness of a purported statement against

interest extends only insofar as the

specific factual assertions contained

within the statement are, in fact,

against the declarant's interest ....

Each factual assertion ... must be viewed

as narrowly and specifically as

reasonably possible, and the court must

separate y ask whether each specific

assertion is so intrinsically against the

declarant's interest that a reasonable

person would not have said it unless it

were true. [Emphasis in the original. ]

Statements not against interest "taken by

themselves" are not to be trusted.

After our decision in Watkins, the

United States Supreme Court explored the

definition of the term "statement" in

804(b) (3). As in Watkins, the issue was the

- 77a -

scope of the hearsay exception for statements

against penal interest, and the context was

use on statements inculpatory of a defendant.

In Williamson v United States, 512 US ---;

114 S Ct 2431; 129 L Ed 2d 476 (1994), the

Court held that the term refers not to the

declarant's entire narrative, but covers only

the parts of it that are individually

self-inculpatory. Depending on the

circumstances, statements that are ostensibly

disserving may be either neutral or self-

serving. While Williamson was remanded to

determine whether the declarant's statement

that he transported drugs was truly against

his own interest, five justices felt it was

not, because they concluded the declarant's

primary purpose was to keep himself out of

prison by confessing and handing over the

defendant.

After Williamson, the methodology of

analyzing each portion of a statement to

determine whether it is against penal

- 78a -

interest has been applied to statements

offered to exculpate the defendant by the

United States Court of Appeals for the

Seventh Circuit, e.g., United States v

Butler, 71 F3d 243 (CA 7, 1995), and by the

United States Court of Appeals for the

Eleventh Circuit, United States v Thomas, 62

F3d 1332 (CA 11, 1995). Justice ¥Yennedy's

concurrence in Williamson observes that "the

Court's decision applies to statements

against penal interest that exculpate the

accused as well as to those that inculpate

the accused." Thus, Justice Kennedy opined

that, “if the declarant said, ‘I robbed the

store alone,' only the portion of the

statement in which the declarant said 'I

robbed the store' could be introduced by a

criminal defendant on trial for the robbery."

114 S Ct 2443.

The Court explains its failure to

address the question by correctly observing

that the prosecutor did not raise the

argument. However, because the initial

- 79a -

question before us is what this Court meant

in the rule we promulgated, the failure to

explain that the word "statement" is to be

analyzed differently for exculpatory purposes

than it is for inculpatory purposes, and

adifferently than the identical language

construed by the United States Supreme Court,

is problematic. In my view, use of the

Watkins-Williamson methodology clearly

demonstrates that specific portions of the

statement are not admissible because they are

either neutral of self-serving. However,

whether viewed individually or as a whole, I

submit that Copeland's statement was not

admissible under the hearsay exception of MRE

804(b) (3).

A.

Copeland's Statement Was Not

Truly Self-Inculpatory

Copeland's "statement" regarding his

state of mind.was not inculpatory. Speaking

for the Court in Williamson, 114 S Ct 2435,

Justice O'Connor observed, "One of the most

- 80a -

effective ways to lie is to mix falsehood

with truth, especially truth that seems

particularly persuasive because of its self-

inculpatory nature." First, Copeland's

denial of rape, robbery, and any preplanned

felony is wholly self-seving. Second,

although Copeland's excuse for stabbing the

victim, voluntary drug-induced intoxication,

would not negate the element of malice for

second-degree murder as a matter of law,

People v Langworthy, 416 Mich 630; 331 NW2d

171 (1982), it is also a classically self-

serving attempt to avoid responsibility -

i.e., I did it, but I wasn't in my right

mind. Despite being linked to a self-

inculpatory admission of stabbing, these

statements, considered either individually or

as whole, are not inculpatory. Thus, the

trial court and the Court of Appeals

correctly concluded that Copeland's statement

was inadmissible in the defendants' trial

because it did not furnish a basis for

concluding that it would not have been made

unless it were true.

- 8la -

Copeland was asked four times whether he

forced the victim to have sex. He denied

forcible sex and said the victim willingly

had oral sex with him after her clothes were

torn off because "she liked it rough."

Copeland was aksed once whether he, along

"with {his} friends ... attempted to rob [the

victim)." He answered, "[njo." Copeland

thus denied involvement in forcible sex or in

a robbery.

Before he began to speak about the

events in the park, Copeland established that

he had taken three hits of mescaline and was

feeling “the full [e]ffect" when they picked

up the victim. Before he described the

stabbing, Copeland said "I had it in me that

{the victim] was Spooner." When squarely

confronted twice with questions regarding his

state of mind when he stabbed the victin,

Copeland claimed he could "taste the color of

- 82a -

a tree" and that it was that he thought she

was his cheating ex-girlfriend, Spooner, that

"made me go off like I did." In total, on

four separate occasions in the course of a

three-page interview, Copeland denied any

intent to kill the victim.

As the United States suprene Court has

cautioned, "[t]jhe question under rule

804(b) (3) is always whether the statement was

sufficiently against the declarant's penal

interest 'that a reasonable person in the

declarant's position would not have made the

statement unless believing it to be true,'

and this question can only be answered in

light of all the surrounding circumstances."

Williamson, 114 S Ct 2437. Thus, the most

significant flaw in the Court's analysis is

the failure to evaluate Copeland's disavowals

of responsibility and his acceptance of

responsibility for the stabbing in light of

the facts. Copeland denied the acts he could

anticipate the codefendants also would deny:

- 63a -

rape and robbery. However, Copeland

previously had told three other noninvolved

persons that he had stabbed the victim and

believed that “everyone else" knew about it.

He admitted the only act he anticipated could

be contradicted, the stabbing, but did not

accept responsibility for it.

Copeland's statement was therefore

against his interest in only one particular,

(a fact known to the defendants' juries) -

namely, that he stabbed the victin. Con-

fronted with the fact that he was being

questioned in connection with the murder by

stabbing of a person whom he had indiscrim-

inately admitted stabbing, Copeland gave the

most likely false statement he could give,

that the was not in his right mind when he

committed the act. Regardless of whether the

penal interest exception for statements that

exculpate a defendant requires analysis of

the entire statement or its discrete

assertions, the statement is not admissible.

- 843 =

As Judge Guy noted for the United States

Court of Appeals for the Sixth Circuit in

Turpin v Kassulke, 26 F3d 1392 (CA 6, 1994),

in distinguishing the case from Chambers v

Mississippi, 410 US 284; 93 S Ct 1038; 35 L

Ed 2d 297 (1973), and Donnelly v United

States, 228 US 243; 33 S Ct 49; 57 L Ed 820

(1913), the declarant's statement was not

truly inculpatory:

Most important, although Brown's

statement arguably was against her penal

interest, a reading of the statement as a

whole reveals that Brown's purpose in

making the statement was to avoid

criminal liability to the extent

possible, not to accept it... The

rationale supporting the hearsay rule's

penal-interest exception - that persons

generally “will not make damaging

statements against themselves unless they

are true" - therefore does not apply to

Brown's statement. [Id. at 1398

(citations omitted; emphasis in the

original).]

Copeland's statement fails the threshold test

of reliability that a reasonable person would

not have made the statement unless it were

true. Cf. United States v _Magana-Olvera,

917 F2ad 401 (CA 9, 1990); United States v

Tovar, 687 F2d 1210 (CA 8, 1982).

- 85a -

The Court's response to the fact that

Copeland's drug abuse excuse was not

"precisely, and only, to the extent that it

is, in fact, against [his] interest, "

Watkins, supra at 638, is a legal non

sequitur and a factual misstatement. First,

the Court employs a presumption that suspects

in custody will shift blame to someone else,

from which it concludes that Copeland's

statement was against his interest because he

did not explicitly shit blame to Barrera and

Musall. Although blame-shifting statements

are traditionally suspect, the Court errs in

suggesting that the fact that Copeland did

not shift the blame is evidence of relia-

bility. 3 On the contrary, post-arrest

statements are suspect because of the strong

3 While a different question might be

presented had Copeland said he alone stabbed

the Mean Copeland's incentive not to make

a blame-shi tte | assertion does not logically

lend any credibility to separate, “= though

closely associated assertions. Watkins at

639.

~ §68 -

motivation to exonerate oneself, of which

blame-shifting is a typical example.

Williamson, 114 S Ct 2435.

In the criminal context, any statement

that tends to reduce the charges or mitigate

the punishment for which the declarant might

be liable is considered self-serving. See

Graham, Federal Practice & Procedure (interim

ed), § 6795, p. 810, n 10. Shifting biame to

another is one method of exoneration. It

does not logically follow that if that method

is not employed, another excuse is made more

reliable.

Copeland's disincentive for not stating

that the others also stabbed the victim is

not the issue. The issue is whether

Copeland's denial of any felonious intent and

his claim that he was not in his right mind

at the time of the stabbing is against his

interest. The rationale in Turpin applies to

any method of avoiding criminal responsi-

bility and Copeland used the only out he

- 87a -

thought was available to him: admitting to

hiring a prostitute who liked "rough sex" and

claiming that he should not be held

responsible for his actions.4

Additionally, to the extent that the

Court's response to the fact that Copeland's

statement was not in fact against his

interest is factual, the statement that

Copeland “expressly stated that he believed

that the others did not stab her" is

incorrect. Slip op at 38. Copeland did not

so state. He said:

4 Because hiring a prostitute negated

rape and using mescaline negated his mental

state, neither or these admissions are in

context trul inculpatory. As the court

observed in dictum in United States v Evans,

635 F2d 1125 (CA 4, 1980), when a statement

technically constitutes a confession, but, in

actuality, its principal and perhaps only

function is to support a defense against a

charge of a more serious crime, “in reality,

looked at in its totality, the statement is

one for the declarant's penal interest, not

against." (Emphasis in the original.)

- 66a -

—— had knives on them, but not to

my knowledge.

In Carson v Peters, 42 F3d 384, 386 (CA

7, 1994), the court recently addressed a

similar factual scenario. In Carson, the

defendant sought to admit the declarant's

statements because they failed to mention the

defendant as a participant. Judge

Easterbrook concluded that failure to mention

the defendant did not directly inculpate the

declarant. Likewise, in this case, that

Copeland stated that he did not know whether

Barrera and Musall stabbed the victim is not

directly inculpatory of Copeland. He did not

state that he alone stabbed the decedent, he

did not say that he alone ripped off her

clothes,> and he did not say that he alone

had sex with her.

5S Moreover, like the declarant in Carson

who sought to protect a brother or fellow

gang member, Copeland's asserted lack of

knowledge was likely motivated by a desire to

protect his friends.

- 89a -

B.

The Test of Admissibility for Statements

Offered in Exculpation Is Not Whether

They Are Probative of the Declarant's Guilt

The test for admissibility of statements

offered in exculpation is not whether they

are probative of the declarant's guilt. The

Court erroneously cites Rivera v Illinois

Dep't of Corrections, 915 F2d 280, 282 (CA 7,

1990), to conclude that "MRE 804(b)(3) merely

requires that the statement be probative

against the declarant." Slip op at 20.

Judge Easterbrook explicitly recognized in

Carson, supra, that the rationale of Rivera,

supra, had been undermined by Williamson.

If a statement is reliable enough to

condemn its author, how can it be too un-

reliable to use when it cuts against the

prosecutor? The answer is that different

parts of a statement may have radically

different degrees of reliability ...

Portions of inculpatory statements that

pose no risk to the declarants are not

particularly reliable; they are just

garden variety hearsay. That recognition

supplies the basis of Williamson v United

States, [512] US ---; 114 S Ct 2431; 129

L Ed 2d 476 (1994), which holds that in

federal cases ey pi must separate the

incriminatory portions of statements from

other portions for purposes of FRE

804(b) (3).

= 90a =

Williamson tells us that portions of

a confession that do not inculpate the

declarant are not reliable enough for

prosecutors to use against anyone other

than the declarant. The Constitution

therefore did not compel Illinois to let

[defendant] use the omissions [the facts

that neither of the confessions mentioned

the defendant as a third party] from the

statements. [Id.]

Copeland's statement that "not to my

knowledge" had defendants stabbed the victim

is a neutral statement regarding defendant's

participation that is garden variety hearsay.

The Court's use of the prosecutor's argument

in Copeland's case does not address the

question. The statement comes in against its

maker because, regardless of its inculpatory

aspects, it is an admission that is not

hearsay. MRE 801(d) (2) (A).

In fact, the prosecutor's argument in

Copeland's case is an argument that Mr.

Copeland's statement that drugs had

obliterated his intent was a lie and ought

not to be believed by the jury. Thus, the

state's theory of liability in the Copeland

= 91a -

trial did not contradict the theory it

followed in this case.

The essential disagreement between my

view and that of the Court is whether

Copeland's statement that he had no felonious

intent and killed the victim while

hallucinating is reliable enough to be used

by the jury to exonerate Barrera and Musall.

But it is precisely because the "why" is the

most clearly untrustworthy aspect of the

statement as a statement of exculpatory

motive made to diminish Copeland's criminal

liability that the statement does not satisfy

the penal interest exception of MRE

804(b) (3). As Justice O'Connor observed for

the majority in Williamson:

And when part of the confession is

actually self-exculpatory, the general-

ization 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 othe, self-inculpatory,

statements does not increase the

- 92a -

plausibility of the self-exculpatory

statements. [114 S Ct 2453 (emphasis

added). ]

The rationale that persons generally will not

make damaging statements against themselves

unless they are true does not apply to

Copeland's reasons for stabbing the victim

because he thought she was Spooner, in

effect, the devil made him do it.® That

self-exculpatory statement is exactly one

“which people are most likely to make even

when they are false ...." Mere proximity to

the self-inculpatory statement that Copeland

stabbed her "does not increase the plausi-

bility" of the self-exculpatory statement.

114 S Ct 2435.

6 In context, it is clear that Copeland

was avoiding blame:

Q. You knew exactly what you were

doing when you pulled the knife out and

stabbed the woman, is that correct?

A. I was in a different state of

mind. I looked at a tree and could

taste the color of the tree.

- 93a -

Although Copeland's confession was not

retracted, and there was no indication of the

hope of any concessions, the statement

regarding his state of mind is self-serving

and not truly against his interest. It does

not satisfy the rationale of MRE 804(b) (3).

II.

Copeland's Statement Was Not

Exculpatory of the Defendants

Additionally, the defendants were not

constitutionally entitled to the admission of

Copeland's statement regarding his state of

mind because the presence or absence of

malice on Copeland's part was not exculpatory

of the state of mind of the codefendants.

The Due Process Clause does not require the

admission of statements proffered by the

defense that are of “dubious exculpatory

value." Turpin, supra at 1397.

Analysis of the exculpatory value of

Copeland's acts and state of mind is more

aifficult than the question whether

Copeland's statement was truly against his

- 94a -

interest. We have not had occasion since

People v Aaron, 409 Mich 672; 299 NW2d 304

(1980), to revisit the question of the extent

to which a co-felon may be convicted of

felony murder where it is claimed that the

death of a victim was not within the

contemplation of the aider and abettor

co-felons or reasonably foreseeable. People

v Pitts, 84 Mich App 656; 270 NW2d 482

(1978).

While not free from doubt, it appears

that the Court's analysis of the exculpatory

value of Copeland's statement is actually

directed to this causation question.? The

7 It bears repeating in analysis of the

question whether Copeland's state of mind was

exculpatory of malice on the part of the

co-defendant's that the focus of the inquiry

is Copeland's excuse for why he killed the

victin. While the jury did not hear

Copeland's statement, it did receive through

other evidence the substance of his

confession, including that he was the

stabber. The only portion of Copeland's

statement that the jury did not learn rs py ps

other means was that he stabbed the victim

because he thought she was Spooner.

- 95a -

thrust of that analysis is that Copeland

acted impulsively in the stabbing, and that

his action is probative of defendants' theory

that they were merely present and that the

stabbing was not within their common

enterprise and was not reasonably fore-

seeable. This was the theory of defense that

the jury actually heard. The question of

causation is related to, but analytically

distinct from, the question before us, which

is whether Copeland's professed lack of

malice is exculpatory of Barrera and Musall's

state of mind.

The jury convicted Barrera and Musall on

the prosecution's theory of aiding and

abetting first-degree felony murder.® The

8 The Court mischaracterized the

theories of a genes F The felony-murder

charge premised on aiding and abetting did

not require a "thought-out plan to rape, rob,

and then kill the victim." Slip op at 30.

Aiding and abetting a felony is felony murder

if malice can be inferred from all the

circumstances. People v Aaron, supra. The

- 96a -

crimes underlying this charge were larceny

and criminal sexual conduct. The trial court

properly instructed the jury that it could

find the defendants guilty of felony murder

if convinced beyond a reasonable doubt that

there was a death, the death was caused by

the defendant, and, at the time of the act

that caused the victim's death, the defendant

was committing or assisting another in the

commission of either a larceny or criminal

sexual conduct and possessed the requisite

intent for second-degree murder. 2

S Cont'd

crimes underlying the felony-murder charge

were larceny and criminal sexual conduct.

The victim was found without money, jewelry,

or clothing. The jury also was instructed on

second-degree murder.

9 Barrera and Musall must have been

found either to have intended to kill,

intended to cause great bodily harm, or

wilfully and wantonly disregarded the likeli-

hood that the natural tendency of their

behavior was to cause death or great bodily

harm. Under Aaron, the jury may infer these

states of mind from "[tjhe facts and circun-

stances involved in the perpetration of [the]

felony ...." Id. at 728.

- 97a -

First, as a matter of law, Copeland's

lack of intent would not negate his own

malice for second-degree murder.19 In People

v Langworthy, supra, we rejected the claim

that voluntary intoxication caused by drugs

or alcohol negates the malice for

second-degree murder. Accordingly,

Copeland's intoxication excuse does not

negate the mens rea for felony murder or

criminal sexual conduct.

Second, Copeland's lack of malice would

not negate malice on the part of either

Barrera or Musall. Although Copeland's

felonious intent is not to be vicariously

imputed to Barrera and Musall, People v

Aaron, supra, Barrera and Musall could be

convicted of felony murder if they aided or

assisted the commission of the felony of

criminal sexual conduct with life-endangering

10 Neither criminal sexual conduct nor

second-degree murder are specific-intent

crimes.

- 96a -

state of mind, that is, either intent to

kill, intent to do great bodily harm, or

under circumstances indicating their own

wanton and wilful disregard of the like-

lihood that the natural tendency of their

behavior was to cause "death or serious

injury." Id. at 728.

In Sharlow v Israel, 767 F2d 373 (CA 7,

1985), the petitioner appealed the exclusion

from evidence of alleged exculpatory state-

ments of two defense witnesses. One witness

would have testified that the co-defendant

said he was the one who had shot a person six

times in the head. Another would have

testified that the co-defendant said he

solicited the defendant to participate in a

robbery and that the defendant refused and

struggled with the codefendant to keep him

from shooting. The court found the first

statement not to be exculpatory under

Chambers.

- 99a -

While [the] testimony did inculpate

[the codefendant], her testimony was not

critical to Sharlow's [the defendant's]

case because it did not exculpate Sharlow

from being a party to the crime of

murder; thus, under the facts presented

to the jury, Sharlow could still be found

guilty for [the] murder under Wisconsin's

party to a crime statute. fId. at

378,)+1

Similarly, in this case, even assuming

that Copeland's statement inculpated

Copeland, it did not exculpate the defendants

under a theory of aiding and abetting

forcible sex. As long as the prosecution

proved beyond a reasonable doubt that Barrera

and Musall committed or assisted in commit-

ting either larceny or criminal sexual

11 The Court correctly observes that in

Wisconsin, felony murder does not require

proof of any mental state. State v oinen,

184 Wis 2d 423; 516 NW2d 399 (1994). This is

a different question than whether a codefen-

dant is chargeable with felony murder when a

co-felon has killed the intended felony

victim. Michigan's party to a crime statute,

MCL 767.39; MSA 28.979, like that of

Wisconsin, abolishes the distinction between

principals and accessories. Wis Stat Ann

939.05, Wisconsin's statute, in terms

provides responsibility for any other crime

“which under the circumstances is a natural

and probable consequence of the intended

crime."

- 100a -

conduct with any of the life-endangering

states of mind constituting malice, each

could be convicted of felony murder even in

Copeland was the sole stabber.

The question is not whether Copeland's

statement that he "spontaneously" stabbed the

victim is relevant to the defense;12 the only

question is whether statements describing

Copeland's mental statel3 support the defense

theory that the defendant

12 Copeland did not say that he

"spontaneously" stabbed the victim. Copeland

said that he did not discuss with Mark, Fred,

and Mike that they were going to rape and

kill the woman before arriving at the park -

statements which, because they exculpate

Copeland, are inadmissible under MRE

804(b) (3).

13 First-degree felony murder is simply

second-degree murder that occurred in the

perpetration or attempted perpetration of a

felony, and thus is statutorily elevated to

murder in the first degree. Aaron, supra at

730, 734. Intent to kill is but one of the

possible mental states sufficient to

establish the malice element of second-degree

murder. "While the intent satisfies the

malice requirement, it is not a necessary

- 10la =

did not possess the requisite mental state

for second-degree murder. Copeland's

statement regarding his hallucination speaks

only of his own state of mind. The relevant

inguiry is whether Barrera and Musall

possessed the requisite state of mind.

Stated otherwise, that Copeland

confessed to stabbing the woman does not

negate the possibility that Barrera and

Musall also possessed a state of mind

sufficient to be found guilty of felony

murder. The requisite intent to be convicted

13 cont'd

element of second-degree murder." Langworth,

Supra at 650. If the perpetrator possesses

the intent to kill, that does not transform

second-degree murder into specific- intent

crime. aga. at 651. Moreover, in a case

involving multiple participants, any of the

participants may possess any of the mental

states that compromise malice and satisfy the

mens rea element of second-degree murder.

- 102a =

as an aider and abettor is that necessary to

be convicted of the crime "as a principal."

People v Kelly, 423 Mich 261, 278; 378 NW2d

365 (1985). Malice as used in the context of

second-degree murder for felony murder is a

general intent crime and "if the aider and

abettor participates ina crime with

knowledge of the principal's intent to kill

or to cause great bodily harm, he is acting

with ‘wanton and willful disregard'

sufficient to support a finding of malice

under Aaron." id. at 278-279 (emphasis

added).

Copeland is deemed in law to have acted

with intent to kill. His professed absence

of intent to kill would not exculpate

defendants from responsibility for intent to

do great bodily harm malice, or for reckless

disregard malice - that is, a life-

endangering state of mind involving forcible

sex by four men that included ripping off the

victim's clothes and kicking her. Evidence

that Copeland had no malice because he was

not capable of forming the men rea is

- 1038 =

therefore no more exculpatory of Barrera and

Musall's lack of malice would be if offered

to exculpate Barrera or Barrera's lack of

malice if offered to exculpate Musall.

Nor is the remainder of Copeland's

statement exculpatory of the defendants.

Barrera's and Musall's defense was that they

merely were present at the scene of the

crime. While Copeland's statement may

support the defense that the murder was not

preplanned, it does not support a defense

that the defendants did not aid or abet a

felony murder. Instead, Copeland said in his

statement that Barrera was driving the car

they used to pick up the prostitute, that

Musall received fellatio from the victim, and

that they all proceeded to rip off her

clothes and to throw them around. When

Copeland had the opportunity to tell the

investigating officer that the defendants did

nothing and were merely present, he failed to

do so. For instance, when asked what his

- 104a -

friends did once they arrived at the park,

Copeland responded, "[(Musall], he got some

head from the woman, I don't recall what

[Johnson] and Barrera] were doing exactly."

When asked whether his friends participated

in the stabbing, Copeland answered, "(t]hey

had knives on them, but not to my know-

ledge."14 When questioned about who kicked

the woman, he stated, "I might have, I don't

remember exactly." These statements are

equivocal at best, and collateral to any

arguably self-inculpatory statements. They

are neutral, non-self-inculpatory statements

that would appear to be excluded under

Williamson. 114 S Ct 2435. Where Copeland

could have said his friends were merely

present, he instead claimed lack of memory.

14 Again, contrary to the majority's

assertion, Copeland did not “expressly

state[] that he believed that the others did

not stab her." Slip op at 38. Copeland

never told the officer that Barrera and

Musall did not stab the victin.

- 105a -

Viewed in this light, this case is

distinguishable from Chambers, supra. In

Chambers, the prosecution's theory against

the defendant was that he was the sole

killer. As the Court stated, "[tjhe State's

proof at trial excluded the theory that more

than one person participated in the shooting

of Liberty. To the extent that McDonald's

Sworn confession tended to incriminate hin,

it tended also to exculpate Chambers." Id.

at 297. When McDonald confessed to firing

the fatal shot, the confession exonerated

Chambers because the single person respon-

sible for the crime was established to be

McDonald, not the defendant.

While the Court recognized that expert

testimony could not establish or exclude

multiple assailants, its analysis seems to

assume that Copeland was the sole stabber.

Copeland's statement does not indicate this,

and the medical testimony indicted multiple

stab wounds. In this case, the fact that

Copeland stabbed the victim does not

- 106a <-

exculpate Barrera and Musall from also

stabbing her, nor does it exculpate them from

aiding and abetting the felony murder by

participating in the underlying larceny and

criminal sexual conduct in circumstances

indicating malice. Barrera's statement

admitted that he kicked the victim in the

head because she was screaming and that he

was the driver of the car. Musall's

statement indicated that Copeland demanded

the victim's money in the car, that she began

hitting him, that he hit her three or four

times in the face, and that he had sex with

her after they got to the park and after she

said, "don't, don't." Accordingly, unlike

McDonald's statement in Chambers, Copeland's

admission that he stabbed the victim does not

exculpate Barrera and Musall to the extent

that it inculpates Copeland. Further,

Musall's statement that he threw his knife

away is consistent with the prosecution's

theory that Barrera and Musall aided and

abetted Copeland.

- 107a -

Iit.

There Are No Corroborating Circumstances

Indicating Trustworthiness

Finally, the suppression of Copeland's

confession does not violate the defendant's

constitutional right to due process because

the majority fails to identify any "corro-

borating circumstances [that] clearly

indicate [its] trustworthiness ..." MRE

804(b) (3). As the Advisory Committee for the

Federal Rules of Evidence noted, statements

against penal interest that tend to exculpate

an accused are more suspect than other

statement against penal interest.

"The refusal of the common law to

concede the adequacy of a penal interest

was no doubt indefensible in logic

[citing Holmes' Donnelly dissent], but

one senses in the decisions a distrust of

evidence of confessions by third persons

offered to exculpate the accused arising

from suspicions of fabrication either of

the fact of the making of the confession

or in its contents, enhanced in either

instance by the required unavailability

of the declarant. Nevertheless, an

increasing amount of decisional law

recognizes exposure to punishment for

crime as a sufficient stake. The

requirement of corroboration is included

in the rule in order to effect an

accommodation between these competing

- 108a =

considerations. When the statement is

offered by the accused by way of

exculpation, the resulting situation is

not adapted to control by rulings as to

the weight of the evidence, and hence the

provision is cast in terms of a require-

ment preliminary to admissibility. The

requirement of corroboration should be

construed in such a manner as to

effectuate its purpose of circumventing

fabrication." [United States v Barrett,

539 F2d 244, 250-251 (CA 1, 1976)

— Notes of Advisiory Committee on

Proposed Rules, 28 USCA FRE 804. ]}

The presumption behind this rule is not that

"a suspect in custody will shift to someone

else," slip op at 38, but the teaching of

experience that a suspect in custody has a

strong motivation to lie in order to

exonerate himself. Thus, "(t]he requirement

of corroboration was written into the Rule to

guard against the inherent danger that third

party confessions tending to exculpate a

defendant are the result of fabrication."

United States v Guillette, 547 F2d 743, 754

(CA 2, 1976).

In this regard, the Court's newly

created balancing rule is fundamentally

flawed. The Court states that the

- 109a -

defendant's constitutional right to present

exculpatory evidence and the requirement of

reliability under MRE 804(b)(3) "may be

viewed as having an inverse relationship:

the more crucial the statement is to the

defendant's theory of defense, the less

corroboration a court may constitutionally

require for its admission." Slip op at

17-18.

Corroboration of hearsay statements is a

constitutional requirement, even if the

evidence is sought to be admitted by the

defense. Chambers held that an accused has a

due process right to the admission of

exculpatory hearsay provided it is

accompanied by “persuasive assurances of

trustworthiness." 410 US 302. Chambers

stated:

The testimony rejected by the trial

court here bore persuasive assurances of

trustworthiness and thus was well within

the basic rationale of the exception for

declarations against interest. That

testimony also was critical to Chambers’

defense. In these circumstances, where

constitutional rights directly affecting

~ 113108 -

the ascertainment of guilt are impli-

cated, the hearsay rule may not be

applied mechanistically to defeat the

ends of justice. ([Id.]

In other words, Chambers indicates that

due process requires hearsay rules to admit

reliable declarations against penal interest.

Lee v McCaughtry, 933 F2d 536, 538 (CA 7,

1991). Chambers does not hold that

unreliable evidence may be admitted simply

because it is extremely significant to the

defense case.

Further, the admission of only slightly

corroborated evidence because it is crucial

to the defense is contrary to the intent of

the Rules Committee. The Rules Committee

purposely imposed the corroboration require-

ment as a prerequisite to admissibility

because it recognized that statements

exculpating the accused are "not adapted to

control by rulings as to the weight [not

admissibility] of the evidence ..." Barrett,

supra at 251. The balancing rule, however,

ee A cee We.

- llla -

allows evidence that is not sufficiently

corroborated under the constitution to be

heard and weighed by the jury.

The Court adopts a three-part test to

determine whether a custodial confession

bears sufficient indicia of reliability to be

admitted under MRE 804(b) (3). That test,

taken from United States v Garcia, 986 F2d

1135, 1140 (CA 7, 1993), is (1) whether the

confessing party and the exculpated party

have a close relationship, (2) whether the

confessor made a voluntary statement after

being advised of his Mirandal5 rights, and

(3) whether there is any evidence that the

statement was made in order to curry favor

with authorities. Slip op at 13-14.

This test is flawed in two respects.

First, while a truly inculpatory and

voluntary statement to police officers

15 Miranda v Arizona, 384 US 436; 86 S Ct

1602; 16 L Ed 2d 694 (1966).

- ll2a -

while in custody would indicate reliability,

the fact that a statement is deemed voluntary

under Miranda has no logical bearing on

whether the declarant's confession was free

of the motive to mitigate the declarant's

role in the offense. Lee v Illinois, 476 US

530, 5443; 106 § Ct 2056; $0 L EG 2d 814

(1986); United States v Flores, 985 F2d 770,

782 (CA 5, 1993). As set forth above, even

though Copeland's statement was made

voluntarily, his purpose in making the

statement was to avoid criminal liability to

the extent possible.16 Second, the test uses

the absence of evidence of currying favor as

indicating trustworthiness. As the court in

Flores observed, however, "state- ments by

suspects to law enforcement officials

inculpatory of third parties are

16 See, e.g., , supra at 1397,

which observed that the declarant's statement

was unreliable in part because it was made to

a police interrogator and was not a spon-

taneous utterance to a close acquaintance.

- 113a -

excluded because of the presumption that such

motives exist, and the absence of evidence

does not remove this presumption.” 985 F2d

782 (emphasis in original). A like

presumption exists when, as in this case, the

declarant attempts to minimize his own

participation in the crime. By contrast with

the situation where the absence of a motive

to fabricate indicates reliability,

Copeland's drug-induced excuse indicates

fabrication in an attempt to gain whatever he

could in the difficult situation he faced.

Thus, two of the three prongs of the Garcia

test do not aid the determination of the

reliability of the custodial statement.

The third Garcia factor inspects the

relationship between the confessor and the

party exculpated in the confession. In

applying the test to the facts of this case,

the opinion simply states, "we find that

there was not a close relationship between

Copeland and Barrera that would induce

~ 4268 =

Copeland to 'take the rap' for Barrera." Slip

op at 28. (The Court does not apply the test

to the facts of Musall's case.) The

conclusion is belied by the evidence in this

case. First, in Copeland's confession, he

refers to Barrera, Musall, and Johnson as "my

friends" several times. In discussing the

night in question, Copeland says that "[mlJe,

my three friends Mark, Fred and Mike we

decided to get together and go out last

Thursday night and to have a few laughs and

get high off Mescaline drugs." Thus, it was

fortuitous that the four suspects were

together on the night of the murder; they had

arranged the evening previously. In fact,

their relationship was such that all four

could agree to have sex with the same woman

and Copeland, as the ringleader, did the

talking for them because his friends did not

know how to talk to girls. In addition,

Barrera and Copeland were together on the

= S338 =

night that they were arrested.17 Finally,

given that Copeland had reason to believe

that the fact that he stabbed the victim was

known by “everyone else," he might well have

though that he had no choice but to accept

blame, yet claim that he did not know what he

was doing. The analysis also distinguishes

this case from Donnelly, supra. In Donnelly,

Justice Holmes noted that "there was no

ground for connecting Donnelly with Dick [the

17 To the extent that the Court

concludes that MRE 804(b)(3) “merely requires

that the statement be probative against the

declarant," slip op at 20, it is in error.

Garcia correctly notes tht once the evidence

is determined admissible its weight is for

the jury. The statement is consistent with

the advisory committee's admonition that

[wjhen the statement is offered by

the accused by wg of 2. rer ;

the resulting situation is not

adapted to control by rulings as to

the weiaht of the evidence, and hence

the prevision is case in terms of a

requirement prelimina to admissi-

bility. [Notes of Advisory Committe

on Proposed Rules, 28 USCA, FRE 804,

p. 448.]

- i116a -

confessor})." 228 US 277. The evidence in

this case was to the contrary-Copeland and

the defendants were friends and “running

buddies."

That leaves only one source of

corroboration for Copeland's statements - the

statements of the defendants. Yet, as the

Court recognizes, “if the only corroborating

circumstance was the individual defendant's

statement, standing alone, we might a

different situation." Slip op at 16. Such

corroboration is constitutionally deficient.

Turpin supra at 1397-1398; United States v

Annese, 631 F2d 1041, 1045 (CA 1, 1980).

The legislative history of the rule

demonstrates that the House committee

rejected the notion that penal statements

"“simpliciter" contained sufficient corro-

boration, because even the accused's own

testimony might meet this test and inserted

the language requiring corroborating circum-

= 4478 =

stances that "'clearly indicate the trust-

worthiness of the statement' ..." 1974 US

Code Cong & Admin News, pp 7089-7090.

Indeed, as the trial court and Court of

Appeals noted, Copeland's statements and

those of the codefendants were inconsistent

in several respects. Defendants contend in

effect that Copeland said they did nothing,

while Barrera admitted that he kicked the

victim in the head before Copeland killed her

and that Musall had oral sex with her after

the forcible sex began.

The Court points to no corroborating

circumstances indicating the statement is

trustworthy. While purporting to recognize

that statements of the codefendants do not

furnish corroboration, United States v

Rodriguez, supra, the application of the

balancing rule uses the purported consistency

between defendants' statements and Copeland's

statement as corroboration of the reliability

- 118a =-

of the excluded evidence. The only other

corroboration offered is that Copeland spoke

after being advised of his rights, and the

conclusive statement that there was not a

close relationship between Barrera and

Copeland. Slip op at 28.

In conclusion, because the defendants

failed to establish that Copeland's statement

fulfills the requirements of MRE 804(b) (3)

and was sufficiently reliable that its

exclusion denied the constitutional right to

due process, I would affirm the decision of

the Court of Appeals.

Signed Signature

Patricia J. Boyle

- 119a -

APPENDIX "B"

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv January 5, 1994

No. 119344

PATRICK MUSALL, LC No: 88-13917

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 146673

LC No: 88=-13917

MARK BARRERA,

Defendant~Appellant.

Befor

e: Sawyer, P.J., and Weaver and H.R.

Gage,” JJ.

PER CURIAM.

Defendants were convicted following jury

trials of first-degree felony murder. MCL

750.316; MSA 25,548. Thereafter, both

defendants were sentenced to life in prison.

* Circuit judge, sitting on the Court of

Appeals by assignment.

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Both defendants now appeal and we affirn.1

Both defendants raise a number of issues

on appeal. We will begin by consideration of

those issues which are common to both

defendants. First, both defendants argue

that there was insufficient evidence to

support their convictions for first-degree

felony murder. We disagree. In reviewing a

challenge to the sufficiency of the evidence,

we review the evidence in the light most

favorable to the prosecution and determine

whether a rational trier of fact could find

that the essential elements of the crime were

proven beyond a reasonable doubt. People v

Hampton, 407 Mich 354, 368; 285 NW2d 284

(1979). When so viewing the evidence in the

case at bar, we are satisfied that a rational

tier of fact could conclude that both

defendants were guilty of first-degree felony

murder.

1 We note that a third defendant, Fred

Johnson, was tried and acquitted.

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Next, both defendants argue that their

rights to a fair trial were violated when the

trial court excluded evidence relevant to the

defense theories that another individual,

Matthew Copeland, was solely responsible for

the killing. Specifically, defendants argue

that the trial court erred in excluding from

evidence a statement made by Copeland.

Defendants argue that Copeland's statement

was admissible under MRE 804(b)(3) as a

statement against penal interest. However,

under MRE 804(b)(3), where a statement is

offered to exculpate the accused, it is not

admissible unless corroborating circumstances

Clearly indicate the trustworthiness of the

statement. See People v Underwood, 184 Mich

App 784, 788; 459 NW2d 106 (1990).

In the case at bar, we are not persuaded

that there is sufficient corroboration of the

trustworthiness of the statement to merit its

admission. Indeed, many aspects of Cope-

land's statement is at odds with evidence

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offered by defendants. In particular,

Copeland stated that both he and Barrera had

used mescaline, with Copeland attributing his

actions to the effects of mescaline, while

Barrera never mentioned the use of mescaline

in his own statement. Moreover, Copeland

contended that the victim voluntarily engaged

in the sexual acts which occurred before the

killing, which is contrary to the statements

of both defendants in this case. Similarly,

Copeland claimed that everyone involved in

the offense participated in taking off the

victim's clothes, while both defendants here

denied doing so in their respective

statements. Finally, Copeland stated that he

stabbed the victim while she was performing

fellatio on Musall, while Musall claimed that

he had finished and was walking away when

Copeland came over and stabbed the victim.

The decision to admit or exclude evidence is

within the sound discretion of the trial

court. i6@. #€. 766. For the above reasons,

we are noc persuaded that the trial court

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abused it discretion in excluding Copeland's

statement. 2

Next, both defendants challenge the

admission of their own statements at trial,

Claiming that they were not voluntarily made

to the police. Defendant Musall claims that

his statement to the police was procured by

police threats of life imprisonment, state-

ments that they knew that he was not guilty

and that he had better tell the truth, in

which case he would be allowed to leave.

Similarly, defendant Barrera claims that his

confession was coerced by being threatened

with life imprisonment and being told that

his friend was “singing like a bird."

In determining whether a confession is

2 Defendant Musall also raises an argument

with respect to statements by Barrera and

Johnson. However, Musall concedes that he

never sought to admit those statements at

trial. Accordingly, the issue has not been

properly preserved for appeal.

|

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voluntarily given, the totality of the

circumstances must be considered. People v |

Cipriano, 431 Mich 315, 338-339; 429 NW2d 781 |

(1988). Although we make an independent

examination of the record, we give deference

to the trial court's findings, particularly

where credibility is a major factor. Id. The

trial court conducted evidentiary hearings on

these issues and found that defendants'

testimony, particularly that of defendant

Barrera, was not entirely believable. In any

event, the trial court determined, in the

totality of the circumstances, that both

defendants statements were voluntarily given.

There are various factors to be

considered in determining whether a statement |

is voluntary. Cipriano, supra at 334. The |

absence or presence of any particular factor |

is not necessarily conclusive on the issue of

voluntariness. Id. Ultimately, the totality

of the circumstances surrounding the making

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of the statement must be considered to

determine whether the statement was freely

and voluntarily made. Id. After making our

independent examination of the record, we are

not persuaded that the trial court clearly

erred in determining that the statements were

freely and voluntarily given.

Defendant Barrera also argues that his

statement should have been suppressed because

it was the product of an unlawful arrest.

Specifically, he argues that there was

insufficient evidence to establish probable

cause to justify his arrest. Probable cause

to arrest exists if the facts available to

the officer at the time of arrest would

justify a fair-minded person of average

intelligence in believing that the suspected

person has committed a felony. People v

Oliver, 417 Mich 366, 374; 338 NW2da 167

(1983). The trial court considered this

issue and found that the arresting officer

did have probable cause to make his arrest.

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Upon review of the record, we are not

persuaded that the trial court clearly erred

in making that finding.

For the above reasons, we conclude that

the trial court did not err in admitting

daefendants' statements into evidence.

Next, both defendants argue that they

were denied a fair trial by various instances

of misconduct by the prosecutor. For the

most part, defendants have failed to preserve

their specific arguments for appellate review

by making a timely objection in the trial

court. People v Foster, 175 Mich App 31ll,

317; 437 NW2d 395 (1989). Accordingly, we

shall limit our discussion under this issue

to those matters which have been properly

preserved for appeal.

First, both defendants argue that the

prosecutor improperly created an inference

that the victim's shoes were found inside

Barrera's automobile in the prosecutor's

TOOL OR Re RE OR: LORE Rp IRE TN

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questioning of Officer Warnick. The trial

court, however, denied their motion for a

mistrial. We have read the portion of the

officer's testimony defendants complain of,

and we do not believe that it created the

impression that the victim's shoes were found

in Barrera's car. In fact, the officer was

asked whether he saw any shoes lying in the

car and he specifically stated, "no."

Defendant Musall further argues that the

prosecutor improperly displayed a photo to

the jury depicting a pair of nunchucks in the

automobile during Warnick's testimony.

However, the photograph was never admitted

into evidence, it merely being shown to

Warnick to refresh his recollection, and

there is no indication from the record that

the photograph was ever in fact displayed to

the jury nor was a specific objection

concerning the photograph raised by defendant

Musall.

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Next, both defendants argue that the

prosecutor improperly appealed to the jurors'

fears during closing arguments by commenting

that defendants would walk out the door if

they were acquitted. While the prosecutor

perhaps should not have made these comments,

we are not persuaded that reversal is

required. First, we cannot say that these

comments exactly appealed to the jurors'

fears by creating an inference that

defendants would go out and commit further

crimes if acquitted. Second, it is a fairly

obvious proposition that a defendant who is

acquitted is free to leave. It is unlikely

that the jury would not be aware of that

consequence but for it being pointed out by

the prosecutor. Accordingly, any error by

the prosecutor in making such a comment is

harmless beyond a reasonable doubt.

The only remaining allegation of

prosecutorial misconduct which is even

arguably preserved for review concerns

FROTTAGE LITLE ELE NAN IE A ENS Fat

Dae sda

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defense counsel's cross-examination of

Sergeant of Sanders and the prosecutor's

redirect examination of Sanders. On cross-

examination, defense counsel asked the

sergeant why he chose to interrogate

defendant Barrera first. The sergeant

replied that it was because of information he

had, apparently about to state that he had

information that Copeland was the actual

killer, when he was cut off by defense

counsel. Thereafter, Sanders merely stated

that his choice was based upon information

that he had prior to the suspects' arriving

at the homicide section. On redirect, the

prosecutor asked Sanders whether he said

anything to Barrera after his denials and

Sanders began to reply he told him that he

had information through the investigation

that he was involved in this particular

crime, when he was cut off by defense

counsel's objection. The trial court

sustained defense counsel's hearsay objection

and the prosecutor moved on to another line

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of questioning.

Defendant Barrera now argues that the

prosecutor engaged in misconduct by first

failing to instruct Sergeant Sanders not to

relate hearsay testimony and second by

proceeding to elicit additional hearsay

testimony on redirect. First, we note that

Sergeant Sanders in his testimony on cross-

examination specifically prefaced his

statement with the comment that he was

uncertain whether what he was about to

testify to constituted hearsay. Furthermore,

we are not persuaded that Sanders' testimony

was, in fact, hearsay. The statement that he

had information that Copeland was the actual

perpetrator was not being offered for proof

of the truth of the matter asserted, but to

explain why Sanders chose to interrogate

Barrera first. Since the statement was not

offered to prove the truth of the matter

asserted, it did not constitute hearsay. MRE

80l(c).

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Similarly, with respect to the

prosecutor's question on redirect, it is not

clear to us that the prosecutor's question

called for a hearsay answer for the same

reason: the statement was not being offered

for proof of the truth of the matter

asserted. In any event, defense counsel's

objection was sustained, curing any potential

error if the statement was in fact hearsay.

We cannot say that the prosecutor's question

so clearly called for a prejudicial, hearsay

answer as to be categorized prosecutorial

misconduct.

For the above reasons, we conclude that

there are no instances of prosecutorial

misconduct which call for a reversal of

defendant's convictions.

The final issue raised by both defendants

is whether the trial court erred in refusing

to instruct the jury on various lesser

included offenses. However, we are satisfied

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that any error by the trial court in refusing

to grant the requested instructions is

harmless beyond a reasonable doubt. The jury

was afforded the opportunity to return a

verdict on the lesser included offense of

second-degree murder and chose not to do so.

Therefore, we conclude that any error in

failing to give instructions on other lesser

included offenses was harmless. See People v

Beach, 429 Mich 450; 418 NW2d 861 (1988).

We not turn to the issues raised solely

by defendant Musall. First, defendant Musall

argues that the trial court erred in giving a

felony-murder instruction which encompassed

the possibility that the underlying offense

could be based upon a misdemeanor larceny.

However, defendant has failed to preserve

this issue for appeal by raising the issue in

the trial court. People v Pouncey, 437 Mich

382, 386; 471 NW2d 346 (1991).

Next, defendant Musall argues that the

trial court erred by admitting his confession

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before the prosecution had established the

corpus delicti of the crime. Specifically,

defendant argues that there was no indepen-

dent evidence showing the commission of the

predicate offense introduced prior to the

admission of the confession. However, it is

unnecessary to establish the commission of

the predicate offense in order to establish

the corpus delicti of first-degree felony

murder. Rather, the corpus delicti of

first-degree felony murder is the same as for

first-degree premeditated murder: the showing

that a death has occurred as the result of a

criminal agency. People v Hughley, 186 Mich

App 585, 589; 464 NW2d 914 (1990). In the

case at bar, the corpus delicti of first-

degree felony murder was established.

Next, defendant argues that he was

improperly denied his right to waive a jury

trial. Defendant sought a bench trial, which

was denied because the prosecutor would not

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consent to a bench trial pursuant to MCL

763.3; MSA 28.856. Defendant argues that the

statute is invalid because it violates his

constitutional right to waive a jury.

However, the Supreme Court upheld the

validity of this statute in People v Kirby,

440 Mich 485; 487 NW2d 404 (1992).

Next, defendant argues that he was denied

a fair trial when a prospec

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