PEOPLE v. CONTE

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Docket Number

Docket No. 84716.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people. Angela Palmieri, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and sentenced to a prison term of from five to twelve years. Defendant appealed as of right.

The facts, as stated in the opinion, are: on December 24, 1984, defendant (a self-admitted narcotics addict) received a call from Kenneth Briggs requesting a ride to a pharmacy to procure Dilaudid by means of a false prescription in exchange for ten tablets. Defendant had done similar trips before and agreed. Upon arrival, Briggs entered the store, produced a gun, demanded drugs, took an unopened box of Dilaudid, ordered the pharmacist to the floor, and ran out. Briggs and defendant were immediately apprehended.

Briggs made a statement to police admitting participation in the robbery and stating that he had concealed the weapon and that defendant never saw it. Briggs later pled guilty in a separate proceeding and refused to testify at defendant's trial, invoking the Fifth Amendment. Defense counsel sought to admit Briggs's out-of-court statement under MRE 804(b)(3); the trial court excluded the portion of the statement that tended to exculpate defendant. Defendant raises multiple issues on appeal, including the exclusion of the exculpatory statement, sufficiency of corroboration, constitutional claims under Chambers v. Mississippi, certain evidentiary rulings about testimony that defendant had no money at arrest, and alleged burden-shifting during closing argument. The Court of Appeals affirmed the conviction.

Legal Issues Presented

Whether the trial court erred in excluding from evidence the portion of Briggs's out-of-court statement that tended to exculpate defendant under MRE 804(b)(3) (statement against interest).
Whether there was sufficient corroboration to admit an otherwise exculpatory statement against interest.
Whether exclusion of the statement violated defendant's due process rights under Chambers v. Mississippi.
Whether the prosecutor impermissibly elicited testimony that defendant had no money at the time of his arrest and whether the admission of that testimony constituted reversible error.
Whether the prosecutor's closing remarks impermissibly shifted the burden of proof to defendant.

Arguments of the Parties

Defendant's Arguments

The trial court erred in excluding the exculpatory portion of Briggs's out-of-court statement under MRE 804(b)(3).
There was sufficient corroboration to clearly indicate the trustworthiness of Briggs's exculpatory statement.
Excluding the statement violated defendant's constitutional right to present a defense under Chambers v. Mississippi.
The prosecutor improperly elicited testimony from witnesses that defendant had no money at the time of arrest, which was prejudicial.
The prosecutor's closing comments shifted the burden of proof to defendant, warranting reversal.

People's / Prosecution's Arguments

The portions of Briggs's statement that allegedly exculpated defendant were not truly against Briggs's penal interest and therefore properly excluded under MRE 804(b)(3).
The testimony that defendant and Briggs had no money or prescriptions at arrest was elicited to rebut defendant's theory that they intended to obtain drugs by presenting a false prescription, and therefore was admissible for that limited purpose.
The prosecutor's closing remarks were proper comments on the evidence and reasonable inferences drawn therefrom, and did not shift the burden of proof.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Williams, 136 Mich. App. 682, 686; 357 N.W.2d 741 (1984)	Statement must be truly against the declarant's penal interest to be admissible under MRE 804(b)(3).	Used to state the threshold test for admitting statements against penal interest and to support exclusion of the exculpatory remark that did not expose Briggs to additional liability.
People v Blankenship, 108 Mich. App. 794; 310 N.W.2d 880 (1981), lv den 412 Mich. 857 (1981)	When examining a statement against interest, the court must consider context and exclude statements made from other motives, as they lack indicia of reliability.	Supported the principle that non-penal-motive statements should be excluded for lack of trustworthiness.
United States v Marquez, 462 F.2d 893 (CA 2, 1972)	Authority cited in connection with the exclusion of unreliable exculpatory statements against interest.	Cited as additional authority supporting the trial court's exclusion of the exculpatory portion of Briggs's statement.
People v Dortch, 84 Mich. App. 184; 269 N.W.2d 541 (1978), lv den 404 Mich. 805 (1978)	Authority cited with respect to admissibility of statements against interest.	Cited as supporting authority for the trial court's exercise of discretion in excluding the exculpatory remark.
Chambers v Mississippi, 410 U.S. 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973)	Due process may require admission of hearsay statements against penal interest that bear persuasive assurances of trustworthiness and are critical to defense.	The Court distinguished Chambers on the grounds that Chambers involved spontaneous, self-incriminatory statements corroborated by other evidence and with witnesses available for cross-examination; the Court found Chambers did not require reversal here.
People v Hawkins, 114 Mich. App. 714; 319 N.W.2d 644 (1982)	Cited in relation to Chambers and the trustworthiness/corroboration analysis.	Used as related authority in distinguishing the present case from Chambers.
People v Wallach, 110 Mich. App. 37; 312 N.W.2d 387 (1981), vacated on other grounds 417 Mich. 937 (1983)	Cited in relation to Chambers and admissibility considerations.	Used as related authority in distinguishing the present case from Chambers.
People v Bingaman, 144 Mich. App. 152; 375 N.W.2d 370 (1984)	When a defendant fails to object to evidence, appellate review is limited to whether admission resulted in manifest injustice.	Applied to limit review of the testimony about defendant having no money because defendant did not object at trial.
People v Johnson, 393 Mich. 488; 227 N.W.2d 523 (1975)	Evidence of poverty, dependence on welfare or unemployment is not admissible to show motive or credibility.	Cited to note general inadmissibility of poverty evidence; court nevertheless found the particular testimony here admissible for a limited rebuttal purpose.
People v Henderson, 408 Mich. 56; 289 N.W.2d 376 (1980)	Evidence of poverty generally inadmissible but may be admissible in some situations.	Applied to justify that the testimony that defendant had no money could be admissible when used to rebut defendant's theory of the case.
People v Duncan, 402 Mich. 1; 260 N.W.2d 58 (1977)	Failure to object at trial limits appellate review absent a miscarriage of justice.	Applied to limit appellate review of alleged burden-shifting comments in closing argument because defendant did not object at trial.
People v Etchison, 123 Mich. App. 448; 333 N.W.2d 309 (1983), lv den 417 Mich 1100.14 (1983)	Failure to object to closing argument restricts appellate review absent miscarriage of justice.	Applied alongside Duncan to limit review of the closing argument claims.
People v Drew, 83 Mich. App. 57; 268 N.W.2d 284 (1978)	A prosecutor may comment on the evidence and draw reasonable inferences therefrom during closing argument.	Relied upon to conclude the prosecutor's closing remarks were proper comments on the evidence and did not impermissibly shift the burden.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps tied to the issues presented in the appeal.

1) MRE 804(b)(3) and the exculpatory remark: The court explained that for an out-of-court declaration to be admissible under MRE 804(b)(3) it must be truly against the declarant's penal interest. The court examined Briggs's statement in context and determined that the specific remark that defendant had never seen the weapon did not subject Briggs to criminal liability beyond what he already faced (it neither admitted an additional crime nor increased Briggs's exposure to a more severe penalty). The court emphasized that the rule is not limited to direct confessions but is appropriately limited to statements that would have a deleterious effect on the declarant's own interests. Because the contested remark merely served to exculpate defendant while leaving Briggs's situation unchanged, it lacked the necessary indicia of trustworthiness and could be excluded. The court concluded the trial court did not abuse its discretion in excluding that portion of the statement.

2) Corroboration: The court noted that an inquiry into sufficiency of corroboration is unnecessary when the trial court properly finds, as a threshold matter, that the offered remarks fail to qualify as "statements against interest" under MRE 804(b)(3).

3) Chambers and due process: The court considered Chambers v. Mississippi and distinguished it on the facts: Chambers involved spontaneous, self-incriminatory statements made to acquaintances shortly after the crime, corroborated by other evidence, with the declarants available for cross-examination. Here, Briggs's collateral exculpatory remark lacked persuasive indicia of trustworthiness, was not corroborated by non-self-serving evidence, and Briggs was unavailable for cross-examination. On those bases, the court found Chambers did not mandate reversal.

4) Testimony regarding defendant having no money: Because defendant did not object at trial to the prosecution's eliciting testimony that he had no money at arrest, appellate review is limited to whether its admission resulted in manifest injustice. The court acknowledged the general rule that evidence of poverty or dependence is not admissible to show motive or credibility; however, such evidence may be admissible in certain contexts. Here, the court found the prosecution introduced the testimony solely to rebut defendant's theory that he and Briggs intended to secure drugs with a false prescription. Because the testimony was offered for that limited rebuttal purpose, the court held its admission was not error, and comments on that evidence in closing were likewise proper.

5) Alleged burden-shifting in closing argument: Defendant again failed to object at trial; appellate review was therefore limited absent a miscarriage of justice. The court reviewed the prosecutor's comments and concluded they constituted permissible comment on the evidence and reasonable inferences therefrom. The court found the remarks—regarding Briggs' absence and defendant's unexplained one-hour gap—were fair and did not impermissibly shift the burden of proof.

Holding and Implications

Holding: The Court of Appeals affirmed the defendant's conviction and sentence. The court's disposition is: Affirmed.

Implications: The direct effect is that defendant's conviction for armed robbery and the sentence of five to twelve years' imprisonment were upheld. The court applied established evidentiary rules regarding statements against interest, the need for trustworthiness and penal exposure under MRE 804(b)(3), and limited appellate review where contemporaneous objections were not made. The opinion does not announce a new rule of law; it applies existing precedent to the facts and upholds the trial court's discretionary evidentiary rulings.

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PEOPLE v CONTE

PER CURIAM.

Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a prison term of from five to twelve years. Defendant appeals as of right.

Defendant was arrested while he was aiding and abetting in the commission of an armed robbery of a Grosse Pointe Farms pharmacy. Defendant, a self-admitted narcotics addict, testified that at 8:30 A.M. on December 24, 1984, he received a phone call from his friend, Kenneth Briggs. Briggs asked defendant to pick him up and drive him to the pharmacy where they intended to procure Dilaudid, a narcotic, with a false prescription. For his efforts, defendant was to receive ten Dilaudid tablets. Defendant had participated in such ventures in the past and agreed to accompany Briggs. Defendant denied having any knowledge that Briggs had a gun or was intending to commit an armed robbery.

The two men arrived at the pharmacy around 10:30 A.M. At first they were reluctant to enter because several customers were already inside and they feared that the pharmacist would refuse to fill their suspiciously large prescription while other customers were present. Once the store cleared, Briggs left the truck and went inside. Briggs approached the pharmacist and pulled a gun from under his coat. He demanded the drug and the pharmacist gave him an unopened box of Dilaudid. Briggs ordered the pharmacist to the floor and ran out of the store, where he and defendant were immediately apprehended by the police.

Following his arrest, Briggs made a statement to the police in which he admitted his participation in the robbery. Briggs testified that he called defendant and asked him to make out a false prescription and drive him to a pharmacy. He had agreed to give defendant some of the drugs for his efforts. Briggs stated further that he concealed the weapon under his jacket and that defendant never saw it.

Briggs pled guilty to armed robbery and felony-firearm in a separate proceeding. He subsequently refused to testify at defendant's trial, asserting his Fifth Amendment privilege. When defense counsel sought to have Briggs's statement introduced into evidence under MRE 804(b)(3), the trial court excluded that portion of the statement which tended to exculpate defendant. Defendant argues on appeal that the court erred in excluding the exculpatory statement.

MRE 804(b)(3) provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

* * *

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable person in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In order for a declaration to be admissible under this exception, the statement must be truly against the declarant's penal interest. People v Williams, 136 Mich. App. 682, 686; 357 N.W.2d 741 (1984). In determining whether a statement meets this test, the court must examine the statement in the context in which it was made. If it appears that the declarant had some other motive in making the statement, whether self-interest or otherwise, the declaration should be excluded since it lacks the requisite indicia of reliability that underlies the exception. Williams, supra; People v Blankenship, 108 Mich. App. 794; 310 N.W.2d 880 (1981), lv den 412 Mich. 857 (1981).

Here, since Briggs was unavailable for trial, defendant sought to admit his statement as an admission against interest. However, our review of the statement reveals that not all of it was a declaration against Briggs's penal interest. Briggs's statement that defendant had never seen the weapon did not subject Briggs to criminal liability more serious than that which he already faced. It did not admit to an additional crime or render defendant susceptible to a more severe penalty. While we do not interpret MRE 804(b)(3) to be limited to direct confessions of guilt, the rule should be limited to statements which have or could have a deleterious effect on the declarant's own interests. Here, the gratuitous statement merely exculpated defendant while leaving Briggs's position unchanged. Therefore, we find that the exculpatory statement lacked the guarantee of trustworthiness that makes a statement which is truly against penal interest reliable. The trial court did not abuse its discretion by excluding the exclupatory portion of Briggs's out-of-court statement. See also United States v Marquez, 462 F.2d 893 (CA 2, 1972); People v Dortch, 84 Mich. App. 184; 269 N.W.2d 541 (1978), lv den 404 Mich. 805 (1978).

Defendant also argues that there was sufficient corroboration to clearly indicate trustworthiness. However, an inquiry into the question of sufficiency of corroboration is unnecessary when the trial court finds that as a threshold matter the offered remarks fail to come within the hearsay exception as a "statement against interest" as that phrase is used within MRE 804(b)(3).

Defendant next claims that the statement was admissible on constitutional grounds citing Chambers v Mississippi, 410 U.S. 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). In Chambers, the Supreme Court held that it was a denial of due process to exclude hearsay statements against penal interest which bore persuasive insurances of trustworthiness and were critical to Chambers' defense. Each statement was made spontaneously to a close acquaintance shortly after the murder had occurred, was corroborated by some other evidence in the case, and was in a very real sense self-incriminatory and unquestionably against interest. Moreover, each of the three witnesses was available for cross-examination at trial. Chambers is distinguishable from the present case. Here, the declarant's collateral exculpatory statement does not bear the persuasive indicia of trustworthiness and is not corroborated by other evidence which is not self-serving. Neither was the declarant available for cross-examination. We do not believe that Chambers requires reversal in this case. See also People v Hawkins, 114 Mich. App. 714; 319 N.W.2d 644 (1982); People v Wallach, 110 Mich. App. 37; 312 N.W.2d 387 (1981), vacated on other grounds 417 Mich. 937 (1983).

Defendant's next claim on appeal is that the prosecutor impermissibly elicited testimony from the witnesses that at the time of his arrest defendant had no money. We note that defendant failed to object to admission of the evidence, either during the prosecution's examination of the witnesses or during his closing argument, and our review is limited to determining whether its admission resulted in manifest injustice. People v Bingaman, 144 Mich. App. 152; 375 N.W.2d 370 (1984).

Evidence of poverty, dependence on welfare or unemployment is not admissible to show motive or as evidence of a witness' credibility. People v Johnson, 393 Mich. 488; 227 N.W.2d 523 (1975); People v Henderson, 408 Mich. 56; 289 N.W.2d 376 (1980). It may, however, be admissible in some situations. Henderson, supra. Here, defendant's theory of the case was that he and Briggs went to the pharmacy with a false prescription intending to buy drugs. In order to refute defendant's theory, the prosecutor elicited testimony that when defendant and Briggs were arrested they had neither money nor prescriptions. It is clear that this evidence was introduced for the sole purpose of rebutting defendant's theory of the case. The introduction of the evidence for this limited purpose was not error. Inasmuch as the testimony was properly admitted during trial, the prosecutor's comments regarding the evidence made during closing argument were also proper.

Defendant's final argument is that the prosecutor's comments during closing argument impermissibly shifted the burden of proof to defendant. In support thereof, defendant refers to two comments: one regarding Briggs' failure to testify at the trial and the other regarding defendant's inability to account for a one-hour time gap before the robbery. Again, defendant failed to object to the comments, hence, appellate review is precluded unless a miscarriage of justice would result. People v Duncan, 402 Mich. 1; 260 N.W.2d 58 (1977); People v Etchison, 123 Mich. App. 448; 333 N.W.2d 309 (1983), lv den 417 Mich 1100.14 (1983).

After reviewing the prosecutor's comments, we are convinced that they were proper comment on the evidence. A prosecutor is free to comment on the evidence and draw all reasonable inferences therefrom. People v Drew, 83 Mich. App. 57; 268 N.W.2d 284 (1978). The prosecutor's comments were within these bounds. Defendant's testimony did in fact fail to account for an hour before the commission of the robbery and it was the prosecutor's theory that defendant and Briggs used this period to plan the crime. In addition, we fail to see how the prosecutor's comment on Briggs' absence shifted the burden of proof to defendant. The prosecutor's remarks were fair comment on the evidence and reversal is not required on this basis.

Affirmed.