Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED DECEMBER 19, 2008 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 135666 ERIC TAYLOR, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 135683 ROBERT LEE KING, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 135692 MARLON SCARBER, Defendant-Appellant.BEFORE THE ENTIRE BENCH PER CURIAM. In this case, two juries convicted three defendants of multiple crimes related to the kidnapping and murder of Fate Washingt on. Defendant Robert L. King argues that the inculpatory statem ents of codefendant Marlon Scarber, admitted through the testimony of an acquain tance, violated the rules of evidence and King’s right of confrontation under People v Poole , 444 Mich 151; 506 NW2d 505 (1993). In lieu of granting leav e to appeal, we hol d that, insofar as Poole held that the admissibility of a codefendant’s nontestimonial hearsay statement is governed by both MRE 804(b)(3) and the Confrontation Cl ause of the United States Constitution, it is no longer good law. We nevert heless affirm the decision of the Court of Appeals becau se we conclude that the Court sufficiently addressed the issue of the statemen ts’ admissibility under MR E 804(b)(3). We deny defendants’ applications for leave to appeal in all other respects.
I. FACTS AND PROCEDURAL HISTORY The Court of Appeals summarized th e facts of this case as follows: The victim, Fate Washington, was sitting in the driver’s-side seat of his Ford Expedition on the street outside his house. He had just finished speaking with a ne ighbor when defen dant Scarber and an unidentified man, both clad in black, approached the vehicle and forced Washington, at gu npoint, further into the vehicle. Both the neighbor and Washington’s ad ult son, who was near a window inside the house, witnessed the scen e. Washington scuffled with the men long enough that the neighbor wa s able to run home, retrieve a handgun, and open fire on the vehicle from his front porch. The eyewitnesses verified that Scarber climbed into the driver’s seat while a second vehicl e[,] driven by defendant King, rolled up and

2opened fire on the neighbor with an automatic rifle. Other witnesses confirmed that the tandem of vehi cles sped off through the streets after the shots were fired. Soon afterward, defendant King forced Washington to make a series of calls demanding ransom in return for his life. A former friend of Scarber’s a nd associate of [Taylor and King], Troy Ervin, pr ovided a detailed account of events after Washington was taken captive. Th e group took Washington to a house owned by Ervin’s sister, and defendant King persuaded Ervin to trade cars with him for a while. When Ervi n visited the house, he was initially denied a ccess into the home. Scarber later called him and told him that he and the other defendants had kidnapped Washington and held him at the house. Scarber explained that Taylor had helped and that King had shot at the man’s defenders. Scarber also admitted that he almo st blew himself up burning the man’s vehicle. This information was confirmed at trial by a witness who heard a large explosion that night and saw a vehicle, later identified as Washington’s Exped ition, on fire outside her home. Ervin visited the house again a nd found Washington lying on the floor of a back room wearing noth ing but a sheet. Taylor guarded the man with an automatic rifle lik e the one described by witnesses to Washington’s capture, and King was armed with a handgun like the one Scarber had used. While Er vin was there, he heard Taylor deny Washington’ s request to use the p hone again to make more ransom calls. Ervin left, but retur ned again later after Scarber called and told him that King had s hot Washington in the legs and he had bled to death. Ervin was agitated at finding that Washi ngton was killed in his sister’s house, because it associated him with the murder. He saw the dead body in the back room, and then he went to the hardware store for King and purchased tools for burying the body. After he dropped off the tools, he was again called and informed that the group had buried the body in th e back yard of the property. Ervin was again agitated at the use of his sister’s property, but Taylor assured him that the bu rial site was inconspicuously concealed by the doghou se and the body was s ecure under a layer of concrete. Searchers lat er found the body buried as Ervin described it. The body was found with two gunshot wounds, one through each leg.

3Upon hearing that Ervin, who was not charged with a crime, had made a statement to poli ce about Washington’s murder, defendant Scarber also decided to make a st atement. Except for Scarber’s self-serving insi stence that he partic ipated in the crimes under duress and tried to care for Wa shington by bandaging his first gunshot wound and bringing him water, Scarber’s statement to police was remarkably consistent w ith Ervin’s. Scarber’s statement confirmed the details of a success ful ransom recovery that involved a peculiar delivery method, a par ticular mailbox, and a relatively small amount of money and drugs. Scarber’s statement described defendant King as Wash ington’s killer, and expl ained that, before he shot Washington a second time, Ki ng expressed a frustrated lack of concern with Washington’s life and an unabashed willingness to kill him. Because the prosecutor want ed to place d efendant Scarber’s statement into evidence, Scarber received a separate jury for the purpose, isolating defendant King’s and defendant Taylor’s jury from Scarber’s blame-shifting accoun t of Washington’s captivity. [ People v Taylor , unpublished opinion per curiam of the Court of Appeals, issued Nove mber 29, 2007 (Docket Nos. 273443, 273543, and 273955), at 2-3.]
A jury convicted King and Tayl or of second -degree murder, 1 MCL 750.317; first-degree felony murder, MCL 750.316(1)(b); kidnapping, MCL 750.349; and possession of a firearm during the commission of a felony, MCL 750.227b. It also convicted King of armed robbery, MCL 750.529, but acquitted Taylor of armed robbery. The trial cour t sentenced King to life imprisonment for the first-degree felony murder conviction, 25 to 80 years for the second-degree murder, armed robbery, and kidnapping co nvictions, and two years for the felony

firearm conviction. It sentenced Taylor to life imprisonment for the first-degree

1 Both were charged with first-degree premedita ted murder, but the jury convicted them of the lesser offense of second-degree murder.

4murder conviction, 25 to 80 years for the kidnapping c onviction, and two years for the felony-firearm conviction. 2 A separate jury convicted defendant Scarber of first-degree premeditated murder, MCL 750.316(1)(a); felony murd er; armed robbery; kidnapping; felony

firearm; and felon in possession of a firear m, MCL 750.224f. The trial court sentenced him to life imprisonment for th e premeditated murder conviction, 38 to 80 years for the armed robbery and kidnap ping convictions, an d two years for the felony-firearm conviction. 3 After consolidating defendants’ appeal s, the Court of Appeals affirmed Scarber’s convictions and sentences, but set aside King’s s econd-degree murder and kidnapping convictions and Taylor’s kidnappi ng conviction on double jeopardy grounds. 4 All three defendants sought leave to appeal in this Court.

2 The trial court vacated Taylor’s second-degree mu rder conviction on double jeopardy grounds. 3 The trial court vacated Scarber’s felony-murder conviction on double jeopardy grounds and dismissed his fel on in possession conviction without explanation. 4 The Court reasoned that Ki ng could not be convicted of both first-degree and second-degree murder of the same person. With respect to King’s kidnapping conviction, the Court ruled that either the kidnapping conviction or the armed robbery conviction was the p redicate felony for the felon y-murder conviction, so setting aside the kidnapping conviction meant that King would only receive one punishment for the kidnapp ing conviction (his senten ce for felony murder), and then could be separately punished for armed robbery. The Court set aside Taylor’s kidnapping conviction using the same reasoni ng (the only difference is that Taylor was acquitted of armed robbery). Taylor , supra at 3-5. We note that because the Court of Appeals issued its opinion in this cas e before we issued our opinion in People v Ream , 481 Mich 223, 225; 750 NW2d 536 (2008) (holding that

5II. ANALYSIS Defendant King challenges the trial court’s admission, through Ervin’s testimony, 5 of defendant Scarber’s statements to Ervin that (1) Scarber, King, and Taylor had kidnapped Washington and were holding him at the house owned by Ervin’s sister and that (2) King had shot Washington once in each leg, causing him to bleed to death. King argues before this Court, as he did before the Court of Appeals, that Scarber’s statements to Er vin were inadmissible h earsay and that the trial court erred in failing to consider th eir reliability before holding that the statements would not violate the Confrontation Clause. The Court of Appeals held that the rules of evidence did not precl ude admission of the statements because they fell within the hearsay exception for statements ag ainst the declarant’s penal interest, MRE 804(b)(3). Taylor , supra at 5. It also held that the trial court’s failure to analyze the relia bility of the statements was harmless because the statements bore sufficient indicia of re liability under the factors articulated in Poole , supra at 165, and they therefore did not violate King’s right of confrontation. Taylor , supra at 5-6. We hold that the portion of Poole pertaining to the requirements of the Confrontation Clause is no longer g ood law because it was premised on Ohio v
“convicting and sentencing a defendant for both felony murder and the predicate felony does not necessarily violate the ‘multiple punishments’ strand of the Double Jeopardy Clause”), th e Court did not have the be nefit of our holding in Ream when it decided this case. 5 As a codefendant, Scarber was not av ailable to testify at trial.

6Roberts , 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has been overruled by Crawford v Washington , 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v Washington , 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Because the h earsay statements in this case were nontestimonial, they do not implicate the Confrontation Clause, Davis , supra at 821, and their admissibility is governed so lely by MRE 804(b)(3). We nevertheless affirm the decision of the Court of Appeals on the ba sis of the Court’s de termination that the statements were admissible under MRE 804(b)(3). The Confrontation Clause provides th at “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” US Const, Am VI. Th is Court’s Confrontation Clause analysis in Poole was predicated on the Confronta tion Clause analysis articul ated by the United States Supreme Court in Roberts . In Roberts , the Court considered the relationship between the Confrontation Clause and th e hearsay rule. It held that the Confrontation Clause limits the scope of admissible hearsay in two ways: first, it generally requires the prosecution to either produce the declarant or demonstrate that he is unavailable; second, it requires that the statement bear certain “indicia of reliability.” Id . at 65-66. The Court further held that “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id . at 66. Otherwise, the evidence is inadmissible “absent a showing of particularized guarantees of trustworthiness.” Id

.

7In Poole , this Court considered the admissi bility of a declarant’s voluntary, out-of-court statement made to someone other than a police officer, implicating the declarant and the defenda nt in criminal activity. Id . at 153-154. It held that in order for such a statement to be admissible as substa ntive evidence against the defendants at trial, it must be admi ssible under both MRE 804(b)(3) and the Confrontation Clause. Id . at 157. After concluding that the statement was admissible under MRE 804(b)(3), the C ourt considered whether admission of the statement at issue violated the defen dants’ right of confrontation. Id . at 162. Following a discussion of Roberts and Idaho v Wright , 497 US 805, 819, 822-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990) (applying Roberts ), this Court set forth guidelines for analyzing the reliability of a declarant’s out-of-court statement: In evaluating whether a statemen t against penal interest that inculpates a person in addition to the de clarant bears sufficient indicia of reliability to allow it to be admitted as substantive evidence against the other person, courts must evaluate the circumstances surrounding the making of the statement as well as its content. The presence of the following factors would favor admission of such a statement: wh ether the statement was (1) voluntarily given, (2) made contemporaneous ly with the ev ents referenced, (3) made to family, friends, colleagues, or con federates—that is, to someone to whom the declarant would likely sp eak the truth, and (4) uttered spontaneously at the initiation of the declarant and without prompting or inquiry by the listener. On the other hand, the presence of th e following factors would favor a finding of inadmissi bility: whether th e statement (1) was made to law enforcement officers or at the prompting or inquiry of the listener, (2) minimizes th e role or responsibility of the declarant or shifts blame to the a ccomplice, (3) was made to avenge

8the declarant or to curry favor, a nd (4) whether the declarant had a motive to lie or distort the truth. [ Poole , supra at 165.] Applying these factors, the Poole Court concluded that the witness did not prompt the declarant to make the statement or inqui re about events referenced in the statement. The statement did no t minimize the declaran t’s role in the attempted robbery or his responsibility for the murder, and was not made in order to shift blame to th e defendants, avenge the declaran t, or curry favor. Nor was there any indication that the declarant had a mo tive to lie. On that basis, the Court concluded that the statemen t and the circumstances u nder which it was made bore sufficient indicia of reliability to satisfy the requirements of the Confrontation Clause. Id . at 165-166. The United States Supreme Co urt subsequently decided Crawford and
Davis , which in combination overruled Roberts in its entirety. In Crawford , the Court overruled the Roberts “indicia of reliability” an alysis where testimonial statements are concerned. It held that, “[w]here testimonial evid ence is at issue,” “the Sixth Amendm ent demands what the comm on law required: unavailability and a prior opportunity for cross-examination.” Crawford , supra at 68. The Court declined to “spell out a comp rehensive definition of ‘tes timonial,’” but stated that “[w]hatever else the term c overs, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a fo rmer trial; and to police interrogations.” Id

.

9In Davis , the United States Supreme Cour t revisited the question of the application and requirements of the Confront ation Clause. It held that the clause only restricts the admissibility of tes timonial statements because “[o]nly statements of this sort cau se the declarant to be a ‘wit ness’ within the meaning of the Confrontation Clause.” Id . at 821. While nontes timonial statements are subject to traditional rule s limiting the admissibility of hearsay, they do not implicate the Confrontation Clause. Id . The Court considered the circumstances under which statements made during a police i nvestigation were testimonial. It concluded that such “[s]tatements are nontes timonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assist ance to meet an ongoing emergency.” Id . at 822. “They are testimoni al when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establis h or prove past events potentially relevant to later criminal prosecution.” Id

. The overruling of Roberts by the United States Supreme Court in Crawford and Davis undermines the analytical underpi nnings of this Co urt’s decision in Poole , which was entirely predicated on Roberts . Thus, the holding in Poole that a codefendant’s nontestimonial statement is governed by both MRE 804(b)(3) and the Confrontation Clause is no longer goo d law. Scarber’s statements to Ervin were nontestimonial because they were made informally to an acquaintance, not during a police interr ogation or other form al proceeding, see Crawford , supra at

1068, or under circumstances indicating th at their “primary purpose” was to “establish or prove past events potentially relevant to later criminal prosecution,”
Davis , supra at 822. Accordingly, the admissib ility of the statements in this case is governed solely by MRE 804(b)(3). This Court’s MRE 804(b)(3) analysis in Poole remains valid, however, and provid es the applicable standard for determining the admissibility of a cod efendant’s statement under the hearsay exception for statements ag ainst a declarant’s penal interest. MRE 804(b)(3) provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavaila ble as a witness:
* * * (3) Statement against interest . A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to rende r invalid a claim by the declarant against another, that a reasonabl e 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 crimi nal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In Poole , this Court held: [W]here, as here, the declarant’ s inculpation of an accomplice is made in the context of a narrative of events, at the declarant’s initiative without any prom pting or inquiry, that as a whole is clearly against the declarant’s penal interes t and as such is reliable, the whole statement—includi ng portions that in culpate another—is

11admissible as substantive evid ence at trial pursuant to MRE 804(b)(3). [ Poole , supra at 161.] [6]

In this case, Scarber made his first statement, im plicating himself, King, and Taylor in the kidnapping, during a telephone conversation with Ervin on the day of the kidnapping. During another ca ll to Ervin the following day, apparently shortly after Washington died, Scarber ma de the second statement implicating King alone in the shooting of Washingt on. Scarber did not make any self

inculpatory statements during this call. The Court of Appeals concluded that both statements fell within the hearsay exception for statemen ts against penal interest, stating that “because the statements at issue were provided in a narrative, both those portions that incu lpated Scarber alone and t hose that inculpated his

6 Poole , supra at 161-162, explicitly relie d on the commentary to FRE 804(b)(3), on which MRE 804( b)(3) is modeled. In Williamson v United States , 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994), the United States Supreme Court held th at the federal rule “does not allow admission of non-self-inculpatory statem ents, even if they are made within a broader narrative that is generally self-inculpatory.” We note this development in federal law, but believe that the portion of Poole pertaining to MRE 804(b)(3) was co rrectly decided. See People v VanderVliet , 444 Mich 52, 60 n 7; 508 NW2d 114 (1993), amende d on other grounds 445 Mich 1205 (1994) (noting that this Court finds commentary and caselaw on the federal rules of eviden ce helpful and, in some cases, persuasive). See also People v Beasley , 239 Mich App 548, 556; 609 NW2d 581 (2000). In Poole , we also suggested that “carry over” portions of a declarant’s statement—those that inculpate the d efendant but are not directly against the declarant’s interest—might be ad missible under a “catch-all” hearsay exception, which Michigan di d not have at the time. Poole , supra at 159 n 11. Although the Mich igan Rules of Evidence now contain such an exception, MRE 803(4), we do not add ress whether the stat ements at issue

12codefendants were admissible.” Taylor , supra at 5. Moreover, in discussing the admissibility of the second statement under the Co nfrontation Clause, the Court acknowledged that “it is arguable that defendant Scarber’s desire to disassociate himself from the murder provi ded him with a motive to lie about the identity of the individual (perhaps Scarber himsel f) who actually shot Washington.” Id . at 6. The Court concluded, however, that the second statement was part of “a pattern of impugning communications” volunteered sp ontaneously and without reservation to a friend, not delivered to police, and “without any apparent secondary motivation other than the de sire to maintain the benefits of the relationship’s confidence and trust— and according to the record, to brag.” Id . Accordingly, the Court concluded that “Scarb er’s statements to Ervin constituted a ‘narrative of events,’ so the statemen ts were admissible at tria l in their entirety.” Id . Given these determinations, we are satisfied that the Court of Appeals sufficiently considered the issue of th e statements’ admissibility under MRE 804(b)(3) and Poole , supra at 161, and affirm on that basis.

here are admissible under th at exception because we conclude that they are admissible under MRE 804(b)(3).

13In all other respects, defendants’ appli cations for leave to appeal are denied, because we are not persuaded that the questions presented should be reviewed by this Court.

Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

14v

v

v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, No. 135666 ERIC TAYLOR, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, No. 135683 ROBERT LEE KING, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, No. 135692 MARLON SCARBER, Defendant-Appellant.

CAVANAGH, J. ( concurring in part and dissenting in part ). I concur that People v Poole , 444 Mich 151; 506 NW2d 505 (1993), is no longer controlling law to the extent it relied on Ohio v Roberts , 448 US 56; 100 SCt 2531; 65 L Ed 2d 597 (1980), to hold that the admissibility of a codefendant’s nontestimonial hearsay statement is govern ed by the Confrontation Clause of the Sixth Amendment of the Unite d States Constitution. I di ssent, however, because I would grant leave to appeal to consider th e viability of Poole ’s interpretation of MRE 804(b)(3) in light of Williamson v United States , 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994). Under MRE 804(b)(3), a nontestimonial hearsay statement is not excluded if the declarant is not ava ilable as a witness and the statement “so far tended to subject the declarant to civil or criminal lia bility . . . that a reas onable person in the declarant’s position would not have made the statement unless believing it to be
true.” Poole interpreted MRE 804(b)(3) to allo w a declarant’s statements to be admitted as a whole against a codefendant, even where some of the statements inculpate the codefe ndant without in culpating the declarant, if made “in the context of a narrative of ev ents” that as a whole was against the declarant’s penal interest. Poole, supra at 161. The Poole Court stated that it was “guided by the comment of the Advisory Committee for the Federal Rules of Evidence concerning FRE 804(b)(3), on which th e Michigan rule is modeled.” Id

. As the majority opinion acknowle dged in this case, one year after Poole was decided, the United States Supreme Court repudiated the interpretation of the federal commentary advanced in Poole . See Williamson, supra at 600-601. Specifically, Williamson held that “the most faithful reading of Rule 804(b)(3) is that it does not allo w admission of non-self-inculpatory statements, even if they

2are made within a broader narrative that is ge nerally self-inculpatory. . . . [T]his is especially true when the statem ent implicates someone else.” Williamson, supra
at 600-601. Williamson further stated that the Court did not need to look to the federal commentary to interpret FRE 804(b )(3) because “the policy expressed in [the rule]’s text points clearly enough in one direction that it outweighs whatever force the Notes may have.” Id. at 602. Nevertheless, the Court considered the portion of the federal commentary on which Poole relied, and found it “not particularly clear” and inconsistent with other portions of the commentary, which the Court found to support a contrary interpretation. Id. This Court should grant leave to appeal to r econsider the validity of Poole in light of Williamson . The majority opinion dismisses Williamson in a footnote by tersely stating that “[w]e note this development in fed eral law, but believe that the portion of Poole pertaining to MRE 804(b)(3) was correctly decided.” Ante at 12 n 6. While the United States Suprem e Court’s interpretation of FRE 804(b)(3) does not necessarily control how this Court interprets MRE 804(b)(3), I cannot agree that Poole is so clearly and completely unaffected by Williamson that it is appropriate for this Court to dism iss the issue in a footnote. The United States Supreme Court’s e xpress rejection of the interpretation of the federal co mmentary on which Poole relies is significant. The majority misses the point when it note s that this Court is not bou nd by the FRE by stating that “this Court finds commentary and casel aw on the [FRE] helpful and, in some cases, persuasive.” Ante at 12 n 6, citing People v VanderVliet , 444 Mich 52, 60 n

37; 508 NW2d 114 (1993). Wh en this Court bases its interpretation of an MRE on the federal commentary to the equivalent FRE, and the United States Supreme Court then soundly rejects that unders tanding of the FRE, it merits greater attention from this Court than dismissal in a footnote. It is true that we are not bound by the FRE be cause we find commentary and caselaw for the FRE “only” helpful and sometimes persuasive. Bu t, because we do fi nd commentary and caselaw for the FRE helpful and sometimes persuasive, it is worth evaluating in a meaningful, substan tive manner whether Poole ’s interpretation of MRE 804(b)(3) was correct irrespective of Williamson ’s rejection of Poole ’s reasoning. 1 This jurisprudentially significant issue merits, at a minimum, granting leave to appeal. Further, as stated in my dissent in Poole , I continue to thin k that it is more consistent with the text of MRE 804(b)(3) to exclude th e portions of a declarant’s statements that implicate a codefendant but are not against the declarant’s penal interest. See Poole, supra at 166-169 (Cavanagh, J., di ssenting). The exception to the general rule against hearsay in MRE 804(b)(3) allows admission of statements against interest only insofar as a “reasona ble person in the declarant’s position would not have made the statement unless belie ving it to be true.” As stated in Williamson, supra at 599-600: Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially

1 In lieu of conducting a meaningful, substantive ev aluation of the validity of Poole after Williamson , the majority opinion “notes” Williamson and affirms Poole without analysis and seemingly without genuine consideration.

4honest, tend not to make self-inc ulpatory statements unless they believe them to be true. . . . The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inc ulpatory parts. On e of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature. Poole ’s interpretation of MRE 804(b)(3) is an imprecise proxy for when a “reasonable person in the declarant’s position would not have ma de the statement unless believing it to be true.” MRE 804(b)(3). Poole incorrectly assumed that any statement made in the context of a narrative of events th at as a whole is against the declarant’s penal interest is one that a reasonable person in the declarant’s position woul d not have made unless it were true. Williamson ’s interpretation more accurately reflects the rule’s text and the reality that the underlying justification for inferring that self-inculpatory statements are true does not necessarily extend to c ontemporaneous non-self-incul patory statements. This is especially true when, as in this case, the non-se lf-inculpatory statements exculpate the declarant and inculpate a codefendant. 2 This Court should grant l eave to appeal to reconsider Poole in light of Williamson because Williamson rejected the interpret ation of the federal

2 To the extent that Scarb er’s statements in the first phone call implicated both himself and his codefendants, a court could in fer that a reasonable person would not have made the st atements unless they were tr ue. In contrast, Scarber’s statements in the second telephone call im plicated only King. It would be in Scarber’s interest to exculpat e himself from the shooting by inculpating only King in the second call; therefore, a “reasonabl e person” might have made those statements even if they were not true. This demonstrates why Williamson ’s

5commentary on which Poole was based. Further, the facts of this case illustrate the flaws in Poole ’s interpretation of MRE 804(b)(3) as compared to Williamson ’s interpretation.

Michael F. Cavanagh Marilyn Kelly

application of MRE 804(b)(3) reaches a result more precisely connected to the rule’s text than Poole ’s interpretation does.

6