____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

________________________________ 

Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 9, 2003
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v No. 121864
 

ALLAN WASHINGTON,
 

Defendant-Appellee.
 

PER CURIAM
 

Defendant was convicted of armed robbery and assault with
 

intent to do great bodily harm less than murder. The Court of
 

Appeals reversed the convictions because the accomplice’s
 

statement, in which the accomplice identified himself as the
 

shooter, was improperly admitted against defendant. 251 Mich
 

App 520; 650 NW2d 708 (2002). It also found that the trial
 

court abused its discretion in denying defense counsel the
 

opportunity to conduct voir dire of a juror in mid-trial. We
 

reverse the judgment of the Court of Appeals and reinstate the
 

verdict.
 

I
 
On May 8, 1998, two men robbed James Turner while he was
 

using a public pay phone at a Detroit gas station. One of the
 

men pulled a gun, pointed it at Turner’s head, and demanded
 

money. The other went through Turner’s pockets and took his
 

watch and pager. When Turner told his assailants that he
 

didn’t have anything else of value, he was shot in the back.
 

A few minutes later, two police officers saw a car
 

containing defendant and Daniel Mathis drive into an alley
 

behind a gas station that was approximately a mile from the
 

scene of the robbery. The officers decided to investigate
 

because the area was known for drug sales and prostitution.
 

Defendant was uncooperative with the officers and, following
 

a scuffle, he was handcuffed pending further investigation.
 

As the officers returned to talk to Mathis, who had remained
 

in the car, the report of the Turner robbery and a description
 

of his assailants were broadcast over the police radio. When
 

one of the officers asked to have the description repeated,
 

Mathis blurted out, “I did it——I’m the shooter.” Turner
 

identified defendant in a lineup as one of his assailants. He
 

failed to identify Mathis.
 

Defendant and Mathis were charged with armed robbery,
 

MCL 750.529, and assault with intent to murder, MCL 750.83.
 

They were tried separately. On the morning of defendant’s
 

trial, the issue whether Mathis’s statement was admissible was
 

raised. Without elaboration, the trial court decided that the
 

2
 
statement would be allowed into evidence. Defendant was
 

convicted of armed robbery and assault with intent to do great
 

bodily harm less than murder, MCL 750.84.
 

The Court of Appeals reversed defendant’s convictions.
 

It concluded that Mathis’s statement was improperly admitted
 

as a statement against penal interest because it was not
 

reliable. According to assertions made by defense counsel,
 

Mathis was mentally ill.1 In addition, the panel found that
 

the trial court should have allowed defense counsel to
 

question a juror in mid-trial.
 

II
 

The decision to admit evidence is reviewed for an abuse
 

of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d
 

673 (1998). When the decision regarding the admission of
 

evidence involves a preliminary question of law, such as
 

whether a statute or rule of evidence precludes admissibility
 

of the evidence, the issue is reviewed de novo. People v
 

Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
 

1 Specifically, the Court of Appeals majority held:
 

A review of the record reveals an assertion by


defense counsel that codefendant Mathis suffered
 

from mental illness and that he had a history of


psychiatric and psychological treatment. Certainly,


an inculpatory statement made by a mentally ill


codefendant . . . is not a statement that contains
 

“particularized guarantees of trustworthiness”
 

sufficient to introduce the statement as
 

substantive evidence against defendant without the


opportunity for cross-examination. [251 Mich App


527.]
 

3
 
III
 

Declarations against penal interest constitute an
 

exception to the general proscription against hearsay provided
 

by MRE 802. MRE 804(b)(3), in pertinent part, defines a
 

declaration against penal interest as
 

[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 is not admissible unless corroborating


circumstances clearly indicate the trustworthiness


of the statement.
 

The exception is based on the assumption that people do not
 

generally make statements about themselves that are damaging
 

unless they are true. People v Poole, 444 Mich 151, 161; 506
 

NW2d 505 (1993), citing the comment of the Advisory Committee
 

on Federal Rules of Evidence relating to FRE 804(B)(3).
 

Mathis’s statement is against his penal interest and,
 

therefore, is admissible.
 

The inquiry, however, does not stop there because the
 

Confrontation Clauses of the federal and state constitutions
 

are implicated. US Const, Am VI; Const 1963, art 1, § 20.
 

The admission of Mathis’s statement as substantive evidence
 

does not violate the Confrontation Clause if the prosecution
 

can establish that Mathis was unavailable as a witness and
 

that his statement bore adequate indicia of reliability.
 

Alternatively, the Confrontation Clause is not violated if the
 

4
 
statement fell within a firmly rooted hearsay exception.
 

Poole, supra at 163.
 

Some jurisdictions have held that the hearsay exception
 

for statements against penal interest is a firmly rooted
 

hearsay exception. See, e.g., United States v McKeeve, 131
 

F3d 1, 9 (CA 1, 1997), People v Wilson, 17 Cal App 4th 271,
 

278; 21 Cal Rptr 2d 420 (1993), and State v Tucker, 109 Or App
 

519, 526; 820 P2d 834 (1991).2 However, we need not decide
 

that issue because Mathis had been charged with the crimes and
 

was considered unavailable because it was expected that he
 

would assert his Fifth Amendment right not to testify.
 

Additionally, Mathis’s statement bears adequate indicia of
 

reliability.
 

In Poole, supra at 165, we instructed:
 

In evaluating whether a statement against


penal interest that inculpates a person in addition


to the declarant 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: whether the
 

statement was (1) voluntarily given, (2) made


contemporaneously 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
 

2 We acknowledge, without approving, Neuman v Rivers, 125
 

F3d 315 (CA 6, 1997), a case from Michigan, concluding that


the exception is firmly rooted.
 

5
 
listener.
 

On the other hand, the presence 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.
 

Courts should also consider any other
 

circumstance bearing on the reliability of the


statement at issue. See, generally, United States
 

v Layton, 855 F2d 1388, 1404-1406 (CA 9, 1988).


While the foregoing factors are not exclusive, and


the presence or absence of a particular factor is


not decisive, the totality of the circumstances


must indicate that the statement is sufficiently


reliable to allow its admission as substantive
 

evidence although the defendant is unable to crossexamine the declarant.
 

When those precepts are applied to the facts at bar, we
 

find that Mathis’s statement to the police officers bears
 

sufficient indicia of reliability to satisfy Confrontation
 

Clause concerns and to allow its admission as substantive
 

evidence at trial. The statement was voluntarily given and
 

made contemporaneously with the events referenced. It was
 

uttered spontaneously by Mathis and without prompting or
 

inquiry by the officers. In fact, the officers had just heard
 

of the robbery when Mathis made the statement. Mathis did not
 

minimize his role in the crimes, admitting that he shot the
 

victim, and he had no motive to lie or distort the truth. In
 

addition, there is nothing in the statement indicating that
 

the declarant was attempting to curry favor at the time he
 

6
 
made the statement. 


We agree with the dissenting judge of the Court of
 

Appeals that there was no record evidence establishing that
 

Mathis “suffered from mental illness.” The unsubstantiated
 

assertions of defense counsel are not substantive evidence and
 

cannot be used to undermine the indicia of reliability
 

contained in the accomplice’s statement. 


IV
 

We also find that the trial court did not abuse its
 

discretion in denying defense counsel’s request to voir dire
 

a juror during the trial. 


On the third day of trial, after deliberations had begun,
 

defense counsel reported that a juror had been seen talking
 

with a trial spectator who counsel believed was familiar with
 

the victim or the victim’s family. The trial court summoned
 

the juror and, in response to the court’s direct questions,
 

the juror stated that she had not discussed the case with her
 

friend. She affirmed that her friendship would not influence
 

her ability to make a fair decision in the case. The trial
 

court did not allow defense counsel to make further inquiry of
 

the juror.
 

“The trial court has discretion in both the scope and the
 

conduct of voir dire.” People v Tyburski, 445 Mich 606, 618­

619; 518 NW2d 441 (1994). A defendant does not have a right
 

to have counsel conduct the voir dire. Id. However, where
 

7
 
the trial court, rather than the attorneys, conducts voir
 

dire, the court abuses its discretion if it does not
 

adequately question jurors regarding potential bias so that
 

challenges for cause can be intelligently exercised.
 

Fedorinchik v Stewart, 289 Mich 436, 438-439; 286 NW 673
 

(1939). Here, the trial court more than adequately questioned
 

the juror about the allegations of grounds for her possible
 

disqualification. There was no need for defense counsel to
 

interrogate her further.
 

A defendant is entitled to relief from a verdict because
 

of disallowance of voir dire only if he can prove that he was
 

actually prejudiced by the presence of the juror in question
 

or that the juror was properly excusable for cause. Bynum v
 

The ESAB Group, Inc, 467 Mich 280, 286; 651 NW2d 383(2002);
 

People v Hannum, 362 Mich 660, 666-667; 107 NW2d 894 (1961);
 

People v DeHaven, 321 Mich 327, 330-334; 32 NW2d 468 (1948).
 

Defendant has not established either criterion in this case.
 

V
 

We conclude that the accomplice’s statement contains
 

sufficient “particularized guarantees of trustworthiness,”
 

considering the totality of the circumstances surrounding its
 

utterance, to justify its admission. Poole, supra at 164. We
 

also conclude that the trial court did not abuse its
 

discretion when it denied defense counsel’s request to conduct
 

voir dire of a juror. Accordingly, we reverse the judgment of
 

8
 
the Court of Appeals and reinstate the judgment of the circuit
 

court. MCR 7.302(F)(1).
 

Maura D. Corrigan


Michael F. Cavanagh


Elizabeth A. Weaver
 

Clifford W. Taylor


Robert P. Young, Jr.


Stephen J. Markman
 

9
 
___________________________________ 

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-Appellant,
 

No. 121864
 

ALLAN WASHINGTON,
 

Defendant-Appellee.
 

KELLY, J. (dissenting).
 

I disagree that the indicia of reliability surrounding
 

codefendant's statement were sufficient to support admission
 

of the statement into evidence in defiance of the
 

confrontation clauses of the state and federal constitutions.
 

Rather, I agree with the Court of Appeals majority that the
 

circuit court should not have admitted the statement. The
 

majority, Judge Kirsten Frank Kelly and Judge Harold Hood,
 

aptly stated:
 

A review of the record reveals an assertion by


defense counsel that codefendant Mathis suffered
 

from mental illness and that he had a history of


psychiatric and psychological treatment.
 

Certainly, an inculpatory statement made by a
 
mentally ill codefendant that tacitly inculpates


defendant as his accomplice is not a statement that


contains "particularized guarantees of
 

trustworthiness" sufficient to introduce the
 

statement as substantive evidence against defendant


without the opportunity for cross-examination.
 

Permitting codefendant's statement to come in as


substantive evidence against defendant, while
 

depriving defendant the opportunity to challenge


that statement through the adversarial process,


violates the bedrock principles underlying the


Confrontation Clause itself. Indeed, "'the
 

Confrontation Clause is generally satisfied when


the defense is given a full and fair opportunity to


probe and expose . . . infirmities through crossexamination, thereby calling to the attention of


the factfinder the reasons for giving scant weight


to the witness' testimony.'" [People v Gearns, 457
 

Mich 170, 186; 577 NW2d 422 (1998)] quoting
 

Delaware v Fensterer, 474 US 15, 22; 106 S Ct 292;


88 L Ed 2d 15 (1985) (emphasis omitted). 


The trial court's admission of codefendant's
 

inculpatory statement as substantive evidence
 

against defendant without providing defendant any


opportunity to challenge the statement through


cross-examination is not harmless error. Based on
 

the evidence presented at trial, it is more
 

probable than not that a different outcome would


have resulted without the admission of
 

codefendant's statement. 


On appeal, the prosecution asserts that
 

defendant ran from the police officers, but
 

neither the testimony of defendant nor the officers


supports this assertion. Also, the prosecution


contends that defendant tried to drive away.


However, the testimony of the officers actually


indicates that the car was never started and that
 

they were not even sure if defendant attempted to


insert the keys into the ignition. Furthermore,


defendant was alleged to have stolen $71, but, when


apprehended, he had over $500 on his person.


Neither he nor codefendant had a gun, the stolen


pager, the stolen watch, and these items were not


found in the car in which they were traveling. The
 

fact that defendant was found within minutes of the
 

robbery within one mile of the crime scene does not
 

2
 
tend to establish his guilt any more than any other


person who lives in the area and was also at the


gas station at the same time. Finally, the


description the victim gave to the police was


"quite vague" and did not match either the
 

defendant or codefendant. 


Although we acknowledge the victim identified


defendant in a lineup, we do not believe this,


standing alone, clothes the codefendant's statement


with "adequate indicia of reliability." The lineup


was conducted ten days after the robbery and after


the victim had been sedated and medicated in the
 

hospital for five days. The victim identified the
 

defendant as the man who shot him, but defendant


was tried as the accomplice of the shooter. In
 

addition, the victim did not identify the
 

codefendant. 


As we noted People v Spinks, 206 Mich App 488,


493; 522 NW2d 875 (1994), quoting People v Banks,


438 Mich 408, 430; 475 NW2d 769 (1991), if the


"'"minds of an average jury" would have found the


prosecution's case "significantly less persuasive"


had the statement of the [accomplice] been
 

excluded,'" then the error is not harmless.
 

Considering that codefendant's statement is the


only concrete evidence linking defendant to the


crime for which he now stands convicted, we find


that had the statement been properly excluded, the


prosecution's case would have been significantly


less persuasive in "the minds of an average jury".


Accordingly, we find that the trial court abused


its discretion by admitting the statement. [251


Mich App 520, 527-529; 650 NW2d 708 (2002).]
 

For the reasons expressed by the Court of Appeals
 

majority, I would hold the codefendant's statement
 

inadmissible. Accordingly, I would affirm the decision of the
 

Court of Appeals and allow the case to be remanded for a new
 

trial.
 

Marilyn Kelly
 

3