OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Gilliam, Appellant.
[Cite as State v. Gilliam (1994), Ohio St.3d .]
Criminal procedure -- Evidence -- Admission of co-defendant's
taped statement after co-defendant becomes unavailable
does not violate Sixth Amendment right to confront adverse
witnesses, when.
(No. 93-531 -- Submitted April 20, 1994 -- Decided August
3, 1994.)
Appeal from the Court of Appeals for Lorain County, No.
92CA005331.
On August 26, 1991, defendant-appellant, Edward Gilliam,
made a statement to the police. Detective Mike Medders of the
Elyria Police Department testified that Gilliam admitted that
on August 21, he rode to Rite Nau Beverage in Elyria with
William Moore and Bruce Treadwell. Appellant went inside and
ordered a bottle of wine from the employee on duty, who was
identified later as Joseph Pleban. Pleban told appellant that
the total came to $2.01. Appellant handed Pleban $2.00, and
while appellant was digging in his pockets for a penny,
Treadwell appeared with a shotgun and demanded money.
Pleban testified the man who had ordered the wine did not
appear surprised when Treadwell appeared with the shotgun.
Pleban explained that he followed Treadwell's orders, and went
to the cooler to get the money bag. As Pleban walked to the
cooler, Treadwell said, "Don't try anything funny, I'll put a
hole in your back." Treadwell took the money from the cash
register and the money bag, and closed Pleban in the cooler.
Pleban watched through the glass windows on the side of the
cooler. He could no longer see appellant, but he could see
Treadwell stuffing money into his pants. As Treadwell left,
Pleban noticed that he could no longer see the shotgun.
Appellant stated to police that he and Treadwell left
together and met Moore back at the car. A witness, Vicki
Glover, testified that she had seen two black males laughing
and running from the direction of Rite Nau. The men ran to a
parked car four houses down from Rite Nau, in which car a third
man (whom she identified as Moore) was waiting. The car was
parked in front of the witness' house and she was in her front
yard approximately ten feet away from the vehicle. The
four-door vehicle was gray in color. One man got into the
front seat. The other man got in behind the driver, but had
trouble getting in, "like he had a stiff leg or something."
The witness heard Moore ask the men either, "What did you get?"
or, "How much did you get?"
When questioned by the Elyria police, Moore admitted that
he had driven appellant and Treadwell to Rite Nau to "check it
out." Moore admitted that he assumed this meant they were
"gonna rob the place." In his taped confession, Moore also
admitted that he had seen a shotgun before the robbery, which
he believed Treadwell had brought, but Moore thought was owned
by appellant. Moore stated that appellant and Treadwell went
inside while Moore waited with the car. Gilliam and Treadwell
returned to the car together, with money in a bag, and told
Moore that they had gotten some money. Both men got into the
car; appellant got into the front seat. Moore then drove them
to Treadwell's house. Treadwell carried the shotgun inside and
appellant went home.
Appellant was tried before the court, separately from
Moore and Treadwell. The state called Moore to the witness
stand, but he exercised his Fifth Amendment privilege and
refused to testify. Consequently, the state offered Moore's
taped confession into evidence over appellant's objection. The
state also introduced appellant's taped statement into
evidence. Based on these tapes and other evidence, the trial
court convicted appellant of aggravated robbery with both a
firearm and a prior crime of violence specification. The court
of appeals affirmed.
The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.
Gregory A. White, Lorain County Prosecuting Attorney, and
Robert F. Corts, Assistant Prosecuting Attorney, for appellee.
Joel D. Fritz, for appellant.
Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John
S. Pyle, urging reversal for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
Francis E. Sweeney, Sr., J. The sole issue before this
court is whether the admission of a co-defendant's taped
statement after the co-defendant becomes unavailable violated
appellant's Sixth Amendment right to confront adverse
witnesses. For the following reasons, we find that admission
of the statement did not violate the Confrontation Clause.
Accordingly, we affirm the judgment of the court of appeals.
The Confrontation Clause and the hearsay rules stem from
the same roots and generally protect the same values; however,
the prohibitions of the Confrontation Clause cannot be equated
with the general rule prohibiting the admission of hearsay
statements. White v. Illinois (1992), 502 U.S. , , 116
L.Ed.2d 848, 857,
112 S.Ct. 736, 741.
The Confrontation Clause is a constitutional safeguard
that ensures a defendant will not be convicted based on the
charges of unseen, unknown, and unchallengeable witnesses. Lee
v. Illinois (1986), 476 U.S. 530, 540,
106 S.Ct. 2056, 2062,
90
L.Ed.2d 514, 525. Thus, the Confrontation Clause bars the
admission of some evidence that would otherwise be admissible
under a hearsay exception. Idaho v. Wright (1990),
497 U.S.
805, 814,
110 S.Ct. 3139, 3146,
111 L.Ed.2d 638, 651. When a
hearsay declarant is not present for cross- examination at
trial, the Confrontation Clause requires a showing that he is
unavailable and that the statement bears adequate "indicia of
reliability." Ohio v. Roberts (1980),
448 U.S. 56, 66,
100
S.Ct. 2531, 2539,
65 L.Ed.2d 597, 607-608. The reliability
standard can be satisfied without more in a case where the
evidence falls within a firmly rooted hearsay exception.
Id.
at 66,
100 S.Ct. at 2539,
65 L.Ed.2d at 608. Otherwise, to
satisfy the Confrontation Clause the evidence must be supported
by a showing of "particularized guarantees of trustworthiness."
Id.
In the present case, we initially find that Moore's
statement falls within an established hearsay exception as a
statement against interest, Evid.R. 804(B)(3). The state
called Moore to testify in its case-in-chief, but Moore
asserted his Fifth Amendment right against self-incrimination
and refused to testify. By doing so, Moore became
"unavailable" for purposes of the unavailability requirement of
Evid.R. 804. State v. Landrum (1990), 53 Ohio St.3d 107, 113,
559 N.E.2d 710, 719.
Pursuant to Evid.R. 804(B)(3), a statement may be admitted
as an exception to the hearsay rule if the declarant is
unavailable and it is a "statement against interest." To
qualify as a statement against interest, it must be shown that
the statement "tended to subject" the declarant to criminal
liability so that a reasonable person in the declarant's
position would not have made the statement unless the declarant
believed it to be true. United States v. Garcia (C.A.7, 1990),
897 F.2d 1413, 1420.
Clearly, in the present case Moore's statement tended to
subject the declarant, Moore, to criminal liability. Moore
admitted he had driven appellant and Treadwell to Rite Nau "to
check it out." Moore admitted that he assumed this meant they
were "gonna rob the place." Moore further admitted that he had
seen a shotgun before the robbery, which he believed Treadwell
had brought but Moore thought was owned by appellant. Moore
stated further that appellant and Treadwell returned to the car
together, with money in a bag, and that Moore drove them away
from Rite Nau. This statement exposes Moore to criminal
liability and, thus, is a "statement against interest" as
provided by Evid.R. 804(B)(3).
Finally, Evid.R. 804(B)(3) requires that corroborating
circumstances clearly indicate the trustworthiness of the
statement before the statement against interest becomes
admissible. The determination of whether sufficient
corroborating circumstances exist generally rests within the
sound discretion of the trial court. State v. Landrum, supra,
53 Ohio St.3d at 114,
559 N.E.2d at 720. In the present case,
there are sufficient corroborating circumstances which indicate
that the statement is trustworthy. The declarant, Moore, gave
a statement to Detective Medders while Moore was in custody.
Moore was read his Miranda rights and stated that he understood
his rights and indicated his willingness to voluntarily make a
statement. Prior to making the statement, Moore was advised
that the statement was in regard to the robbery at Rite Nau.
The evidence shows no discussion of any promises or offers in
exchange for the statement. Furthermore, the content of
Moore's statement was corroborated by other witnesses'
testimonies.
Based on all the surrounding circumstances, we find that
the trial court did not abuse its discretion in determining
that Moore's statement was trustworthy. Accordingly, we
conclude that the statement met the requirements of a statement
against interest under Evid.R. 804(B)(3) and, therefore, did
not violate the Confrontation Clause as the evidence was
admissible pursuant to a firmly rooted exception to the hearsay
rule.
In addition, we also find that Moore's statement did not
violate the Confrontation Clause, since it is supported by
"particularized guarantees of trustworthiness." See Ohio v.
Roberts, supra, 448 U.S. at 66,
100 S.Ct. at 2539,
65 L.Ed.2d
at 608. The guarantees of trustworthiness must be shown from
the totality of the circumstances. Idaho v. Wright, supra,
497
U.S. at 819,
110 S.Ct. at 3148,
111 L.Ed.2d at 655. As the
lower court concluded, the reliability of Moore's confession
was not as inherently suspect as the typical co-defendant's
confession referred to in the United States Supreme Court case,
Lee v. Illinois, supra,
476 U.S. at 541,
106 S.Ct. at 2062,
90
L.Ed.2d at 526. Moore's statement did not attempt to exonerate
Moore and shift the blame to another co-defendant. As
previously discussed, Moore admitted that he drove Treadwell
and appellant to Rite Nau; that he knew these two men planned
to "rob the place" and that they had a shotgun; and that he
waited outside to drive the men away after they left Rite Nau.
Other witnesses at trial corroborated Moore's statement. Thus,
the content of the statement is "particularly worthy of
belief," as the declarant incriminated himself by making the
statement. See Idaho v.
Wright, supra, at 819,
110 S.Ct. at
3148,
111 L.Ed.2d at 665. In addition, Moore gave the
statement to police after having been fully advised of both his
rights and the reason for the questioning. The evidence shows
no discussion of any promise or consideration in exchange for
the statement. Thus, the circumstances surrounding the making
of the statement tend to demonstrate its trustworthiness.
Considering the totality of the circumstances discussed
above, we conclude that the trial court did not abuse its
discretion in concluding that the evidence was supported by
"particularized guarantees of trustworthiness" such that its
admission did not violate the Confrontation Clause of the Sixth
Amendment to the United States Constitution.
Accordingly, we affirm the judgment of the court of
appeals.
Judgment affirmed.
Moyer, C.J., Douglas, Resnick and Pfeifer, JJ., concur.
A.W. Sweeney and Wright, JJ., dissent.
Wright, J., dissenting. I respectfully dissent.
The majority correctly recognizes that the Confrontation
Clause bars the admission of some evidence that would otherwise
be admissible as a hearsay exception. The majority also
correctly states the Roberts test that the declarant must be
available for cross-examination and the declarant's statement
must bear adequate "indicia of reliability." Finally, the
majority correctly states that the reliability standard can be
satisfied where the evidence falls within a firmly rooted
hearsay exception or is supported by a showing of
"particularized guarantees of trustworthiness." Unfortunately,
after stating the law correctly to this point in its analysis,
the majority misunderstands what constitutes a firmly rooted
hearsay exception and a showing of particularized guarantees of
trustworthiness.
The majority finds that the Roberts reliability standard
is met in both ways: Moore's statement falls under an
established hearsay exception as a statement against interest
pursuant to Evid. R. 804(B)(3) and the statement is supported
by particularized guarantees of trustworthiness. The majority
finds the statement is an established hearsay exception as a
statement against interest because Moore's statement "tended to
subject the declarant, Moore, to criminal liability." What the
majority ignores, but the court of appeals recognized, is that
the United States Supreme Court has specifically rejected
justifying the admission of co-defendants' statements on this
basis. The court stated:
"We reject respondent's categorization of the hearsay
involved in this case as a simple 'declaration against penal
interest.' That concept defines too large a class for
meaningful Confrontation Clause analysis. We decide this case
as involving a confession by an accomplice which incriminates a
criminal defendant." Lee v. Illinois (1986), 476 U.S. 530,
544,
106 S.Ct. 2056, 2064,
90 L.Ed.2d 514, 528, fn.5.
Since Moore's statement cannot be admitted against Gilliam
as a firmly rooted hearsay exception, it must be supported by a
showing of particularized guarantees of trustworthiness to be
admissible. The majority makes two errors in concluding
Moore's statement meets this test. First, the majority looks
beyond the circumstances surrounding the making of the
statement to other evidence admitted at trial. Second, the
majority concludes that Moore's statement is reliable, since
Moore implicated himself in criminal activity. Again, the
United States Supreme Court has specifically rejected both
aspects of the majority's approach.
Ironically, the majority cites the very page of the
opinion in Idaho v. Wright (1990), 497 U.S. 805,
110 S.Ct.
3139,
111 L.Ed.2d 638, which repudiates its position. The
United States Supreme Court noted that the state of Idaho
argued that "a finding of 'particularized guarantees of
trustworthiness' should instead be based on the consideration
of the totality of the circumstances including not only the
circumstances surrounding the making of the statement, but also
other evidence at trial that corroborates the truth of the
statement. We agree that 'particularized guarantees of
trustworthiness' must be shown from the totality of the
circumstances, but we think the relevant circumstances include
only those that surround the making of the statement and that
render the declarant particularly worthy of belief." (Emphasis
added.)
Id. at 819,
110 S.Ct. at 3148,
111 L.Ed.2d at
654-655.
The court further stated that "[i]n other words, if the
declarant's truthfulness is so clear from the surrounding
circumstances that the test of cross-examination would be of
marginal utility, then the hearsay rule does not bar admission
of the statement at trial." The court gave the "excited
utterance" and "dying declaration" hearsay exceptions as
examples where "the circumstances surrounding the making of the
statement provides sufficient assurance that the statement is
trustworthy and that cross-examination would be superfluous."
Id. at 820,
110 S.Ct. at 3149,
111 L.Ed.2d at 655. Thus, the
majority impermissibly looked to other evidence beyond the
circumstances surrounding the making of Moore's statement to
justify its conclusion that Moore's statement was reliable.
The majority also incorrectly concludes that the fact
Moore implicated himself in criminal activity makes his
statement reliable. To justify this conclusion, the majority
states that "the reliability of Moore's confession was not as
inherently suspect as the typical co-defendant's confession
referred to in the United States Supreme Court case, Lee v.
Illinois …. Moore's statement did not attempt to exonerate
Moore and shift the blame to another co-defendant." (Citation
omitted.)
Again, the majority gives the impression that Supreme
Court precedent justifies its position. However, the majority
does not discuss the facts of Lee v. Illinois (1986), 476 U.S.
530,
106 S.Ct. 2056,
90 L.Ed.2d 514. Those facts make it
apparent that Lee is not distinguishable from the present
case. The co-defendant in Lee did not try to "exonerate"
himself or "shift" the blame to the other co-defendant. What
he did was make a statement which inculpated both defendants.
Co-defendants Lee and Thomas were charged with murder. Lee
gave a statement to the police indicating the murders occurred
without premeditation. Thomas gave a statement to the police
indicating that he and Lee had discussed the murders in
advance. Despite the fact Thomas inculpated himself in the
murder, the Supreme Court ruled that Thomas's statement could
not be admitted against Lee because to do so violated the
Confrontation Clause of the Sixth Amendment.
The majority's conclusion that Moore did not attempt to
exonerate himself or shift blame to the other co-defendants
also is not supported by the statement itself. What were the
circumstances surrounding the making of Moore's statement?
Moore's vehicle was identified by a witness as the vehicle
involved in the robbery. The police took Moore into custody to
interrogate him. Listening to Moore's statement it is apparent
he was trying to minimize his involvement and maximize the
involvement of Gilliam and Treadwell. Moore initially claimed
that he just gave Gilliam and Treadwell a ride but did not know
what they planned to do. Moore said they merely told him they
wanted to "check something out." Moore continued to deny any
prior knowledge about the robbery. Finally under persistent
questioning by police, Moore stated he "guessed" you could say
that he knew they were going to the Rite Nau to rob it.
Neither the circumstances surrounding the making of
Moore's statement nor the statement itself overcomes the
presumption of unreliability accorded to a co-defendant's
statements. As the Supreme Court has said, "[o]ur cases
recognize that this truthfinding function of the Confrontation
Clause is uniquely threatened when an accomplice's confession
is sought to be introduced against a criminal defendant without
the benefit of cross-examination. As has been noted, such a
confession 'is hearsay, subject to all the dangers of
inaccuracy which characterize hearsay generally. … More
than this, however, the arrest statements of a co-defendant
have traditionally been viewed with special suspicion. Due to
his strong motivation to implicate the defendant and to
exonerate himself, a codefendant's statements about what the
defendant said or did are less credible than ordinary hearsay
evidence.' …
"…
"… The true danger inherent in this type of hearsay is,
in fact, its selective reliability. As we have consistently
recognized, a codefendant's confession is presumptively
unreliable as to the passages detailing the defendant's conduct
or culpability because those passages may well be the product
of the codefendant's desire to shift or spread blame, curry
favor, avenge himself, or divert attention to another." Lee v.
Illinois, at 541, 545, 106 S.Ct. at 2062, 2064,
90 L.Ed.2d at
526, 529.
The admission of Moore's statement into evidence against
Gilliam violated Gilliam's Sixth Amendment right to confront
witnesses. For that reason, I would reverse the court of
appeals.
A.W. Sweeney, J., concurs in the foregoing dissenting
opinion.
