PEOPLE OF MI V ROY E NANCE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 23, 2002
Plaintiff-Appellee,
v
No. 227349
Wayne Circuit Court
LC No. 99-003797
ROY E. NANCE,
Defendant-Appellant.
Before: Jansen, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Defendant appeals by right from his conviction following a bench trial of voluntary
manslaughter, MCL 750.321. The trial court sentenced him as a second-offense habitual
offender, MCL 769.10, to 7 to 22 ½ years’ imprisonment. We affirm.
Defendant first argues that he was denied his constitutional right to confront witnesses
when the trial court admitted the prior testimony of an unavailable witness. We disagree. A
challenge to the admission of hearsay evidence based on the deprivation of the right to
confrontation is subject to de novo review. People v Smith, 243 Mich App 657, 681-682; 625
NW2d 26 (2000), remanded on other grounds 465 Mich 928 (2001).
If a witness is unavailable,1 testimony given by that person at an earlier hearing is not
excluded by the hearsay rule if the party against whom the testimony is offered had an
opportunity and a similar motive to develop the testimony through cross-examination. MRE
804(b)(1); People v Meredith, 459 Mich 62, 66-67; 586 NW2d 538 (1999). Here, the
unavailable witness, Timothy Seneca, was cross-examined by defendant’s counsel, as well as by
the codefendant’s counsel, at the preliminary examination. Because defendant had an
opportunity and similar motive to develop the testimony at the preliminary examination, the
Michigan Rules of Evidence allowed the introduction of Seneca’s preliminary examination
testimony. MRE 804(b)(1); Meredith, supra at 67.
1
Defendant does not challenge on appeal the lower court’s finding that the prosecutor showed
due diligence in its search for the missing witness. In fact, at trial, defense counsel agreed that
the prosecution met the standard of due diligence and stated the following: “I at this juncture
feel that due diligence has been put forth. I consent on behalf of Mr. Nance.”
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However, hearsay that is admissible under the Michigan Rules of Evidence can still be
inadmissible if it deprives the defendant of his constitutional right to confront the witnesses
against him. Meredith, supra at 67. To be constitutionally admissible, hearsay testimony must
bear adequate indicia of reliability. Id. at 68. Such reliability is established “without more”
when the proposed evidence is within a firmly rooted exception to the hearsay rule. Id. at 69. In
Meredith, the Michigan Supreme Court noted that MRE 804(b)(1), the hearsay exception based
on an unavailable witness' former testimony, is deeply imbedded in American jurisprudence and,
as such, is a firmly rooted exception to the hearsay rule. Id. at 70-71. Thus, the Court held that
evidence admitted under the exception does not deprive a defendant of his right to confrontation.
Id. Applying the identical principles in this case, because Seneca’s testimony falls within MRE
804(b)(1), a firmly rooted exception to the hearsay rule, the trial court properly included Seneca's
preliminary examination testimony at trial. Id.
Next, defendant argues that certain statements contained in Seneca’s prior testimony
about what the codefendant, Brian Carlton, allegedly said to Seneca2 are inadmissible hearsay.
We disagree. To preserve an evidentiary issue for review, a party opposing the admission of
evidence must object at trial and specify the same ground for objection that he asserts on appeal.
People v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999). The instant argument is not
preserved because, although defendant objected at trial to the admission of the prior testimony
that included the statement containing the alleged multiple hearsay, defendant did not object
specifically on the basis of inadmissible multiple hearsay. We review unpreserved issues under
the plain error rule. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Reversal
is unwarranted unless a clear or obvious error occurred that likely affected the outcome of the
proceedings. Id. at 763.
Hearsay within hearsay cannot be admitted unless each of the statements satisfies a viable
exception to the rule against hearsay. People v Hawkins, 114 Mich App 714, 719; 319 NW2d
644 (1982). Defendant claims that the first level of hearsay was Seneca’s preliminary
examination testimony and the second level of hearsay was Carlton’s statement to Seneca. As
discussed above, Seneca’s preliminary examination testimony was admissible under MRE
804(b)(1). Therefore, the first level of the alleged double hearsay was satisfied and admissible.
With regard to the second level of the alleged double hearsay, MRE 804(b)(3) is
dispositive. This rule states that if a declarant is unavailable, his out-of-court statement against
his penal interest may avoid the hearsay rule if certain thresholds are met. In People v Barrera,
451 Mich 261, 268-269; 547 NW2d 280 (1996), our Supreme Court held that the determination
whether a hearsay statement is admissible as a statement against the declarant's penal interest
under MRE 804(b)(3) involves four sub-issues, namely:
(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.
2
According to Seneca, Carlton told Seneca that he and defendant had just physically beaten
someone.
-2-
To determine whether the "corroborating circumstances clearly indicate the
trustworthiness of the statement” under MRE 804(b)(3), the following list of factors favor
admission of 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 listener. [Barrera, supra at 274, quoting People v
Poole, 444 Mich 151, 165; 506 NW2d 505 (1993).]
The following factors disfavor a finding of admissibility: whether the statement (1) was made to
police or at the prompting of the listener, (2) minimizes the role of the declarant or shifts blame
to an accomplice, (3) was made to avenge the declarant or to curry favor, and (4) whether the
declarant had a motive to lie. Id. at 274-275.
In the instant case, whether the declarant was unavailable need not be addressed because
this issue is not contested. Second, a review of the record shows that Carlton’s statement to
Seneca was against his penal interest. Carlton voluntarily told Seneca that he and defendant had
just finished beating up someone and asked Seneca for a rag to wipe off a bloody wrench he was
carrying. Carlton made the statement almost immediately after the crime, because Carlton
walked directly up to Seneca and told him he was just coming from the beating and that he
needed to wipe off and then get rid of his weapon, the bloody wrench. Carlton would likely
speak the truth to Seneca because they were friends, and Carlton was seeking Seneca’s assistance
in cleaning and disposing of his weapon. Seneca did not prompt Carlton to make the statement.
Carlton told Seneca on his own, because he needed Seneca’s help to get rid of the weapon. The
statement was not made to police officers, and Carlton did not minimize his role in the crime;
rather, he stated that both he and defendant had beaten the victim. Id. at 275. Additionally,
nothing points to Carlton having any vengeful motivations or a motive to lie to Seneca. Id.
Under these circumstances, the statement bore sufficient indicia of reliability to be admissible
and to satisfy the Confrontation Clause. See People v Schutte, 240 Mich App 713, 717-720; 613
NW2d 370 (2000). No clear or obvious error occurred with regard to the second level of the
alleged double hearsay.
Finally, defendant argues that the trial court erred by admitting defendant’s statement to
police into evidence because he was intoxicated when he waived his rights and gave the
statement. He seeks a remand to the trial court so that a hearing on this issue may take place.
However, this Court has already denied defendant’s request for a remand, and we decline to
revisit that decision. Moreover, the totality of the circumstances surrounding defendant’s
statements to police do not show that defendant was intoxicated to such an advanced stage that
would affect the voluntariness of his statement or the validity of his waiver of rights. See
generally People v Leighty, 161 Mich App 565, 571; 411 NW2d 778 (1987) (some level of
intoxication not dispositive of the issue of voluntariness).
-3-
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Patrick M. Meter
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