PEOPLE OF MI V JEFFREY ALLEN RURKA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 21, 2004
Plaintiff-Appellee,
v
No. 251315
Kalamazoo Circuit Court
LC No. 02-001916-FC
JEFFREY ALLEN RURKA,
Defendant-Appellant.
Before: Hoekstra, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction by a jury of first-degree murder, MCL
750.316. The trial court sentenced him to life in prison. We affirm.
The instant case arises from allegations that defendant killed Terry DeHollander, the
former roommate of man he blamed for the death by drug overdose of his girlfriend, Lynette
Kocher. At trial, the prosecution argued that defendant and Lynette’s brother Ken Kocher went
to the victim’s apartment intending to kill the roommate. After failing to find the intended target,
defendant stabbed the victim numerous times and Kocher cut the victim’s throat.
Defendant first contends that the trial court erred in admitting the testimony of Kocher’s
girlfriend, Sharon Lang, regarding statements made by Kocher implicating defendant in the
murder. We disagree.
For Kocher’s statement to Lang to be admissible as substantive evidence against
defendant, the statement must be admissible under the Michigan Rules of Evidence and
admission of the statement cannot violate defendant’s rights under the Confrontation Clause.
People v Poole, 444 Mich 151, 157; 506 NW2d 505 (1993). When the admissibility of evidence
involves a preliminary question of law, such as whether a rule of evidence precludes its
admission, we review the issue de novo. People v Washington, 468 Mich 667, 670-671; 664
NW2d 203 (2003). Similarly, whether the admission of a statement violates a defendant’s rights
under the Confrontation Clause presents a question of constitutional law subject to de novo
review. People v Beasley, 239 Mich App 548, 557; 609 NW2d 581 (2000).
Where “the declarant’s inculpation of an accomplice is made in the context of a narrative
of events, at the declarant’s initiative without any prompting or inquiry, that as a whole is clearly
against the declarant’s penal interest and as such is reliable, the whole statement -- including
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portions that inculpate another -- is admissible as substantive evidence at trial pursuant to MRE
804(b)(3).” Poole, supra, 161. In Poole, one of the defendant’s codefendants told his cousin
that he killed someone during a robbery and, in describing the events, implicated the defendant.
Id., 154-156. In determining that the codefendant’s entire statement was admissible against the
defendant, our Supreme Court noted that the statement was a narrative description of the course
of events focusing on the declarant’s own actions and mentioning defendant’s participation only
in the course of that description and that the statement was made of the declarant’s own
initiative, without prompting or encouragement. Id., 157-158.
In the instant case, the trial court allowed Lang to testify that Kocher told her the
following account of the victim’s death.
We went over to Terry’s and Terry said “the bitch [Lynette] got what she
deserved.” Jeff [defendant] started stabbing him and stabbing him and stabbing
him. We were getting ready to leave. I seen that Jeff dropped a cigarette. I
picked it up. I put it in my pocket. I looked over at Terry, and he wasn’t dead.
So I looked at Jeff, and I said the motherfucker ain’t dead yet. I picked him up by
his hair and slit his throat.
Like statements admitted in Poole, Kocher’s statements were made in the context of a
narrative of events, at Kocher’s own initiative without any prompting or inquiry from Lang, and
were clearly against his penal interests. Under Poole, the trial court properly admitted Kocher’s
entire statement, including those portions inculpating defendant. Nevertheless, defendant argues
that Poole should be overturned, based on the subsequent decision of the United States Supreme
Court, in Williamson v United States, 512 US 594; 114 S Ct 2434; 129 L Ed 2d 476, 483 (1994).
In Williamson, the Court held that statements of a codefendant implicating the defendant were
not self-inculpatory and therefore were not admissible under the Federal Rules of Evidence, even
if made within a broader narrative that was generally self-inculpatory. Id., 600-601. But in
Beasley, supra, 551, this Court rejected a similar argument and held that Poole rather than
Williamson controls under Michigan law. Thus, the trial court did not err in admitting the
portions of Kocher’s statement that implicated defendant under MRE 804(b)(3).
Further, the admission of Kocher’s statement implicating defendant did not violate
defendant’s right to confront witnesses.1 As our Supreme Court explained in Poole, supra, 163,
the admission of a statement against penal interest as substantive evidence against defendant
pursuant to MRE 804(b)(3) does not violate the Confrontation Clause if the prosecutor
establishes that the declarant is unavailable as a witness and the statement bears adequate indicia
of reliability. In evaluating whether a statement against penal interest bears sufficient indicia of
reliability to allow it to be admitted as substantive evidence against a defendant, “courts must
evaluate the circumstances surrounding the making of the statement as well as its content.” Id.,
165. Factors weighing in favor of a finding of admissibility include whether the statement was
1
We note, and counsel for defendant conceded during oral arguments, that the holding in
Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), does not apply in
the instant case because the evidence at issue was not testimonial in nature.
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(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. [Id.]
But other factors weigh against a finding of admissibility. These include 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. [Id.]
The lists of factors are not exclusive and the presence or absence of a particular factor is not
decisive. Id. Rather, courts must decide, based on the totality of the circumstances, whether a
particular statement is sufficiently reliable to allow its admission as substantive evidence
although the defendant is unable to cross-examine the declarant. Id.
In the instant case, the trial court found, and defendant concedes, that Kocher made his
statement to Lang voluntarily, that he initiated the conversation without any prompting or
inquiry, and that it was not made to a law enforcement officer. But defendant argues that
because Kocher made the statement five or six days after the victim’s death, it was not made
contemporaneously with the events. Further, defendant alleges that Kocher and Lang had an
unstable relationship and that she was not someone to whom Kocher would likely speak the
truth.
While Kocher made his statement to Lang several days after the victim’s death, this was
before Kocher had any contact with law enforcement officials regarding the murder and before
Lang was aware that he might be involved in the crime. Furthermore, the substance and
circumstances surrounding Kocher’s statement to Lang, including the manner in which the
statement was made and the nature of those portions implicating defendant, are quite similar to
the statements found to be admissible in Poole and Beasley. Based on the totality of the
circumstances, Kocher’s statement bears sufficient indicia of reliability for it to be used as
substantive evidence against defendant. Consequently, we find that the trial court’s admission of
the statement did not infringe upon defendant’s rights under the Confrontation Clause.
Defendant next argues that the trial court erred in admitting autopsy photographs and a
photograph of the victim’s body at the crime scene. We review the decision to admit
photographic evidence for abuse of discretion. People v Flowers, 222 Mich App 732, 736; 565
NW2d 12 (1997).
Evidence that has “any tendency” to make a fact at issue more or less probable is
relevant. People v Mills, 450 Mich 61, 66-67; 537 NW2d 909 (1995), mod, remanded 450 Mich
1212 (1995), emphasis in original. Although generally admissible under MRE 402, relevant
evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative
value. Id., 75; MRE 403. Courts should exclude photographs under MRE 403 if they may lead
the jury to abdicate its truth-finding function and convict due to passion. People v Coddington,
188 Mich App 584, 598; 470 NW2d 478 (1991). But “[g]ruesomeness alone need not cause
exclusion.” Mills, supra, 76.
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In admitting the photographs and videotape in the instant case, the trial court found that
they were relevant to establish intent. Furthermore, it observed that, although graphic, the
photographs were not shocking to ordinary sensibilities of people who have lived an adult life.”
On appeal, defendant merely contends that, because the pictures were gory, their admission
prejudiced his case. But under Mills, this does not constitute sufficient reason for excluding
relevant photographic evidence. Defendant has failed to meet the “heavy burden” of showing
that the challenged evidence should have been excluded as unfairly prejudicial. People v
Houston, 261 Mich App 463, 467-468; 683 NW2d 192 (2004). Consequently, we find that the
trial court did not abuse its discretion by allowing the prosecution to present the photographs to
the jury.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
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