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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED January 10, 1997

No. 197676 Wayne County LC No. 93 003172 ON REMAND

HARLAN INGLE, Defendant-Appellant.

Before: Corrigan, P.J., and Hoekstra and MacKenzie. PER CURIAM. After this Court affirmed defendant's conviction in People v Ingle, unpublished opinion per curiam of the Court of Appeals, issued October 24, 1995 (Docket No. 167130), the Supreme Court remanded the case for reconsideration in light of People v Barrera and People v Musall, 451 Mich 261; 547 NW2d 280 (1996). Consistent with our initial disposition, we affirm. This case involves the armed robbery of a party store and the trial court's refusal to admit the statement of defendant's accomplice. Under Barrera, our Supreme Court recognized that four subissues arise in evaluating a trial court's decision to exclude a statement against penal interest offered under MRE 804(b)(3) to exculpate a defendant. Those subissues are: (1) whether the declarant was unavailable, (2) whether the statement was against the declarant's 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. The declarant-accomplice, Mark Johnson, was not available to testify at defendant's trial.1 Before the trial, Johnson had made this statement to a police officer: "[The robbery] wasn't planned. I just did it. I made [defendant] do it, I put a gun to his head and told him that if he didn't [do it] that I'd kill him."

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The Barrera Court concluded that a statement tended to subject the declarant to criminal liability if "the statement would be probative of an element of a crime in a trial against the declarant," and "a reasonable person in the declarant's position would have realized the statement's incriminating element." Id. at 272. Johnson's statement would be probative at his trial. Also, a reasonable person in Johnson's position would have understood that the statement incriminated him. Under Barrera, the standard of review of the facts surrounding the statement's trustworthiness is a clearly erroneous standard.2 The Barrera Court stated that, because the declarant's credibility affects the statement's trustworthiness, a court may exclude a statement when the declarant's veracity is "seriously doubtful or entirely lacking." Id. at 272-273. The Court held that the trial court also should consider: (1) the statement's contents, (2) the surrounding circumstances when the declarant made the statement, and (3) all other relevant facts. Id. at 275-276. When the declarant made the statement to authorities while the declarant was in custody, the court should consider: (1) the relationship between the declarant and the defendant, (2) whether the declarant made the statement after being given Miranda rights, and (3) whether evidence exists that the statement was made to curry favor with the authorities. Id. at 275. The relationship between Johnson and defendant does not appear to be one that would motivate Johnson to "take the rap" for defendant; Johnson made the statement after he was given Miranda rights; and no evidence suggests that Johnson made the statement to curry favor with the police or to reach a deal with the prosecutor. See id. at 289-290. The Court then discussed the extent of corroboration required and added, "if the only corroborating circumstance was the individual defendant's statement, standing alone, we might have a different situation." Id. at 278. The Barrera Court cited United States v Rodriguez, 706 F2d 31 (CA 2, 1983), in this context. When interpreting the federal rule of evidence, the Rodriguez Court held that the statement at issue did not meet the corroboration requirement because only the appellant's own assertions corroborated the hearsay. Id. at 40. The Court observed that the corroboration requirement was designed to "circumvent[] fabrication." Exculpatory statements are viewed as "more suspect" than other varieties of statements against interest. Id. The Court cited the House Judiciary Committee's statement that "simple corroboration was . . . deemed ineffective to accomplish [the purpose of ensuring trustworthiness] since the accused's own testimony might suffice while not necessarily increasing the reliability of the hearsay statement." Id. (citation omitted). Accordingly, the Rodriguez Court required more reliable corroboration than the appellant's own statements. Id. In his brief on appeal, defendant conceded that his own testimony was the only corroboration of Johnson's statement on the crucial issue: "[o]ther than the accomplice's confession, [defendant's] testimony was the only evidence supporting the duress defense." Nonetheless, defendant strenuously argues that the eyewitnesses' accounts corroborated Johnson's version of the robbery. Defendant offers these facts as corroboration, as both Johnson and the eyewitnesses agreed on them: (1) that Johnson and defendant were in the store together, (2) that Johnson had a gun, (3) that the robbery -2

victim was called "Jim," and (4) that defendant did not appear to be armed. These facts, however, do not corroborate Johnson's statement that he forced defendant to participate. The only evidence that actually corroborated Johnson's exculpatory statement was defendant's own account of the robbery. Defendant glosses over those facts that contradict his assertion that he acted under duress

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