People v. Barrera

547 N.W.2d 280, 451 Mich. 261

• Court: Michigan Supreme Court
• Decided: May 7, 1996
• Docket: Docket Nos. 98663, 98683, Calendar Nos. 2-3
• Status: Published

Opinions

Cavanagh, J.

The issue presented in this consolidated appeal is whether the trial court erroneously excluded a statement by a codefendant that was offered by the instant defendants as exculpatory evidence. We hold that the trial court erred and that the error was not harmless. We reverse the Court of Appeals, vacate the convictions, and remand for new trials.

i

Codefendants Mark Barrera, Fred Johnson, and Patrick (Mike) Musall were prosecuted in a consolidated trial before three separate juries for the murder of Deborah Haynes.¹ Another defendant, Matthew Copeland, was tried in a separate trial. The undisputed facts were that the victim was stabbed to death during the night of October 27, 1988, or in the early morning hours of October 28, 1988, in Balduck Park in Detroit. The victim was a part-time prostitute. The next morning, a passerby discovered the mostly nude body of the victim and the police were notified. The police discovered several items of clothing strewn about the area. An autopsy revealed that the victim had died of multiple stab wounds.

At first, the police investigation focused on the victim’s live-in boyfriend who was also her pimp. Within a week, the investigation turned to the four defendants. During the course of the night of November 3, 1988, and into the early morning hours of November 4, 1988, all four defendants gave written state-merits to the police. They revealed that they had been driving around in Barrera’s car on October 27, 1988, and had picked up the victim. The four stated that they negotiated with her for sex. They proceeded to the park. All four further stated that Copeland did have oral sex with her and each defendant identified Copeland as the sole stabber. There were several additional facts that were in dispute, which will be discussed later in this opinion.

Each defendant’s statement was used by the prosecution against him in the respective prosecutions.² Barrera, Musall, and Johnson called Copeland to testify at the consolidated trial. After Copeland asserted his Fifth Amendment right not to • testify, Barrera, Musall, and Johnson each sought to use Copeland’s statement for exculpatory purposes under MRE 804(b)(3).

Copeland alleged in his statement that the victim also had oral sex with Musall. Copeland admitted that he was acting under the influence of mescaline and alcohol, and that he began to believe that the victim was “Spooner,” his former girlfriend. He stated that he had previously caught his girlfriend having sex with someone else and that he had threatened to kill her if he caught her again. Copeland stated that while watching the victim and Musall having oral sex, he told the victim that he was going to kill her, and then he pulled a knife out of his sleeve and stabbed her.

The trial court refused to allow admission of Copeland’s statement because it found that the statement was not against Copeland’s penal interest and that there was insufficient corroborating evidence of Copeland’s statement. Barrera and Musall were convicted of first-degree felony murder by their respective juries and were sentenced accordingly to mandatory life in prison without parole. Johnson was acquitted by his jury. In a subsequent trial, Copeland was convicted by a jury of first-degree premeditated murder and was sentenced to mandatory life without parole.

The Court of Appeals affirmed the convictions of Barrera and Musall.³ We granted leave to appeal limited to the issue whether the trial court abused its discretion in denying the request of the two defendants to admit Copeland’s confession. 448 Mich 868 (1995).

n

At issue is the admissibility of Copeland’s out-of-court statement, which Barrera and Musall proffered to prove the truth it asserted: that Copeland spontaneously acted alone in stabbing the victim. The defendants maintain that this hearsay statement falls within MRE 804(b)(3), the statement against penal interest exception to the hearsay rule.⁴ They additionally argue that exclusion of this evidence violated their federal due process right to present witnesses in their defense. Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973); Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).

MRE 804(b) provides that if a declarant is unavailable, as defined in MRE 804(a), his out-of-court statement against interest may avoid the hearsay rule if certain thresholds are met:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, 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.

We have previously considered MRE 804(b)(3) from the reverse position: where the prosecution seeks to use a statement against penal interest to inculpate a defendant. People v Poole, 444 Mich 151; 506 NW2d 505 (1993); People v Watkins, 438 Mich 627; 475 NW2d 727 (1991). Although many of the separate opinions in Poole and Watkins speculated about the requirements for use of a statement against penal interest to exculpate the defendant, we are now required to address the relevant issues.

MRE 804(b)(3) is modeled after its Federal Evidentiary Rule 804(b)(3).⁵ Accordingly, we can look to federal precedent for guidance. Poole, 444 Mich 160-162.

in

A. STANDARD OF REVIEW

We must first determine the appropriate standard of review for evaluating a trial court’s decision to exclude a statement against penal interest offered under MRE 804(b)(3) to exculpate a defendant. Although many federal courts have tersely stated that the standard of review is abuse of discretion,⁶ we find that there are four subissues that may be presented on review: (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.

In the instant cases, we need not address the standard of review of a trial court’s determination whether the declarant was unavailable at trial, because the prosecutor concedes that Copeland, who invoked his right not to testify, was unavailable. We find that the determination whether a “statement was against the declarant’s penal interest presented ¿ question of law.” United States v Bagley, 537 F2d 162, 165-166 (CA 5, 1976). Therefore, appellate review is de novo. See United States v Arthur, 949 F2d 211, 216 (CA 6, 1991) (no deference to the trial court’s determination).

We further find that the determination whether a reasonable person in the declarant’s shoes would have believed the statement to be true and the determination whether circumstances sufficiently indicated the trustworthiness of the statement depend in part on the trial court’s findings of fact and in part on its application of the legal standard to those facts. Bagley, 537 F2d 166. Accordingly, like many federal courts, we will use a clearly erroneous standard in reviewing the trial court’s findings of fact and an abuse of discretion standard in reviewing the trial court’s decision to exclude the evidence.⁷

In exercising its discretion, the trial court must conscientiously consider the relationship between MRE 804(b)(3) and a defendant’s constitutional due procesá right to present exculpatory evidence. See United States v Barrett, 539 F2d 244, 253 (CA 1, 1976). Likewise, appellate review necessarily requires a review of the importance of the statement to the defendant’s theory of defense in determining whether the trial court abused its discretion by excluding the evidence.

B. AGAINST PENAL INTEREST

The next issue is the extent to which the declarant’s statement must be against his penal interests, as defined by MRE 804(b)(3). That rule requires that the “statement ... at the time of its making ... so far tended to subject the declarant to . . . criminal liability, .. . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” (Emphasis added.)⁸ After reviewing federal cases that have applied the actual language enacted by Congress, we believe that the phrase “tended to subject” includes a broad scope of inculpatory statements. See, e.g., United States v Satterfield, 572 F2d 687, 691 (CA 9, 1978) (in enacting FRE 804[b][3], Congress rejected a restrictive approach by choosing the phrase “tended to subject”).

Federal case law has developed some general parameters that can guide our determination when a statement sufficiently “tended to subject” the declarant to criminal liability. First, the mere fact that the declarant invoked his Fifth Amendment right not to testify does not make the statement against penal interest. United States v Thomas, 62 F3d 1332, 1338 (CA 11, 1995). On the other hand, statements against penal interest are not limited to direct confessions. United States v Slaughter, 891 F2d 691, 698 (CA 9, 1989); Barrett, 539 F2d 251 (it is sufficient if the statement would be “important evidence” against the declarant). Moreover, it is well established that a particular piece of evidence need not by itself prove the declarant guilty. The proffered statement need only be “a brick in the wall” of proving the declarant’s guilt. MRE 804(b)(3), like its federal counterpart, “encompasses disserving statements by a declarant that would have probative value in a trial against the declarant.” United States v Thomas, 571 F2d 285, 288 (CA 5, 1978).⁹ By the same token, the statement would be against the declarant’s penal interest if it intensified his culpability, such as by shifting criminal liability away from the accused and toward the declarant. United States v Lopez, 777 F2d 543, 554 (CA 10, 1985). Furthermore, the statement need not have been incriminating on its face, as long as it was self-incriminating when viewed in context. Williamson v United States, 512 US 594,_; 114 S Ct 2431, 2436-2437; 129 L Ed 2d 476 (1994).

However, in order to be probative of the declarant’s guilt, the statement must be against the declarant’s interest in “a real and tangible way.” Arthur, 949 F2d 216. It must actually assert the declarant’s own culpability to some degree — -it cannot be a statement merely exculpating the accused. United States v Oropeza, 564 F2d 316, 325 (CA 9, 1977).

Furthermore, as required by MRE 804(b)(3), a reasonable person in the declarant’s shoes must have realized that the statement could implicate the declarant in a crime. Williamson, 114 S Ct 2437. This flows from the underlying rationale of the exception: the statement’s reliability flows from the postulate that a reasonable person will not incriminate himself by admitting a damaging fact unless he believes that fact to be true. See 4 Weinstein & Berger, Evidence, ¶ 804(b)(3)[01], P 804-138. If the declarant faces no reasonable threat of punishment, the justification underlying the exception would not be met. United States v Fowlie, 24 F3d 1059, 1068 (CA 9, 1994) (a statement made by a declarant while out of the country and facing no threat of punishment would not be against penal interest).

In short, whether a declarant’s statement was sufficiently against penal interest is whether the statement would be probative of an element of a crime in a trial against the declarant, and whether a reasonable person in the declarant’s position would have realized the statement’s incriminating element. If so, then the statement tended to subject the declarant to criminal liability.

C. TRUSTWORTHINESS OF THE STATEMENT

Beyond the requirement that a statement must be against penal interest, MRE 804(b)(3) further requires that exculpatory statements must be trustworthy. We note that the rule “does not require that the statements themselves be clearly corroborated.” United States v Garcia, 986 F2d 1135, 1141 (CA 7, 1993). We make a further preliminary observation that federal courts are split over whether the court must assess the credibility of the witness,¹⁰ or of the declarant, or of only the statement.¹¹ We believe that the credibility of the declarant inherently affects the trustworthiness of the statement, and therefore it is not inappropriate for a court to exclude a statement where the declarant’s veracity is seriously doubtful or entirely lacking. United States v Moore, 936 F2d 1508, 1517 (CA 7, 1991); United States v MacDonald, 688 F2d 224, 233 (CA 4, 1982); Satterfield, 572 F2d 692.

Therefore, we are faced with two remaining questions respecting the corroborating circumstances requirement: (1) what facts may a judge properly consider, and (2) what level of corroboration is necessary?

APPROPRIATE FACTORS

There is no clear rule in the federal cases regarding which factors should be considered.¹² Fundamentally, the determination of trustworthiness invokes “two distinct elements. . . . [T]he statement must actually have been made by the declarant, and it must afford a basis for believing the truth of the matter asserted.” Bagley, 537 F2d 167.

We also note that MRE 104(a) provides that, in determining the admissibility of evidence, the trial court generally “is not bound by the Rules of Evidence,” which supports a broad scope of permissible considerations. Although the defendant’s statement may often be self-serving, we believe that the trial court may consider it as a factor of corroboration if appropriate. Slaughter, 891 F2d 698.

In Poole, a majority of this Court adopted a totality-of-the-circumstances test and listed eight nonexclusive factors to consider in determining whether a statement against penal interest was sufficiently reliable to be used to inculpate the defendant without violating his constitutional right of cross-examination. Poole, 444 Mich 165. The majority explained:

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 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. [Id.]

Poole also directed courts to consider any other relevant factor in the case in order to analyze whether, under the totality of the circumstances, the statement was sufficiently reliable. Id.

With respect to custodial statements, we find useful the three-factor inquiry developed by the United States Court of Appeals for the Seventh Circuit. United States v Garcia, 986 F2d 1140. Under that test, the court should first consider “the relationship between the confessing party and the exculpated party and . . . [whether] it was likely that the confessor was fabricating his story for the benefit of a friend. Thus, if the two involved parties do not have a close relationship, one important corroborating circumstance exists.” Id. (citation omitted).¹³ The second factor is “whether the confessor made a voluntary statement after being advised of his Miranda rights.” United States v Nagib, 56 F3d 798, 805 (CA 7, 1995), citing Garcia, 986 F2d 1140. The third 4s “whether there is any evidence that the statement was made in order to curry favor with authorities.” Id.

In sum, we believe that the totafity-of-the-circumstances test adopted in Poole, 444 Mich 165, may be applied in the instant context. It requires the trial court to consider the contents of the statement itself, the circumstances surrounding the declarant making the statement, and all other relevant facts in the case. In addition, where the statement was made to the authorities while the declarant was in custody, the trial court should consider the three-factor inquiry.

EXTENT OF CORROBORATION

Perhaps the consideration with the greatest range of divergent views is the level of corroboration that should be required with respect to exculpatory statements against penal interest. Defendant Musall asks us to adopt the threshold suggested in Weinstein:

The court should only ask for sufficient corroboration to “clearly” permit a reasonable man to believe that the statement might have been made in good faith and that it could be true. If, for example, the proof is undisputed that the person confessing to a shooting could not have been at the scene of the crime because he was in prison, it will be excluded. But if there is evidence that he was near the scene and had some motive or background connecting him with the crime that should suffice. [Weinstein, ¶ 804(b)(3)[03], pp 804-154 to 804-155.]

In contrast, the prosecutor argues for a higher standard, contending that it is legally insufficient for a defendant to offer his own statement as the only corroborating circumstance for the declarant’s statement.

For guidance, we turn to the legislative history of FRE 804(b)(3) for assistance in ascertaining Congress’ intent.¹⁴ The abbreviated version of the evolution of FRE 804(b)(3) is that the United States

Supreme Court proposed rules of evidence, which in turn went through various changes in the House of Representatives and the Senate before final enactment. For our purposes, important changes occurred with respect to the corroboration requirement. The Supreme Court’s version of what became FRE 804(b)(3) provided: “A statement tending to exculpate the accused is not admissible unless corroborated.” 11 Moore, Federal Practice (2d ed), § 804.01[12.-2], p VIII-230 (emphasis added). The House of Representatives revised and subsequently enacted this sentence, deleting “corroborated” and adding “corroborating circumstances clearly indicate the trustworthiness of the statement.” Id. The House Committee Report stated in relevant part:

As for statements against penal interest, the [House] Committee shared the view of the Court that some such statements do possess adequate assurances of reliability and should be admissible. It believed, however, as did the Court, that statements of this type tending to exculpate the accused are more suspect and so should have their admissibility conditioned upon some further provision insuring trustworthiness. The proposal in the Court Rule to add a requirement of simple corroboration was, however, deemed ineffective to accomplish this purpose since the accused’s own testimony might suffice while not necessarily increasing the reliability of the hearsay statement. The Committee settled upon the language “unless corroborating circumstances clearly indicate the trustworthiness of the statement” as affording a proper standard and degree of discretion. It was contemplated that the result in such cases as Donnelly v United States, 228 US 243 [33 S Ct 449; 57 L Ed 820] (19 [13]), where the circumstances plainly indicated reliability, would be changed. [Moore, § 804.01(12.-2), p VHI-231, quoting House Conference Committee Report to Rule 804(b)(3), pp 16-17.]

Accordingly, although we need not decide the issue in the instant cases, if the only corroborating circumstance was the individual defendant’s statement, standing alone, we might have a different situation. See, for example, United States v Rodriguez, 706 F2d 31, 40 (CA 2, 1983).¹⁵ However, we find other corroborating circumstances presented in this case, which we will explain below.

Although Congress indicated what it believed would not be sufficient corroboration, it left the answer to what would be sufficient to case-by-case development. However, we need to be cognizant of the competing interests that were at issue in Donnelly. The state’s interest in ensuring that evidence be credible has been recognized for centuries. As noted by the Court in Donnelly.

“It was very justly observed by a great judge that ‘all questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded.’ ” [Donnelly, 228 US 276, quoting Chief Justice Marshall in Queen v Hepburn, 11 US (7 Crunch) 290, 295; 3 L Ed 348 (1813), quoting Lord Kenyon in Rex v Eriswell, 3 TR 721 (1790).]

However, Congress, in enacting FRE 804(b)(3), expressly rejected the result in Donnelly and indicated that the historic rules of evidence should not be rigidly applied to exclude reliable exculpatory evidence. Justice Holmes’ dissent in Donnelly persuasively explained why:

The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make any one outside of a court of justice believe that Donnelly did not commit the . crime. I say this, of course, on the supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick.— The rules of evidence in the main are based on experience, logic and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; . . . and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. [Id., 228 US 277-278.]

In short, the defendant’s constitutional right to present exculpatory evidence in his defense and the rationale and purpose underlying MRE 804(b)(3) of ensuring the admission of reliable evidence must reach a balance. We believe they may be viewed as having an inverse relationship: the more crucial the statement is to the defendant’s theory of defense, the less corroboration a court may constitutionally require for its admission. Rivera v Illinois Dep’t of Corrections, 915 F2d 280, 281 (CA 7, 1990) (excluding vital evidence was an abuse of discretion); Slaughter, 891 F2d 698 (excluding crucial evidence was an abuse of discretion). In contrast, the more remote or tangential a statement is to the defense theory, the more likely other factors can be interjected to weigh against admission of the statement. Thomas, 62 F3d 1338 (where evidence was cumulative, exclusion was not an abuse of discretion); Fowlie, 24 F3d 1069 (exclusion of tangential evidence was not an abuse of discretion).

Nevertheless, the constitutional background of this balancing test must be of foremost consideration. Because there can be no bright-line rule in this area, resolution must be case by case. But, as Justice Holmes observed, “experience, logic and common sense” should guide us in reaching a point where the appellate court will find that the trial court abused its discretion by excluding the exculpatory evidence.

IV

We turn now to the instant cases. There is no question that Copeland’s statement was in fact made, which is a considerable factor when reviewing whether a witness should be allowed to repeat the statement at trial. Donnelly, 228 US 277 (Holmes, J., dissehting). The entire text of Copeland’s statement is reprinted in the appendix following this opinion. Copeland’s custodial statement was given after he had been advised of his Miranda¹⁶ rights. Additionally, in the statement, he expressly stated that he had not been promised anything to make the statement. Indeed, Copeland was later convicted of first-degree premeditated murder in large part on the basis of this statement. He was subsequently sentenced to life in prison without parole. We find no facts surrounding the making of the statement that suggest that Cope-

land was promised a deal or that he would not face the full punishment of the law for anything that he would say. Given that he had been advised that anything he said could have been used against him, we find that a reasonable person in Copeland’s position would have realized that any admissions by him could implicate him in a crime.

The trial court found that Copeland’s statement was not inculpatory. We disagree. We find that Copeland’s statement would have been probative of many possible crimes. He admitted taking an illegal controlled substance: “We took hits of mescaline.” He admitted negotiating with a prostitute for a sex act. More importantly, he admitted to stabbing the victim:

We took her back to Chandler Park — Balduck. The girl told us that she would give us all a good price for sex. I . . . was doing all the talking to the girl because my friends Fred, Mike and Mark are id[io]ts they don’t know how to talk to the girl. So we got there and we started taking her clothes off because she told me that she liked it rough. So we all proceeded to take her clothes we was ripping the clothes off her. That’s when I started to get hyperactive. From then on she gave Mike head. I kept thinking about that and the more I thought about that that’s when I had it in me that she was Spooner. Jen[n]ifer Spooner is a girl that I use[d] to go out with. I walked over while she was giving Mike head and I looked at her and it appeared to be Spooner to me. I became upset because about 7 months ago I caught Spooner having sex with another guy. Then I told the girl I would kill her. I told her I’m going to kill you. I called her Spooner. Then that’s when I did it. I pulled the knife down out of my sleeve. My left sleeve is where I keep my knife. I grabbed [the] knife out of my sleeve, pulled it out and I stabbed her in her body I’m not sure where. All I could do then was feel confused and happy.

After the defendants sought to use this statement as exculpatory evidence, the prosecutor argued before the trial court that the statement was not against Copeland’s penal interests:

Mr. Less: Yes. In that statement Mr. Copeland[] denies any plan with anyone. . . .

The Court: The statement says no premeditation on anyone’s part?

Mr. Less: Correct. His statement — to use Mr. Rex’s words — in essence, while this sex was going on with the girl who, quote, liked — not Mr. Rex, Mr. Copeland — liked it rough. So everybody [was] tearing her clothes off. Mr. Copeland experienced a psychotic experience from taking mescaline, and lsd and started hallucinating; that it was someone else. That’s not against penal interest. What you are saying — almost exculpatory — saying, I’m under the influence of something. I’m not in the right mind.

The trial court excluded that statement in part because it found that Copeland was “really making an excuse for his conduct” rather than making “a clear statement of his own criminal responsibility.” However, MRE 804(b)(3) merely requires that the statement be probative against the declarant. We find that we can present no argument more persuasive than the prosecutor’s later position regarding why Copeland’s statement was probative of criminal responsibility. At Copeland’s trial, the prosecutor argued during his closing argument:

[Mr. Less:] Now, Mr. Copeland makes a statement to Sergeant Sanders, and that statement, you heard it yesterday afternoon, and you can take that into the jury room with you. There are certain things that I went through when I read that statement that just struck me as being — jumping out at me, jumping out. And I’m going to tell you ....

Mr. Copeland, in his statement, kind of sets the mood. Yeah, he’s out with his friends, he says, and they’re going to drive around, have some laughs. He tells you: “We decided to get together and have a few laughs.” Him and Mr. Barrera and Mr. Musall and Mr. Johnson. They’re going to have a few laughs.

Then he tells you, going to take some mescaline and drink some beer. And then he tells in the statement all about mescaline because, in his words, “I took a drug class. That’s how I know.” He’s an expert, man. He’s a self-made expert on drugs.

So what does he do? He’s going to tell you how these drugs inflamed his mind and clouded his mind and he couldn’t form an intent to do any crime. Well, let’s see what he tells us. He takes the mescaline. “We were out cruising around, looking for people to laugh at.” Mr. Copeland is going to drive around, and that’s a fun way to have a date. We’re just going to go up and down Van Dyke, out of our neighborhood, look for people to laugh at.

Page 4 is where his contradictions start. After he claims they pick up the deceased, the victim in this: “We left that neighborhood because there is racial problems over there, you know.” And his next sentence after he says that is: “By that time, I had the full effect of the mescaline going.”

Well, let’s think about something. If you leave a neighborhood because you perceive there to be some kind of problem, what does that show you? If you can think of that — I mean, if you can make that determination, doesn’t it show that you’re conscious? Doesn’t it show that you’re purposeful? Doesn’t that show that you know where you’re at and what’s going on and you can make a decision?

Then we come on page 5, while the victim is “giving Mike head, I kept thinking about that, and the more I thought about that, that’s when I had it in me that she was Spooner.” Well, he’s thinking about it. I mean, he’s out here . . . and he’s weighing it in his mind.

Then, on page 6, he says, “I told her, ‘I’m going to kill you.’ ” Well, what could be clearer of a person’s intent? If someone says, “I’m going to” — if someone comes up to me and says, “I’m going to kill you,” I’m going to take that kind of seriously because, if someone’s saying that, ... it shows what they’re doing. And then, if they do something, if they pull a gun out or get something pointed at me after they said those words, I would have no doubt of what their intent is. . . .

On page 9, Sergeant Sanders asked him some questions and he says: “I forced myself to stab her.” No one is — -the drugs aren’t forcing him. It’s not that he doesn’t know what he’s doing. It’s not that he’s not aware of what’s going on. . . . [T]here’s something else on page 9. . . . [H]e says, “I got some head from her, but I stopped because I was afraid of getting a disease.” Here’s a guy that’s supposed to have the full effect of the mescaline going. He doesn’t know what he’s doing. The drugs have obliterated his good judgment and he can’t form any intent, and yet he can think about communicating diseases. . . . [T]hat shows a consciousness, that shows a sense of surrounding, that shows a mind free and clear of any wild and — you know, hallucinations.

The prosecutor obviously found Copeland’s statement to be reliable probative evidence of Copeland’s guilt. He cannot now argue that it was not. Green v Georgia, 442 US 95, 97; 99 S Ct 2150; 60 L Ed 2d 738 (1979) (the statement was sufficiently reliable for the state’s case); Rivera, 915 F2d 282 (“The confession was reliable enough to be used to put [the declarant] away for the rest of his life, and no reason is suggested why, if only it had been made to a close friend — but not otherwise — it would be reliable evidence of [the defendant’s] innocence as well”); United States v Brainard, 690 F2d 1117, 1125 (CA 4, 1982) (“The government’s attempt to have it both ways strikes us as imprudent and unfair”); Thomas, 571 F2d 289 (“The statement may be offered by the government to inculpate the declarant or by the accused to exculpate himself”).

The trial court also found that Copeland’s statement was not exculpatory with respect to Barrera, Musall, and Johnson. We disagree. In the statement, Copeland was asked: “Did Mark, Mike or Fred stab the woman]?]” He replied: “They had knives on them but not to my knowledge.” This statement was exculpatory with respect to Barrera’s and Musall’s defense: they admitted being there, but denied stabbing her. In addition, Musall himself admitted that he possessed a knife that night. The prosecutor argued to Musall’s jury that Musall also stabbed the victim. Therefore, Copeland’s statement that Musall did not stab the victim did exculpate Musall on a critical issue in the case. More importantly, the statement provided a motive for the killing (Copeland thought the victim was Spooner) and established that the idea of stabbing the victim was spontaneous. This was exculpatory evidence with respect to the defendants’ theory that they did not anticipate Copeland’s actions. Therefore, the trial court erroneously held that the statement was not against Copeland’s penal interests and that it was not exculpatory with respect to Barrera and Musall.

The trial court also found that there was insufficient corroborating evidence of statements made within the context of the confession. The Court of Appeals likewise held that there were insufficient corroborating circumstances to support admission of Copeland’s statement.¹⁷ The panel did not address the defendant’s constitutional arguments.

In order to address whether there were sufficient corroborating circumstances of the trustworthiness of the statement to satisfy constitutional requirements, we first must separately consider the evidence and the theories of both the prosecution and the defense with respect to each defendant to ascertain the level of each defendant’s need for presenting the evidence.

PEOPLE v BARRERA

In Barrera’s statement to the police, he indicated that he was the driver that night. He also stated that he had kicked the victim in the head:

I kicked her in the head before Matt stabbed her because she was on her knees when I kicked her and she was yelling and screaming[.] [T]hat’s why I kicked her in her head.[¹⁸]

He denied that there was any plan to rob or rape the woman. He admitted that a cassette tape that was found at the scene was his. He also admitted that he ripped up the victim’s jacket.

Barrera was tried for first-degree premeditated murder and first-degree felony murder. With respect to the first count, the prosecution’s theory was that Barrera aided and abetted in the killing, in particular by driving the car and by kicking the victim down before her throat was cut. The prosecutor repeatedly argued that this was a “[f]our against one,” planned gang attack. Further, he argued that Barrera was in control of the car and drove to a remote, secluded spot to accomplish the rape, robbery, and murder.

With respect to felony murder, the prosecutor argued that Barrera helped create the situation with knowledge that death or great bodily harm would occur. He argued that this was the requisite malice.¹⁹ The prosecutor also argued that even if the crime was spontaneous, Barrera was guilty of second-degree murder because he helped destroy her clothes and left her to die behind a secluded building.

In contrast, Barrera’s defense was that there was no premeditation because there was no plan to rob, rape, or kill the victim. He only thought that they had hired a prostitute, and that they would have sex and then leave. He thought that they were there “to party.” He did not know that Copeland had a knife with him. He further argued that kicking the victim, an assault and battery, did not amount to an intent to create a high risk of death by multiple stab wounds.

In his statement, Barrera described his version of the stabbing:

We all got out of the car and we went behind the bathrooms. I can’t remember exactly who made the first move but Matt and Fred grabbed the hooker and ripped her shirts and pants off. They grabbed her and pulled her shirt off and she fell on the ground and that’s when they, Matt and Fred tore her pants off. Matt made her suck his dick and after she was done he slapped her and then Mike stepped up and made her suck his dick.

Q. What were you and Fred doing at this time?

A. We were drinking Labatts Beer watching and talking to each other. Fred was saying how sick it was what Matt and Mike was doing. Then while she was sucking Mike’s dick, Mike stepped back and Matt started [to] beat the girl with his fist. He kicked her and then he pulled out this big Rambo knife. I think he had it in the back of his pants. He pulled the knife out and stabbed her. Fred said “Oh my God.” I couldn’t believe this was happening. I turned around and went to the car.

Barrera was convicted of first-degree felony murder. Under People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), the jury was required to find that Barrera himself had malice.²⁰ In this case, Barrera’s intent was the critical issue. Barrera’s jury was told through Barrera’s statement that Copeland did the stabbing. However, by excluding Copeland’s statement, the trial court did not permit the jury to hear why Copeland killed the victim.²¹ We find that this explanation of the stabbing was evidence crucial to Barrera’s defense that he had no reason to expect that someone would kill the victim and that Copeland acted spontaneously and without warning. There was no evidence suggesting that Barrera could have anticipated that the prostitute resembled Copeland’s former girlfriend, or that Copeland would hallucinate and believe that she was his old girlfriend, or that Copeland would pull out a knife and stab her to death.

Because the explanation for the stabbing was evidence crucial to Barrera’s theoiy of defense, his constitutional right to present this evidence limited the threshold of corroborating circumstances that the court could require of Copeland’s statement. We find that the trial court improperly focused on minor inconsistencies in the statement. Those inconsistencies go to the weight of the evidence — not to its admissibility. Garcia, 986 F2d 1140-1141. The primary statement in the confession was corroborated by the statements of all three codefendants: Copeland spontaneously acted alone in the stabbing.

Additionally, we find the following factors further corroborated the trustworthiness of Copeland’s statement. Applying the three-factor inquiry set out above, we find that there was not a close relationship between Copeland and Barrera that would induce Copeland to “take the rap” for Barrera.²² Further, Copeland made a voluntary statement after being advised of his Miranda rights. Moreover, there was no evidence that Copeland did so in order to curry favor with the authorities: he said that he was not promised anything for giving the statement,²³ and, more importantly, he was later sentenced to life without parole on the basis of his statement.²⁴

Under the Poole factors, we note that although the statement was made to law enforcement officers, instead of shifting blame to the other three participants, Copeland directed blame to himself by explaining his personal motive for the killing, and by expressly stating that to his knowledge no one else stabbed the victim. However, “[h]is incentive, one might think, was to inculpate as many other persons as possible and minimize his own involvement.” Rivera, 915 F2d 283.

We conclude that the trial court abused its discretion in excluding Copeland’s statement and violated the Due Process Clause of the Fourteenth Amendment.²⁵ This preserved constitutional error is not harmless because we cannot declare beyond a reasonable doubt that the exclusion of this evidence did not contribute to the jury verdict by undermining Barrera’s defense. Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967). We therefore reverse the decision of the Court of Appeals, vacate Barrera’s conviction, and remand the case for a new trial consistent with this opinion.

PEOPLE v MUSALL

Musall recounted in his statement that he had hit the victim in her face while they were traveling in the car. He also stated that he started to engage in fellatio with the victim, but then stopped because he was scared. He further admitted that he had been carrying a six-inch knife that night, and that he threw it away at the top of a hill after he and Fred started running when Copeland began stabbing the victim.

There was also evidence that Musall cut his right hand during the evening. In his statement, Musall asserted that he cut it later in the car while looking for a lighter on the floor. In contrast, Copeland’s girlfriend, Carol Keane, testified that Musall cut his hand by hitting a beer bottle on a mirror on Barrera’s car. On cross-examination, she testified that Musall’s hand was not cut when she first saw him on the morning of October 28, 1988. However, the prosecutor argued that Musall cut his hand while he was stabbing the victim.

Musall was tried on alternate counts of first-degree premeditated murder and first-degree felony murder. As in Barrera’s case, the prosecutor repeatedly argued that this was a “four against one” gang attack. The prosecutor presented essentially three theories. First, as in the Barrera case, the prosecutor argued that Musall was guilty of premeditated murder under an aiding and abetting theory because this was a thought-out plan to rape, rob, and then kill the victim. Second, the prosecutor argued that Musall actually stabbed the victim,²⁶ drawing on inferences that he cut his hand sometime during the night.²⁷ And finally, the prosecutor argued that Musall was guilty of felony murder because his conduct demonstrated a wilful and wanton act, knowing that death or great bodily harm might occur because he participated in the four-against-one scheme, hit her in the car, and got to the park and stayed there, while forcing her to engage in oral sex with him. The prosecutor contended that this conduct satisfied the malice requirement.

Musall’s defense was that he had not intended that the victim die, that he did not participate in killing her, and that there was no preconceived plan to kill her. He admitted hitting her in the car, but contended that that occurred well before they reached the park. He argued that Copeland was the instigator of the group’s activities and that Copeland, alone and spontaneously, stabbed the victim.

We note that Musall’s jury did hear testimony from a police officer that all of the defendants had stated that Copeland had done the actual stabbing. However, as in Barrera’s case, the jury did not hear why Copeland stabbed her. This explanation of Copeland’s motive for killing her was crucial to Musall’s defense that he did not anticipate Copeland’s actions. For the same reasons explained above with respect to Barrera, here too we consider the three-factor inquiry along with the Poole factors and reach the same conclusion: we believe that the trial court abused its discretion in excluding Copeland’s statement. This violated Musall’s constitutional right to present his defense, and the error was not harmless beyond a reasonable doubt.

We find that the reasons for finding prejudicial error are even more compelling in Musall’s case because the prosecutor’s theory before the Musall jury was directly contradictory to his theory before Copeland’s jury. In his closing statement before the Copeland jury, the prosecutor stated:

I’m not quite sure how Mike avoided getting parts of his body cut off because, if this woman is performing oral sex on him, and [Copeland is] looking at them and, all of a sudden, [Copeland] pulls out a knife and starts chopping, Mike is, I guess, miraculously, not chopped up out there, too.

If the prosecutor is not sure whether Musall stabbed the victim or whether he “miraculously” avoided being stabbed, then this Court cannot be convinced beyond a reasonable doubt that Musall’s jury was sure either. Had the jury heard Copeland’s explanation of why he killed the victim, it may have accepted Musall’s defense, as the prosecutor apparently did in the subsequent trial.

Therefore, we reverse the decision of the Court of Appeals, vacate the conviction, and remand for a new trial.

v

RESPONSE TO DISSENTING OPINION

The dissent argues that Barrera and Musall were not constitutionally entitled to use Copeland’s statement as exculpatory evidence with respect to proving their state of mind at the time of the stabbing because the dissent believes that Copeland’s state of mind was not relevant to his co-participants’ defenses to aiding and abetting felony murder. Post at 316-317. However, the respective juries did not articulate whether they convicted the defendants of felony murder as principals or as aiders and abettors. Nevertheless, in Michigan, an aider and abettor must possess the same requisite intent as that required of a principal. People v Kelly, 423 Mich 261, 278; 378 NW2d 365 (1985). Kelly explained the aiding and abetting felony-murder theory:

The requisite intent is that necessary to be convicted of the crime as a principal. Meister v People, 31 Mich 99 (1875). hi this instance, under Aaron, it therefore must be shown that the aider and abettor had the intent to kill, the intent to cause great bodily harm or wantonly and willfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm. Aaron, 409 Mich 733. Further, if the aider and abettor participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm, he is acting with “wanton and willful disregard” sufficient to support a finding of malice under Aaron. [423 Mich 278-279.]

Hence, it would not be sufficient for the jury to conclude only that Barrera or Musall had assisted another in committing or attempting to commit a larceny or rape.²⁸ Aaron requires the jury to take the additional step of finding, beyond a reasonable doubt, that the defendant himself possessed the requisite intent with respect to the murder.29 That requisite intent is malice, whether proven or inferred from the circumstances.

The dissent states:

Copeland’s statement regarding his hallucination speaks only of his own state of mind. The relevant inquiry is whether Barrera and Musall possessed the requisite state of mind.

Stated otherwise, that Copeland confessed to stabbing the woman does not negate the possibility that Barrera and Musall also possessed a state of mind sufficient to be found guilty of felony murder. [Post at 319 (emphasis added).]

We do not disagree with the dissent that there is “a possibility” that a jury, even after hearing Copeland’s statement, may find that the defendants also acted with malice. However, “a possibility” of malice is insufficient — malice must be proven beyond a reasonable doubt.

It is in this respect that the dissent is missing the forest for the trees. Four defendants were involved in some way with the events that occurred that night. All four defendants stated that one, and one alone, stabbed the victim. All four stated that the stabbing was spontaneous, and three stated that it was unanticipated by them. The decisive question before the respective juries was whether Barrera or Musall intended to create a very high risk of serious harm to the victim and knew that such harm was a probable result of his actions. The dissent contends that Copeland’s statement “does not support a defense that the defendants did not aid or abet a felony murder.” Post at 320. We disagree. Copeland’s motive and thought process in killing the victim, “she resembled Spooner,” would have a direct effect on the required felony-murder element of malice, whether under a co-felon theory as addressed in Aaron, or under an aiding and abetting theory as addressed in Kelly, because the spontaneity of the killing was probative of the defense theory that the stabbing was unanticipated and beyond the scope of the alleged common enteiprise of rape or larceny. People v Pitts, 84 Mich App 656, 662; 270 NW2d 482 (1978).

Michigan case law requires the jury to find a causal link between the felony and the death. People v Datema, 448 Mich 585, 601-602; 533 NW2d 272 (1995). The dissent points to evidence that Barrera kicked the victim and that Musall hit the victim in her face. Post at 322. However, the dissent must concede that a mere intent “to injure” falls short of malice, Paterna, supra at 606, and that mere participation in committing the underlying felony, without a finding of malice with respect to the death, likewise falls short of felony murder, id. at 601. Accordingly, evidence that would tend to prove that Barrera’s and Musall’s respective intents fell short of malice would indeed support the defendants’ theories that they did not have any reason to anticipate that death or great bodily injury would occur.

Finally, we do not hold that a trial court should allow a defendant to present unreliable evidence as suggested by the dissent. Post at 304. Instead, we hold that a trial court cannot place too many hurdles in front of admitting evidence that is not only crucial to the defense theory and uncontradicted by any other evidence in the case, but also has some common-sense basis of trustworthiness.

As to redacting the portions of the statement that do not directly inculpate Copeland, we note that the prosecutor has not argued that such redaction is required. We leave this issue for the trial court for further analysis. We do note that in Williamson, the Supreme Court did not address application of the carry-over rule in the context presented by the instant cases. We also note that Carson v Peters, 42 F3d 384 (CA 7, 1994), a case on which the dissent relies, expressly recognized that Williamson dealt with situations in which the prosecution seeks to use a codefendant’s statement and further stated that “defendants have an easier time under the second sentence of Rule 804(b)(3) . . . .’’Id. at 386. We find that the critical portions of Copeland’s statement, where he described why and how he stabbed the victim, and that the other three did not stab the victim (which would be inculpatory because it intensified his culpability and depravity through the number of stab wounds), were against his penal interests and should be admitted on retrial.

Brickley, C.J., and Levin, Riley, and Mallett, JJ., concurred with Cavanagh, J.

APPENDIX

MATTHEW COPELAND’S STATEMENT

Q. Mr. Copeland, were you advised of your constitutional rights?

A. Yes.

Q. Do you have any questions regarding your rights?

A. No I don’t.

Q. Have you been threatened or promised anything to make a statement?

A. No I haven’t.

Q. Do you now wish to make a statement of your own free will and accord?

A. Yeah.

Q. Tell me what your involvement was regarding the murder of a black female in Balduck Park last Thursday night Octfober] 27th and Friday morning Oct[ober] 28th— early morning hours.

A. Me, my three friends Mark, Fred and Mike we decided to get together and go out last Thursday night and to have a few laughs and get high off Mescaline drugs. That’s what we did. We took hits of Mescaline. Me and Mark did. I did three hits, Mark did three also.

Q. Explain what a hit of Mescaline is and how you take it.

A. A hit of Mescaline is a hallucinogen- — like you swallow or eat them. It can sometimes make you see stuff or eat stuff that ain’t there. I took a drag class that’s how I can explain it to you. It[’]s got traces of strychnine poison. It’s a homemade drag. It’s like you do it and hope that you don’t die or freak out or have a bad trip.

Q. Ok. So you and Mark took some Mescaline. Then what happen[ed] as it relates to the murder of the black female?

A. We was — -were just cruising along with Mark driving his car. We got to 7 Mile and Van Dyke and we were riding around looking for some people to laugh at — fat people, punk rockers or weird persons, when we saw this black female prostitute. She flagged us down and so we picked her up. We left that neighborhood because there is racial problems over there you know. By that time I had the full [ejffect of the Mescaline going.

Q. By the way, have you had any Mescaline today?

A. No, I did it Saturday and Sunday. Somebody put Mescaline in my beer.

Q. Are you high off anything now.

A. No, I’m not.

Q. So you[’re] alert, responsive and awake to all of my questions, is that correct?

A. Yes.

Q. Continue at the point that you’ve picked up the black female and leaving the Van Dyke area.

A. We took her back to Chandler Park — Baiduck. The girl told us that she would give us all a good price for sex. I was doing all the talking to the girl because my friends Fred, Mike and Mark are id[io]ts — they don’t know how to talk to the girl. So we got there and we started taking her clothes off because she told me that she liked it rough. So we all proceeded to take her clothes — we was ripping the clothes off her. That’s when I started to get hyperactive. From then on she gave Mike head. I kept thinking about that and the more I thought about that — that’s when I had it in me that she was Spooner. Jen[n]ifer Spooner is a girl that I use[d] to go out with. I walked over while she was giving Mike head and I looked at her and it appeared to be Spooner to me. I became upset because about 7 months ago I caught Spooner having sex with another guy. Then I told the girl I would kill her. I told her I’m going to kill you. I called her Spooner. Then that’s when I did it. I pulled the knife down out of my sleeve — my left sleeve is where I keep my knife — I grabbed [the] knife out of my sleeve — pulled it out and I stabbed her in her body — I’m not sure where. All I could do then was feel confused and happy.

Q. Are you left or right handed?

A. Left handed.

Q. So how many times did you stab the woman that night?

A. I don’t know, I remember the first blow it may have been more stabs.

Q. Did Mark, Mike or Fred stab the woman?

A. They had knives on them, but not to my knowledge.

Q. Did you see blood coming from the woman?

A. Yes, on my hands.

Q. Did you get blood on your clothes?

A. No.

Q. Where are the clothes that you wore that night of the murder?

A. Lying around in my room some where.

Q. Have the clothes been washed?

A. No.

Q. Tell me what you had on that night.

A. I had on blue jeans and my leather jacket or my army coat, I don’t remember my shirt.

Q. So after you stabbed the woman, what did you do?

A. I turned and faced the sky and from then on I was feeling like I overdosed on the Mescaline.

Q. You knew exactly what you were doing when you pulled the knife out and stabbed the woman, is that correct?

A. I was in a different state of mind. I looked at a tree and could taste the color of the tree.

Q. No one forced you to stab the woman, did they?

A. I forced myself to stab her.

Q. How did the woman’s clothes get thrown about the ground?

A. My friends threw them around. I was just trying to pull her pants off.

Q. Did you have sex with this woman?

A. No, I didn’t. I got some head from her, but I stopped because I was afraid of getting a disease.

Q. At what point did you have oral sex with the female?

A. Shortly after we got there.

Q. Did you force the woman to commit oral sex on you?

A. No, I didn’t, she offered it.

Q. After you tore her clothes off, she willingly had sex orally with you. Is that correct?

A. Yes, she said she liked it rough.

Q. Did you plan to rape and kill this woman prior to you arriving at Balduck Park?

A. No, I did not.

Q. Did you discuss with Mark, Fred and Mike that you were going to rape and kill the woman before arriving at the park?

A. No, I didn’t.

Q. Just exactly where did you stab the woman, where were you in the park, I should say?

A. It was by the building with all the spray paint on it. The building is all boarded up.

Q. What exactly did Mark, Mike and Fred do as it relates to their activity in the park that you could see and remember?

A. Mike, he got some head from the woman, I don’t recall what Fred and Mark were doing exactly.

Q. Who kicked the woman?

A. I don’t remember.

Q. Did you kick the woman?

A. Yes I might have, I don’t remember exactly.

Q. What type of beer were you drinking?

A. I was drinking Budweiser.

Q. Did you take anything from the woman?

A. Not that I can remember, no I didn’t.

Q. Where is the knife that [you] used to kill the woman?

A. I lost it that night. It could be anywhere from the Balduck Park to 10 Mile and Hoover, cause I went to pick up my girlfriend Carol Kean[e]. She lives on 10 Mile at Hoover. I told her I needed someone to stay with me that night.

Q. Did you tell Carol what you had done regarding stabbing the woman in the park?

A. I told her that I had stabbed someone that night.

Q. Did you tell anyone else that you stabbed a woman in Balduck Park?

A. Yes I did. I told Steve, he lives in Sterling Heights, you can contact Steve through Eddie — whether he lives on Glenwood., The old phone is 526-7567. It’s been changed though. I told Eddie to. They told everyone else cause they’re the only two I told about the murder, but I didn’t know I killed her though.

Q. Was the woman moving when you left her lying in the park?

A. I don’t remember.

Q. What did this woman have on as far as clothes, describe her clothes if you remember?

A. She had on a blue or dark jacket and some jeans.

Q. So why did you stab this woman again. Explain briefly.

A. I thought she was Spooner. She appeared to be Spooner. That’s what made me go off like I did.

Q. Where exactly may you have put the knife after this incident?

A. I don’t recall.

Q. Why didn’t you put the knife back up your sleeve?

A. I don’t know.

Q. Is there anything else you can remember regarding this incident at this time?

A. That’s it, you’ve got everything.

Q. I now want you to read your entire statement, check it for any errors, make any additions or corrections that you wish, then sign the bottom of each page indicating you’ve read your entire statement. Do you understand Mr. Copeland?

A. Yes I do.

Q. Isn’t it trae that when you arrived out there in Balduck Park, you along with your friends, forced the woman to disrobe against her will, and attempted to rob her?

A. No.

Q. Did you have the opportunity to read your entire statement and make any necessary corrections?

A Yes I did.

Q. Is this statement true to the best of your knowledge?

A. Yes, the statement is true to the best of my knowledge.

/s/ Matthew Copeland

/s/ Sgt. Ronald Sanders

1 They were originally charged with first-degree felony murder during alleged criminal sexual conduct, and first-degree premeditated murder, MCL 750.316; MSA 28.548. At a preliminary examination on November 17, 1988, the prosecution was allowed to amend the felony-murder count to include larceny and to add charges of first-degree criminal sexual conduct (penetration during another felony or penetration with the use of force), MCL 750.520b; MSA 28.788(2) and armed robbery, MCL 750.529; MSA 28.797. On January 27, 1989, the trial court quashed the criminal sexual conduct count because of the corpus delicti rule and quashed the armed-robbery count because there was insufficient evidence independent of the defendants’ statements that there was a taking of the victim’s property or that any taking was armed.

2 Barrera’s statement was redacted to remove irrelevant and potentially prejudicial questions and answers.

3 Unpublished opinion per curiam, issued January 5,1994 (Docket Nos. 119344, 146673).

4 MRE 802- provides that “Hearsay is not admissible except as provided by these rules.”

5 MRE 804(b)(3) is identical except that the phrase “reasonable person” is used instead of “reasonable man.”

6 E.g., United States v Noel, 938 F2d 685, 688 (CA 6,1991). We find that the federal cases that were required to separately address the standard of review with respect to the separate elements to be more persuasive than those cases simply stating a rule.

7 E.g., United States v Fowlie, 24 F3d 1059, 1068 (CA 9, 1994) (the reasonable person requirement was reviewed for abuse of discretion); United States v Garcia, 986 F2d 1135, 1139 (CA 7, 1993) (the only issue involved the corroborating circumstances requirement under FRE 804[b][3], review was under the clearly erroneous standard); Noel, n 6 supra 688 (a determination that the statement was not sufficiently corroborated “was not clearly erroneous”). Cf. United States v Thomas, 62 F3d 1332, 1336 (CA 11, 1995): “Questions of law and questions of the application of the law to the facts receive de novo review, while a trial court’s findings of fact are reviewed under the clearly erroneous standard.” (Citation omitted.)

8 The prosecutor urges us to alter the express language of the rule and require the statement to be “so far contrary” to penal interest, to parallel the corresponding provisions for statements against pecuniary and proprietary interests. The prosecutor relies on United States v Bahadar, 954 F2d 821, 828 (CA 2, 1992). We reject such a reading of MRE 804(b)(3) in light of the actual language used in the rule, which suggests a broader interpretation of statements against civil or penal interest than statements against pecuniary or proprietary interest. MRE 804(b)(3) only requires that the statement “so far tended to subject” the declarant to criminal liability. (Emphasis added.) See Poole, 444 Mich 159 (“tended to subject”).

9 “A statement may satisfy this requirement if it would be probative at trial against the declarant.” United States v Nagib, 56 F3d 798, 804 (CA 7, 1995) (citation omitted).

10 This is not an issue in this case because Copeland’s statement is in writing. However, we agree with Satterfield, 572 F2d 691-692, that, in general, assessing the credibility of the testifying witness is a function of the jury.

11 Compare United States v Salvador, 820 F2d 558, 561-562 (CA 2, 1987) (corroboration of both the declarant’s trustworthiness and of the statement’s trustworthiness was required), with United States v Brainard, 690 F2d 1117, 1124 (CA 4, 1982): “The rule requires not a determination that the declarant is credible, but a finding that the circumstances clearly indicate that the statement was not fabricated.”

12 Some federal courts have used a general four-factor test based on Chambers. E.g., Oropeza, 564 F2d 325. The “Chambers" factors are:

(a) the time of the declaration and the party to whom it was made;

(b) the existence of corroborating evidence;

(c) the extent to which the declaration is really against the declarant’s penal interest; and

(d) the availability of the declarant as a witness. [Citations omitted.]

Chambers did not involve FRE 804(b)(3), which already addresses three of the factors. Consequently, one can surmise that this test has questionable usefulness.

Other courts have used an ad hoc test, considering the facts presented in the case. Noel, 938 F2d 688-689; Salvador, 820 F2d 562; Lopez, 777 F2d 554; Brainard, n 11 supra at 1125; Satterfield, 572 F2d 693.

13 See United States v Tovar, 687 F2d 1210, 1213 (CA 8, 1982) (the declarant was helping out “a Mend for whom he felt responsible”).

14 For general background information see 10 Moore, Federal Practice (2d ed), Introduction, § 1-2, pp 4-13 (general introduction), § 55, pp 83-84 (chronology of the Federal Rules of Evidence), and § 56, pp 85-86 (use of background materials).

15 “The bare testimony of a codefendant charged with the same crimes as the one calling him as a witness is utterly devoid of corroboration.” United States v Annese, 631 F2d 1041, 1045 (CA 1, 1980).

16 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

17 The panel reasoned:

In the case at bar, we are not persuaded that there is sufficient corroboration of the trustworthiness of the statement to merit its admission. Indeed, many aspects of Copeland’s statement were at odds with evidence offered by defendants. In particular, Copeland stated that both he and Barrera had used mescaline, with Copeland attributing his actions to the effects of mescaline, while Barrera never mentioned the use of mescaline in his own statement. Moreover, Copeland contended that the victim voluntarily engaged in the sexual acts which occurred before the killing, which is contrary to the statements of both defendants in this case. Similarly, Copeland claimed that everyone involved in the offense participated in taking off the victim’s clothes, while both defendants here denied doing so in their respective statements. Finally, Copeland stated that he stabbed the victim while she was performing fellatio on Musall, while Musall claimed that he had finished and was walking away when Copeland came over and stabbed the victim. [N 3 supra, slip op at 1-2.]

18 The medical examiner testified that she found two separate bruises on the victim’s scalp. One was consistent with a fall and the other was not caused by a heavy instrument. She further testified that the wounds would have been inflicted shortly before death. She also concluded that these wounds were not the contributing cause of death. We contrast this case with United States v Silverstein, 732 F2d 1338, 1347 (CA 7, 1984), in which the medical evidence directly contradicted the declarant’s story.

19 People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).

20 In other words, Barrera must have “acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm.” Id. at 733.

21 See United States v Friel, 588 F Supp 1173, 1185 (ED Pa, 1984) (the statement provided a rationale for the crime).

22 Cf. Tovar, n 13 supra at 1213. The declarant “knew that he was going to prison and wished to help out a friend for whom he felt responsible." (Emphasis added.)

23 Cf. United States v DeVillio, 983 F2d 1185, 1190 (CA 2, 1993) (the statement was made while cooperating with the police and the declarant would not be prosecuted).

24 We also note that Copeland denied being high on anything at the time of the statement. Cf. United States v Guillette, 547 F2d 743, 754 (CA 2, 1976) (a statement made while drinking).

25 We note this comment by our colleague:

Moreover, if one carried the lead opinion’s argument to its logical conclusion, a trial judge could preclude a statement offered by a defendant which inculpates a codefendant declarant and exculpates the defendant who seeks its admission. This, evidentiary barrier . . . clearly violates the Due Process Clause of the Fourteenth Amendment. [Watkins, 438 Mich 703 (Riley, J., dissenting) (emphasis added).]

26 Musall stated that his knife was six inches long. likewise, Copeland described his knife as six inches long. The medical examiner testified that the stab wounds were up to four inches deep. Therefore, the evidence was consistent with a six-inch knife being used. Additionally, the medical examiner testified that she could not tell whether more than one knife had been used.

27 In closing, the prosecutor argued:

Inference can be made that Copeland is not only cutting, stabbing, but Mr. Musall is participating. Mr. Musall cut his hand in the frenzy of stabbing this young lady. That’s why he gets rid of the knife.

28 Accordingly, the dissent’s reliance on Sharlow v Israel, 767 F2d 373 (CA 7, 1985), is misplaced. That diversity case applied Wisconsin law, which does not require any mental state for felony murder. State v Oimen, 184 Wis 2d 423, 445; 516 NW2d 399 (1994).

29 With respect to felony murder, the juries were properly instructed that they had to find proof beyond a reasonable doubt that the individual defendant possessed the state of mind of malice at the time of the kilting. With respect to aiding and abetting, the juries were properly instructed that they had to find beyond a reasonable doubt that

the defendant must have intended the commission of the crime charged or have known that the other person intended its commission at the time of giving aid and encouragement.

It does not matter how much aid, advice or encouragement was given but, however, you must find that the defendant intended the commission of the crime, and that the aid, advice or encouragement that the defendant gave did, in fact, aid, advise or encourage the commission of the crime.

Mere presence, even with knowledge that an offense is plan[ned] or being committed is insufficient to establish that a defendant aided or assisted in the commission of the crime.