Ineffective assistance of counsel related to a codefendant’s statements from an investigative interview; A statement against interest (MRE 804(b)(3)); People v Barrera; Requirement that the statement be supported by corroborating circumstances clearly indicating its trustworthiness; Failure to make a futile motion; Prejudice; Prosecutorial error; Rebuttal argument

The court held that defense counsel was not ineffective related to a codefendant’s (B) statements from an investigative interview. It also rejected defendant’s prosecutorial error claim arising from the prosecutor’s rebuttal argument. Thus, it affirmed defendant’s convictions of meth and marijuana delivery. Defense counsel had an investigator interview B “about defendant’s role in the drug transaction.” The defense theory was that defendant “did not know that he was delivering drugs.” The court concluded that, under Barrera, B’s statements were against his penal interest. But even “if an unavailable declarant’s statement is against his penal interest, it must be supported by corroborating circumstances that clearly indicate its trustworthiness to be admissible.” The court concluded “there were insufficient corroborating circumstances to admit [B’s] statements under the former MRE 804(b)(3). Although [B] voluntarily gave the statements and may have had no personal reason to try to help defendant, other circumstances more clearly indicate that the statements were unreliable. Notably, the interviewe[r]s were defendant’s attorney and investigator, and [B] gave the least amount of information possible to get through the interview. Many of the statements were made in response to ‘yes or no,’ leading questions, so it would not be difficult for [B] to give the ‘right’ answer, and [B’s] incentive, if any, was simply to tell the attorney and [investigator] whatever they wanted to hear. And when the investigator asked [B] if he had anything else to share, [B] said that he did not, so the investigator ended the interview. These circumstances undermined the reliability of [B’s] statements,” with the result the court held “that they were not admissible under [the] ‘statement against interest’” hearsay exception. It also concluded that the prosecutor did not commit misconduct in commenting “on defendant’s experience with drugs during his rebuttal argument."