People v. Nunley

• Citation: 821 N.W.2d 642,491 Mich. 686
• Decision Date: 12 July 2012
• Docket Number: Calendar No. 5.,Docket No. 144036.
• Parties: PEOPLE v. NUNLEY.
• Court: Supreme Court of Michigan

491 Mich. 686

821 N.W.2d 642

PEOPLE

v.NUNLEY.

Docket No. 144036.

Calendar No. 5.

Supreme Court of Michigan.

Argued April 4, 2012.

Decided July 12, 2012.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, for the people.

James E.R. Fifelski, Ypsilanti, for defendant.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, B. Eric Restuccia, Deputy Solicitor General, and Erik A. Graney, Assistant Attorney General, for the Attorney General.

Kym L. Worthy and Timothy A. Baughman, Detroit, for the Prosecuting Attorneys Association of Michigan.

ZAHRA, J.

The issue in this case is whether a Michigan Department of State (DOS) ¹ certificate of mailing is testimonial in nature and thus that its admission, without accompanying witness testimony, violates the Confrontation Clause of the state and federal constitutions. The DOS generated the certificate of mailing to certify that it had mailed a notice of driver suspension to a group of suspended drivers. The prosecution seeks to introduce this certificate to prove the notice element of the charged crime, driving while license revoked or suspended (DWLS), second offense, MCL 257.904(1) and (3)(b).² We hold that a DOS certificate of mailing is not testimonial because the circumstances under which it is generated would not lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Instead, the circumstances reflect that the creation of a certificate of mailing, which is necessarily generated before the commission of any crime, is a function of the legislatively authorized administrative role of the DOS independent from any investigatory or prosecutorial purpose. Therefore, the DOS certificate of mailing may be admitted into evidence absent accompanying witness testimony without violating the Confrontation Clause. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the district court for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 11, 2009, the DOS issued an “ORDER OF ACTION” pursuant to MCL 257.303(2) that revoked defendant Terry Nunley's license from June 27, 2009, to at least June 26, 2010, because he had “2 OR MORE SUBSTANCE ABUSE CONVICTIONS IN 7 YEARS.” The order included a “WARNING,” telling defendant not to drive and an explanation of the right to appeal. The DOS contends that it sent this order to defendant by first-class United States mail on June 22, 2009. The DOS contemporaneously generated a certificate of mailing, which indicated that the DOS had sent defendant the order. The DOS stored the certificate without sending defendant a copy. The certificate of mailing, which includes a list of dozens of names of individuals to whom notice was sent on that particular date, stated:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 OFFICER OR EMPLOYEE F. BUETER

[handwritten] [typed]

On September 9, 2009, while defendant's license was still suspended, the police stopped him for failing to properly secure a load on his truck and issued him a citation for DWLS. The prosecution subsequently enhanced defendant's charge to DWLS, second offense, under MCL 257.904(3)(b) because of defendant's driving record. The elements of DWLS require the prosecution to prove (1) that the defendant's license was revoked or suspended, (2) that the defendant was notified of the revocation or suspension as provided in MCL 257.212, and (3) that the defendant operated a motor vehicle on a public highway while his or her license was revoked or suspended.

Before trial, the prosecution moved in limine to admit the certificate of mailing as proof that defendant had received notice that his license had been revoked—even though the certificate did not contain the actual signature of the employee listed on it—without producing the employee listed on the certificate or another DOS employee as a witness. Defendant objected that the admission of the certificate of mailing under those circumstances would deny him his right of confrontation under the Sixth Amendment of the United States Constitution and article 1, § 20 of the Michigan Constitution. The district court denied the prosecution's motion, holding that the nature of the certificate required a signature in order to be sufficient to support notice for a DWLS charge and that to admit the certificate without testimony would violate defendant's right to confront the witnesses against him because there was no other reason to use the document except in litigation.

The prosecution sought leave to appeal in the circuit court, which, in a written opinion, affirmed in part and reversed in part the district court's order. The circuit court concluded that the district court had erred by ruling that a handwritten signature was required for the certificate to be valid and effective notice under MCL 257.212. The circuit court, however, agreed with the district court that to admit the certificate without testimony would violate defendant's right of confrontation. The circuit court reasoned:

[T]he [certificate] is not a multipurpose record or one kept by an agency for its own purposes (that are not principally litigation). The statute that mandates the sending of the Certificate of Notice is the statute that defines the criminal offense with which defendant is charged. There has been no showing that the Certificate is used for anything other than proof of the notice element of DWLS. The People effectively admit this when they describe the twofold purpose of the Certificate: “one to state that notice was given to the defendant, and two, to show the defendant's license was suspended.” Unlike the “narrowly circumscribed” class of documents such as “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence,” ... this is not a certificate that the document at issue is an accurate copy of public record....

The legislature apparently intended that the certificate of notice serve as documentary evidence.... That the legislature intended it that way does not mean it does not violate the confrontation clause—in fact, as in Melendez–Diaz [ v. Massachusetts ],³ that circumstance simply establishes that the declaration is, indeed, testimonial.

The Court of Appeals granted the prosecution's interlocutory application for leave to appeal.⁴ In a split, authored decision, the Court of Appeals majority affirmed the lower courts' rulings that the testimonial nature of the certificate meant that its admission would violate the Confrontation Clause if it were admitted without witness testimony.⁵ The majority reasoned that “in light of the fact that notification is an element of the offense, certainly the certificate of mailing was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” ⁶ Analogizing the certificate of mailing to the lab analyst's report offered to prove an element of the crime in Melendez–Diaz, the majority stated, “Indeed, the certificate of mailing here is being offered to prove an element of the offense: the notification required by the plain language of MCL 257.904(1).” ⁷ Thus, the certificate was “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” ⁸

The majority rejected the prosecution's argument that the certificate was merely a clerk's certification of a record, stating that “[t]he critical distinction is that the author of the certificate of mailing, here F. Bueter, is providing more than mere authentication of documents; he is actually attesting to a required element of the charge.” ⁹ The majority also rejected the prosecution's argument that the certificate was not created solely for litigation regardless of whether it could be considered a business record because no statute required maintenance of the certificate and “the [prosecution] concede[d] that one purpose of the certificate of mailing is ‘the production of evidence for use at trial....’ ” ¹⁰

Judge Saad, in dissent, concluded that the certificate is not testimonial because it was created before a crime was even committed and the employee creating the certificate was fulfilling an administrative duty. ¹¹ Judge Saad believed it was irrelevant that the certificate was used to prove an element of the crime, stating:

While the majority is certainly correct that the certificate of mailing is an essential piece of evidence in proving defendant's guilt, it does not follow that this renders the certificate testimonial. As noted, the majority's analysis also ignores the context in which the evidence is made. At the time the certificate of mailing was created, no crime had taken place, nor was there an ongoing criminal investigation involving the defendant. Therefore, it was impossible for F. Bueter, or an “objective witness,” “reasonably to believe” that the certificate of mailing, at the time of its creation, “would be available for use at a later trial.” Crawford [ v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ] (citation and quotation marks eliminated).

... It strains credulity to suggest that the certificate was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” because Nunley had not committed a crime, and F. Bueter, when he certified the mailing, had no reason to expect that Nunley would commit a crime. Crawford, 541...