People v. Bauder, Docket No. 256186.

• Decision Date: 08 December 2005
• Docket Number: Docket No. 256186.
• Citation: People v. Bauder, 712 N.W.2d 506, 269 Mich. App. 174 (Mich. App. 2005)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Leroy BAUDER, Defendant-Appellant.
• Court: Court of Appeal of Michigan

712 N.W.2d 506

269 Mich. App. 174

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Leroy BAUDER, Defendant-Appellant.

Docket No. 256186.

Court of Appeals of Michigan.

Submitted November 9, 2005, at Grand Rapids.

Decided December 8, 2005, at 9:00 a.m.

Released for Publication March 2, 2006.

Appeal from the Circuit Court, St. Joseph County, James P. Noecker, J.

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Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Douglas K. Fisher, Prosecuting Attorney, and Eric Restuccia and William E. Molner, Assistant Attorneys General, for the people.

Bennett Law Office (by P.E. Bennett), Ann Arbor, for the defendant.

Stuart J. Dunnings, III, and Herbert R. Tanner, Jr., for the Prosecuting Attorneys Association of Michigan, amicus curiae.

Before: BANDSTRA, P.J., and NEFF and MARKEY, JJ.

MARKEY, J.

Defendant appeals by right his conviction of felony murder.¹ MCL 750.316(1)(b). Defendant argues on appeal that he was denied a fair trial by the admission into evidence of numerous statements made by the victim in the weeks before her death. Because we find defendant's Confrontation Clause rights, U.S. Const., Am. VI, were not violated, and, because most of defendant's other evidentiary arguments were not preserved by specific objection below, we conclude plain error warranting reversal did not occur. Further, the trial court did not abuse its discretion by denying defense counsel's motion to withdraw or defendant's motion for a mistrial after the victim's brother briefly disrupted the trial with a courtroom outburst. We affirm.

I

A

Appellate review of unpreserved allegations of error is disfavored. People v. Carines, 460 Mich. 750, 761-762, 597 N.W.2d 130 (1999). The courts of this state have long recognized that, in general, an issue is not properly preserved for appeal if it is not raised before the trial court. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994). Further, with respect to preserving alleged error regarding the admission of evidence, MRE 103(a)(1) provides: "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Because the grounds for objection at trial and the grounds raised on appeal must be the same, an objection on the basis of the rules of evidence will not necessarily preserve for appeal a Confrontation Clause objection. People v. Coy, 258 Mich.App. 1, 12, 669 N.W.2d 831 (2003). The converse applies to the case at bar.

At the beginning of a two-day pretrial hearing on the admissibly of the victim's statements, the prosecutor stated that he was relying on MRE 803(3), "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health). . .," and on MRE 804(b)(6), "[a] statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." The trial court stated to defense counsel, "You oppose this, right?" Counsel answered:

I oppose, yes, I oppose it, of course, I oppose it's [sic] admission because there is no chance to confront the actual declarant, [the victim], because she is unavailable. But I do recognize that there are exceptions to the hearsay rule, and we'll have to address this.

Further, although counsel stated he would respond after the prosecutor's offer of proof, by the conclusion of the two-day hearing, he did not. Instead, counsel requested two more weeks to research the prosecutor's theories of admissibility and file a brief. The record does not reflect that counsel filed such a brief, nor does it reflect any specific objection to the victim's hearsay statements on the basis of the rules of evidence that defendant now raises on appeal. At best, the record suggests that counsel may have objected to the hearsay off the record on the basis of MRE 403. Counsel remarked at a hearing on his motion to withdraw on the eve of trial that the parties were awaiting the trial court's decision regarding admissibility of hearsay, which counsel stated was pending the court's review of the hearsay's "prejudicial versus probative" value. On the first day of trial after the jury was sworn and before opening statements, the trial court ruled that the hearsay evidence was generally admissible, and that the evidence was relevant and material to the charges against defendant. The trial court also recalled that "the only evidence that was identified as being potentially unfairly prejudicial was the evidence of anal inter-course, and the defendant's female clothing fetish." The court, however, ruled that the danger of unfair prejudice was far outweighed by the probative value of the evidence. In sum, defendant did not argue below that the hearsay was inadmissible because it was not relevant, MRE 402, did not argue that the evidence failed to meet the criteria for admissibility under MRE 803(3) or 804(4)(b)(6), and did not assert the hearsay was inadmissible character evidence, MRE 404.

We review the trial court's decision to admit or exclude evidence for a clear abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). An abuse of discretion exists only if an unprejudiced person, considering the facts on which the trial court acted, would say that there is no justification or excuse for the trial court's decision. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996). A trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Coy, supra at 13, 669 N.W.2d 831.

When constitutional error occurs and is preserved, as defendant here alleges the admission of hearsay in violation of the right of confrontation to be such an error, a new trial must be ordered unless it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. People v. Shepherd, 472 Mich. 343, 347, 697 N.W.2d 144 (2005). On the other hand, ordinary trial error, even if preserved, will merit reversal only when, in the context of the entire trial, it affirmatively appears more probable than not that the error was outcome determinative. People v. Lukity, 460 Mich. 484, 495-496, 596 N.W.2d 607 (1999).

Our review of alleged unpreserved error is limited to determining whether a plain error affected substantial rights. MRE 103(d); Carines, supra at 763-764, 597 N.W.2d 130. "First, there must be an error: second, the error must be plain (i.e., clear or obvious); and third, the error must affect substantial rights (i.e., there must be a showing that the error was outcome determinative)." Id. Further, we may grant relief only when the plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings, independent of defendant's guilt or innocence. Id. at 763, 597 N.W.2d 130.

B

We first address defendant's constitutional claim that the admission into evidence of statements the victim made to friends, coworkers, and defendant's relatives in the weeks before her death violated his right to confront witnesses against him. Defendant relies on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which rejected the reliability test established in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), with respect to the admissibility of "testimonial" evidence. The Crawford Court held that the Confrontation Clause does not permit the admission in evidence of ex parte "testimonial" statements, which the Court did not precisely define, unless the accused has had a prior opportunity for cross-examination and the declarant is unavailable. "Where testimonial evidence is at issue,. . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, supra at 68, 124 S.Ct. 1354.

But Crawford does not help defendant because we find that the victim's statements that were admitted in evidence were not "testimonial." None of the victim's statements at issue was the product of "ex parte examinations [to be used] as evidence against the accused," which the "right to confrontation was meant to prohibit...." Id. at 50, 124 S.Ct. 1354. Further, we believe the Crawford Court indicated that statements similar to those at issue here were not "testimonial" when the Court noted that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51, 124 S.Ct. 1354.

Our conclusion that the victim's statements were not "testimonial" is further supported by this Court's decisions in People v. Walker, 265 Mich.App. 530, 697 N.W.2d 159 (2005), lv. gtd. 472 Mich. 928, 697 N.W.2d 527 (2005), and People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687 (2004). The Geno Court reviewed hearsay admitted under MRE 803(24) and found that a "child's statement . . . made to the executive director of the Children's Assessment Center, not to a government employee, and the child's answer to the question whether she had an `owie'" was not testimonial. Geno. supra at 631, 683 N.W.2d 687. More on point is Walker, in which this Court held that a domestic violence victim's excited statements to a neighbor and to the first responding police officer while the victim was "hysterical . . . scared, crying, highly upset, and shaking" were properly admitted at trial under MRE 803(2). Walker, supra at 534-535, 697 N.W.2d 159. The Walker Court held that the victim's statements were not "testimonial" within the meaning of Crawford, opining: ...