People v. Breeding
| Decision Date | 16 June 2009 |
| Docket Number | Docket No. 280708. |
| Citation | 284 Mich. App. 471,772 N.W.2d 810 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE v. BREEDING. |
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jacqueline J. McCann and Kim M. McGinnis), for the defendant.
Before: FORT HOOD, P.J., and WILDER and BORRELLO, JJ.
Defendant pleaded no contest to a charge of second-degree criminal sexual conduct (CSC), MCL 750.520c(1)(a), for engaging in sexual penetration with a person under the age of 13, and was sentenced to five years' probation. The trial court subsequently determined that defendant violated a condition of his probation prohibiting contact with children less than 16 years of age, revoked his probation, and sentenced him to 38 months to 15 years' imprisonment. This Court denied defendant's delayed application for leave to appeal. People v. Breeding, unpublished order of the Court of Appeals, entered October 23, 2007 (Docket No. 280708). In lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration
as on leave granted, of the defendant's claim that his constitutional right to confront the witnesses against him was violated by the trial court's admission, at the probation revocation hearing, of certain statements by out-of-court declarants. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In considering this claim, the Court of Appeals shall address whether the federal circuit Court of Appeals decisions addressing this issue are correct that Crawford does not apply to probation revocation hearings. See, e.g., United States v. Kelley, 446 F.3d 688 (C.A.7, 2006); United States v. Rondeau, 430 F.3d 44 (C.A.1, 2005); United States v. Hall, 419 F.3d 980 (C.A.9, 2005); United States v. Kirby, 418 F.3d 621 (C.A.6, 2005); United States v. Martin, 382 F.3d 840 (C.A.8, 2004); and United States v. Aspinall, 389 F.3d 332 (C.A.2, 2004)." [People v. Breeding, 481 Mich. 884, 748 N.W.2d 882 (2008).]
We agree with the federal courts of appeals that have held that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that the Sixth Amendment generally forbids the introduction of out-of-court testimonial statements in a criminal prosecution, does not apply to probation revocation hearings. For the reasons set forth in this opinion, we affirm.
Defendant was charged with first-degree CSC for engaging in fellatio with a person under 13 years of age, MCL 750.520b(1)(a), and two counts of distributing sexually explicit materials to a minor, MCL 722.675. The victim was the son of defendant's former girlfriend. On November 30, 2004, defendant pleaded no contest to a single charge of second-degree CSC pursuant to a plea agreement. On December 21, 2004, the trial court sentenced defendant to five years' probation. One of defendant's probation terms was that he have no contact with children under 16 years of age and no unsupervised contact with his own children.1
In June 2005, defendant pleaded guilty of violating the curfew conditions of his tether. Defendant admitted that he received a call from a friend who told him that she was taking her children swimming at a local hotel and that he took his children to the hotel and met the friend and her children there. According to defendant, his friend was aware of his conviction. The trial court continued defendant's probation but ordered him to serve one year in jail. Thereafter, the trial court amended defendant's probation order. The amendment precluded defendant from having overnight visits with his children or any other children under the age of 16 years. Further, defendant's contact with his own children was required to be supervised by an adult approved by defendant's probation officer.
On August 18, 2006, the trial court authorized a bench warrant for defendant's arrest after a petition was filed alleging that defendant violated the condition that he not have contact with children under the age of 16 by having contact with his friend, Lisa Plummer, who had two small children. At a probation violation hearing on August 31, 2006, defendant's probation officer, Linda Hines, testified that on August 17, 2006, she investigated a complaint that defendant was having continuous contact with Lisa and her children. According to Hines:
Upon approach to [Lisa Plummer's] residence, I witnessed [defendant] coming out of the residence, and I pulled up behind some vehicles, so I couldn't really see whether he got in a car and left, either.
So I called my supervisor and we discussed it and he decided to join me.... When he came, we approached the residence and knocked on the door. Miss Plummer came out and spoke with us, and we told her who we were, and that I had just witnessed [defendant] leaving her residence.
When we approached the residence, there were two small children in the window waving and smiling ... and Miss [Plummer] came out and we informed, like I said, why we were there. She admitted [defendant] had been there. She was unaware that he was not supposed to have any contact with children.
I informed her, because of this, I would be contacting protective serves [sic], which I did, and they went over and investigated, and I spoke with a protective services worker on Tuesday, who indicated this was a relationship. He was having contact with the children, but the mother said he was never unsupervised with the children.
On cross-examination, Hines admitted that she did not see defendant actually leave the residence and that she did not see defendant near the children and did not observe if defendant spoke with, contacted, or touched the children. Hines also testified that Lisa admitted that defendant had been having contact with her children, but that defendant had never been with the children without supervision. It is unclear from the record if Lisa relayed this information to Hines or if Hines learned this information from the protective services worker. According to Hines, Lisa had told the protective services worker that she and defendant were beginning a romantic relationship. Lisa's mother, Wilma Plummer, also testified at the probation revocation hearing. Wilma Plummer testified that she knew that defendant was not allowed to have any contact with children and that Lisa never let defendant around her children and that when she (Wilma) was with Lisa's children, defendant did not have contact with the children.
Following Wilma Plummer's testimony, the trial court asked if Lisa was present in court. Wilma replied, "No, she has got M.S. [multiple sclerosis]." According to defense counsel, Lisa had been in contact with child protective services and was concerned about coming to court. Defense counsel did not object to any of the testimony offered by Hines and did not ask the trial court to compel Lisa Plummer or the protective services worker to testify.
The trial court then issued its findings from the bench:
The defendant has a condition of probation that he is to have no contact, not supervised, but no contact with children aged 16 or under, because of his status as a sexual offender of young children. He chooses to enter into, as stated by Lisa, stated by the probation officer that Lisa stated a beginning of a romantic relationship with a woman who by her mother's statement has M.S. and has two young children in the household. That is a clear violation of the conditions of the probation department and [the] court finds him guilty.
Following defense counsel's request for clarification of the trial court's ruling, the trial court stated:
First of all, findings of the court are not based on what the mother [Wilma Plummer] said, whether the mother was present. She admitted the relationship isn't with her, it's with Lisa her daughter, and there is no—this mother, she's not there all the time. She is not there with the children all the time or with her daughter all the time. It is the beginnings [sic] of a relationship with a woman with two young children and his leaving from that house indicates he is in violation.
Defendant moved for reconsideration, arguing that there was no evidence to support the conclusion that he violated a condition of his probation by having contact with Lisa's children. At the sentencing hearing on September 18, 2006, the trial court denied the motion, observing that Hines had testified under oath that Lisa Plummer stated that defendant had been at her house and that she did not know that defendant was prohibited from having contact with children.
At the same sentencing hearing, Hines informed the trial court that she had received information from the child protective services worker that Lisa was now claiming that her relationship with defendant was purely platonic. The trial court was also made aware, for the first time, that Lisa and her children were involved in defendant's earlier probation violation. The court determined that this information made Wilma's testimony incredible. The trial court commented that "the court has additional information that she [Lisa] is a handicapped woman who has never come here to testify, and you [defense counsel] have had every opportunity to have her present, and that obviously puts it into issue here." Defense counsel asked the court to consider letters written by Lisa and Wilma.2 Defendant stated during his allocution that he had not had contact with children and that he and Lisa are friends. The trial court revoked defendant's probation and sentenced him to a prison term of 38 months to 15 years under the sentencing guidelines.
The prosecutor and defendant's counsel later stipulated that the sentencing...
To continue reading
Request your trial
-
Henderson v. Commonwealth
...test.... [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus.See also People v. Breeding, 284 Mich.App. 471, 485, 772 N.W.2d 810, 818 (2009) (quoting Reyes, 868 N.E.2d at 441). In assessing the probationer's interest in confronting a witness under the......
-
State v. Esquilin
..., 446 Mass. 61, 841 N.E.2d 1240, 1243 (2006) ; Blanks v. State , 228 Md.App. 335, 137 A.3d 1074, 1087 (2016) ; People v. Breeding , 284 Mich.App. 471, 772 N.W.2d 810, 812 appeal denied, 485 Mich. 917, 773 N.W.2d 261 (2009) ; State v. Johnson , 287 Neb. 190, 842 N.W.2d 63, 73 (2014) ; People......
-
Henderson v. Commonwealth of Va..
...test.... [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus.See also People v. Breeding, 284 Mich.App. 471, 485, 772 N.W.2d 810 (2009) (quoting Reyes, 868 N.E.2d at 441). While Virginia has not expressly adopted a specific approach, standard, or test......
-
State v. Walker
...v. United States, 863 A.2d 804, 807-08 (D.C.2004); State v. Palmer, 37 Kan. App.2d 819, 158 P.3d 363, 367 (2007); People v. Breeding, 772 N.W.2d 810 (Mich.Ct. App.2009); State v. Johnson, 221 Or.App. 394, 190 P.3d 455, 458 (2008); State v. Pauling, 371 S.C. 435, 639 S.E.2d 680, 682 (S.C.Ct.......