People v. Burns, Docket No. 145604.

• Citation: 494 Mich. 104,832 N.W.2d 738
• Decision Date: 18 June 2013
• Docket Number: Docket No. 145604.,Calendar No. 4.
• Parties: PEOPLE v. BURNS.
• Court: Supreme Court of Michigan

494 Mich. 104
832 N.W.2d 738

PEOPLE
v.
BURNS.

Docket No. 145604.
Calendar No. 4.

Supreme Court of Michigan.

Argued April 10, 2013.
Decided June 18, 2013.

[832 N.W.2d 740]

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kurt C. Asbury, Prosecuting Attorney, and Sylvia L. Linton and Jordan Emerson Case, Assistant Prosecuting Attorneys, for the people.

State Appellate Defender (by Valerie R. Newman) for defendant.

David Leyton and Jerrold Schrotenboer for the Prosecuting Attorneys Association of Michigan, for Amicus Curiae.

McCORMACK, J.

[494 Mich. 106]In this case, we consider whether the Court of Appeals correctly reversed defendant's conviction and remanded for a new trial. It did so on the grounds that the circuit court erred by admitting hearsay testimony on the theory that defendant's conduct amounted to forfeiture by wrongdoing under the Michigan Rules of Evidence.¹ We agree that the circuit court erred by admitting the challenged statements, because the prosecution failed to demonstrate that defendant had the specific intent to, and in fact did, cause the unavailability of the declarant as a witness.² Accordingly, we affirm the Court of Appeals judgment.

[494 Mich. 107]I. FACTS AND PROCEDURAL HISTORY

On August 18, 2010, a bible school teacher (Gonzales) filed a police report concerning disclosures made to her the day before by a four-year-old girl (CB). The disclosures suggested that CB had been sexually abused by defendant, her father. Defendant promptly moved out of the home he shared with CB and her mother. Defendant was arrested on September 2, 2010, and he had no further contact with CB.

After the initial disclosure to Gonzales, CB was interviewed twice, first by a forensic interviewer on September 1, 2010, and later by a sexual-assault nurse examiner. In both interviews CB indicated that defendant had engaged in sexual conduct with her. A medical examination did not find evidence of sexual intercourse.

CB did not testify at the preliminary examination. Nevertheless, defendant was bound over to circuit court.³ At trial, the court permitted Gonzales to testify to CB's out-of-court statements concerning the suspected abuse before CB testified.⁴

[832 N.W.2d 741]

Gonzales testified that CB had told her that “Dave Junior” hurt her by licking and digitally penetrating her “butt.” After [494 Mich. 108]Gonzales testified, the prosecutor attempted to elicit testimony from CB four times.⁵ All four attempts were unsuccessful. CB left the witness chair, hid under the podium, refused to answer questions asked by the prosecutor, indicated that she would not tell the truth, stated that she was fearful of the jury, and expressed a desire to leave the courtroom.

The trial court then held a hearing to determine whether there was a separate basis for admitting Gonzales's conditionally admitted testimony, because MRE 803A required CB to testify.⁶ The prosecutor argued, and the court agreed, that defendant had rendered CB unavailable to testify through his own wrongdoing, and the court admitted Gonzales's testimony under MRE 804(b)(6). The trial court based its ruling on a video recording of CB's interview with the forensic interviewer: When asked if defendant had said anything during the alleged abuse, CB stated that defendant told her “not to tell,” and that “[defendant] didn't want me to tell nobody” or else she would “get in trouble.” The trial court determined that defendant's instructions, as recounted by CB, were sufficient to find forfeiture by wrongdoing.

[494 Mich. 109]The trial court also determined that CB was unavailable to testify, a condition for admissibility under MRE 804(b)(6), “because, among other things, of her infirmity, her youth, to be able to testify here in court and the fear, frankly, that she has of testifying here in court.” ⁷

Having found Gonzales's testimony admissible under MRE 804(b)(6), the trial court also concluded that defendant had forfeited his confrontation right.⁸ The court admitted the testimony of the sexual-assault nurse examiner and the transcript and video recording of CB's forensic interview with the forensic interviewer. CB never testified. There was no other evidence of the abuse apart from the hearsay testimony. Defendant testified that he did not abuse CB.

[832 N.W.2d 742]

The jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b. The Court of Appeals reversed in an unpublished opinion per curiam,⁹ concluding that the circuit court erred in its application of the forfeiture-by-wrongdoing analysis. The Court of Appeals concluded that the prosecutor had failed to establish by a preponderance of the evidence that defendant had both the specific intent to cause CB's unavailability, and that the wrongdoing did, in fact, cause CB's unavailability. We granted leave to appeal.¹⁰

[494 Mich. 110]II. STANDARD OF REVIEW

A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion.¹¹ Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo.¹² Likewise, interpretation of a court rule is a question of law that we review de novo.¹³ A preserved error in the admission of evidence does not warrant reversal unless “ ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” ¹⁴

III. LEGAL BACKGROUND

A defendant can forfeit his right to exclude hearsay by his own wrongdoing. ¹⁵MRE 804(b)(6) provides that a statement is not excluded by the general rule against hearsay if the declarant is unavailable, and the “statement [is] 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.” ¹⁶ This rule, commonly known as the forfeiture-by-wrongdoing[494 Mich. 111]rule, was adopted in 2001 and is substantially similar to its federal counterpart, FRE 804(b)(6).¹⁷

As the United States Supreme Court explained in Giles, forfeiture by wrongdoing has its roots in the common law, and is based on the maxim that “no one should be permitted to take advantage of his wrong.” ¹⁸ The forfeiture doctrine

[832 N.W.2d 743]

not only provides a basis for an exception to the rule against hearsay; it is also an exception to a defendant's constitutional confrontation right. Insofar as it applies to the Sixth Amendment, however, the forfeiture doctrine requires that the defendant must have specifically intended that his wrongdoing would render the witness unavailable to testify. ¹⁹

In Giles, the defendant was convicted of murder in the death of his ex-girlfriend. He testified that he had killed her in self-defense. The prosecution introduced statements the victim had made to police officers several weeks before the homicide, in which she described a death threat the defendant made to her. The California Supreme Court determined that the statements were testimonial, but that defendant had forfeited his right to confront the victim because he had committed the murder for which he was on trial, and because his intentional criminal act had caused the victim to be unavailable to testify.²⁰ The United States Supreme [494 Mich. 112]Court reversed, holding that for a defendant to forfeit his confrontation right by his or her wrongdoing, the defendant must have had “in mind the particular purpose of making the witness unavailable.” ²¹

Since its adoption in 2001, only two published Michigan appellate cases have discussed the application of Michigan's forfeiture rule, MRE 804(b)(6). Both preceded Giles. In People v. Bauder, the Court of Appeals discussed MRE 804(b)(6) but did not address its proper application. ²² There, the defendant argued that his confrontation right had been violated when the trial court admitted hearsay testimony.²³ The Court of Appeals ultimately determined that the challenged statements were nontestimonial and properly admitted as statements of a then-existing mental condition under MRE 803(3).²⁴ Yet in discussing the forfeiture issue, the Bauder Court rejected the defendant's argument that forfeiture by wrongdoing for purposes of the Confrontation Clause required a showing of intent.²⁵ That approach was rejected by the United States Supreme Court in Giles.²⁶

The Court of Appeals has specifically addressed forfeiture by wrongdoing more recently in People v. Jones.²⁷[494 Mich. 113]There, the Court of Appeals held that to admit hearsay under the forfeiture doctrine, the prosecution was required to prove: “(1) that the defendant engaged in or encouraged wrongdoing; (2) that the wrongdoing was intended to procure the declarant's unavailability; and (3) that the wrongdoing

[832 N.W.2d 744]

did procure the unavailability.” ²⁸ The Jones Court further held that the preponderance of the evidence standard applied, consistent with a majority of the federal circuit courts.²⁹ While Jones preceded Giles, its application of forfeiture by wrongdoing as incorporating a specific intent element is consistent with Giles.³⁰ We agree with the Jones Court that MRE 804(b)(6) incorporates a specific intent requirement. For the rule to apply, a defendant must have “engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” ³¹

We note that the Court of Appeals explicitly avoided defendant's Confrontation Clause claim in this case in recognition of our constitutional avoidance doctrine.³² It is nonetheless readily apparent that evidence offered under the forfeiture exception will very regularly be testimonial and subject to Sixth Amendment scrutiny. As forfeiture by wrongdoing is the only recognized [494 Mich. 114]exception to the Sixth Amendment's guarantee of the right to cross-examine adverse witnesses,³³ the constitutional question will often go hand-in-hand with the evidentiary question, as it did in the trial court here.

Because the...