People v. Farquharson

• Decision Date: 13 February 2007
• Docket Number: Docket No. 271783.
• Citation: 731 N.W.2d 797,274 Mich. App. 268
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kerrick FARQUHARSON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

731 N.W.2d 797

274 Mich. App. 268

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kerrick FARQUHARSON, Defendant-Appellee.

Docket No. 271783.

Court of Appeals of Michigan.

Submitted January 18, 2007, at Detroit.

Decided February 13, 2007, at 9:10 a.m.

Released for Publication May 14, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David S. Leyton, Prosecuting Attorney, and Donald A. Kuebler, Chief of Research, Training, and Appeals, for the people.

Neil C. Szabo, Flint, for the defendant.

Before: FORT HOOD, P.J., and TALBOT and SERVITTO, JJ.

SERVITTO, J.

Plaintiff appeals by delayed leave granted the trial court's March 25, 2006, order granting defendant's motion to admit the investigative subpoena testimony of a now-deceased witness, Andre Mathis, at trial. Because defendant was required to show that the prosecution had a similar motive in developing Mathis's testimony at the investigative subpoena hearing before the trial court could admit Mathis's investigative subpoena testimony at trial, we vacate the trial court's order and remand for a determination regarding whether the prosecution had a similar motive in developing Mathis's testimony at the investigative subpoena hearing.

This appeal arises from the shooting of Denise Colen and her brother, David Colen, Jr., outside of an after-hours club in Flint. David Colen died as a result of injuries he incurred from the shooting. Mathis witnessed the shooting and, after being issued an investigative subpoena, appeared at the Genesee County Prosecuting Attorney's office to give sworn testimony regarding the incident. The testimony he provided indicated that a man known as "Rick" (later clarified to be Ricardo Otis Dickerson) was the shooter. Several months later, defendant signed a proffer agreement concerning a criminal charge brought against him (for an unrelated incident), which contained a written statement of the Colen shootings, and which the prosecution contends contradicted his investigative subpoena testimony. Mathis was listed as a witness for the prosecution, but died as a result of gunshot wounds before trial in this matter began. After Mathis's death, defendant filed a motion to introduce a transcript of Mathis's investigative subpoena testimony at trial and the trial court granted defendant's motion. By leave granted, this appeal followed.

This Court reviews a trial court's determination of evidentiary issues for an abuse of discretion. People v. Smith, 456 Mich. 543, 550, 581 N.W.2d 654 (1998). "`[A]n abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.'" Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809, 817 (2006), quoting People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003). "`When the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court's judgment." Id. "However, decisions regarding the admission of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the evidence." People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). This Court reviews questions of law de novo. Id.

On appeal, neither party disputes that Mathis's testimony is hearsay. Rather, defendant contends that the testimony falls within an exception to the hearsay rule and is thus admissible. Plaintiff, however, contends that defendant failed to show that Mathis's investigative subpoena testimony was admissible under MRE 804(b)(1), and that the admission of the testimony constituted an abuse of the trial court's discretion. Plaintiff also contends that Mathis's testimony is akin to grand jury testimony, and thus, it must satisfy the same evidentiary standards to be admissible at trial.

Out-of-court statements offered for their truth are usually inadmissible hearsay. See MRE 801(c); MRE 802. MRE 804(b), however, provides several hearsay exceptions if a declarant is unavailable as a witness.¹ Defendant advocates for admission of Mathis's testimony in his defense pursuant to MRE 804(b)(1), which provides that "former testimony" is excluded from the hearsay rule if the witness's testimony was "given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

Pursuant to the langue of MRE 804(b)(1), the first element necessary for the admission of former testimony is that the testimony must have been made at "another hearing." Plaintiff does not seriously dispute that the investigative subpoena hearing qualifies as "another hearing." In fact, plaintiff likens Mathis's testimony to testimony given during a grand jury proceeding, which has been held to be a hearing for purposes of FRE 804(b)(1).² See US v. Salerno, 505 U.S. 317, 322, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992). Moreover, a quick review of the statutes governing investigative subpoena proceedings and grand jury proceedings reveals noteworthy similarities which compels us to hold that Mathis's testimony was given at "another hearing" for purposes of MRE 804(b)(1).

MCL 767A.2 allows a prosecuting attorney to petition the district court, the circuit court, or the recorder's court in writing for authorization to issue 1 or more subpoenas to investigate the commission of a felony. A court may "authorize the prosecutor to issue an investigative subpoena if the judge determines that there is reasonable cause to believe a felony has been committed and that there is reasonable cause to believe that the person who is the subject of the investigative subpoena may have knowledge concerning the commission of a felony or the items sought are relevant to investigate the commission of a felony." In re Subpoenas to News Media Petitioners, 240 Mich.App. 369, 375, 613 N.W.2d 342 (2000), citing MCL 767A.3(1).

Investigative subpoenas must include a statement that a person may have legal counsel present at all times during questioning, MCL 767A.4(g), and a witness must be advised of his constitutional rights against compulsory self-incrimination. MCL 767A.5(5); People v. Stevens, 461 Mich. 655, 659 n. 1, 610 N.W.2d 881 (2000). A person served with an investigative subpoena must appear before the prosecuting attorney and answer questions concerning the felony being investigated. MCL 767A.5(1). The prosecuting attorney is authorized to administer oaths, MCL 767A.5(2), and if a witness testifies falsely during an investigative proceeding under oath, perjury penalties apply. MCL 767A.9.

In Michigan, grand jury proceedings are governed by MCL 767.1 et seq. See People v. Glass (After Remand), 464 Mich. 266, 278-280, 627 N.W.2d 261 (2001). "There is no state constitutional right to indictment by grand jury; rather, indictment by grand jury is an alternative charging procedure created by the Legislature." Id. at 278-279, 627 N.W.2d 261, citing In re Palm, 255 Mich. 632, 238 N.W. 732 (1931). MCL 767.21 provides:

The prosecuting attorney and other prosecuting officers, may, in all cases, issue subpoenas for witnesses to appear and testify on behalf of the people of this state; and the subpoena, under the hand of such officer, shall have the same force and be obeyed in the same manner and under the same penalties, as if issued by the clerk or any magistrate.

A witness testifying before a grand jury does so under oath and may be found in contempt if the witness neglects or refuses to appear or testify or to "answer any questions before the grand jury concerning any matter of thing of which the witness has knowledge concerning matters before the grand jury . . . ." MCL 767.19c.

A "one person" grand jury may also be convened to investigate whether probable cause exists to suspect a crime has been committed. The "one person" grand jury is a creation of statute and draws its extraordinary powers from statute. MCL 767.3-MCL 767.4; In re Slattery, 310 Mich. 458, 17 N.W.2d 251 (1945). MCL 767.3 grants the one-person grand juror certain powers, including subpoena power to:

require such persons to attend before him as witnesses and answer such questions as the judge may require concerning any violation of law about which they may be questioned within the scope of the order . . . . The proceedings to summon such witness and to compel him to testify shall, as far as possible, be the same as proceedings to summon witnesses and compel their attendance and testimony.

Any witness that neglects or refuses to appear in response to a summons or to answer any questions posed by the one-person grand juror may be found in contempt of court. MCL 767.5.

As can be seen above, both statutes provide mechanisms to subpoena witnesses to testify regarding circumstances surrounding the investigation of a felony. MCL 767.3; MCL 767.21; MCL 767A.3(1). Furthermore, a witness testifying before either a grand jury or during an investigative subpoena hearing does so under oath and subject to the penalties for perjury. MCL 767.19d; MCL 767A.9. Similar procedures are also available for a defendant to obtain a witness's testimony from either a grand jury proceeding or an investigative subpoena hearing. See MCL 767.19g; MCL 767A.5. Because of the similarities between a grand jury proceeding and an investigative subpoena hearing, we find that testimony given at an investigative subpoena hearing qualifies as "[t]estimony given as a witness at another hearing of the same or a different proceeding . . ." under MRE 804(b)(1).

The challenged testimony having been given at another hearing, we next address whether the testimony meets the second requirement of MRE 804(b)(1) — that is, whether the party against...