People v. Jambor

• Decision Date: 04 January 2007
• Docket Number: Docket No. 259014.
• Citation: 273 Mich. App. 477,729 N.W.2d 569
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v. Dwight-Sterling David JAMBOR, Defendant-Appellee/Cross-Appellant (On Remand).
• Court: Court of Appeal of Michigan — District of US

729 N.W.2d 569

273 Mich. App. 477

PEOPLE of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v. Dwight-Sterling David JAMBOR, Defendant-Appellee/Cross-Appellant (On Remand).

Docket No. 259014.

Court of Appeals of Michigan.

Submitted October 25, 2006, at Lansing.

Decided January 4, 2007, at 9:05 a.m.

Released for Publication March 30, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Appellate Division Chief, and Danielle Walton, Assistant Prosecuting Attorney, for the people.

Mitchell, Lord & Associates, P.L.L.C. (by Gregory Fisher Lord), Southfield, for the defendant.

Before: COOPER, P.J., and MARK J. CAVANAGH and FITZGERALD, JJ.

PER CURIAM.

This case is before us on remand from the Supreme Court. We reverse.

The facts underlying this case are set forth in our initial opinion. See People v. Jambor, 271 Mich.App. 1, 717 N.W.2d 889, rev'd 477 Mich. 853, 720 N.W.2d 746 (2006). To summarize, on August 20, 2003, a break-in occurred at the Bloomfield Surf Club in Bloomfield Township. Officer Paul Schwab responded to the scene and learned that the perpetrator had gained entrance to the club by breaking a sliding glass window. Approximately $50 had been taken from a cash box, which was located on a counter. Evidence technician Robert Brien responded to the scene and lifted fingerprints from the point of entry and the cash box. Brien attached the tape for each print lifted to an individual fingerprint card, and on the back of each fingerprint card he wrote the complaint number, the date, and the location from which the fingerprint was lifted. Brien recovered seven fingerprints. He attached three fingerprints to black fingerprint cards and four fingerprints to white fingerprint cards. At the time the fingerprints were lifted from the scene, no person had been identified as a suspect. The fingerprints were placed in the Automated Fingerprint Identification System (AFIS). The AFIS identified a fingerprint on a white fingerprint card as belonging to defendant. No fingerprint on any other fingerprint card matched defendant's fingerprints. Defendant was charged with breaking and entering with intent to commit larceny in connection with the incident.

Defendant moved to exclude the seven fingerprint cards on the ground that they constituted inadmissible hearsay. The trial court held an evidentiary hearing on September 22, 2004. Brien had died in the interim; therefore, Schwab testified regarding Brien's activities at the crime scene. Schwab testified that the location listed on each card was consistent with a location where he observed Brien lift a fingerprint. Schwab identified the handwriting on each card as that of Brien. Schwab acknowledged that during the time he observed Brien at the scene, he saw Brien use only black cards.

The trial court granted defendant's motion to suppress in part and denied it in part. The trial court excluded the four white cards on the ground that the prosecution failed to lay a proper foundation for the admission of those cards into evidence. The trial court ruled that the black cards were admissible under MRE 803(8), the public records exception to the hearsay rule, because they were made part of a police report at a time when there was no adversarial relationship with defendant. The trial court then granted defendant's motion to dismiss the case.

We affirmed the trial court's dismissal of the case after concluding that the trial court did not abuse its discretion by determining that the prosecution had failed to authenticate the four white fingerprint cards and that the proper foundation for admission of the evidence was not established. The Supreme Court reversed our judgment, holding that the white fingerprint cards were properly authenticated under MRE 901 as fingerprint cards relating to the offense. 477 Mich. 853, 720 N.W.2d 746 (2006). The Court directed us to consider on remand the remaining issues raised by the parties in the initial appeal and cross-appeal. We must now determine whether admission of the fingerprint cards would violate the rules of evidence or the Confrontation Clause.¹

The decision to admit or exclude evidence is reviewed for an abuse of discretion. People v. Bauder, 269 Mich.App. 174, 179, 712 N.W.2d 506 (2005). A preliminary issue of law regarding admissibility based on construction of a constitutional provision, rule of evidence, court rule, or statute is subject to review de novo. People v. Jones, 270 Mich.App. 208, 211, 714 N.W.2d 362 (2006).

A. Hearsay Exceptions

"Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). A statement can be either an oral or a written assertion. MRE 801(a). Hearsay is inadmissible unless subject to an enumerated exception. MRE 802.

1. MRE 803(6)

MRE 803(6), the business records exception to the hearsay rule, provides in pertinent part:

Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The business records exception is based on the inherent trustworthiness of business records. But that trustworthiness is undermined and can no longer be presumed when the records are prepared in anticipation of litigation. Solomon v. Shuell, 435 Mich. 104, 120-121, 457 N.W.2d 669 (1990) (police reports deemed inadmissible under MRE 803[6] because officers who prepared reports knew they were subjects of a homicide investigation). People v. McDaniel, 469 Mich. 409, 670 N.W.2d 659 (2003), concerned the admissibility of a laboratory report identifying as heroin the contents of a packet sold by the defendant to an undercover officer. The chemist who tested the contents of the packet did not testify at trial. Another police chemist testified, however, that a misidentification of a substance had never occurred during his term of employment. The trial court admitted the evidence, and a jury convicted the defendant. This Court affirmed the defendant's conviction. Id. at 410-412, 670 N.W.2d 659. The McDaniel Court found that the report was inadmissible under MRE 803(6) because it was prepared in anticipation of litigation and, therefore, was not sufficiently trustworthy. Id. at 414, 670 N.W.2d 659.²

The prosecution argues that the fingerprint cards were admissible under MRE 803(6). The prosecution notes that Schwab testified that Brien prepared the fingerprint cards in the normal course of practice for an evidence technician. Moreover, the prosecution emphasizes that when Brien prepared the fingerprint cards, no person, including defendant, was identified as a suspect in the break-in. Therefore, the fingerprint cards did not lack sufficient indicia of trustworthiness.

Defendant argues that the fingerprint cards constitute hearsay not admissible under any exception. Specifically, defendant asserts that fingerprint cards are not admissible under the public records exception of MRE 803(8) and that admission of the cards under MRE 803(6) would be inconsistent with the purposes of MRE 803(8).

The uncontradicted evidence showed that the fingerprint cards were prepared during the normal course of investigating a crime scene. Schwab observed Brien prepare some of the cards using regularly established practices. Moreover, it is undisputed that no person was identified as a suspect in the break-in at the time Brien prepared the fingerprint cards. This fact distinguishes this case from McDaniel. In McDaniel, the laboratory report at issue was prepared with the goal of establishing an element of the crime with which the defendant was charged, i.e., that the substance the defendant delivered was heroin. The McDaniel Court reasoned that the trustworthiness inherent in business records was undermined when the report was prepared in anticipation of litigation; therefore, the report was inadmissible because the circumstances under which it was prepared lacked sufficient indicia of trustworthiness. McDaniel, supra at 414, 670 N.W.2d 659; see also People v. Huyser, 221 Mich.App. 293, 298, 561 N.W.2d 481 (1997) (physician's report inadmissible under MRE 803[6] because prepared specifically for purposes of litigation against the defendant).

Here the fingerprint cards were prepared with the ultimate goal of identifying a suspect in the break-in, but were not prepared specifically in anticipation of litigation against defendant. No adversarial relationship existed between defendant and law enforcement at the time the fingerprint cards were prepared. The argument that evidence such as fingerprint cards prepared under circumstances similar to those presented by this case is inadmissible under MRE 803(6) and McDaniel could, taken to its logical extreme, preclude the admission of any physical evidence such as fingerprints or shoeprints. No authority holds that such evidence, which must be collected and preserved by law enforcement to be useable, is inadmissible under all circumstances. Such a holding would not serve the purposes of MRE 803(6). We conclude that the fingerprint cards are admissible as business records under MRE 803(6).

2. MRE 803(8)

MRE 803(8), the public records exception to the hearsay rule, provides:

Public...