People v. Johnson

• Decision Date: 22 November 2022
• Docket Number: 353531,354946
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERON DARNELL JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERON DARNELL JOHNSON, Defendant-Appellant.

Nos. 353531, 354946

Court of Appeals of Michigan

November 22, 2022

UNPUBLISHED

Genesee Circuit Court LC Nos. 19-044736-FC; 19-044737-FC

Before: Riordan, P.J., and Boonstra and Gadola, JJ.

Per Curiam.

In Docket No. 353531, defendant appeals as of right his conviction and sentence in LC No. 19-044737-FC for aggravated domestic assault, MCL 750.81(a)(2), for which he was sentenced to 365 days in jail, with credit for 365 days served. In Docket No. 354946, defendant appeals as of right his convictions and sentences in LC No. 19-044736-FC for assault with intent to do great bodily harm, MCL 750.84; first-degree home invasion, MCL 750.110a(2); discharging a firearm in a dwelling, MCL 750.234b; felon in possession of a firearm, MCL 750.224f; felon in possession of ammunition, MCL 750.224f(6); five counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b with regard to the predicate felonies previously listed; and carrying a concealed weapon, MCL 750.227.

Defendant was sentenced in that case as a fourth habitual offender, MCL 769.12, to the following terms of imprisonment: assault with intent to do great bodily harm, 25 to 50 years; first-degree home invasion, 15 to 25 years; discharging a firearm in a dwelling, 2 to 10 years; felon in possession of a firearm, 2 to 5 years; felon in possession of ammunition, 2 to 5 years carrying a concealed weapon, 2 to 5 years; and 2 years for each of the felony-firearm charges. The felony-firearm charges were to be served concurrently with each other but consecutively with the remaining charges, which were to be served concurrently themselves. We affirm.

I. THE APPEAL

A. PRELIMINARY EXAMINATION TESTIMONY

Defendant argues that the trial court violated both MRE 804 and the Confrontation Clause by declaring Michael Mack unavailable and reading his preliminary examination transcript to the jury. Defendant alternatively argues that if these two arguments are unpreserved, then defense counsel was ineffective.^[1] We disagree.

Ordinarily "[t]his Court reviews a trial court's evidentiary ruling for an abuse of discretion." People v Benton, 294 Mich.App. 191, 195; 817 N.W.2d 599 (2011). "Preliminary issues of law, including the interpretation of the rules of evidence and the effect of constitutional provisions, are reviewed de novo." Id. "The constitutional question whether defendant was denied [the] constitutional right to confront the witnesses against [him] is reviewed de novo." Id.

Unpreserved issues are reviewed for plain error. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (cleaned up).

This Court reviews a trial court's decision on a motion for a new trial for an abuse of discretion. People v Rogers, 335 Mich.App. 172, 191; 966 N.W.2d 181 (2020).

"A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." People v Swain, 288 Mich.App. 609, 643; 794 N.W.2d 92 (2010) (quotation marks and citation omitted).

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const, Am VI; see also Const 1963, art 1, § 20. Under the Confrontation Clause, "[t]estimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v Washington, 541 U.S. 36, 59; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004). Statements made during a preliminary examination are testimonial. Id. at 68. "[W]hile cross-examination before trial may not be as searching as cross-examination at trial, prior testimony is nevertheless admissible so long as the defendant was not significantly limited in his cross-examination." United States v Mallory, 902 F.3d 584, 591 (CA 6, 2018) (quotation marks and citation omitted). Thus, "the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Delaware v Fensterer, 474 U.S. 15, 22; 106 S.Ct. 292; 88 L.Ed.2d 15 (1985).

MRE 801(c) defines "hearsay" as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Generally, hearsay is inadmissible at trial. See MRE 802. However, MRE 804(b)(1) provides that "[t]estimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination" is admissible "if the declarant is unavailable as a witness." MRE 804(a)(2) provides that "unavailability" includes a situation in which the declarant "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so." Further, in People v Farquharson, 274 Mich.App. 268; 731 N.W.2d 797 (2007), this Court set forth the following three-factor test to determine whether a party had a "similar motive to develop the testimony" for the purposes of MRE 804(b)(1):

(1) whether the party opposing the testimony had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue; (2) the nature of the two proceedings-both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities). [Id. at 278 (quotation marks and citations omitted).]

Here, admission of Mack's preliminary examination testimony did not violate the Confrontation Clause or MRE 804(b)(1). As to the Confrontation Clause, defendant concedes on page seven of his brief on appeal that "Mr. Mack was unavailable at trial because he refused to testify and was held in contempt." The question therefore becomes whether defendant had a prior opportunity to cross-examine Mack and was not "significantly limited" in that regard. See Mallory, 902 F.3d at 591.

The record indicates that defendant did have an opportunity to cross-examine Mack. That preliminary examination was not unduly limited in scope, and defense counsel was able to cross-examine Mack regarding his credibility and the elements of the charged offenses. For example, defense counsel was able to have Mack admit that he did not actually see the gun that was used to shoot him. As a general rule, this Court has previously concluded that preliminary examination testimony is admissible without violating the Confrontation Clause, so long as the declarant is otherwise unavailable. See, e.g., People v Garland, 286 Mich.App. 1, 7; 777 N.W.2d 732 (2009). Federal courts have done so as well in the context of grand jury proceedings. See, e.g., United States v Shaffers, 22 F4th 655, 661 (CA 7, 2022). Thus, Mack's preliminary examination testimony was presumptively admissible under the Confrontation Clause, and there is nothing particular about this case that would warrant a different conclusion.

Defendant of course, argues otherwise, citing U.S. Supreme Court Justice Brennan's dissent in California v Green, 399 U.S. 149; 90 S.Ct. 1930; 26 L.Ed.2d 489 (1970), in which Justice Brennan asserted that "the purposes of the Confrontation Clause cannot be satisfied by a face-to- face encounter at the preliminary hearing" because "the objective of the hearing is to establish the presence or absence of probable cause, not guilt or innocence proved beyond a reasonable doubt," "neither defense nor prosecution is eager before trial to disclose its case by extensive examination at the preliminary hearing," and "lost in a cold reading of the preliminary transcript is the more subtle yet undeniable effect of counsel's rhetorical style, his pauses for emphasis and his variations in tone, as well as his personal rapport with the jurors." Id. at 195-197 (Brennan, J., dissenting) (cleaned up). However, this reasoning was rejected by the majority in the case's holding, which concluded that the Confrontation Clause was not violated by admission of the declarant's preliminary examination testimony. Id. at 164 (majority opinion). The majority noted, for example, that the declarant "was under oath; respondent was represented by counsel-the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine [the declarant] as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings." Id. at 165. In light of the majority opinion in Green, as well as more recent decisions allowing admission of preliminary examination testimony under the...