People v. Jones

• Decision Date: 07 March 2006
• Docket Number: Docket No. 258571.
• Citation: 714 N.W.2d 362,270 Mich. App. 208
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kyle Michael JONES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

714 N.W.2d 362

270 Mich. App. 208

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kyle Michael JONES, Defendant-Appellant.

Docket No. 258571.

Court of Appeals of Michigan.

Submitted January 5, 2006, at Grand Rapids.

Decided March 7, 2006, 9:10 a.m.

Released for Publication May 11, 2006.

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Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Gail Rodwan) for the defendant.

Before: ZAHRA, P.J., and MURPHY and NEFF, JJ.

NEFF, J.

Defendant appeals as of right his jury trial convictions of assault with intent to commit murder, MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 15 to 30 years' imprisonment for the conviction of assault with intent to commit murder, and to a consecutive two-year term for the felony-firearm conviction. We affirm.

I

This case resulted from the October 29, 2003, shooting of Vertdell Burnette on Kalamazoo's east side. Defendant was identified as the shooter, although testimony concerning the shooting varied widely and key witnesses were reluctant to testify or provide details of the shooting.

The shooting apparently was related to an ongoing dispute between certain residents of Kalamazoo's north and east sides. According to Burnette, who lived on Kalamazoo's north side, he went to the east side with his friend Chris on the afternoon of October 29. As they walked on the sidewalk, the two were approached from behind by a group of male teenagers, one of whom was wearing brass knuckles. When Burnette turned around, he was hit in the chin, and someone in the group told the two to get off the east side. As Burnette was running to a parked car, he was shot in the back of his left leg and lower back.

Burnette could not identify the shooter. Although numerous witnesses testified at trial, the only eyewitness was a friend of defendant's, Kendrick Troup, who refused to testify about defendant's involvement in the shooting, stating that he did not want to incriminate defendant and their mutual friends. In a separate hearing concerning his refusal to testify, however, Troup admitted that he feared retribution if he testified, particularly because certain individuals were present in the courtroom. After the hearing, and consulting with counsel, Troup did not resume his testimony. The trial court subsequently ruled that Troup's partial direct examination would be stricken from the record and that his earlier statement to the police would be admitted as evidence under MRE 804(b)(6).

II

Defendant argues that he was denied his Sixth Amendment right of confrontation because the trial court admitted into evidence the prior testimonial statement of eyewitness Troup, who was the prosecution's primary witness against defendant. Defendant contends that the admission of Troup's statement to Officers Hicok and Kloosterman was error because the prosecution did not prove that defendant forfeited his Confrontation Clause rights by procuring the unavailability of Troup as a witness under MRE 804(b)(6). Further, the error was not harmless and, therefore, requires reversal of his conviction. We disagree.

A

The decision to admit or exclude evidence is reviewed for a clear abuse of discretion. People v. Bauder, 269 Mich. App. 174, 179, 712 N.W.2d 506 (2005). Preliminary questions of law, such as whether a rule of evidence, constitutional provision, or statute precludes the admission of the evidence, are reviewed de novo. People v. Katt, 468 Mich. 272, 278, 662 N.W.2d 12 (2003).

An abuse of discretion exists only if an unprejudiced person, considering the facts on which the trial court acted, would say that there is no justification or excuse for the trial court's decision. Bauder, supra at 179, 712 N.W.2d 506. "A trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion." Id. However, an abuse of discretion occurs when a trial court admits evidence that is inadmissible as a matter of law. Katt, supra at 278, 662 N.W.2d 12.

Errors alleging constitutional violations may require heightened review:

When constitutional error occurs and is preserved, as defendant here alleges the admission of hearsay in violation of the right of confrontation to be such an error, a new trial must be ordered unless it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. On the other hand, ordinary trial error, even if preserved, will merit reversal only when, in the context of the entire trial, it affirmatively appears more probable than not that the error was outcome determinative. [Bauder, supra at 179-180, 712 N.W.2d 506. (citations omitted.)]

B

MRE 804(b)(6) provides an exception to the hearsay rule for a statement by a declarant made unavailable by the opponent. If the declarant is unavailable as a witness, the rule allows admission of "[a] statement 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." MRE 804(b)(6). MRE 804(b)(6), adopted in 2001, is nearly identical to FRE 804(b)(6),¹ except that the Michigan exception applies if a party "has engaged in or encouraged wrongdoing" rather than "engaged or acquiesced in wrongdoing" (emphasis added). These rules are a codification of the common-law equitable doctrine of forfeiture by wrongdoing, first recognized in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). Bauder, supra at 182-183, 712 N.W.2d 506. Under the doctrine, a defendant forfeits his or her constitutional right of confrontation if a witness's absence results from wrongdoing procured by the defendant:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the accused's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away....

[T]he rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.... [Reynolds, supra at 158-159; see Bauder, supra at 183, 712 N.W.2d 506.]

Although the Michigan and federal rules codify the rule of forfeiture by wrongdoing, the equitable doctrine "is not dependent on them for its application because the Sixth Amendment's protections are not dependent on `the vagaries of the rules of evidence.'" Bauder, supra at 184, 712 N.W.2d 506. quoting Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and citing United States v. Garcia-Meza, 403 F.3d 364, 370 (C.A.6, 2005).

In support of his arguments on appeal, defendant contends that he had a constitutional right to confront the prosecution's primary witness against him, citing Crawford. It is not clear whether defendant is asserting a right of confrontation independent of and despite the proper admission of hearsay evidence under MRE 804(b)(6). To the extent that defendant argues that Crawford requires an opportunity for cross-examination even if the defendant has by wrongdoing procured the absence of a witness, we disagree.

In Crawford, the Supreme Court

held that the Confrontation Clause does not permit the admission in evidence of ex parte "testimonial" statements, which the Court did not precisely define, unless the accused has had a prior opportunity for cross-examination and the declarant is unavailable. "Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." [Bauder, supra at 180-181, 712 N.W.2d 506, quoting Crawford, supra at 68, 124 S.Ct. 1354.]

In our view, in deciding Crawford, the United States Supreme Court did not intend to deem testimonial hearsay evidence, such as that in the present case, inadmissible on the basis of a witness's unavailability and the lack of a prior opportunity for cross-examination if the defendant is responsible for procuring the witness's unavailability. In Crawford, the Court overruled its earlier decision in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that a hearsay statement against a criminal defendant was admissible if the witness was unavailable and the statement bore adequate "indicia of reliability" by either falling within a "firmly rooted hearsay exception," or because it possessed "particularized guarantees of trustworthiness." In discussing the Confrontation Clause and Roberts, Justice Scalia stated:

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds [supra at 158-159]. [Crawford, supra at 62, 124 S.Ct. 1354.]

These statements indicate that the reasoning in Crawford does not apply to the circumstances at issue in this case. "If . . . the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness." United States v. Cromer, 389 F.3d 662, 679 (C.A.6, 2004). Defendant's constitutional right to confrontation is waived under the doctrine of forfeiture by wrongdoing if hearsay testimony is properly admitted because the declarant's...