People v. Jordan

• Decision Date: 19 April 2007
• Docket Number: Docket No. 267152.
• Citation: People v. Jordan, 739 N.W.2d 706, 275 Mich. App. 659 (Mich. App. 2007)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Childred Earlie JORDAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan

739 N.W.2d 706

275 Mich. App. 659

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Childred Earlie JORDAN, Defendant-Appellant.

Docket No. 267152.

Court of Appeals of Michigan.

Submitted April 4, 2007, at Detroit.

Decided April 19, 2007.

Approved for publication May 31, 2007, at 9:05 a.m.

Released for Publication September 28, 2007.

Patrick K. Ehlmann, East Lansing, for defendant.

Before: NEFF, P.J., and O'CONNELL and MURRAY, JJ.

PER CURIAM.

Defendant appeals as of right from his convictions by a jury of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(c) (circumstances involving commission of any other felony), first-degree home invasion, 750.110a(2), and unarmed robbery, MCL 750.530. We affirm.

At about 6:00 a.m. on October 20, 1998,¹ the victim called Flint 911 to report that someone was trying to break into her apartment. The police responded to the wrong address, and a man who had broken into her apartment through a window confronted the victim, a 73-year-old woman who used a walker. The intruder, defendant, tore the telephone off the wall, robbed and raped the victim, and then fled.

The victim then went outside in her nightgown and yelled for help. The owner and operator of a service station (Ronald Ferris) across the street responded, and 911 was again called. The police arrived at the scene 45 minutes to an hour after the first 911 call. When Ferris first encountered the victim, she told him that she had been raped, but she failed to tell that to the police detective when he first questioned her, indicating only that the perpetrator demanded money (which she gave him), took her television, and then tore her telephone off the wall.

After the detective left, the victim's landlord and close friend (Merl Avery) arrived, and the victim told her about the break-in and theft but did not mention the rape. After speaking with Ferris, Avery asked the victim why she did not mention the rape, and the victim replied that the perpetrator told her that he would kill her if she told anyone. Avery then took her to the police station, where she told the detective that she had been raped. A vaginal swab and a swab from the victim's clothing both matched defendant's deoxyribonucleic acid (DNA) sample. The victim died before trial of causes unrelated to this case.

Defendant argues that the trial court erred when it ruled that the victim's statements to Ferris and Avery were admissible. We disagree.

The admissibility of evidence is within the sound discretion of the trial court and will not be reversed unless the trial court abused its discretion. People v. McDaniel, 469 Mich. 409, 412, 670 N.W.2d 659 (2003). However, a preliminary question of law related to the admissibility of evidence is reviewed de novo. Id.

Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), held that the Confrontation Clause² bars testimonial hearsay against a criminal defendant unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant.³ Crawford also held that state hearsay rules could govern the admissibility of nontestimonial hearsay without offending the Confrontation Clause. Id. Thus, the Confrontation Clause does not bar the testimony at issue unless the statements of the declarant were "testimonial."

Defendant argues that declarant's statements were testimonial under Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 2273-2274, 165 L.Ed. 224 (2006), which held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Defendant further argues that Ferris should be considered an agent of the police because "he acted as a police agent in relaying [the victim's] report to the 911 operator and must have been seen as an agent ... by the declarant [because] she told him `to please call the police.'" Because defendant cites no authority to support his agency theory, this Court need not address defendant's agency argument. People v. Mackle, 241 Mich.App. 583, 604 n. 4, 617 N.W.2d 339 (2000).

Nevertheless, we conclude that Ferris was not an agent of the police. Although Ferris relayed information to the police at the request of the victim, this would, at most, arguably make him an agent of the victim. See Meretta v. Peach, 195 Mich.App. 695, 697, 491 N.W.2d 278 (1992) ("An agency relationship may arise when there is a manifestation by the principal that the agent may act on his account.")

We also reject defendant's argument that Ferris should be treated as an agent of the police because the victim viewed him as such. An ostensible agency may be created "`when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.'" VanStelle v. Macaskill, 255 Mich. App. 1, 9, 662 N.W.2d 41 (2003) (citation omitted). There is no indication that the police did anything to clothe Ferris as an agent.

Similarly, we reject defendant's argument that Avery should be treated as an agent of the police. Avery testified that she and the victim were "like family," had known each other for about 20 years, had engaged in many activities together, and the two were so close that Avery had moved the victim into her home for years after the assault. Thus, it is clear that the victim did not view her longtime friend as an ostensible agent of the police, for obtaining statements for use in court, but as a friend concerned for her well-being and need for treatment.

Even assuming that either Ferris or Avery conducted the functional equivalent of a police interrogation, the victim's statements were nontestimonial because they were made "under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency." Davis, supra at 2273-2274. We hold that questions necessary to obtaining or providing emergency medical care are nontestimonial.⁴ The 73-year-old victim, clothed in her nightgown, was outside in the early morning hours yelling for help because she had just been raped and robbed. She had yet to have a police response to her calls for help and was in need of emergency medical treatment. Under the circumstances, "any reasonable listener would recognize that [the victim] was facing an ongoing emergency." Davis, supra at 2276 Because all statements by the victim were necessary to resolving the ongoing emergency, the statements were nontestimonial. Id.

Defendant next argues that the Confrontation Clause barred admission of the victim's statements to the detective and the 911 supervisor's testimony concerning the victim's statements to Ferris. We disagree.

Defendant argues at length that his oral request at trial for a "continuing objection to the hearsay ... statements of the complaining witness" preserved his challenge to the victim's statements to the detective and the 911 supervisor. However after reviewing the text of defendant's objection, it is clear that defendant was referring to the statements that he challenged in his motion in limine and which the trial court ruled were admissible under the excited utterance exception to the hearsay rule. Defendant's motion in limine challenged only the victim's statements to Ferris and Avery. Because the admissibility of the statements of the 911 supervisor or the detective was never challenged before the trial court, this issue is not preserved. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994).

An appellate court will not reverse a conviction on the basis of an unpreserved issue except for plain error that affected a defendant's substantial rights by resulting in the conviction of an actually innocent person or seriously affecting the integrity, fairness, or public reputation of the judicial proceedings. People v. Carines, 460 Mich. 750, 761, 764-767, 597 N.W.2d 130 (1999).

Defendant's argument about the testimony of the 911 supervisor⁵ must fail. The 911 supervisor did not answer either call, although she made the tape that was played in court from the originals and authenticated both the tape and the transcript made from it. Under these circumstances, the only conduct of law enforcement to be considered under Davis, supra at 2274 n. 2 (which defendant cites) would be her action in making a tape for trial from the originals. Even though Davis held that a caller's responses to a 911 operator could be considered testimonial under certain circumstances, it is inapplicable here because the victim's statements were nontestimonial, as noted.

We also conclude that defendant declined to object to the victim's statements to the detective as a matter of trial strategy. Counsel for defendant argued in his opening statement that the evidence would show that the victim did not initially complain to police that she had been raped and that she only did so after being questioned by the friend. It does not appear that defendant could have shown this discrepancy without the hearsay testimony of the detective regarding what the victim told him, which likely explains why defendant still did not object after the trial court indicated that the excited utterance exception might not apply to the victim's statements to the detective. Thus, even assuming that the trial court should have ruled these statements inadmissible despite defendant's failure to object, any alleged error cannot be an error requiring reversal. See People v. Griffin, 235 Mich. App. 27, 46, 597 N.W.2d 176 (1999) (holding that "error requiring reversal cannot be error to which the...