People v. Lonsby
| Decision Date | 13 October 2005 |
| Docket Number | Docket No. 250559. |
| Citation | 268 Mich. App. 375,707 N.W.2d 610 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry James LONSBY, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Peter R. George, Prosecuting Attorney, and Timothy K. Morris, Chief of Appeals, Port Huron, for the people.
Matthew Posner, Suttons Bay, for the defendant on appeal.
Before: WHITBECK, C.J., and SAAD and TALBOT, JJ.
A jury convicted defendant on one count of first-degree criminal sexual conduct (CSC I)1 and two counts of second-degree criminal sexual conduct (CSC II).2 The trial court sentenced defendant to 9 to 30 years in prison for the CSC I conviction and 9 to 15 years in prison for each CSC II conviction. Defendant appeals his convictions and sentences, and we reverse and remand for a new trial.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that, to satisfy the Confrontation Clause of the Sixth Amendment,3 it is no longer sufficient that "testimonial" hearsay meets traditional guarantees of reliability under state evidentiary rules. Instead, Crawford holds that testimonial hearsay is not admissible against a criminal defendant unless the declarant is unavailable to testify at trial and the defendant had the opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354.
Crawford left open for further development what hearsay statements are "testimonial." Yet, in addition to its recognition that prior trial testimony clearly constitutes testimonial hearsay, the Court stated that pretrial statements are testimonial if the declarant would reasonably expect that the statement will be used in a prosecutorial manner and if the statement is made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]" Id. at 51-52, 124 S.Ct. 1354.
Here, the victim testified that defendant sexually assaulted her and defendant denied the accusation. The only physical evidence that could tip the balance in this credibility contest is the pivotal question whether a stain on defendant's swim trunks was semen, as the victim alleged, or merely urine, as defendant alleged. Melinda Jackson, a serologist at the Michigan State Police Crime Laboratories (crime lab), tested the stain and recorded her observations and test results in laboratory notes and a lab report. Jackson did not appear as a witness at defendant's trial. Instead, the prosecutor called another serologist from the crime lab, David Woodford, and he testified about the contents of his colleague's written statements. Throughout the trial, the prosecutor urged the jury to conclude that the crime lab findings, as summarized by Woodford, proved the presence of semen and, thus, defendant's guilt.
For the reasons set forth in this opinion, we hold that under the guidelines articulated in Crawford, the nontestifying serologist's notes and lab report constitute testimonial hearsay and that the admission of these statements through Woodford's testimony violated defendant's rights under the Confrontation Clause.
On June 28, 2002, defendant and his wife, Sharon Lonsby, spent the day with the victim, their 12-year-old granddaughter.4 The record reflects that, after they went shopping, the three returned to the Lonsbys' apartment where defendant and the victim changed into their bathing suits. While Mrs. Lonsby was occupied in other rooms of the apartment, defendant and the victim began to watch a movie in the living room. According to the victim, while they watched the film, defendant began to gesture for her to remove her bathing suit top and, after some hesitation, she did so. The victim further testified that defendant walked over to her and touched her chest with his hand and mouth. The victim recalled that, when Mrs. Lonsby walked into the living room, defendant hurried back to his chair.
The victim asserted that, after Mrs. Lonsby left the room, defendant took his penis out of his swim trunks and asked the victim to touch it. The victim testified that when she did, clear fluid came out of defendant's penis and fell on the arm of the chair and on the front of defendant's swim trunks. Defendant then changed out of his swim trunks and into a pair of black dress pants. The victim stated that when defendant returned, he digitally penetrated her and rubbed his penis on her vagina. After the incident, the victim told Mrs. Lonsby about the assault and, later that night, the victim's mother took her to the hospital for an examination and treatment. Officer Steven Harrington took the victim's statement at the hospital and then went to defendant's apartment and seized defendant's swim trunks. At trial, Officer Harrington testified that, when he took possession of the swim trunks, he saw a dried, white stain on the front of the trunks. The emergency room doctor who examined the victim testified that he could not conclusively determine whether the victim was sexually assaulted.
Defendant testified that he neither sexually assaulted the victim nor asked her to remove her clothing. Defendant recalled that he changed into a pair of pants that evening, but said he did so because his wife pointed out that he had a wet spot on his swim trunks. Defendant maintained that the spot was urine, not semen, because the spot appeared only after he went to the bathroom. Mrs. Lonsby also testified at defendant's trial and insisted that the assault could not have occurred because she entered the living room several times while defendant and the victim were watching the movie. She also corroborated defendant's story by testifying that she saw defendant when he entered the bathroom that evening and that she saw the wet spot on his trunks when he left the bathroom. Mrs. Lonsby also explained that she bought defendant's swim trunks at a second-hand store or a garage sale a few weeks before the incident, but that she did not wash them before defendant wore them.
The only other witness to testify at defendant's trial was David Woodford. Woodford acknowledged that he took no part in the case and that he did not perform any analysis on the rape kit, the victim's bathing suit, or defendant's swim trunks. All the testing and analysis was performed by Melinda Jackson. Indeed, Woodford acknowledged that the first time he learned anything about the case was on the morning of trial. Nonetheless, and without objection, Woodford testified about the contents of Jackson's lab report and the notes she took during her examination of the evidence. He also testified about what Jackson found, how she conducted certain tests, and why she opted not to conduct other tests.
Specifically, Woodford testified from Jackson's report and notes that no semen or foreign hairs were found in the rape kit taken at the hospital, but Jackson's notes indicated that she found two foreign pubic hairs in the victim's swimsuit. According to Woodford, Jackson did not request known hairs from defendant, and he theorized that she failed to do so because the hairs from the swimsuit were insufficient to make a comparison of their pertinent characteristics. Woodford further testified that Jackson found semen on the inside lining of defendant's swim trunks and that the lining was frozen for storage. He also stated that Jackson's notes indicated that a chemical test revealed that there was a spot of semen on the front of the swim trunks, but that it was a "very, very weak" positive result. Woodford went on to say that "the lab" could not confirm the presence of semen on the front of the swim trunks through a protein test, "probably due to the fact that . . . the quantity of semen was just not there to test." Woodford speculated that Jackson could not state in her lab report that the spot on the front of the trunks was semen because she could not confirm it through the protein test.
The jury convicted defendant on April 7, 2003. On June 20, 2003, defendant filed a motion for new trial and argued that Woodford's testimony was inadmissible hearsay and that the prosecutor committed a Brady5 violation by failing to disclose Jackson's findings regarding the stain on the outside of defendant's swim trunks and the foreign hairs found in the victim's bathing suit. The trial court denied defendant's motion, but defendant brought a second motion for new trial on February 6, 2004, and argued, among other things, that, pursuant to People v. McDaniel, 469 Mich. 409, 670 N.W.2d 659 (2003), issued November 4, 2003, and Crawford v. Washington, issued on March 8, 2004, Woodford's testimony was inadmissible hearsay and violated defendant's rights under the Sixth Amendment's Confrontation Clause. In response, the prosecutor argued that, by failing to object for reasons of trial strategy, defense counsel waived any claim of error. After oral argument, the trial court denied defendant's motion because it ruled that defendant waived any error with regard to his hearsay and Confrontation Clause claims.
Defendant contends that the trial court's denial of his motion for new trial is contrary to the holdings of the United States Supreme Court and the Michigan Supreme Court in Crawford and McDaniel respectively. A "trial court's decision regarding a motion for a new trial is reviewed for an abuse of discretion." People v. Leonard, 224 Mich.App. 569, 580, 569 N.W.2d 663 (1997). As the Leonard Court further explained:
This Court's review, however, requires us to examine the reasons given by the trial court for granting a new trial in order to determine if the court abused its discretion. People v. Bart (On Remand), 220 Mich.App. 1,...
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