People v. Nunley

• Citation: 294 Mich.App. 274,819 N.W.2d 8
• Decision Date: 13 October 2011
• Docket Number: Docket No. 302181.
• Parties: PEOPLE v. NUNLEY.
• Court: Court of Appeal of Michigan (US)

294 Mich.App. 274

819 N.W.2d 8

PEOPLE

v.NUNLEY.

Docket No. 302181.

Court of Appeals of Michigan.

Submitted July 7, 2011, at Lansing.

Decided Oct. 13, 2011, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

James E.R. Fifelski, Ypsilanti, for defendant.

Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.

DONOFRIO, J.

The prosecution appeals by leave granted the circuit court's order affirming in part the district court's order denying the prosecution's motion in limine to admit certain documentary evidence on the ground that it violated defendant's right to confront witnesses against him.¹ The prosecution contends that the circuit court erred by affirming in part the district court's denial of its motion in limine because the admission of the Secretary of State's certificate of mailing would not have violated the Confrontation Clause. Because the circuit court did not abuse its discretion when it affirmed the denial of the prosecution's motion in limine for the reason that the certificate of mailing is testimonial in nature and would violate the Confrontation Clause if admitted without witness testimony, we affirm.

I

On September 9, 2009, a police officer pulled defendant over for failing to properly secure the load in his truck and for improper identification of a commercial vehicle. The police officer cited defendant for driving while license suspended (DWLS), and then released defendant from the scene.² The prosecutor charged defendant with DWLS-second offense, MCL 257.904(1)and (3)(b).³ The prosecutor obtained defendant's certified driving record from the Secretary of State's office. Included as part of defendant's driving record is a “Certificate of Mailing of Orders and Rest Lics.” The certificate provides in relevant part:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 [handwritten] OFFICER OR EMPLOYEE F. Bueter

On the certificate of mailing, the date is handwritten, and “F. Bueter” is typed on the “Officer or Employee” signature line. Defendant's name and driver's license number are listed below the above-quoted language.⁴

On June 3, 2010, the prosecutor brought a motion in limine before the district court, seeking a ruling that the certificate of mailing was admissible without both the signature of the person giving the notice and without calling a representative of the Secretary of State as a witness. Defendant objected to the motion in limine and asserted his right to cross-examine the issuer of the certificate of mailing.⁵ On July 27, 2010, the district court held a hearing on the prosecutor's motion in limine. The district court held that by its nature, a “certificate” requires a signature and that, because the court did not “find any other reason why this document would be used except in litigation,” the Confrontation Clause in the Sixth Amendment of the United States Constitution required that, in order for the certificate to be admitted in defendant's trial, the person who prepared the certificate appear and be subject to cross-examination. In sum, the district court denied the prosecution's motion in limine, ruling that a signature was required on the certificate in order for it to be effective as a basis for a DWLS charge and that admission of the certificate without testimony of its author would violate defendant's Confrontation Clause rights. On September 2, 2010, the prosecutor applied in the circuit court for leave to appeal pursuant to MCR 7.103.

On December 3, 2010, the circuit court held a hearing on the prosecutor's application for leave to appeal. On January 3, 2011, the circuit court issued an order granting interlocutory appeal and reversing in part and affirming in part the district court's order. First, the circuit court concluded that “the issues [were] important and not otherwise susceptible of review.” Next, it reversed the district court and held that a signature was not required for the certificate to be effective as a basis for a DWLS charge because the court “cannot imply a requirement for a handwritten signature in the absence of any express or specific reference to a signature in MCL 257.212” and because the “[t]he definitions of ‘certify’ and ‘certification’ are not so clear as to make it obvious from the use of ‘certification’ that a signature is required.” ⁶ Finally, the circuit court affirmed the district court's ruling regarding the Confrontation Clause, specifically holding that without testimony of its author, admission of the certificate would violate defendant's constitutional right to confront the witnesses against him.

In reaching its decision regarding the Confrontation Clause, the circuit court observed that there was no evidence in the record that the certificate of mailing was used for anything other than proof of the notice element for DWLS. The circuit court did not find persuasive the caselaw that the prosecution cited—People v. Hislope, 13 Mich.App. 63, 163 N.W.2d 675 (1968) (holding that a certified driving record was admissible for proving facts documentary in nature), and People v. Khoshaba, unpublished opinion per curiam of the Court of Appeals, issued April 11, 2006 (Docket No. 257484), 2006 WL 932408 (holding that the “face sheet” of a driving record, which contained the seal of the state of Michigan, was a business record that was not testimonial in nature)—because the certificate in the instant case was not simply a multipurpose record or a record kept by the Secretary of State's office for its own purposes. The circuit court distinguished the certificate from a certificate authenticating a document as an accurate copy of a public record. The circuit court concluded that the certificate was a document certifying that the author “took an action, namely, mailing a legal document to a particular person and place, on a particular date—facts that [were] essential elements of the criminal offense with which the defendant [was] charged.”

The prosecutor now appeals by leave granted.

II

Generally, this Court reviews a circuit court's decision regarding the admission of evidence for an abuse of discretion. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). “When the decision regarding the admission of evidence involves a preliminary question of law, such as whether a statute or rule of evidence precludes admissibility of the evidence, the issue is reviewed de novo.” People v. Washington, 468 Mich. 667, 670–671, 664 N.W.2d 203 (2003). Accordingly, there is an “abuse of discretion when a trial court admits evidence that is inadmissible as a matter of law.” People v. Katt, 468 Mich. 272, 278, 662 N.W.2d 12 (2003). Also, “whether the admission of evidence would violate a defendant's constitutional right of confrontation is a question of law that we review de novo.” People v. Dinardo, 290 Mich.App. 280, 287, 801 N.W.2d 73 (2010).

III

The Confrontation Clause of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. Am. VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const. 1963, art. 1, § 20; Dinardo, 290 Mich.App. at 288, 801 N.W.2d 73. Testimonial statements of witnesses absent from trial are therefore admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v. Bryant, 562 U.S. ––––, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011); Crawford v. Washington, 541 U.S. 36, 54, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Ordinarily, whether a statement is testimonialin nature depends on whether it constitutes a “ ‘declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’ ” Dinardo, 290 Mich.App. at 288, 801 N.W.2d 73, quoting People v. Lewis (On Remand), 287 Mich.App. 356, 360, 788 N.W.2d 461 (2010), quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v. Garland, 286 Mich.App. 1, 10, 777 N.W.2d 732 (2009), citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

A. CRAWFORD AND MELENDEZ–DIAZ

This Confrontation Clause case is governed by the United States Supreme Court's recent decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The pertinent facts of the case are as follows:

Melendez–Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. At trial, the prosecution placed into evidence the bags seized from [the arrest scene]. It also submitted three “certificates of analysis” showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.

Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in...