People v. Remand)

• Decision Date: 24 August 2010
• Docket Number: Docket No. 247391.
• Citation: 797 N.W.2d 645,289 Mich.App. 445
• Parties: PEOPLEv.DENDEL (On Second Remand).
• Court: Court of Appeal of Michigan — District of US

289 Mich.App. 445
797 N.W.2d 645

PEOPLE
v.
DENDEL (On Second Remand).

Docket No. 247391.

Court of Appeals of Michigan.

Submitted Oct. 29, 2009, at Lansing.Decided Aug. 24, 2010, at 9:00 a.m.

[797 N.W.2d 647]

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Hank C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.State Appellate Defender (by Valerie R. Newman) for defendant.Before: BORRELLO, P.J., and SAAD and WILDER, JJ.

ON SECOND REMAND SAAD, J.

[289 Mich.App. 448] In light of a recent United States Supreme Court case that further defines the scope of the rights granted under the Confrontation Clause, Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), our Supreme Court remanded this case for us to address whether the trial court violated defendant's confrontation rights when it admitted expert testimony that was based on a report prepared by nontestifying forensic analysts. For the reasons set forth in this opinion, we affirm defendant's conviction because, though we hold that a Confrontation Clause violation occurred, the error was harmless beyond a reasonable doubt.

I. FACTS AND PROCEEDINGS

The trial court convicted defendant of second-degree murder, MCL 750.317, for causing the death of her domestic partner, Paul Michael Burley. At trial, the prosecution maintained that defendant injected Burley with insulin because she was frustrated and overwhelmed by the demands of attending to Burley's considerable medical needs. Defendant used insulin to treat her own diabetes, and she knew that insulin breaks down almost immediately upon death and cannot[289 Mich.App. 449] be detected in a dead body. Defendant took the position at trial that Burley died from a morphine overdose or, if he died from an insulin injection, he committed suicide in order to relieve defendant of the burden of caring for him.

In People v. Dendel, unpublished opinion per curiam of the Court of Appeals, issued July 18, 2006 (Docket No. 247391), 2006 WL 2000148 ( Dendel I ), we reversed defendant's conviction and remanded for a new trial on the basis of defendant's claim of ineffective assistance of counsel. Our Supreme Court reversed and remanded this case for us to consider defendant's remaining issues raised on appeal. People v. Dendel, 481 Mich. 114, 748 N.W.2d 859 (2008). In People v. Dendel (On Remand), unpublished opinion per curiam of the Court of Appeals, issued September 11, 2008 (Docket No. 247391), 2008 WL 4180292 ( Dendel II ), we affirmed defendant's conviction. Defendant sought leave to appeal, and, in lieu of granting leave to appeal, the Supreme Court vacated in part this Court's judgment and remanded the case for reconsideration of defendant's Confrontation Clause and hearsay issues

[797 N.W.2d 648]

in light of Melendez–Diaz. People v. Dendel, 485 Mich. 903, 773 N.W.2d 16 (2009).

II. OUR DECISION IN DENDEL II

Defendant's hearsay and Confrontation Clause arguments concern the testimony of Dr. Michael Evans. In Dendel II, we summarized the relevant facts as follows:

Dr. Evans is a toxicologist at AIT Laboratories, and president and [chief executive officer] of the company. He manages the corporation and directs laboratory operations. AIT Laboratories provides services to the clinical community and hospitals throughout the county, as well as the pharmaceutical industry by performing research to aid in new drug development. The laboratory also performs forensic[289 Mich.App. 450] toxicology testing in autopsy cases. Dr. Evans described the logistics and procedures for autopsy testing at the request of medical examiners' offices.

Here, the laboratory performed a pane 1 autopsy test on a sample of Burley's blood, urine, and vitreous fluids at the request of Dr. John Mayno from the Jackson County Medical Examiner's office. Dr. Evans explained that in such cases, the technicians “proceed as if we have no information” and “proceed without any preconceived notion about what we're going to look for in starting our testing process.” He testified at length about the procedures utilized in the lab, and the many substances that the autopsy tests identify.

Dr. Evans testified generally about the relationship between insulin and glucose levels, and the body's response to insulin. He explained the difficulty of testing for the presence of insulin during an autopsy. Dr. Evans then testified that the toxicology results showed that the level of glucose in Burley's system was zero. He opined that the zero glucose level was consistent with Burley having been injected with insulin. Defense counsel objected to the admission of Dr. Evans' testimony about the toxicology results as lacking proper foundation because Dr. Evans did not perform the autopsy test himself. Dr. Evans stated that about fifteen people from his lab were involved in the testing. The trial court ruled that an adequate foundation had been laid for the admission of Dr. Evans' testimony, and that the toxicology results came within the exception to the hearsay rule for business records. [ Dendel II, unpub. op. at 2.]

Defendant argued in Dendel II that the trial court abused its discretion by admitting Dr. Evans's testimony about the results of toxicology tests of Burley's bodily fluids because Dr. Evans did not perform the tests. Id. Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), defendant contended that the admission of this hearsay testimony violated her rights under the Confrontation Clause. Because [289 Mich.App. 451] defendant failed to preserve this issue with a timely challenge to Dr. Evans's testimony based on the Confrontation Clause, we reviewed the matter for plain error affecting her substantial rights. Dendel II, unpub. op. at 3. We concluded that the statements contained in the toxicology report were not testimonial, and they could be admitted without affording defendant an opportunity to cross-examine the analysts from the lab. We distinguished the toxicology report from the laboratory report that was deemed inadmissible in People v. Lonsby, 268 Mich.App. 375, 707 N.W.2d 610 (2005):

“Defendant relies on Lonsby, supra, a sexual assault case in which this Court ruled that the notes and laboratory report of a nontestifying serologist were testimonial in nature, and were admitted in violation of the defendant's Sixth Amendment right to confront witnesses against him. However, in Lonsby, this Court clarified:

[797 N.W.2d 649]

“The critical point ... is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others. In short, one expert cannot act as a mere conduit for the opinion of another.”

[ Lonsby, supra at 393 n. 12, 707 N.W.2d 610, quoting State v. Williams, 253 Wis.2d 99, 113, 644 N.W.2d 919 (2002).]

This “critical point” makes Lonsby distinguishable from the present case. Here, unlike in Lonsby, the witness did not testify to subjective observations from the toxicologists who performed the autopsy test. Dr. Evans did not speculate about any reasoning or judgment exercised by the nontestifying toxicologists. Id. at 392

[707 N.W.2d 610]

. The zero-level of glucose in Burley's system was an objective result, and Dr. Evans formed his own expert opinion on the basis of that finding. And unlike the police crime lab serologist in Lonsby, Dr. Evans was not employed by law enforcement. He testified that the lab testing is performed without any preconceived notions about what might be found, and without any case background.

[289 Mich.App. 452] Additionally, autopsy reports are not testimonial because they are public records prepared pursuant to a duty imposed by law as part of the statutorily defined duties of a medical examiner. See MCL 52.202(1)(a) (mandating a medical examiner to conduct an autopsy when the deceased's death was unexpected), MCL 52.207 (mandating a medical examiner to conduct an autopsy upon the order of a prosecuting attorney). Therefore, the autopsy and toxicology reports qualify as public records under MRE 803(8). Thus, the toxicology results were not testimonial in nature, and Dr. Evans' testimony based on the results did not violate defendant's rights under the Confrontation Clause. [ Dendel II, unpub. op. at 3–4.]

After we issued our opinion in Dendel II, the United States Supreme Court issued its decision in Melendez–Diaz. Because this decision directly addressed the question of a defendant's confrontation rights in the context of laboratory reports prepared by nontestifying witnesses, our Supreme Court remanded Dendel to this Court in order to reexamine Confrontation Clause issues arising from Dr. Evans's reliance on glucose-level findings made by nontestifying personnel at AIT Laboratories.III. CONFRONTATION CLAUSE JURISPRUDENCE

To decide whether the admission of hearsay evidence violated defendant's due-process right to confront witnesses, we must examine recent Supreme Court decisions interpreting the Confrontation Clause. Hearsay is “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.” MRE 801(c); People v. McLaughlin, 258 Mich.App. 635, 651, 672 N.W.2d 860 (2003). Generally, hearsay is inadmissible unless it comes within an exception to the hearsay rule. McLaughlin, 258 Mich.App. at 651, 672 N.W.2d 860. Controversies[289 Mich.App. 453] over the admission of hearsay statements may also implicate the Confrontation Clause, U.S. Const. Am. VI, which guarantees a criminal defendant the right to confront the witnesses against him or her. See also Const 1963, art 1, § 20.

In Crawford, 541 U.S. at 53–54, 124 S.Ct. 1354, the United States Supreme Court held that the Sixth Amendment bars the admission of testimonial statements by a witness who does not appear at trial unless the witness is unavailable and the defendant...