People v. Sardy

Decision Date29 December 2015
Docket NumberDocket No. 319227.
CourtCourt of Appeal of Michigan — District of US

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.

Robyn B. Frankel, Bloomfield Hills, for defendant.

Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ.


, P.J.

Defendant was convicted by a jury of child sexually abusive activity (CSAA), MCL 750.145c

, using a computer to commit a crime, MCL 752.796, and two counts of second-degree criminal sexual conduct

(CSC–II), MCL 750.520c

. The victim of these crimes was defendant's young daughter. Defendant was sentenced to concurrent prison terms of 71 months to 20 years for the CSAA and computer-crime convictions and 71 months to 15 years for the CSC–II convictions. Defendant appeals as of right. We affirm defendant's convictions, but remand to address a sentencing matter pursuant to People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015)



Defendant is the biological father of the victim. Defendant and the victim's mother were not married, and they were residing in different homes when the child made claims to her mother regarding inappropriate sexual behavior by defendant. The child's mother contacted law enforcement, which led to a forensic interview of the child and the execution of a search warrant at defendant's home. In executing the warrant, the police seized computers, including an Apple iMac, external hard drives, numerous CDs, a diskette, multiple SD (storage data) cards, two cellular phones, including an iPhone 4, and a flash drive. A detective, who was qualified as an expert in computer forensic examinations, testified that, for the most part, examination of these items did not reveal any suspicious activities. He did, however, discover a CD with nude images of the child in the bathtub and bathroom.1 Additionally, the detective retrieved two suspicious videos, created seven minutes apart, that had been filmed using defendant's iPhone 4. These videos were additionally stored on the iMac and an external hard drive, and they formed the basis of the CSAA and computer-crime charges. The victim was clothed in both videos, and in one video, the child is observed, as described by the detective, “grinding ... on the couch,” with defendant “focusing [the camera] on her rear end.”2 The detective opined that the child's act entailed manual manipulation of the genitals, and the prosecution characterized the victim's actions as constituting masturbation for purposes of the charges. In the video, defendant is heard asking the child why she was engaging in the act, and she responded, “because it's comfortable.” When defendant then asked her why it was comfortable, the child expressed that it felt good. With respect to the second video, the child is seen grinding against the couch with one hand under her body on her genitals. The child's mother testified to having once observed the child with “her hands between her legs and ... gyrating on the bed,” and when she told the child to stop, the child responded that she was allowed to” engage in the behavior.

In preliminary examination testimony that was eventually submitted to the jury during the trial after the trial court found that the victim had become unavailable due to lack of memory, the child, seven at the time of the preliminary examination, testified that defendant would watch her as she bathed in the shower and when she used the toilet. The victim also testified regarding a couple of instances in which, while both were clothed, defendant pressed his penis against the child's genital area, which conduct formed the basis of the two counts of CSC–II. One of the assaults occurred on a couch in defendant's home as defendant lay on top of the child, who believed that she was in first grade at the time. The other sexual assault occurred when defendant entered the child's bedroom where she lay, lay down on her bed under the covers, and then maneuvered his body so that the two were on their sides facing each other and making direct contact.


On appeal, defendant first argues that the trial court violated his constitutional right to confront the witnesses against him when it permitted the victim's preliminary examination testimony to be admitted as substantive evidence at trial. Defendant contends that the victim was not “ unavailable” as required to admit the evidence, that the victim's testimony at the preliminary examination was unsworn and thus unusable, given that she had not been placed under oath before testifying, and that the preliminary examination did not provide defendant a full and fair opportunity for cross-examination. We reject each of these arguments as a basis for reversal.

We review de novo the question whether a defendant was denied the constitutional right to confront complaining witnesses. People v. Benton, 294 Mich.App. 191, 195, 817 N.W.2d 599 (2011)

. Under the United States Constitution, [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.] U.S. Const. Am. VI. Similarly, under the Michigan Constitution, [i]n every criminal prosecution, the accused shall have the right ... to be confronted with the witnesses against him or her[.] Const. 1963, art. 1, § 20. “The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’ statements of a witness who did not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.” People v. Walker (On Remand), 273 Mich.App. 56, 60–61, 728 N.W.2d 902 (2006), citing Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Where testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”).3 We are unaware of any precedent suggesting that the right of confrontation under the Michigan Constitution is to be analyzed any differently than the Sixth Amendment's Confrontation Clause. In People v. Nunley, 491 Mich. 686, 697–698, 821 N.W.2d 642 (2012)

, our Supreme Court observed:

The Confrontation Clause is “primarily a functional right” in which the right to confront and cross-examine witnesses is aimed at truth-seeking and promoting reliability in criminal trials. Functioning in this manner, “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”
The specific protections the Confrontation Clause provides apply “only to statements used as substantive evidence.” In particular, one of the core protections of the Confrontation Clause concerns hearsay evidence that is “testimonial” in nature. The United States Supreme Court has held that the introduction of out-of-court testimonial statements violates the Confrontation Clause; thus, out-of-court testimonial statements are inadmissible unless the declarant appears at trial or the defendant has had a previous opportunity to cross-examine the declarant. [Citations omitted.]

Of course, testimony given at a preliminary examination qualifies as being testimonial in nature, see id. at 698–699, 821 N.W.2d 642

; Crawford, 541 U.S. at 68, 124 S.Ct. 1354 ; therefore, it was necessary to establish that the victim here was unavailable at trial and that defendant had an opportunity to cross-examine her at the preliminary examination.

At the preliminary examination, the victim testified absent oath or affirmation. When the victim first took the stand, the prosecutor asked her a few preliminary questions for the purpose of establishing that the child could distinguish truth from lies. The victim answered appropriately, and the district court responded in the affirmative when the prosecutor asked the court for permission to proceed with the questioning of the child. Defendant failed to voice any objection to the unsworn testimony that followed, allowing the child's testimony to be fully developed. The victim was subject to extensive cross-examination by defense counsel, encompassing nearly 70 pages of transcript. Defendant's attorney grilled the child with questions regarding her ability to tell the truth and distinguish between fact and fabrication. Midway through cross-examination, defense counsel asked the victim whether she had “been telling the truth so far,” and the victim replied, “Yes.” The child also stated: “I'm telling the truth”; “I'll tell the truth”; and “I'll still tell the truth.” The victim further testified how several people had told her to simply tell the truth when she testified.

At the trial, the victim took the stand and testified to foundational and peripheral matters; however, when the questioning turned to defendant's conduct that formed the heart of the prosecution's case, the victim indicated that she could not remember what had occurred. Efforts by the prosecutor to refresh the child's memory through reference to the preliminary examination transcript were unsuccessful. Outside the presence of the jury, the trial court and the attorneys engaged in an extensive colloquy regarding how to proceed, with the court entertaining arguments concerning the propriety of having the victim's preliminary examination testimony read to the jurors. The trial court and the parties also made direct inquiries to the child herself, seeking to understand whether she could not remember what had transpired or whether she simply refused or did not want to testify about defendant's conduct. The child was adamant that she could not remember the events giving...

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1 cases
  • People v. Sardy, 319227
    • United States
    • Court of Appeal of Michigan (US)
    • January 19, 2017
    ...v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015), to determine the propriety of defendant's sentences. People v. Sardy , 313 Mich.App. 679, 688–689, 733, 884 N.W.2d 808 (2015). On defendant's application for leave to appeal in our Supreme Court, the Court, in lieu of granting leave, vaca......

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