People v. Sykes
| Decision Date | 10 April 1998 |
| Docket Number | Docket No. 190894 |
| Citation | 582 N.W.2d 197,229 Mich.App. 254 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Talanda SYKES, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Michael H. Dzialowski, Assistant Prosecuting Attorney, for People.
Paul G. Staten, Detroit, for Defendant-Appellant on appeal.
Before MARKEY, P.J., and MICHAEL J. KELLY and WHITBECK, JJ.
Defendant was convicted by a jury of breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305, and of larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592. Defendant was sentenced to three years' probation and now appeals as of right. We affirm.
The origin of this case is in the breaking and entering of a building on West Vine Street in Kalamazoo and the subsequent larceny from that building of a computer monitor and keyboard, both occurring at approximately 4:00 a.m. on January 12, 1995. Officer Stanley McDonald of the Kalamazoo Public Safety Department responded to the report of the breaking and entering as did Officer Eric Arrans, with his tracking dog. The tracking dog led Officer Arrans to a garbage dumpster behind the Vine Street building, where Officer Arrans later found the computer monitor and keyboard. In the alley behind the building, Officer Arrans noticed some gloves and hats lying in the alleyway. The tracking dog then led Officer Arrans to a local park where other officers had detained three men, including defendant.
At trial, the testimony of two witnesses was particularly important to the major question presented on appeal; these witnesses are Officer McDonald and Jayne Belanger. Officer McDonald testified not only about his response to the report of the breaking and entering but also about several other events, one before and one after the apprehension of defendant. Regarding the prior event, Officer McDonald testified that, while on his regular patrol on January 12, 1995, at approximately 3:00 a.m., he observed three men, including defendant, at a Dairy Mart store that was located about eight or nine blocks from the Vine Street building. Officer McDonald testified that one or more of the men made a purchase at the store. Officer McDonald testified that the brown cotton gloves found in the alleyway at the scene of the breaking and entering were those that he had seen one of the three men carry when they left the Dairy Mart. Officer McDonald also testified that, near the Dairy Mart, he saw one of these men hand the gloves to another, identified as a codefendant. Officer McDonald testified, however, that he did not remember which of the two men (defendant or the third man) handed the gloves to the co-defendant.
Regarding the subsequent event, Officer McDonald testified that, after the apprehension of defendant, he returned to the Dairy Mart and interviewed the store clerk, Belanger. Officer McDonald testified that the police report that he prepared at the time "state[d] a conclusion on [his] part" and that he was led to that conclusion by "[a] discussion with the store clerk, and the description of the three subjects that had made the purchase, attempting to identify which subject made the purchase." The prosecution asked Officer McDonald for his conclusion, defense counsel objected on the ground of lack of foundation and, after reviewing Officer McDonald's report, the trial court sustained the objection.
The prosecution also called Belanger, who testified that three men came into the Dairy Mart at approximately 3:00 a.m. on January 12, 1995, and that one of the men purchased, among other items, a pair of brown gloves. Belanger also testified that a police officer had asked her questions about this incident and that she was able to give the police officer some fairly specific information at the time. During her in-court testimony, however, Belanger could not identify defendant as being one of the three men who came into the Dairy Mart.
Following this testimony, the prosecution made an offer of proof outside the jury's presence. The prosecution stated that it would recall Officer McDonald, who would testify that Belanger gave him specific information regarding the three men in the Dairy Mart and that only one of the three men Officer McDonald had seen leaving the store matched the description that Belanger gave of the man who purchased the gloves. The prosecution sought admission of the proffered testimony under MRE 801(d)(1)(C). The trial court ruled that the proffered testimony did not fall within the ambit of MRE 801(d)(1)(C), noting that "we do not have here a--true statement of identification." The trial court also noted that "[The] officer--what--what--is being offered to the jury is Officer McDonald's conclusion predicated upon a statement attributed to a witness who here before the jury did not make the same statement."
On the next day of trial, the prosecution renewed its argument with respect to MRE 801(d)(1)(C), stating that Officer McDonald would testify that Belanger had said that the tallest of the three men purchased the gloves. On the basis of Officer McDonald having seen the three men in the Dairy Mart parking lot, the prosecution contended that this description could only match defendant. After again reviewing Officer McDonald's report, the trial court reversed its previous ruling and allowed the proofs to be reopened, stating:
I will reverse my previous thinking on this. I think this is--this is a classical [sic] example of a declaration not being hearsay, if it's of identification of an individual made after perceiving the individual, and the person who made the statement, the declarant, is available for cross-examination. 1
The prosecution then recalled Belanger, who stated that, although she had given Officer McDonald some information, she could not recall what she told him about who purchased the gloves. After Belanger read Officer McDonald's report, the following exchange took place:
[Prosecutor:] Okay. Now, after looking at the report that Officer McDonald made does that refresh your recollection at all as to, specifically, what you told him, regarding the identification of the person who made the purchase?
[Witness:] From what I can recall, he came back in and asked me what they purchased and wh--wh--you know, who purchased them and how many, you know, how many people were at the counter at the time. The same questions you'd asked me. And I've told 'em pretty much the same thing: They bought brown gloves, and only one person bought something.
[Prosecutor:] All right. And, do you recall, specifically, what it is that you related to him, as far as identifying which person? After--after reviewing this do you recall, specifically, what it is you told him regarding which person it is who made the purchase?
[Witness:] No. I'm sorry.
[Prosecutor:] But--but, you did have in your mind, at the time, the identification. It was fresh in your mind as the identification of the person who did make the purchase.
[Witness:] Yes.
[Prosecutor:] Okay. And you related that to Officer McDonald.
[Witness:] Yes.
[Prosecutor:] All right. Thank you. 2
The prosecution then recalled Officer McDonald, who testified that, in his interview with Belanger at the Dairy Mart, he asked her a number of questions in an attempt to clarify her recollection of which of the three men actually purchased the gloves. Officer McDonald further testified that he and Belanger discussed such matters as the race, age, height, weight, clothing, and style of haircut of the three men, although he did not recall what exactly Belanger had told him about the purchaser of the gloves. Officer McDonald did testify that Belanger "was able to give me a very care--clear idea of which one had purchased the gloves." Officer McDonald testified that he did not note in his report "the exact specific of--of the items that we discussed." Officer McDonald said that the information given to him "was very clear that--that it matched only one" of the three men, that is defendant. 3 On cross-examination, Officer McDonald stated that he did not include in his report any of the identifying items that he discussed with Belanger and he only noted that "the conclusion we came to was Mr. Talanda Sykes."
During closing argument, the prosecution wove this testimony together:
It's the Prosecution's theory and argument that the oldest of the three, the Defendant here; the tallest of the three, the Defendant here; had gone in and purchased the gloves and given them to Prentiss Anderson; the person whose footprint is eventually identified inside of the building; and, that he was there, and he was, basically, the leader of this situation, that he had these gloves for a purpose. He was giving the gloves to Prentiss Anderson, because now they're gonna go out and around, and they're going to find something to steal.
Under the Michigan Rules of Evidence, hearsay is defined as "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). A "statement" is "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." MRE 801(a). A "declarant" is "a person who makes a statement." MRE 801(b).
As noted by Justice Cavanagh in his dissent in People v. Malone, 445 Mich. 369, 399, 518 N.W.2d 418 (1994):
Hearsay is repugnant to the truth-seeking function of litigation because the statement is made in the absence of testimonial safeguards implemented to foster reliability. At trial a witness must testify under oath or affirmation, exposed to the threat of perjury....
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