PEOPLE OF MI V SHANT MISAK ATIKIAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 29, 2001
Plaintiff-Appellee,
v
No. 219890
Oakland Circuit Court
LC No. 98-158611-FH
SHANT MISAK ATIKIAN,
Defendant-Appellant.
Before: Smolenski, P.J., and Jansen and Fitzgerald, JJ.
JANSEN, J. (dissenting).
I respectfully dissent from the majority’s decision to remand this case for a new trial
because I believe that retrial is barred by double jeopardy principles.
At trial, the prosecutor introduced as evidence a photocopy of the complainant’s cellular
telephone bill from the month of December 1997. Defendant objected to the admission of the
telephone bill, arguing that “somebody from the phone company is needed here . . . to testify to
the accuracy and the preparation of the phone bill.” The prosecutor argued that such was not
required because the complainant identified the telephone bill with his name and account number
on it. The trial court admitted the photocopy of the telephone bill into evidence.
It was an abuse of discretion for the trial court to allow the copy of the telephone bill to
be admitted into evidence because it was hearsay, as stated by the majority, and did not fit within
the exception set forth in MRE 803(6):
Records of regularly conducted activity. A memorandum, report, record,
or data compilation, in any form, of acts, transactions, occurrences, events,
conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other qualified witness, unless
the source of the information or the method or circumstances of preparation
indicate lack of trustworthiness. The term “business” as used in this paragraph
includes business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
-1-
The complainant could not be qualified to testify that the telephone bill was kept in the course of
a regularly conducted business activity and that it was the regular practice of the business activity
to make the record. The prosecutor was clearly not prepared during the trial to establish a proper
foundation of the telephone bill and was incorrect in stating that the complainant could
authenticate the bill.
The error in admitting the bill was not harmless. The prosecutor’s case, which was
entirely circumstantial, rested heavily on evidence of the telephone bill. There was no other
evidence presented that defendant actually stole the complainant’s cellular telephone. The use of
the telephone bill was the only evidence that linked defendant to that particular cellular
telephone.
Because the telephone bill was not properly admitted during trial and the error was not
harmless, defendant is entitled to a directed verdict of acquittal.1 I emphasize that the prosecutor
was not prepared to offer a foundation for the telephone bill during the trial and without
establishing such a foundation, was not able to establish an essential element of the crime. I do
not believe that I am merely “conflating” harmless-error analysis and sufficiency-of-the-evidence
analysis as the majority contends. This case involves more than just evidentiary error by the trial
court. It is not as if the prosecutor was otherwise willing and able to lay a proper foundation for
the evidence during the trial. The prosecutor wrongly argued that it was not required to lay a
foundation through the testimony of the telephone company’s employee and wrongly believed
that the complainant could lay a foundation.
Without evidence of the telephone bill, there was absolutely no evidence presented at trial
that defendant took the cellular telephone with the intent to steal it. People v Mumford, 171
Mich App 514, 517-518; 430 NW2d 770 (1988); CJI2d 23.4. Because in light of the untainted
evidence there is insufficient evidence to sustain defendant’s conviction, the conviction must be
vacated by this Court. Remanding this case for a new trial violates defendant’s protection against
double jeopardy. People v Watson, ___ Mich App ___; ___ NW2d ___ (Docket No. 218218,
issued May 4, 2001), slip op, p 11, citing Burks v United States, 437 US 1, 18; 98 S Ct 2141; 57
L Ed 2d 1 (1978), People v Murphy, 416 Mich 453, 467; 331 NW2d 152 (1982).
I would vacate defendant’s conviction on the basis of insufficient evidence presented
during the trial.
/s/ Kathleen Jansen
1
I note that defendant moved for a directed verdict at trial. But for the trial court’s error in
admitting the telephone bill, the motion should have been granted.
-2-
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