PEOPLE OF MI V CHILDRED EARLIE JORDAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2007
Plaintiff-Appellee,
v
No. 267152
Genesee Circuit Court
LC No. 05-015536-FC
CHILDRED EARLIE JORDAN,
Defendant-Appellant.
Before: Neff, P.J., and O’Connell and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions by a jury of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(c) (circumstances involving commission of any other
felony), first-degree home invasion, 750.110a(2), and unarmed robbery, MCL 750.530. We
affirm.
At about 6:00 a.m. on October 20, 19981 the victim called Flint 911 to report that
someone was trying to break into her apartment. The police responded to the wrong address, and
a man who had broken into her apartment through a window confronted the victim, a 73-year-old
woman who used a walker. The intruder, defendant, tore the phone off the wall, robbed and
raped the victim, and then fled.
The victim then went outside in her nightgown yelling for help. The owner/operator of a
service station (Ferris) across the street responded and 911 was again called. The police arrived
on the scene forty-five minutes to an hour after the first 911 call. When Ferris first encountered
the victim she told him that she had been raped, but she failed to tell that to the police detective
when he first questioned her, indicating only that the perpetrator demanded money (which she
gave him), took her television, and then tore her phone off the wall.
1
The long delay between the crime and the trial in the fall of 2005 was owing to the fact that the
police had no leads to a suspect and only after DNA technology allowed a cross match was
defendant identified as the perpetrator. In the meantime, the victim died.
-1-
After the detective left, the victim’s landlord and close friend (Avery) arrived, and the
victim told her about the break-in and theft but did not mention the rape. After speaking with
Ferris, Avery asked the victim why she did not mention the rape, and the victim replied that the
perpetrator told her that he would kill her if she told anyone. Avery then took her to the police
station where she told the detective that she had been raped. A vaginal swab and a swab from
the victim’s clothing both matched defendant’s DNA sample. The victim died before trial of
causes unrelated to this case.
Defendant argues that the trial court erred when it held that the victim’s statements to
Ferris and Avery were admissible. We disagree.
The admissibility of evidence is within the sound discretion of the trial court and will not
be reversed unless the trial court abused its discretion. People v McDaniel, 469 Mich 409, 412;
670 NW2d 659 (2003). However, a preliminary question of law related to the admissibility of
evidence is reviewed de novo. Id.
Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004), held
that the Confrontation Clause2 bars testimonial hearsay against a criminal defendant unless the
declarant was unavailable, and defendant had a prior opportunity to cross-examine the declarant.3
Crawford also held that state hearsay rules could govern the admissibility of nontestimonial
hearsay without offending the Confrontation Clause. Id. Thus, the Confrontation Clause does
not bar the testimony at issue unless the statements of the declarant were “testimonial.”
Defendant argues that declarant’s statements were testimonial under Davis v Washington,
547 US __; 126 S Ct 2266, 2273 –2274; 165 L Ed 224 (2006), which provided:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
Defendant further argues that Ferris should be considered an agent of the police because “he
acted as a police agent in relaying [the victim’s] report to the 911 operator and must have been
seen as an agent . . . by the declarant [because] she told him ‘to please call the police.’” Because
defendant cites no authority to support his agency theory, this Court need not address
defendant’s agency argument. People v Mackle, 241 Mich App 583, 604 n 4; 617 NW2d 339
(2000) (citations omitted).
2
US Const, Am VI.
3
There is no indication or argument made that defendant had any opportunity to cross-examine
the victim.
-2-
Regardless, we conclude that Ferris was not an agent of the police. Although Ferris
relayed information to the police at the request of the victim, this would at most arguably make
him an agent of the victim. See Meretta v Peach, 195 Mich App 695, 697; 491 NW2d 278
(1992) (“An agency relationship may arise when there is a manifestation by the principal that the
agent may act on his account.”)
We also reject defendant’s argument that Ferris should be treated as an agent of the
police because the victim viewed him as such. An ostensible agency may be created “when the
principal intentionally or by want of ordinary care, causes a third person to believe another to be
his agent who is not really employed by him.” VanStelle v Macaskill, 255 Mich App 1, 9; 662
NW2d 41 (2003). There is no indication that the police did anything to clothe Ferris as an agent.
Similarly, we reject defendant’s argument that Avery should be treated as an agent of the
police. Avery testified that she and the victim were “like family,” had known each other for
about 20 years, engaged in many activities together and the two were so close that Avery moved
the victim into her home for years after the assault. Thus, it is clear that the victim did not view
her long-time friend as an ostensible agent of the police, but as a friend concerned for her well
being and need for treatment rather than to obtain statements for use in court.
Even assuming that either Ferris or Avery conducted the functional equivalent of a police
interrogation, the victim’s statements were nontestimonial because they were made “under
circumstances objectively indicating that the primary purpose of the interrogation [was] to enable
police assistance to meet an ongoing emergency.” Davis, supra at 2273-2274. We hold that
questions necessary to obtaining or providing emergency medical care are nontestimonial.4 The
73-year-old victim, clothed in her nightgown, was outside in the early morning hours yelling for
help because she had just been raped and robbed. She had yet to have a police response to her
calls for help and was in need of emergency medical treatment. Under the circumstances, “any
reasonable listener would recognize that [the victim] was facing an ongoing emergency.” Davis,
supra at 2276. Because all statements by the victim were necessary to resolving the ongoing
emergency, the statements were nontestimonial. Id.
Defendant next argues that the Confrontation Clause barred admission of the victim’s
statements to the detective and the 911 supervisor’s testimony concerning the victim’s statements
to Ferris. We disagree.
Defendant argues at length that his oral request at trial for a “continuing objection to the
hearsay . . . statements of the complaining witness” preserved his challenge to the victim’s
statements to the detective and the 911 supervisor. However, after reviewing the text of
4
See Massachusetts v Tang, 66 Mass App Ct 53, 59; 845 NE2d 407 (2006) (“Emergency
questioning designed to secure a volatile scene or provide medical care, however, is not related
to the investigation of a crime and does not constitute interrogation.” (citations and internal
quotations omitted). Cf. People v Geno, 261 Mich App 624, 631; 683 NW2d 687 (2004)
(holding that a statement made to a director at a children’s center made after an alleged sexual
assault occurred “did not constitute testimonial evidence under Crawford . . . .”)
-3-
defendant’s objection, it is clear that defendant was referring to the statements that he challenged
in his motion in limine and which the trial court ruled were admissible under the excited
utterance exception to the hearsay rule. Defendant’s motion in limine challenged only the
victim’s statements to Ferris and Avery. Because the admissibility of the statements of the 911
supervisor or the detective was never challenged before the trial court, this issue is not preserved.
People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994).
An appellate court will not reverse a conviction based on an unpreserved issue except for
plain error that affected a defendant’s substantial rights by resulting in the conviction of an
actually innocent person or seriously affecting the integrity, fairness, or public reputation of the
judicial proceedings. People v Carines, 460 Mich 750, 761, 764-767; 597 NW2d 130 (1999).
Defendant’s argument about the testimony of the 911 supervisor5 must fail. The 911
supervisor did not answer either call, although she made the tape that was played in court from
the originals and authenticated both the tape and the transcript made from it. Under these
circumstances, the only conduct of law enforcement to be considered under Davis, supra at 2274
n 2 (which defendant cites) would be her action in making a tape for trial from the originals.
Even though Davis held that a caller’s responses to a 911 operator could be considered
testimonial under certain circumstances, it is inapplicable here because the victim’s statements
were nontestimonial, as noted.
We also conclude that defendant declined to object to the victim’s statements to the
detective as a matter of trial strategy. Defendant argued in his opening statement that the
evidence would show that the victim did not initially complain to police that she had been raped
and that she only did so after being questioned by the friend. It does not appear that defendant
could have shown this discrepancy without the hearsay testimony of the detective regarding what
the victim told him, which likely explains why defendant still did not object after the trial court
indicated that the excited utterance exception might not apply to the victim’s statements to the
detective. Thus, even assuming that the trial court should have ruled these statements
inadmissible despite defendant’s failure to object, any alleged error cannot be an error requiring
reversal. See People v Griffin, 235 Mich App 27, 46; 597 NW2d 176 (1999) (holding that “error
requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence
. . . . ”)
Regardless, assuming that the trial court erred in “admitting” the unchallenged testimony
of the 911 supervisor or the detective regarding the victim’s statements, any such error would not
amount to plain error affecting defendant’s substantial rights. Jones, supra at 355-356.
Considering the DNA evidence linking defendant to the alleged rape, his testimony that he did
not have sex with the victim, and the admissible statements by the victim to Ferris and Avery
that she had been raped, defendant has not shown that this cumulative evidence resulted in the
5
Defendant’s brief is somewhat confusing inasmuch as he refers to the testimony of the 911
operator. However, only the supervisor who authenticated a recording of the 911 calls testified
and she did not testify to the content of the tapes.
-4-
conviction of an actually innocent person or undermined the integrity of the judicial system, id.
at 355-356, so reversal is not warranted.
Defendant next argues that trial counsel denied him the effective assistance of counsel by
failing to argue that plaintiff did not provide adequate independent evidence that the startling
event actually occurred. We disagree.
Because no Ginther hearing was held, People v Ginther, 390 Mich 436, 442-443; 212
NW2d 922 (1973), review is limited to errors apparent on the record. People v Riley, 468 Mich
135, 139; 659 NW2d 611 (2003). “Whether a person has been denied effective assistance of
counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). Questions of fact are reviewed for clear error, while questions of
constitutional law are reviewed de novo. Id.
To establish a claim of ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance was deficient in that it fell below an objective standard of
professional reasonableness, and that it is reasonably probable that but for counsel’s ineffective
assistance, the result of the proceeding would have been different. People v Rodgers, 248 Mich
App 702, 714; 645 NW2d 294 (2001). “[D]efendant must overcome a strong presumption that
counsel’s performance constituted sound trial strategy.” Riley, supra at 140. “MRE 803(2)
provides an exception to the hearsay rule for a ‘statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or condition.’”
People v McLaughlin, 258 Mich App 635, 659; 672 NW2d 860 (2003). Our Supreme Court held
in People v Burton, 433 Mich 268, 294-295; 445 NW2d 133 (1989), that a party seeking to admit
hearsay statements under the excited utterance exception cannot merely rely on the purported
excited utterance itself to prove that the startling event occurred. Instead, the proponent must
present independent direct or circumstantial evidence establishing by a preponderance of the
evidence that the startling event actually occurred. Id.
We find that it would have been futile for trial counsel to argue that there was not
sufficient independent evidence to show that a startling event actually occurred. Plaintiff
presented eyewitness testimony that, bars had been removed from a window in the victim’s
apartment and the window had been torn out, at least two witnesses testified that the victim’s lip
had been injured, defendant’s semen was recovered from a vaginal swab taken from the victim
and from her clothing.
Defendant next argues that defense counsel’s failure to object to the incorrect jury
instruction on unarmed robbery denied him the effective assistance of counsel. We disagree.
Our Supreme Court held in People v Randolph, 466 Mich 533, 550; 648 NW2d 164
(2002), that the pre-amendment version of MCL 750.530 required that “[t]he force, violence or
putting in fear must be used before or contemporaneous with the taking” and rejected the
argument that the force6 could occur only in the flight, or retention of the property once taken.7
6
For brevity, we use the term “force” broadly to mean “force and violence, or . . . assault or
putting [a present person] in fear” within the meaning of MCL 750.530, and we use the term
(continued…)
-5-
Thus, because the instructions provided that the necessary force could occur in the course of
committing the larceny, including the “attempt . . . , flight, . . . or attempt to retain the property or
money[,]” the instructions were incorrect.
However, assuming that defense counsel’s failure to object “fell below an objective
standard of professional reasonableness[,]” there is no reasonable probability that objecting
would have made a difference. Rodgers, supra at 714. The exact sequence of events in the
apartment was never clearly established, but it is unlikely that the jury could have found that any
force occurred only after the larcenies (of the victim’s television and money) were complete. It
is far more likely that the jury inferred that the assault preceded the theft of the television, at
least. That is, the evidence could support a finding that a larceny was committed by defendant
using the necessary force, the evidence could not support a finding that defendant used force,
frightened the victim, or assaulted her only after completing a larceny, which occurred in
Randolph, supra at 534-535. It would be patently unreasonable for a rational jury to conclude
that defendant pocketed a 19-inch television and then sexually assaulted the victim, so he would
necessarily have used force that put her in fear for her safety before taking the television.
Moreover, the victim’s 911 call clearly demonstrated her fear even before defendant
gained entry into her apartment and defendant conceded during his new trial motion that the
noise of the break-in would have immediately frightened the victim. The victim also told the
detective that she gave defendant money after he broke in and demanded money, and there is no
indication or argument made that the victim would have willingly handed over money had she
not been afraid. Accordingly, because there is simply no evidence that would support a finding
that defendant only frightened or used force in an attempt to commit larceny or to escape or
retain the property, it is overwhelmingly likely that the jury found that defendant accomplished a
larceny by force or placing the victim in fear, so that the error in the jury instruction was
harmless.
Affirmed.
/s/ Janet T. Neff
/s/ Peter D. O’Connell
/s/ Christopher M. Murray
(…continued)
“larceny” to mean “rob, steal and take [property] from the person of another, or in his presence . .
.. ”
7
In contrast, the current version of MCL 750.530 provides that the necessary force may occur
“‘in the course of committing a larceny[,]’ [which] includes acts that occur in an attempt to
commit the larceny, or during commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the property.”
-6-
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