PEOPLE OF MI V PAUL CHRISTOPHER MAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2007
Plaintiff-Appellee,
v
No. 272990
Oakland Circuit Court
LC No. 2006-207465-FC
PAUL CHRISTOPHER MAY,
Defendant-Appellant.
Before: Zahra, P.J., and White and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from his jury conviction of carjacking, MCL 750.529a. We
affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Joya Weekes and Courtney Rice drove to a nail salon at a strip mall in Oak Park.
Accompanying them in another car were Aaron Staten and Larry Harrell. Harrell parked next to
Weekes, and Weekes went into the salon with Harrell and Staten. Rice remained in the car with
the engine and air conditioning running.
Weekes, Rice, Staten, and Harrell testified that they saw defendant walking slowly on the
sidewalk in front of a bakery in the mall near the salon. Defendant said hello to Harrell. A short
time after the others entered the salon, defendant opened the door of the car, and sat down in the
driver’s seat. Rice, who was frightened, asked defendant to let her out, but defendant told her to
stay. He then put the car in reverse. Rice managed to get out of the car.
Rice ran into the salon and told the others what had happened. Weekes called the police,
and she and Rice went outside. Weekes and Rice received information from an individual who
worked at the bakery concerning the identification of the person who had taken the car. Rice
subsequently provided a description of the person who had taken the car, and his possible
identity, to the police. Both Rice and Harrell identified defendant in the photographic lineup and
at trial. Staten was unable to make an identification during the photographic lineup, and did not
identify defendant at trial. Weekes identified another individual during the photographic lineup,
but also stated during trial that defendant was the person who had taken the car.
On appeal, defendant maintains that the trial court erred when it permitted Rice to testify,
over defendant’s objection, that an unidentified person told her that the person who had taken the
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car was the husband of a woman who worked in the bakery. He contends that this constituted
impermissible hearsay testimony.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). An abuse of discretion
occurs only when the trial court’s decision falls outside the range of “reasonable and principled
outcome[s].” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Hearsay generally may not be admitted as substantive evidence unless it is offered under
an exception to the hearsay rule. MRE 802; MRE 803. Here, the prosecutor does not argue that
an exception to the hearsay rule permits the evidence in question. Rather, the prosecutor argues
it is not hearsay at all, as it was not offered for its truth. The prosecution maintains the contested
testimony was offered to explain how the police discovered the identity of the perpetrator and,
thus, how they were able to create a photographic lineup that included a photo of defendant.
Had the prosecution called as a trial witness the bakery employee who informed Rice of
the identity of the person who took the car instead of eliciting this evidence from Rice, there
would be no issue regarding the propriety of this evidence. Michigan has long permitted an
identifier to testify to his extrajudicial identification. People v Londe, 230 Mich 484; 203 NW
93(1925). Here, however, a third party is testifying to the bakery employee’s extrajudicial
identification.
In People v Sanford, 402 Mich 460, 489; 265 NW2d 1 (1978), our Supreme Court
addressed this issue:
Our case law and that of other jurisdictions do not present a clear case for
admission of this type of testimony. While most jurisdictions admit the testimony
of the identifier as an extrajudicial identification, most jurisdictions do not admit
the testimony of a third party to an extrajudicial identification, except in limited
circumstances. . . . Where admitted, such testimony has usually been limited to
(1) rebuttal of testimony tending to impeach or discredit the testimony of the
identifying witness or (2) testimony of the circumstances surrounding the
identification.
In Sanford, a witness, Anderson, identified the two defendants as the perpetrators to a police
officer the day after the crime. Our Supreme Court affirmed the trial court’s decision to allow
the police officer to testify to Anderson’s identification:
In this case the officer testified to an event he had witnessed, the
identification of the defendants by Mr. Anderson, the complaining witness. He
was not testifying to the truth of the identification statement but to the fact that it
was made and the circumstances surrounding it. Hearsay is defined as a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted. People v
Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973). Since the police officer
was not testifying to prove that the defendants were the alleged assailants, but
only to show that on February 27, 1974 he witnessed an event, the identification
of the defendants by Mr. Anderson, his testimony was not hearsay.
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While the Supreme Court in Sanford concluded that the testimony at issue in that case
was not inadmissible hearsay, our Supreme Court nonetheless cautioned against the potential for
abuse of such evidence. Id at 491-492. See also, Id at 493-500 (concurring opinions of Justices
Ryan, Kavanagh and Levin). The present case is distinguishable from Sanford. In Sanford, both
the identifier, Mr. Anderson, and the third party police officer testified at trial. The testimony of
the police officer removed potential confrontation clause issues. Here, the identifier was not
called to testify at trial.
Even if we conclude the trial court erred in concluding this testimony was not hearsay,
the error was harmless as a matter of law. A preserved nonconstitutional error is not a ground
for reversal unless it affirmatively appears that it is more probable than not that the error was
outcome determinative. People v Lukity, 460 Mich 484, 494-495; 596 NW2d 607 (1999). Here,
substantial evidence established defendant’s role in the crime. The two individuals who had the
greatest opportunity to interact with defendant before the carjacking consistently identified him
as Rice’s assailant. Notably, Rice appeared to have no difficulty identifying defendant. Both she
and Harrell also provided identical observations as to how defendant’s hairstyle at the time of the
carjacking differed from that in his photograph. The other two witnesses, who admittedly could
not identify defendant in the photographic lineup, did provide corroborating descriptions. In
light of this evidence, we find the alleged hearsay testimony cumulative and not significantly
prejudicial. See People v Hill, 257 Mich App 126, 140; 667 NW2d 78 (2003).
Affirmed.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
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