STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
April 1, 2008
Kalamazoo Circuit Court
LC No. 05-000905-FC
JOSEPH AVERON CAMPBELL,
Before: Murphy, P.J., and Smolenski and Meter, JJ.
Defendant appeals as of right from his conviction by a jury of second-degree murder,
MCL 750.317. The trial court sentenced him to 20 to 35 years’ imprisonment. We affirm.
Defendant’s conviction arose from the stabbing death of Albert Weatherspoon. At trial,
the preliminary examination testimony of Robert Ford was admitted because Ford was
unavailable as a witness. Ford had testified at the preliminary examination that defendant made
incriminating statements about the death of Weatherspoon. On appeal, defendant argues that
Ford’s testimony should not have been admitted because defendant did not have the same motive
and opportunity to cross-examine Ford at the preliminary examination as he would have had
A trial court’s decision to admit or exclude evidence is generally reviewed for an abuse
of discretion. People v Manser, 250 Mich App 21, 31; 645 NW2d 65 (2002). Here, however,
because the trial court’s evidentiary ruling implicated defendant’s constitutional right of
confrontation, the standard of review is de novo. People v Beasley, 239 Mich App 548, 557; 609
NW2d 581 (2000).
MRE 804 states, in part:
(b) Hearsay Exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
Defendant does dispute on appeal that Ford was unavailable.
(1) Former Testimony. Testimony given as a witness at another hearing of
the same or a different proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross, or
In People v Meredith, 459 Mich 62, 69-71; 586 NW2d 538 (1998), the Michigan
Supreme Court held that MRE 804(b)(1) is a firmly rooted exception to the hearsay rule and that,
therefore, the Confrontation Clause of the United States Constitution is satisfied when prior
testimony is admitted under this rule. The United States Supreme Court expounded upon this
principle in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). The
Court held that “[w]here testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.” Crawford, supra at 68-69. The Confrontation Clause “commands, not that
evidence be reliable, but that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.” Id. at 61. It is the prior opportunity to cross-examine that is
dispositive. See id. at 55.
Defendant essentially argues that neither MRE 804(b)(1) nor the Crawford requirement
was satisfied here because the type of cross-examination at the preliminary examination was not
the same as the type that would take place at trial. We reject defendant’s argument.
This Court recently adopted a non-exhaustive list of factors to consider when determining
whether a party had a similar motive to develop testimony at a prior proceeding. See People v
Farquharson, 274 Mich App 268, 278; 731 NW2d 797 (2007). These factors include whether
the party’s interests at the hearings were of similar intensity, whether what was at stake at the
proceedings and the burden of proof were similar, and whether the party actually cross-examined
the witness during the prior proceeding. Id.
Here, the issues were similar at the preliminary examination and at trial. Defendant was
charged with open murder by the time of the preliminary hearing. At trial the jury was charged
with determining whether he was guilty of first- or second-degree murder. Defendant’s aim at
both hearings was to challenge the credibility of witnesses and to find inconsistencies in their
memories of events. At stake in both proceedings was defendant’s freedom. The burden of
proof was different, but the higher burden at trial was on the prosecution, not defendant.
Defendant would likely have to cross-examine more vigorously, or at least as vigorously, at the
preliminary hearing for the court to find there was no probable cause than he would have to at
trial for the jury to find him not guilty. Finally, defense counsel took advantage of the
opportunity to cross-examine Ford at the preliminary hearing. His cross-examination went on
for 15 pages of the transcript. He covered all the important points of Ford’s testimony and had
an adequate opportunity to test Ford’s bias and lack of credibility. The Farquharson factors
were clearly satisfied, as was the requirement of Crawford. Defendant had an adequate
opportunity for cross-examination at the preliminary hearing. Crawford, supra at 55. See also
California v Green, 399 US 149, 165-168; 90 S Ct 1930; 26 L Ed 2d 489 (1970) (admission of
preliminary examination testimony not violative of Confrontation Clause).
The use of Ford’s preliminary examination testimony at trial did not violate defendant’s
right of confrontation.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Patrick M. Meter