PEOPLE OF MI V LAMAR RASON ISHAWN CLARKE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 10, 2008
Plaintiff-Appellee,
v
No. 281620
Oakland Circuit Court
LC No. 2007-216001-FH
LAMAR RASON ISHAWN CLARKE,
Defendant-Appellant.
Before: Murray, P.J., and Sawyer and Cavanagh, JJ.
PER CURIAM.
Defendant appeals by leave granted from an order denying his motion to quash the
information. Defendant is charged with four counts of second-degree criminal sexual conduct
(CSC), MCL 750.520c. Defendant was bound over for trial after a preliminary examination and
thereafter filed his motion to quash with the trial court, which was denied. We affirm.
This case arises out of an accusation by defendant’s daughter that defendant engaged in
sexual contact with her on numerous occasions between 1997 and 2003. The victim was
between the ages of 7 and 12 during this time. She was 16 at the time she testified at defendant’s
preliminary examination. In her testimony she refused to give any details about defendant’s
alleged conduct. The prosecutor then sought to admit a statement the victim had written for the
police at the time she reported the conduct. The statement was admitted and defendant was
bound over for trial.
Defendant first argues on appeal that the statement violated his constitutional right to
confrontation. Accordingly, defendant argues that the district court should not have considered it
at the preliminary examination and, further, that the trial court erred in denying his motion to
quash the information. We disagree. We review a circuit court’s ruling on a motion to quash de
novo to determine if the district court abused its discretion in binding the defendant over for trial.
People v Jenkins, 244 Mich App 1, 14; 624 NW2d 457 (2000).
“The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’
statements of a witness who did not appear at trial, unless the witness was unavailable to testify
and the defendant had a prior opportunity to cross-examine the witness.” People v Walker (On
Rem), 273 Mich App 56, 60-61; 728 NW2d 902 (2006). With regard to whether a statement is
testimonial, this Court has distinguished between statements made to describe a current event
requiring police assistance and statements made for the purpose of establishing a past crime. Id.
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at 63. The prosecutor never challenges the conclusion that the victim’s written statement was
testimonial. The statement was made about a past crime and not for any immediate safety or
criminal apprehension purposes. We conclude that it was testimonial. Id. at 63.
Defendant’s primary argument is that his right to confront the victim was violated
because he was denied the opportunity to cross-examine her regarding the statement. He argues
that, while she testified at the preliminary examination, her refusal to testify regarding the
content of the statement rendered her unavailable for cross-examination. It is uncontested that
the victim was not subject to prior cross-examination regarding her statement. Therefore, if she
were unavailable for cross-examination at the time of the preliminary examination, admission of
the statement would violate the Confrontation Clause. Walker, supra at 60. The inquiry
regarding whether a witness is unavailable for cross-examination to satisfy the defendant’s right
to confrontation differs from the inquiry dictated by rules of evidence pertaining to hearsay
exceptions. People v Chavies, 234 Mich App 274, 284; 593 NW2d 655 (1999), overruled in part
on other grounds People v Williams, 475 Mich 245; 716 NW2d 208 (2006); MRE 804(a). The
purpose of cross-examination, to satisfy the Confrontation Clause, is to allow the defendant an
opportunity to uncover bias or defects in memory or observation. Chavies, supra at 283. The
protection of the right to confront a witness guarantees only an opportunity for effective crossexamination, not whatever cross-examination defendant desires. Id.
The victim was present at the preliminary examination and did testify. She responded to
many of the prosecutor’s questions. She testified that she wrote the statement and that its
contents were true. She did not wish to testify regarding the “unusual things” that occurred
between her and her father. She simply refused to answer questions regarding this subject. She
clearly denied, however, that defendant put his penis inside her vagina or his mouth on her
vagina. Defendant made no attempt to question the victim. Defendant had an opportunity to
probe the reasons for the victim’s refusal, to test her memory, or to uncover prejudices or biases.
He did not take this opportunity. There is no basis for concluding that defendant’s opportunity to
cross-examine the victim was deficient when no attempt to even define the contours of her
refusal to cooperate was made. The victim was sufficiently available for cross-examination to
satisfy the Confrontation Clause.
Defendant next argues that the Supreme Court’s decision in Crawford v Washington, 541
US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), abrogates the hearsay rules by requiring crossexamination to be the only test for reliability and trustworthiness of an out-of-court statement.
We disagree.
Defendant’s argument is predicated on the notion that the rule dictated in Crawford
pertains to any analysis of the reliability of out-of-court statements, whether couched as a
hearsay question or a confrontation question. Crawford does indeed teach that the purpose of the
Confrontation Clause is to establish the reliability of ex parte statements and that the best way to
establish that reliability is by cross-examination. Crawford, supra at 61. The Court, however,
draws a clear distinction between admission of a statement under the rules of evidence and
satisfaction of the constitutional right to confrontation. Id. at 56 n 7; see also Davis v
Washington, 547 US 813, 823; 126 S Ct 2266; 165 L Ed 2d 224 (2006) (distinguishing hearsay
inquiry from constitutional inquiry). “[The Confrontation Clause’s] ultimate goal is to ensure
reliability of evidence, but it is a procedural rather than a substantive guarantee.” Crawford at
61. Admission of hearsay under the evidentiary rules permits a “judicial determination of
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reliability,” whereas the Confrontation Clause requires, under Crawford, the procedural
protection provided by cross-examination. Id. at 61-62. All hearsay is subject to the rules of
evidence; testimonial hearsay must also satisfy the requirements of the Confrontation Clause. Id.
at 61. Defendant’s argument that the catch-all hearsay exception is modified and informed by
Crawford must, therefore, fail.
Defendant’s final argument is that the prosecutor failed to satisfy two of the requirements
of MRE 803(24),1 the catch-all hearsay exception. We disagree.
Defendant failed to preserve this issue because he did not raise these specific grounds for
objection with the lower court. People v Bauder, 269 Mich App 174, 177-178; 712 NW2d 506
(2005). Thus, we review only for plain error affecting substantial rights. People v Carines, 460
Mich 750, 761-762; 597 NW2d 130 (1999).
MRE 803(24) provides:
A statement not specifically covered by any of the foregoing exceptions
but having equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact, (B) the
statement is more probative on the point for which it is offered than any other
evidence that the proponent can procure through reasonable efforts, and (C) the
general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of the statement makes known
to the adverse party, sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent’s
intention to offer the statement and the particulars of it, including the name and
address of the declarant.
Defendant argues on appeal that the victim’s statement is not more probative than her in-court
testimony and that he was not given adequate notice that the prosecutor intended to offer the
statement.
The victim’s written statement detailed the alleged sexual conduct by defendant. The
victim would only state in her testimony that “unusual things” occurred some nights between
herself and defendant. When questioned at the preliminary examination, she refused to give
details about these “unusual things.” The prosecutor then received permission from the court to
lead the victim as a hostile witness and questioned the victim about the incidents detailed within
the statement to no avail. Defendant offers no argument that the prosecutor could have made any
1
Defendant’s brief on appeal cites MRE 803(b)(7), possibly because the lower court erroneously
cited this rule. MRE 803(24) and MRE 803(b)(7) are identical catch-all hearsay exceptions, but
under MRE 803(24), availability of the witness is immaterial. Because they are identical, there
is never any need to determine whether a witness is unavailable, as required by MRE 803(b)(7),
in order to apply a catch-all hearsay exception. See People v Welch, 226 Mich App 461, 464 n 2;
574 NW2d 682 (1997).
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other reasonable effort to procure additional testimony from the victim. See MRE 803(24)(B).
Defendant’s contention that a written statement is not more probative than in-court testimony by
the same witness is only true in the hypothetical. In the instant case, because the victim’s
testimony lacked any detail about the alleged actions, it differs from the written statement not
only in quality, but also in substance. The written statement was, in fact, the only evidence of
the alleged acts reasonably procured by the prosecutor.
Defendant also argues that he was not provided adequate notice to prepare his defense in
regard to admission of the written statement. There is, indeed, no evidence on the record
establishing that the prosecutor gave defendant notice of intent to offer the statement. The victim
was on the witness list and she testified at the preliminary examination. The prosecutor asked
her about the statement after she refused to provide detailed allegations, and offered the
statement into evidence at the close of her testimony. Defense counsel did not express any
surprise at the time the statement was discussed or offered into evidence. No objection relating
to notice was raised at the time it was introduced. In the absence of any indication that defendant
was surprised or unprepared to meet the proposed evidence, the court did not plainly err in
failing to investigate, sua sponte, whether adequate notice was given. Cf. People v Elston, 462
Mich 751, 764; 614 NW2d 595 (2000) (trial court has no duty to order continuance in face of
surprise evidence if none is sought).
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
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