PEOPLE OF MI V REGINALD LENOIR LEWIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellee,
v
No. 274508
Wayne Circuit Court
LC No. 06-006502-01
REGINALD LENOIR LEWIS,
Defendant-Appellant.
ON REMAND
Before: Meter, P.J., and Sawyer and Wilder, JJ.
PER CURIAM.
In People v Lewis, unpublished opinion per curiam of the Court of Appeals, issued April
15, 2008 (Docket No. 274508), we affirmed defendant’s conviction for first-degree premeditated
murder, MCL 750.316. Following the United States Supreme Court’s decision in Melendez-Diaz
v Massachusetts, ___ US ___; 129 S Ct 2527; 174 L Ed 2d 314 (2009), and in lieu of granting
leave to appeal, the Michigan Supreme Court vacated our opinion in part and remanded “for
reconsideration of [] defendant’s Confrontation Clause, sufficiency of the evidence, and
ineffective assistance issues in light of Melendez-Diaz.” People v Lewis, 481 Mich 114; 772
NW2d 47 (2009). We again affirm.
As we stated in our previous opinion:
Defendant’s conviction[] ar[o]se from the death of his longtime girlfriend,
Tomeka Cook. After a dispute with defendant over money, Cook was found dead
with multiple stab wounds. [Lewis, supra at slip op, p 1.]
An autopsy was performed on Cook’s body and the trial court admitted into evidence the autopsy
report prepared by two nontestifying medical examiners through the testimony of a third medical
examiner from the same laboratory, Dr. Carl Schmidt. In his first claim on remand, defendant
argues that the admission of the autopsy report violated his constitutional right to confront
witnesses against him. We disagree. This issue is unpreserved because defendant failed to
object to the admission of the autopsy report and Dr. Schmidt’s testimony on Sixth Amendment
grounds. Therefore, we review defendant’s claim for plain error that affected his substantial
rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999); People v Bauder, 269
Mich App 174, 180; 712 NW2d 506 (2005).
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We will reverse only if we determine that, although defendant was actually
innocent, the plain error caused him to be convicted, or if the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings,
regardless of his innocence. [People v Thomas, 260 Mich App 450, 454; 678
NW2d 631 (2004).]
The confrontation clause provides: “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” US Const, Am VI. Our state
constitution also guarantees the same right. Const 1963, art 1, § 20. To preserve this right,
testimonial hearsay is inadmissible against a criminal defendant unless the declarant was
unavailable at trial and there was a prior opportunity for cross-examination of the declarant.
Crawford v Washington, 541 US 36, 50-51, 53-54; 124 S Ct 1074; 13 L Ed 2d 177 (2004);
People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005).1 Statements are testimonial
where the “primary purpose” of the statements or the questioning that elicits them “is to establish
or prove past events potentially relevant to later criminal prosecution.” Davis v Washington, 547
US 813, 822; 126 S Ct 2266, 2274; 165 L Ed 2d 244 (2006).
In our previous opinion, we thoroughly discussed this Court’s applications of Crawford
in People v Jambor, 273 Mich App 477; 729 NW2d 569 (2007), and People v Lonsby, 268 Mich
App 375; 707 NW2d 610 (2005). Based on these decisions, we concluded that the autopsy
report was nontestimonial because it “was not prepared in anticipation of litigation against
defendant, but pursuant to a ‘duty imposed by law,’ MRE 803(8).” Lewis, supra, slip op, p 4
(citation omitted), citing Jambor, supra. We also noted that a medical examiner is required by
statute to investigate the cause and manner of death of an individual under certain circumstances,
including death by violence, MCL 52.202(1)(a), and thus further concluded that the admission of
the autopsy report through Dr. Schmidt’s testimony did not violate defendant’s Sixth
Amendment rights under Crawford and Davis.2
1
The confrontation clause does not restrict state law in the determination of whether hearsay is
admissible when it is nontestimonial, however. Crawford, supra at 68.
2
We previously observed “the autopsy report contained enough ‘objective’ information and
statements upon which Dr. Schmidt could form an independent opinion about which he could be
cross-examined.” Lewis, supra, slip op, p 5. We stated:
Dr. Schmidt testified that the autopsy report showed that Tomeka had sustained
several stab wounds, and six wounds on the backs of her hands, which the report
described as “defensive wounds.” He testified that the one of the medical
examiners who performed the autopsy had concluded that the cause of death was
multiple stab wounds and the manner of death was homicide. After reviewing the
report and sketch upon which the nontestifying medical examiner based her
opinion, Dr. Schmidt agreed with her conclusions about cause and manner of
death, and with her description of the wounds on the backs of the hands as
defensive. Dr. Schmidt testified that, in his opinion, Tomeka could have been
killed on February 2, 2003, or February 3, 2003, but not on February 4, 2003,
(continued…)
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Our Supreme Court has instructed this Court to reconsider defendant’s confrontation
clause argument in light of Melendez-Diaz, supra. That case involved the use of affidavits by
forensic analysts to support the defendant’s convictions of distributing and trafficking in cocaine.
Id. at ___, 129 S Ct at 2530-2531. At trial, over the defendant’s objection, the court admitted
three notarized “certificates of analysis” from nontestifying laboratory analysts who, at police
request, tested the substance in bags seized by police. Id. The certificates stated that chemical
testing identified the substance in the bags as cocaine. Id. Massachusetts’ law permitted the
certificates to serve as “prima facie evidence of the composition, quality, and net weight of the
narcotic” analyzed, and held that the authors of the certificates were not subject to confrontation.
Id. at ___, 129 S Ct 2531.
On appeal, the defendant in Melendez-Diaz, supra at ___, 129 S Ct at 2531, challenged
the admission of the certificates and claimed that the analysts were required to testify in person.
The United States Supreme Court reversed the defendant’s conviction, holding that the
admission of the documents violated the confrontation clause. The Supreme Court’s decision
reaffirmed the principles set forth in Crawford. Justice Scalia, writing for the Court, reiterated
Crawford’s description of “the class of testimonial statements covered by the Confrontation
Clause,” that is,
material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially; extrajudicial
statements . . . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial. [Id. at ___, 129 S Ct at
2531, quoting Crawford, supra, 541 US at 51-52.]
The Supreme Court concluded that the “certificates of analysis” were affidavits, and that
they were statements offered against the defendant to prove a contested fact. Id. at ___, 129 S Ct
at 2532. As such, the certificates were testimonial in nature and subject to the Confrontation
Clause. Id. The fact that the “sole purpose” of the certificates was to serve as prima facie
evidence at trial further supported the Court’s conclusion that they were testimonial. Id. The
Supreme Court summarized:
In short, under our decision in Crawford the analysts’ affidavits were testimonial
statements, and the analysts were “witnesses” for purposes of the Sixth
Amendment. Absent a showing that the analysts were unavailable to testify at
trial and that petitioner had a prior opportunity to cross-examine them, petitioner
was entitled to “‘be confronted with’” the analysts at trial. Crawford, supra, at
54; 124 S Ct 1354. [Id.]
(…continued)
because that is when the body was found and rigor mortis was waning. [Id. at pp
11-12.]
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Applying Melendez-Diaz to the instant case, we again conclude that defendant has failed
to establish plain error in the admission of the report. The Supreme Court’s determination that
the forensic analysts’ certificates in Melendez-Diaz were testimonial was based on characteristics
that are not present here. Unlike the certificates, which were prepared for the “sole purpose” of
providing “prima facie evidence” against the defendant at trial, Melendez-Diaz, supra at ___,
129 S Ct at 2532, the autopsy report was prepared pursuant to a duty imposed by statute. Lewis,
supra, slip op, pp 4-5; MRE 803(8); MCL 52.202(1)(a). As we stated in our previous opinion:
while it was conceivable that the autopsy report would become part of criminal
prosecution, investigations by medical examiners are required by Michigan statute
under certain circumstances regardless of whether criminal prosecution is
contemplated. [Lewis, supra, slip op, p 4.]
Furthermore, unlike the certificates in Melendez-Diaz, Dr. Schmidt formed independent opinions
based on objective information in the autopsy report and his opinions were subject to crossexamination. See Lewis, supra, slip op, p 5; cf Jambor, 273 Mich App at 488, and Lonsby, 268
Mich App at 392. Because the autopsy report was not prepared primarily for use in a later
criminal prosecution and defendant cross-examined Dr. Schmidt’s independent opinions based
on the autopsy report, the report is not testimonial evidence and defendant was not denied the
right to be confronted by the two nontestifying medical examiners who prepared it. Davis, 547
US at 822; Lonsby, 268 Mich App at 392.
In addition, as we previously concluded, the admission of the report through the
testimony of Dr. Schmidt was not outcome determinative: “There is no dispute that a crime was
committed, and the autopsy did not aid in establishing the identity of the perpetrator, which was
the central issue in this case.” Lewis, supra, slip op, pp 12-13.3
In defendant’s second claim on remand, he argues that his attorney was ineffective for
failing to object to the admission of the autopsy report on Sixth Amendment grounds. We
disagree. The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law. People v Grant, 470 Mich 477,
484; 684 NW2d 686 (2004). The trial court must first find the facts, and then decide whether
those facts constitute a violation of the defendant’s constitutional right to counsel. Id. The trial
court’s factual findings are reviewed for clear error, while its constitutional determinations are
reviewed de novo. Id. at 484-485.
Effective assistance is strongly presumed. People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000). To demonstrate ineffective assistance, a defendant must show: (1) that his
attorney’s performance fell below an objective standard of reasonableness, and (2) that this
performance so prejudiced him that he was deprived of a fair trial. Grant, supra at 485-486.
3
The Melendez-Diaz Court noted that “[t]he right to confrontation may, of course, be waived,
including by failure to object to the offending evidence; and States may adopt procedural rules
governing the exercise of such objections.” Melendez-Diaz, supra at ___, 129 S Ct at 2534 n 3.
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Prejudice exists if a defendant shows a reasonable probability that the outcome would have been
different but for the attorney’s errors. Id. at 486.
Because the admission of the autopsy report did not violate defendant’s right of
confrontation, his attorney’s failure to object to the admission of the report did not fall below an
objective standard of reasonableness. Moreover, defendant cannot demonstrate that, but for the
attorney’s alleged error, the outcome of the trial would have been different. Grant, supra at 485486. As we note, infra, there was sufficient evidence to support defendant’s first-degree murder
conviction absent the report.
In defendant’s last two claims on remand, he first argues that the prosecutor failed to
present sufficient evidence identifying him as the perpetrator to support his conviction, and he
second challenges the trial court’s denial of his motion for directed verdict, reiterating his
argument that there was insufficient evidence identifying him as the perpetrator and arguing that
the evidence of premeditation was “scarce and circumstantial.” We disagree. “A claim of
insufficient evidence is reviewed de novo, in a light most favorable to the prosecution, to
determine whether the evidence would justify a rational jury’s finding that the defendant was
guilty beyond a reasonable doubt.” People v McGhee, 268 Mich App 600, 622; 709 NW2d 595
(2005). Circumstantial evidence and reasonable inferences may be satisfactory proof of the
elements of a crime. People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000). A
challenge to the trial court’s decision on a motion for a directed verdict has the same standard of
review as a challenge to the sufficiency of the evidence. People v Aldrich, 246 Mich App 101,
122-123; 631 NW2d 67 (2001).
“[I]dentity is an element of every offense.” People v Yost, 278 Mich App 341, 356; 749
NW2d 753 (2008). “The elements of premeditated murder are (1) an intentional killing of a
human being (2) with premeditation and deliberation.” People v Gayheart, 285 Mich App 202,
210; ___ NW2d ___ (2009). “[P]remeditation and deliberation may be inferred from the
circumstances,” and “[m]inimal circumstantial evidence is sufficient to prove an actor’s state of
mind.” People v Ortiz, 249 Mich App 297, 301; 642 NW2d 417 (2001).
Again, the autopsy report did not aid in establishing the identity element of the crime.
Lewis, supra, slip op, pp 12-13. Accordingly, even if the autopsy report had constituted
testimonial evidence and defendant was denied his Sixth Amendment rights, the admission of the
report would not have been outcome determinative to the issue of identity. Consistent with our
previous opinion, we conclude that the evidence was sufficient for a rational trier of fact to find
that defendant was Cook’s killer because his blood was recovered from the back door of Cook’s
home, where she was found dead with defensive wounds. Lewis, supra, slip op 26. For this
same reason, the trial court did not err in denying defendant’s motion for a directed verdict based
on his identity argument.
Furthermore, as we stated in our previous opinion, the autopsy report detailing the
numerous stab wounds that Cook sustained provided evidence of intent and premeditation.
Lewis, supra at 27-30. However, even without the report, the prosecution presented sufficient
evidence for a rational trier of fact to find intent and premeditation. Defendant and Cook had a
contentious relationship. The autopsy photographs demonstrated that Cook sustained numerous
stab wounds. Dr. Schmidt independently opined that some of Cook’s wounds were defensive,
indicating a struggle, which can be evidence of premeditation. See Lewis, supra at 29, citing
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People v Johnson, 460 Mich 720, 700, 733; 597 NW2d 73 (1999). A rational trier of fact could
also find premeditation from evidence of defendant’s acts after the homicide. See Id. at 28-29,
citing People v Gonzalez, 178 Mich App 526, 533; 444 NW2d 228 (1989) (a defendant's conduct
after the homicide may establish premeditation). As we thoroughly discussed in our previous
opinion, it could be inferred that defendant attempted to construct an alibi by spending time with
friends, that he acted secretively with telephone calls, and that, several months after Cook’s
death, he evaded conversation about Cook. Because the prosecution presented sufficient
evidence for a rational trier of fact to find both intent and premeditation, the trial court did not err
in denying defendant’s motion for a directed verdict based on his premeditation argument.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
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