PEOPLE OF MI V MICHAEL E BELL

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION October 7, 2004 9:00 a.m. Plaintiff-Appellee, v No. 209269 Recorder's Court LC No. 95-004885 MICHAEL E. BELL, Defendant-Appellant. ON SECOND REMAND PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 209270 Recorder's Court LC No. 97-001258 MICHAEL E. BELL, Defendant-Appellant. Official Reported Version Before: Cavanagh, P.J., and Saad and Meter, JJ. SAAD, J. Once again, this case is before us on remand from our Supreme Court,1 which has instructed us to reconsider this case in light of the United States Supreme Court's significant decision in Crawford v Washington, 541 US ___; 124 S Ct 1354; 158 L Ed 2d 177 (2004). We hold that Crawford applies retrospectively, requires reversal here, and thus we reverse and remand for a new trial. 1 In People v Bell, 470 Mich 875 (2004), in lieu of granting defendant leave to appeal, the Court vacated this Court's previous opinion in this case, People v Bell (On Remand), unpublished opinion per curiam of the Court of Appeals, issued February 5, 2002 (Docket Nos. 209269, 209270), and remanded to this Court for reconsideration. -1- I. FACTS AND PROCEDURAL HISTORY This case stems from defendant's jury trial convictions, in two separate cases, on three counts of first-degree felony murder (felony murder)2 and one count of solicitation to commit arson of a dwelling house.3 The police arrested defendant after Matthew Roberts told them that defendant hired Roberts to firebomb the victims' house. At trial, Roberts asserted his Fifth Amendment right against self-incrimination4 and did not testify. Accordingly, the trial court admitted Roberts's statement to the police that inculpated defendant.5 Defendant appealed his convictions and sentences to this Court and argued that the trial court erred when it admitted a statement of a nontestifying accomplice that implicated defendant. Defendant argued that this violated his Confrontation Clause right to cross-examine witnesses against him. US Const, Am VI. We rejected defendant's argument because of our Supreme Court's opinion in People v Poole, 444 Mich 151; 506 NW2d 505 (1993), in which the Court held that the hearsay statements of nontestifying accomplices are admissible if they meet certain reliability requirements. People v Bell, unpublished opinion per curiam of the Court of Appeals, issued October 6, 2000 (Docket Nos. 209269, 209270). Defendant sought leave to appeal in our Supreme Court, which remanded this case to us for further explanation of our analysis under Poole.6 On remand, we complied with the Court's remand order, explained our decision, and reaffirmed our previous opinion. People v Bell (On Remand), unpublished opinion per curiam of the Court of Appeals, issued February 5, 2002 (Docket Nos. 209269, 209270). II. APPLICATION OF CRAWFORD v WASHINGTON A. The Crawford Decision Generally In Crawford, the United States Supreme Court held that to admit testimonial evidence against a defendant, the declarant must be unavailable and the defendant must have had "a prior opportunity for cross examination" of the declarant. Crawford, supra at ___; 124 S Ct 1374. The Court in Crawford overruled its previous opinion in Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which held that such evidence could be admitted if it could be shown to be reliable. Our Supreme Court's opinion in Poole, upon which we previously relied in this case, in turn relied upon Roberts. Poole, supra at 162-163.7 In Crawford, the Supreme Court reasoned that "[d]ispensing with confrontation because testimony is obviously reliable is 2 MCL 750.316(1)(b). 3 MCL 750.157b; MCL 750.72. 4 US Const, Am V. 5 The trial court originally ruled, at defendant's preliminary examination, that it would not admit Roberts's statement, but it later reversed itself at trial and admitted this evidence. 6 However, the Court otherwise denied leave. People v Bell, 465 Mich 923 (2001). 7 Clearly, this explains our Supreme Court's decision to order us to reconsider this case. -2- akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, supra at ___; 124 S Ct 1371. Though the Supreme Court in Crawford "[left] for another day any effort to spell out a comprehensive definition of 'testimonial,'" Id. at ___; 124 S Ct 1374, it also stated that "[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard."8 Id. at ___; 124 S Ct 1364. B. Retrospective Application This Court has previously noted that Crawford should be applied retrospectively. People v McPherson, 263 Mich App 124, 135 n 10; ___ NW2d ___ (2004), citing Powell v Nevada, 511 US 79, 84; 114 S Ct 1280; 128 L Ed 2d 1 (1994). In Powell, the United States Supreme Court held that "'a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.'" Powell, supra at 84, quoting Griffith v Kentucky, 479 US 314, 328; 107 S Ct 708; 93 L Ed 2d 649 (1987). Accordingly, we hold that Crawford applies retrospectively here because this case was pending on appeal when the Supreme Court decided the case. C. Application to the Facts of this Case Here, Roberts was arrested and interrogated by the police in connection with these crimes. During the course of this interrogation, Roberts gave a statement that implicated defendant. Therefore, this statement was clearly testimonial. Moreover, defendant did not have an opportunity to cross-examine Roberts, because Roberts chose to exercise his Fifth Amendment right not to testify at trial. Accordingly, the Supreme Court's decision in Crawford compels us to hold that the trial court's decision to admit Roberts's statement violated defendant's Confrontation Clause right to cross-examine witnesses against him. D. Harmless Error However, "when a trial court commits an error that denies [a defendant's] constitutional rights under the Confrontation Clause . . . we need not reverse if the error is harmless beyond a reasonable doubt." McPherson, supra at 131-132, citing People v Smith, 243 Mich App 657, 690; 625 NW2d 46 (2000), citing People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). 8 We respectfully disagree with our concurring colleague that a police interrogation is not testimonial. We instead agree with the rationale articulated by Justice Scalia in Crawford in which he said: "That interrogators are police officers rather than magistrates does not change the picture either. . . . The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace." Crawford, supra at ___ ; 124 S Ct 1365. -3- Here, the primary evidence supporting the solicitation and felony-murder convictions is Roberts's inadmissible statement. Therefore, we cannot say that this constitutional error is harmless beyond a reasonable doubt. See McPherson, supra at 131. Accordingly, we reverse and remand for a new trial. We do not retain jurisdiction. /s/ Henry William Saad /s/ Mark J. Cavanagh -4-

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