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 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. Before: Cavanagh, P.J., and Saad and Meter, JJ. METER, J. (concurring). I concur in the majority’s decision to reverse and remand because this result is compelled by Crawford v Washington, ___ US ___; 124 S Ct 1354; 158 L Ed 2d 177 (2004). I write separately, however, to express my disapproval of Crawford. In Crawford, the United States Supreme Court concluded that the main purpose of the Confrontation Clause was to prohibit the “use of ex parte examinations as evidence against [an] accused.” Id., 124 S Ct 1363. The Court stated that the text of the clause itself (“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” see US Const, Am VI) evidences that the clause applies to “witnesses,” or to those who “bear testimony.” Crawford, supra, 124 S Ct 1364. It then stated that a person giving a statement to the police is giving “testimony” because “[p]olice interrogations bear a striking resemblance to examinations by justices of the peace in England,” and the Confrontation Clause was designed to guard against the dangers of these examinations. Id. at 1363-1364. The Court then held that prior testimony – including statements given during a police interrogation – is not -1- constitutionally allowable as evidence unless the declarant is unavailable and there has been an opportunity for the defendant to cross-examine the declarant. Id., 124 S Ct 1366-1367, 1374. I simply cannot agree with Crawford’s conclusions that statements given during a police interrogation are “testimonial” and that the Confrontation Clause automatically requires the exclusion of these “testimonial” statements if there has been no prior opportunity for crossexamination. Indeed, I fail to see how an accomplice’s narrative statement that is given to a police officer and that implicates himself and the defendant is more “testimonial” in nature than a similar statement given to, for example, a casual acquaintance. See id., 124 S Ct 1364 (where Crawford draws a distinction between statements given to the police and statements given to mere acquaintances). In each case, the accomplice is not giving direct testimony against a defendant but is simply relating facts1 to a third party in an extrajudicial setting. Even assuming, arguendo, that such a statement by an accomplice to the police is considered “testimonial” in nature, I agree with Justice Rehnquist’s analysis in Crawford that there is no reasonable basis for automatically excluding out-of-court testimonial statements under the Confrontation Clause when there has been no opportunity for cross-examination. See id., 124 S Ct 1376-1378. I believe that Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1986), and People v Poole, 444 Mich 151; 506 NW2d 505 (1993), were correctly decided. I recognize, however, that I am bound by the Crawford decision, and I therefore concur in the majority’s opinion. /s/ Patrick M. Meter 1 These facts are likely to be true and often correctly deemed reliable because “the declarant and the accused are partners in an illegal enterprise.” See id. at 1377 (Rehnquist, J.). -2-

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