PEOPLE OF MI V ALVIN C WALKER JRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
March 24, 2005
Oakland Circuit Court
LC No. 2002-187306-FH
ALVIN C. WALKER, JR.,
Official Reported Version
Before: Neff, P.J., and Cooper and R. S. Gribbs*, JJ.
Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82;
possession of a firearm by a felon, MCL 750.224f; and two counts of possession of a firearm
during the commission of a felony, MCL 750.227b. Defendant was sentenced as an habitual
offender, third offense, MCL 769.11, to concurrent prison terms of two to eight years for the
felonious assault conviction and thirty-five months to ten years for the conviction of possession
of a firearm by a felon, and to two consecutive prison terms of two years for the felony-firearm
convictions. We affirm.
This case stems from a domestic assault in which defendant beat his live-in girlfriend
repeatedly with a stick and threatened her with a gun. The couple had been living together for
several years and had a son together. The victim told police that after the couple had an
argument on the evening of October 18, 2002, defendant forced her to lie on the bed on her
stomach while he beat her with white sticks on her back, buttocks, legs, and arms. He then
pointed a handgun at her and told her he would "blow her back out" if she moved. The beatings
continued until early the next morning. The victim escaped at approximately 9:00 a.m. by
jumping from a second-story balcony while defendant was sleeping. She ran to the home of a
neighbor, who called 911.
The police arrived within a few minutes. Because the victim was upset, the neighbor
wrote out her statement of what happened. The victim accompanied the police to the couple's
*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
home, where the police found three white sticks and a handgun. Defendant was not at the home,
but was located and arrested a short while later.
Defendant first argues that he was denied his right of due process and the right to
confront witnesses by the admission of the victim's hearsay statements. Defendant contends that
the trial court erred by admitting the statements under MRE 803(2), the hearsay exception for
The trial court's ruling regarding the admission of evidence is reviewed for an abuse of
discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002); People v Taylor, 195
Mich App 57, 60; 489 NW2d 99 (1992). This Court will find an abuse of discretion only when
an unprejudiced person, considering the facts on which the trial court acted, would say there was
no justification or excuse for the ruling. Id.
Defendant argues that the admission of the victim's statements as excited utterances was
improper because the statements were not made before the victim had the time and capacity to
fabricate the statements. He argues that there was a two-hour delay from the time of the assault
to the time of the statements, the victim fell asleep between the assault and her escape, and she
had time to compose herself enough to jump from a second-story window, all of which support a
conclusion that she had the capacity to fabricate the assault.
The prosecutor filed a pretrial motion to admit the victim's statements to the neighbor
under MRE 803(2). The record indicates that following a hearing, the trial court granted the
motion. We find no error in the admission of the victim's statements.
Under MRE 803(2), a hearsay statement is admissible if it is "[a] statement relating to a
startling event or condition made while the declarant was under the stress of excitement caused
by the event or condition." There are two primary requirements for an excited utterance: (1)
there must be a startling event, and (2) the resulting statement must have been made while the
declarant was under the excitement caused by that event. People v Smith, 456 Mich 543, 550;
581 NW2d 654 (1998).
There is no express time limit for excited utterances. The rule focuses on the lack of
capacity to fabricate, not the lack of time to fabricate. Although the amount of time that passes
between the event and the statement is an important factor in determining whether the declarant
was still under the stress of the event when the statement was made, it is not dispositive. The
question is not strictly one of time, but of the possibility of conscious reflection. Id. at 551. The
trial court's decision regarding whether the declarant was still under the stress of the event is
given wide discretion. Id. at 552.
Here, all the circumstances support a finding that the victim's statements were the result
of a startling event and constituted an excited utterance. According to the evidence, the victim
was beaten throughout the night and escaped within two hours of the last beating. She jumped
from a second-story balcony, ran to a neighbor's house, and asked her to call 911. According to
the neighbor, the victim was injured and "crying and shaking and she seemed really upset, hurt."
The 911 call was received at 9:02 a.m. and the first police officer arrived at the neighbor's home
within five minutes; other officers arrived within fifteen to twenty minutes. According to the
officers' testimony, the victim was hysterical: she was scared, crying, highly upset, and shaking.
There is nothing to suggest that the intervals between the assault, her escape, and the statements
to the neighbor and the police gave rise to reflective fabrication. Accordingly, the determination
was within the bounds of discretion, and the trial court properly admitted this testimony into
evidence under MRE 803(2). Smith, supra at 550.
In response to our dissenting colleague, we first note that defendant's challenge in the
trial court to the victim's statements was based on his contention that the facts did not support
admission of the victim's statement to her neighbor under the hearsay exception for an excited
utterance, MRE 803(2). His challenge based on the Confrontation Clause1 is raised for the first
time on appeal. Accordingly, it is arguable whether the issue raised and discussed by the dissent
pursuant to Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and
United States v Cromer, 389 F3d 662 (CA 6, 2004), is preserved for appellate review.2
Nevertheless, we are unpersuaded that either Crawford or Cromer compels the result for which
the dissent argues.
The dissent concludes that the victim's statements were inadmissible because they
constitute testimonial hearsay under Crawford. The Crawford Court avoided any attempt to
define "testimonial," admittedly creating interim uncertainty concerning the reach of its holding,
Crawford, supra at 68 n 10, and essentially leaving the lower courts to decide whether particular
hearsay evidence is or is not "testimonial." We conclude that the statements of the victim in this
case do not qualify as testimonial under the analysis and guidance of Crawford.
In Crawford, the Court declined to set forth a "precise articulation" of what constitutes
"testimonial" hearsay for purposes of the Confrontation Clause, despite acknowledging various
US Const, Am VI.
As an unpreserved issue, defendant's challenge is reviewed for plain error affecting his
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
formulations of a definition. Id. at 52. The bar imposed on testimonial hearsay is therefore
unsupported by any explicit rule beyond (1) the Court's pronouncements that "ex parte testimony
at a preliminary hearing" and "[s]tatements taken by police officers in the course of
interrogations" are indisputably testimonial, id., and (2) the Court's concluding summary:
Whatever else the term covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest kinship to the abuses
at which the Confrontation Cause was directed. [Id. at 68.]
Even then, the opinion acknowledges that the term "interrogation" is open to definition. Id. at 53
Although statements to authorities routinely fall within the category of statements made
for the purpose of the investigation of a crime and the "production of testimony with an eye
toward trial," id. at 56 n 7, that is not always the case. And it does not accurately characterize
the majority of the statements in this case.3 This case involved a domestic assault and, as is not
uncommon in these cases, the complainant-victim was not available to testify against her
assailant-boyfriend. The victim's statements were initially made to a disinterested female
neighbor. The statements to the neighbor were spontaneous and could as justifiably be
characterized as a plea for safety and protection as statements made for the investigation of a
crime. It is unlikely that someone would jump from a second-story balcony and run to the home
of a neighbor she did not know, all with an eye toward developing testimony for subsequent
Justice Scalia's majority opinion in Crawford acknowledges that the language of the
Confrontation Clause alone does not answer the question posed. Id. at 42-43. He engages in a
lengthy discussion of the history of the right to confront one's accusers in support of his
interpretation of the Confrontation Clause. Given the historical perspective of Crawford, and its
recognition that "[p]olice interrogations bear a striking resemblance to examinations by justices
of the peace in England," id. at 52, we cannot conclude that the victim's spontaneous statements
in this case are akin to the testimonial hearsay barred by Crawford. In our view, Crawford is
confined to the type of testimonial hearsay addressed by that case. We discern no holding or
analysis in Crawford that would lead us to conclude that the victim's statements to her neighbor,
and the repetition of her statements to responding police officers, were testimonial hearsay
violative of the Confrontation Clause. Because her statements were nontestimonial hearsay, "it
is wholly consistent with the Framers' design to afford the States flexibility in their development
Defendant challenges the victim's statements generally and does not distinguish between her
oral statements made to the neighbor, her written statement to the neighbor, and her subsequent
statements to the police in the process of their investigation.
of hearsay law . . . ." Id. at 68. Michigan has well-developed hearsay law that provides a clear
exception for excited utterances, and the victim's statements fit within the exception.
We also find the decision in Cromer unpersuasive within the context of this case. The
narrow issue in Cromer was "whether the statements of a confidential informant to police are
'testimonial' in nature." Cromer, supra at 672. That issue is hardly comparable to the situation
here involving the excited utterances of a victim of a violent crime who made statements to a
neighbor and to police officers within hours of having been beaten and within moments of
fleeing from her home by jumping off a second-story balcony.
Notwithstanding that Cromer's facts and legal issue make that case distinguishable from
this one, we are not prepared to extend the application of the expansive definition of testimonial
hearsay adopted there to the excited utterance exception to the hearsay rule here. The Cromer
opinion concludes, essentially, that Crawford eviscerates evidentiary rules governing the
admission of hearsay statements except in the limited circumstance in which the wrongful
conduct of the defendant is responsible for the inability to confront the witness, thus resulting in
a forfeiture of the right to confrontation. See id. at 679. We do not read Crawford as
establishing such a broad principle. As noted by the dissent, post at ___ n 14, we are not bound
by decisions of lower federal courts, and we are not inclined to rely on Cromer to rewrite the
rules of evidence.
The Crawford Court was careful not to dictate the contours of the Confrontation Clause
bar to testimonial hearsay and refrained from undertaking a sweeping analysis of various factual
predicates. The unusual circumstances of this case bear out the wisdom of the Court's restraint
and the danger of preconceived blanket classifications beyond those provided by the Court.
The discussion in Cromer, relied on by the dissent, is precisely the type of sweeping
analysis the Crawford Court declined to "indulge in." While Justice Scalia cited and relied on an
article by Friedman,4 Crawford, supra at 61, the Crawford opinion did not adopt the suggested
broader framework and "rules of thumb" from the Friedman article that the Cromer Court readily
incorporated into its analysis, Cromer, supra at 673. There was no greater justification in
Cromer for such a sweeping analysis than existed in Crawford, and therefore the Cromer
mandates are hardly persuasive authority for interpreting the Crawford Court's view of
Although the United States courts of appeals have struggled with the definition of
"testimonial hearsay" following the decision in Crawford, United States v Hendricks, 395 F3d
173, 180 (CA 3, 2005), their holdings leave no doubt that the expansive view of testimonial
Friedman, Confrontation: The search for basic principles, 86 Geo L J 1011 (1998).
hearsay adopted in Cromer is not universal. We find the restraint exercised by these courts in
keeping with the tenor of Crawford.
In Leavitt v Arave, 383 F3d 809, 830 (CA 9, 2004), the court found no violation of the
Confrontation Clause by the admission of a murder victim's statements to the police regarding
her suspicions and the identity of a prowler the night before her death. The court noted that the
been severely frightened on the night before her death by a prowler, who tried to
break into her home. In a great state of agitation, she called the police and spoke
to dispatchers and to police officers. Among other things, she said that she
thought the prowler was Leavitt, because he had tried to talk himself into her
home earlier that day, but she had refused him entry. [Id.]
In addressing the recent holding in Crawford, and the examples given there of testimonial
hearsay, the court noted:
We do not think that Elg's statements to the police she called to her home
fall within the compass of these examples. Elg, not the police, initiated their
interaction. She was in no way being interrogated by them but instead sought
their help in ending a frightening intrusion into her home. Thus, we do not
believe that the admission of her hearsay statements against Leavitt implicate "the
principal evil at which the Confrontation Clause was directed[:] . . . the civil-law
mode of criminal procedure, and particularly its use of ex parte examinations as
evidence against the accused." [Leavitt, supra at 830 n 22, quoting Crawford,
supra at 50.]
Similarly, while acknowledging that the discussion was dictum, the Court in Mungo v
Duncan, 393 F3d 327, 336 n 9 (CA 2, 2004), offered an analysis of various statements at issue
Although the word "interrogation" can include any asking of questions,
the first meaning listed (for "interrogate") in Webster's Third New International
Dictionary is "to question typically with formality, command, and thoroughness
for full information and circumstantial detail." Webster's Third New International
Dictionary 1182 (1976). We believe the Supreme Court intended this more
limited meaning, which is more consistent with the other types of testimonial
statements the Court mentioned.
Several statements made by Arthur to the police were admitted at Mungo's
trial. The first group were the responses to a series of investigatory and hotpursuit questions, including whether "[t]hose guys running" were the ones who
shot Arthur, whether Arthur knew where they were going, and, upon overtaking
them, whether they were the shooters. Again after Mungo and Stewart had been
taken into custody, the police asked Arthur as to each whether this was the person
who had shot him. When Arthur answered yes as to each of the two, Officer
Cavallo pressed for clarification, "I need to know exactly who shot you," to which
Arthur responded, "The guy in gray [Mungo]," and explained, "They tried to rob
As for the answers to the early questions, delivered in emergency
circumstances to help the police nab Arthur's assailants, we doubt that these were
of the type of declarations the Court would regard as testimonial. As for the final
statement, however, made after Mungo and Stewart had been caught, and after
Arthur had confirmed that they were the men who shot him, specifically that it
was Mungo who shot the gun and that the motive was robbery, this statement
seems to have been made in greater formality with a view to creating a record and
proving charges. It seems more likely to fall within the category the Court
described as testimonial.
The Supreme Court declined to attempt any precise definition of
"testimonial," wisely sensing that the issue was complex and that the exact rule
should gradually emerge in light of cumulative experience. We offer these
reflections in the hope that they may assist courts to work gradually, case by case,
toward a functional understanding of the term. [Emphasis added.]
The sweeping analysis in Cromer is also not without conflict at the federal district court
level. See, e.g., United States v Savoca, 335 F Supp 2d 385, 392-393 (SD NY, 2004):
Although the Crawford Court explicitly stated that the proffered list of
"testimonial statements" was not exhaustive, all of the examples provided contain
an "official" element. While the statements may or may not have been sworn,
each example was made to an authority figure in an authoritarian environment.
This element of officiality appears to be the hallmark of a "testimonial statement."
Given these opposing views concerning the interpretation of Crawford's bar on
testimonial hearsay, it would be premature, if not erroneous, to adopt the all-encompassing,
expansive view set forth in Cromer to govern in Michigan. This crucial area of law should be
permitted to evolve in accordance the factual circumstances presented, as the Crawford Court so
Defendant argues that he was denied his right to a fair trial by the prosecutor's
misconduct in closing argument. Defendant failed to object to the alleged misconduct, and we
find no plain error affecting defendant's substantial rights. Absent an objection, defendant must
show plain error that affected his substantial rights, i.e., that the error was outcome
determinative. Carines, supra at 763-764; People v Rodriguez, 251 Mich App 10, 32; 650
NW2d 96 (2002). A reviewing court should reverse only if the defendant is actually innocent or
the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Id. at 24; Carines, supra at 763.
Claims of prosecutorial misconduct are reviewed case by case. Rodriguez, supra at 30;
People v Kelly, 231 Mich App 627, 637; 588 NW2d 480 (1998). A prosecutor is generally given
great latitude to argue the evidence and all inferences relating to the prosecutor's theory of the
case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). A prosecutor's comments
must be judged in the context of the prosecution and defense theories. Id. at 283-286; Rodriguez,
supra at 30.
Defendant argues that the prosecutor appealed to the jury's sympathy in arguing that the
reason the victim failed to appear for trial was that she was "scared to death of the defendant." A
prosecutor may not appeal to the jury to sympathize with the victim. People v Watson, 245 Mich
App 572, 591; 629 NW2d 411 (2001); People v Wise, 134 Mich App 82, 104; 351 NW2d 255
In closing argument, the prosecutor stated:
By now all of you should know, should have a pretty good understanding
of, of why [the victim] was not here at trial. It's patently obvious that she's scared
to death of the defendant. She's so scared she endured a year of abuse, a year of
abuse with saying nothing, nothing at all. If she's willing to put up with that, she's
not willing to come in and face him and accuse him of it.
Please keep this in mind, we don't pick the victim. We don't pick the
victims, the defendant does. Defendant picked [the victim] for a reason. He
picked [the victim] because he can know that he can count on her failing to
But, [the victim's] failure to appear does not excuse the defendant's
actions. This case is not about [the victim]. It's not about what [the victim] did or
did not do. It's about Alvin Walker. It's about the defendant. It's about what he
did to [the victim].
The prosecutor went on to summarize the evidence of defendant's actions.
In closing argument, defense counsel also addressed the issue of the victim's absence at
trial, positing that she was absent because her report of these events was false, and she was afraid
of the consequences of recanting her story and having made a false report to the police. In
concluding his argument, defense counsel asked that the jury take into consideration that the
victim did not show up for trial. Further, defense counsel argued that the prosecutor's suggestion
that the victim did not appear because she was scared was not believable, but if the jury believed
the prosecutor's reasoning, it should convict defendant.
In rebuttal, the prosecutor responded to defense counsel's argument. The prosecutor
stated that there was no motive for the victim to fabricate this story, but the jury should base its
decision on the evidence:
The issue is really not whether she's here or not. I think you're all savvy
enough to understand why she's not here.
But, the question before you should be did I produce beyond a reasonable
doubt from this witness and the documents and the photographs that the defendant
committed this crime.
We find no error requiring reversal. While the prosecutor's argument may be
objectionable taken in isolation, considered in context, and in light of defense counsel's argument
and theory, we cannot conclude that any objectionable argument unduly prejudiced defendant.
Watson, supra at 591-592; Wise, supra at 104. The victim's potential absence from trial and the
possible recantation of her accusations were raised in the prosecutor's opening statement. When
the prosecutor again raised these issues in his closing argument, defense counsel had the
opportunity to object to argument on this issue, but did not do so. Defense counsel instead used
this argument to bolster the defense theory that the victim's allegations were false and that she
did not appear for that reason. We cannot conclude that the prosecutor's argument was an
improper appeal to the jury's sympathy for the victim that prejudiced defendant to the extent that
reversal is required. Watson, supra at 591-592. Defendant has not shown that an instruction
could not have cured any error. Id. at 586; Rodriguez, supra at 30. Moreover, the prosecutor
emphasized that the jury should base its decision on the evidence, and the court likewise
instructed the jury that the attorneys' arguments were not evidence and that the jury should not
let sympathy or prejudice influence its decision. Watson, supra at 592.
Defendant argues he was denied the effective assistance of counsel by counsel's failure to
secure the victim's presence as a witness at trial and by his failure to object to the admission of
the hearsay evidence of the written statement taken from the victim by her neighbor. We
To establish ineffective assistance of counsel, defendant must show (1) that his trial
counsel's performance fell below an objective standard of reasonableness and (2) that defendant
was so prejudiced that he was denied a fair trial, i.e., that there is a reasonable probability that,
but for counsel's errors, the result of the proceeding would have been different. People v Toma,
462 Mich 281, 302-303; 613 NW2d 694 (2000). Defendant must overcome a strong
presumption that defense counsel's action constituted sound trial strategy. Id. at 302. Because
defendant did not move for a Ginther5 hearing, this Court's review is limited to mistakes
apparent on the record. Rodriguez, supra at 38.
With regard to securing the victim's presence at trial, defendant has failed to show
prejudicial error. Toma, supra at 302-303. Although defense counsel sought to have the victim
present, the record indicates that neither the prosecution nor the defense could locate her at the
time of trial. Defendant has not shown that counsel's performance was deficient in failing to
locate a missing witness. Further, as noted previously, defendant used the victim's absence as a
matter of trial strategy to bolster his theory that the allegations were false. Id. at 302. Finally, as
the prosecutor points out, defense counsel could have presented his theory of consent6 through
testimony from defendant; however, defendant failed to show up for the third day of trial,
precluding counsel from pursuing this avenue. Given these circumstances, defendant has failed
to show that the victim's presence would have resulted in a different outcome.
Because we found no error in the admission of the victim's statements, defendant's claim
that counsel was ineffective for failing to object to the victim's written statement must fail.
Rodriguez, supra at 38. The trial court had ruled on the admissibility of the victim's statements.
Counsel is not ineffective for failing to advocate a futile or meritless position. People v Snider,
239 Mich App 393, 425; 608 NW2d 502 (2000).
Gribbs, J., concurred.
/s/ Janet T. Neff
/s/ Roman S. Gribbs
People v Ginther, 390 Mich 436, 443, 212 NW2d 922 (1973).
The defense theorized that the couple engaged in the beatings as sexual activity and that they