PEOPLE OF MI V ALVIN C WALKER JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 21, 2006
9:05 a.m.
Plaintiff-Appellee,
v
No. 250006
Oakland Circuit Court
LC No. 2002-187306-FH
ON REMAND
ALVIN C. WALKER, JR.,
Defendant-Appellant.
Official Reported Version
Before: Neff, P.J., and Owens and Cooper, JJ.
COOPER, J. (concurring).
I agree with the majority's conclusion and scholarly analysis under Davis and Hammon.1
However, because I disagree as to the application in part IV of Carines to this matter, I write
separately to address that issue.
The majority concludes that "[b]ecause defendant failed to preserve his Confrontation
Clause claim, we review the error under the standard for unpreserved constitutional error." Ante
at ___, citing People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). I would read
Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), to automatically
preserve Confrontation Clause claims. In Crawford, the defendant properly objected at trial to
the admission of certain statements as hearsay. Justice Scalia, writing for the majority, turned
the analysis to the Confrontation Clause, although the defendant had not preserved any such
constitutional claim. I would find that Crawford sets the value of the Confrontation Clause
guarantee high enough that violations of it cannot be unpreserved error.
Given the importance placed on the Confrontation Clause by Justice Scalia in Crawford,
I am concerned that harmless error review is inappropriate. However, the Court did not directly
speak to the applicable standard of review in Crawford or Davis, and we must therefore rely on
existing Supreme Court precedent addressing the varied standards of review for constitutional
errors. Here, because this error is not structural, but rather is "trial error," in that it "occurred
1
Davis v Washington, ___ US ___; 126 S Ct 2266; 165 L Ed 2d 224 (2006), which includes the
companion case of Hammon v Indiana.
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during presentation of the case to the jury," we are bound to review it following the harmless
error standard. Arizona v Fulminante, 499 US 279, 306-307; 111 S Ct 1246; 113 L Ed 2d 302
(1991). See also Washington v Recuenco, ___ US ___; 126 S Ct 2546, 2551; 165 L Ed 2d 466
(2006); United States v Gonzalez-Lopez, ___ US ___; 126 S Ct 2557, 2564; 165 L Ed 2d 409
(2006). I believe this is an issue the Supreme Court ought to address further; there is an apparent
gap between the importance of the Confrontation Clause in Crawford and its consignment to
harmless error review by the division between structural error and trial error.
However, in the instant case I agree with the majority; under any analysis, this error was
not harmless.
/s/ Jessica R. Cooper
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