PEOPLE OF MI V KERRICK FARQUHARSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
February 13, 2007
9:10 a.m.
Plaintiff-Appellant,
v
No. 271783
Genesee Circuit Court
LC No. 05-016672-FC
KERRICK FARQUHARSON,
Defendant-Appellee.
Official Reported Version
Before: Fort Hood, P.J., and Talbot and Servitto, JJ.
SERVITTO, J.
The prosecution appeals by delayed leave granted the trial court's March 25, 2006, order
granting defendant's motion to admit the investigative-subpoena testimony of a now-deceased
witness, Andre Mathis, at trial. Because defendant was required to show that the prosecution had
a similar motive in developing Mathis's testimony at the investigative-subpoena hearing before
the trial court could admit Mathis's investigative-subpoena testimony at trial, we vacate the trial
court's order and remand for a determination regarding whether the prosecution had a similar
motive in developing Mathis's testimony at the investigative-subpoena hearing.
This appeal arises from the shooting of Denise Colen and her brother, David Colen, Jr.,
outside an after-hours club in Flint. David Colen died as a result of injuries he incurred in the
shooting. Mathis witnessed the shooting and, after being issued an investigative subpoena,
appeared at the Genesee County Prosecuting Attorney's office to give sworn testimony regarding
the incident. The testimony he provided indicated that a man known as "Rick" (later clarified to
be Ricardo Otis Dickerson) was the shooter. Several months later, Mathis signed a proffer
agreement concerning a criminal charge brought against him (for an unrelated incident), which
contained a written statement about the Colen shootings and which the prosecution contends
contradicted his investigative-subpoena testimony. Mathis was listed as a witness for the
prosecution, but died as a result of gunshot wounds before trial in this matter began. After
Mathis's death, defendant filed a motion to introduce at trial a transcript of Mathis's
investigative-subpoena testimony, and the trial court granted defendant's motion. By leave
granted, this appeal followed.
This Court reviews for an abuse of discretion a trial court's determination of evidentiary
issues. People v Smith, 456 Mich 543, 549; 581 NW2d 654 (1998). "'[A]n abuse of discretion
standard acknowledges that there will be circumstances in which there will be no single correct
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outcome; rather, there will be more than one reasonable and principled outcome.'" Maldonado v
Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006), quoting People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003). "'When the trial court selects one of these principled
outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing
court to defer to the trial court's judgment." Maldonado, 476 Mich at 388, quoting Babcock, 469
Mich at 269. "However, decisions regarding the admission of evidence frequently involve
preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility
of the evidence." People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). This Court
reviews de novo questions of law. Id.
On appeal, neither party disputes that Mathis's testimony is hearsay. Rather, defendant
contends that the testimony falls within an exception to the hearsay rule and is thus admissible.
The prosecution, however, contends that defendant failed to show that Mathis's investigativesubpoena testimony was admissible under MRE 804(b)(1) and that the admission of the
testimony constituted an abuse of the trial court's discretion. The prosecution also contends that
Mathis's testimony is akin to grand-jury testimony, and, thus, it must satisfy the same evidentiary
standards to be admissible at trial.
Out-of-court statements offered for their truth are usually inadmissible hearsay. See
MRE 801(c); MRE 802. MRE 804(b), however, provides several hearsay exceptions if a
declarant is unavailable as a witness.1 Defendant advocates the admission of Mathis's testimony
in his defense pursuant to MRE 804(b)(1), which provides that "former testimony" is excluded
from the hearsay rule if the witness's testimony was "given as a witness at another hearing of the
same or a different proceeding, if the party against whom the testimony is now offered . . . had
an opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination."
Pursuant to the langue of MRE 804(b)(1), the first element necessary for the admission of
former testimony is that the testimony must have been made at "another hearing." The
prosecution does not seriously dispute that the investigative-subpoena hearing qualifies as
"another hearing." In fact, the prosecution likens Mathis's testimony to testimony given during a
grand-jury proceeding, which has been held to be a hearing for purposes of FRE 804(b)(1).2 See
United States v Salerno, 505 US 317, 321; 112 S Ct 2503; 120 L Ed 2d 255 (1992). Moreover, a
quick review of the statutes governing investigative-subpoena proceedings and grand-jury
proceedings reveals noteworthy similarities that compel us to hold that Mathis's testimony was
given at "another hearing" for purposes of MRE 804(b)(1).
1
Unavailability as a witness includes situations in which the declarant is unable to be present or
to testify at the hearing because of death. MRE 804(a)(4).
2
The text of MRE 804(b)(1) is almost identical to FRE 804(b)(1). As our Supreme Court noted
in People v Katt, 468 Mich 272, 280; 662 NW2d 12 (2003), federal decisions interpreting federal
rules of evidence are instructive in interpreting similar Michigan rules of evidence.
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MCL 767A.2 allows a prosecuting attorney to petition the district court, the circuit court,
or the recorder's court in writing for authorization to issue one or more subpoenas to investigate
the commission of a felony. A court may
authorize the prosecutor to issue an investigative subpoena if the judge determines
that there is reasonable cause to believe a felony has been committed and that
there is reasonable cause to believe that the person who is the subject of the
investigative subpoena may have knowledge concerning the commission of a
felony or the items sought are relevant to investigate the commission of a felony.
[In re Subpoenas to News Media Petitioners, 240 Mich App 369, 375; 613 NW2d
342 (2000), citing MCL 767A.3(1).]
Investigative subpoenas must include a statement that a person may have legal counsel
present at all times during questioning, MCL 767A.4(g), and a witness must be advised of his or
her constitutional rights against compulsory self-incrimination, MCL 767A.5(5); People v
Stevens, 461 Mich 655, 659 n 1; 610 NW2d 881 (2000). A person served with an investigative
subpoena must appear before the prosecuting attorney and answer questions concerning the
felony being investigated. MCL 767A.5(1). The prosecuting attorney is authorized to
administer oaths, MCL 767A.5(2), and if a witness testifies falsely under oath during an
investigative-subpoena proceeding, perjury penalties apply, MCL 767A.9.
In Michigan, grand-jury proceedings are governed by MCL 767.1 et seq. See People v
Glass (After Remand), 464 Mich 266, 278-280; 627 NW2d 261 (2001). "There is no state
constitutional right to indictment by grand jury; rather, indictment by grand jury is an alternative
charging procedure created by the Legislature." Id. at 278-279, citing In re Palm, 255 Mich 632;
238 NW 732 (1931). MCL 767.21 provides:
The prosecuting attorney and other prosecuting officers, may, in all cases,
issue subpoenas for witnesses to appear and testify on behalf of the people of this
state; and the subpoena, under the hand of such officer, shall have the same force
and be obeyed in the same manner and under the same penalties, as if issued by
the clerk or any magistrate.
A witness testifying before a grand jury does so under oath and may be found in contempt if the
witness neglects or refuses to appear or testify or to "answer any questions before the grand jury
concerning any matter of thing of which the witness has knowledge concerning matters before
the grand jury . . . ." MCL 767.19c.
A one-person grand jury may also be convened to investigate whether probable cause
exists to suspect that a crime has been committed. The one-person grand jury is a creation of,
and draws its extraordinary powers from, statutes. MCL 767.3 and 767.4; In re Slattery, 310
Mich 458; 17 NW2d 251 (1945). MCL 767.3 grants the one-person grand jury certain powers,
including subpoena power to
require such persons to attend before him as witnesses and answer such questions
as the judge may require concerning any violation of law about which they may
be questioned within the scope of the order. The proceedings to summon such
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witness and to compel him to testify shall, as far as possible, be the same as
proceedings to summon witnesses and compel their attendance and testimony.
Any witness who neglects or refuses to appear in response to a summons or to answer any
questions posed by the one-person grand jury may be found in contempt of court. MCL 767.5.
As can be seen, both sets of statutes provide mechanisms to subpoena witnesses to testify
regarding circumstances surrounding the investigation of a felony. MCL 767.3; MCL 767.21;
MCL 767A.3(1). Furthermore, a witness testifying before either a grand jury or during an
investigative-subpoena hearing does so under oath and subject to the penalties for perjury. MCL
767.19d; MCL 767A.9. Similar procedures are also available for a defendant to obtain a
witness's testimony from either a grand-jury proceeding or an investigative-subpoena hearing.
See MCL 767.19g; MCL 767A.5. Because of the similarities between a grand-jury proceeding
and an investigative-subpoena hearing, we find that testimony given at an investigative-subpoena
hearing qualifies as "[t]estimony given as a witness at another hearing of the same or a different
proceeding" under MRE 804(b)(1).
The challenged testimony having been given at another hearing, we next address whether
the testimony meets the second requirement of MRE 804(b)(1)—that is, whether the party
against whom the testimony is now offered had an opportunity and similar motive to develop the
testimony. Whether a party had a similar motive to develop the testimony depends on the
similarity of the issues for which the testimony is presented at each proceeding. People v Vera,
153 Mich App 411, 415; 395 NW2d 339 (1986). Given the similarities between a grand-jury
proceeding and an investigative-subpoena hearing, we find a review of cases involving the
admission of grand-jury testimony under various hearsay exceptions helpful in resolving the
issue in the present case.
In United States v Salerno, the Supreme Court addressed whether the grand-jury
testimony of two unavailable witnesses could properly be admitted under FRE 804(b)(1). There,
both witnesses invoked the right against self-incrimination at trial, and the defendants attempted
to introduce the witnesses' exculpatory grand-jury testimony under FRE 804(b)(1). Salerno, 505
US at 319-320. However, the district court refused to admit the testimony, reasoning that the
government did not have a similar motive under FRE 804(b)(1) in eliciting the witnesses'
testimony during the grand-jury proceedings because the "'motive of a prosecutor in questioning
a witness before the grand jury in the investigatory stages of a case is far different from the
motive of a prosecutor in conducting the trial.'" Id. at 320. On appeal, the Supreme Court
agreed that to admit the testimony under FRE 804(b)(1), the defendants were required to show
that the United States had a similar motive in developing the witnesses' testimony at the grandjury proceedings. Id. at 322. Furthermore, the Supreme Court rejected the defendants' argument
that "adversarial fairness may prohibit suppression of exculpatory evidence produced in grand
jury proceedings," reasoning that nothing within the explicit provisions of FRE 804(b)(1)
allowed the Court to resolve the issue in equity. Id. at 323-324. Consequently, the Supreme
Court remanded the matter to the Second Circuit Court of Appeals for a determination regarding
whether the prosecution had a similar motive in eliciting the witnesses' grand-jury testimony. Id.
at 325.
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This Court addressed a similar issue in People v Chavies, 234 Mich App 274; 593 NW2d
655 (1999), overruled on other grounds by People v Williams, 475 Mich 245 (2006). There, two
witnesses testified before a one-person grand jury under penalty of perjury, implicating the
defendant in a murder. At trial, however, the witnesses "claimed to remember nothing about the
murder or about their prior statements . . . .." Chavies, 234 Mich App at 282. This Court held
that the witnesses' grand-jury testimony was properly admitted as a prior inconsistent statement
under MRE 801(d)(1)(A), but would have been inadmissible under MRE 804(b)(1) because the
"defendant had no 'opportunity . . . to develop the testimony by direct, cross, or redirect
examination' in front of the grand jury." Id. at 283-284, quoting MCL 767.3.3
Federal courts have also addressed issues involving admission of grand-jury testimony
under the former-testimony exception. In United States v DiNapoli, 8 F3d 909, 912 (CA 2,
1993) (en banc), the Second Circuit Court of Appeals interpreted the "similar motive"
requirement of FRE 804(b)(1). The Second Circuit noted that there are differences between
grand-jury and trial proceedings, but declined to hold that a prosecutor generally will not have
the same motive to develop testimony at grand-jury proceedings as he or she does at trial. Id. at
913-914. The DiNapoli court also declined to accept the converse, that the motives will always
be similar, indicating that, "[i]n almost every criminal case, . . . the Government could probably
point to some aspect of cross-examination of an exonerating witness that could have been
employed at a prior trial and surely at a prior grand jury proceeding." Id. at 914. The Second
Circuit thus encouraged a fact-specific inquiry regarding whether the prosecution had a "similar
motive" in developing the witness's testimony during a grand-jury proceeding:
The proper approach, therefore, in assessing similarity of motive under
[FRE] 804(b)(1) must consider whether the party resisting the offered testimony
at a pending proceeding had at a prior proceeding an interest of substantially
similar intensity to prove (or disprove) the same side of a substantially similar
issue. The nature of the two proceedings—both what is at stake and the
applicable burden of proof—and, to a lesser extent, the cross-examination at the
prior proceeding—both what was undertaken and what was available but
forgone—will be relevant though not conclusive on the ultimate issue of
similarity of motive. [Id. at 914-915.]
We find the analysis employed in DiNapoli well-reasoned and compelling, and thus
adopt the following as a nonexhaustive list of factors a trial court is to examine in determining
whether the party had a similar motive to examine a witness at the prior proceeding: (1) whether
the party opposing the testimony "had at a prior proceeding an interest of substantially similar
3
The admission of testimony under MRE 804(b)(1) often raises issues concerning a defendant's
right to confront witnesses against him or her. However, this Court has recognized that a
defendant may personally and expressly waive this right of confrontation. See People v Lawson,
124 Mich App 371, 376; 335 NW2d 43 (1983). In this matter, the prosecution does not dispute
that defendant has waived his constitutional right to confront Mathis through cross-examination
at the investigative-subpoena hearing. The confrontation clauses (US Const, Am VI, and Const
1963, art 1, § 20) are thus not at issue here.
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intensity to prove (or disprove) the same side of a substantially similar issue"; (2) the nature of
the two proceedings—both what is at stake and the applicable burdens of proof; and (3) whether
the party opposing the testimony in fact undertook to cross-examine the witness (both the
employed and the available but forgone opportunities).
The trial court relied on unpublished opinions in rendering its decision and made no
finding with respect to the prosecution's motive in developing Mathis's testimony at the
investigative-subpoena hearing. Absent such a finding, we cannot determine whether the trial
court properly considered the admissibility of the statements under MRE 804(b)(1). Therefore,
we remand this case to the trial court for a determination regarding whether the prosecution had a
similar motive in developing Mathis's testimony at the investigative-subpoena hearing. See
Salerno, 505 US at 320.
Defendant separately argues on appeal that he would be denied his constitutional right to
present a defense if he is precluded from presenting Mathis's investigative-subpoena testimony at
trial and that the evidentiary rules should yield to his constitutional right. Defendant notes that
he intends to introduce Mathis's former testimony to show that Mathis identified Dickerson, and
not defendant, as the person who committed the shootings. However, this Court granted the
prosecution's delayed application for leave to appeal and limited review to the issues raised in the
prosecution's application. People v Farquharson, unpublished order of the Court of Appeals,
entered August 21, 2006 (Docket No. 271783). The prosecution did not raise defendant's
constitutional claims in its application. Further, defendant did not file a cross-appeal. We thus
decline to specifically consider defendant's constitutional claim because "this appeal is limited to
the scope of this Court's order granting leave to appeal . . . and defendant has not raised these
constitutional issues in a cross-appeal." People v Cervi, 270 Mich App 603, 623 n 13; 717
NW2d 356 (2006), citing MCR 7.205(D)(4) and Jenkins v Patel, 256 Mich App 112, 130; 662
NW2d 453 (2003), rev'd on other grounds 471 Mich 158 (2004).
Vacated and remanded for further proceedings consistent with this order. We do not
retain jurisdiction.
Fort Hood, P.J., concurred.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
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