PEOPLE OF MI V JOHN THOMAS DINARDO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 12, 2010
9:10 a.m.
Plaintiff-Appellant,
v
No. 294194
Macomb Circuit Court
LC No. 2009-002041-FH
JOHN THOMAS DINARDO,
Defendant-Appellee.
Before: FORT HOOD, P.J., and JANSEN and WHITBECK, JJ.
JANSEN, J.
The prosecution appeals by leave granted the circuit court’s order suppressing evidence
of certain Datamaster breath-test results. For the reasons set forth in this opinion, we reverse the
circuit court’s order and remand for further proceedings consistent with this opinion.
I
In November 2008, defendant was arrested on suspicion of drunk driving and taken to the
Warren Police Department for alcohol testing using a Datamaster machine. Warren Police
Officer Michael Lake administered the Datamaster test. Lake testified that he monitored
defendant for at least 15 minutes before administering the test, then took two breath samples two
minutes apart in accordance with standard procedures. Lake wrote the test results on a DI-177
breath-test report. According to Lake’s DI-177 report, the Datamaster machine indicated that
both samples registered alcohol levels of 0.20 percent.
At the preliminary examination, Lake testified that he had administered the Datamaster
tests and had written down the results on his DI-177 report. However, he testified that he did not
have a copy of the original Datamaster “ticket,”1 which had been printed directly from the
machine at the time of the tests. Defendant had been given a copy of the Datamaster ticket, but
the original ticket could not be found and no copies were available by the time of the preliminary
examination. Officer Lake admitted that he could not independently recollect the specific results
1
A Datamaster ticket apparently states the blood-alcohol percentage for each sample, the time
when the testing procedure began (including the observation period before the test), and the
exact time when each sample was taken and analyzed.
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of defendant’s breath tests, but recalled that he had written them down at the time on the DI-177
report, which was available.
Defendant moved to suppress the breath-test results at the preliminary examination. The
district court granted defendant’s motion to suppress but nonetheless bound defendant over to the
circuit court for trial on a charge of operating while intoxicated, third offense. MCL 257.625(1)
and (9)(c).
Following bindover, defendant moved the circuit court to suppress the Datamaster test
results and sought an evidentiary hearing on the issue. Defendant argued that the lack of the
Datamaster ticket rendered other evidence regarding the test results inadmissible hearsay and
denied him his constitutional right to confront the witnesses against him. Because the relevant
facts did not appear to be in dispute, the circuit court dispensed with an evidentiary hearing. The
prosecution argued that the district court had erred by ruling the test results inadmissible. The
prosecution argued that the Datamaster machine was not a declarant, so the officer’s testimony
repeating the recorded test results would not be hearsay. The prosecution also argued that
because Officer Lake had read the original test results and recorded them directly onto the DI177 report at the time, he had personal knowledge of the results and should be able to present
them in his testimony.
The circuit court concluded that the DI-177 report was hearsay and could not be admitted
into evidence. The court noted that if Officer Lake had an independent recollection of the
breath-test results, he might be able to testify regarding the numbers he had read from the
Datamaster ticket. However, the court stated that if Lake lacked any independent recollection of
the results and could not produce the Datamaster ticket, he would have no basis for testifying as
to the breath-test results. The court also ruled that if Lake could not specifically remember the
contents of the Datamaster ticket, he could not testify regarding what he may have written on the
DI-177 report. The prosecution argued that Lake should be able to use the DI-177 report to
refresh his memory, even if the DI-177 report was itself inadmissible. The circuit court
disagreed, noting that use of the DI-177 report would not effectively “refresh” Lake’s memory of
the Datamaster results, but instead just show him what numbers he had written down.
The prosecution next argued that even without the test results, Lake should be able to
testify that defendant’s alcohol level exceeded the legal limit, which resulted in defendant being
booked and charged. The prosecution further argued that defendant was not prejudiced by the
lack of the Datamaster ticket because defendant had been given a copy of the Datamaster
machine’s printout. Defense counsel countered that defendant did not have a copy of the
Datamaster ticket. The court agreed that the Officer Lake could testify that defendant was
arrested following the Datamaster test results. However, the court noted that because the
Datamaster ticket would have shown when the machine was last purged, the duration of the
required observation period before testing, and the times that the specific breath samples were
taken, the Datamaster ticket would have helped to establish the reliability of the breath tests. The
court reasoned that, without this information, the reliability of the test results would be suspect,
and the defense would be denied the opportunity to question the reliability of the results. The
prosecution argued that whether the proper protocol was followed prior to defendant’s breath
tests went to the weight of the evidence rather than its admissibility, and pointed out that defense
counsel would be permitted to cross-examine Officer Lake regarding the procedures followed
and the lack of supporting documentation. The court disagreed with the prosecution, stating that
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because the entire testing process had been documented on the Datamaster ticket, the ticket was
the foundation for determining defendant’s alcohol level and whether the proper procedures were
followed. The court stated that without the ticket, the test results could not be admitted.
The circuit court entered an order granting defendant’s motion to exclude the Datamaster
test results. The order provided in relevant part that the prosecution would be “precluded from
arguing at trial that defendant’s BAC was .08 or in excess of .08,” that the prosecution “can only
argue [at trial] that defendant was operating under the influence of alcoholic liquor under MCL
257.625,” and that the prosecution would be permitted to “present testimony that defendant was
charged and arrested after the Datamaster results showed .08 or more based upon the
independent recollection of the police officer only to show why defendant was arrested and
charged.”
The prosecution moved for reconsideration, to adjourn trial, and to stay proceedings
pending an interlocutory appeal. The prosecution also apparently filed a motion to reverse the
district court’s order suppressing evidence of the Datamaster test results. The circuit court
addressed these motions, explaining that it had never considered or reviewed the district court’s
decision, but had instead addressed the admissibility of the Datamaster test results de novo on the
facts presented by the parties. Citing Melendez-Diaz v Massachusetts, 557 US ___; 129 S Ct
2527; 174 L Ed 2d 314 (2009), Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d
177 (2004), and People v Bryant, 483 Mich 132; 768 NW2d 65 (2009), the circuit court
concluded that “[t]here’s no question that the test itself was testimonial in nature” and that the
test results therefore implicated defendant’s constitutional right to confront the witnesses against
him. The circuit court denied the prosecution’s motions for reconsideration and to stay
proceedings pending appeal, but granted the motion to adjourn trial.
The prosecution sought leave to appeal in this Court, arguing that the circuit court had
erred by suppressing evidence of the Datamaster test results. This Court granted the
prosecution’s application for leave to appeal and stayed all proceedings in the circuit court.2
II
In general, we review for an abuse of discretion a circuit court’s decision concerning the
admission of evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). However,
we review de novo the circuit court’s ultimate decision on a motion to suppress evidence, as well
as all preliminary questions of law. Id.; People v Akins, 259 Mich App 545, 563; 675 NW2d 863
(2003). Similarly, whether the admission of evidence would violate a defendant’s constitutional
right of confrontation is a question of law that we review de novo. Bryant, 483 Mich at 138.
III
We conclude that the Datamaster ticket at issue in this case was neither “testimonial” in
the constitutional sense nor “hearsay” under Michigan law. We further conclude that the DI-177
2
People v Dinardo, unpublished order of the Court of Appeals, entered November 2, 2009
(Docket No. 294194).
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report constituted a recorded recollection under MRE 803(5). Accordingly, the circuit court
erred by suppressing evidence of the Datamaster breath-test results, by ruling that Officer Lake’s
testimony concerning the Datamaster results would violate defendant’s constitutional right to
confront the witnesses against him, and by precluding Lake from reading the contents of the DI177 report into evidence.
The Confrontation Clause of the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” US Const, Am VI. This “bedrock procedural guarantee applies to both federal and state
prosecutions.” Crawford, 541 US at 42. The Michigan Constitution provides the same
guarantee for criminal defendants. Const 1963 art 1, §20; see also People v Bean, 457 Mich 677,
682; 580 NW2d 390 (1998). Testimonial statements of witnesses absent from trial are therefore
admissible only when the original declarant is unavailable and the defendant has had a prior
opportunity to cross-examine that declarant. Crawford, 541 US at 59; Bryant, 483 Mich at 138.
Ordinarily, whether a statement is testimonial in nature depends on whether it constitutes a
“‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at
51 (citation omitted). More particularly, we have explained that “[s]tatements are testimonial
where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish
or prove past events potentially relevant to later criminal prosecution.’” People v Lewis (On
Remand), 287 Mich App 356, 360; ___ NW2d ___ (2010), quoting Davis v Washington, 547 US
813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).
In Melendez-Diaz, 557 US at ___; 129 S Ct at 2531-2532, the United States Supreme
Court found that “certificates of analysis” showing the results of chemical testing of seized
narcotics constituted “testimonial statements” under Crawford. The certificates at issue in
Melendez-Diaz were sworn statements by laboratory analysts, which reported the results of
analyses performed on the seized drug samples. The Melendez-Diaz Court explained:
The documents at issue here, while denominated by Massachusetts law
“certificates,” are quite plainly affidavits: “declaration[s] of facts written down
and sworn to by the declarant before an officer authorized to administer oaths.”
They are incontrovertibly a “‘solemn declaration or affirmation made for the
purpose of establishing or proving some fact.’” The fact in question is that the
substance found in the possession of Melendez-Diaz and his codefendants was, as
the prosecution claimed, cocaine—the precise testimony the analysts would be
expected to provide if called at trial. The “certificates” are functionally identical
to live, in-court testimony, doing “precisely what a witness does on direct
examination.” [Melendez-Diaz, 557 US at ___; 129 S Ct at 2532 (citations
omitted).]
Similarly, this Court has held that laboratory reports prepared by non-testifying analysts
are “testimonial hearsay” within the meaning of Crawford. See, e.g., People v Payne, 285 Mich
App 181, 198; 774 NW2d 714 (2009); People v Lonsby, 268 Mich App 375, 392-393; 707
NW2d 610 (2005). Such reports constitute testimonial hearsay that may not be admitted in
evidence unless (1) it is shown that the analyst who prepared the report is unavailable to testify at
trial, and (2) the defendant has had a prior opportunity to cross-examine the analyst. Payne, 285
Mich App at 198-199; see also Melendez-Diaz, 557 US at ___; 129 S Ct at 2532.
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We cannot conclude that the original Datamaster ticket, showing the breath-test
procedures and defendant’s specific alcohol level, amounted to testimonial hearsay within the
meaning of Crawford. As explained previously, the Confrontation Clause guarantees a criminal
defendant the right “to be confronted with the witnesses against him.” US Const, Am VI
(emphasis added). The documents at issue in Melendez-Diaz, Payne, and Lonsby constituted
testimonial hearsay precisely because they were all prepared by human analysts who recorded
the results of various laboratory tests and set down their own conclusions in written form. Such
human analysts were unquestionably “witnesses” within the meaning of the Sixth Amendment.
In contrast, the Datamaster ticket at issue in this case was generated entirely by a machine
without the input of any human analyst. No human analyst entered data into the Datamaster
machine or recorded findings or conclusions on the Datamaster printout. Nor was any expert
interpretation required for the Datamaster test results to be understood. Indeed, similar to the
fingerprint cards at issue in People v Jambor, 273 Mich App 477, 488; 729 NW2d 569 (2007),
the Datamaster ticket “contained no subjective statements” and did not detail the results of any
work performed by a nontestifying analyst. Instead, defendant simply blew into the Datamaster
machine, whereupon the machine automatically analyzed his breath and reported the results of its
analysis in the form of a printed ticket. The machine was the sole source of the test results,
which spoke entirely for themselves. We agree with courts from other jurisdictions which have
held that a machine is not a “witness[]” in the constitutional sense, and that data automatically
generated by a machine are accordingly nontestimonial in nature. See, e.g., Wimbish v
Commonwealth, 51 Va App 474, 483-484; 658 SE2d 715 (2008); United States v Moon, 512 F3d
359, 362 (CA 7, 2008); United States v Washington, 498 F3d 225, 230 (CA 4, 2007); Caldwell v
State, 230 Ga App 46, 47; 495 SE2d 308 (1997). As the Virginia Court of Appeals has aptly
explained, “information generated by a machine, and presented without human analysis or
interpretation is not testimonial because the machine is not a witness in any constitutional sense
and thus the data standing alone is not a testimonial statement under the Confrontation Clause of
the Sixth Amendment.” Wimbish, 51 Va App at 484 n 2. Because the Datamaster breath-test
results, printed on the Datamaster ticket, were self-explanatory data produced entirely by a
machine, and not the out-of-court statement of a witness, the Confrontation Clause did not place
any restrictions on their admissibility. See id. at 484.
We also conclude that the Datamaster test results did not constitute hearsay under
Michigan law. “Hearsay” is defined as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted,” MRE 801(c), and “declarant” is defined as “a person who makes a statement,” MRE
801(b) (emphasis added). A printout of machine-generated information, as opposed to a printout
of information entered into a machine by a person, does not constitute hearsay because a
machine is not a person, and therefore not a declarant capable of making a statement. See, e.g.,
State v Reynolds, 746 NW2d 837, 843 (Iowa, 2008); United States v Hamilton, 413 F3d 1138,
1142 (CA 10, 2005); United States v Khorozian, 333 F3d 498, 506 (CA 3, 2003); State v Weber,
172 Or App 704, 709; 19 P3d 378 (2001); State v Van Sickle, 120 Idaho 99, 102; 813 P2d 910
(1991). Indeed, as one well-known Michigan treatise explains, “[w]hen . . . a ‘fact’ is ‘asserted’
by a non-human entity, such as a clock ‘telling the time’ or a tracking dog following a scent, the
‘statement’ is not hearsay because the ‘declarant’ is not a ‘person.’” Robinson, Longhofer &
Ankers, Michigan Court Rules Practice (2d ed), Evidence, § 801.3, p 7. The Datamaster
machine at issue in the present case is not a declarant because it is not a person, but rather a tool
for analysis that self-generates test results and prints those results on a paper ticket. Since the
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Datamaster machine is not a declarant capable of making a statement, the results that it generates
are not hearsay.
Lastly, although the DI-177 report unquestionably constituted hearsay under Michigan
law, we conclude that admission of the DI-177 report would not violate defendant’s
constitutional right of confrontation and that Officer Lake should be entitled to read the contents
of the DI-177 report into evidence pursuant to MRE 803(5). As noted previously, Officer Lake
filled out the DI-177 report at the time of the Datamaster testing, contemporaneously recording
defendant’s breath-test results on the DI-177 report as those results were automatically generated
by the Datamaster machine. While Lake’s written documentation of defendant’s breath-test
results on the DI-177 report constituted testimonial hearsay, Lake is available to testify and to be
cross-examined at trial regarding the contents of the report. Because Lake is available to testify
and to be cross-examined concerning his out-of-court assertions on the DI-177 report, his
testimony regarding the contents of the DI-177 report will not violate defendant’s constitutional
right to confront the witnesses against him. See Crawford, 541 US at 59.
Nor should the contents of the DI-177 report be excluded from evidence as inadmissible
hearsay. It is true that Officer Lake has no independent recollection of the specific numbers that
were printed on the Datamaster ticket. However, Lake recorded defendant’s alcohol levels on
the DI-177 report at the same time as he read the results from the Datamaster ticket.
Accordingly, we conclude that the DI-177 report qualifies as a recorded recollection under MRE
803(5), which excludes from the hearsay rule
a memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness’ memory and to reflect that knowledge
correctly.
As this Court has explained, hearsay documents may be admitted as recorded
recollections under MRE 803(5) if they meet three requirements:
“(1) The document must pertain to matters about which the declarant once
had knowledge; (2) The declarant must now have an insufficient recollection as to
such matters; [and] (3) The document must be shown to have been made by the
declarant or, if made by one other than the declarant, to have been examined by
the declarant and shown to accurately reflect the declarant’s knowledge when the
matters were fresh in his memory.” [People v Daniels, 192 Mich App 658, 667668; 482 NW2d 176 (1992) (citation omitted).]
In this case, the DI-177 report plainly satisfies all three requirements for admissibility. Officer
Lake saw the Datamaster ticket and therefore had personal knowledge of the breath-test results at
the time he recorded them onto the DI-177 report. Furthermore, Lake has indicated that he no
longer has any independent recollection of the specific results printed on the Datamaster ticket.
Lastly, it is undisputed that Lake personally prepared the DI-177 report. Because the DI-177
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report meets all requirements for admissibility under MRE 803(5), Daniels, 192 Mich App at
667-668, Officer Lake will be permitted to read its contents into evidence at trial.3
IV
In sum, while the Datamaster ticket showed facts relevant to the ultimate issue of
defendant’s guilt, the ticket was neither a testimonial statement nor hearsay because it was not
the statement of a witness or a declarant. Instead, the Datamaster ticket was generated by a
machine, following an entirely automated process that did not rely on any human input, data
entry, or interpretation. Because the Datamaster ticket was not a testimonial hearsay statement,
Officer Lake will be permitted to testify regarding the breath-test results. Moreover, because the
contemporaneously prepared DI-177 report constitutes a recorded recollection pursuant to MRE
803(5), Lake will be permitted to read its contents into evidence at trial.
Reversed and remanded to the circuit court for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ William C. Whitbeck
3
Although the contents of the DI-177 report may be admitted and read into evidence at trial, we
note that the report “may not itself be received as an exhibit unless offered by an adverse party.”
MRE 803(5).
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