PEOPLE OF MI V NATHANIEL LEE JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2004
Plaintiff-Appellee,
v
No. 245455
Oakland Circuit Court
LC No. 2000-172582-FC
NATHANIEL LEE, JR.,
Defendant-Appellant.
Before: Murphy, P.J., and O’Connell and Gage, JJ.
GAGE, J. (concurring in part and dissenting in part).
While I concur in the result reached by the majority, I write separately to express my
conclusion that the trial court erred in admitting the grand jury testimony of the witness Eric Lee
at trial.1 The grand jury is an investigative tool of the prosecutor. Tyson v Trigg, 50 F3d 436,
440-441 (CA 7, 1995). As such, the testimony offered to the grand jury is designed to achieve a
specific result. Quite simply, all of the reasons that exist for not allowing hearsay testimony into
evidence come into play in this case. Eric was not realistically available for cross-examination at
the preliminary examination, and he was completely unavailable at trial. His grand jury
testimony was never truly subjected to cross-examination.
Admittedly, one could argue that the grand jury testimony could have been properly
received at the preliminary examination even though Eric testified that he did not recall the grand
jury testimony. MRE 801(d)(1)(a). However, the prosecutor cannot bootstrap the admission of
grand jury testimony under MRE 801(d)(1)(a) at trial because Eric was no longer available for
purposes of cross-examination. Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed
2d 177 (2004). Eric’s testimony was never tested for the trustworthiness that we hope to achieve
by the adoption of the rules of evidence.
The question then becomes whether this error was harmless, using the following analysis:
1
See People v Russ, 79 NY2d 173, 179; 589 NE2d 375 (1992) (there was “no cognizable
justification” for reading the recalcitrant witness’ entire grand jury testimony into evidence).
-1-
In order to overcome the presumption that a preserved nonconstitutional
error is harmless, a defendant must persuade the reviewing court that it is more
probable than not that the error in question was outcome determinative. An error
is deemed to have been “outcome determinative” if it undermined the reliability
of the verdict. In making this determination, the reviewing court should focus on
the nature of the error in light of the weight and strength of the untainted
evidence. [People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001)
(citations omitted).]
As the majority notes, numerous witnesses testified regarding their dealings with the Lee family
organization. Defendant used Helen Alexander’s house to “cook up” and sell cocaine for many
months in the late 1980s. Ralph McMorris purchased large quantities of cocaine from defendant
and his brother Roderick Lee. Defendant received cocaine from codefendant Joe Abraham and
disbursed it to other individuals for sale or use. On one occasion, Abraham sold Roderick many
kilograms of cocaine, two kilograms of which was earmarked for defendant. Abraham also
stated that defendant and Roderick sold more cocaine than any other drug organization.
In September 1994, the Pontiac police executed a search warrant at a house in Pontiac,
finding weapons, ammunition, money, a digital scale, and cocaine. They also found defendant’s
receipts and identification in one of the bedrooms. In September 1998, the Pontiac police
executed a search warrant at a home connected to the Lee family organization. They found
numerous items of correspondence to defendant, ammunition, a weapon, a medicine bottle
bearing defendant’s name, a digital scale, and a cellular telephone. One of the letters to
defendant referred to doing business with defendant and contained terms that are common names
for cocaine. Defendant was not employed during the duration of the drug trafficking conspiracy,
and he did not file Michigan tax returns from 1987 through 1998.
If Eric’s grand jury testimony had been properly excluded, there would still be sufficient
evidence of conspiracy to deliver or possess with intent to deliver 650 or more grams of a
controlled substance, MCL 750.157a and MCL 333.7401(2)(a)(i). I therefore conclude that the
trial court’s error in admitting Eric’s grand jury testimony was harmless and agree with the result
reached by the majority.
/s/ Hilda R. Gage
-2-
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