PEOPLE OF MI V CORY I HUDSON

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 17, 2006 Plaintiff-Appellee, v No. 255237 Oakland Circuit Court LC No. 2002-183420-FC CORY I. HUDSON, Defendant-Appellant. Before: Cavanagh, P.J., and Cooper and Donofrio, JJ. COOPER, J. (concurring in part and dissenting in part). I agree with the majority that we must affirm the defendant’s conviction. However, I would be remiss if I made no comment regarding the hearsay statements improperly elicited by the prosecutor implicating defendant in the charged offense. These statements were elicited in violation of defendant’s constitutional right to confront the witnesses against him. Although I disagree with the majority’s analysis on this issue, the majority did address this challenge in the appeals of codefendants Pablo Bonilla and Ricardo Arias, which were submitted together with this case for oral argument. Although this defendant failed to raise this challenge on appeal, we should not ignore the error in the current case.1 At trial, the court permitted the prosecutor to elicit testimony regarding the background of the events that led to the arrest of defendant and his codefendants. However, the prosecutor did not limit his inquiry to the allowable generic information. The prosecutor purposefully elicited hearsay testimony from Officer Jeremy Pittman regarding the suspects’ names and physical descriptions. The source of this information was not revealed at trial. Outside the hearing of the jury, Officer Pittman testified that he learned this information from a confidential informant who had assisted in numerous prior investigations. This testimony was clearly beyond the scope of the trial court’s ruling. The purposeful elicitation of this hearsay testimony at trial apparently even surprised the witness. When answering the prosecutor’s inquiry, Officer Pittman hesitated before stating, “I – I had suspects. I had first names. I had a first name of Cory, I had a first 1 This Court may, in its discretion, enter any judgment “as the case may require,” MCR 7.216(A)(7), or address any controlling legal issue irrespective of whether it is raised by the parties. Mack v Detroit, 467 Mich 186, 206-209; 649 NW2d 47 (2002); Tingley v Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004). -1- name of Pablo, and I had a first name of Ricky. And I had physical descriptions of each suspect.” The prosecutor then continued to elicit testimony regarding those physical descriptions. I. Standard of Review It is well established that this Court may consider an issue involving a significant constitutional question irrespective of whether the parties have raised a specific challenge.2 Contrary to the majority’s opinions in the appeals of Mr. Bonilla and Mr. Arias, I believe that we may consider the violation of defendant’s Sixth Amendment right to confront the witnesses against him as preserved error. Defendant’s evidentiary objection was sufficient to preserve any error for our review on this ground, as the United States Supreme Court had yet to render its opinion in Crawford v Washington3 at the time the defendant was convicted. In the companion appeals of Mr. Bonilla and Mr. Arias, the majority notes, with little further analysis, that “an objection on the basis of the Rules of Evidence will not necessarily preserve for appeal a Confrontation Clause objection.”4 However, the majority uses this single line from People v Bauder out of context. In this case, I believe that defendant’s hearsay objection necessarily had that desired result. In Bauder, the prosecution sought to elicit testimony from several witnesses regarding statements the murder victim had allegedly made prior to her death. Although defense counsel “opposed” the admission of those statements based on the defendant’s inability to confront the declarant, counsel noted that the statements could potentially fall within an exception to the hearsay rule.5 This Court found that counsel’s statement preserved the defendant’s Confrontation Clause challenge for appellate review. Although the current defendant did not raise a challenge based on the Confrontation Clause on the record,6 this case is distinguishable from Bauder in a significant way. Mr. Bauder’s trial began after Crawford was decided, enabling his defense counsel to raise a more specific challenge on that ground. Crawford was not decided until six days after the current defendant was convicted. Accordingly, this case is more akin to this Court’s opinion in People v Lonsby.7 In Lonsby, the defendant failed to challenge the admission of testimonial hearsay evidence based on the Confrontation Clause until his second motion for a new trial.8 2 People v Colon, 250 Mich App 59, 62; 644 NW2d 790 (2002); People v Harrington, 194 Mich App 424, 427; 487 NW2d 479 (1992). 3 Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). 4 People v Bauder, ___ Mich App ___; ___ NW2d ___ (2005) (emphasis added), slip op at 2. 5 Id. 6 Mr. Bonilla and Mr. Arias both raised Confrontation Clause challenges in their motions for a new trial. 7 People v Lonsby, ___ Mich App ___; ___ NW2d ___ (2005). 8 Id. at 3-4. -2- Recognizing that the defendant potentially forfeited his challenge on this ground,9 this Court distinguished the facts before it from People v Carines.10 Prior to the Michigan Supreme Court’s decision in Carines, it was well established that constitutional issues should be treated as preserved when subsequent rulings were applied retroactively or when the defendant’s delay in raising an issue was “due to a subsequent development in the law, ‘rather than . . . any dilatory practice on the part of’” the parties.11 Carines did not address, and thus did not answer, the question before us. That is, unlike the instant case, the defendant in Carines failed to raise a specific objection that was clearly available to him. Here, defendant did not have the benefit of the Crawford ruling and thus, a specific objection would likely have been futile. And, because the United States Supreme Court has held that overruling decisions involving constitutional questions must be applied retrospectively to cases pending on appeal, the defendant here clearly has the benefit of raising an issue “preserved” by operation of law.[12] This Court noted that “fundamental fairness would dictate that . . . defendant should be afforded review . . . as though the matter were fully preserved to prevent the dilution of the very constitutional right solidified by the change in law.”13 The facts in this case are similar to those in Lonsby. Any objection to the challenged testimony in the current case would likely have been futile without the benefit of the Crawford decision. It is fundamentally unfair to deny defendant full appellate review of the violation of his rights under the Confrontation Clause when the United States Supreme Court did not issue Crawford, which partially abrogated the prior “indicia of reliability” standard of Ohio v Roberts,14 until his trial had concluded. As in Lonsby, the situation before us is distinguishable from Carines. This specific objection was not available to the defendant at the time of his trial and, therefore, the plain error standard is inapplicable. II. Testimonial Hearsay Furthermore, the names and physical descriptions of the suspects of this criminal investigation were clearly inadmissible testimonial hearsay. The trial court properly allowed the prosecutor to present “background information” to place the relevant evidence regarding defendant’s arrest into context. However, the names and descriptions of the suspects were 9 Id. at 4-5. 10 People v Carines, 460 Mich 750; 597 NW2d 130 (1999). 11 Lonsby, supra at 11. 12 Id. at 12. 13 Id. After conducting this extensive analysis, this Court declined to determine whether the harmless or plain error standard applied, as the challenged error required reversal under either standard. Id. 14 Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980). -3- unnecessary for that purpose. The prosecutor clearly elicited this testimony to prove the truth of the matter asserted—to show that the codefendants were the same individuals previously identified as mid-level cocaine suppliers. The prosecutor may have labeled this information “background,” but that designation is disingenuous. In People v Wilkens,15 the prosecutor was permitted to elicit testimony to explain the investigating officer’s actions leading to the defendant’s arrest. The officer specifically testified regarding the detailed description of the suspect that he received from a confidential informant.16 While the Michigan Supreme Court never resolved whether this testimony was hearsay, it did find that the challenged evidence was inadmissible for the stated purpose. “Even if this evidence could be said to have had some marginal relevance as ‘background’ to the police officer’s narrative, the testimony could have been limited to the statement that the police officer was responding to a tip.”17 The Court then found the prejudicial effect of this evidence outweighed any probative value for the same reasons that this evidence could have been classified as hearsay. “The testimony . . . provided the jury with the content of an unsworn statement of an informant who was not produced at trial. This statement pointed to the defendant’s guilt of the crime charged,” i.e., pointed to the truth of the matter asserted.18 The challenged evidence in the current case was also clearly unnecessary to place Officer Pittman’s testimony in context. The unsworn statements of an unnamed informant also directly pointed to defendant’s guilt of the charged offense—the informant identified defendant by name as a cocaine supplier. It is specious to assert that these statements were not hearsay. The informant’s statements to Officer Pittman were also clearly testimonial in nature and defendant was given no opportunity to confront his unnamed accuser. In Crawford, the United States Supreme Court found that testimonial hearsay statements of witnesses against the accused who are unavailable to testify at trial are inadmissible when the defendant had no prior opportunity for cross-examination.19 While the Crawford Court “[left] for another day any effort to spell out a comprehensive definition of ‘testimonial,’”20 it did provide some guidance in making this determination. At a minimum, testimonial hearsay applies to “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”21 The Crawford Court recognized that testimonial statements also include “pretrial statements that the declarant would reasonably expect to be used in a prosecutorial manner, and ‘statements that 15 People v Wilkens, 408 Mich 69; 288 NW2d 583 (1980). 16 Id. at 71. 17 Id. at 73. 18 Id. at 74. 19 Crawford, supra at 61-62, 68-69. 20 Id. at 68. 21 Id. -4- were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’”22 Relying on this language in Crawford, the Sixth Circuit Court of Appeals specifically found in United States v Cromer23 that statements made by a confidential informant implicating a defendant in criminal activity are testimonial in nature.24 A confidential informant voluntarily shares information with the police and, therefore, clearly “intends to bear testimony against the accused.”25 Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential—i.e., that not even his identity is disclosed to the defendant[—]heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause. . . .[26] A confidential informant who repeatedly shares information with law enforcement must reasonably expect that his statements, although not made under oath, will be used prosecutorially.27 The informant in the instant case had assisted in 20 to 30 prior investigations resulting in innumerable arrests and convictions. Based on this experience, he or she obviously would have expected this information to be available at trial. Accordingly, the trial court improperly allowed the prosecutor to question Officer Pittman regarding the confidential informant’s specific identification of defendant and his codefendants. III. Harmless Error Although the prosecutor went beyond the court’s instruction and elicited testimony regarding the suspects’ names and descriptions, the admission of this evidence was harmless in light of the overwhelming evidence presented against defendant. In determining whether an evidentiary error is harmless, we must “‘conduct a thorough examination of the record’ in order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.”28 While the informant’s statements themselves were inadmissible, the subsequent observations of the police officers were not.29 Officers witnessed the 22 Lonyo, supra at 9, quoting Crawford, supra at 51-52. 23 United States v Cromer, 389 F3d 662 (CA 6, 2004). 24 Id. at 675. See also United States v Pugh, 405 F3d 390, 398-399 (CA 6, 2005). 25 Cromer, supra at 675. 26 Id. 27 See Crawford, supra at 51. 28 People v Shepherd, 472 Mich 343, 348; 697 NW2d 144 (2005). 29 The informant’s hearsay statements could properly be considered in determining whether (continued…) -5- codefendants traveling from a suspected drug house toward the city of Pontiac in two vehicles. When a marked police unit pulled one vehicle over, the other vehicle made a U-turn and drove away at a high rate of speed while weaving in and out of traffic. Officers found defendant sitting on a package containing one kilogram of cocaine. Forensic scientists subsequently discovered fingerprints belonging to both Mr. Bonilla and Mr. Arias on the tape used to seal that package. In light of this evidence, the admission of the informant’s description of the suspects was harmless beyond a reasonable doubt. Accordingly, I must concur that we are bound to affirm defendant’s convictions. /s/ Jessica R. Cooper (…continued) defendant’s arrest was supported by probable cause. See MCL 750.653(b); People v Echavarria, 233 Mich App 356, 366-367; 592 NW2d 737 (1999). As the trial court properly determined at the evidentiary hearing that there was probable cause to support the codefendants’ arrests, the officers’ subsequent observations and the evidence seized were clearly admissible. -6-

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