PEOPLE OF MI V PABLO BONILLA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 17, 2006
Plaintiff-Appellee,
v
No. 255426
Oakland Circuit Court
LC No. 2003-190700-FC
PABLO BONILLA,
Defendant-Appellant.
Before: Cavanagh, P.J., and Cooper and Donofrio, JJ.
COOPER, J. (concurring in part and dissenting in part).
I respectfully disagree with the majority’s analysis with regard to the hearsay statements
improperly elicited by the prosecutor implicating defendant in the charged offenses.
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, Cory Hudson and Ricardo
Arias. 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 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. Preservation
Contrary to the majority opinion, I believe that defendant’s challenge based on the
violation of his Sixth Amendment right to confront the witnesses against him was, in fact,
preserved. Defendant’s evidentiary objection was sufficient to preserve his challenge on this
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ground as the United States Supreme Court had yet to render its opinion in Crawford v
Washington1 at the time the defendant was convicted.
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.”2
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.3
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 until his motion for a new trial, 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.4
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.5
Recognizing that the defendant potentially forfeited his challenge on this ground,6 this Court
distinguished the facts before it from People v Carines.7 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.8
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
1
Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).
2
People v Bauder, ___ Mich App ___; ___ NW2d ___ (2005) (emphasis added), slip op at 2.
3
Id.
4
People v Lonsby, ___ Mich App ___; ___ NW2d ___ (2005).
5
Id. at 3-4.
6
Id. at 4-5.
7
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
8
Lonsby, supra at 11.
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pending on appeal, the defendant here clearly has the benefit of raising an issue
“preserved” by operation of law.[9]
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.”10
The facts in this case are identical 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 his Confrontation
Clause challenge when the United States Supreme Court did not issue Crawford, which partially
abrogated the prior “indicia of reliability” standard of Ohio v Roberts,11 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
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,12 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.13
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.”14 The Court then found the prejudicial effect of this evidence outweighed
9
Id. at 12.
10
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.
11
Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980).
12
People v Wilkens, 408 Mich 69; 288 NW2d 583 (1980).
13
Id. at 71.
14
Id. at 73.
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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.15 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.16 While the Crawford Court “[left] for another day any effort
to spell out a comprehensive definition of ‘testimonial,’”17 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.”18 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
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.’”19
Relying on this language in Crawford, the Sixth Circuit Court of Appeals specifically
found in United States v Cromer20 that statements made by a confidential informant implicating a
defendant in criminal activity are testimonial in nature.21 A confidential informant voluntarily
shares information with the police and, therefore, clearly “intends to bear testimony against the
accused.”22
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
15
Id. at 74.
16
Crawford, supra at 61-62, 68-69.
17
Id. at 68.
18
Id.
19
Lonyo, supra at 9, quoting Crawford, supra at 51-52.
20
United States v Cromer, 389 F3d 662 (CA 6, 2004).
21
Id. at 675. See also United States v Pugh, 405 F3d 390, 398-399 (CA 6, 2005).
22
Cromer, supra at 675.
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anonymous accusations of crime without any opportunity for cross-examination
would make a mockery of the Confrontation Clause. . . .[23]
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.24 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.”25 While the informant’s statements themselves were inadmissible,
the subsequent observations of the police officers were not.26 Officers witnessed the
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 Mr. Hudson
sitting on a package containing one kilogram of cocaine. Forensic scientists subsequently
discovered fingerprints belonging to both defendant 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, while I cannot agree with the analysis of
my colleagues, I must concur that we are bound to affirm defendant’s convictions.
/s/ Jessica R. Cooper
23
Id.
24
See Crawford, supra at 51.
25
People v Shepherd, 472 Mich 343, 348; 697 NW2d 144 (2005).
26
The informant’s hearsay statements could properly be considered in determining whether
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.
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