PEOPLE OF MI V JAMES REDMOND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 14, 2006
Plaintiff-Appellee,
v
No. 261458
Oakland Circuit Court
LC No. 04-197600-FH
JAMES REDMOND,
Defendant-Appellant.
Before: Borrello, P.J., and Jansen and Cooper, JJ.
COOPER, J. (dissenting).
I must respectfully dissent because I disagree with my colleagues’ analysis and
conclusion in Part IV of the majority opinion, and I find this single issue dispositive.
Defendant objected at trial to the admission of the OISD resolution on hearsay grounds,
and only on appeal claims a violation of the Sixth Amendment confrontation clause right. The
majority therefore finds this constitutional issue unpreserved and applies the plain error standard
required by People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
I would find, in light of Crawford v Washington, 541 US 36; 124 S Ct 1354 (2004), that a
defendant’s right to confront the witnesses against him or her is not so easily forfeited. In
Crawford, defendant objected at trial to the admission of certain statements as hearsay. Justice
Scalia, writing for the majority, turned the analysis toward the confrontation clause, and found
that the constitutional guarantee of the right to confront witnesses takes precedence over the trial
court’s conclusion that evidence might be admitted if sufficient indicia of reliability are present:
“The Constitution prescribes a procedure for determining the reliability of testimony in criminal
trials, and we, no less than the state courts, lack authority to replace it with one of our own
devising.” Crawford, supra at 67. “Where testimonial statements are at issue, the only indicium
of reliability sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” Id. at 68-69.
This case is procedurally analogous: the prosecutor presented evidence that defense
counsel objected to on hearsay grounds; the trial court admitted the evidence; the admission of
the evidence violated the defendant’s right to confront the witnesses against him. Because the
U.S. Supreme Court found this constitutional error required reversal, even though technically
unpreserved, I would follow the same analysis to the same conclusion here.
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The challenged evidence in this case actually involves hearsay within hearsay: a private
investigation firm investigated defendant and made a report to the Oakland Schools Board of
Education; the Board formed conclusions based on that report, and captured them in the OISD
resolution. The trial court admitted the resolution under the MRE 803(8) public records
exception, although with some portions redacted. It is noteworthy that the remaining text is so
damaging to defendant that it is difficult to imagine what could possibly have been said that was
harsher so as to merit redaction. The majority correctly states that MRE 803(8) does not exclude
as hearsay public records and reports “setting forth . . . matters observed.” Here the matters at
issue were not observed by the declarant; rather, the report was written to summarize conclusions
reached in response to observations made and described by someone other than the writer. The
resolution is hearsay not covered by any exception or exclusion. Neither the investigator nor the
resolution writer testified, and defendant was not afforded the opportunity to confront either
person.
Even if we were to apply Carines, this Court has found under that analysis that “when a
trial court commits an error that denies a defendant his constitutional rights under the
Confrontation Clause, US Const, Am VI and Am XIV, we need not reverse if the error is
harmless beyond a reasonable doubt.” People v Smith, 243 Mich App 657, 690; 625 NW2d 46
(2000), citing People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). In this case, the
opinions in the resolution speak directly to the defendant’s intent, a critical element of the
prosecution’s case that is not clearly corroborated by any other evidence. Admission of this
evidence therefore had a devastating effect on defendant’s case, and cannot reasonably be
considered harmless beyond a reasonable doubt.
The prosecutor argues that the challenged resolution was properly admitted because the
defendant had introduced OISD Board meeting minutes into evidence first, thus inviting
introduction of these public records. But there is a critical distinction to be made between the
two pieces of evidence. Minutes of board meetings are public records of the most ordinary
course, being records of what transpired in meetings, perhaps slightly colored by the conclusions
and opinions of the record keeper, but accurate as to the listing of information and topics covered
nonetheless. Such records are plainly kept in the ordinary course of business. The Board
Resolution is not a record kept in the ordinary course of business. This particular document was
drafted to summarize the board’s conclusions based on a private investigator’s report of a
specific situation; clearly, the investigation and the document were executed to address a specific
legal issue, defendant’s potentially wrongful conduct. Arguably, these were documents prepared
with an eye toward litigation, rather than in the ordinary course of business. In any case,
introduction of meeting minutes cannot be legitimately considered an invitation to introduce
board resolutions.
I would find that the challenged evidence was hearsay not within any exception, and
should not have been admitted. More importantly, I would find that defendant’s constitutional
rights were violated, and that this particular violation is not subject to a plain error analysis.
Given Crawford, I would find that Carines does not apply where a defendant’s right to confront
the witnesses against him is violated by the admission of hearsay evidence, even if the defendant
does not at trial object on constitutional grounds. I would find that a violation of the right of
confrontation is error requiring automatic reversal. Accordingly, I would reverse this
defendant’s conviction. The constitutional guarantees that define a fair trial in our justice system
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merit the protection of the justice system; Crawford assures that the confrontation clause
provides unassailable protection to criminal defendants.
/s/ Jessica R. Cooper
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