STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED April 3, 2007 v No. 262858 St. Joseph Circuit Court LISA ANN DOLPH-HOSTETTER, LC No. 00-010340-FC Defendant-Appellant. Before: O Connell, P.J., and White and Markey, JJ. PER CURIAM. A jury convicted defendant of conspiracy to commit second-degree murder, MCL 750.157a, and second-degree murder, MCL 750.317. She was sentenced to concurrent prison terms of 25 to 50 years for each conviction. She appeals by right. We affirm defendant s second-degree murder conviction, vacate the conspiracy conviction, and remand for resentencing. 1 Defendant first argues that the trial court abused its discretion and violated her constitutional right of confrontation when it admitted prior testimony from witness Rosalie Bowersox which was given at an earlier coroner s inquest proceeding. The trial court allowed the testimony after Bowersox testified at trial that because of health problems, she was unable to remember the events that were the subject of her prior testimony. We review a trial court s decision to admit evidence for an abuse of discretion. People v Jones, 240 Mich App 704, 706; 613 NW2d 411 (2000). We review de novo constitutional questions. People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). Although defendant argues that Bowersox s prior testimony was inadmissible hearsay, a statement is not hearsay if [t]he declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is... inconsistent with the declarant s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding[.] MRE 801(d)(1)(A). 1 This Court s prior decision in People v Dolph-Hostetter, 256 Mich App 587, 589-590; 664 NW2d 254 (2003), contains a summary of the factual background of this case. -1-
Bowersox s prior testimony was inconsistent with her testimony at trial because Bowersox testified that she did not remember the events that were the subject of her prior testimony. People v Chavies, 234 Mich App 274, 282-283; 593 NW2d 655 (1999), overruled on other grounds People v Williams, 475 Mich 245, 255; 716 NW2d 208 (2006). The Chavies Court adopted the long-standing interpretation by federal courts of FRE 801(d)(1)(A) that an inconsistency of a previous statement is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position. Here, the prior testimony was given at a coroner s inquest under oath subject to the penalty of perjury. MCL 773.5; MCL 750.423. Finally, Bowersox testified at trial and was subject to cross-examination concerning the prior testimony. Therefore, it was properly admitted under MRE 801(d)(1)(A). We disagree with defendant s argument that her right of confrontation was violated because Bowersox claimed at trial that she could not remember anything. This Court rejected a similar argument in Chavies, supra at 283, citing United States v Owens, 484 US 554, 559; 108 S Ct 838; 98 L Ed 2d 951 (1988), and explaining when witnesses are present at trial and could be cross-examined about their statements even though they claim to remember nothing the witnesses are available for cross-examination within the meaning of the Confrontation Clause. See also People v Stanaway, 446 Mich 643, 694 n 53; 521 NW2d 557 (1994); People v Watson, 245 Mich App 572, 584; 629 NW2d 411 (2001). Although a defendant must be given the opportunity for cross-examination, the defendant has no constitutional right to an effective or successful cross-examination. Thus, a defendant's right of confrontation is not denied even if the witness, on cross-examination, claims a lack of memory. Id. (citation omitted). Defendant argues that the holding in Chavies is no longer valid in light of Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). We disagree. In Crawford... the United States Supreme Court held that, under the Confrontation Clause of the Sixth Amendment, testimonial statements of witnesses absent from trial may not be admitted against a criminal defendant unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005) (emphasis added). And, Justice Scalia in Crawford noted that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Crawford, supra at 59 n 9, citing California v Green, 399 US 149, 162, 26 L Ed 2d 489, 90 S Ct 1930 (1970). Here, Bowersox testified at trial, and defendant had the opportunity to cross-examine her. Although Bowersox testified that she was not able to remember the earlier events, as previously discussed, she was still available for crossexamination within the meaning of the Confrontation Clause. Therefore, defendant s right of confrontation was not violated. Defendant next argues that she was denied her right to effectively cross-examine another witness when the trial court prohibited her from eliciting that the witness had formerly acted as an informant in drug cases. A trial court s decision to limit cross-examination is reviewed for an abuse of discretion. People v Minor, 213 Mich App 682, 684; 541 NW2d 576 (1995). Generally, [a] limitation on cross-examination preventing a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of the constitutional right of confrontation. People v Cunningham, 215 Mich App 652, 657; 546 NW2d 715 (1996). Nevertheless, -2-
[t]he right of cross-examination is not without limit; neither the Confrontation Clause nor due process confers an unlimited right to admit all relevant evidence or cross-examine on any subject. The right of cross-examination does not include a right to cross-examine on irrelevant issues and may bow to accommodate other legitimate interests of the trial process or of society. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. Defendants are, however, guaranteed a reasonable opportunity to test the truth of a witness testimony. [People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993) (citations omitted).] In this case, the prosecutor advised the trial court that the witness s safety could be in jeopardy if information about her prior work as an informant was revealed. Defendant did not challenge or dispute this assertion. The trial court prohibited defendant from cross-examining the witness about her previous activities as an informant, but indicated that it would allow defendant to question the witness about her drug habit, previous convictions, the fact that she was in jail, and whether she might be trying to curry favor with her testimony or may have done so in the past. We conclude that the trial court did not abuse its discretion when it placed a reasonable limit on cross-examination for the safety of the witness, but also allowed defendant to question the witness about various other subjects relevant to her credibility as a witness. Next, we agree with defendant that her conviction of conspiracy to commit seconddegree murder must be vacated because no such crime exists. People v Hammond, 187 Mich App 105, 107-109; 466 NW2d 335 (1991). This state has no legitimate interest in securing a conviction for a nonexistent offense. Id. at 106-107. We also agree that defendant is entitled to resentencing. Because the offenses were committed before January 1, 1999, the effective date of the statutory sentencing guidelines, MCL 769.34(1) and (2), the judicial guidelines apply. See Administrative Order No. 1998-4, 459 Mich clxxv. Our decision to vacate defendant s conspiracy conviction affects the scoring of prior record variable 7 and reduces the guidelines range from 120 to 300 months, to 96 to 300 months. Although defendant s sentence for second-degree murder is still within the reduced range, a sentence is invalid if it is based on either inaccurate information or a misconception of the law. People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). Here, the trial court sentenced defendant under the inaccurate and erroneous misconception that she was properly convicted of conspiracy to commit second-degree murder. Under the circumstances, we must remand for resentencing on defendant s second-degree murder conviction. Id. In light of our decision to vacate defendant s conspiracy conviction, we need not consider defendant s double jeopardy argument. Furthermore, defendant s claim that defense counsel was ineffective for failing to object to either the trial court s instructions on conspiracy to commit second-degree murder or the jury s verdict is moot. Because we are vacating the conspiracy conviction and remanding for resentencing, defendant cannot establish the necessary element of prejudice to prevail on a claim of ineffective assistance of counsel. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). -3-
We affirm in part, vacate in part, and remand for resentencing. We do not retain jurisdiction. /s/ Peter D. O Connell /s/ Jane E. Markey -4-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED April 3, 2007 v No. 262858 St. Joseph Circuit Court LISA ANN DOLPH-HOSTETTER, LC No. 00-010340-FC Defendant-Appellant. Before: O Connell, P.J., and White and Markey, JJ. WHITE, J. (concurring in part and dissenting in part). I join in the majority opinion except regarding the admission at trial of Rosalie Bowersox s testimony at a medical examiner s inquest. I conclude that this prior testimony was improperly admitted and affected the outcome of the trial. I do not agree that Bowersox s testimony at the medical examiner s inquest was admissible at defendant s trial under MRE 801(d)(1)(A). 1 Bowersox testified at trial that she could not remember testifying at the medical examiner s inquest, could not remember her testimony at the inquest, and could not remember the events about which she testified at the inquest. Bowersox testified at trial that she had suffered three strokes since the inquest. The prosecution concedes that Bowersox truly had no recall of her testimony or the events at issue. I acknowledge that the majority rule is that the validity of cross-examination at trial is not undermined when the declarant testifying at trial asserts no memory of the events reported in the earlier statement. Weinstein s Federal Evidence, 801.20[2], p 801-29, citing United States v Owens, 484 US 554, 561-564; 108 S Ct 838; 98 L Ed 2d 951 (1988), holding that failure of 1 Because the prosecution did not argue below, and does not argue on appeal, that Rosalie Bowersox s testimony at the medical examiner s inquest in 1996 was admissible at trial under MRE 801(d)(1)(A), I would not affirm on that basis. The prosecution argued below that Bowersox s inquest testimony was admissible as former testimony of an unavailable witness under MRE 804(b)(1). On appeal, the prosecution argues for the first time that Bowersox s inquest testimony was additionally admissible under MRE 803(5) as prior recollection recorded, under the residual hearsay exceptions, MRE 803(24) and 804(7), and under MCL 768.26. -1-
cross-examination is not produced by the witness assertion of memory loss ; approving admission under Rule 801(d)(1)(C) of prior statement by victim naming defendant as assailant even though victim at trial court not remember seeing assailant. Nevertheless, as recognized by McCormick: When is a prior statement inconsistent? Where a witness no longer remembers an event, a prior statement describing that event should not be considered inconsistent. Yet the tendency of unwilling or untruthful witnesses to seek refuge in a claim of forgetfulness is well recognized. Hence the judge may be warranted in concluding under the circumstances the claimed lack of memory of the event is untrue and in effect an implied denial of the prior statement, thus qualifying it as inconsistent. The case law readily accepts this position. [McCormick On Evidence, (6 th ed, 2006), 251, p 151. Emphasis added] Noteworthy is that very few cases which involve FRE 801(d)(1), whether decided before or after Owens, supra, posed the rare situation this case poses-- a declarant claims a lack of memory or amnesia and it is not feigned, and the declarant does not remember the fact that she gave prior testimony, nor does she remember the substance of the prior testimony. In several of these rare cases, courts have noted that the testimony would not be properly admissible under FRE 801(d)(1). 2 See e.g., United States v Palumbo, 639 F2d 123, 128 n 6 (CA 3, 1981) (noting that lack of memory as to the substance of a prior statement may not be inconsistent in certain circumstances with the prior statement, [citations omitted] and that [i]t would seem that the prior statement should not be included under 801(d)(1)(a) if the judge finds that the witness genuinely cannot remember, and the period of amnesia or forgetfulness is crucial as regards the facts in issue, quoting 4 Weinstein s Evidence, 801(d)(1)(A)(04), 801-98). See also United States v DiCaro, 772 F2d 1314, 1323 (CA 7, 1985) (noting that in many or perhaps most cases in which the witness suffers a total memory lapse concerning both the prior statement and its contents, the witness cannot be considered subject to cross-examination concerning the statement under [Rule 801(d)(1)(A)], citing 4 Weinstein s Evidence 801(d)(1)(A)[07], at 801-132). 2 FRE 801(d) and MRE 801(d) provide: (d) Statements which are not hearsay. A statement is not hearsay if (1) Prior statement of [MRE] / by [FRE] witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition -2-
Nor was Bowersox s inquest testimony admissible as former testimony of an unavailable witness, under MRE 804(b)(1). 3 At the medical examiner s inquest held in October 1996, there were no named defendants. One attorney was appointed to represent all unnamed and potential defendants at the inquest. The inquest transcript is not before us, but the portions of Bowersox s testimony at the inquest read into the record at trial contain no cross-examination, and there is no indication from the parties arguments that Bowersox was cross-examined at all at the inquest. Although as the majority notes, cases hold that it is the opportunity for cross-examination that counts, it simply cannot be said in this case that such an opportunity existed, where defendant was not yet a defendant, had not even met the attorney representing all potential and future defendants, and no cross-examination was conducted. Under these circumstances, defendant did not have an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, as required under MRE 804(b)(1). 4 See People v De Witt, 233 Mich 222, 226; 206 NW 562 (1925); People v Farquharson, Mich App ; NW2d (2007) [Docket No. 271783, issued 2/13/07]. Nor was Bowersox s testimony admissible under the catchall hearsay exception, or MCL 768.26. These provisions cannot override the Confrontation Clause s requirement that testimony be subject to cross-examination. The majority s reliance on People v Chavies, 234 Mich App 274; 593 NW2d 655 (1999), overruled in part on other grounds People v Cleveland Williams, 475 Mich 245; 716 NW2d 208 (2006), is misplaced. A witness who has no mental capacity to recall either her prior testimony, or the subject matter of that testimony, is simply not available for cross-examination at trial. See discussion supra. Additionally, Bowersox s testimony was not admissible as prior recollection recorded, as the requirements of that exception were not established by her testimony. Further, the error in the admission of this testimony was not harmless. Bowersox s prior untested testimony was the linchpin of the prosecution s case at trial, and it is probable that its admission affected the outcome of defendant s trial. The prosecution s reliance on Bowersox s 3 MRE 804(b)(1) provides: (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. MRE 804(a) includes in its definition of unavailability as a witness the situation in which the declarant has a lack of memory of the subject matter of the declarant s statement... MRE 804(a)(3). 4 Further, I fail to see the merit in the prosecution s bald assertion that the attorney appointed to represent all unnamed and potential defendants at the inquest was defendant s predecessor in interest in a prior civil or action or proceeding. -3-
inquest testimony cannot be overstated it was central to the prosecution s case. As defendant argued in her motion for new trial, the prosecution in opening statement, closing argument, and in rebuttal repeatedly highlighted the importance of Bowersox s inquest testimony, especially Bowersox s testimony that she (Bowersox) told defendant, when defendant knocked on her door early in the morning of the day of the murder, that Gary and Carol had changed their phone number because of threatening calls; that she, Bowersox, would not give the phone number to defendant; that Carol Knepp s work hours had changed to third-shift, and that although she wasn t sure of the exact time Carol Knepp would be leaving for work, she imagined it would be around 8 or 8:30 p.m. The prosecutor referred to Bowersox in closing argument as a critical witness. Further, the prosecution s emphasis on Bowersox s testimony was not lost on the jury; during deliberations the jury sent out two notes. The first note said: Legal definition of opportunity. The judge sent a typed note back to the jury, stating: I have received your note regarding the definition of opportunity. Opportunity was not a word I used in my instructions. Can you be more specific about your concern or question? Is there a specific issue or instruction you would like me to clarify? The jury sent back a handwritten note stating: The prosecutor discussed that the defendant had the opportunity aka the time that the murder would have to take place, as CK was leaving for work. We have been discussing the possibility that the defendant knew the time that the crime should take place. Is this opportunity? [Emphasis added.] The court sent back a typewritten note after meeting with counsel, stating: I have received your follow up note regarding the definition of opportunity. Opportunity is not a specific element either [sic] offense. Please see the instructions. Knowing the time of the offense, in and of itself does not establish aiding and abetting but may be evidence of her involvement. See instructions 8.1, 8.3, 8.4 and 8.5 Knowing the time of the offense, in and of itself, does not establish that the defendant was part of a conspiracy but may be evidence of her involvement. See 10.2 and 10.3. Because there is a high probability that the outcome of the trial was affected by the admission of Bowersox s inquest testimony, I would reverse and remand for a new trial on the second-degree murder charge. /s/ Helene N. White -4-