Opinion
No. 319227
01-19-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Ghassan Salim SARDY, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people. Robyn B. Frankel, Huntington Woods, for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.
Robyn B. Frankel, Huntington Woods, for defendant.
Before: Murphy, P.J., and Stephens and Gadola, JJ.
ON REMAND
Murphy, P.J.
Defendant was convicted following a jury trial of child sexually abusive activity (CSAA), MCL 750.145c, using a computer to commit a crime, MCL 752.796, and two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. Defendant's daughter was the victim of these crimes. Defendant was sentenced to concurrent prison terms of 71 months to 20 years for the CSAA and computer-crime convictions and 71 months to 15 years' imprisonment for the CSC-II convictions. When defendant's appeal was originally before us, we affirmed his convictions, but remanded the case for a Crosby proceeding pursuant to People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015), to determine the propriety of defendant's sentences. People v. Sardy , 313 Mich.App. 679, 688–689, 733, 884 N.W.2d 808 (2015). On defendant's application for leave to appeal in our Supreme Court, the Court, in lieu of granting leave, vacated Part II of our opinion with respect to the Confrontation Clause analysis, but denied leave in all other respects. People v. Sardy , 500 Mich. 887, 886 N.W.2d 644 (2016). The Supreme Court directed us to reconsider "(1) whether the complainant was unavailable for Confrontation Clause purposes, see Crawford v. Washington , 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and United States v. Owens , 484 U.S. 554, 559–560, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) ; and (2) whether the defendant's confrontation rights were violated at trial by the trial court's limitation on cross-examination of the complainant, compare Owens , supra , with Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)." Sardy , 500 Mich at 888, 886 N.W.2d 644. On remand, we again affirm defendant's CSAA and computer-crime convictions; however, we vacate his two CSC-II convictions and remand for resentencing.
United States v. Crosby, 397 F.3d 103 (C.A. 2, 2005).
U.S. Const., Am. VI ; Const. 1963, art. 1, § 20.
The CSAA and computer-crime offenses were effectively established by two videos introduced by a detective who was qualified as an expert in computer forensic examinations. The videos depicted the young victim "grinding" on a couch in a manner that was characterized as masturbation. Defendant had filmed the videos using his iPhone 4, and the videos had also been stored on defendant's Apple iMac and an external hard drive. With respect to the two CSC-II offenses, the prosecution relied on the victim's testimony "regarding a couple of instances in which, while both were clothed, defendant pressed his penis against the child's genital area[.]" Sardy , 313 Mich.App. at 690, 884 N.W.2d 808. This testimony was elicited from the victim at defendant's preliminary examination. The trial court admitted the victim's preliminary-examination testimony at the trial after ruling that the victim was unavailable due to lack of memory. The victim had taken the stand at trial and provided some testimony on foundational and peripheral matters but could not recall matters pertaining to the two acts of CSC-II. The trial court allowed defendant to cross-examine the victim at trial, but limited the cross-examination to the subject matter of the direct examination, essentially precluding defendant from exploring the CSC-II accusations made by the victim and her then-current lack of recall or memory.
In his original appeal in this Court, defendant argued that the trial court violated his constitutional right to confront the state's witnesses when it allowed the victim's preliminary-examination testimony to be admitted as substantive evidence at trial. Defendant maintained that the victim was not "unavailable" as required to admit the evidence, that the victim's testimony at the preliminary examination was unsworn and thus unusable, given that she had not been placed under oath before testifying, and that the preliminary examination did not provide defendant a full and fair opportunity for cross-examination. [ Sardy , 313 Mich.App. at 691, 884 N.W.2d 808.] In Part II of our opinion, now vacated in its entirety, we ruled that (1) the victim had been unavailable for purposes of the Confrontation Clause, (2) defendant had a full and fair opportunity for cross-examination at the preliminary examination, and (3) failure to place the victim under oath at the preliminary examination did not warrant reversal. Id. at 691–711, 884 N.W.2d 808. We note that defendant did not argue to us that his confrontation rights were infringed when the trial court limited his cross-examination of the victim at trial; therefore, we did not address that issue. Defendant also did not raise that issue in his application for leave to appeal in our Supreme Court. Instead, the Supreme Court, acting sua sponte, has presented that issue to us for review.
The Supreme Court's order remanded the case to us for reconsideration of the two issues set forth in the order; however, as indicated, the second issue concerning cross-examination of the victim at trial because the issue was never argued. We do note that defendant had preserved the issue at trial.
The Supreme Court, providing pinpoint citations of three United States Supreme Court opinions, has directed us to examine whether the victim was unavailable for purposes of the Confrontation Clause and whether the trial court violated defendant's confrontation rights by limiting the cross-examination of the victim at trial. We hold that the victim was "available" in relationship to the Confrontation Clause and that the trial court erred by not allowing defendant to cross-examine the victim regarding her memory loss and the alleged conduct giving rise to the two CSC-II charges.
In Crawford , 541 U.S. at 59 n. 9, 124 S.Ct. 1354, the United States Supreme Court noted that when a declarant appears at trial for cross-examination, the Confrontation Clause does not place any constraints on the use of a prior testimonial statement, and that the Clause does not bar the admission of a prior testimonial statement "so long as the declarant is present at trial to defend or explain it." The language in this footnote has been construed "to mean that even a witness with no memory of the events in question is nevertheless present and available for cross-examination" for Confrontation Clause purposes. State v. Toohey , 816 N.W.2d 120, 128 (S.D., 2012), citing State v. Biggs , 333 S.W.3d 472, 477–478 (Mo., 2011) ; State v. Holliday , 745 N.W.2d 556, 567–568 (Minn., 2008) ; State v. Legere , 157 N.H. 746, 754–755, 958 A.2d 969 (2008) ; State v. Pierre , 277 Conn. 42, 80–83, 890 A.2d 474 (2006) ; State v. Gorman , 854 A.2d 1164, 1176–1178 (Me., 2004). Here, the declarant, the victim, was present at trial and could have been cross-examined regarding the CSC-II offenses and her memory loss. In Owens , 484 U.S. at 559–560, 108 S.Ct. 838, the United States Supreme Court ruled:
The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. ... [T]hat opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even ... the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness' past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available. Indeed, if there is any difference in persuasive impact between the statement "I believe this to be the man who assaulted me, but can't remember why" and the statement "I don't know whether this is the man who assaulted me, but I told the police I believed so earlier," the former would seem, if anything, more damaging and hence give rise to a greater need for memory-testing, if that is to be considered essential to an opportunity for effective cross-examination. We conclude with respect to this latter example, as we did ... with respect to the former, that it is not. The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional
guarantee. They are, however, realistic weapons, as is demonstrated by defense counsel's summation in this very case, which emphasized [the victim's] memory loss and argued that his identification of respondent was the result of the suggestions of people who visited him in the hospital. [Citations, quotation marks, and alteration brackets omitted.]
Owens indicates that a declarant who appears at trial but claims memory loss is "available" for purposes of the Confrontation Clause, even though our hearsay rules provide that a declarant is unavailable when the declarant "has a lack of memory of the subject matter of the declarant's statement," MRE 804(a)(3). See Toohey , 816 N.W.2d at 128 n. 2 (noting that under the South Dakota rule of evidence comparable to MRE 804(a), lack of memory renders a witness unavailable, yet under Owens , "memory loss may not render a witness ‘unavailable’ in the constitutional sense"). On the strength of Crawford and Owens , we hold that the victim was available for purposes of the Confrontation Clause.With respect to the use of the victim's preliminary-examination testimony at trial, Crawford , as indicated earlier, observed that when a declarant appears at trial and testifies on cross-examination, the Confrontation Clause does not place constraints on or bar the use of prior testimonial statements. Crawford , 541 U.S. at 59 n. 9, 124 S.Ct. 1354. Although defendant was able to cross-examine the victim at the preliminary examination, defendant was not given the opportunity to cross-examine her at trial relative to the CSC-II charges, at which point the victim was claiming a lack of any memory of the sexual assaults. The jury was not presented with cross-examination testimony regarding the fact that the victim could no longer recall or remember the substance of the claims she had made at the time of the preliminary examination. The trial court's limitation of the victim's cross-examination at trial thus deprived defendant of the opportunity to potentially undermine entirely the charges of CSC-II. See Owens , 484 U.S. at 559–560, 108 S.Ct. 838. We therefore hold, relative to the second question posed in the Supreme Court's remand order, that there was indeed a Confrontation Clause violation. And under these circumstances, we cannot conclude that the Confrontation Clause infringement was harmless beyond a reasonable doubt. See People v. Shepherd , 472 Mich. 343, 348, 697 N.W.2d 144 (2005). Accordingly, we must vacate the two CSC-II convictions. However, with regard to the CSAA and computer-crime convictions, they are once again affirmed, given that defendant's inability to cross-examine the victim at trial did not have any pertinent bearing on those crimes, which were established by the videos and the testimony of others. And to the extent that cross-examination of the victim may have had any relevancy to the CSAA and computer-crime offenses, we deem any Confrontation Clause violation harmless beyond a reasonable doubt.Finally, although we had originally remanded the case for a Crosby proceeding under Lockridge , we now remand for resentencing on the CSAA and computer-crime convictions under the advisory guidelines and the principles established in Lockridge because there exists a possibility that the vacation of the CSC-II convictions may affect the scoring of the sentencing variables and the exercise of the court's sentencing discretion.
In our original opinion, we had relied on MRE 804(a)(3) and People v. Garland, 286 Mich.App. 1, 7, 777 N.W.2d 732 (2009). Garland indicates that the provisions concerning "unavailability" in MRE 804(a) could be employed to determine unavailability for purposes of the Confrontation Clause. Sardy, 313 Mich.App. at 694–695, 884 N.W.2d 808. We note that defendant had simply argued that the victim was available because she had feigned lack of memory and was instead refusing to testify; defendant did not argue that a declarant who takes the stand and claims lack of memory is "available" for purposes of the Confrontation Clause. Id. at 694, 884 N.W.2d 808.
We note that the remand order also made reference to Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431, but the discussion on page 679 of that opinion simply acknowledged that a trial court has wide latitude to impose reasonable limits on cross-examination. Barring any and all cross-examination on the CSC-II charges, as the trial court did in this case, did not constitute a reasonable limit.
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Affirmed with respect to defendant's CSAA and computer-crime convictions, vacated in regard to defendant's two CSC-II convictions, and remanded for resentencing. We do not retain jurisdiction.
STEPHENS and GADOLA, JJ., concurred with MURPHY, P.J.