People v. Snow , 386 Mich. 586, 592, 194 N.W.2d 314 (1972). This Court's holding in People v. Garay , 320 Mich. App. 29, 903 N.W.2d 883 (2017), and its modification by our Supreme Court, also have special relevance here. Not long after Miller was decided, the defendant in Garay was convicted of first-degree murder and sentenced to life without parole.
"A defendant has a right to be tried by a fair and impartial jury." People v Garay, 320 Mich App 29, 39; 903 NW2d 883 (2017), citing Duncan v Louisiana, 391 US 145, 153; 88 S Ct 1444; 20 L Ed 2d 491 (1968). In order to protect that right, "[d]uring their deliberations, jurors may only consider the evidence that is presented to them in open court."
MRE 804(b)(1). See People v Garay, 320 Mich App 29, 37; 903 NW2d 883 (2017), overruled in part on other grounds People v Skinner, 502 Mich 89; 917 NW2d 292 (2018). Defendant argues on appeal, however, that he did not have a similar motive to cross-examine the victim at defendant's preliminary examination.
Day was a member of the Washington Street Boys, and defendant was affiliated with Trapp Money. People v Garay, 320 Mich.App. 29, 33; 903 N.W.2d 883 (2017).
Miller, however, outlined several factors that the court must consider when sentencing a juvenile offender to life imprisonment without the possibility of parole. People v Garay, 320 Mich App 29, 50; 903 NW2d 883 (2017), overruled on other grounds by Skinner, 502 Mich 89 (2018). Those factors are:
While the phrase "to continue" does suggest that the witness must refuse to testify multiple times, here, the prosecution subpoenaed ZC, so she was already under order to testify when she informed the prosecutor she would not testify. See People v Garay, 320 Mich App 29, 37 n 1; 903 NW2d 883 (2017), overruled in part on other grounds by People v Skinner, 502 Mich 89 (2018). ZC again refused to testify when she was called to the stand and ordered by the trial court to do so.
Regarding defendant's proportionality argument, this Court reviews a trial court's findings of fact for clear error and questions of law de novo when reviewing a sentence. People v Garay, 320 Mich App 29, 43; 903 NW2d 883 (2017), overruled in part on other grounds by People v Skinner, ___ Mich ___, ___; ___ NW2d ___ (2018) (Docket Nos. 152448, 153081, and 153345). The trial court's ultimate determination regarding an imposed sentence is reviewed for an abuse of discretion.
Therefore, the trial court did not violate defendant's Confrontation Clause right by admitting the witness's preserved preliminary examination testimony. See, e.g.,People v. Garay, 320 Mich.App. 29, 39; 903 N.W.2d 883 (2017) (holding that admission of preliminary examination testimony with opportunity for cross-examination did not violate defendant's right of confrontation), overruled in part on other grounds by People v. Skinner, 502 Mich. 89; 917 N.W.2d 292 (2018).[3]
As defendant seems to recognize, this would run contrary to established, binding precedent. See, e.g., Crawford, 541 U.S. at 57-58; People v Garay, 320 Mich.App. 29, 39; 903 N.W.2d 883 (2017), reversed in part on other grounds by 506 Mich. 936 (2020); People v Wood, 307 Mich.App. 485, 518; 862 N.W.2d 7 (2014), reversed in part on other grounds by 498 Mich. 914 (2015); People v Garland, 286 Mich.App. 1, 7; 777 N.W.2d 732 (2009).
Despite Miller's limited holding, what this Court in People v Hyatt, 316 Mich.App. 368; 891 N.W.2d 549 (2016), rev'd in part on other grounds by Skinner, 502 Mich. 89, People v Garay, 320 Mich.App. 29; 903 N.W.2d 883 (2017), rev'd in part on other grounds by 506 Mich. 936 (2020), and Bennett, 335 Mich.App. at 426, emphasized from Miller was Miller's dicta that LWOP sentences would likely be imposed (after application of the mitigating factors) only on those "uncommon" or "rare" juveniles who exhibit "irreparable corruption." By focusing on that and similar terminology, rather than on the application of the Miller factors that may or may not result in a LWOP sentence, the Court essentially directed trial courts to the improper understanding that LWOP sentences should only be imposed when a court finds the defendant to be irreparably corrupt.