Opinion
362135
09-12-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID JOHN-LEE WOODHALL, Defendant-Appellant.
UNPUBLISHED
Oakland Circuit Court LC No. 2020-273517-FH
Before: Letica, P.J., and Boonstra and Mariani, JJ.
Per Curiam.
Defendant David John-Lee Woodhall was convicted by a jury of two counts of third-degree criminal sexual conduct involving an incapacitated victim (CSC-III), MCL 750.520d(1)(c). The victim passed away before trial, and the trial court allowed her preliminary examination testimony to be presented at trial. Defendant appeals his convictions by right, arguing that the admission of the victim's preliminary examination testimony at trial violated his rights under the United States and Michigan Constitutions to confront the witnesses who testify against him. We affirm.
I. FACTUAL BACKGROUND
On November 2, 2017, defendant and the victim, along with a mutual acquaintance, spent the evening taking heroin together in defendant's trailer. The victim eventually passed out. She awoke the next morning, found herself alone in the trailer with defendant, called her mother to pick her up, and left. A few weeks later, defendant went shopping with his ex-girlfriend, with whom he has two children. Defendant's ex-girlfriend drove defendant home afterwards and later discovered that he had left his phone in her car. She went through the phone and found images and videos of defendant digitally penetrating the victim on November 2-3, 2017. According to defendant's ex-girlfriend, the victim appeared to be "blue" and unconscious in the videos and images. Defendant's ex-girlfriend showed the videos and images to the victim, and together they took defendant's phone to the Novi Police Department, where they each gave written statements. Defendant was charged with two counts of CSC-III for digitally penetrating the victim while she was "physically helpless."
For purposes of CSC-III," '[p]hysically helpless' means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act." MCL 750.520a(m).
At the preliminary examination, the victim testified that, on the night of November 2, 2017, she took heroin with defendant and a mutual acquaintance at defendant's trailer and passed out. When she awoke the next morning, her clothing was askew as if someone else had dressed her. She learned of the sexual contact between her and defendant when defendant's ex-girlfriend showed her the videos and images on defendant's phone. The victim recalled that, in the videos and images, she was naked and appeared to be "purple" and testified that "[t]here was no consent" and "that should [have] never happened." She testified that she had known the victim for about ten years but had never had a romantic or physically intimate relationship with him. On cross-examination by defense counsel, the victim confirmed that she did not have a romantic relationship with defendant and testified that she was dating the mutual acquaintance in November 2017. The victim testified that she had been fighting addiction for a long time and that she and defendant had taken drugs together before. The victim further testified that she saw defendant again later in the day on November 3, 2017 when he showed up at her house but that she made him leave because her mother did not want him around. The court found probable cause and bound defendant over on both counts to the circuit court.
A few months later, while this case was awaiting trial, the victim died from causes unrelated to this case. The prosecution moved to admit the victim's preliminary examination testimony at trial in lieu of her in-person testimony, arguing that the testimony's admission would be consistent with MRE 804 and the Confrontation Clause. Defendant opposed the motion, arguing that the testimony was inadmissible under MRE 804. The trial court granted the motion and the victim's testimony was read to the jury at trial. Defendant also testified at trial. He admitted that the videos and images found on his phone were of him and the victim and that he took the videos and images, but defendant denied that he ever engaged in sexual contact with the victim without her permission and denied that he ever touched the victim while she was unconscious. According to defendant, he and the victim had known each other for about thirteen years and, in the fall of 2017, they were "on and off boyfriend and girlfriend." Defendant testified that the victim initiated the sexual interaction between them on November 2, 2017 by performing oral sex on him. He testified that he was "completely inebriated" and did not know why he took the videos and images, but recalled showing them to the victim to demonstrate why they could not be together.
Images and videos of defendant having sexual contact with the victim that had been extracted from defendant's phone were admitted and shown to the jury. It is undisputed that they show defendant digitally penetrating the victim vaginally and anally. Phone records showing a number of phone calls and text messages between defendant and the victim during October and November 2017 were also admitted. Some of the messages appear to pertain to obtaining drugs, while others indicate that defendant and the victim had a romantic relationship.
Defendant highlights certain of these messages in his appellate brief. For instance, on November 3, 2017, the day after the victim passed out at defendant's trailer, defendant texted the victim to say that he was on his way to see her, addressing her as "my love" and concluding with "I'll be there beautiful I miss and I love that like drives me crazy knowing that you're my girl now I've wanted you for so long." Defendant later texted again to say that he had been in a moped accident and suffered minor injuries "but at least I got a beautiful girlfriend to rub it out my future wifey." The victim responded "Omg oh no where are you [ . . .] I'll take good care of you" with a kissing emoji. On November 4, 2017, the victim sent text messages to defendant where she referred to him as "baby," "babydoll," and "baby face," and said things like "Love u sweetheart" and "I want to get a nice buzz and make love to you all night." And on November 8, 2017, the victim texted defendant saying "I think we moved to [sic] fast and need to slow way down." The victim explained that she has "lots of love" for defendant but that she "just got out of a long term relationship" and was not ready for "a serious relationship."
The jury found defendant guilty of both charges. This appeal followed. The only claim defendant raises on appeal is that the admission of the victim's preliminary examination testimony at trial violated his rights under the United States and Michigan Constitutions.
II. STANDARD OF REVIEW
We review for an abuse of discretion a trial court's decision to admit evidence. People v Johnson, 474 Mich. 96, 99; 712 N.W.2d 703 (2006). "A trial court necessarily abuses its discretion when it makes an error of law" or "operates within an incorrect legal framework." People v Everett, 318 Mich.App. 511, 516; 899 N.W.2d 94 (2017) (quotation marks and citations omitted). "Whether a defendant was denied his right to confront a witness is a constitutional question that we review de novo[,]" meaning "we review the legal issue independently without deference to the lower court." People v Jemison, 505 Mich. 352, 360; 952 N.W.2d 394 (2020).
Defendant maintains, and the prosecution agrees, that he preserved his Confrontation Clause challenge by objecting to the prosecution's motion in limine. The record, however, indicates otherwise. In its motion in limine, the prosecution made anticipatory arguments that the victim's preliminary examination testimony was admissible under MRE 804 and that admission of the testimony would not violate the Confrontation Clause. In his "response and objection" to the motion, defendant did not challenge the admission of the testimony under the Confrontation Clause; instead, he argued only that the testimony was inadmissible under MRE 804, an argument he now abandons on appeal. "A challenge on one ground before the trial court is not sufficient to preserve a challenge on another ground on appeal." People v Swenor, 336 Mich.App. 550, 562; 971 N.W.2d 33 (2021). Thus, defendant failed to preserve his Confrontation Clause challenge. See People v Coy, 258 Mich.App. 1, 12; 669 N.W.2d 831 (2003) ("Although defendant objected that the testimony was hearsay, that objection did not preserve the issue whether the testimony violated the Confrontation Clause of the federal and state constitutions . . . .").
Unpreserved issues are reviewed for plain error. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Three requirements must be met in order to avoid forfeiture under the plain error rule: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. The third requirement "is typically satisfied by demonstrating that the plain error likely affected the outcome of the trial court proceedings." People v Davis, 509 Mich. 52, 72, 983 N.W.2d 325 (2022). In addition, once these three requirements are met, "[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Carines, 460 Mich. at 763-764 (quotation marks omitted). Ultimately, however, we need not reach the additional hurdles that attach to an unpreserved claim, because we find no error in the trial court's admission of the victim's preliminary examination testimony.
III. DISCUSSION
The United States and Michigan Constitutions protect a defendant's right to confront the witnesses against him. U.S. Const., Am. VI; Const. 1963, art. 1, § 20. This Court analyzes the application of that right under the Michigan Constitution in the same way as under the Sixth Amendment. See People v Fackelman, 489 Mich. 515, 525; 802 N.W.2d 552 (2011). "The right of confrontation insures that the witness testifies under oath at trial, is available for cross-examination, and allows the jury to observe the demeanor of the witness." People v Watson, 245 Mich.App. 572, 584; 629 N.W.2d 411 (2001). Under the Confrontation Clause, "[t]estimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v Washington, 541 U.S. 36, 59; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004); Jemison, 505 Mich. at 365-366. Statements made during a preliminary examination are testimonial. Crawford, 541 U.S. at 68.
To start, we decline defendant's invitation to adopt a new rule holding that preliminary examination testimony of unavailable witnesses is per se violative of the Confrontation Clause. 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).
Nor do we see reason to conclude that the admission of the victim's preliminary examination testimony in this case violated the Confrontation Clause. It is undisputed that the victim was "unavailable" for purposes of the Confrontation Clause. It is also undisputed that defendant had the opportunity to, and did, cross-examine the victim at the preliminary examination. Furthermore, the district court did not limit the scope of the cross-examination in any way and defense counsel was not prohibited from developing any areas of testimony. See, e.g., Wood, 307 Mich.App. at 517-518 (finding that the defendant's Confrontation Clause rights were not violated where declarant was cross-examined by defense counsel at the preliminary examination about the crime at issue and the district court did not limit cross-examination in any way).
Defendant argues that the preliminary examination did not provide an adequate opportunity to cross-examine the victim because she was not asked about her text messages with defendant, which, according to defendant, contradicted her testimony that she did not have a romantic relationship with defendant and thus undercut her claim that she did not consent to having sexual contact with him. It is unclear from the record whether defense counsel did not ask the victim about the text messages at the preliminary examination due to strategy, oversight, or a lack of access to the messages at that time. Regardless, "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." United States v Owens, 484 U.S. 554, 559; 108 S.Ct. 838; 98 L.Ed.2d 951 (1988) (cleaned up; emphasis in original). Here, defense counsel could, and did, cross-examine the victim about whether she was in a romantic relationship with defendant, and while defense counsel did not, at that time, use the text messages to challenge her testimony in that regard, those messages were admitted and used to that end at trial. Defendant has not shown that he was unconstitutionally denied the opportunity to effectively cross-examine the victim merely because that examination did not account for the text messages.
Although defendant abandoned any argument on appeal that the victim's testimony was inadmissible under MRE 804, he attempts to fold aspects of that argument into his Confrontation Clause challenge by arguing that he did not have a similar motive to cross-examine the victim at the preliminary examination. See MRE 804(b)(1) (permitting the trial court to admit the former testimony of an unavailable witness if the opposing party had "an opportunity and similar motive to develop" her testimony on cross-examination); People v Farquharson, 274 Mich.App. 268, 278; 731 N.W.2d 797 (2007) (setting forth a nonexhaustive list of factors to examine in determining whether the party had a similar motive to examine a witness at a prior proceeding). According to defendant, he was not motivated to mount an aggressive attack on the victim's credibility at the preliminary examination because of the different stakes and burden of proof at that stage of proceedings compared to trial; therefore, the preliminary examination did not provide an adequate opportunity to cross-examine the victim. As discussed, however, courts have rejected the notion that preliminary examination testimony is per se inadmissible at trial due to the general differences between those stages of proceedings, and there is nothing about the particulars of this case that would warrant a different conclusion. Defendant's preliminary examination involved the same offenses for which he was later tried, and his fundamental interest at the preliminary examination was the same as at trial: to establish that no offense occurred. And he would have been similarly motivated at both stages of proceedings to establish that the victim consented to the sexual contact, particularly in this case where video and image evidence conclusively showed that the sexual contact occurred. While "the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial," prior testimony may still satisfy the Confrontation Clause where, as here, defendant is not "significantly limited in any way in the scope or nature of his cross-examination of the witness . . . at the preliminary hearing." California v Green, 399 U.S. 149, 166; 90 S.Ct. 1930; 26 L.Ed.2d 489 (1970).
In sum, we reject defendant's claim that the trial court violated his constitutional rights by admitting the victim's preliminary examination testimony at trial. Admission of the testimony satisfied the Confrontation Clause because the victim was unavailable and defendant had an adequate opportunity to cross-examine her at the preliminary examination.
While not necessary to the disposition of this appeal, we note further that, even if the court did err in admitting the victim's preliminary examination testimony, the error does not strike us as "plain," Carines, 460 Mich. at 763, nor has defendant shown an entitlement to relief on its basis in light of the other evidence of his guilt. In particular, the jury was able to review video footage and images of the alleged sexual contact, which provided ample proof in itself that the penetrations occurred and the victim was physically helpless at the time. Given the strength of the remaining evidence, we cannot say that any error in admitting the victim's preliminary examination testimony "likely affected the outcome of the trial court proceedings," Davis, 509 Mich. at 72, or "resulted in the conviction of an actually innocent defendant or . . . seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Carines, 460 Mich. at 763-764 (quotation marks omitted). Indeed, even if defendant had preserved this claim of error, the remaining evidence of his guilt was so strong, in our view, that it would have rendered any such error "harmless beyond a reasonable doubt." Id. at 774.
We affirm.