Michigan Court of Appeals Holds Certain Testimonial Statements Admissible

On February 19th, 2015, the Michigan Court of Appeals held in a criminal case that certain out-of-court testimonial statements - particularly those statements offered to prove something other than the truth of the matter asserted, like the effect on the listener - are admissible in evidence at trial under Crawford v Washington, meaning that those statements do not violate a defendant's Sixth Amendment right to confront the witnesses against him.

In People v Putman, Docket No. 318788, the Michigan Court of Appeals addressed several issues, including 

  1. whether the trial court erred in administering the oath or affirmation to witnesses at trial;
  2. whether defendant's trial counsel was ineffective for failing to object to certain out-of-court statements made by a confidential informant to law enforcement in identifying defendant as the perpetrator; and
  3. whether allegedly inconsistent verdicts from the jury require reversal.

As to whether certain out-of-court statements unfairly prejudiced defendant at trial, the Court stated

. . . Defendant next argues that he was denied the opportunity to confront witnesses against him when a police officer testified about information received from an anonymous tipster. Defendant failed to object to this testimony at trial, meaning defendant’s confrontation clause claim is unpreserved and reviewed for plain error affecting his substantial rights. People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007). In the alternative, defendant argues that trial counsel was ineffective for failing to object to the use of this alleged testimonial hearsay. Because defendant failed to move for a new trial or a Ginther hearing, our review of this ineffective assistance argument is limited to mistakes apparent on the record. Id.

“Both the United States and Michigan constitutions guarantee a criminal defendant the right to confront the witnesses against him or her.” People v Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009), citing US Const, Am VI; Const 1963, art 1, § 20. The Confrontation Clause prohibits the admission of out-of-court statements that are testimonial in nature, unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Chambers, 277 Mich App at 10, citing Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). The Confrontation clause does not, however, bar the use of out of court testimonial statements for purposes other than establishing the truth of the matter asserted. People v Henry (After Remand), 305 Mich App 127, 153; 854 NW2d 114 (2014). “[A] statement offered to show the effect of the out of court statement on the hearer does not violate the Confrontation Clause.” Id. at 153-154 (citation omitted). “Specifically, a statement offered to show why police offers acted as they did is not hearsay.” Chambers, 277 Mich App at 10.

In this case, Detroit Police Officer Steven Ford testified that he received a tip through Crime Stoppers that the individual who shot the victim was named “Mike” and that he “lived on Central.” Acting on this information, Officer Ford did more investigating and discovered that defendant fit the description of the tip. Officer Ford then placed defendant’s photograph in an array which was shown to several witnesses to the shooting. In this context, it is clear that the tipster’s statement was not elicited from Officer Ford to prove the truth of the tipster’s statement, i.e., that “Mike” committed the murder; rather, it was used to explain why Officer Ford put a photograph of defendant in the photographic array. Because the Confrontation Clause does not prevent the use of out of court testimonial statements to show why a police officer acted as he did, the admission of this testimony did not violate defendant’s right of confrontation and he has not shown plain error. See id. at 10-11. Furthermore, because the testimony in question did not violate the Confrontation Clause, any objection on this basis would have been futile, and defense counsel is not ineffective for failing to make a futile objection. Eisen, 296 Mich App at 329. In short, defendant was not denied his right of confrontation and he was not denied the effective assistance of counsel . . . .