People of Michigan v. Arthur Larome Jemison

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 17, 2020
Plaintiff-Appellee,
v No. 334024
Wayne Circuit Court
ARTHUR LAROME JEMISON, LC No. 15-010216-01-FC
Defendant-Appellant.
ON REMAND
Before: SAWYER, P.J., and MURRAY, C.J., and BECKERING, J.
PER CURIAM.
Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b,
following a jury trial. Defendant appealed and this Court affirmed. People v Jemison, unpublished
opinion per curiam, issued 4/12/2018 (Docket No. 334024). Defendant then appealed to the
Michigan Supreme Court, which reversed this Court with respect to two issues related to the
testimony of an expert witness, Derek Cutler, by video over defendant’s objection. People v
Jemison, ___ Mich ___; ___ NW2d ___ (2020) (Docket No. 157812). The Supreme Court
concluded, contrary to this Court’s decision, that allowing the witness to testify by video
conference violated the Confrontation Clause. Jemison, slip op at 13. The Court remanded the
matter to us to determine whether the error was harmless beyond a reasonable doubt. Id.
Additionally, while the Supreme Court agreed with our conclusion that allowing the video
testimony over defendant’s objection violated MCR 6.006(C), it directed us to revisit our harmless
error analysis. Specifically, the Court directed us to consider: “(1) whether the violation of
MCR 6.006(C) is susceptible to harmless-error review; (2) if so, what standard applies in
determining whether the error was harmless; and (3) whether the error was harmless in this
case.” Jemison, slip op at 12-13 n 9. We once again affirm.
We turn first to the issue whether the Confrontation Clause violation was harmless error.
Confrontation Clause errors are subject to harmless-error analysis. Delaware v Van Arsdall, 475
U.S. 673, 684; 106 S. Ct. 1431; 89 L. Ed. 2d 674 (1986). “A constitutional error is harmless if it is
clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent
the error.” People v Mass, 464 Mich. 615, 640 n 29; 628 NW2d 540 (2001) (quotation marks,
alteration marks, and citation omitted).
Whether such an error is harmless in a particular case depends upon a host of
factors, all readily accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case. [Van Arsdall, 475 U.S. at 684.]
The prosecutor has the burden to show that a constitutional error is harmless beyond a reasonable
doubt. People v Carines, 460 Mich. 750, 774; 597 NW2d 130 (1999).
In Coy v Iowa, 487 U.S. 1012, 1021; 108 S. Ct. 2798; 101 L. Ed. 2d 857 (1988), the United
States Supreme Court clarified that the denial of face-to-face confrontation is a violation of the
Confrontation Clause that is subject to harmless-error analysis.1 It further stated:
An assessment of harmlessness cannot include consideration of whether the
witness’ testimony would have been unchanged, or the jury’s assessment unaltered,
had there been confrontation; such an inquiry would obviously involve pure
speculation, and harmlessness must therefore be determined on the basis of the
remaining evidence. [Id. at 1021-1022.]
Defendant’s confrontation rights were violated when he was denied face-to-face
confrontation with Cutler. Jemison, ___ Mich at ___; slip op at 11-12. Accordingly, the
assessment of harmlessness must be made on the basis of the remaining evidence. Coy, 487 U.S.
at 1021-1022.
In our view, a key part of the analysis is whether the report prepared by Cutler is part of
the remaining evidence. If Cutler’s report is not part of the remaining evidence, the Confrontation
Clause violation was not harmless beyond a reasonable doubt. The victim never identified
defendant as the person who assaulted her. The only evidence that identified defendant as the
person who assaulted the victim was the testimony of Catherine Maggert, a forensic scientist in
the biology unit of the Michigan State Police crime laboratory. Maggert testified that defendant’s
DNA matched the major DNA profile of the sperm fraction from the vaginal swabs and the genital
gauze. But that testimony relied upon Cutler’s report.
1
In Coy, the United States Supreme Court held that the defendant was denied his right of
confrontation when a screen was placed between him and the complaining witnesses when the
witnesses testified.
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Plaintiff argues that, regardless whether Cutler testified, Cutler’s report was admissible
under MCR 6.202 because defendant failed to file a written objection to the notice to use the report
as evidence at trial. MCR 6.202 provides:
(A) This rule shall apply to criminal trials in the district and circuit courts.
(B) Disclosure. Upon receipt of a forensic laboratory report and certificate,
if applicable, by the examining expert, the prosecutor shall serve a copy of the
laboratory report and certificate on the opposing party’s attorney . . . within 14 days
after receipt of the laboratory report and certificate. A proof of service of the report
and certificate, if applicable, on the opposing party’s attorney . . . shall be filed with
the court.
(C) Notice and Demand.
(1) Notice. If a party intends to offer the report described in subsection (B)
as evidence at trial, the party’s attorney . . . shall provide the opposing party’s
attorney . . . with notice of that fact in writing. If the prosecuting attorney intends
to offer the report as evidence at trial, notice to the defendant’s attorney . . . shall
be included with the report. If the defendant intends to offer the report as evidence
at trial, notice to the prosecuting attorney shall be provided within 14 days after
receipt of the report. Except as provided in subrule (C)(2), the report and
certification, if applicable, are admissible in evidence to the same effect as if the
person who performed the analysis or examination had personally testified.
(2) Demand. Upon receipt of a copy of the laboratory report and certificate,
if applicable, the opposing party’s attorney . . . may file a written objection to the
use of the laboratory report and certificate. The written objection shall be filed with
the court in which the matter is pending, and shall be served on the attorney, within
14 days of receipt of the notice. If a written objection is filed, the report and
certificate are not admissible under subrule (C)(1). If no objection is made to the
use of the laboratory report and certificate within the time allowed by this section,
the report and certificate are admissible in evidence as provided in subrule (C)(1).
(3) For good cause the court shall extend the time period for filing a written
objection.
(4) Adjournment. Compliance with this court rule shall be good cause for
an adjournment of the trial. [Emphasis added.]
MCR 6.202 follows the United States Supreme Court’s decision in Melendez-Diaz v
Massachusetts, 557 U.S. 305; 129 S. Ct. 2527; 174 L. Ed. 2d 314 (2009). In Melendez-Diaz, the Court
held that “three ‘certificates of analysis,’ ” prepared by forensic analysts, which indicated that the
seized substance was cocaine were testimonial statements and that, absent a showing that the
analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-
examine them, the defendant was entitled to be confronted with the analysts at trial. Id. at 308-
311. In a footnote, the United States Supreme Court stated that “[t]he right to confrontation may,
of course, be waived, including by failure to object to the offending evidence; and States may
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adopt procedural rules governing the exercise of such objections.” Id. at 131 n 3. The Court
disagreed with the dissent that its holding would have dire consequences on the adversary process
and noted that many states “permit the defendant to assert (or forfeit by silence) his Confrontation
Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report.”
Id. at 326. It stated that these “burden-shifting statutes” were not invalidated by its holding. Id.
It further stated:
In their simplest form, notice-and-demand statutes require the prosecution to
provide notice to the defendant of its intent to use an analyst’s report as evidence
at trial, after which the defendant is given a period of time in which he may object
to the admission of the evidence absent the analyst’s appearance live at trial.
Contrary to the dissent’s perception, these statutes shift no burden whatever. The
defendant always has the burden of raising his Confrontation Clause objection;
notice-and-demand statutes simply govern the time within which he must do so.
States are free to adopt procedural rules governing objections. It is common to
require a defendant to exercise his rights under the Compulsory Process Clause in
advance of trial, announcing his intent to present certain witnesses. There is no
conceivable reason why he cannot similarly be compelled to exercise his
Confrontation Clause rights before trial. Today’s decision will not disrupt criminal
prosecutions in the many large States whose practice is already in accord with the
Confrontation Clause.12 [Id. 326-327 (internal citations omitted).]
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12
As the dissent notes, some state statutes, “require[e] defense counsel to subpoena
the analyst, to show good cause for demanding the analyst’s presence, or even to
affirm under oath an intent to cross-examine the analyst.” We have no occasion
today to pass on the constitutionality of every variety of statute commonly given
the notice-and-demand label. It suffices to say that what we have referred to as the
“simplest form [of] notice-and-demand statutes,” is constitutional . . . .
__________________________________________________________________
MCR 6.202(C) is a simple notice-and-demand rule. It requires the prosecutor to provide
notice to the defendant of her intent to use a forensic laboratory report as evidence at trial, after
which the defendant is given 14 days to file a written objection to the use of the report. MCR
6.202(C)(1) and (2). The court rule is constitutional, Melendez-Diaz, 557 U.S. at 326-327, 327 n
12, and a defendant who fails to file a written objection to the prosecutor’s notice of intent waives
his right of confrontation, id. at 313 n 2, 326.
Defendant does not dispute that he did not file a written objection to the prosecutor’s MCR
6.202 notice of intent to use Cutler’s report as evidence at trial. However, after noting that a court
may extend the time period for filing a written objection and that trial may be adjourned for
compliance with the court rule, defendant argues that because the prosecutor stated at the May 20,
2016 hearing that Cutler “would in fact be testifying, albeit by video,” there was no longer any
reason for him to file a written objection and request an adjournment. However, at the May 20,
2016 hearing, the prosecutor never stated that Cutler would in fact be testifying. She only stated
that she would have Cutler available by video if his testimony became necessary. And she made
this statement after securing a ruling from the trial court that Cutler’s report was admissible under
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MCR 6.202. Furthermore, statements made during the course of trial indicate that the prosecutor
decided during trial to call Cutler as a witness. At the beginning of jury selection, the trial court
informed the prospective jurors of the witnesses whom the prosecutor had indicated she would
call. The list did not include Cutler. Neither the prosecutor nor defense counsel informed the trial
court or the prospective jurors that the trial court had failed to name a witness. At the beginning
of the second day of trial, the prosecutor gave the trial court an amended witness list. It included
two new witnesses that the prosecutor had been able to locate and “one witness who’s on call if
necessary.” At the end of the second day of trial, when the trial court asked the prosecutor about
the witnesses she intended to call the following day, the prosecutor stated that she would call
Maggert and a man who was in a relationship with the victim in 1996. She would also have Cutler
“available on call should we need him.” Defense counsel never indicated in response to these
statements that he was under the impression that the prosecutor would call Cutler as a witness.
Accordingly, we reject defendant’s argument that there was no reason for him to file a written
objection to the prosecutor’s MCR 6.202 notice of intent to use Cutler’s report as evidence at trial.
Because defendant never filed a written objection to prosecutor’s notice of intent to use
Cutler’s report as evidence at trial, the report was admissible. MCR 6.202(C)(1) and (2).
Defendant waived his right to confront Cutler regarding Cutler’s report. Melendez-Diaz, 557 U.S.
at 313 n 2, 326.
For these reasons, we conclude that Cutler’s report is part of the remaining evidence.
Because defendant did not file a written objection to the prosecutor’s MCR 6.202 notice of intent,
Cutler’s report was admissible to the same extent as if Cutler had testified. MCR 6.202(C)(1) and
(2). In accordance with MCR 6.202, Cutler’s report was admitted into evidence during Maggert’s
testimony, and Maggert testified regarding the conclusions in the report. In other words, to the
extent that Cutler merely testified to matters that were in his report, that testimony was cumulative.
Having reached this conclusion, we must look at whether Cutler testified to anything other
than matters that were in his report. Cutler’s testimony generally concerned the conclusions in his
report. Only two aspects of Cutler’s testimony were not cumulative to his report and Maggert’s
testimony: (1) Cutler testified that another analyst at Sorenson Forensics did the DNA extractions
and (2) Cutler testified that sperm cells would be present in a woman’s vagina if a man used a
condom but in a lower amount than if the man did not use a condom.
First, Cutler’s testimony that another analyst did the DNA extractions was not beneficial
to the prosecution. It did not boost the credibility of Cutler’s report. If anything, the testimony
would cast doubt on the conclusions in Cutler’s report because nothing was known about the
analyst who did the extractions.
Second, Cutler’s testimony that sperm cells would be present in a woman’s vagina if a man
used a condom was beneficial to the prosecutor’s case. The victim had testified that she had had
consensual sex with another man, who had worn a condom. This would explain the source of a
second DNA profile from a sperm fraction detected at slight levels in the sample. But we do not
believe that this would have affected the outcome of the case. The victim did not testify that she
had had consensual sex with defendant. Regardless whether she may have had consensual sex
with another man, the DNA analysis established that defendant was the source of a DNA specimen
detected in the rape kit. From this evidence, a jury could reasonably conclude that defendant had
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nonconsensual sex with the victim and the jury could reach that conclusion without Cutler’s
testimony. Accordingly, we conclude that the violation of defendant’s right of confrontation was
harmless beyond a reasonable doubt. Mass, 464 Mich. at 637 n 29.
We next turn to the three questions posed by the Supreme Court with respect to MCR
6.006(C). That rule provides:
(C) Defendant in the Courtroom—Other Proceedings. As long as the
defendant is either present in the courtroom or has waived the right to be present,
upon a showing of good cause, district and circuit courts may use
videoconferencing technology to take testimony from a person at another location
in the following proceedings:
(1) evidentiary hearings, competency hearings, sentencings, probation
revocation proceedings, and proceedings to revoke a sentence that does not entail
an adjudication of guilt, such as youthful trainee status;
(2) with the consent of the parties, trials. A party who does not consent to
the use of videoconferencing technology to take testimony from a person at trial
shall not be required to articulate any reason for not consenting.
The first question that the Court must address is whether the violation of MCR 6.006(C) is
susceptible to harmless-error review. Jemison, ___ Mich at ___ n 9; slip op at 12, n 9. The United
States Supreme Court has recognized “a limited class of fundamental constitutional errors that
defy analysis by harmless error standards.” Neder v United States, 527 U.S. 1, 7; 119 S. Ct. 1873;
144 L. Ed. 2d 35 (1999) (quotation marks and citation omitted). These errors are known as structural
errors. Weaver v Massachusetts, ___ US ___, ___; 137 S. Ct. 1899, 1907; 198 L. Ed. 2d 420 (2017).
“The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional
guarantees that should define the framework of any criminal trial. Thus, the defining feature of a
structural error is that it affects the framework within which the trial proceeds, rather than being
simply an error in the trial process itself.” Id. at ___; 137 S. Ct. at 1907. There are three broad
rationales for categorizing an error as structural. Id. at ___; 137 S. Ct. at 1908. First, an error is
deemed structural if the right at issue is not designed to protect the defendant from erroneous
conviction but instead protects some other interest. An example is the defendant’s right to conduct
his own defense, which is a right that is based on the fundamental legal principal that a defendant
must be allowed to make his own choices regarding the proper way to protect liberty. Id. at ___;
137 S. Ct. at 1908. Second, an error is deemed structural if the effects of the error are simply too
hard to measure, such as when a defendant is denied the right to select his own attorney. Id. at
___; 137 S. Ct. at 1908. Third, an error is deemed structural if it always results in fundamental
unfairness, such as when an indigent defendant is denied an attorney or the trial court fails to give
a reasonable doubt instruction. Id. at ___; 137 S. Ct. at 1908.
A violation of MCR 6.006(C) is not a constitutional error. Admittedly, because the
Supreme Court held that the face-to-face requirement of the right of confrontation can only be
dispensed with when the witness is unavailable and the defendant had a prior chance to cross-
examine the witness, Jemison, ___ Mich at ___; slip op at 11-12, the facts giving rise to a violation
of MCR 6.006(C) will also often result in a violation of a defendant’s right of confrontation. But,
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recall that this Court previously treated the violation of MCR 6.006(C) as interchangeable with a
Confrontation Clause violation, and the Supreme Court vacated that analysis. Id. at ___; slip op
at 12 n 9. This leads us to the conclusion that the purpose of MCR 6.006(C) is to provide a
framework for the use of videoconferencing technology separate from the Confrontation Clause
concerns.
Caselaw indicates that structural errors are constitutional errors. See Weaver, ___ US at
___; 137 S. Ct. at 1907; Neder, 527 U.S. at 7; see also People v Houthoofd, 487 Mich. 568, 587; 790
NW2d 315 (2010) (“A structural error . . . is a fundamental constitutional error that defies a
harmless error analysis.”); People v Cornell, 466 Mich. 335, 363 n 17; 646 NW2d 127 (2002)
(“Structural error is a concept that has typically been applied to errors of constitutional
magnitude[.]”). Because a violation of MCR 6.006(C) is not a constitutional error, it should not
be classified as a structural error.
Furthermore, the violation of MCR 6.006(C) is susceptible to harmless-error review. The
trial court erred by allowing Cutler to testify over two-way, interactive video technology because
defendant did not consent to this manner of testimony. This error did not affect the framework
within which defendant’s trial occurred. Rather, it concerned the testimony of one witness. The
error can quantitatively be assessed in the context of the other evidence presented to determine
whether it was harmless. See People v Anderson (On Remand), 446 Mich. 392, 405-406; 521
NW2d 538 (1994). But the harmlessness of the error should not turn on whether Cutler’s testimony
would have been unchanged, or the jury’s assessment unaltered, had Cutler testified in person.
Such an analysis would involve pure speculation. See Coy, 487 U.S. at 1021-1022. Rather, the
harmlessness of the error should be determined on the basis of the remaining evidence. See id.
Hence, we conclude that the violation of MCR 6.006(C) is susceptible to harmless-error review.
This leads to the second question that we must address, namely what standard applies in
determining whether the error was harmless. Jemison, ___ Mich at ___ n 9; slip op at 12 n 9.
MCL 769.26 controls judicial review of preserved, nonconstitutional error. People v Lukity, 460
Mich. 484, 495; 596 NW2d 607 (1999). The statute provides:
No judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of misdirection
of the jury, or the improper admission or rejection of evidence, or for error as to
any matter of pleading or procedure, unless in the opinion of the court, after an
examination of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice.
The statute “presumes that a preserved, nonconstitutional error is not a ground for reversal unless
‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than
not that the error was outcome determinative.” Lukity, 460 Mich. at 495-496.
The violation of MCR 6.006(C) is a preserved, nonconstitutional error. Accordingly, MCL
769.26 provides the standard for determining whether the error was harmless.
The third question that the Court must address is whether the violation of MCR 6.006(C)
was harmless. Jemison, ___ Mich at ___ n 9; slip op at 12 n 9. We conclude that it was for the
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same reasons that the violation of defendant’s confrontation rights was harmless beyond a
reasonable doubt—it does not affirmatively appear more probable than not that the violation of
MCR 6.006(C) was outcome-determinative. Lukity, 460 Mich. at 495-496. Like the analysis
regarding whether the Confrontation Clause violation was harmless, the analysis regarding
whether the violation of MCR 6.006(C) was harmless requires the Court to determine whether the
jury would have reached the same verdict had it not heard Cutler’s testimony. If the erroneous
admission of Cutler’s two-way, interactive video testimony was harmless beyond a reasonable
doubt, it is also harmless under the less stringent “more probable than not” standard of MCL
769.26.
In sum, we conclude that the Confrontation Clause violation was harmless beyond a
reasonable doubt. Additionally, the violation of MCR 6.006(C) is susceptible to harmless-error
review, the standard for that review in this case is the same as for preserved, nonconstitutional
error, and the violation was harmless in this case.
Affirmed.
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Jane M. Beckering
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