People of Michigan v. Casey Lavern Olney

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, FOR PUBLICATION
September 10, 2020
Plaintiff-Appellant, 9:20 a.m.
v No. 343929
Jackson Circuit Court
CASEY LAVERN OLNEY, LC No. 17-005539-FH
Defendant-Appellee.
ON REMAND
Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
This case returns to us by order of our Supreme Court for consideration of defendant’s
newly raised “argument that MCL 768.27c does not apply to preliminary examinations.”1 People
v Olney, ___ Mich ___ ; 941 NW2d 374 (2020) (Docket No. 159390). We conclude that MCL
768.27c does apply to preliminary examinations. Consequently, we once again reverse the circuit
court decision to quash the bindover and remand for reinstatement of the charges.
I. BASIC FACTS AND PROCEDURAL HISTORY
In our prior opinion, we summarized the facts and procedural history as follows:
Defendant was initially charged with first-degree home invasion and
domestic violence. Although the prosecution subpoenaed the complainant for the
preliminary examination, she did not appear. The prosecutor informed the district
court that, despite the alleged victim's absence, the prosecution intended to proceed
with the preliminary examination on the basis of the testimony of the law
1
In his application to our Supreme Court, defendant acknowledged that this issue was not
preserved in the circuit court or raised in the claim of appeal to this Court.
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enforcement officer who responded to the scene, Deputy David Thomas of the
Jackson County Sheriff’s Office. The prosecutor stated that Thomas’s hearsay
testimony was admissible under MCL 768.27c, the statutory hearsay exception for
statements to law enforcement officers made by victims of domestic violence under
circumstances that would indicate the statement’s trustworthiness. Defense counsel
objected, noting that he did not believe that the statutory hearsay exception could
apply to charges other than domestic abuse. The district court responded that the
exception existed “for the very reason that the prosecutor is experiencing right
now” because the prosecution had subpoenaed “someone that has either been
intimidated or for whatever reason refuses to cooperate.” As the actual examination
began, the prosecutor informed the district court that “based upon what was told to
the officer,” he was adding charges of assault by strangulation and interfering with
telephonic communications, which were not included in the original complaint.
Thomas testified that at approximately 9:30 a.m. on October 18, 2017, he
responded to a residence in Liberty Township, Michigan, after dispatch informed
him of a domestic-assault complaint and a possible violation of a conditional bond.
When he arrived on site, the complainant was standing in the driveway. Thomas
described her demeanor as “[f]airly calm” and “not hysterical, but she was upset.”
When the prosecutor asked Thomas what the complainant had said to him, defense
counsel objected and asked for “a continuing objection for any and all statements
that are used that are beyond the purpose of establishing a domestic violence in this
matter.” That is, defense counsel continued to object to Thomas’s testimony in a
very limited way. While apparently conceding that the evidence was admissible
for the purposes of establishing probable cause on the domestic-violence charges,
defense counsel argued that the complainant’s statement could not be used to
establish probable cause for any other offense. In response, the district court stated:
All right. Well we understand the nature of your objection. We briefly
discussed the matter. The quandary is whether or not the statute permits hearsay
given the circumstances of it being made to a police officer contemporaneous
with the act itself and involving domestic [violence] applies to something beyond
the charge of domestic violence. The Court is taking a flier at this point in time that
it does. It’s kind of in the spirit of the direction that the legislature seems to be
going in almost eliminating probable cause or preliminary examinations. So I will
allow the testimony and it can be reviewed by a superior court if it gets to that stage.
Thomas testified that the complainant had told him that she woke up to find
defendant, her ex-boyfriend, in her apartment. Defendant was there to collect the
money that the complainant admittedly borrowed from him and was supposed to
have paid back the day before. The complainant told Thomas that when she yelled
at defendant and told him that he was not supposed to have contact with her,
defendant grabbed her by the neck and threw her to the ground. Defendant also
took the complainant’s cell phone, threw it on the ground, and broke it. Thomas’s
report indicated that the complainant reported that she had trouble breathing.
Thomas observed redness and irritation on the complainant’s neck but did not take
any photographs.
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Following cross-examination, the district court reviewed MCL 768.27c and
concluded that Thomas’s “statement is admissible [if] the information is
admissible.” The district court found that the prosecution established probable
cause, and defendant was bound over for trial.
Defendant filed a motion to quash in the circuit court, arguing that the use
of Thomas’s testimony to establish probable cause for crimes other than domestic
violence violated defendant’s constitutional right to confront his accuser. The
circuit court issued a written opinion, the reasoning of which departed from the
arguments made by defense counsel. The circuit court apparently rejected
defendant’s claim that the statute applied only to domestic violence charges. It
ruled:
MCL 768.27c(1)(b) applies to offenses involving domestic violence, that
being any offense that is connected to a domestic violence incident. For example a
Home Invasion entering without permission, one of the elements is “that when
defendant entered the dwelling, he/she intended to commit State offense” if the
offense is domestic violence or related to a domestic violence then the exception
would apply, but if the offense is larceny for example then the exception would not
apply.
However, the circuit court went on to add that when it enacted MCL
768.27c, the Legislature intended to carve out an additional hearsay exception when
the complainant was unavailable, similar to the exception found in MRE 804(b).
The circuit court interpreted MCL 768.27c as requiring that “first the victim must
be declared unavailable then and only then can you use this exception to hearsay.”
The court then concluded that, because the complainant was not declared
unavailable, the exception did not apply.
The circuit court also held that the exception could not apply because the
statements of the complainant
are testimonial, and that by not having [the complainant] there the Confrontation
Clause of the sixth amendment was violated. Furthermore the exception to the
hearsay rule found in MCL 768.27c, extends on MRE 804(b) and you must first get
passed [sic] the Confrontation Clause of the Sixth amendment before you can use
a hearsay exception.
The circuit court granted the motion to quash and dismissed the charges against
defendant. [People v Olney, 327 Mich. App. 319, 322-325; 933 NW2d 744 (2019)
(emphasis in original).]
In reversing the circuit court, we held that there was no unavailability requirement in MCL 768.27c
and a right of confrontation did not apply at the preliminary examination. Id. at 327-331.
II. ANALYSIS
A. STANDARD OF REVIEW
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The interpretation of a statute, including the application of facts to the law, is reviewed de
novo. People v Calloway, 500 Mich. 180, 184; 895 NW2d 165 (2017).2 The goal when interpreting
statutes is to give effect to legislative intent by examining the plain language of the words of the
statute. Id. When the language of a statute is unambiguous, the Legislature intended the meaning
expressed, and the statute must be enforced as written. Id. It is presumed that the Legislature acts
with knowledge of existing law. People v Schultz, 435 Mich. 517, 543-544; 460 NW2d 505
(1990); People v Harrison, 194 Mich. 363, 369; 160 N.W. 623 (1916).
The legislative history of an act may be examined to determine the reason for the act as
well as to discern the meaning of its provisions. People v Green, 260 Mich. App. 710, 715; 680
NW2d 477 (2004). Legislative history is extremely useful when it demonstrates an intent to
repudiate a judicial interpretation or addresses alternatives in statutory language. Id. However,
legislative history is given little significance when it does not present an official view of the
legislators, and legislative history may not be invoked to create an ambiguity that does not
otherwise exist. Id. The legislative bill analysis does have probative value in limited
circumstances. Kinder Morgan Mich, LLC v City of Jackson, 277 Mich. App. 159, 170; 744 NW2d
184 (2007). Accordingly, it may be appropriate for this Court to look to the legislative history to
help ascertain the Legislature’s purpose in creating a statute as well as determining the statute’s
meaning. Id.
B. MCL 768.27c APPLICATION
For the first time in his application for leave to appeal to our Supreme Court, defendant
claimed3 that MCL 768.27c could not be applied to preliminary examinations. We disagree.
MCL 768.27c precisely addresses the proceedings to which it applies. Specifically, the
plain language of MCL 768.27c(6) states: “This section applies to trials and evidentiary hearings
commenced or in progress on or after May 1, 2006.” (Emphasis added.) However, defendant
submits that the phrase “evidentiary hearings” does not encompass a preliminary hearing. A
preliminary examination is, at its core, an evidentiary hearing. See People v Yost, 468 Mich. 122,
125-126; 659 NW2d 604 (2003) (“As [MCL 766.13] indicates, the preliminary examination has a
dual function, i.e., to determine whether a felony was committed and whether there is probable
cause to believe the defendant committed it. At the examination, evidence from which at least an
inference may be drawn establishing the elements of the crime charged must be presented.”);
People v Kubasiak, 98 Mich. App. 529, 532; 296 NW2d 298 (1980) (“While positive proof of guilt
is not required, there must be evidence [at the preliminary examination] on each element of the
crime charged or evidence from which those elements may be inferred.”) Thus, the very purpose
of the preliminary examination is to admit evidence on each element of a crime and to establish
probable cause to believe that the defendant committed that crime. Further, there does not appear
2
Generally, issues not raised in the trial court are reviewed for plain error. People v Carines, 460
Mich. 750, 763; 597 NW2d 130 (1999). However, our Supreme Court directed us to resolve this
issue without limitations.
3
We address defendant’s argument as found in the application for leave to appeal filed with our
Supreme Court. Defendant did not move to file supplemental pleadings with this Court.
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to be a logical rationale to apply the statute at trial and other types of evidentiary hearings, but not
at a preliminary examination.
Additionally, although not dispositive or controlling, the legislative history and analyses
concerning 2006 PA 79, which enacted MCL 768.27c, provides absolutely no indication that when
incorporating MCL 768.27c(6) in the statute, the Legislature intended to prohibit the use of the
statute at the preliminary examination. Specifically, it is noteworthy that MCL 768.27c(6) was
not inserted into the Senate Bill 263 until the bill was nearing passage by both houses of the
Legislature. The Senate passed this bill on November 3, 2005, without any language regarding
when or where the statute would be effective. The language appeared in the House’s version of
the bill, which it passed on March 7, 2006. The Senate approved the House’s version of the bill
on March 14, 2006, and the Governor signed the bill (which was given immediate effect) on March
23, 2006. Given that MCL 768.27c(6) set an effective date of May 1, 2006, it seems fairly clear
that the provision was added in order to make it clear when this new evidentiary rule would apply,
not necessarily to limit the types of proceedings where the statute would be applicable.
That conclusion is buttressed by the various legislative analyses prepared with respect to
the bill. The Senate Committee Summary, dated October 18, 2005, explains that the bill would
make certain evidence admissible in a “criminal action.” No reference is made to limiting the
introduction of this evidence in the manner defendant suggests. Senate Legislative Analysis,
Senate Bill 263, October 18, 2005. The same may be said about the Senate Floor Analysis. That
analysis simply explains that the bill would make certain evidence admissible. Senate Legislative
Analysis, Senate Bill 263, November 2, 2005. After the bill was passed by the Senate, a bill
analysis explained that the rationale of the bill stemmed from the fact that “it is common that a
domestic violence victim will make a statement to a police officer or other emergency responder
but later may be unwilling to testify in court against the abuser. Some people believe that such a
statement should be admissible as evidence of the wrongdoing, regardless of the victim’s
willingness to testify.” Senate Bill Analysis, Senate Bills 120 (Substitute S-4) and 263 (Substitute
S-6), February 9, 2006, p 1. Again, notably absent is any indication whatsoever that the Senate
intended to limit the rule’s applicability to certain phases of the criminal proceeding.4
4
The House’s summary of the bill similarly contains no suggestion that the new rule would not
apply in any phase of a criminal proceeding. House Legislative Analysis, Senate Bills 120 and
263, February 13, 2006. Neither does the House Committee Summary. House Legislative
Analysis, Senate Bills 120 and 263, February 27, 2006. The first mention of MCL 768.27c(6) is
in the analysis of the enrolled bill. In that analysis, the rationale for the bill is the same as explained
by the Senate’s February 9, 2006 analysis. Regarding MCL 768.27c(6), the analysis states simply
that Enrolled Bill 263, as well as Enrolled Bill 120, would “apply to trials and evidentiary hearings
commenced or in progress on or after May 1, 2006.” Senate Legislative Analysis, Senate Bills
120 and 263, May 11, 2006, p 1. Nothing in the remainder of the analysis discloses any intention
to limit the applicability of either bill to any particular phase or phases of a criminal proceeding.
Rather, it would appear that the bills were enacted to make certain evidence admissible in a
criminal proceeding, and that the only real purpose of MCL 768.27c was to set a date when the
new rule of evidence would apply.
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Nonetheless, defendant contends that MCL 768.27c does not apply to preliminary
examinations because the Michigan Court Rules, specifically MCR 6.110(D)(2), distinguish
between preliminary examinations and evidentiary hearings. However, defendant’s contention is
comprised of a single sentence that does not develop the issue in any meaningful way. In any
event, MCR 6.110 generally describes the preliminary examination procedure and MCR 6.110(D)
states:
(1) The court shall allow the prosecutor and defendant to subpoena and call
witnesses from whom hearsay testimony was introduced on a satisfactory
showing that live testimony will be relevant.
(2) If, during the preliminary examination, the court determines that evidence being
offered is excludable, it must, on motion or objection, exclude the evidence. If,
however, there has been a preliminary showing that the evidence is admissible,
the court need not hold a separate evidentiary hearing on the question of
whether the evidence should be excluded. The decision to admit or exclude
evidence, with or without an evidentiary hearing, does not preclude a party from
moving for and obtaining a determination of the question in the trial court on
the basis of
(a) a prior evidentiary hearing, or
(b) a prior evidentiary hearing supplemented with a hearing before the trial
court, or
(c) if there was no prior evidentiary hearing, a new evidentiary hearing.
We do not read the court rule as concluding that preliminary examinations are wholly
distinct from evidentiary hearings. Rather, the court rule addresses the necessity for a separate
evidentiary hearing to decide questions concerning the admissibility of evidence. That does not
mean that preliminary examinations are not a type of evidentiary hearing. Rather, the preliminary
examination is, in effect, the evidentiary hearing at which the district court determines whether
sufficient evidence to warrant the bindover is made. More importantly, nothing in the language of
MCL 768.27c demonstrates that the Legislature sought to adopt any such distinction from MCR
6.110(D), a judicially adopted rule, see MCR 1.104.
Defendant also argues that by failing to include MCL 768.27c in MCL 766.11b(1), the
Legislature has indicated that MCL 768.27c does not apply at the preliminary examination. MCL
766.11b(1) states:
(1) The rules of evidence apply at the preliminary examination except that the
following are not excluded by the rule against hearsay and shall be admissible
at the preliminary examination without requiring the testimony of the author of
the report, keeper of the records, or any additional foundation or authentication:
(a) A report of the results of properly performed drug analysis field testing to
establish that the substance tested is a controlled substance.
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(b) A certified copy of any written or electronic order, judgment, decree, docket
entry, register of actions, or other record of any court or governmental
agency of this state.
(c) A report other than a law enforcement report that is made or kept in the
ordinary course of business.
(d) Except for the police investigative report, a report prepared by a law
enforcement officer or other public agency. Reports permitted under this
subdivision include, but are not limited to, a report of findings of a
technician of the department of state police concerned with forensic science,
a laboratory report, a medical report, a report of an arson investigator, and
an autopsy report.
Plainly, MCL 766.11b(1) addresses the foundational and authentication requirements for
certain reports and records at the preliminary examination. MCL 768.27c does not contain any
reference to admission of records or other documents, but addresses statements pertaining to
physical injury or domestic violence. The reason MCL 768.27c is not listed in MCL 766.11b(1)
is obvious; MCL 768.27c has nothing to do with the purpose of MCL 766.11b(1). The omission
of MCL 768.27c from MCL 766.11b(1) does not support defendant’s attempt to preclude hearsay
statements pertaining to domestic violence from admission at the preliminary examination.
Consequently, we conclude that the plain language of MCL 768.27c(6) unambiguously
applies at trials and evidentiary hearings, MCL 768.27c(6). The preliminary examination is a type
of evidentiary hearing, and thus, the statute applies at that stage. Defendant has shown no reason
why the phrase “evidentiary hearing” should be read differently in this context, and the legislative
history appears to show that the Legislature never intended for MCL 768.27c(6) to be read in the
manner defendant suggests. Accordingly, the statute was applicable at defendant’s preliminary
examination.
Reversed and remanded for reinstatement of the charges raised against defendant. We do
not retain jurisdiction.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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