People of Michigan v. Scott Richard Jurewicz

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

August 6, 2019

Plaintiff-Appellee, 9:10 a.m.

v No. 342193

Jackson Circuit Court

SCOTT RICHARD JUREWICZ, LC No. 15-004930-FC

Defendant-Appellant.

Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

FORT HOOD, J.

Defendant appeals as of right his jury convictions for felony murder, MCL 750.316(1)(b),

and first-degree child abuse, MCL 750.136b(2). Defendant was sentenced to life without the

possibility of parole for his felony murder conviction, and 50 to 75 years’ for the child abuse

conviction. Defendant contends on appeal that he is entitled to a new trial because (1) his trial

counsel was ineffective for failing to call expert witnesses, and (2) his constitutional right to

confront the witnesses against him was violated by the admission of hearsay statements made by

two, approximately three-year-old children. We affirm.

I. FACTUAL BACKGROUND

This case arises out of defendant’s murder of an 18-month-old child. On March 14,

2015, defendant and his son, together with defendant’s then-girlfriend and her three children,

EH, LH, and BH, ate a spaghetti dinner. After dinner, defendant put BH to bed. BH became

fussy and defendant became frustrated, so defendant “shook [BH] a little bit” and “put him back

down hard[]” in his crib. BH abruptly stopped crying, and defendant went downstairs. After a

few minutes, defendant returned upstairs to check on BH. According to defendant, when he

returned upstairs he discovered noodles spilling out of BH’s mouth, and BH was lifeless and

purple. First responders were able to restart BH’s heart, but he was immediately placed on life

support and died three days later. A CAT scan showed that an “overall loss of oxygen for a

period of time caused brain damage and the cells of the brain to die.” BH had retinal

hemorrhages in both eyes, and an MRI showed swelling in his spine.

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After BH’s death, BH’s mother left defendant and defendant began dating again. Two

months later, defendant was present when his new girlfriend’s young son, JP, was found

smothered to death in his crib. During the same time that BH’s death was being investigated,

Child Protective Services (CPS) was investigating EH and LH’s home to ensure their safety.

Following JP’s death, CPS also began investigating the home of JP’s brother, SC, to ensure SC’s

safety. During separate forensic interviews with CPS, SC and EH each made statements that

they had been choked by defendant. Defendant was eventually charged and convicted with BH’s

murder on a theory that the cause of BH’s death was homicide from blunt force trauma. He now

appeals his convictions. We affirm.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that his trial counsel was ineffective for failing to call any

witnesses to testify on defendant’s behalf. Specifically, defendant contends that his trial attorney

failed to call Dr. Leslie Hamilton and Dr. Michael Pollanen as expert witnesses. We disagree.

Generally, “[t]he question whether defense counsel performed ineffectively is a mixed

question of law and fact; this Court reviews for clear error the trial court’s findings of fact and

reviews de novo questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826

NW2d 136 (2012). Because no Ginther1 hearing was held, this Court’s review is limited to

mistakes apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714

(2009).

Both the United States Constitution and the 1963 Michigan Constitution guarantee

defendants the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1,

§ 20. To obtain a new trial on the basis of ineffective assistance, a defendant must show that (1)

trial counsels’ performance fell below an objective standard of reasonableness, and (2) but for

counsel’s deficient performance, there is a reasonable probability that the outcome would be

different. Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People

v Pickens, 446 Mich 298; 521 NW2d 797 (1994). Defendant must overcome a strong

presumption that counsel’s performance was sound trial strategy. Strickland, 466 US at 689.

Defendant must also show that defense counsel’s performance so prejudiced him that he was

deprived of a fair trial. Pickens, 446 Mich at 338. To establish prejudice, defendant must show a

reasonable probability that the outcome would have been different but for counsel’s errors.

Strickland, 466 US at 694. A reasonable probability need not be a preponderance of the

evidence; rather, a “reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id.

Defense attorneys retain the “duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary,” but have wide discretion

as to matters of trial strategy. Id. at 691; People v Heft, 299 Mich App 69, 83; 829 NW2d 266

(2012). This Court will not substitute its judgment for that of counsel regarding matters of trial

strategy, nor will it assess counsel’s competence with the benefit of hindsight. Strickland, 466

US at 689; Payne, 285 Mich App at 190. The fact that defense counsel’s strategy ultimately

1

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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failed does not render it ineffective assistance of counsel. People v Stewart, 219 Mich App 38,

42; 555 NW2d 715 (1996). Defense counsel’s decisions regarding whether to call a witness are

presumptively matters of trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d

623 (2012). “The failure to call witnesses only constitutes ineffective assistance of counsel if it

deprives a defendant of a substantial defense. Similarly, the failure to make an adequate

investigation is ineffective assistance of counsel if it undermines confidence in the trial’s

outcome.” Id. (quotation marks, citations, and alteration omitted).

We first address defendant’s argument that his trial counsel was ineffective because he

failed to call Dr. Hamilton as an expert witness. Dr. Hamilton reviewed BH’s medical records

and authored a report opining that there was no evidence of trauma in BH’s spine; rather, in Dr.

Hamilton’s opinion, the damage to BH’s spine was caused by whatever unidentified event

caused his brain to swell, which was not necessarily a “shaking-type trauma.” Dr. Hamilton

ultimately concluded that “it [was] not possible to make the neuropathologic diagnoses of

‘shaking’ or ‘whiplash,’ ” which largely contradicted the prosecution’s theory of the case.

Defendant argues that defense counsel erred when he failed to call Dr. Hamilton as a witness to

present these conclusions to the jury, and that this failure prejudiced him. We disagree.

Defendant has not shown that Dr. Hamilton’s testimony would have provided him a

“substantial defense” not otherwise available. See id. This is because the conclusions contained

in Dr. Hamilton’s report were, in fact, presented to the jury. First, defendant’s counsel presented

Dr. Hamilton’s report during the testimony of Dr. Carl Schmidt, and Dr. Schmidt confirmed

more than once that Dr. Hamilton did not believe BH’s injuries could have been “caused by

shaking.” Dr. Hamilton’s report was then presented a second time during the testimony of Dr.

Evan Matshes. Dr. Matshes confirmed that Dr. Hamilton had concluded there was no evidence

of whiplash, shaking, or jerking. With two separate experts testifying to the conclusions derived

from Dr. Hamilton’s report, we fail to see how calling Dr. Hamilton as a witness would have

provided any new information for the jury to consider. Indeed, trial counsel’s tactic of not

calling Dr. Hamilton as a witness enabled the defense to use her expert opinion to undermine the

prosecution’s expert witnesses’ conclusions without exposing Dr. Hamilton to the prosecution’s

cross examination. Accordingly, we cannot conclude that defense counsel’s decision not to call

Dr. Hamilton deprived defendant of a substantial defense.

Defendant also argues that his counsel was ineffective for failing to call Dr. Pollanen.

Dr. Pollanen also authored a report and concluded that the cause and manner of BH’s death

could not be determined. Again, defendant has not shown that Dr. Pollanen’s testimony would

have provided him a substantial defense not otherwise available. Dr. Pollanen’s conclusions

were also presented to the jury via the testimony Dr. Matshes, as well as the testimony of Dr.

Jeffrey Jentzen. Dr. Matshes testified as to Dr. Pollanen’s conclusion that the cause and manner

of BH’s death were undeterminable, even noting that he initially agreed with that conclusion.

The following day, Dr. Jentzen testified that he had reviewed Dr. Pollanen’s report and explained

that Dr. Pollanen “couldn’t call [BH’s death] a homicide.” As with Dr. Hamilton, two expert

witnesses testified as to Dr. Pollanen’s conclusions, and defendant has failed to establish that Dr.

Pollanen would have provided any new information that would amount to a substantial defense

not otherwise provided.

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Because it has not been shown that failure to call Dr. Hamilton and Dr. Pollanen deprived

defendant of a substantial defense, we cannot conclude that defense counsel’s actions fell below

an objectively reasonable standard. Without needing to reach the issue of prejudice, we conclude

that defendant’s ineffective assistance of counsel claim is without merit.2

III. THE CONFRONTATION CLAUSE

Defendant next argues that the trial court erred when it granted the prosecution’s motion

to introduce the hearsay statements of SC and EH because the statements were testimonial in

nature and therefore violated defendant’s right to confrontation. We disagree.

A defendant has the right to be confronted with the witnesses against him during criminal

prosecutions. US Const, Am VI; Const 1963, Art 1, § 20; Crawford v Washington, 541 US 36,

42; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Whether a defendant was denied his Sixth

Amendment right to confrontation is a question of constitutional law that this Court reviews de

novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The Confrontation Clause

generally prohibits the admission of out-of-court testimonial statements unless the declarant was

unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Id.

at 68. In Crawford, The United States Supreme Court described testimonial statements

generally:

Various formulations of this core class of “testimonial” statements exist:

“ex parte in-court testimony or its functional equivalent—that is, material such as

affidavits, custodial examinations, prior testimony that the defendant was unable

to cross-examine, or similar pretrial statements that declarants would reasonably

expect to be used prosecutorially,” . . . “extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony,

or confessions,” . . . “statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial” . . . . These formulations all share a common

nucleus and then define the Clause’s coverage at various levels of abstraction

around it. Regardless of the precise articulation, some statements qualify under

any definition—for example, ex parte testimony at a preliminary hearing.

2

We note that defendant makes brief statements regarding his counsel’s failure to request an

adjournment after receiving an unfavorable report from Dr. Matshes, and his counsel’s failure to

file a witness list. Defendant does not flesh these issues out, and accordingly, we decline to

address them. See People v Kelly, 231 Mich App 627, 641; 588 NW2d 480 (1998) (“An

appellant may not merely announce his position and leave it to this Court to discover and

rationalize the basis for his claims, nor may he give only cursory treatment with little or no

citation of supporting authority.”).

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Statements taken by police officers in the course of interrogations are also

testimonial under even a narrow standard. [Id. at 51-52 (citations omitted).]

In 2006, the Supreme Court further explained the distinction between testimonial and

nontestimonial statements:

Statements are nontestimonial when made . . . under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing emergency, and

that the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution. [Davis v Washington, 547 US

813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).]

Later, in Michigan v Bryant, 562 US 344, 131 S Ct 1143, 179 L Ed 2d 93 (2011), the

Supreme Court “further expounded” on what had come to be known as the “primary purpose

test.” Ohio v Clark, ___ US ___, ___; 135 S Ct 2175, 2180; 192 L Ed 2d 306 (2015). The

Bryant Court “noted that ‘there may be other circumstances, aside from ongoing emergencies,

when a statement is not procured with a primary purpose of creating an out-of-court substitute

for trial testimony.’ ” Id., quoting Bryant, 562 US at 358. “[W]hether an ongoing emergency

exists is simply one factor—albeit an important factor—that informs the ultimate inquiry

regarding the ‘primary purpose’ of an interrogation.” Bryant, 562 US at 366. The central

question for determining whether a statement is testimonial with respect to the Confrontation

Clause is whether, “in light of all the circumstances, viewed objectively, the ‘primary purpose’

of the communication was to create an out-of-court substitute for trial testimony.” Id. at ___;

135 S Ct at 2180 (emphasis added).

One additional factor is ‘the informality of the situation,’ ” as a “formal station-house-

interrogation . . . is more likely to provoke testimonial statements, while less formal questioning

is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the

accused.” Id. Another factor is the identity of the hearsay witness: statements made to

“individuals who are not law enforcement officers . . . are much less likely to be testimonial than

statements to law enforcement officers.” Id. at ___; 135 S Ct at 2181. Finally, the Supreme

Court recently noted that the age of the declarant may also be a factor. Id. at ___; 135 S Ct at

2181-2182. In Clark, a three-year-old child made statements to his preschool teacher about

abuse, and those statements were admissible against his abuser because the child did not make

the statements with the primary purpose of creating evidence for the abuser’s prosecution. Id. at

___; 135 S Ct at 2182. Although the Court noted that the declarant in Clark had made the

statements to his teacher rather than law enforcement officers, the Court also noted that young

children will rarely “understand the details of our criminal justice system,” and thus it is

“extremely unlikely” that they would ever “intend [their] statements to be a substitute for trial

testimony.” Id. Michigan caselaw has yet to specifically address that idea.

In 2004, this Court recognized in dicta that a two-year-old child’s statement that she had

an “owie” was not testimonial in nature. People v Geno, 261 Mich App 624, 631; 683 NW2d

687 (2004). Rather than consider the child’s young age, however, this Court reasoned that “[t]he

child’s statement was made to the executive director of the Children’s Assessment Center, not to

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a government employee,” and the statement was not “in the nature of ex parte in-court testimony

or its functional equivalent[.]” Id., quoting Crawford, 541 US at 51 (quotation marks omitted).

In 2009, this Court held that, in order to determine whether statements made by a four-year-old

victim to a SANE were testimonial in nature, “the reviewing Court must consider the totality of

the circumstances of the victim’s statements and decide whether the circumstances objectively

indicated that the statements would be available for use in a later prosecution or that the primary

purpose of the SANE’s questioning was to establish past events potentially relevant to a later

prosecution rather than to meet an ongoing emergency.” People v Spangler, 285 Mich App 136,

154; 774 NW2d 702 (2009). We now conclude, given the direction of the law since Clark, and

given the totality of the circumstances under which SC and EH made their statements, the

statements were not testimonial in nature and were properly admitted at trial.

Defendant contends that the statements from SC and EH are testimonial in nature because

they were taken after the investigation into defendant was underway. Although it is true that EH

and SC were both interviewed after BH’s death and after the investigation concerning that death

had begun, the children were not interviewed to obtain information about BH’s death or

defendant’s involvement in that death. Both children were interviewed by CPS workers—not

law enforcement—for the purpose of assessing their own safety in light of the deaths of BH and

JP. It is also notable that both children were approximately three years old at the time of their

statements, and it is thus highly unlikely that they could have intended their statements to be a

substitute for trial testimony. Under the circumstances, despite the formality of the interviews,

where CPS interviewed the children to ensure their safety and not to aid a police investigation,

and where the children were too young to understand the legal implications of their statements,

the statements were not testimonial.

We note that post-Clark cases from multiple other states support our conclusion, and

further endorse the principle that very young children are unlikely to implicate the Confrontation

Clause. See State v Webb, 569 SW3d 530, 534, 544 (Mo App, 2018) (a three-year-old victim’s

statements to his teachers were admissible where the teachers were acting “out of concern for

[the v]ictim’s well-being and not for purposes of assisting in [the defendant’s] prosecution,” and

because the age of the child tended to preclude him from having any “prosecutorial purpose in

mind when expressing his thoughts”); Schmidt v State, 401 P3d 868, 872, 885; 2017 WY 101

(2017) (statements of a mildly cognitively impaired six-year-old to her school nurse were

admissible because they were spontaneous, made in an informal setting, and there was “no

indication that [the child] made her statements intending them to be used in a prosecution or even

knew such a result was possible”); State v Streepy, 199 Wash App 487, 494-496; 400 P3d 339

(2017) (statements to a police officer were not testimonial, in part, because there was “little

difference” between the “terrorized seven-year-old” declarant and “the preschooler discussed in

Clark”); State v Daise, 421 SC 442, 455-456; 807 SE2d 710 (App, 2017) (two-year-old’s

statements in response to questioning by police were nontestimonial because the police were

inquiring as to the declarant’s injuries during an ongoing medical emergency, and because of the

declarant’s “very young age”); State v Diaz, 2016-Ohio-5523, ¶ ¶ 40-47; 69 NE3d 1182 (Ohio

App, 2016) (three-year-old child’s statements to a nurse and to a social worker were admissible

because the statements were made for the purpose of medical diagnosis and treatment, and

because, pursuant to Clark, statements by young children very rarely implicate the Confrontation

Clause).

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Similarly, several federal circuits have applied Clark’s reasoning and would likely reach

the same outcome in this case. In United States v Barker, 820 F3d 167, 169, 171 (CA 5, 2016),

the United States Court of Appeals for the Fifth Circuit held that statements made by a four-and-

a-half-year-old child to a SANE were not testimonial in nature because the primary purpose of

the SANE interview was to medically evaluate the child, and because the child “lacked the

understanding of the criminal justice system to intend her comments to function as a substitute

for trial testimony.” The court noted that this would tend to be true of preschool-aged children

who “generally lack an understanding of our criminal justice system, let alone the nuances of a

prosecution.” Id., citing Clark, ___ US at ___; 135 S Ct at 2182. Similarly, in United States v

Clifford, 791 F3d 884, 888 (CA 8, 2015), the Eighth Circuit determined that statements made by

a three-year-old child to a private citizen were not testimonial. First, the court noted that,

although Clark declined to adopt a categorical rule that statements made to private citizens were

nontestimonial, those statements are nonetheless “ ‘much less likely to be testimonial than

statements to law enforcement officers.’ ” Id., quoting Clark, ___ US at ___; 135 S Ct at 2181.

Second, the court noted that the child’s “age [was] significant since ‘[s]tatements by very young

children will rarely, if ever, implicate the Confrontation Clause’ because ‘it is extremely unlikely

that a three-year-old child . . . would intend his statements to be a substitute for trial testimony.’ ”

Id. (emphasis added; second alteration in original), quoting Clark, ___ US at ___; 135 S Ct at

2182.

We found only one post-Clark case that concludes that the statements of a young child

made to a private citizen outside of an interrogation were testimonial such that they implicated

the Confrontation Clause. In McCarley v Kelly, 801 F3d 652, 655-659 (CA 6, 2016), a three-

and-a-half-year-old child made statements to a child psychologist incriminating the defendant in

the murder of the child’s mother. The court acknowledged that Clark addressed “whether a

three-year-old’s statements were testimonial,” but concluded that Clark involved “vastly

different circumstances.” Id. at 662 n 1, citing Clark, ___ US at ___; 135 S Ct at 2181.3 Unlike

Clark, there was no ongoing emergency when the Kelly declarant finally spoke with the child

psychologist, and perhaps most importantly, testimony from trial indicated that the sole purpose

of the minor child’s session with the child psychologist was to “see if the[ psychologist] could

extract any information from him that he remembered from th[e] evening” of his mother’s

murder. Id. at 664-665. Testimony “unambiguously” established that the main reason the minor

child was interviewed by the child psychologist was for the police to obtain information relevant

to their investigation. Id. at 665. Thus, even though the psychologist was not “a member of the

police department,” she was acting as an agent of law enforcement “such that her acts could

likewise be considered ‘acts of the police.’ ” Id. at 664, quoting Davis, 547 US at 823 n 2.

3

Importantly, Kelly was an appeal from a denial of a petition for a writ of habeas corpus

pursuant to 28 USC 2254. In such cases, where issues have already been decided on the merits

by a state court, 28 USC 2254(d)(1) instructs federal courts to deny applications for writs of

habeas corpus unless the issues decided on the merits were contrary to “clearly established

Federal law.” Because Clark had not been decided when the Ohio Court of Appeals admitted the

minor child’s statements in Kelly, the Kelly court explicitly noted that Clark did not apply to its

analysis. Kelly, 801 F3d at 662 n 1.

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In this case, SC’s statement was given to a CPS employee when SC was approximately

three years old, and was being interviewed to determine if his father’s home was fit for children.

When SC was asked if he knew defendant, SC replied, “yeah, him [sic] choked me.” SC then

frantically repeated the accusation a number of times while pointing to his neck. Similarly, EH’s

statement was given to a CPS employee during a forensic interview when she was three years

old. The interviewer asked EH if she knew defendant, and she replied that she did. The

interviewer then asked if there was “something that [defendant] does that [EH does not] like,

does that sound right?” EH replied that defendant choked her. The interviewer asked if there

was anything else defendant did that EH did not like, to which she replied that he “choked her

siblings as well.” With respect to EH, the CPS worker addressed a number of issues before ever

asking if EH knew defendant, and it seems clear that the goal was to evaluate the ongoing

emergency of abuse in the home and to protect EH. The same is true for SC: a CPS worker was

interviewing SC to determine if his father’s home was a safe environment for a child. The

interviewers were never directly investigating defendant’s involvement in BH’s or JP’s deaths,

or attempting to extract testimony from the children.

The trial court correctly recognized that the hearsay statements derived from the forensic

interview were nontestimonial in nature. The court examined the totality of the circumstances

concerning each statement and noted that each statement was spontaneous, consistent, age

appropriate, and given under circumstances indicating trustworthiness. The trial court permitted

the statements only after concluding that they were given—not for testimonial purposes—but to

address ongoing emergencies in the children’s homes. See Spangler, 285 Mich App at 154. We

agree with the trial court that the statements were not testimonial, and that their admission at trial

did not violate defendant’s right to confrontation.

IV. DISCLOSURE UNDER MCL 768.27c(3)

As an aside, we note that defendant’s brief on appeal vaguely suggests that the

prosecution did not provide adequate notice of SC’s and EH’s statements under MCL

768.27c(3). Although it is not the duty of this Court to discover and rationalize the basis for

defendant’s claims, People v Kelly, 231 Mich App 627, 641; 588 NW2d 480 (1998), we elect to

briefly address this issue because, as it happens, the suggestion has merit. The hearsay

statements at issue were admitted under MCL 768.27c(1), which provides:

(1) Evidence of a statement by a declarant is admissible if all of the

following apply:

(a) The statement purports to narrate, describe, or explain the infliction or

threat of physical injury upon the declarant.

(b) The action in which the evidence is offered under this section is an

offense involving domestic violence.

(c) The statement was made at or near the time of the infliction or threat of

physical injury. Evidence of a statement made more than 5 years before the filing

of the current action or proceeding is inadmissible under this section.

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(d) The statement was made under circumstances that would indicate the

statement’s trustworthiness.

(e) The statement was made to a law enforcement officer.

Subsection (3) of the statute then provides that prosecutors seeking to admit evidence under the

statute must disclose the evidence to the defendant “not less than 15 days before the scheduled

date of trial or at a later time as allowed by the court for good cause shown.” MCL 768.27c(3).

At trial, defendant’s counsel objected to the admission of the hearsay statements as

follows:

Under 768.27, be it a, b[,] or c, th[ey] had to have been [sic] given notice to us at

least 15 days in advance. The prosecution certainly gave notice under the hearsay

exceptions, including the catch-all, but at no time was a written notice under the

domestic violence statute ever given.

One might interpret the argument in one of two ways: (1) the prosecution failed to disclose the

evidence within 15 days, or (2) the prosecution failed to file a written notice of their intent. The

latter argument has no merit, as MCL 768.27c(3) does not require the prosecution give a written

notice of its intent to offer evidence. Rather, and notably in contrast to some other hearsay

exceptions that require the offering party make known to the adverse party their intent to offer

the evidence, see, e.g., MRE 803(24); MRE 803A, the statute only requires that the prosecuting

attorney disclose the evidence itself to the defendant at least 15 days in advance of trial.

It is apparent from our review of the record that the prosecution did not disclose SC’s and

EH’s statements to defendant in a timely manner. The record reflects that the prosecution first

served on defendant the report containing EH’s hearsay statements on October 23, 2017, and first

served on defendant the report containing SC’s statements on October 26, 2017. Trial began on

November 6, 2017, meaning EH’s statements were disclosed 14 days before trial, and SC’s

statements were disclosed 11 days before trial. There is no indication from the lower court

record that there was ever a discussion regarding whether the prosecution had good cause for

their tardy disclosure, and accordingly, it would seem that admission of SC’s and EH’s hearsay

statements violated MCL 768.27c(3).

Because this error is nonconstitutional, however, it is subject to the harmless-error rule.

People v Lukity, 460 Mich 484, 491; 596 NW2d 607 (1999). Michigan applies the rule via

statute:

No judgment or verdict shall be set aside or reversed or a new trial be granted by

any court of this state in a criminal case, on the ground of . . . the improper

admission or rejection of evidence, . . . unless in the opinion of the court, after an

examination of the entire case, it shall affirmatively appear that the error

complained of has resulted in a miscarriage of justice. [MCL 769.26.]

“In order to overcome the presumption that a preserved nonconstitutional error is harmless, a

defendant must persuade the reviewing court that it is more probable than not that the error in

question was outcome determinative.” People v Elton, 462 Mich 751, 766; 614 NW2d 595

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(2000), citing Lukity, 460 Mich at 495-496. An error is not outcome-determinative unless it

undermines the reliability of the verdict. People v Young, 472 Mich 130, 142; 693 NW2d 801

(2005).

In this case, the evidence against defendant was overwhelming, and we are not convinced

the admission of SC’s and EH’s statements was outcome-determinative. Testimony establishes

that defendant was the only individual in the room when BH died, and the nine-day jury trial

involved testimony from six medical experts and written reports from seven medical experts that,

for the most part, tended to show that BH’s death was a homicide caused by blunt trauma.

Evidence also suggested that defendant had a history of engaging in abusive conduct with his

girlfriends and their children. Moreover, even without the statements of SC and EH, other

independent testimony from Dr. Kevin Durell and EH’s mother indicated that both children at

one point in time had petechial rashes on their face—a sign consistent with being choked.

Finally, defendant even admitted in a police interview to picking up BH, shaking him, and

“putting [BH] back down on the bed harder than [he] should have.” There was no shortage of

evidence against defendant in this case, and we cannot conclude that the failure to strictly

comply with the disclosure provision of MCL 768.27c(3) was anything but harmless.

Affirmed.

/s/ Karen M. Fort Hood

/s/ Colleen A. O’Brien

/s/ Thomas C. Cameron

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