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PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Alton FONTENOT, Jr., Defendant-Appellee.
The prosecution appeals by leave granted 1 the circuit court's order denying the prosecution's interlocutory application for leave to appeal, which seeks a declaration that DataMaster logs, which are generated to document inspections of breath testing equipment used by police officers conducting alcohol-related investigations, are both nontestimonial under the Confrontation Clause of the Sixth Amendment and admissible as business records under MRE 803(6). This appeal is being decided without oral argument pursuant to MCR 7.214(E)(1). We vacate.
On October 3, 2017, Michigan State Police Trooper Jon Gjurashaj conducted a traffic stop of a car driven by defendant in Royal Oak, Michigan, because the front passenger was not wearing a seatbelt. Upon approaching the car, Trooper Gjurashaj saw that defendant had bloodshot, glassy eyes and droopy eyelids, and Trooper Gjurashaj smelled an odor of alcohol coming from the car and defendant's mouth. After defendant failed field sobriety tests, Trooper Gjurashaj arrested defendant for operating under the influence of alcohol. Defendant was then taken to a Michigan State Police post and given two DataMaster breath tests; both tests revealed a blood alcohol content of 0.09. In September 2017 and December 2017, Marvin Gier, a Class IV operator who conducted the 120-day tests on the DataMaster pursuant to state regulations, inspected the particular machine that was used on defendant, verified its accuracy, and certified that it was in proper working order, which is reflected in the DataMaster logs.
The prosecution filed a pretrial motion in limine in the 45th District Court to declare that the DataMaster logs are nontestimonial under the Confrontation Clause and admissible as business records under MRE 803(6); those declarations would have made it unnecessary for the prosecution to call Gier as a witness at trial. The district court denied the prosecution's motion in limine and stayed the trial pending the prosecution's appeal in the circuit court. On appeal, the circuit court concluded that it was proper for the district court to deny the prosecution's motion in limine because
even assuming without deciding that the statements made by Marvin Gier were nontestimonial, the Court fails to see how it could reverse the trial court's June 25, 2019 Order when the People failed to present evidence before the trial court to support that the records in question amounted to business records․ Rather, the People appear to have merely promised to present such evidence at trial.
This appeal followed.
The prosecution argues that the DataMaster logs are nontestimonial and admissible as business records under MRE 803(6). We agree with both propositions.
A. STANDARD OF REVIEW
“The decision whether to admit evidence is within a trial court's discretion. This Court reverses it only where there has been an abuse of discretion.” People v. Katt, 468 Mich. 272, 278, 662 N.W.2d 12 (2003). An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of reasonable and principled outcomes. People v. Johnson, 502 Mich. 541, 564, 918 N.W.2d 676 (2018). Furthermore, “[a] trial court also necessarily abuses its discretion when it makes an error of law.” People v. Al-Shara, 311 Mich. App. 560, 566, 876 N.W.2d 826 (2015). “To the extent that a trial court's ruling ․ involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.” People v. Tanner, 496 Mich. 199, 206, 853 N.W.2d 653 (2014) (quotation marks and citation omitted).
B. CONFRONTATION CLAUSE
The Confrontation Clause of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him ․” U.S. Const., Am. VI. In Crawford v. Washington, 541 U.S. 36, 50-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that, under the Confrontation Clause, out-of-court testimonial statements are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant has had a previous opportunity to cross-examine the declarant. However, the Court stated that it would
leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. [Id. at 68, 124 S. Ct. 1354.]
A pretrial statement is testimonial if the declarant would reasonably expect that the statement will be used in a prosecutorial manner and if the statement was made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52, 124 S. Ct. 1354 (quotation marks and citation omitted).
The United States Supreme Court later narrowed the scope of what constitutes a testimonial statement in a plurality opinion in Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).2 In Williams, Justice Alito, writing for a four-justice plurality, held that testimonial statements have two characteristics: “(1) [t]hey involve[ ] out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (2) they involve[ ] formalized statements such as affidavits, depositions, prior testimony, or confessions.” Id. at 82, 132 S. Ct. 2221. Our Supreme Court adopted the Williams “primary purpose” confrontation-clause analysis in People v. Nunley, 491 Mich. 686, 821 N.W.2d 642 (2012), when it held that a certificate of mailing was not a testimonial statement because the certificate of mailing's primary purpose was to establish that notice was given—not to be used at a later trial. See also id. at 706, 821 N.W.2d 642 (“Instead, we believe that the circumstances under which the certificate was generated show that it is a nontestimonial business record created primarily for an administrative reason rather than a testimonial affidavit or other record created for a prosecutorial or investigative reason.”).
In Nunley, our Supreme Court additionally held that the circumstances under which a statement is given should be considered to determine whether a statement is testimonial. Nunley, 491 Mich. at 706, 821 N.W.2d 642 (“[U]nder Crawford and its progeny, courts must consider the circumstances under which the evidence in question came about to determine whether it is testimonial.”). For example, the Court characterized the certificate of mailing in Nunley as “a routine, objective cataloging of an unambiguous factual matter, documenting that the [Department of State] has undertaken its statutorily authorized bureaucratic responsibilities.” Id. at 707, 821 N.W.2d 642. Consequently, the certificate of mailing was “created for an administrative business reason and kept in the regular course of the [Department of State]’s operations in a way that is properly within the bureaucratic purview of a governmental agency,” and, therefore, was not a testimonial statement. Id.
In this case, the DataMaster logs are nontestimonial. The DataMaster logs were created before defendant's breath test to prove the accuracy of the DataMaster machine; they were not created for the purpose of prosecuting defendant specifically. Therefore, they did not “accus[e] a targeted individual of engaging in criminal conduct ․” Williams, 567 U.S. at 82, 132 S.Ct. 2221.
Furthermore, the DataMaster logs were created as part of the Michigan State Police's normal administrative function of assuring that the DataMaster machine produces accurate results. The DataMaster would have been checked for proper functioning even if defendant had not been tested with it. Therefore, the primary purpose of Gier testing the DataMaster's accuracy was to comply with administrative regulations, see Mich. Admin. Code R 325.2653(3), and to ensure its reliability for future tests—not to prosecute defendant specifically. Accordingly, the DataMaster logs were nontestimonial and the trial court erred by holding that they were testimonial. See Nunley, 491 Mich. at 706, 821 N.W.2d 642. see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (“[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.”).
C. MRE 803(6)
Business records are admissible under MRE 803(6), which provides:
A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
“The business records exception is based on the inherent trustworthiness of business records. But that trustworthiness is undermined and can no longer be presumed when the records are prepared in anticipation of litigation.” People v. Jambor (On Remand), 273 Mich. App. 477, 482, 729 N.W.2d 569 (2007).
The DataMaster logs in this case are business records under MRE 803(6). The Michigan State Police keep the DataMaster logs “in the course of a regularly conducted business activity” and it is “the regular practice of that business activity to make the ․ record” as required by the administrative DataMaster regulations. MRE 803(6). Mich. Admin. Code R 325.2653(3) states:
Approved evidential breath alcohol test instruments shall be inspected, verified for accuracy, and certified as to their proper working order within 120 days of the previous inspection by either an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained representative approved by the department.
Although the DataMaster logs are occasionally presented at trials, they are not prepared for the purpose of litigation, but rather, because the administrative regulations require the keeping of such logs. Thus, the logs are admissible under MRE 803(6).3
Our dissenting colleague believes that the circumstances surrounding the creation of the DataMaster logs in this case establish that the logs are untrustworthy and, therefore, that they cannot be admissible as business records. We disagree. MRE 803(6) addresses the trustworthiness of the type of document in question, not the specific document at issue in a given case. Whether the DataMaster logs at issue in this case were accurate has no effect on whether they are an actual business record. Indeed, a business record can certainly be inaccurate such as when a business intentionally creates inaccurate accounting statements for purposes of tax evasion. Those records are not trustworthy, but they certainly would be considered business records because they were created during the normal course of business. Whether those records should be believed by the fact-finder is a question of the weight and credibility of the evidence for the fact-finder to decide. Such is the case here. Whether the DataMaster logs in this case are accurate and trustworthy is a question of the weight that the fact-finder should give this evidence. See, e.g., People v. Hardiman, 466 Mich. 417, 428, 646 N.W.2d 158 (2002) (“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.”). That is a separate question from whether they are admissible as business records. Therefore, the DataMaster logs were admissible as business records. Defendant, however, may still challenge the reliability and credibility of the DataMaster logs. But that question is for the fact-finder to decide, not for the courts to decide in our gatekeeping function when determining whether evidence is admissible.
We vacate the district court's order denying the prosecution's motion in limine and remand to the district court for further proceedings consistent with this opinion. We do not retain jurisdiction.
I respectfully dissent. The evidence in this case demonstrates that the specific records at issue are unreliable and therefore not admissible under MRE 803(6), irrespective of whether the records are considered “testimonial.” Furthermore, the nature of the records at issue here is fundamentally different from the nature of the records at issue in the caselaw upon which the majority relies for the conclusion that they are not “testimonial.” I would therefore affirm the lower courts.
As the majority explains, MRE 803(6) provides an exception to the hearsay-evidence rule for “records of regularly conducted activity” as follows:
A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. [Emphasis added.]
“The business records exception is based on the inherent trustworthiness of business records. But that trustworthiness is undermined and can no longer be presumed when the records are prepared in anticipation of litigation.” People v. Jambor (On Remand), 273 Mich. App. 477, 482, 729 N.W.2d 569 (2007). Importantly, however, nowhere in MRE 803(6) is there any limitation on the meaning of “trustworthiness” or specification of how or why a record might lack trustworthiness.
Given the circumstances under which the logs were created, “the source of information or the method or circumstances of preparation” clearly does “indicate [a] lack of trustworthiness.” Defendant has provided evidence that Marvin Gier, the Class IV operator who conducted the 120-day tests on the DataMaster, testified in another proceeding (Proceeding 2) that he had used an expired test kit on one occasion (Proceeding 1), and he had no ability to prove that the test kits he used relevant to Proceeding 2 were not also expired. It appears from the Proceeding 2 transcript that Gier only learned he had made the mistake in Proceeding 1 because it was brought out on cross-examination.2 Therefore, the testing procedure is clearly fallible and is not self-correcting. This is critical, because the testing logs are not merely a bureaucratic record indicating that a routine was followed. Rather, the logs are substantive evidence establishing the reliability of any particular alcohol level test performed by a DataMaster machine in specific cases. In turn, those individual alcohol level tests carry enormous probative weight. Indeed, in many cases, including felonies, the tests are outright conclusive and effectively unchallengeable—even if, as here, there is a danger that they might be wrong due to an improperly calibrated piece of equipment that is not itself capable of being examined. The evidence shows that the 120-day test logs may not, in fact, be trustworthy for the purpose for which they are introduced into evidence: to show that the DataMaster machines were properly tested and therefore provided reliable evidence of a defendant's blood alcohol level.
Importantly, the testing logs are not merely kept pursuant to a stray piece of bureaucratic red tape, to be filed away somewhere and usually forgotten. It begs the question simply to say that they are kept because a rule requires them to be kept. The purpose of the administrative rules pertaining to blood alcohol level breath tests is to ensure that the tests are accurate, and failure to comply with the rules therefore renders the accuracy of those tests questionable. People v. Boughner, 209 Mich. App. 397, 398-399, 531 N.W.2d 746 (1995). Our Supreme Court has overruled older caselaw holding that noncompliance with breath-test administrative rules or statutes per se precludes the admissibility of those tests. See People v. Anstey, 476 Mich. 436, 446-449, 447 n. 9, 719 N.W.2d 579 (2006). However, noncompliance with the administrative rules or statutes does undermine the probative value of those tests. See People v. Wager, 460 Mich. 118, 121, 125-126, 594 N.W.2d 487 (1999). Importantly, “the reliability of the testing device” remains a prerequisite to the admissibility of breath-test results. People v. Kozar, 54 Mich. App. 503, 509 n. 2, 221 N.W.2d 170 (1974), overruled in part on other grounds by Wager, 460 Mich. at 122-124, 594 N.W.2d 487.3 In other words, although the testing logs are technically kept pursuant to a regulatory rule, the reason for the regulatory rule is for the purpose of using the tests in prosecutions. It cannot be overemphasized that the 120-day test logs do not simply show that a test was administered, but rather that a test was properly administered, which in turn is of direct relevance to the reliability and thus admissibility of the test.4
In contrast, the certificates of mailing at issue in People v. Nunley, 491 Mich. 686, 821 N.W.2d 642 (2012), were mechanistically generated purely for the purpose of showing the bare fact that a mailing had occurred. Id. at 690, 695-696, 821 N.W.2d 642. In other words, the certificates in Nunley contrast drastically with the logs here, which exist to certify that a potentially fallible human properly performed a complex operation calling for training and expertise. At the other end of the spectrum, the certificates at issue in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), were actually affidavits prepared by persons who conducted sophisticated analyses for the sole and direct purpose of criminal proceedings against particular individuals. Id. at 307-308, 310-311, 129 S. Ct. 2527. Those certificates again contrast with the logs in this case, but in the opposite direction, because they were prepared to directly establish facts at issue in a specific prosecution. Thus, the 120-day testing logs here seem to occupy an intermediate position not directly addressed in any binding caselaw. However, because the logs are clearly kept for the substantive purpose of litigation, and because they offer one of the very limited avenues by which a defendant might be able to test the forensic evidence against him, I would find that the logs should be considered testimonial in nature. See Nunley, 491 Mich. at 706-707, 821 N.W.2d 642.
Nevertheless, I recognize that, as the majority observes, because the logs “are necessarily created before the commission of any crime that they may later be used to help prove,” id. at 707, 821 N.W.2d 642, our Supreme Court has held that they therefore per se cannot be “made under circumstances that would lead an objective witness reasonably to believe that [they] would be available for use at a later trial,” id. at 709, 821 N.W.2d 642. Therefore, because the logs were not prepared for the benefit of a specific prosecution or targeted at a specific individual, even though they are clearly prepared for litigation, they are, by definition, not testimonial.
To reiterate, I find this reasoning concerning because, notwithstanding the applicable administrative rule, the DataMaster testing logs clearly are expected to be used in litigation, commonly are used in litigation, and are critical to establishing the reliability of evidence that is frequently conclusive per se and otherwise difficult to challenge. The United States Supreme Court has indicated that the business record exception is inapplicable “if the regularly conducted business activity is the production of evidence for use at trial” or “calculated for use essentially in the court, not in the business.” Melendez-Diaz, 557 U.S. at 321, 129 S.Ct. 2527 (quotation marks and citation omitted). Because the entire purpose for keeping the logs is to establish the reliability of individual test results for prosecutions, they are clearly not just ordinary and routine administrative check-boxes, and I am unconvinced they are not, in substance, testimonial. At a minimum, they should not be admitted as business records without establishing their trustworthiness.
Therefore, I would hold that under the circumstances of this case, the lower courts correctly determined that the 120-day testing logs were not admissible under MRE 803(6), irrespective of whether the logs are testimonial, and I would affirm. I am constrained by Nunley to agree that the logs are, by definition, not “testimonial,” but I believe the situation at bar differs significantly from the situation in Nunley. Therefore, I respectfully urge our Supreme Court to provide the bench and bar with additional guidance.
1. People v. Fontenot, unpublished order of the Court of Appeals, entered September 25, 2019 (Docket No. 350391).
2. “A plurality opinion of the United States Supreme Court, however, is not binding precedent.” People v. Beasley, 239 Mich. App. 548, 559, 609 N.W.2d 581 (2000).
3. While the DataMaster logs are admissible as business records, this ruling does not prevent defendant from challenging the accuracy of the DataMaster testing machine itself in the future. We express no opinion on that question, or on whether such a challenge would go to weight rather than admissibility of the evidence.
1. As a consequence of this qualifying clause, I respectfully disagree with the majority that the analysis under MRE 803(6) considers only the general kind of document at issue and disregards trustworthiness concerns pertaining to the specific document at issue.
2. Although the implications of Gier's testimony in Proceeding 2 are easily deduced, the better practice would have been to also provide a transcript of Gier's testimony from Proceeding 1.
3. Wager specifically only overruled Kozar to the extent Kozar held that there was a “reasonable time” requirement for the administration of blood alcohol level breath tests.
4. Of course, noncompliance that has no actual bearing on the accuracy or reliability of testing equipment may be harmless. People v. Rexford, 228 Mich. App. 371, 377-378, 579 N.W.2d 111 (1998). However, as noted, it appears that Gier himself only learned that he had used an expired test kit in Proceeding 1 because he was subpoenaed and called to testify. Thus, there is simply no way a defendant, facing potentially devastating and lifelong consequences, could test the reliability of the equipment used to dictate his or her fate unless that reliability is itself testimonial. It is impossible to determine whether noncompliance is harmless without first learning that it occurred. It has long been recognized that cross-examination is the “ ‘ “greatest legal engine ever invented for the discovery of truth.” ’ ” People v. Fackelman, 489 Mich. 515, 527 n. 5, 802 N.W.2d 552 (2011), quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). This case shows that cross-examination serves more purposes than merely permitting the trier of fact to assess credibility. Justice requires that defendants be able to explore the reliability of and potential for human error in administering forensic tests that will likely otherwise be regarded as infallible.
Murray, C.J., concurred with Tukel, J.
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Docket No: No. 350391
Decided: September 10, 2020
Court: Court of Appeals of Michigan.
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