Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  December 2, 2011                                                                 Robert P. Young, Jr.,
                                                                                             Chief Justice

  140704 & (92)(93)                                                                Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                 Diane M. Hathaway
            Plaintiff-Appellee,                                                        Mary Beth Kelly
                                                                                       Brian K. Zahra,
  v                                                      SC: 140704                               Justices
                                                         COA: 274508
                                                         Wayne CC: 06-006502-01
  REGINALD LENOIR LEWIS,
             Defendant-Appellant.
  _________________________________________/

         By order of February 4, 2011, the application for leave to appeal the January 12,
  2010 judgment of the Court of Appeals was held in abeyance pending the decision in
  People v Bryant, 483 Mich 132 (2009), cert gtd 559 US ___; 130 S Ct 1685; 176 L Ed 2d
  179 (2010). On order of the Court, the case having been decided on April 18, 2011,
  Michigan v Bryant, 562 US ___; 131 S Ct 1143; 179 L Ed 2d 93 (2011), the application
  is again considered. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal,
  we AFFIRM the result reached by the Court of Appeals, but VACATE that part of the
  Court of Appeals opinion holding that the autopsy report was not testimonial and,
  therefore, that its admission did not violate the defendant’s Sixth Amendment right to be
  confronted with the witnesses against him. In particular, we disagree with the Court of
  Appeals’ reliance on MRE 803(8) and its determination that the autopsy report was not
  prepared in anticipation of litigation, see Bullcoming v New Mexico, 564 US __; 131 S Ct
  2705; 180 L Ed 2d 610 (2011). Nonetheless, we agree that the admission of the report
  was not outcome determinative. The motions to file supplemental authority are
  GRANTED.

        MARILYN KELLY, J. (concurring).

         I concur in the Court’s order vacating part of the Court of Appeals published
  opinion and affirming defendant’s conviction. I do so because I believe that at least some
  portions of the Court of Appeals analysis of the Confrontation Clause issue presented are
  clearly erroneous.

         However, I concur only with great reluctance because I would prefer to grant leave
  to appeal. The Court should consider whether admission of the contents of an autopsy
  report through testimony of a medical examiner who did not prepare the report
                                                                                                               2

constitutes inadmissible testimonial hearsay. This is a jurisprudentially significant
question that has divided courts across the country. 1 Hearing oral argument would allow
the Court to determine to what extent the Court of Appeals erred and to explicitly decide
the constitutional question presented. I note that, by vacating the Court of Appeals
Confrontation Clause analysis and affirming on alternate grounds, we are not deciding
whether the autopsy report constituted testimonial hearsay evidence.




1
   Compare Wood v State, 299 SW3d 200 (Tex App, 2009) (finding a Confrontation
Clause violation); State v Locklear, 363 NC 438 (2009) (same) with Lewis (On Remand),
287 Mich App 356 (2009) (opinion below) (admission of autopsy report prepared by
nontestifying medical examiner did not violate Confrontation Clause); People v Hall, 923
NYS 2d 428, 430 (NY AD 1, 2011) (noting that Melendez-Diaz did not explicitly hold
that autopsy reports are testimonial).



                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 2, 2011                    _________________________________________
       p1129                                                                 Clerk
