                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      November 1, 2016
               Plaintiff-Appellee,

v                                                                     No. 326199
                                                                      Wayne Circuit Court
EMMANUEL JEROME BEVERLY,                                              LC No. 14-007348-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

SERVITTO, J. (concurring in part and dissenting in part).

       I agree with the majority on its holdings regarding the unavailability of the witness, the
admission of hearsay testimony, prosecutorial error, jury instructions, and sentencing. However,
because I would find that the admission of the complaining witness “T’s” preliminary
examination testimony constituted plain error affecting defendant’s substantial rights, I would
reverse and remand for a new trial. I would also find that defense counsel’s failure to object to
the admission of this testimony amounted to ineffective assistance of counsel.

                                     UNAVAILABLE WITNESS

        I agree with the majority’s conclusion that the trial court did not clearly err by declaring
the victim unavailable under MRE 804. However, I write separately because my reasoning
differs from that of the majority.

        On the day that trial was to begin, but before a jury was selected, the prosecutor indicated
that T “testified at the preliminary examination under oath and there is a transcript of that. I tried
to interview him this morning. He shut down. He will not talk to me, he will not tell me what
the defendant did. . . . So if he refuses to testify, I’m going to ask your Honor to declare him to
be unavailable such that we can use the exam transcript.” The prosecutor then brought T into the
courtroom. T answered only one of many questions posed to him by the trial judge, and
answered only a few questions posed by the prosecutor. When asked by the prosecutor if he
would talk in court about what defendant did, T answered, “No.” Defense counsel declined the
opportunity to question T. T refused to answer any more questions asked by the judge or the
prosecutor and the record reflects that T sat with his fingers in his mouth at one point. The
prosecutor thereafter stated:



                                                 -1-
              So, judge, before asking your Honor to make a finding that this child is
       unavailable because he refuses or is unable for whatever reason to answer the
       questions and then we are asking your Honor to rule that we can use the
       preliminary examination transcript where . . . the child testified on August 21st of
       2014.

The prosecutor asked that the judge rely upon MRE 804(a)(2) and (4) in finding the child
unavailable to testify. Defense counsel objected, pointing out that T testified at the preliminary
examination and provided “a wealth of information” during an earlier Kids Talk interview. The
trial court nonetheless stated:

               The court is finding that this young man is unavailable. There was an
       extensive effort to try to make him answer questions by the court itself, first of all,
       and he refused to answer any questions at all. He wasn’t under any duress or
       stress or anything else, he just refused to talk. . . . But I think he persisted in
       refusing to testify both to the prosecution and to the court despite my request that
       he testify. So I think under 804 he is unavailable.

              The second part of this is, it is correct that under 804(b) the former
       testimony he did give[ ] at the preliminary exam [is a hearsay exception]. . . .
       And, therefore, the court is going to allow the preliminary examination exam to
       be used in place of the child.

However, the trial court later indicated that it would bring T in at trial to give him a chance and if
he refused to testify at that point, the prosecutor could then move to have T declared unavailable.
The trial court noted that T did not look any further traumatized, but instead had just “clammed
up.”

        The next day, after a jury was selected, defense counsel asked the trial judge, outside of
the presence of the jury, to not bring T into court, given that the trial court had already ruled that
he was unavailable as a witness. The prosecutor indicated that she had thought the trial judge
had ultimately decided that they would bring T into the courtroom during the trial to see if he
would be willing to talk and, if not, the trial judge would then declare him unavailable. The trial
judge stated, “That basically is what I said. . . . I did declare him, under those circumstances,
[the day prior], unavailable and – but I thought it would be necessary for him to come today and
if he repeated his actions that I was going to declare him unavailable.” The trial judge pointed
out that T did answer some of the prosecutor’s questions the day prior, albeit not about the trial
matter. Defense counsel then stated that the prosecutor stated earlier that T was upset and was
crying and that if T was not going to be made a witness, the possibility of prejudice in reference
to how T acted when he appeared in front of the jury outweighed any probative value because
the trial court had already decided that T would not likely be cooperative. The prosecutor
responded that “he may talk to me, I don’t know.” The trial court granted defense counsel’s
request and found that based upon T’s actions the day prior in refusing to speak about anything
that had to do with the CSC charge, that he was unavailable for trial purposes under MRE
804(a)(2)(witness persists in refusing to testify concerning the subject matter of the declarant’s
statement).


                                                 -2-
        It is apparent from the above that defense counsel affirmatively requested that T not be
brought into the courtroom for the trial and questioned before the jury. That being the case, the
very important concept of waiver—as distinguished from forfeiture—was implemented by
defense counsel. Defense counsel had the existing right to have T on the stand at trial and to
have him questioned before having him declared unavailable as a witness. Defense counsel
knew he had that right, given the trial judge’s statements, and voluntarily relinquished that right
as a matter of trial strategy because he was concerned about how T would behave if put on the
stand to testify in front of the jury. See, People v Vaughn, 491 Mich 642, 663; 821 NW2d 288
(2012)(waiver is the intentional relinquishment of a known right). Defense counsel’s decision
was akin to an evidentiary decision and, because “counsel has full authority to manage the
conduct of the trial and to decide matters of trial strategy” waiver could be effected by the
affirmative action of defense counsel. See People v Carter, 462 Mich 206, 218-19; 612 NW2d
144 (2000).

                        PRELIMINARY EXAMINATION TESTIMONY

        I disagree with the majority’s conclusion that reversal based upon defendant’s argument
that the admission of T’s preliminary examination testimony did not satisfy the requirements of
MRE 804(b)(1) was unwarranted. The majority concludes that because defense counsel did not
object to T’s unsworn testimony at the preliminary examination, the issue has been waived. This
conclusion is based on what I believe to be the majority’s incorrect interpretation and application
of recent authority concerning the applicable standard to be applied in such circumstances.

        The majority relies principally on People v Sardy, 313 Mich App 679; NW2d__ (2015).
In that case, the unsworn preliminary examination testimony of a seven year old victim of
criminal sexual conduct was submitted to the jury during the trial after the trial court found that
the victim had become unavailable due to lack of memory. Id. at 679-680. Brought under the
claim of a violation of his constitutional right to confront witnesses against him, the defendant
argued on appeal that the unsworn preliminary examination testimony of the victim should not
have been admitted. The Sardy Court determined that reversal was unwarranted.

        The Sardy Court noted that the defendant made no attempt to address the classification
and to review the approach to his alleged error; i.e., “whether the error was structural, whether
the error was waived and thus not appealable, whether the error was forfeited, whether, if
forfeited, the plain-error test precludes or requires reversal, whether the error was preserved, and,
if preserved, whether the harmless-error test precludes or requires reversal.” Id. at 686. Citing
cases from 1908, 1939, and 1982, the Court did state, however, that “a structural-error approach
relative to the unsworn testimony is not consistent with caselaw” and that such “precedent
effectively applies a waiver analysis when a party fails to object to the unsworn testimony and
allows the testimony to be fully developed.” Id. at 687. Relying on these cases, the Sardy Court
determined that the “defendant waived the issue concerning the victim's unsworn testimony, and
thus reversal is unwarranted.” Id. at 686.

        The Sardy Court goes on to acknowledge that the waiver analysis is “somewhat
inconsistent” with more recent Supreme Court precedent regarding the concepts of waiver and
forfeiture, citing the precedentially binding cases of Carter, 462 Mich 206)(noting the crucial
distinction between waiver and forfeiture), and People v Putman, 309 Mich App 240, 243; 870

                                                -3-
NW2d 593 (2015)(employing a forfeiture/plain error analysis to an oath given to a trial witness).
Id at 688.1 The Sardy Court concludes that even under a plain error analysis, however, reversal
is unwarranted due to the absence of prejudice. Id. The Sardy Court noted that while the victim
never declared by oath or affirmation that the victim would testify truthfully at the preliminary
examination, “[w]hen the victim first took the stand, the prosecutor asked her a few preliminary
questions for the purpose of establishing that the child could distinguish truth from lies. The
victim answered appropriately, and the district court responded in the affirmative when the
prosecutor asked the court for permission to proceed with the questioning of the child.” Id. at
682. Defendant’s attorney did not object to the unsworn testimony that followed and, in fact,
during cross-examination of the child:

       Defendant's attorney grilled the child with questions regarding her ability to tell
       the truth and to distinguish between fact and fabrication. Midway through cross-
       examination, defense counsel asked the victim whether she had “been telling the
       truth so far,” and the victim replied, “Yes.” The child also stated: “I'm telling the
       truth;” “I'll tell the truth;” and “I'll still tell the truth.” The victim further testified
       how several people had told her to simply tell the truth when she testified. Id. at
       682; 687.

As a result, the Sardy Court found that the essential purpose of an oath or affirmation was met
and that the defendant could thus not show that he was prejudiced as a result of the district court
allowing the victim to testify without the administration of an oath or affirmation. Id. at 689-
690.

        There are two key differences between the present matter and Sardy that lead me to
believe that case is not determinative to the facts at hand. First and foremost, the defendant in
Sardy couched his argument concerning the unsworn testimony solely within the context of a
violation of the Confrontation Clause. Id. at 676, n 6. The Sardy Court noted that “there may
have been a problem with admitting the preliminary examination testimony under MRE
804(b)(1) (hearsay exception-“former testimony” by unavailable declarant) or under a straight
application of MRE 603, defendant does not frame the argument in such a manner.” Id.
Defendant, here, does frame his argument in such a manner. Where Sardy had no cause to
concern itself with the evidentiary issues concerning the preliminary examination testimony, this
Court does. Defendant does raise a Confrontation Clause issue but it is secondary to the issue of
whether the preliminary examination testimony should have been admitted under considerations
of MRE 603 and MRE 804(b)(1).

       Second, while the witness in Sardy may have not been administered an oath or
affirmation prior to providing preliminary examination testimony, the record is clear that steps
were taken to ensure that the witness was able to ascertain the truth from a lie and that the


1
  Notably, Sardy failed to take note of People v Vaughn, 491 Mich at 654 (“[T]he failure to assert
a constitutional right ordinarily constitutes a forfeiture of that right.”).




                                                   -4-
witness’s conscience was awakened and it was impressed upon the witness the duty to testify
truthfully. Donkers v Kovach, 277 Mich App 366, 373; 745 NW2d 154 (2007). MRE 603 states
that, “[b]efore testifying, every witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation administered in a form calculated to awaken the witness's
conscience and impress the witness's mind with the duty to do so.” There are no “particular
ceremonies, observances, or formalities” that are required of a testifying witness, “so long as the
oath or affirmation ‘awaken[s]’ the witness's conscience and ‘impress[es]’ his or her mind with
the duty to testify truthfully.” Donkers, 277 Mich App at 373. The witness, here, was not asked
any questions whatsoever concerning his ability to tell the truth and it was in no way impressed
upon him that he should be truthful prior to or during his testimony.

        Not only is Sardy factually distinguishable from the case at hand, the most significant
issue I see with declaring that reversal is unwarranted because defense counsel failed to object to
T’s unsworn testimony at the preliminary examination is that this holding ignores the difference
between a waiver and a forfeiture. The Sardy panel rightly acknowledges that there is a
significant difference between a waiver and a forfeiture. “Waiver” is “the voluntary
relinquishment or abandonment of a legal right or advantage.” Black’s Law Dictionary (7th Ed.).
“Forfeiture,” on the other hand, is “the loss of a right, privilege, or property because of . . .
neglect of duty” (Id.). The United States Supreme Court has long recognized the crucial
distinction between these two concepts: “[w]aiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” United States v Olano, 507 US 725, 733; 113
S Ct 1770, 1777; 123 L Ed 2d 508 (1993). Quite simply, one forfeits a right by a failure to act or
assert the right whereas one waives a right by affirmatively acting in a way that acknowledges an
intent to give up the right. Our Supreme Court has followed suit in recognizing the distinction
and the effect that the categorization of an error has on appellate review.

        In Carter, 462 Mich at 215, our Supreme Court provided the same definitions of waiver
and forfeiture as those in Olano, supra, and further stated that “[o]ne who waives his rights under
a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error. Mere forfeiture, on the other hand, does not extinguish an ‘error.’ ”
(internal citations omitted). See also Vaughn, 491 Mich at 663 (“Both this Court and the
Supreme Court of the United States have distinguished the failure to assert a right—forfeiture—
from the affirmative waiver of a right”). The effect of the distinction is such that when an error
is waived, appellate review is generally precluded, whereas when an error is forfeited, the error is
reviewable on appeal for plain error affecting substantial rights. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).

        In this case, defense counsel posed no objection to T’s unsworn testimony at the
preliminary examination. That is, she remained silent and failed to assert a right. This is not a
case where counsel affirmatively expressed approval to proceed with the unsworn testimony.
The issue simply did not come up. Since counsel did not affirmatively express her approval, I
would find that the issue was not waived, but was instead forfeited. I would thus review
defendant’s forfeited nonconstitutional error (and forfeited constitutional error for that matter)
for plain error affecting his substantial rights. Carines, 460 Mich at 763. Reversal is warranted
on this basis when defendant can show prejudice, i.e., that “the plain, forfeited error resulted in
the conviction of an actually innocent defendant or when an error seriously affect[ed] the

                                                -5-
fairness, integrity or public reputation of judicial proceedings independent of the defendant's
innocence.” Id. at 763-764 (quotation omitted).

       The majority concludes that even under a plain error analysis, reversal is not warranted
because defendant has shown no prejudice. Again, I respectfully disagree.

        I find some guidance in the considerations set forth in Vaughn, 491 Mich at 667. In that
case, our Supreme Court undertook a plain error analysis with respect to a Sixth Amendment
violation of the right to a public trial. The Vaughn Court looked to federal decisions in
determining whether prejudice had been shown, particularly that of the Second Circuit, and
noted:

       The United States Court of Appeals for the Second Circuit has recognized that it
       does not follow that every temporary instance of unjustified exclusion of the
       public—no matter how brief or trivial, and no matter how inconsequential the
       proceedings that occurred during an unjustified closure—would require that a
       conviction be overturned. While the Second Circuit's analysis does not dismiss a
       defendant's claim on the grounds that the defendant was guilty anyway or that he
       did not suffer prejudice or specific injury, it examines whether the actions of the
       court and the effect that they had on the conduct of the trial deprived the
       defendant—whether otherwise innocent or guilty—of the protections conferred by
       the Sixth Amendment. The goals sought by these protections include (1) ensuring
       a fair trial, (2) reminding the prosecution and court of their responsibility to the
       accused and the importance of their functions, (3) encouraging witnesses to come
       forward, and (4) discouraging perjury. [quotations omitted]

I find that these goals equally applicable in this case and the relevant focus when determining if
prejudice occurred. Here, prejudice did occur.

        In her opening statement, the prosecutor told the jurors, “Now, normally in a case like
this the little seven-year-old would take the witness stand and testify. But the Judge has made a
ruling that [T] is unavailable for purposes of trial. So what you’re going to hear instead is a
transcript of testimony that was taken in August of 2014 at the Hamtramck District Court where
the child testified under oath and was asked questions by the prosecutor and by a defense
attorney.”

        Before having the preliminary examination read to the jury, the prosecutor asked the
judge to instruct the jury that T would have been sworn to tell the truth before he testified. The
trial court stated:

              Yes, I did say that. I think you all heard me say that he was sworn to
       tell—well, I don’t know that he was sworn, he was qualified—he’s seven years
       old so we don’t swear seven-year-olds. He was qualified to tell the truth. He was
       competent, they found that he was competent at that time to testify.

                                               ***



                                               -6-
       And he knew the difference–competent to testify means you know the difference
       between lying and telling [] the truth.

Thus, in this case, the jury was placed under the mistaken belief that T had either been placed
under oath or had been found qualified to testify prior to giving his preliminary examination
testimony. The jury was in fact, instructed by the trial judge himself, that “ they” (presumably
the prosecutor, defense counsel, and the district court) had found T to be competent--which he
clarified as knowing the difference between lying and telling the truth—“at that time to testify.”
Where a very young child was the only one to directly name defendant as the perpetrator but was
never questioned concerning whether his testimony at the preliminary examination was true nor
was it established that he knew to tell the truth, yet the jury was informed that T was found
competent to tell the truth, I believe that this error could have affected the integrity of the
proceedings and deprived defendant of a fair trial.

         In addition, defendant was charged in this matter with one count of criminal sexual
conduct in the first degree (CSC I), it being specifically alleged in the felony information that he
“did engage in sexual penetration to-wit; finger in anal opening with a child under 13 years of
age; contrary to MCL 750.520b(1)(a)” and one count of criminal sexual conduct in the second
degree (CSC II), it being alleged in the felony information that defendant “did engage in sexual
contact with a child under 13 years of age; contrary to MCL 750.520c(1)(a).” At the preliminary
examination, T testified, consistent with the charges, that defendant put his finger in T’s “butt”
and touched T’s genitals. At trial, T’s sister testified that T told her that defendant put his penis
in T’s “butt.” An examining doctor also testified that T told him that defendant put his penis in
T’s “butt.” The prosecutor thereafter moved to amend the information to have the CSC I count
read that the sexual penetration was either penis or finger into the anal opening. Neither T’s
sister, nor the doctor testified that the preliminary examination and defendant did not have a full
and fair opportunity to explore this alternate theory at preliminary examination because T did not
testify to the same. This ties in to both defendant’s Confrontation Clause violation argument and
his argument under MRE 804(b)(1), because it could be argued (as defendant does) that he did
not have a full and fair opportunity to cross-examine T regarding this second type of penetration
that the jury could have found to have served as the basis for his CSC I conviction. See Sardy,
Slip op at 4. For example, T testified at preliminary examination only that defendant had put his
finger in T’s anus. However, T’s sister and the examining doctor both testified at trial that T told
them that defendant had put his penis in his anus; neither said anything about a finger in T’s
anus. The jury, acting on the false belief that T had been found to be competent to testify
truthfully at the preliminary examination, could have found that defendant put only his finger in
T’s anus, and could have convicted defendant of CSC I based upon T’s preliminary examination
testimony only. While it is understood that credibility issues are generally left for the jury
(People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998)), in this instance, the jury was
unable to see T testify for himself and was further incorrectly told that T was found able to tell
the truth from a lie. It is impossible to determine whether the jury would have believed that
defendant was the perpetrator of abuse on T absent the preliminary examination testimony of T
and/or absent the improper assertion that T was found competent to testify as instructed by the
trial judge. I would thus find that reversal is warranted.




                                                -7-
                         INEFFECTIVE ASSISTANCE OF COUNSEL

        I also disagree with the majority’s conclusion that defense counsel was not ineffective to
object to the admission of T’s unsworn preliminary examination testimony. Whether a defendant
has been denied the effective assistance of counsel is a mixed question of law and fact. A judge
must first find the facts and then must decide whether those facts constitute a violation of the
defendant's constitutional right to effective assistance of counsel. People v Riley, 468 Mich 135,
139; 659 NW2d 611 (2003). To obtain a new trial based upon ineffective assistance of counsel,
a defendant must show that “(1) counsel's 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 have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012).

       Having a witness sworn before giving testimony is a basic rule of evidence. MRE 603.
Even if defense counsel had not seen the preliminary examination transcript prior to trial or was
not aware of its contents until then, the fact that T had not been administered an oath or
affirmation before his testimony, nor had he made any promise to tell the truth or established that
he knew to tell the truth, was quickly apparent when the preliminary examination testimony
began to be read into the record. An objection at that point would have brought the apparent
oversight to the trial court and to the prosecutor’s attention and may have precluded its
admission, which, in turn, could have affected the entire outcome of the trial.

       In short, reversal and a new trial are warranted.



                                                            /s/ Deborah A. Servitto




                                                -8-
