            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.




                                               -1-
        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).


                                                -2-
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.



                                                -3-
        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.”).




                                                -4-
              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

                                                -5-
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).


                                                -6-
         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.


                                                  -7-
        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.



                                                 -8-
              (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

                                                -9-
(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




                                             -10-
