In June 2011, three-year-old “RS” told her parents that Stanley Duncan had sexually abused her multiple times at a daycare run by his wife, Vita Duncan. The child also said that she told Vita Duncan about the abuse. Another child at the daycare described similar sex abuse acts by Stanley Duncan.
Stanley Duncan was charged with five counts of first-degree criminal sexual conduct, MCL 750.520b(2)(b), and four counts of second-degree criminal sexual conduct, MCL 750.520c(2)(b), involving multiple victims under the age of 13. Vita Duncan was charged with aiding and abetting two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct; she was also charged with running an unlicensed daycare, MCL 722.125(1)(b), a misdemeanor.
RS testified at separate preliminary examinations in the cases against the Duncans. On both occasions, the district court judge questioned RS about whether she understood what it meant to tell the truth. At Stanley Duncan’s preliminary examination, his attorney cross-examined RS about the alleged abuse; Vita Duncan’s attorney did the same at her hearing. The district court judge found RS competent to testify and bound the Duncans over for a joint trial, which began on September 26, 2012.
But at the trial, under questioning by the circuit judge, RS responded “No” when asked if she knew what the truth is and what a lie is. She said she could not tell the judge something that was true; when the judge asked RS what she would say if he told her that her pink nail polish was purple, she answered, “I don’t know.” The judge then ended the questioning, stating that RS was not competent to testify. Under Michigan Rule of Evidence 601, the general rule is that “every person is competent to be a witness” – unless “the court finds after questioning … that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably.”
The prosecution did not challenge the judge’s ruling about RS’s competence, but instead argued that the Court should allow her preliminary examination testimony into evidence on the basis that RS was “unavailable” under MRE 804(a). But the judge held that none of the 804(a) grounds for “unavailability” – privilege, refusal to testify, lack of memory, inability to be present or testify, or absence – applied in RS’s situation. The judge ruled that RS could not testify; moreover, because RS was not allowed to testify, her parents could not testify as to what RS told them about the abuse, the judge held.
The prosecutor appealed; while the appeal was pending, the Court of Appeals directed the trial judge to provide a written opinion explaining the ruling. In an October 5, 2012 opinion, the circuit judge ruled that RS was not unavailable under MRE 804(a)(4) because she was “not dead, she’s not physically or mentally ill and she’s not infirm,” yet RS was unable to “answer the most basic questions in front of the jury.”
In orders dated October 8, 2012, the Court of Appeals denied the prosecutor’s application for leave to appeal, but ultimately, at the Supreme Court’s direction, the Court of Appeals heard the appeal.
In an unpublished per curiam opinion, the Court of Appeals upheld the circuit judge’s ruling. Two judges signed the opinion, with the third judge concurring in the result.
“The prosecution primarily argues that the complainant was unavailable pursuant to MRE 804(a)(4), as she is properly described as having a mental illness or infirmity,” the appellate panel said. “We cannot agree.”
MRE 804(a) provides that “‘Unavailability as a witness’ includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so; or
(3) has a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance … by process or other reasonable means, and in
a criminal case, due diligence is shown.”
Under MRE 804(b)(1), a witness’s previous testimony may be admitted into evidence if the witness is unavailable under MRE 804(a) and “if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,” the Court of Appeals explained.
The trial court’s finding that RS was “incompetent” to testify does not mean that she was also “unavailable,” the appellate panel reasoned. “MRE 804(a)(4) does not address mental capacity or sense of obligation, it addresses mental illness or infirmity,” the Court of Appeals said. “The prosecution in this case has presented no evidence that the complainant suffers from an ascertainable mental illness or infirmity. Rather, it appears that this young child was simply unable to provide the trial court with assurances that she understood the concept of truth and was capable and willing to testify truthfully. Absent those assurances, the trial court was unable to conclude that the proposed witness met the legal requirements of MRE 601.”
The Court of Appeals also rejected the prosecution’s argument that MRE 804(a) was not intended to provide an exhaustive list of circumstances under which a witness can be declared unavailable. “More importantly, even if the list included in MRE 804(a) is not intended to be exhaustive, the prosecution cannot show that the trial court erred. … The prosecution presented this trial court judge with no binding authority that would have supported a finding of unavailability.”
Because it had already determined that RS was not “unavailable” for purposes of MRE 804(a), the panel said it did not need to determine whether admitting RS’s preliminary examination testimony would have violated the Duncans’ Confrontation Clause rights under the U.S. Supreme Court’s ruling in Crawford v Washington, 541 US 36 (2004).
The Court of Appeals added, “However, like the trial court, we note that defense counsel did not have the benefit of discovery at the time of the pretrial examination, which is certainly relevant in determining whether counsel had a genuine opportunity and motive to cross-examine this complainant. We are cognizant that testimony was introduced about both defendants at the separate examinations. The counsel at each examination owed no duty to the other co-defendant and, therefore, while each counsel had an opportunity to examine, the motives were very different. It is also noteworthy that counsel in one preliminary examination was discouraged from a more probing cross-examination.”
The concurring judge said he agreed with the result, but added, “we need not consider Crawford v Washington … in reaching our decision. Our Supreme Court has long held that courts should not grapple with finding a constitutional question when the case can be decided on other grounds. … [A]nalysis of the constitutional implications of Crawford is not necessary for the disposition of this matter.”
The prosecution appealed, and, in an order dated January 24, 2013, the Supreme Court granted leave to appeal, “limited to the issue whether the witness was ‘unavailable’ for the purposes of MRE 804(a).” The Court added, “Pursuant to MCR 7.302(H)(1), we VACATE as dicta those portions of the Court of Appeals judgment and the Macomb Circuit Court’s October 5, 2012 opinion discussing whether the admission of the complainant’s preliminary examination testimony would violate the defendants’ Confrontation Clause rights pursuant to Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).”