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