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
December 1, 2022
Plaintiff-Appellee,
v No. 353052
St. Clair Circuit Court
LANTZ HOWARD WASHINGTON, LC No. 19-002078-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
MARKEY, J. (dissenting).
I would affirm defendant’s jury-trial conviction of possession or use of body armor by a
violent felon, MCL 750.227g. Accordingly, I respectfully dissent.
I. FACTUAL BACKGROUND
Defendant crossed the Blue Water Bridge from Port Huron, Michigan, into Canada without
paying the required toll. The toll booth agent on duty at the time saw red clothing in the cabin of
defendant’s vehicle, which was a Ford pickup truck. While the gate was still open at the toll station
for a van directly in front of defendant’s truck, defendant raced forward and proceeded through
the open gate. The toll booth agent immediately contacted her supervisor and reported the incident.
Several Canadian authorities quickly pursued defendant’s truck. Officer Matt Lavers of
the Canada Border Services Agency stopped and apprehended defendant. Officer Lavers observed
and reported that defendant was wearing body armor in the form of a bulletproof vest under a red
shirt. Officer Lavers then returned defendant to the American side of the bridge.
Officer Lavers turned defendant, his truck, and the bulletproof vest over to United States
Customs and Border Protection Officer Paul Stockwell. Officer Lavers did not testify at trial. The
focus of this appeal is on the following testimony by Officer Stockwell regarding his interactions
with Officer Lavers:
[The Prosecutor]: At some point did Officer Lavers from the Canadian
services hand you any other evidence?
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Officer Stockwell: Yes, he did.
[The Prosecutor]: What did he hand you?
* * *
Officer Stockwell: A body armor.
* * *
[The Prosecutor]: Now, without saying anything about what was said,
the only question I have for you is were there
communications between you and Officer Lavers?
Officer Stockwell: There were.
[The Prosecutor]: Okay. And . . . based on those communications you
took custody of [defendant]?
Officer Stockwell: Yes, we did.
[The Prosecutor]: And you took possession of the body armor that was
turned over at the same time?
Officer Stockwell: Yes, sir.
On cross-examination, Officer Stockwell acknowledged that defendant was not wearing the
bulletproof vest when he took custody of defendant, that he never saw defendant wearing the body
armor, that he did not witness the bulletproof vest being removed from defendant’s person or
possession, and that he had no direct personal knowledge that defendant had ever worn or
possessed the vest.
Officer Stockwell transferred custody of defendant to Port Huron Police Officer Kyle
Whitten. Officer Whitten then took defendant to the St. Clair County Jail. Officer Whitten
testified that while at the jail, he “overheard the Defendant say that he was wearing the body armor
because he was afraid people were going to kill him.” Officer Whitten stated that he did not
interview or interrogate defendant. Like Officer Stockwell, Officer Whitten conceded on cross-
examination that he did not have any personal knowledge that defendant had worn or possessed
the body armor.
Port Huron Police Officer Ernesto Fantin testified about a jailhouse recording of a phone
call from defendant to his mother in which defendant confessed that “James” had given him the
bulletproof vest and that he was wearing it when stopped by police because people were
threatening his life. The trial transcript contains a verbatim reproduction of the phone
conversation. Defendant took the stand in his own defense, and he testified that he did not make
the statement attributed to him by Officer Whitten. Defendant otherwise indicated that he could
not recall or remember whether he possessed or wore the bulletproof vest.
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Defendant was charged with one count of possession or use of body armor by a violent
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felon and one count of operating a vehicle with a suspended license, second offense, MCL
257.904. A nolle prosequi was entered with respect to the suspended-license charge. On the
morning of the jury trial, defendant moved in limine to exclude evidence of the recorded jail phone
call and evidence of the bulletproof vest. With respect to the bulletproof vest, defense counsel
maintained that the only way the prosecution could establish an evidentiary foundation or the
chain-of-custody relative to the bulletproof vest was through testimony that would violate the
Confrontation Clause because Officer Lavers would not be testifying. The trial court denied the
motion, but it precluded the prosecutor from eliciting testimony about any statements made by
Officer Lavers, which, as indicated earlier, the prosecutor honored when examining Officer
Stockwell. The jury found defendant guilty of possession or use of body armor by a violent felon.
The trial court sentenced defendant to a year in jail. The court denied defendant’s motion to vacate
his conviction or grant a new trial. This appeal followed.
II. ANALYSIS
A. DEFENDANT’S APPELLATE ARGUMENTS
Defendant argues that the prosecution violated his Sixth Amendment confrontation rights
when it introduced implied testimonial hearsay statements by Officer Lavers through the testimony
of Officer Stockwell. Defendant contends that the plain inference arising from Officer Stockwell’s
testimony was that Officer Lavers had informed Officer Stockwell that defendant was caught in
possession of or using the body armor. Defendant argues that the implied hearsay was offered for
the truth of the matter asserted, that defendant had no opportunity to cross-examine Officer Lavers
at a prior hearing, that the prosecution cannot demonstrate that the Confrontation Clause violation
was harmless beyond a reasonable doubt, and that to the extent that defense counsel failed to
properly preserve the issue, his performance was deficient and prejudicial. With regard to his
analysis of why the purported error was not harmless, defendant maintains that without the
challenged testimony implicitly showing that defendant had worn or possessed the bulletproof
vest, the only evidence demonstrating that defendant did so were his confessions in front of Officer
Whitten and to his mother, which would not suffice for conviction under the corpus delicti rule.
B. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision to admit evidence. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). “When the decision regarding the admission
of evidence involves a preliminary question of law, such as whether a statute or rule of evidence
precludes admissibility of the evidence, the issue is reviewed de novo.” People v Washington, 468
Mich 667, 670-671; 664 NW2d 203 (2003). And this Court reviews de novo the issue whether a
defendant was denied his or her constitutional right to confront a complaining witness. People v
Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).
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There was no dispute that defendant was properly characterized as a “violent felon” for purposes
of the charged offense. A stipulation was entered recognizing defendant as a violent felon, and
the jury was so instructed.
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C. CONFRONTATION CLAUSE PRINCIPLES
Under the United States Constitution, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him[.]” US Const, Am VI.
Similarly, under the Michigan Constitution, “[i]n every criminal prosecution, the accused shall
have the right . . . to be confronted with the witnesses against him or her[.]” Const 1963, art 1, §
20. The Confrontation Clause bars the admission of out-of-court testimonial statements unless the
declarant was unavailable to testify at trial and the defendant had a prior opportunity for cross-
examination. Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004);
People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007). “[T]he Confrontation Clause
does not bar the use of out-of-court testimonial statements for purposes other than establishing the
truth of the matter asserted.” Chambers, 277 Mich App at 10-11. In People v Nunley, 491 Mich
686, 697-698; 821 NW2d 642 (2012), our Supreme Court explained:
The Confrontation Clause is “primarily a functional right” in which the right
to confront and cross-examine witnesses is aimed at truth-seeking and promoting
reliability in criminal trials. Functioning in this manner, the principal evil at which
the Confrontation Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations as evidence against the
accused.
The specific protections the Confrontation Clause provides apply only to
statements used as substantive evidence. In particular, one of the core protections
of the Confrontation Clause concerns hearsay evidence that is “testimonial” in
nature. The United States Supreme Court has held that the introduction of out-of-
court testimonial statements violates the Confrontation Clause; thus, out-of-court
testimonial statements are inadmissible unless the declarant appears at trial or the
defendant has had a previous opportunity to cross-examine the declarant.
[Quotation marks and citation omitted.]
A statement is testimonial in nature when it was produced with the primary purpose of
establishing or proving past events that were potentially relevant to a later criminal prosecution.
Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Statements made
by witnesses during interrogations by law enforcement officers are generally testimonial in nature
because they are directed at establishing the facts of a past event in order to identify or provide
evidence to convict the perpetrator. Id. at 826. A statement is testimonial in nature when made
under circumstances that would lead an objective witness to reasonably believe that the statement
would be available for later use at trial. Crawford, 541 US at 52.
D. DISCUSSION
In People v Jones, 228 Mich App 191, 207; 579 NW2d 82 (1998), this Court addressed the
issue of “implied assertions” and observed:
While a number of decisions over the years have regarded “implied”
assertions as hearsay, we believe that the theory had a questionable origin, that it
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has never achieved general recognition in decided cases, that it is expressly negated
by the modern rules of evidence, and that it is contrary to Michigan precedent.
After an exhaustive review of federal and Michigan caselaw, the Jones panel concluded its
opinion by stating that “under the rule definition of hearsay, an ‘implied assertion’ is a
contradiction in terms and a euphemism for declining to apply the rules as they are written.” Id.
at 225-226. Indeed, the rules of evidence make clear that “hearsay” refers to a “statement,” MRE
801(c), in the form of “an oral or written assertion,” MRE 801(a). This Court recently reaffirmed
that “Michigan does not recognize the ‘implied assertion’ theory that has been adopted in some
other jurisdictions.” People v Propp (On Remand), ___ Mich App ___, ___; ___ NW2d ___
(2022) (Docket No. 343255); slip op at 8. In my view, we are bound by this precedent under MCR
7.215(J)(1) even if the federal cases the majority cites are viewed as being persuasive.
Proceeding on the assumption that the prosecutor effectively introduced an oral statement
by Officer Lavers that potentially triggered protection under the Confrontation Clause, I cannot
conclude that the assertion was “testimonial in nature.” Consequently, there was no confrontation
infringement. If the implication or implied statement was that defendant had possessed or used
the bulletproof vest, the statement was not produced at the time it was made for the primary
purpose to establish or prove past events and to use it as evidence in a criminal prosecution in an
effort to convict defendant at a later trial. Davis, 547 US at 822, 826. Rather, the purpose of the
communication was simply to provide Officer Stockwell with the information necessary for
Officer Stockwell to formally take defendant into custody from Canadian authorities and proceed
with the charging process under Michigan law. The implied statement explained Officer
Stockwell’s actions and his involvement in the case, including taking control of the bulletproof
vest.
Finally, even if Officer Stockwell’s challenged testimony should not have been admitted,
the Confrontation Clause violation or error was harmless beyond a reasonable doubt given the
evidence of defendant’s admissions that he was wearing the body armor. See People v Shepherd,
472 Mich 343, 348; 697 NW2d 144 (2005) (applying the harmless-beyond-a-reasonable-doubt
standard to a Confrontation Clause error). The majority relies on the corpus delicti rule to conclude
that the prosecution fails to demonstrate that any error was harmless beyond a reasonable doubt.
“[T]he corpus delicti of a crime must be established by evidence independent of an accused’s
confession[,]” but “[t]his rule is limited . . . to admissions which are confessions, and not to
admissions of fact which do not amount to confessions of guilt.” People v Rockwell, 188 Mich
App 405, 407; 470 NW2d 673 (1991). I would hold that defendant’s statements that he put on the
bulletproof vest constituted admissions of fact, but they did not amount to confessions of guilt to
the charged crime.
In People v Porter, 269 Mich 284, 290; 257 NW 705 (1934), our Supreme Court discussed
the differences between true confessions of guilt, which can implicate the corpus delicti rule, and
mere admissions of fact that do not implicate the rule:
Defendant does not distinguish between confessions and admissions of fact.
If the fact admitted necessarily amounts to a confession of guilt, it is a confession.
If, however, the fact admitted does not of itself show guilt, but needs proof of other
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facts, which are not admitted by the accused, in order to show guilt, it is not a
confession, but an admission, and, therefore, is not within the range of cases cited.
A confession involves a direct acknowledgment of guilt or an acknowledgment of the truth
of the crime for which a defendant has been charged, as distinguished from acts, admissions, and
exculpatory statements. Id. An oral admission of an inculpatory fact from which a juror may infer
guilt is not a confession if it falls short of being an acknowledgment of guilt. Id. at 291. And the
admission to one of the essential elements of a criminal offense, but not all of the elements, does
not constitute a confession. Id. A mere admission, which needs other facts to support a conviction,
is not a confession and is admissible on the corpus delicti. Id.; see also People v Schumacher, 276
Mich App 165, 181; 740 NW2d 534 (2007) (if a defendant does not admit facts that are necessary
to establish guilt, there is no confession).
I cannot conclude that defendant’s admission to his mother and his admission overheard
by Officer Whitten constituted direct acknowledgements of guilt to the offense of possession or
use of body armor by a violent felon. I first note that with respect to the essential element of being
a violent felon, defendant’s statements did not reveal a concession or admission that he was a
violent felon. See MCL 750.227g. Regardless, it is clear that defendant’s statements were not
intended to be confessions to the charged offense. Rather, defendant’s statements plainly reflected
expressions of or attempts at exculpation, at least in his mind. Although he admitted wearing the
bulletproof vest, he claimed that he did so out of fear for his life based on death threats.
Defendant’s statements indicated that he was simply trying to protect or defend himself and acting
out of duress and fear. These were not confessions of guilt to a crime.
In Smith v United States, 348 US 147, 152-153; 75 S Ct 194; 99 L Ed 192 (1954), the
United States Supreme Court addressed the corpus delicti rule and its purposes, observing as
follows:
The general rule that an accused may not be convicted on his own
uncorroborated confession has previously been recognized by this Court, and has
been consistently applied in the lower federal courts and in the overwhelming
majority of state courts. Its purpose is to prevent errors in convictions based upon
untrue confessions alone; its foundation lies in a long history of judicial experience
with confessions and in the realization that sound law enforcement requires police
investigations which extend beyond the words of the accused. Confessions may be
unreliable because they are coerced or induced, and although separate doctrines
exclude involuntary confessions from consideration by the jury, further caution is
warranted because the accused may be unable to establish the involuntary nature of
his statements. Moreover, though a statement may not be involuntary within the
meaning of this exclusionary rule, still its reliability may be suspect if it is extracted
from one who is under the pressure of a police investigation—whose words may
reflect the strain and confusion attending his predicament rather than a clear
reflection of his past. Finally, the experience of the courts, the police and the
medical profession recounts a number of false confessions voluntarily made.
[Citations and quotation marks omitted.]
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In this case, defendant’s statements were not made to the police during interrogation, did
not appear to be involuntary or made as a result of coercion, inducement, strain, or confusion, and
were made under circumstances suggesting that they were true. Again, defendant here was giving
perceived excuses for his conduct, and the statements were made to his mother on the phone and
simply overheard in the other circumstance. I see no reason to invoke the corpus delicti rule to
bar consideration of the admissions and reverse the conviction considering the purposes of the
rule. And if the admissions were admissible and subject to consideration by the jury, the presumed
error in admitting Officer Stockwell’s testimony about Officer Lavers’ implied assertions was
most certainly harmless beyond a reasonable doubt.
In sum, I would affirm defendant’s jury-trial conviction of possession or use of body armor
by a violent felon. Accordingly, I dissent.
/s/ Jane E. Markey
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