Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
___________________________________________________________________________________________________________________________
FILED NOVEMBER 4, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 122922
PAUL E. McDANIEL,
Defendant-Appellant.
________________________________
PER CURIAM
This case requires us to determine whether a police
laboratory report is admissible, notwithstanding that it is
hearsay, to prove the identity of a seized substance. The
Court of Appeals held that the report was admissible under
the public records exception to the hearsay rule, MRE
803(8), and affirmed defendant’s conviction on one count of
delivery of less than fifty grams of heroin, MCL
333.7401(2)(a)(iv).1 We reverse the judgment of the Court
1
Unpublished opinion per curiam, issued December 3,
2002 (Docket No. 234028).
of Appeals, vacate defendant’s conviction, and remand the
case to the trial court for further proceedings.
I
Defendant was charged with selling a packet of heroin
to an undercover police officer. The contents of the
packet were analyzed by a chemist who was a police officer
and who prepared a report indicating that the packet
contained heroin. However, at trial, the chemist who
performed the analysis did not testify because he had
retired. In his place, the prosecution presented Steven
Gyure, a police department chemist who had worked in the
department's laboratory for thirty-one years. He had no
personal knowledge of what occurred during the test of the
contents of the packet. Gyure’s testimony, over defense
counsel’s objection, was that there had never been a
misidentification of a substance during his years working
for the department. The court found the foundation
sufficient and admitted the report into evidence under MRE
803(8).
A jury convicted defendant as charged. His only issue
on appeal was that, in the absence of the testimony of the
chemist who conducted the analysis, the report constituted
hearsay and was inadmissible under MRE 802. The
2
prosecution argued that the evidence was admissible under
MRE 803(6) and (8), the business records and public records
exceptions to the hearsay rule.2 In a divided decision, the
Court of Appeals affirmed on the basis that the report was
2
Those exceptions read as follows:
The following are not excluded by the
hearsay rule, even though the declarant is
available as a witness:
* * *
(6) Records of Regularly Conducted Activity. A
memorandum, report, record, or data compilation, in
any form, of acts, transactions, occurrences, events,
conditions, opinions, or diagnoses, made at or near
the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was
the regular practice of that business activity to make
the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or
other qualified witness, or by certification that
complies with a rule promulgated by the supreme court
or a statute permitting certification, unless the
source of information or the method or circumstances
of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes
business, institution, association, profession,
occupation, and calling of every kind, whether or not
conducted for profit.
* * *
(8) Public Records and Reports. Records, reports,
statements, or data compilations, in any form, of
public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding,
however, in criminal cases matters observed by police
officers and other law enforcement personnel, and
subject to the limitations of MCL 257.264; MSA 9.2324.
3
admissible as a public record under MRE 803(8). The Court
declined to rule on the report’s admissibility under MRE
803(6). The defendant has sought leave to appeal.
II
The decision whether to admit evidence is within the
trial court’s discretion and will not be disturbed absent
an abuse of that discretion. However, where, as here, the
decision involves a preliminary question of law, which is
whether a rule of evidence precludes admissibility, the
question is reviewed de novo. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999).
III
The laboratory report at issue is, without question,
hearsay. MRE 801(c).3 As such, pursuant to MRE 802, it is
not admissible unless it fits within at least one category
of the allowable exceptions outlined in MRE 803 and 804.
Admissibility was sought under MRE 803(8), which states
that even though violative of hearsay rules, public records
of “matters observed pursuant to duty imposed by law” are
admissible, but that reports containing matters observed by
police officers in criminal cases are not.4
3
“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.”
4
We note that hearsay that is admissible under MRE 803
4
MRE 803(8) has been construed by the Court of Appeals
in People v Stacy, 193 Mich App 19; 484 NW2d 675 (1992).
There, following the interpretation of the federal
counterpart to our rule, FRE 803(8), the Stacy Court held
that the exclusion of hearsay observations by police
officers was intended to apply only to observations made at
the scene of the crime or while investigating a crime. The
import of that holding is that MRE 803(8) allows admission
of routine police reports, even though they are hearsay, if
those reports are made in a setting that is not adversarial
to the defendant. We do not deal with such a situation
here. The report at issue, prepared by a police officer,
was adversarial. It was destined to establish the identity
of the substance—an element of the crime for which
defendant was charged under MCL 333.7401. People v Mass,
464 Mich 615, 625-626; 628 NW2d 540 (2001). Thus, the
Court of Appeals erred in applying Stacy. Because the
report helped establish an element of the crime by use of
hearsay observations made by police officers investigating
the crime, the report cannot be admitted under MRE 803(8).
Further, the error cannot be harmless because this was the
does not depend on the unavailability of the declarant.
Thus, whether the chemist was available to testify is
irrelevant to our analysis.
5
only evidence that established an element of the crime for
which defendant was charged.
Defendant argues, also, that the laboratory report
could not have been admitted under MRE 803(6), the business
records exception. Although the Court of Appeals did not
address that issue because it found the report admissible
under MRE 803(8), we find that a remand for consideration
of it is unnecessary. The hearsay exception in MRE 803(6)
is based on the inherent trustworthiness of business
records. That trustworthiness is undermined when the
records are prepared in anticipation of litigation. Palmer
v Hoffman, 318 US 109, 113-114; 63 S Ct 477; 87 L Ed 2d 645
(1943); Solomon v Shuell, 435 Mich 104, 120-121, 130, 132;
457 NW2d 669 (1990). Hence, the police laboratory report
is inadmissible hearsay because “the source of information
or the method or circumstances of preparation indicate lack
of trustworthiness.” MRE 803(6).
Accordingly, we reverse the judgment of the Court of
Appeals, vacate defendant’s conviction, and remand to the
trial court for proceedings consistent with this opinion.
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
6