Admission of a victim’s verified statements in support of a personal protection order (PPO) petition; Right of confrontation; Whether the statements were testimonial; People v Washington; The primary-purpose test; Ohio v Clark; Smith v Arizona; Hearsay; Whether the victim’s statements to others were admissible under MRE 803(3); People v Propp (Propp II)

On remand from the Supreme Court for reconsideration in light of Washington and Propp II, the court held that the trial court did not commit constitutional or evidentiary error in admitting the decedent victim’s (Rory) verified statements in support of a PPO petition and his hearsay statements. Defendant was convicted of first-degree felony murder and felony-firearm. In its prior opinion, the court affirmed. The Supreme Court entered an order vacating the part of the court’s opinion that addressed whether the trial court erred in admitting Rory’s statements, and remanded for the court “to reconsider (1) whether Rory’s verified statements in support of the PPO petition were testimonial in light of Washington, and (2) whether Rory’s statements to” three witnesses “were admissible under MRE 803(3) in light of Propp II.” The court first concluded that because “an ongoing emergency existed when Rory made his verified statements in support of the PPO petition, the primary-purpose test applies and” it did not have to “decide whether Washington correctly confined that test to statements made during ongoing emergencies.” Further, assuming that the Washington standard for determining whether a statement is testimonial “applies outside the context of an ongoing emergency,” the court determined “that Rory’s verified statements in support of the PPO petition were not testimonial.” The Michigan Supreme Court held that the statement at issue in Washington was testimonial “because it was made by one law-enforcement officer to another while transferring custody of the defendant after having arrested him for engaging in criminal activity.” There was no law-enforcement officer involvement in the statement “here. Rather, Rory wrote a verified addendum to a family court in an effort to obtain a PPO.” The court concluded that under the “circumstances, there was no reasonable basis to believe Rory’s verified statements in support of the PPO petition would be available for use at a later trial.” As to the admissibility of the hearsay statements, “consideration of the nature of each of Rory’s statements and the purpose for their admission supports the conclusion that [they] were admissible under MRE 803(3).” The court added that, even if the trial court abused its discretion by admitting any of them, reversal was unwarranted given the overwhelming other evidence of defendant’s guilt. Affirmed.