Hearsay; The business records exception (MRE 803(6)); People v. McDaniel; Certification; MRE 902(11); The Confrontation Clause; Crawford v. Washington; People v. Dendel; Davis v. Washington; Whether evidentiary issues were waived or forfeited; People v. Carter; Anonymous jury claim; People v. Hanks; People v. Williams; Claim that the imposition of court costs constituted an unconstitutional tax; People v. Cameron

The court held that the challenged credit card company records were admissible as certified records of a regularly conducted activity under MRE 803(6), and rejected defendant’s Confrontation Clause argument. In light of Williams, it also rejected her anonymous jury claim, and her contention that the imposition of court costs constituted an unconstitutional tax failed under Cameron. Thus, the court affirmed her convictions of stealing, removing, retaining, or secreting another’s financial transaction device without consent, as well as her sentence to nine months in jail and two years’ probation. The case arose from fraudulent charges made on the victim’s Discover card account. Defendant argued that “her right to due process was violated because Discover’s ‘account memos’ were hearsay not within the business records exception, and her right to confrontation was violated because she did not have the opportunity to cross-examine the Discover representatives who wrote” them. The prosecution introduced the records at the start of the testimony of Discover’s regional investigator, S, who testified that the custodian of the records (M) had certified them. M swore in an affidavit, among other things, that she was Discover’s custodian and “that the records were retrieved in response to a subpoena for ‘any and all records’ of the victim’s account[.]” The court concluded that it was irrelevant that S “was not a ‘custodian or other qualified witness’ because the requirements of MRE 803(6)” were satisfied by M’s affidavit. As to defendant’s argument that M’s “‘method or circumstances of preparation indicate a lack of trustworthiness’ under MRE 803(6) because she ‘prepared’ the records in response to a subpoena[,]” the court noted that “prepared” in the context of MRE 803(6) “plainly refers to when records are ‘made,’ not when they are retrieved by the custodian. [S] testified that Discover keeps records to serve its customers and to resolve financial disputes between Discover, its clients, and vendors. The employees wrote the account memorandums to conduct Discover’s business, not to convict or exonerate defendant in this case.” The court added that, even if error was presumed, she did not show prejudice.