In People v Nunley, __ Mich App __ (#302181, 10/13/2011) defendant was charged with DWLS and challenged the certificate of mailing by the Secretary of State as being testimonial. The Court of Appeals held that even if the certificate of mailing was prepared in the regular course of the Secretary of State’s business, the certificate of mailing is testimonial because it will be used for the purpose of proving or establishing some fact at trial.
The Confrontation Clause of the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with all witnesses against him . . . .” US Const, Am VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; Dinardo, ___ Mich App at ___. Testimonial statements of witnesses absent from trial are admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v Bryant, ___ US ___ (2011); Crawford v Washington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Ordinarily, whether a statement is testimonial depends on whether it constitutes a “‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at 51 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’” Dinardo, ___ Mich App at ___, quoting People v Lewis (On Remand), 287 Mich App 356 (2010), quoting Davis v Washington, 547 US 813, 822 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v Garland, 286 Mich App 1 (2009), citing Crawford, 541 US at 68.
In Melendez-Diaz v Massachusetts, ___ US ___; 129 S Ct 2527 (2009) the United States Supreme Court held that the “certificates of analysis” including forensic analysis results for seized controlled substances constituted testimonial statements barred by the Confrontation Clause. Melendez-Diaz, 129 S Ct at 2531-2532. The Melendez-Diaz Court observed that the “certificates” were made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at trial and that under Massachusetts law their sole purpose was to provide prima facie evidence regarding the analyzed substance. Id., quoting Crawford, 541 US at 52 and Mass Gen Laws, ch 111, § 13. The Court concluded that the analysts who created the “certificates” were witnesses for purposes of the Confrontation Clause and defendants had the right to be “confronted” by them at trial, absent a showing that the analyst was unavailable to testify and defendant had a prior opportunity for cross examination.
In order to convict defendant of DWLS, the prosecutor must prove that defendant’s license had been suspended and that he has been notified of the suspension as provided in MCL 257.212. Like the lab analyst report at issue in Melendez-Diaz, the certificate of mailing here is offered to prove a fact in question. Melendez-Diaz, 129 S Ct at 2532, quoting Crawford, 541 US at 51. Indeed, the certificate of mailing here is offered to prove an element of the offense—proof of the notification required by the plain language of MCL 257.904(1). Furthermore, in light of the fact that notification is an element of the offense, certainly the certificate of mailing was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id., quoting Crawford, 541 US at 52. The Secretary of State representative who created the “certificate” was a witness for purposes of the Confrontation Clause and defendant had the right to be “confronted” by him at trial, absent a showing that he was unavailable to testify and defendant had a prior opportunity for cross examination.