People of Michigan v. Ghassan Salim Sardy, 319227

Background

Defendant Ghassan Sardy was convicted by jury of child sexually abusive activity (CSAA), using a computer to commit a crime, and two counts of second-degree criminal sexual conduct (CSC II) based largely on: two videos filmed by defendant (depicting the victim masturbating) and the victim’s preliminary-examination testimony alleging two instances of clothed contact (CSC II).
The trial court admitted the victim’s preliminary-examination testimony at trial as substantive evidence after finding the victim “unavailable” because she testified at trial she could not recall the CSC II incidents.
At trial the court permitted limited cross-examination of the victim confined to matters covered on direct, preventing inquiry into her claimed memory loss and the alleged CSC II incidents.
On initial appeal this Court affirmed convictions and remanded for a Crosby/Lockridge sentencing proceeding; the Michigan Supreme Court vacated part of that opinion and remanded for reconsideration whether the victim was constitutionally “unavailable” and whether restricting cross-examination violated the Confrontation Clause.
On remand the Court held the victim was constitutionally available despite MRE 804(a)(3) memory-unavailability, and found the trial court violated defendant’s Confrontation Clause rights by barring cross-examination about the victim’s memory loss and the CSC II allegations—requiring vacatur of the two CSC II convictions but affirming the CSAA and computer-crime convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the victim was "unavailable" under the Confrontation Clause so her prior testimony could be admitted	Victim lacked memory at trial, so prior testimony was admissible as witness unavailable	Victim was present and thus constitutionally available; prior testimony admission violated Confrontation Clause	Victim was constitutionally available despite claiming memory loss; prior testimony use required effective opportunity for cross-examination at trial
Whether limiting cross-examination of the victim about her memory loss and CSC II claims violated the Confrontation Clause	Limitation was reasonable; prior cross-examination at preliminary exam sufficed	Limiting cross-examination deprived defendant of opportunity to challenge current memory and allegations	Trial court erred; barring inquiry into memory and alleged CSC II conduct violated Confrontation Clause and was not harmless for CSC II counts
Whether Crawford/Owens permit admission of prior statements when witness testifies but has no memory	Prior statements may be used if witness appears and can be cross-examined about them	A witness with memory loss is still "available" and must be subject to meaningful cross-examination at trial	Under Crawford and Owens, presence at trial with opportunity to cross-examine means constitutional availability; memory loss alone does not render witness unavailable
Effect on remaining convictions and sentencing	Video evidence and other testimony independently support CSAA and computer-crime convictions; any Confrontation error harmless as to those counts	Cross-examination limits impacted CSC II only; CSAA convictions should stand	CSAA and computer-crime convictions affirmed; two CSC II convictions vacated; remand for resentencing under Lockridge advisory-guideline principles

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial hearsay unless declarant unavailable and defendant had prior opportunity for cross-examination)
United States v. Owens, 484 U.S. 554 (1988) (witness who testifies but claims memory loss is constitutionally "available"; Confrontation Clause guarantees opportunity for cross-examination, not its success)
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (trial court has latitude to limit cross-examination, but limits that infringe Confrontation Clause require reversal unless harmless)
People v. Lockridge, 498 Mich. 358 (2015) (sentencing guidance requiring advisory guidelines in light of mandatory-minimum scheme)
People v. Shepherd, 472 Mich. 343 (2005) (harmless-error standard for constitutional trial errors)