People v. Fackelman

515 PEOPLE v FACKELMAN 2). (Calendar 4, Decided Argued No. November 139856. Docket No. 28, July 2011. mentally guilty ill of home but found Fackelman was Charles assault, possession of a invasion, and of felonious two counts jury felony by a in the during of a the commission firearm Costello, Jr., charges Court, Joseph J. The A. Monroe Circuit Randy Krell, defendant had with from an altercation resulted teenage responsible death his for the man he believed was high incident, engaged road-rage Krell in a in which in a son car in which the fatal crash of the speed chase that caused six passenger. Krell was sentenced to a defendant’s son was actions, apolo- jail probation his and never months only trial was gized The issue at defendant’s to defendant. legally the altercation with at the time of he was insane whether was, expert opined that he and the witness Krell. Defendant’s opined The expert that he was not. prosecution’s witness diagnoses differing on whether defendant was experts’ focused During psychosis altercation. suffering at the time of the from nontestifying trial, by psychiatrist, Dr. report prepared Shahid, shortly after the alter- Agha who evaluated although cation, was repeatedly the document referred jury into evidence. The nor introduced neither authenticated suffering diagnosed from had defendant as was told that Shahid appealed major depression psychosis. Defendant without Appeals for an eviden- and moved in the Court convictions tiary hearing concerning of ineffective assistance his claim Following granted Appeals the motion. counsel. The Court of hearing, evidentiary denied defendant’s the circuit court CAVANAGH, EJ., Appeals, a new trial. The Court of motion for Mabkey Davis, JJ., unpublished opinion per in an affirmed 284512). (Docket curiam, August No. issued application for leave to Supreme granted defendant’s Court psychiatric the contents of the appeal consider whether nature, the introduction report whether were testimonial Mich 515 opinion regarding Shahid’s defendant’s mental consti- state impermissible hearsay, any tuted and whether error was harm- (2010). less. 486 Mich 907 opinion joined by In an Justice Justices Cavanagh, Markman, IV), (except part footnote and for 15 and Marilyn Hathaway Kelly, Supreme the Court held'. Mary Beth Kelly, Michigan constitutions, Under the and federal defendants have right against the to be confronted with the witnesses them. right Shahid, Defendant his was denied to confront who was a against given opportunity and witness him whom he was not the to cross-examine. provides

1. The Confrontation Clause of the Sixth Amendment prosecutions, enjoy “[i]n all criminal the accused shall the right... against to be confronted with the . . witnesses him. .” right Shahid, Defendant was denied to confront was a true who against given prosecutor’s repeated witness him use of Sha- diagnosis not, fact, suffering hid’s that defendant was from psychosis. testify trial, Shahid did not at defendant’s thus ensur- ing opportunity defendant not afforded an to cross- Accordingly, psychiatric examine him. the admission of Shahid’s diagnosis, prove an out-of-court testimonial statement offered asserted, right the truth of the matter violated defendant’s under against Sixth to be Amendment confronted with the witnesses him. diagnosis 2. Shahid’s fell within the core class of testimonial subject statements that are to the Confrontation Clause. His report expressly repeatedly alleged referred to defendant’s charges pending against crime and the him and was made under objective person reasonably would circumstances that lead an diagnosis

believe that the would be available at a for use later trial. juror evaluating 3. A reasonable the difficult of issue defen- dant’s mental at the state time of offense could not have significance diagnosis. parties overlooked the of Shahid’s presented expert witness, experts each and these offered divergent opinions regarding defendant’s mental state. this context, diagnosis tiebreaking expert Shahid’s constituted the opinion only personal knowledge regard- of doctor who had ing experiencing symptoms psychosis whether defendant was near the time of the offense. That defendant accorded was not all-important face to face opportunity witness to meet clearly subject resulted him to and to cross-examination prejudice. vacated, trial

Reversed; case remanded to the convictions court. dissenting, joined by Justice Zahra, Chief Justice Young, judgment Appeals, but the Court of have affirmed

would reasoning, convic- would affirmed defendant’s not its have affirmatively not to call trial counsel chose tions. Defendant’s have that Shahid as a because he believed would Shahid witness Moreover, insanity first defense. undermined the challenged opened questioning about Shahid’s door expert psychiatric relied on that evaluation evaluation when his forming expert subsequently opinion. own Defendant appel- strategic conscious decisions into an transformed these by raising parachute late claim of ineffective assistance violation, premised Clause and such counsel on Confrontation Moreover, harboring as a should not sanctioned. error be purposes, report created for the Shahid medical treatment objected appeal psychiatric to which defendant on evaluation purpose created was not testimonial because it was not Therefore, investigating prosecuting crime. it did not or a implicate rights guaranteed by the Clause. the Confrontation Furthermore, to if the evaluation were be considered even testimonial, impeach prosecution it to defendant’s the used expert, purview purpose a that falls outside the of the Confron- Finally, the tation the evaluation was admissible under Clause. exception hearsay business records the rule. Defendant’s provide counsel did not ineffective assistance. — —Psychiatric Criminal Law —Confrontation Clause Constitutional Law Diagnoses. guarantees The Confrontation Clause the Sixth Amendment right be the accused the confronted the witnesses him; diagnosis against prosecutor the elects to introduce a when nontestifying psychiatrist diagnosis of a use that as sub- and accused, against psychiatrist the becomes stantive evidence the right against the accused the accused the a witness whom has confront; diagnosis psychiatric under a made circumstances reasonably objective an that would lead witness to believe diagnosis a falls the be for use at later trial would available subject within the core class of testimonial statements that are to the Confrontation Clause. Mich Opinion of the Court

Bill Schuette, Attorney General, Bursch, J. John General, Solicitor L. Kym Worthy, Prosecuting Attor-

ney, A. Timothy Baughman, Research, Train- Chief ing Quiroz, and Ana I. Appeals, Assistant Prosecut- ing Attorney, for people. the Minock, Minock),

Cramer & PLC (by John for defen- dant. J. Defendant was found men- guilty but

Markman, tally invasion, ill of assault, home felonious and felony- firearm, charges that from resulted he altercation Krell, had with Randy who man defendant believed had teenage son, caused death of his Charlie, in an episode rage. perceived of road Defendant Krell to have been unremorseful about role in tragedy his antagonistic defendant’s family during towards subse- quent legal proceedings which Krell was convicted of only a misdemeanor involvement Charlie’s only death. The issue defendant’s trial was whether he legally was at the insane time of the incident. prosecutor’s expert not, witness he opined that was while defendant’s expert opined Although that he was. these expert witnesses were only doctors who testi- fied at trial, defendant’s their opinions regarding defen- sanity dant’s were only expert opinions before jury. Rather, jury defendant’s was told repeatedly diagnosis expert about third who was conspicu- ously absent from psychiatrist defendant’s trial —a un- affiliated the prosecution defense, with either and the doctor only to have examined defendant within days incident, who, of the in report reviewed other but experts never authenticated of- fered evidence, diagnosed into suffering defendant as from “[mjajor depression, single episode, severe with- psychosis.” out We conclude of use this power- Opinion of the Court of as evidence diagnosis substantive ful, tiebreaking his constitutional sanity compromised defendant’s against him. with the witnesses to be confronted right of judgment the Court Accordingly, we reverse convictions, and remand defendant’s vacate Appeals, proceedings. for further AND

I. FACTS PROCEEDINGS Charlie, teenage son, 16, 2006, defendant’s On June killed in accident. Defendant describes was an automobile driven rage incident, as which a car the accident a road in a chase Randy allegedly engaged high-speed Krell resulted in crash of another car which Charlie rendering Charlie and another passenger, killing was a in the same car a teenage passenger paraplegic. with vehicular charged drivers of both vehicles were in which was manslaughter. The driver the car Charlie offense pleaded guilty apolo- to a lesser and passenger trial, family. Krell opted go to defendant’s gized negligent his innocence. He was convicted of claiming misdemeanor, to six homicide, a and was sentenced jail During proceedings, probation. months and insulting antagonizing Krell as and perceived defendant family. apologized. his Krell never friends, According relatives, colleagues, to his significant change mood experienced a in his Charlie killed. Defendant saw and behavior after was was prescribed antidepressant psychologist (Xanax). (Prozac) medication On antianxiety and an 27, 2007, defendant watched son’s school March game team what would have been the first play baseball described defen- varsity Charlie’s season. Witnesses uncommunicative at the time. depressed dant as he thinking There were several indications suicide. 489 MICH515 Opinion of the Court

The next Krell’s day, drove to house with a Krell gun. get testified that he saw defendant out of his in car with a his and gun pointed hand that defendant gun at chest his and said that the two men had to Krell talk. ran across the street to the home Williams, neighbor, Thomas who let Krell in. Defendant Williams, in kicked the door and told “I’m here for not you” but for “him.” Krell ran out the back of the house. Someone else called left in car 911. Defendant his and Toledo, to his mother’s home in Ohio, drove where he the gun register hid in a and then left.

The police and defendant’s family friends looked for defendant after he left Attorneys Williams’s house. who had represented family defendant’s were also in- in frequent volved the search and were in contact with County the Monroe the police. Prosecutor and Eventu- ally, a friend family station, found defendant at a gas Ohio, approximately away Toledo, miles near him drove to Flower in Hospital Toledo. Defendant was arrested en route to the One of hospital. lawyers arranged for defendant’s admission to the hospital declined to the police allow him interview because of his center, condition. Defendant was taken to a crisis where he spent night.

The next day, defendant was admitted to psychi- atric care There, intensive unit at Flower Hospital. he by Shahid, Agha was examined who prepared a three-page on report defendant’s psychiatric condition 2007, days on March two after the incident. Defen- was prescribed dant Seroquel, antipsychotic medica- tion, and remained at Flower Hospital approxi- mately two weeks.

Defendant claimed to have little recollection of he day what did on the incident. remem- He bered sitting his car work the morning, Fackelman op Opinion the Court fetal up curled in a Witnesses saw defendant crying. next rocking and forth. The car, back his position was a red couch at plastic he remembered thing going He not remember center in Toledo. did crisis first home, he did remember mother’s not and he did days hospitalization, of his couple Dr. Shahid. interviewed being remember inva- first-degree home charged Defendant was 750.110a(2), two of felonious assault sion, MCL counts 750.82, felony- dangerous weapon, a MCL with he legally He was firearm, MCL 750.227b. claimed 28, on March 2007. insane at the time of incident Dr. testimony of prosecutor expert presented examined defendant Balay, Jennifer who psychologist May for Michigan Psychiatry at the Center Forensic ill, was but mentally 2007. Dr. said defendant Balay he was insane at the time legally did not think that she that defen- she concluded Specifically, offense. during at anytime depres- dant “was this psychotic of Dr. expert testimony Defendant presented sion.” who interviewed Mistry, psychologist Zubin a clinical Mistry Dr. disagreed on 2007. September defendant Dr. He testified that defen- Balay’s with assessment. offense, was insane at the time of the legally dant concluding experienced “major defendant had “brief episode psychotic features” or a depressive psychosis.” reactive Dr. Dr. reviewed Dr. Shahid’s Mistry Balay

Both defen- regarding their determinations report making presented mental As the first witness dant’s state. defendant, testimony Mistry provided requisite Dr. Dr. insanity defense. needed raise his Dr. was one of Mistry report testified that Shahid’s reaching opinion he had reviewed in his many sources at the time of the legally that defendant was insane 489 Mich 515 Opinion of the Court testimony, incident.1 his direct he never referenced Dr. Shahid’s doc- diagnosis, any never discussed other only tor’s and testified as his own diagnosis, diagno- sis. cross-examination,

On questioning the prosecutor’s of Mistry largely Shahid, Dr. on bring- focused Dr. ing out Dr. professional details about Shahid’s creden- (“He’s correct?”) M.D., tials psychiatrist, Dr. (“Do Shahid’s prior relationship Mistry you to Dr. know correct?”). Dr. “You respect opinion, Shahid?” At the end of cross-examination, the prosecutor squarely placed diagnosis jury: Dr. Shahid’s before the Q. report you At the end did of that Dr. read Shahid’s

diagnosis?

A. Yeah.

Q. says major You read it depression, single where episode,-

A. Yes.

Q. -severe, psychosis? without 1 Mistry explained: typically individual, extensively observing You’ll interview the behaviors, mannerisms, patterns their their their of behavior.

You’lltalk to you individuals involved as witnesses and oftentimes spouses, cetera, people will talk to et familiar with their function- ing functioning. and their level of You’lldo an assessment of their pre-morbid functioning, way they responded which is the prior you’re dealing in a functioned time frame .. . to the event with.... You’llreview medical records from individuals who have treating, practioners, hospital any been prior records. also You’ll review family records of. .. mental conditions. You’ll take some history you to range as mental conditions. And do a of broad of assessment the individual... . Hospital, records, I reviewed records from Flower Dr. Shahid’s provided couple Dr. Indurti had some [And] records.... at least a of other counselors. Opinion of the Court A Yes. have did not

Q. you agree that the Defendant But don’t you? do psychosis, diagnosis. My opinion different as to is A. No. report Dr. referred to Shahid’s later prosecutor

The Balay, again his own Dr. expert, examination of if asking Balay diagnosis, Dr. referring to Shahid’s yes. She answered diagnosis. Dr. agreed with Shahid’s diag- Shahid and his He mentioned Dr. repeatedly also that “it’s closing telling jury arguments, nosis in say, Dr. Shahid had to real look at what to important you.”2 he here testify even did not before though object questioning counsel did not Defense of Dr. report on the basis Shahid’s witnesses diagnosis arguments. or to the prosecutor’s ill mentally but guilty found defendant jury He was 45 months to charged offenses. sentenced conviction, years for the home invasion prison addition, following prosecutor also referred to Dr. Shahid in the excerpts closing arguments: from his Hospital talked to is the one at Flower who Dr. Shahid day happened [defendant] the .... And.. . Dr. Shahid after this very Balay report important part Dr.

wrote a became what report far as ... later did as her concerned. things happened about what ... Dr. Shahid told a lot the end [defendant].... Dr. Shahid reached the conclusion at And depressed, [of] [defendant] was he had severe his examination that psychosis depression, no . .. hut that there was involved. Mistry, you you’ve Dr. I from what heard from And submit to you’ve you’ve Balay, Dr. and the references from heard from what report.... heard to Shahid’s 489 Mich 515 Opinion of the Court 4 years for each of the convictions, felonious-assault 2 years for the felony-firearm conviction. appealed

Defendant in the Court Appeals moved for an evidentiary hearing regarding his claim of ineffective assistance of counsel.3 The Court of Appeals granted Following defendant’s motion. an evidentiary hearing, trial court denied defendant’s motion for a trial. The new Court of Appeals People affirmed. v Fackelman, unpublished opinion curiam of the per (Docket Court Appeals, August 27, issued No. 284512). The court rejected challenges defendant’s use of Dr. report trial, Shahid’s concluding his that the prosecutor had proceeded use properly report in all instances except his direct examina- Balay tion and that defendant could not show prejudice outcome-determinative respect with to that error. granted We defendant’s application leave to (2010). v appeal. People Fackelman, 486 Mich 907

II. STANDARD OF REVIEW Whether the admission of Dr. Shahid’s re- opinion garding defendant’s mental state violated defendant’s Sixth Amendment right of confrontation is a question of constitutional law that this Court reviews de novo. Jackson, People v 271, 277; 483 Mich 769 NW2d 630 (2009).

III. ANALYSIS A. RIGHT OF CONFRONTATION The Confrontation Clause of the United States Con- stitution provides that all criminal prosecutions, “[i]n the accused shall enjoy right... to be confronted

3 People Ginther, 390 Mich 436; NW2d 922 (1973). Opinion of the Court Const, US Am . . against him . the witnesses also state, Michigan has its as Since birth VI. con- right the to “be a criminal defendant afforded him,” adopting against with the witnesses fronted Clause the Confrontation language of federal of state constitutions. every in one our verbatim 6, 28; Const 1839, 10; 1850, § art 1, § art Const Const 1, § These 1963, art 20. 2, 19; § Const 1908, art by MCL are underscored provisions constitutional ex- defendant a criminal 763.1, which provides who are produced to “meet witnesses right press exact have him to face.” These words face against RS, ch 1846. 1846 Michigan codified in law since been 7503; 5704; CL How Stat 151, 1;§ CL 1871 15623; 1929 11796; 1915 CL 17129. 9068; 1897 CL CL are statutory provisions “These constitutional in jurispru- They incorporated accidental. were con- of the universal country by of this reason dence star methods of the inquisitorial demnation England.” People in in which had been force chamber (1934). 135; Saccoia, 132, Spe- NW 738 268 Mich meeting with one’s to a face-to-face cifically, right in the in is rooted deeply described MCL 763.1 accusers directly It can be of confrontation. right common-law right, of this paradigmatic to the violation traced back Treason, 1603, High Raleigh Trial Sir Walter (T. 1 B. Collection of State Trials Complete 2 Cobbett’s Raleigh in Howell, ed, 1809), which Sir Walter being opportunity after denied convicted treason accuser, Lord alleged accomplice to confront his him in a letter that was Cobham, implicated who had Raleigh “If life, urged, trial for to the On jury. read Law, a at Common of five marks there be but a trial lords, let Accuser my deposed. my must Good witness be Id. 19. face, and be deposed.” come face 489 Mich Opinion of the Court This was the notorious example unfairness that the Framers had in mind and wished to avoid when they guaranteed every criminal right to be confronted with witnesses him. against To John Adams, who later drafted the Massachusetts Confron- Clause, tation the contours of this right were quite clear: “Every Examination of ought Witnesses to be open Court, in Parties, Presence of the Face Face.” 30 Wright Graham, & Federal Practice & Procedure, Evi- dence, § 521-522 pp (quotation marks and cita- omitted). tion The great virtue of confrontation and cross-examination, repeatedly emphasized founding- era documents, these mechanisms advance the pursuit of truth criminal trials better than any Blackstone, others. See 3 Commentaries on Laws of England (Jones, ed, 1976), p 373: open voce,

This examination of witnesses viva in the presence mankind, of all much is more conducive to the truth, clearing up private of [a] than and secret examina- [given tion may frequently depose that] ... a witness private in which he will testify public be ashamed to in a Besides, and questions solemn tribunal.... the occasional judge, jury, of counsel, the propounded the and the to the sudden, witnesses on a sift will out the truth much better interrogatories than a of previously formal set penned and settled; confronting and the of adverse witnesses is also opportunity obtaining discovery, another a clear which upon can any never be had other method of trial. Hale, History See also of the Common Law of (6th England ed, 1820), 345: p that,

[OJftentimes will private] [in witnesses deliver they which will testify publicly. be shamed to ... [M]any very delivering testimony, times the MANNER of give will probable indication, speaks truly whether the witness falsely.... [Cross-examination] beats and boults out the 527 Opinion of the Court method of the best [A]nd [is] much better.... truth sifting .... searching out the truth has jurisprudence Amendment country’s Sixth Our the truth-seeking function of of the sight never lost States, United See, Mattox v e.g. right of confrontation. ;4 (1895) 409 242-243; 337; 39 L Ed 237, 15 S Ct 156 US L 158; 1930; 26 S Ct Green, 149, US 90 v 399 California Ed 2d 489 (1970) 36, 541 US ;5 Washington, Crawford (2004).6 This 1354; L Ed 2d 177 61; S 158 124 Ct con- that “the understanding underscores historical 242-243, Supreme Mattox, Court United States US at the explained that question provision primary object in of the constitutional [t]he affidavits, parte as some- prevent depositions such were or ex cases, against prisoner being used the admitted in civil times the personal examination and cross-examination lieu of a opportunity, only the accused has witness which witness, sifting testing the conscience of the recollection and jury compelling in order him face to face with but of to stand him, by upon they judge may at his demeanor look gives testimony he is in which his whether stand and the manner worthy of belief. Green, specific ways in which confron listed several US tation advances truth: (1) give under [It] that the witness will his statements insures impressing him with of the matter oath—thus the seriousness against possibility penalty perjury; guarding lie of a (2) cross-examination, “great- the truth”; to submit to forces the witness (3) discovery legal engine ever invented for the est

permits jury decide defendant’s fate to observe statement, aiding making the witness in his thus the demeanor of credibility. assessing omitted.] jury [Citation 6 61, emphasized Crawford, 541 US at that sure, reliability goal of ultimate is to ensure [t]o be the Clause’s evidence, procedural guaran- than a it is a rather substantive but reliable, reliability commands, not evidence but that

tee. It that be particular testing of in the crucible be assessed in a manner: cross-examination.

528 489 Mich 515 Opinion of the Court guarantee only symbolic goals. frontation serves not right to confront and to cross-examine witnesses is a primarily right promotes reliability functional Illinois, 530, 540; criminal trials.” Lee v 476 S US 106 (1986). 2056; L Ct 90 Ed 2d 514 pursuit truth-seeking In of the Clause’s purpose, our criminal jurisprudence clear, then, is person “[a] trial, of a crime a right, accused has at his to be confronted, face, face to against witnesses Nutter, v People 207, 215; him.” 255 Mich 237 NW 384 (1931). alsoWe know that the Confrontation Clause applies only statements used as substantive evidence. Street, Cf. v Tennessee 471 US 413-414; 105 S Ct (1985) 2078; L Ed (holding 2d 425 that evidence admitted solely for impeachment purposes did not vio- Clause); late the Confrontation see v also McPherson, 263 Mich App 124, 133; 687 NW2d 370 (2004). we And understand from the constitution that right of is confrontation concerned with specific a type statement, i.e., out-of-court the statements of “witnesses,” those people who bear testimony against defendant. Crawford, 541 US at 51. light of these venerable legal principles, it clear

that defendant was denied his right constitutional confrontation. Shahid did not appear defendant’s trial, and defendant afforded “the privilege confront [him] and cross-examine [him] face to . . Snyder Massachusetts, face . .” 97, 106; 291 US S54 330; (1934), Ct L Ed grounds overruled on other by Malloy 1; v Hogan, 1489; 378 US 84 S Ct 12 L Ed 2d (1964). given Defendant was not prior opportu nity Shahid, to cross-examine Dr. nor was it shown that the doctor was to testify unavailable at trial so absence could be excused for purposes right 1 Cooley, confrontation. See Constitutional Limitations 529 People Fackelman v Opinion the of Court (8th to exceptions the few one of ed), articulating p .., . was sworn rule: “If the witness the confrontation then to cross- opportunity accused had and the to make use his allowable him, ... it seems examine deceased, or has if the witness has since [testimony] ... to insane, or sick and unable State, or is left the . . .”7 testify . inescapably leads

Moreover, of the record our review a true “witness that Dr. Shahid was to the conclusion at trial was not The ultimate issue defendant. against” in the conduct actually engaged had defendant whether it whether instead, was charges; led to the criminal trial, medical the time.8 At the he insane at legally was used as shorthand for testifying experts term that both which, as the insanity “psychosis,” describing legal is a jury, to the “when expert explained prosecutor’s reality.” jury’s Repeatedly, loses touch with person particular on mental state. focused this attention was 7 subpoena power had the to Shahid The fact that defendant long analysis. ago This Court is immaterial to this call him as a witness 132, 135-136; Perrin, 193 rejected argument. v Mich NW this 223 (1923). consistently Supreme has likewise The Court 888 United States Massachusetts, See, e.g., rejected argument. v 557 US Melendez-Diaz (2009) (“[T]he 305, 324; 2527; 2d Confrontation 129 S 174 L Ed 314 Ct witnesses, prosecution present its not imposes to Clause a burden on court.”) (emphasis bring witnesses into those adverse on 1316; 2d added); Virginia, US_; Ct 175 L Ed 966 559 130 S Briscoe v (2010) Court, Virginia Supreme judgment which held (vacating of the notify timely his the commonwealth of desire failure to that defendant’s right); analyst a waiver of that a forensic at trial constituted to confront 2705, 2718; Mexico, L Bullcoming US_,_; S 131 Ct New (2011) (“The Hence, proof. prosecution ... bears the burden Ed 2d 610 analyst retesting original unavailable obligation propel is when omitted). defendant’s.”) (citation State’s, ., if, legally mental illness . . as a result of “Anindividual is insane appreciate capacity person the nature and either to lacks substantial wrongfulness or conform his or her quality her conduct or the 768.21a(1). requirements of the law.” MCL conduct to 489 Mich 515 Opinion op the Court defined experts “psychosis,” described the symp- person

toms of a “psychotic state,” debated whether a person slip “could in and of [psychosis] out frames,” various time offered their opinions regarding the effect of psychosis memory, on their rendered diagnoses own terms whether defendant was experiencing psychosis, expert, with defense Dr. Mistry, concluding that he was and prosecution’s Balay, Dr. expert, concluding that he was not. In this context, the prosecutor’s improper introduction and use repeated diagnosis of Dr. Shahid’s that defendant fact, in not, was experiencing psychosis fully rendered a against doctor witness short, defendant. “In when the State elected [the to introduce of statement nontestifying scientific expert], expert] [that became a [the witness defendant] had the right to confront.” Bullcoming v New Mexico, 564 131 S Ct US_,_; (2011). 2716; L180 Ed 2d 610 Our of review the record makes also clear that Dr. diagnosis “[m]ajor Shahid’s depression, single epi- sode, severe without psychosis” was used as substantive evidence for “the truth of the matter asserted.” MRE 801(c).9Its admission for purpose was barred by Confrontation Street, Clause. Cf. 471 US at 413-414. prosecutor beyond went well the scope of the direct examination and placed Dr. diagnosis Shahid’s before in jury his cross-examination of Dr. Mistry, who, very significantly, had not referred to Shahid’s critical diagnosis in Then, his direct testimony. the prosecutor used explicitly Dr. Shahid’s diagnosis his examina- tion both experts closing and in arguments. On each statement, As “a other than the one made the declarant while testifying hearing, prove at the trial or offered in evidence to the truth of asserted,” report, the matter including diagnosis, clearly Dr. Shahid’s his 801(c). hearsay. constituted MRE Opinion of the Court aswas sub- diagnosis of the occasion, use obvious defendant was truth —that evidence its stantive circum- result of the as a experiencing psychosis perception his death and of his son’s stances Dr. did not use Sha- The prosecutor conduct. Krell’s Balay, Dr. witness, his own opinion impeach to hid’s it does diagnosis. Dr. Nor Shahid’s agreed who opinion that Dr. Shahid’s suggest to make sense as it credibility, insofar Mistry’s except Dr. impeached evi- substantive independent piece provided view of competing of the favor weighing dence could diagnosis psychosis of no Dr. Shahid’s Balay.10 Dr. if it experts’ opinions support other only impeach clear made true, something prosecutor taken as “it’s jury he told the when closing arguments say, Dr. had to look at what Shahid important real you” here before testify did not though he even as third rely opinion on Shahid’s proceeded then sanity: vote on defendant’s expert’s Well, part I and said: And then the conclusion went says it Dr. Shahid here that Mistry, why.is then that Dr. say psychosis. a And psychosis you there was there’s no 10Any protections of Confrontation would make the other view produce Indeed, illusory. prosecutor to would not even have Clause experts’ place jury expert absent medical if he could before the his own testifying experts. diagnoses through the examination testimonial permit the testimonial clear ... that it will not [has] “The Court made through evidence the in-court one to enter into statement of witness J., Melendez-Diaz, (Kennedy, testimony second[.]” 557 US at 334 of a Moreover, require juries engage dissenting). in the we not would opinion gymnastics necessary Dr. was to conclude that Shahid’s mental “true,” only contrary “impeach” a as but not meant to be taken actually true, effectively impeach a opinion, opinion. can if not How being Mistry’s diagnosis contrary used as opinion? as Dr. was Just insane, diagnosis Dr. Shahid’s evidence that defendant was substantive Mistry Dr. being not. As as evidence he was used substantive was they noted, only opinions their was that difference between himself diagnosis.” “different as to were 489 Mich Opinion of the Court Well, say people

the most he could was: different have Well, true, opinions. different people that’s different can opinions. have different you you’ve

. .. And I submit to from what heard from Mistry, you’ve Balay, from what heard from Dr. and the you’ve report, references heard Dr. Shahid’s there aren’t any Mistry’s real reasons behind Dr. conclusion that suffering psychosis, any Defendant from was real at all. reason

Finally, we conclude that diagnosis Dr. Shahid’s un- questionably falls within “core class of ‘testimonial’ statements” that are subject to the Confrontation Clause. Crawford, 541 US at 51. report The memorial- ized defendant’s medical history and the events that led to his admittance to the hospital, provided the all- important diagnosis, and outlined plan for treat- ment.11 It was Dr. Shahid’s “testimony” regarding de- “ fendant’s illness, mental ‘solemn declaration or affirmation made for the purpose establishing or ” some fact.’ proving Id., quoting 2 Webster, An Ameri- (1828). can Dictionary English Language “ And Dr. Shahid’s report was ‘made under circum- stances which would an objective lead witness reason- ably to believe that the statement would be available ” (citation for use at a later trial[.]’ Id. at 52 omitted); see also Melendez-Diaz Massachusetts, 557 US 310; 2527; (2009) 129 S Ct L174 Ed 2d 314 (quoting and employing this test to ascertain that Crawford testimonial). the statement at issue was Specifically, indications, the following taken together, are highly (1) probative this respect: defendant’s admittance (2) to the hospital arranged by lawyers, defen- (3) dant was en arrested route to the hospital, report hospital letterhead, “Psychiatric is on is headed Evalua tion,” signed by and is and dated Dr. Shahid.

Opinion of the Court requested County report Sheriff the Monroe noted that (4) discharge, defendant’s before notification responses gun related in and to a his to a trial referred (5) significantly, perhaps report, its and, most in the ending, beginning very context its overall in which report expressly clearly focused identified, the most is charges pending alleged crime and the on defendant’s against introductory paragraph, Dr. Shahid him. stated:

47-year-old male was referred Caucasian married emergency Services with Rescue Crisis Mental Health indicating patient’s son was killed application accident, patient eight ago in traffic and the months gun patient felt was the man’s home with a who drove to son. Patient has severe responsible for the death thoughts to overdose. The depression had suicidal emergency application indicated that the Monroe also County patient is wants to be called when sheriff discharged to home. again very paragraph, Dr. Shahid

Then in the last charges against pending criminal to the referred legal listing charges precise lan- defendant, these against legal charges guage: him “Patient also has Michigan through Circuit, 38th Judicial the State degree, invasion, one home first and count is (felo- dangerous weapon count two assault “ assault).” circumstances, an ‘ob- Under these nious led] reasonably would] [be jective [psychiatrist to be- statements] [his for use at would be available lieve that ” (citation omit- Crawford, 541 US at 52 a later trial.’ Accordingly, ted); Melendez-Diaz, 557 US at 310.12 post-Crawford cases which United do not overlook other We developed meaning “testimonial Supreme Court has further States Rather, jurisprudence. we its Confrontation Clause statements” within 813; Washington, inapposite. 547 US are See Davis find that these cases (2006) (concerning 2266; made in 2d 224 statements Ct 165 L Ed 126 S 489 Mich 515 Opinion op the Court

our in judgment, the admission evidence of Dr. Shahid’s diagnosis, out-of-court, an testimonial statement of- truth, fered for its violated defendant’s constitutional right to be against confronted the witnesses him.

B. EVIDENTIARY ERRORS There are other why reasons the use of Dr. Shahid’s report First, at defendant’s trial improper. was MRE provides “[t]he facts or in particular data upon case which an expert opinion bases an or inference added.) in shall be evidence.” (Emphasis This rule “an permits expert’s opinion if only opinion exclusively based on evidence that has been introduced into evidence in some way other than through the (staff expert’s hearsay testimony.” xcv, 468 Mich xcvi 703). comment the 2003 amendment MRE It is undisputed that both Dr. Mistry and Balay Dr. reviewed Dr. Shahid’s in report making their determi- nations regarding Indeed, defendant’s mental state. Dr. Balay specifically testified that Dr. report Shahid’s “big constituted a part” her opinion. It is understand- why able the testifying rely doctors would on heavily Dr. report, given Shahid’s that he the only doctor to evaluate shortly after Thus, the offense. facts and data documented in his report provided dis- insight tinctive into defendant’s state of mind time of the offense. Because the facts and data report Shahid’s were essential to the testifying experts’ opinions, they were required to have been admitted into evidence under MRE 703.

However, Dr. Shahid’s report contained more than just “data”; “facts” and it also contained the doctor’s ongoing emergency); an Michigan Bryant, domestic-violence 562 US (2011) 1143; _; (concerning 131 S L Ct 179 Ed 2d 93 statements made ongoing emergency). an non-domestic-violence Opinion Court 703, only MRE diagnosis. Under all-important were admis- report contained and data facts actual discussed, Dr. Shahid’s previously As sible. offered its a testimonial statement diagnosis, Clause. truth, by the Confrontation was barred barrier, diagnosis to this constitutional addition it because under MRE 703 inadmissible itself was not fall within and thus did “opinion,” constituted only admissible of MRE which renders the ambit expert which an bases an upon or . . . data “facts added.)13 Thus, . (Emphasis inference . . .” opinion inadmissible, the under diagnosis the was because Constitution, Constitution, Michigan the United States redacted should have been 703, report MRE the evidence, jury and the into it was admitted before and limited proper that the have been instructed should the to allow them to consider report of the was purpose testifying experts the based facts and data on which their opinions.14 13 qualified Shahid, appear at trial and thus was never Dr. did not who course, testimony. not, provided “opinion” See expert, of have an could as qualified expert (requiring as an before that a witness must be

MRE 702 Although opinion”). jury the may “testify in the form of an he or she ... including praise he is the “senior of Dr. heard much Shahid — “M.D.,” [Hospital],” has an and “is psychiatrist... at Flower on staff subjected to dire and was not never voir fantastic doctor” —he was expert qualified an under MRE 702. as 14 following given jury the instruction: was give opinions in court about Experts to their are allowed However, you they experts do have on. to matters which are Instead, you expert’s opinion. should decide whether an

believe you you you important it decide it think is. When believe and how carefully opinion, you expert’s about the think whether believe opinion gave his her he or or reasons and facts that she facts are true. whether those actually jury Although proper, never because instruction by jury report required MRE was unable Dr. Shahid’s as received charge. fulfill the court’s 489 Mich 515 Opinion of the Court Second, contention, to the contrary prosecutor’s Dr. report, including diagnosis, Shahid’s was not admis- sible at trial under the defendant’s business records 803(6). rule, to the exception hearsay MRE As a “re- . . port opinions, diagnoses, [of] . or made at or near the by, time or from by, information transmitted a person knowledge,” well report may Shahid’s have the scope fallen within of the excep- business records tion, but the rule requires that its [be] elements “all shown testimony the custodian or other added).15 . qualified Thus, witness . . .” Id. (emphasis recordkeeper other witness qualified from Flower application exception, Under dissent’s of the business records requirement essentially record be must authenticated would be from stricken the rule. The dissent concludes that “defendant cannot receive relief on the basis authentication error.” Post 597. We disagree. prosecutor There can be doubt no that had the moved to admit report exception, Dr. Shahid’s under the business records and had objected qualified because no “custodian or other witness” was present testify 803(6), report to the elements MRE could not Detroit, 181, 189; have been admitted. See Mich Moncrief (1976) (explaining principle” proponent NW2d 783 the “first that “the [hearsay] lay evidence must a foundation which establishes an rule”). exception hearsay to the importantly, accept Even more we do not the dissent’s conclusion that prosecutor lack of authentication was sought harmless. Had the (which report not), admit the as a business record he did and had the (which 803(6) required prosecutor comply court the to with MRE under rule, must), qualified the it then a “custodian or other witness” from Hospital present Flower would have been at defendant’s trial. Far away, Hospital qualified the witness from Flower most to authenticate report himself, and, the would have been Dr. Shahid at least in our judgment, prejudice defendant suffered serious because of his absence III(C) However, part opinion. trial. See authenticating even if the merely hospital recordkeeper, witness was a appreciate the dissent fails to might provided meaningful that this witness still well have information jury. instance, to For this witness could have answered some basic questions properly trial, that were never answered at defendant’s such report Who Dr. kept as: Shahid? Is his kind record that is in the regular Hospital? making course of business at Flower Do doctors in such 537 Opinion of the Court have to testify report to have had would Hospital not done. This was admitted. properly been had prosecutor even if the note that Finally, we to pursuant report the entire admit sought any testimonial 803(6), MRE procedures required for their report in the offered contained statements under the business inadmissible have been truth would (“Where at 61 Crawford, 541 US See exception. records involved, do not think are we statements testimonial Sixth Amendment’s to leave the the Framers meant evi- the rules of vagaries protection .”). determined, already Because, as we have . . . dence state- constituted testimonial diagnosis Dr. Shahid’s truth, not been it could have offered for its ment to the exception records under the business admitted rule. hearsay PLAIN ERROR

C. use of object defense counsel did Because these constitutional report, we review Dr. Shahid’s affecting defendant’s evidentiary errors for error plain Carines, v 460 Mich rights. People substantial (1999).16 763-764; We conclude 597 NW2d this standard. entitled to relief under defendant is right of confrontation and violations of defendant’s addition, clear and obvious. evidentiary errors were charges? reports pending And do patient’s criminal often refer to materials, police reports, typically when review other such as doctors reports? they create their plain is entitled to relief under either believe that defendant We Carines, or the ineffective assistance standard articulated error 668; Washington, 466 US standard set forth in Strickland counsel (1984). only 2052; proceed the former 2d under S 80 L Ed We Ct which, judgment, requires showing, defen higher in our it because dant has made. Mich Opinion of the Court

defendant can show that the errors resulted in prejudice. outcome-determinative Id. at As 763. dis- cussed previously, ultimate issue at trial was whether legally defendant was insane at the time of the incident, or, trial, in the parlance used at whether he experiencing psychosis. In assessing the effect of Dr. Shahid’s diagnosis on the jury’s determination issue, regarding this three facts strike significant. us as First, Dr. Shahid’s of diagnosis no psychosis provided a tiebreaking expert a trial opinion is fairly characterized a Second, as battle of two experts. only Shahid was the expert unaffiliated with either party. Third and most he importantly, was the only doctor to have examined defendant within days incident, aat time when may still have been experiencing psychotic episode. other experts did not interview defendant until months later, when de- fendant had been on antipsychotic medication for some Thus, time. both the defense and prosecutor’s experts were necessarily trying re-create defendant’s mental state at the time the crime. Dr. Shahid was the only doctor who had personal knowledge concerning this dispositive issue. sum, juror reasonable evaluating difficult

issue of defendant’s mental state the time of the offense could not have overlooked the significance of Dr. diagnosis, Shahid’s which constituted the tiebreaking, expert opinion neutral only doctor who had personal knowledge regarding whether defendant was experiencing symptoms psychosis near the time of the offense. That defendant was not accorded the op- portunity meet all-important witness “face to face” and to subject him to cross-examination clearly resulted in prejudice. Even a surface review of this record many questions leaves one with for Dr. Shahid’s empty witness chair. instance, For precisely what were Opinion of the Court did he reconcile How diagnosis? for his the reasons of the sever- indicators diagnosis objective with certain in the documented mental illness of defendant’s ity assigned defen- fact that Dr. Shahid such as the report, out score of 20 Functioning dant a Global Assessment “significant a Dr. indicated 100, Mistry opined which . .. to harm oneself or or likelihood impairment level of antipsychotic prescribed was others”; that defendant suicide; that medication; defendant had attempted inten- the psychiatric been admitted to defendant had that, although defen- safety; his care unit for sive auditory or visual hallucinations” “denying dant was that, examination, defendant stated the of the time “ I felt death, smelling things T was after his son’s Moreover, defen- under skin’ ”? did crawling my things to him make the statements attributable actually dant obtain the or did Dr. Shahid report, in Dr. Shahid’s re- source, police a another such as statements from the asked Mistry prosecutor As stated when Dr. port?17 for question be a him exact “That would question, Indeed, are questions questions Dr. all these Shahid.” he because Shahid, they for went unanswered Dr. trial. testify did not at defendant’s that occurred at defendant’s evidentiary The errors by the caused the violation compounded prejudice trial In contravention of right of confrontation. evidence,” “in report 703 that the be mandate MRE juror, curiosity whose and in of the fact that spite to frequent references understandably piqued by to see expressly requested Dr. report, Shahid’s of and attorneys speaking were “reports that relying police report when possibility on a Shahid was sentence, by report’s report supported final which prepared his he legal precise charges pending against as a defendant in detail lists the police report would. 489 Mich 515 Opinion of the Court

doctors speaking too,” jury [of] were was never to examine the itself. report allowed This error was especially prejudicial prosecu- defendant because the tor had characterized the contents of Dr. imprecisely Shahid’s report. Specifically, closing, the prosecutor discussed the statements attributable report and told the jury that defendant “seemed to things” remember a lot of about his altercation with Krell.18 In actuality, however, consistently the report documented defendant’s all inability remember but few details of the incident.19 Because the report was not “in evidence” as MRE required the jury was unable to accuracy assess the of the prosecutor’s state- ments against the facts and data contained in the report and was likely more to have accepted prosecutor’s characterizations.

Moreover, because the prosecutor attempted never to satisfy the requirements foundational of the business records exception and to authenticate the report, the jury given was not the most basic information it needed to properly is, consider this document. That it was never established that the report prosecu- was what the folly, prosecutor More the said: On 29th things March Dr. a Shahid was told lot of 28th, happened day before, by about what on March Mr. things. Fackelman. He seemed to remember lot a He remem- going place Randy bered to the where Krell He lived. remembered seeing Randy threatening gun. Krell and him with a He remem- going house, breaking

bered in the the door down. He remembered seeing person [he] encountered once in he was that house. words, just everything In other he remembered about when he day. talked to Dr. Shahid the next report, fact, says states, What Dr. Shahid’s is: “Patient ‘I do not driving Michigan driving remember to and to I his house. do not happened, only thing remember what and the I remember is that I saw just up terrified look on that mem’s at face and that time I I felt woke ” apologizing started [Williams].’ to Opinion of the Court (1) “infor- that contained report it to be—a asserted tor knowledge . . a with by. person mation transmitted (2) course was Shahid],” “kept [Dr. (3) that activity,” and it business conducted regularly Hospital] to [Flower regular practice was “the 803(6). . MRE make . ..” trial, he did at was appear Dr. not summary, Shahid cross-examination, report was his subject have little nor authenticated. We

neither in evidence here —the error concluding principal difficulty right of confrontation —was violation of defendant’s Carines, 460 Mich at 763. As outcome-determinative. to examine discussed, only Dr. was the doctor Shahid and, thus, the only of the incident days defendant within defendant’s mental knowledge of expert personal way, In this the trials immediately state after offense. though separated by Raleigh, of defendant and Sir Walter were fundamen- factually unrecognizable, centuries and at which way: public in the same at the trial tally deficient determined, neither man was guilt their or innocence was important the most witness confronted “face face” with was against compounded by him. This constitutional error from evidentiary errors that resulted multiple Dr. haphazard report manner which Shahid’s these gave handled at trial. The effect of errors worlds possible the best of all prosecutor employ of these. The was able to prosecutor worst evidence that defendant diagnosis Shahid’s as substantive incident, the time of the experiencing psychosis was not having diagnosis Dr. Shahid on explain without cross-examination; to err in his description able being in report report Dr. Shahid’s without contents of on without evidence; rely hearsay report a and able having authenticity accuracy and prove its 803(6). MRE prescribed by manner Mich Opinion of the Court Once demonstrates outcome- error, determinative plain appellate court must its in deciding exercise discretion whether to reverse. Carines, 460 Mich at only 763. “Reversal is warranted when plain, error forfeited resulted in the convic- tion actually of an innocent defendant or when an error fairness, affected the seriously integrity public repu- judicial tation of proceedings independent of the defen- dant’s innocence.” Id. (quotation marks citations omitted). Both of these considerations move inus our discretion to vacate defendant’s convictions. Defen- guilt dant’s or innocence under the depends law on whether he legally sane at the time of the offense may held criminally thus be responsible. It was not only grief the understandable caused by loss of a child that defined defendant’s mental state the time offense, but also feelings both being abused by the man he believed was responsible his son’s death legal system treated this man’s actions as mere misdemeanor. Considering this back- ground, it is imperative that defendant have the oppor- tunity to be confronted with the most powerful witness against him guilt before his or innocence is decided. this process, defendant was denied an ancient right our system, criminal on one which our adversarial system premised. redressed, If not error would, judgment, our seriously fairness, affect the integrity, or public reputation of the proceedings.

IV RESPONSE TO DISSENT It is necessary respond more fully disagree- to the ments between this opinion dissent, and the specifically with regard to the dissent’s sponte argument sua defendant somehow right waived his to confront Dr. Shahid, and respect to our differing perspectives on the Confrontation Clause. 543 Opinion the Court

A. WAIVER affirmatively “defendant hold that would The dissent he because Dr. Shahid confront right his waived him as a not to call strategy, trial matter of chose, as a understood, but the prosecutor at 574. As Post witness.” indefensible.20 is not, argument this does the dissent relinquish- “the ‘intentional as been defined Waiver has ” Carines, 460 right.’ of a known ment or abandonment Olano, 507 US United States quoting n Mich at 762 (1993). The L Ed 2d 508 1770; 123 725, 733; 113 S Ct affirmatively defendant claim that does not dissent ex- his counsel when right constitutional his waived allowing the ruling a court with satisfaction pressed because no diagnosis, Dr. Shahid’s use of prosecutor’s Carter, Mich 462 People v was made. Cf. ruling such (2000). the dissent Nor does 206, 215; 612 NW2d his constitu- waived affirmatively that defendant claim of the was aware his counsel because right tional knowingly stood trial but violation at confrontation occurred. this is not what it is clear silent, because expressly hearing, counsel the Ginther at Specifically, use of object prosecutor’s did not that he testified it recognize not he did only because report Dr. Shahid’s not, and did violation; thus, he could a confrontation as does right. Nor a known not, intentionally relinquish waived affirmatively that defendant dissent claim Dr. Shahid’s placing himself right constitutional not take also did in evidence because diagnosis place. claims that earlier, the dissent

Instead, noted as to confronta- right his constitutional waived defendant argued waived his that defendant prosecutor never himself in his brief or right, waiver either no mention of confrontation Rather, properly the issue forfeited argument. considered he oral issue. fully the confrontation the merits of addressed 489 Mich op Opinion the Court chose,

tion because “he strategy, as matter trial to call him as a only witness.” Post at 574. Not argument dissent’s waiver incompatible with the tradi- tional understanding waiver, but it also violates (1) several first-principles criminal law: is an insanity affirmative defense with respect to which (2) of proof, carries the burden rules of evidence cannot (3) trump constitution, prosecutor bears the proof ultimate burden of in criminal cases. The dissent each misapprehends misapplies of these first- principles.

First, “it is an affirmative prosecution defense to a for a criminal offense that the legally defendant was insane he when or she the constituting committed acts offense,” 768.21a(l), the MCL the defendant “has the burden of proving the defense of insanity by a 768.21a(3). preponderance of the evidence.” MCL framework, accord with this expert, defendant’s Mistry, testified first on the issue of defendant’s mental state at the time of the offense. In his testimony, Dr. Mistry referenced Dr. Shahid’s as well report, as other reports, but he never mentioned Dr. Shahid’s diagnosis. Thus, the dissent’s on insight, which it bases its waiver argument “it was who the first raised —that defendant insanity issue of his and who opened first the door to questioning about Dr. Shahid’s evaluation” —is consid- erably less remarkable than the be, dissent believes it to because there is no in simply way other which defendant these circumstances conceivably could have raised an insanity defense other than through the of a testimony credible expert witness. Post at No 573. such witness could neglected altogether have to men- tion the of report existence the of the only person who actually interviewed defendant in the immediate wake of his conduct. People v Fackelman Opinion of the Court the Con-

Second, trump the rules of evidence do (“Where Crawford, US at 61 Clause. See frontation do involved, we not think the statements are testimonial protec- the Amendment’s meant to leave Sixth Framers ....”). Thus, evidence vagaries tion of the rules of been in of should have report Dr. Shahid’s although parts “the they 703 because constituted evidence under MRE opinion,”21 which an bases an upon expert facts or data... completeness’ under MRE 106’s ‘rule although admitted,22 be these may whole document sometimes necessarily way requirements rules give Though report may Clause. parts Confrontation evidence, have under the rules been admissible rules override the Sixth Amendment of evidence cannot admit would other- and cannot be used to evidence that wise Sixth Amendment.23 implicate required supra at 534. The dissent concludes MRE 703 See However, report into evidence. rule to admit Dr. Shahid’s party “[t]he must or data is silent as to which ensure that facts opinion particular upon expert inference shall case which an bases experts report. parties’ Both on the be evidence.” relied provides: MRE 106 writing part is a recorded or thereof When or statement may require by party, party adverse the introduc- introduced tion at that time of an any part any writing recorded other other or contempora- ought statement which in fairness to be considered neously it. Thus, decision, making clearly discretionary the trial in what is court admitting report in would have had to assess the “fairness” of the entire alia, light, expert had this inter the not case in of fact that defendant’s any way report in view of testified in as to the substance of the and the might implications requiring fact there constitutional defen- be expert’s report dant an to his affirmative defense. to introduce adverse misinterprets asserting discretionary by The 106 that this dissent MRE psychiatric required” rule have that the evaluation be “would entire into in these Post at 595 n 80. introduced evidence circumstances. clear, diagnosis To we that Dr. Shahid’s was inadmissible be believe 106, irrespective the under MRE 703 and MRE of Confrontation Clause. supra 22. See at 534-535 and n 489 Mich 515 Opinion of the Court

The indignation Mistry’s dissent’s over Dr. “selec- use of confusion this report tive” the illustrates its on doubt, Post at 573. Without a Dr. used point. Mistry report “selectively.” the That is our precisely point. direct, he on report, On testified that he relied the which contained facts and data that formed the basis his opinion, but he never mentioned Dr. Shahid’s diagnosis, actual neither a “fact” opinion is “data,” nor which not and did form basis of Dr. Mistry’s contrary direct opinion.24 testimony Such regarding report entirely proper. Because this testimony permissible defined the of cross- scope and, examination more the re- fundamentally, because contained the testimonial port statement a witness confront, defendant had the right prosecutor had (1) narrowly, to either: proceed employing the facts and in report data on which the experts relied forming own opinions, opin- their but not Dr. Shahid’s (2) ion; or Dr. to testify call Shahid to his opinions.25 as Yet, the did neither prosecutor and instead Dr. placed recognize report comprised The dissent fails Shahid’s is many statements, only diagnosis, one of which concerns Dr Shahid’s and prosecutor’s that it was the introduction of this statement which violated right of defendant’s confrontation. dissent’s determination not to among report differentiate statements within the on consider each analysis own its merits strains its from the start. The out-of-court proper analysis statement on which confrontation is focused Dr. diagnosis, statement, selectively Shahid’s defendant never used that or otherwise. opinion suggesting The dissent misunderstands that “the majority impeachment expert believes that no of the defense could have prosecutor occurred under these circumstances unless the called Dr witness,” asserting “hamstring as it Shahid own that we impeachment expert contrary, of an .. . .” Post witness at 601-602.To the opinion what this concludes is that statement issue—Dr. Shahid’s diagnosis clearly being impeachment. used for Wealso note that —was prosecutor many proper including impeachment, had avenues report utilization of the facts and data in Dr. contained Shahid’s relied on expert. the defense 547 op Opinion the Court cross- during his jury the diagnosis before Shahid’s diagno- this same Mistry; employed of Dr. examination and expert; repeatedly of his own examination in the sis all closing arguments, diagnosis this same referred to as a witness.26 Dr. Shahid calling without the rests with Third, proof burden the ultimate trial to to obligation bring and thus prosecutor, state’s, the accused is against” “witnesses head this would turn on its The dissent defendant’s.27 affirmatively “defendant holding principle he Dr. Shahid because right his to confront waived prosecutor’s use of Dr. Shahid’s that the We reiterate our view clearly truth of the diagnosis was for the on each of these occasions goes disagrees, supra at 530-532. The dissent matter asserted. See impeachment report lengths explain used for to how the to post problems the dissent’s purposes. with See at 589-594. First, diagnosis analysis not focused on the as are threefold. it is Clause, lumps together the implicating hut rather the Confrontation attempts Second, entirety report. never even to the dissent impeach diagnosis another explain as Dr. Shahid’s could how a such Finally, again expert’s opinion true. the dissent if it is not taken as explain prosecutor attempts could have used how never even expert, agreed diagnosis impeach with it. Like the his own who during prosecutor’s Appeals, think it is evident that we Court Balay, the remarks from Dr. Shahid’s of Dr. he used direct examination prove the truth of the matter report evidence “to as substantive however, do, agree Fackelman, unpub op at 6. We .. . .” asserted respect: impeachment in one we too conclude the dissent’s discussion report prosecutor’s repeated reference to Shahid’s that the including urging during closing argument, diagnosis his statement say, important even at what Dr. Shahid had to that “it’s real to look you,” testify though here before was for the truth of he didn’t dissent, though, arguments find these Unlike the we matter asserted. entirely prosecutor employed prejudicial and indicative of how throughout report diagnosis trial. on the affirmative defense defendant bore the burden Because presentation insanity, of evidence that he was to initiate the he had however, required, legally He was not at the time of the offense. insane himself, bring against” which rested with the a burden to trial “witnesses prosecutor. Mich 515 Opinion the Court

chose, a matter call him strategy, as of trial not to as a added). (emphasis witness.”28 Post at 574 only The dissent can arrive at its that conclusion defendant waived his to confront Dr. Shahid right by transforming of criminal law and first-principles creat- (1) ing constitutional environment which: a crimi- raising nal defendant must between choose affirma- (2) confrontation, tive defense and his the right rule with completeness par Amendment, is on the Sixth (3) may the burden of sometimes shift proof from the state to the call against accused to witnesses him- self.

B.MELENDEZ-DIAZ Next, the we must address differing perspectives on the Confrontation Clause that exist between this opin- ion that of the dissent. These differences are best understood perhaps comparing quotation the dissent appears the to the believe lends most for its support analysis of Melendez-Diaz— —footnote strategy, say As for the dissent’s of trial discussion it to suffices question wrong party. discussion, it asks an irrelevant of the In this explores why may dissent the reasons counsel have chosen not to defense Shahid, call Dr. and contends this decision is entitled to deference disagree this; just under Strickland. We do with not believe that we reasons for counsel’s decision are irrelevant because can be obligation against” question— under no to call “witnesses himself. “Why you call didn’t Dr. Shahid as witness?”—would be better directed prosecutor, obligation. though toward the who such is under But even one may prosecutor’s question— be curious about the answer to especially hospital only because Dr. Shahid at a worked 30 minutes away only thing answer is also irrelevant. The relevant is that the —his prosecutor testify showing did call Dr. Shahid to at trial and made no regarding unavailability, required as he was do under Confron sum, strategic concerning tation Clause. counsel’s decision which bearing Rather, call implicated witnesses to had no on clause. what prosecutor’s diagnosis clause was substantive use of Dr. Shahid’s calling testify. without him to Opinion op the Court lends the most believe that we quotation itself, Clause Confrontation for ours —the support the accused prosecutions, “In criminal all which states: with the be confronted enjoy right... shall believe respectfully him . . . .” We against witnesses footing on far surer constitutional analysis is that our of the dissent. than that to the some context

First, necessary provide it is re “[M]edical by the highlighted quotation dissent — not be . . . would purposes treatment created for ports today” our decision under testimonial —which of Melendez-Diaz. footnote dissent’s summarization affi was whether in that case presented The question analyses, laboratory results of reporting davits by seized that a substance at trial to show admitted of right defendant’s cocaine, violated the was police responded in dissent Kennedy confrontation. Justice rule away accepted sweeping] [was] that the “Court evidence,” and of scientific the admission governing in appendices. this claim two support offered cases Footnote 330, at 357-363. Melendez-Diaz, 557 US the cases distinguish sought majority opinion Kennedy: by cited Justice irrelevant, they in simply since

Other[] [cases] are purposes, reports created for treatment medical volved- today. under our decision testimonial which would not be (Fla. 2000); 258, 258-259 See, State, e.g., 775 So. 2d Baber v. 223-225, 27, Garlick, 545 A. 2d 34-35 313 Md. State v. (1988). 2.]n [Id. at 312 with the dissent’s the actual footnote comparing relevant omissions. highly two one discovers

quotation, considered, when this are these omissions When as context, hardly it serves is placed quotation sweeping proposition. dissent’s to sustain the authority 489 Mich 515 Opinion of the Court First, the dissent fails to account for the final phrase it all-important the sentence finds so our deci- —“under today.” dissent, sion Id. to the of the Contrary suggestion Court Supreme expressly did not state a medical created for treatment a report purposes is not testimonial within meaning statement of the Sixth Amendment’s Confrontation Clause. What actually Melendez-Diaz stated far more narrower and limited—that the cases by collected Justice Kennedy were “irrelevant” be- they cause involved “medical reports created for purposes,” treatment whereas Melendez-Diaz in- volved an affidavit for made purpose providing Thus, testimony trial. Id. Melendez-Diaz accurately stated that medical reports cited the dissent “would not be testimonial under our today” decision because that decision did not involve a medical report created for treatment Id. purposes. Determining the circumstances under report which medical created purposes treatment could be considered testimo- simply nial was left day.29 for another That Melendez- Diaz did not hold what the dissent contends it held by the supported fact that did Melendez-Diaz not any way report involve medical created for treatment purposes. Accordingly, the footnote is only dictum, but it is dictum that in no way supports dissent’s that “none assertion of the nine justices served who on the Melendez-Diaz Court would have included medical created reports for treatment purposes in definition of testimonial statements.” Post at 566. This assertion has no basis because the Supreme Court was never emphasize disagree report We that we do Dr. Shahid’s is a However, report purposes. medical created for treatment it is also a particular report involving psychiatric opinion, kind of medical —one prepared legal and one purpose as well as a treatment factors —both being implications assessing report in relevant of the under the Clause. Confrontation Opinion Court it Melendez-Diaz, in question with this presented any this question presented has not been case. subsequent the two reference to

Second, any the dissent omits Baber v State quotation, follow its directly citations two in the context of these Read and State v Garlick. a critical distinction cases, communicates the footnote This concerning medical records. have made that courts of these cursory even a review by is evidenced distinction hospital and Garlick involved cases. Both Baber two administered for laboratory tests records of results of and a a blood alcohol test purposes, medical treatment case, although In each the labora- test, drug respectively. trial, other witnesses testify did not at tory technicians medical Baber, hospital’s did. In from the hospital under the business laid a foundation records custodian rule, and the head of the hearsay to the exception records Baber, 775 So testified. chemistry department hospital’s Garlick, room who emergency physician 2d at 259. In screening drug and ordered the treated the defendant Garlick, Md 212.30 In these circum- testified. the defen- stances, determined that Baber Garlick violated, and of confrontation had not been right dants’ cases, opinions their citations of these both their with that suggested agreement Melendez-Diaz conclusion. the “two-

However, applied neither Baber nor Garlick IV(C) test,” opinion, see of this part part to arrive at a adopted dissent believes Melendez-Diaz medical report rule that the admission of a per se never violate the created for treatment can purposes (1) distinguishable because These facts alone make the instant case (2) missing hospital no one from the testified at defendant’s trial and conjunction laboratory technician who had worked witness was not a doctor, treating primary primary but the doctor himself. with a 489 Mich 515 Opinion of the Court Indeed,

Confrontation Clause. after recognizing traditional of “the understanding confronta- concept tion device for truth,” as a to advance search qualified Garlick its in a expressly holding passage that particularly relevant to instant case: however, say, not This is that there have not been (or hospital precisely some more records some entries records) objectionable within those that have been or found example, Gregory State, to have been inadmissible. For in v. 297, 325, 437, 454 (1978), App. 40 Md. 391 A.2d the medical summary containing staff opinions conference of sev psychiatrists eral was not admissible their without testi mony. The court stated: part

“The mere fact that hospital a document is of a ordinary hospital’s record made course of the busi- ness, may hearsay therefore be admissible under rule, ipso comply does not make its admission with facto requirement... the confrontation . birth, have here person’s

“We not the routine record of a death, body or or temperature, any other not similar ascertained, of fact or objectively gen statement condition erally normally undisputed, reliable and any and free from falsely. dealing opinions motive to record areWe with the witnesses, supposed expert who, document, in this are testimony giving only appellant’s not as to mental condi tion, but, importantly, more as to or whether not he is criminally responsible.” [Garlick, 313 Md at 220-221 omitted).][31] (quotation marks and citation It is sufficient to observe that we too dealing “are opinions [], who, a supposed expert witness document, giving testimony only [was] not as to appel- condition, but, lant’s mental more importantly, as to whether he criminally responsible.” [was] Id. at 221. Baber cited Garlick favorably quoted extensively from it.

Opinion of the Court hospi- that not all recognized Other courts have also can treated in the same manner tal records be requirement the confrontation purposes con- special deserve opinions, particular, psychiatric Neil, 337, F2d 347 See, e.g., v 452 Phillips sideration. (CA 1971) 6, (holding psychiatric that admission of the defendant sanity records on the of hospital opining “dan- noting violated the Confrontation Clause and in the introduction of records con- ger which inheres never ad- taining diagnoses”).32 Having psychiatric issue, dressed this Court has never Supreme 32 simply principled “[t]here The dissent contends that is no distinction differently analyzing psy applying for the Confrontation Clause when analyzing medical treatment than when medical treatment for chiatric courts, including ‘physical’ illnesses ... .” Post at 586. Other those cited Melendez-Diaz, See, Garlick, favorably disagree. e.g., in Md at 313 plain think that 220-221. We the distinction these courts discern is both instance, principled. Taylor, For see New York Ins Co 79 US Life 66, 73-74; (1945), App DC 147 F2d 297 in which the court articulated how psychiatric diagnoses purposes are distinctive of for confrontation: upon psychiatry say profession It is no reflection of to necessarily conjecture. diagnosis

it deals in a field of Even in the insanity, psychiatric in actual cases are rare which trained wit- opposite do not come to ... It difficult to nesses conclusions. right conceive of records in which the of cross-examination is more important conjectures psychiatrist psycho- than on a neurotic condition. Gregory, App (“Psychiatry particularly 40 See also Md at 326 — Considering forensic branch of it—is an inexact science... . the less- art, shifting opinions, given than-certain and ever state of the these their effect, cross-examination.”); potential cry Phillips, 452 ultimate out (explaining “danger” in F2d at 347 that the inherent the introduction of psychiatric diagnoses especially present without cross-examination is reports opinions when “the and conclusions which are stated consist explication reasoning processes without a detailed of either the facts or 10; they based”); Cosgrove, n on which are State v 181 Conn (1980) (noting A2d 33 that “the best reasoned” cases that have held reports ap- ratio decidendi medical inadmissible “include those whose pears opinions reports to be that the in the are of kind which are issue frequently subject varying interpretations”). to 489 Mich 515 op Opinion the Court this adopted the admission of expressly approach confrontation, purposes medical records for but it and, observed, certainly rejected it, has never as several cited in approvingly cases Melendez-Diaz recognize Thus, dissent, contrary distinction.33 footnote a per does not set forth se rule admissi- regarding the bility of medical records under the Confrontation If such anything, suggests Clause. footnote alto- gether legal different when in standard it is viewed and, context it is particular, light when understood of the two which the cases Court Melendez-Diaz selected from among some 80 cases in Justice Kennedy’s appendixes as the of medical prime examples not be reports would testimonial within the mean- of the Sixth ing Amendment under its decision.

C. DISSENT’S TEST It is also on important comment test dissent’s determining extrajudicial for whether an statement is testimonial. recognizes Supreme The dissent in Court “did scope not delineate the of Crawford testimonial statements” and that articulated Crawford several of concept. formulations this Post at None- 577. theless, the proceeds dissent to articulate its own test: In reviewing progeny, and its it becomes clear Crawford the Court considers two related factors above all deciding extrajudicial

others when whether an statement is testimonial, parameters and therefore within the of the formality Confrontation Clause: of the statement investigation prosecution within a criminal or and the purpose of [Post 577-578.] the statement. 33 Garlick, see, e.g., Oates, Baber United States v In addition to 560 (CA 45,81 State, 2, 1977); 773, 776 (Del, 1975); Henson v F2d A2d n 332 8 (CA Moran, 770, 1, 1990);

Manocchio Reardon v 919 F2d n 17 780 Manson, (D 982, Cosgrove, Conn, 1980); Supp 491 F 986 at 575 Conn Henderson, 1977). 10; State v 117, (Tenn, n 554 SW2d v Fackelman

Opinion Court judgment, constitutes test, in our the dissent’s While very- synthesize attempt several to not-unreasonable difficult-to-synthesize decisions Clause Confrontation recognized Supreme for Court, the test must be of the very meaning attempt to some accord it what is—an any jurisprudence. citation The absence of tortuous reality. The dissent test underscores the dissent’s support any Supreme in decision Court does not cite “two-part decision exists. test,” no such because its Bullcoming does not in recent decision

The Court’s Bullcoming, 131 S Ct at 564 US at_; fact. In alter this holding of 2713, affirmed the central the Court applies right confrontation Melendez-Diaz—that analysts from a certified evidence who claim to have rejected objective scientific test-—and machine or other “surrogate” testimony argument of a constitutionally permissible expert substitute for awas actually testimony con had of the individual who regarding the Court’s con Questions test. ducted the jurisprudence persist after Bullcom frontation clause (Kennedy, ing. J., id. at 131 S Ct at 2725 See _; dissenting) (“Today’s majority not committed principles applying equal to a common set of shares very holding Crawford”). least, However,at the Bullcoming clearly reconfirmed that the Confrontation report, pre bars the admission of a scientific Clause investigation pared with a criminal connection testimony expert prosecution himself, absent the reliability regardless report’s if and “even of the facial possess scientists] [the of Mme. the scientific acumen veracity ; Id. at of Mother Teresa.” Curie and the (majority opinion) (quotation marks and 2715 omitted.) S Ct at psychi judgment, Dr. Shahid’s citation our necessarily grounded opinions, in sub which are atric vagaries jective interpretations human of the of deserving the constitution’s as of mind, are at least 489 Mich 515 Opinion of the Court of guaranteed protections confrontation cross- analyst’s examination as the certification a blood analysis Bullcoming. alcohol See at 552-554.34 supra clear, To be we with the dissent that “some agree [the can—and meaning given Supreme must —be at n Court’s decisions.” Post 40. confrontation] parsed We too have cases to discern principles, these is, come to in our judgment, reading have what accurately synthesizes holdings that more the various also more to the closely adheres actual of the language Confrontation Clause. The dissent disagrees. Specifically, it faults this for “substi- opinion tut[ing] inquiry an into mere foreseeability a statement’s use at trial into the inquiry primary created[, for which the purpose statement simply contrary Davis, to the mandates of which] Melendez-Diaz, recently and most Michigan Bryant." However, Post at 582. what disparages dissent inquiry as “an into mere foreseeability of a state- trial,” at ment’s use 582 is post what Crawford expressly offered as three one of “formulations of [the] core class ‘testimonial’ statements” —statements made were “under circumstances which would lead an objective witness reasonably to believe that would statement be available for use at later trial[.]” Crawford, Melendez-Diaz, 541 US at 51-52. 557 US at 310, reiterated and this applied language exact determine that the statement at issue in that case was 34 Indeed, Bullcoming, even the dissent which states that “the danger which [to addressed] the confrontation clause is is that may unreliable, innocent defendants be convicted on the basis by untested statements who claimed those observed —or to have preparation crime,” for or commission of the seems more observed — compatible by opinion with the result reached than with that Bullcoming, reached dissent. at_; US 131 S Ct at 2726 (Kennedy, J., dissenting). 557 Opinion of the Court has renounced case subsequent And no testimonial. testimonial statement.35 of a core this definition con- direction, the dissent explicit In of such place Supreme divine from able to it has been tends deter- alternative, exclusive test to decisions an Court inquiry a is testimonial —“an mine whether statement was the statement for which purpose into the primary dissent, this test According to the created.” Post at 582. Davis, Melendez- by proper application a is mandated reading of these at 582. Our Diaz, Bryant. post See earlier, Melendez- explained As very cases is different. The words thing. mandated no such definitely Diaz in the opinion, found nowhere are “primary purpose” and relied on reiterated opinion expressly and that And while of “testimonial.”36 formulation Crawford’s formulation, directly taken from Craw that this The dissent asserts Melendez-Diaz, case “because in does not resolve our and reiterated ford a potential do not lead to definitions of ‘testimonial’ various Crawford’s clear result one respectfully way .. . .” Post at 588 n 69. We or the other cannot he read to This decision believe the dissent misreads Crawford. “ ‘[v]arious formula require must fall within all of its that a statement ” in order to be core class of ‘testimonial statements’ tions of this Indeed, very Crawford, 541 US at 51. testimonial. considered hardly all the formulations satisfied statements at issue Crawford police Sylvia in the course of an to the because Crawford’s statements “ not, example, ‘extrajudicial interrogation clearly state were materials, such as affida in formalized testimonial ments . . . contained ” testimony, vits, depositions, prior confessions!.]’ Id. at 51-52. The report apply particular does not Shahid’s fact that a formulation Supreme hardly Court does not case because the fatal to defendant’s that, that a statement is testimonial require after we have identified formulation, apply formula accepted continue to all other we under controlling any clear, sequence. treat as we do not tions in To be Rather, simply recognize that the particular we formulations. Crawford controlling adopt single expressly definition declined to Court has viable, “testimonial,” thereby leaving one of which formulations all of its report. squarely applies to Dr. Shahid’s Melendez-Diaz, actually appear US at The words explained Specifically, Supreme purpose.” Court are “sole 489 Mich 515 Opinion of the Court

Davis and both Bryant employed primary purpose inquiry to determine whether statements made to the police very specific in the of an ongoing context emer- testimonial, gency were those did not cases mandate applied that this was the exclusive test to be generally fact, Clause following Confrontation cases. for the reasons, Davis and as Bryant endorsing we read a quite different approach. purpose test primary specifically crafted in determining

Davis for the whether purpose statements in made context violated ongoing-emergency a defen- Davis, right dant’s of confrontation. 547 US at 822. The test is in that context, relevant because generally the declarant is either speaking authorities to obtain assis- tance in an ongoing what is or “to emergency establish or prove past events potentially relevant to later criminal prosecution.” Thus, Id. the test is critical in the ongoing- emergency context because of proper characterization such will always prove statements decisive as to whether these statements are not. testimonial or

Apart from the fact that “primary the purpose” test has never applied beyond been ongoing-emergency the context, the specific “primary test purpose” articulated by the dissent is considerably different from the actual “primary Davis, 822, test purpose” applied in atUS which was as follows: are

Statements nontestimonial when made in the course police interrogation objectively under circumstances indi- cating primary purpose interrogation the of the is to police ongoing emergency. They enable assistance to meet an objectively are testimonial when the circumstances indicate ongoing emergency, there no is such and that “under purpose Massachusetts law the sole affidavits was provide ‘prima composition, quality, evidence facie of the and the net weight’ analyzed substance, Laws, of the § Mass. Gen. ch. 13.” Id. opinion. We address the relevance of these in words later this Opinion the Court prove or interrogation is to establish purpose of the primary prosecution. to later criminal potentially relevant past events it for which This in the context makes sense obviously test circumstances emergency designed, specifically objectives concerning ambiguity is often which there However, out- utterances. of the declarant’s purposes circumstances, context, ordinary in more side irrelevant, and the largely the test are questions posed limited context inherent in the characterization either/or how a court unclear utterly It is of the test is absent.37 test outside purpose” “primary apply would emergency no to a case which Davis context would be consid- “purposes” alternative alleged —what of these is the resolution which ered, and how would principles on the meaningful way in any bear “primary” A “primary Clause?38 inherent in the Confrontation have little moorings from its would test removed purpose” of Davis test “primary purpose” with the in common nomenclature. for its except not to extend for our decision support

We find ongoing-emergency beyond test “primary purpose” point. In the context which Melendez-Diaz illustrates laboratory made, which involved state in Melendez-Diaz were statements purpose” for use at a analysts preparing whose “sole was affidavits not, engaged, trial, engage, have in not and could criminal the Court did inquiry. inquiry “primary purpose” would have made no sense Such an a only controversy had one obvious the affidavits in in that context since undisputed purpose. 38 Stahl, 186; State v persuaded by 3d 855 NE2d 111 Ohio St We are not jurisdictions (2006), relied on the dissent. from other 834 or the cases examinations, it but only sexual assault does each of these concern Not See Hernandez minority they represent appears view. that also 2007) (Fla (surveying State, 1270, App, 2d 1284-1285 946 So to a authority regarding victim’s statement whether a sexual assault conformity deciding, with the professional in was testimonial and medical authority jurisdictions cases “weight that have decided in other was). facts,” involving it similar

560 Mich 515 Opinion of the Court for context which it created and it as the apply exclusive, in controlling test this new context the very Supreme Court caselaw dissent claims “man fact, we In apply clearly dates” that its test. one principle emerging Bryant from Davis and is the circum stances context in was made which statement are relevant, determinative, if highly deciding not whether its admission offends the Confrontation Clause. See Davis, 547 US at 827-830 (repeatedly emphasizing that statements are “testimonial when the circumstances objectively indicate is ongoing that there no such emer gency”) (emphasis added); Bryant, 562 US 131 S Ct at_; (explaining how “new context” and circum stances “confront[ed] for first time” affected its rul Indeed, ing). thing the one that does seem clear from recent Confrontation Clause decisions is that the Su preme Court has very explicitly adopted bright-line test determining whether a testimonial, statement is and instead has its on a developed jurisprudence case-by- (“We See, case e.g., Crawford, basis. 541 US at 68 leave for day another any spell effort to out a comprehensive ”); Davis, definition ‘testimonial.’ at 823 n 547 US (“[O]ur holding it today makes to consider unnecessary whether and when statements made to someone other than ”); law enforcement are personnel ‘testimonial.’ id. (“We at 830 n 5 have acknowledged that holding our is not ‘exhaustive classification all conceivable statements —or even all conceivable statements re sponse police but interrogation,’ rather a resolution of ....”) (citation the cases before us omitted); Bryant, 562 US 131 S Ct at 1158 (stating that whether a at_; statement requires testimonial a “highly context- dependent inquiry”).39 Bryant, dissent in Scalia Justice had further words concern “ ”

ing ‘highly context-dependent inquiry,’ what he described as the Opinion the Court dissent’s merit the reasons, we find little For these man- Melendez-Diaz, Bryant Davis, contention purpose a rely primary on exclusively we date that diag- of Dr. Shahid’s whether use to determine inquiry defendant’s testimony, implicated nosis, absent Supreme recent examining of confrontation.40 right decision, it is its the dissent rests on which Court cases cases is of these reading dissent’s the apparent has ar- Court decision Supreme No hardly mandated. controlling “two-part allegedly the dissent’s ticulated in each of the language much test,” there is that it is suggest dissent to relied on the decisions cloth. of whole test made out CLAUSE

D. CONFRONTATION inability to to the dissent’s unsympathetic We are not test Clause all-purpose Confrontation single fashion a These decisions Court decisions. Supreme from recent consistent, varying con- they employ entirely seem not Con- discerning tests and formulations stitutional and sus- violations, lengthy are they frontation Clause context, taken out of having language their ceptible employed. Bryant, at_; majority 562 US 131 S Ct at See which (“[T]he (Scalia, J., dissenting) admissibility of a statement 1175-1176 context-dependent inquiry’ type highly ‘a into now turns on wielded; type the defendant weapon of crime the defendant declarant; committed; if the declarant is the medical condition of the scene; injured, paramedics whether the have arrived on the whether (cid:127) area’; place ‘exposed public whether takes encounter capable disorganized; appears the declarant is whether encounter police forming purpose; the scene of the whether the have secured statement; crime; formality finally, whether of the (citations omitted). reliable.”) statement strikes us as “formality Further, regard prong, to the dissent’s second post investigation prosecution,” within a criminal the statement report 577-578, opinion. not think that the n 11 of this We do see being lacking formality it from considered sufficient to exclude Clause. “testimonial” under Confrontation 489 Mich 515 op Opinion the Court justices sharply and making decisions, are divided in these proposi-

it sometimes difficult to know which garnered support tions of constitutional law have majority of the Court. we Nonetheless, believe that the dissent has erred its deconstruction a clause taken from a footnote in sharply opinion Supreme that, divided of the and Court fashioning result, as a it has also erred in its own synthesized Supreme “exclusive”test from Court deci- actually sions, none of which has articulated that test language incompat- and each of which has articulated ible exercise, with that test. However difficult an this majority sought by has also to abide the direction of the Supreme very Court reached a different result than the dissent. though, analysis believe,

We that our would be in- complete respond if didwe not dissent’s “two- part analysis test” with an alternative of our own. This analysis language is drawn from the actual of the Sixth Amendment of the United States Constitution. As the “supreme Land,” of the Const, VI, Law US art cl it appropriate language seems to consult the actual of the Supreme Constitution when Court caselaw is not alto- gether clear.

The Confrontation Clause of the Sixth Amendment ofthe United States reads, Constitution “In all criminal prosecutions, enjoy right... shall accused to be against By confronted witnesses him . ...” its straightforward terms, the Confrontation Clause di- (1) inquiry questions: person rects into two Does the controversy comprise against” a “witness the accused (2) under Clause; so, Confrontation if has the opportunity been accused afforded an to “confront” that witness under the Confrontation Clause? Opinion of the Court 111(A) of this part forth in First, the reasons set the first here has satisfied the accused we believe opinion, constituted a that Dr. Shahid demonstrating by inquiry that Dr. Shahid Indeed, we believe him. against” “witness him. Dr. far, against” “witness was, important the most by experiencing that defendant was diagnosis Shahid’s as substantive prosecutor employed was psychosis fact, not, experiencing that defendant evidence member of incidentally, any psychosis psychosis, —a having as understood easily could have jury probably that a criminal of a parent perceiving as a function arisen death of his caused the needless who had perpetrator about unrepentant child was unremorseful teenage was satisfied to legal system and that the the occurrence misdemeanor. with a six-month perpetrator punish of the ultimate issue went to the heart report Dr. Shahid’s or innocence under trial, guilt which defendant’s upon turned, by every relied on other entirely and it was the law behalf of the testifying on expert witness significant prosecution. 111(A) of this

Second, part set forth for the reasons here has satisfied the we believe the accused opinion, he had no demonstrating oppor- inquiry by second accused was never Dr. Shahid. The tunity to confront Shahid, Dr. to cross-examine opportunity afforded the unable to that the accused would be ensuring therefore be unable Shahid; that the accused would Dr. question eye open him in the that Dr. Shahid look require to face-to-face, judge jury of the and court, presence jury that the judge questions; and respond demeanor, the required never be assess would Dr. credibility and the assuredness, expertise, Shahid.41 inquire application plain us to into of the error standard leads if, might he What when asked have said had testified.

what Shahid 489 Mich 515 Dissenting Opinion Young, C.J.

The use of Dr. Shahid’s report against defendant absent any opportunity for cross-examination is exactly what the words of the Confrontation Clause prohibit —however finely the dissent chooses to parse footnote 2 of Melendez- By Diaz. guaranteeing that “the accused enjoy shall right... to be confronted with the against witnesses him,” the Framers of the Confrontation Clause sought to guarantee that what happened at defendant’s trial would within happen our criminal justice system.

V CONCLUSION Because we believe that defendant has been deprived of right of confrontation under the Sixth Amendment, and because we believe he has suffered considerable prejudice result, as a we reverse the judgment of the Court of Appeals, vacate defendant’s convictions, and remand this case to the trial court for further proceedings. Marilyn Hathaway Cavanagh, Kelly, (except Mary IV), JJ., footnote and part Kelly, Beth J. concurred Markman, Young, C.J. (dissenting). The question posed by this case is: Can an out-of-court statement selectively used by a defendant in support of his principal defense serve explain diagnosis, Ms he could not articulate Ms reasons? What if Ms compelhng? rationale was not viewed as explained What if he had that Ms diagnosis psychosis” necessarily of “no did not mean that defendant was not legally msane at the time prosecutor’s of the incident expert and that the misinterpreted diagnosis? if, had Ms What on the basis of new research or upon reviewing files, further defendant’s medical he had modified Ms diagnosis? if, Or what standing on cross-examination face to face with defendant, simply jury he told the that he harbored some doubts about defendant experiencing whether “psychosis,” might have lost touch reality at the just time of the incident? What if he was an ineffectual hardly ifs,” witness? These any exhaust the list of “what the answer to one might of wMch have altered the outcome of defendant’s trial. v Fackelman People by Dissenting Opinion Young, C.J. predicate claim after the Clause as a for a Confrontation impeach prosecutor the has the statement used majority expert? answer Defendant and the defendant’s question I the affirmative. believe this unquestionably dissent. no and therefore answer is case, declined call defendant’s trial counsel ofthe out-of-courtstatement —a as a witness author psychiatric that the he believed evaluation—because a bad for the defense author would be witness insanity proffered defense. This would undermine strategy proved partially successful; the defense trial mentally appeal, guilty jury ill. On found defendant but attempts now this conscious transform raising parachute” by strategy “appellate trial an into premised claim on an ineffective assistance of counsel alleged because the an Confrontation Clause violation statement, which defendant’s author of out-of-court testify expert to, did relied on referred not own Although jurisprudence abhors defendant’s trial. our sanctioning appellate parachutes,1 majority such strategy. appellate I here this artful cannot. blesses notwithstanding, United These uncontested facts Supreme equally inconvenient States Court caselaw majority’s Apart appellate to the from the conclusion. parachute problem, psychiatric evaluation that de- rights claims Confrontation Clause fendant violated his there- a testimonial out-of-court was not statement implicate rights guaranteed fore did not even Supreme Clause. The United States Confrontation perfectly v Court has made this clear: Melendez-Diaz expressly Massachusetts, “medi- the Court stated that purposes reports . . would cal created treatment . meaning not be testimonial” statements within (2000) Carter, 206, 214; 462 Mich See NW2d (“Counsel appellate may parachute.”). error harbor as

566 489 515 MICH Dissenting by Opinion Young, C.J. the Sixth Amendment’s Confrontation Clause.2 Missed in majority this case the fact that none of the justices nine who served on Melendez-Diaz Court would have reports included medical created for treat- purposes ment in the definition of testimonial state- ments.3 The evaluation at issue in psychiatric this case falls within that of category evidence considered to be nontestimonial because it was created to evaluate and treat during his two-week hospitalization a psychiatric intensive care unit.

Moreover, even if psychiatric evaluation at issue be were to considered testimonial within the of meaning Clause, prosecutor’s Confrontation purpose referring to Dr. Shahid’s evaluation was to impeach defendant’s expert, a falls purpose outside the purview of the Confrontation Clause.4 Because neither the facts nor supports the law majority’s decision case, I would affirm the decision of the Court Appeals, albeit for different reasons than the Court articulated, Appeals and affirm defendant’s convictions.

I. FACTSAND PROCEDURAL HISTORY This case involves defendant Charles Fackelman’s 2 Massachusetts, 305, 2; 2527; v Melendez-Diaz US 312 557 n 129 S Ct (2009). 174 L Ed 2d 314 3 majority opinion, justices, Justice Scalia’s written on behalf of five expressly reports purposes stated that “medical created for treatment . .. Kennedy’s today.” would not be testimonial under our decision Id. Justice dissenting opinion, remaining justices, written on behalf four “ would ‘produced by, have limited testimonial statements to those of, government responsible the involvement adversarial officials ” J., investigating prosecuting (Kennedy, crime.’ Id. at 346 dissent ing), quoting Comment, Toward a “testimonial": How definition of autopsy embody reports qualities statement, do a testimonial (2008). 1093, Cal L R 36, Washington, 9; 1354; 541 US 60 n 124 S Ct 158 L Ed Crawford (2004). 2d 177 Opinion by Dissenting Young, C.J. Ohio, Toledo, psychiat- at a emergency hospitalization March 2007. on unit, beginning ric intensive care evalu- psychiatric concerned with we are Specifically, treating physician, by defendant’s prepared ation Shahid, hospitalization. during Agha includ- depression, from severe Defendant suffered teenage of the death his following attempt, a suicide ing par- became depression in June Defendant’s son 2006. his March 2007 days up to ticularly leading acute in the of the beginning it was the because hospitalization team. While high for his son’s school season baseball 27, 2007, defen- game the on March watching team’s parents . . . off” of his “began and cry” “wave[d] dant to Instead, talking jogged him. he from to son’s teammates room, car, home, and locked himself his his drove to “occasionally [he] he did when something which was want seen.” didn’t to be home in north- next from his day, defendant drove man he County to the Monroe believed

ern Ohio confront Krell.5 Defendant death, Randy for his son’s responsible According incident. that he did not remember the testified wielding home a Krell, defendant arrived at Krell’s Krell, at chest and gun He the Krell’s told pistol.6 pointed Defendant then directed Krell toward gonna “We’re talk.” passenger in a in a that was involved Defendant’s son was a vehicle had single-car the driver a second automobile that accident. Krell was passenger. chasing a Krell in which defendant’s son was been vehicle negligent homicide for the death of defendant’s son convicted of angry with Krell and that accident. Defendant testified he was [for] the life.” in a cardboard rest of his he “wanted see him live box that, long the March events also before Defendant admitted conviction, thoughts confronting resulting Krell and in his he harbored previously causing physical pain. him Krell testified that defendant had during “lunged” him trial. Krell’s criminal 6 Although remember what occurred that he did not defendant testified 28, 2007, dispute evening he did not afternoon of March on the and neighbor. testimony of Krell Krell’s 489 Mich 515 Dissenting Opinion by Young, C.J. garage, continuing

Krell’s all the while to tell Krell that gonna “we’re talk and end this all in a about minute.” When defendant loaded the chamber for pistol Krell ran firing, across the street into his neighbor’s house and neighbor neighbor asked his to call which did. neighbor call, Before the his 911 completed neighbor “a heard loud crash” and his “entire doorframe came flying entranceway....” in and landed in ... Still brandishing weapon, defendant knocked the tele- phone out of the neighbor’s hand and looked through Krell, house for about or 4 spending minutes inside 3V2 leaving. house before

Defendant returned to again his car without con- fronting evening, Krell.7 Later that defendant arrived at his mother’s house in Toledo, walked heat over register, gun in the air placed duct. He also called his brother and him get asked to “come and it and get house, rid it.”8 After he left his mother’s defen- family dant’s safety, friends became worried for his they began searching Eventually, family him. friend found defendant at a in gas Bowling station Green, Ohio. At the request of the family’s attorney, the friend drove defendant to Flower Hospital Toledo. Just hospital, outside the and apparently while the family attorney finalizing defendant’s admission into police the hospital, arrested defendant. Defendant was searched but then released from police custody his hospitalization.

After spending 28-29, of night March at Rescue Crisis Mental Toledo, Health Services in defen- 7 that, leaving neighbor’s calling Krell testified after his and 911 house himself, car, driveway, he watched defendant enter his back out of Krell’s away and drive from Krell’s house. 8 subsequently nearby Defendant’s brother and mother drove a quarry, pistol deep quarry. and his brother threw the into water v Fackelman Opinion by Dissenting Young, C.J. to be Hospital Flower back to dant was transferred unit. De- intensive care the psychiatric admitted into care and supervision under the placed fendant was Dr. Shahid. defendant, Dr. Sha- observing and interviewing

After on Evaluation” “Psychiatric three-page hid prepared letterhead, signed Dr. Shahid which Hospital Flower described 31, 2007. The evaluation March and dated illness, past psychiatric history present defendant’s history, history, history, family social history, medical limitations, examination, and strengths mental status plan and diagnosis, length hospitalization, estimated evaluation Dr. concluded Shahid of treatment. that “[m]ajor from depression,” defendant suffered that that it was “severe “single and episode,” it was a psychosis.” without home invas first-degree charged

Defendant was dangerous ion,9 felonious assault with counts of two an in Defendant raised weapon,10 felony-firearm. three-day trial. Defendant tes sanity jury at his defense at Krell’s up know he ended tified that he did not how Krell, and chasing house, he did not remember down the door knocking did he not remember he did Furthermore, he testified neighbor’s house. house, hiding gun, his to his mother’s going not remember Hospital. Dr. at Flower talking Shahid case-in-chief, called his While presenting witness, Mistry, Zubin who testified that expert time of the crime.12 legally insane at the defendant was 750.110a(2). MCL 10MCL 750.82. 11MCL 750.227b. expert presented prosecutor no witness his case-in-chief began presented his ease-in-chief

had rested when defendant expert witness.

570 Mich 489 515 Dissenting Opinion by Young, C.J. called prosecutor witness, a rebuttal expert Jennifer Balay, who testified that defendant legally experts they sane. Both testified that on part relied Dr. Shahid’s evaluation in their forming opinions about However, defendant’s mental party state. neither called witness, Dr. Shahid as a nor did either party formally introduce his evaluation into evidence.

The jury found defendant but guilty mentally ill of all the charged offenses. appeal, On the Court of Appeals remanded this case to the trial court for Ginther on hearing defendant’s claim of of ineffective assistance hearing, counsel.13 At the defendant’s trial counsel object testified that he did not prosecutor’s to the use Dr. Shahid’s evaluation because he thought the pros- using ecutor was the evaluation solely impeach Moreover, defendant’s expert. explained, he it did not occur to him use the evaluation could violate the Confrontation Clause.14 More also important, he testified that he “didn’t want to call attention to” the evaluation and that he feared Dr. Shahid “would have if been bad witness everything report would have come . . .”15 out. The trial court concluded that (1973). People Ginther, 436; 390 Mich NW2d proponent trial, As the the evaluation defense counsel’s first entirely reaction to the Confrontation Clause claim advanced here is attempt understandable. The to convert the use of this evaluation advanced defendant himself into a Confrontation Clause violation plausible only majority. seems to the 15Not to be overlooked is the fact that defense counsel concluded that evaluation, whole, the entire when considered aas undermined the insanity presenting probably defense that he was and that Dr. Shahid supported legal would insanity not have defendant’s defense. Defense strategy, therefore, importance counsel’s trial was to minimize the evaluation, notwithstanding expert selectively that his own relied it in on formulating opinion legally that defendant was insane. circumstances, entirely why Under the it was understandable defense rely expert’s opinion counsel would choose on his own rather than People by Dissenting Opinion Young, C.J. constitutionally ineffective receive did not convic- defendant’s and affirmed of counsel assistance grounds on affirmed the Appeals The Court tions. by allowing pros- erred counsel had that, although for testimonial statements extrajudicial to ecutor use asserted, the error did matter truth of the applica- We defendant’s granted defendant. prejudice to appeal. for leave tion OF REVIEW

II. STANDARD ineffective assis- that he received Defendant claims object to the use counsel failed to of counsel after tance evaluation. “Whether of Dr. Shahid’s psychiatric is of counsel denied effective assistance person has been A judge fact and constitutional law. question a mixed whether facts, and then must decide must find the first the defendant’s a violation of facts constitute those to of counsel.”16 right effective assistance constitutional error, findings fact for clear trial court’s We review a of constitu- any underlying questions we review while law de novo.17 tional

III. ANALYSIS OF COUNSEL A. INEFFECTIVE ASSISTANCE us a claim of ineffective presented This is to as appeal Defendant claims that his trial of counsel. assistance insanity by calling Dr. as jeopardize opinion defense Shahid comply merely to MRE evaluation or to authenticate witness reasons, Nor, to would defense counsel want insist 703. similar stand, Dr. prosecutor as once on the Shahid call Shahid a witness: prosecutor subject undermine to examination would would he apparently insanity majority unconcerned about defense. The is why. question very strategy is choice. The obvious trial (2002). 575, 579; LeBlanc, 640 NW2d 246 465 Mich 17 Id. 489 Mich 515 Dissenting Opinion by Young, C.J. constitutionally failing counsel was deficient for object prosecutor questioned expert when the two wit- psychiatric nesses about Dr. Shahid’s evaluation and closing referred evaluation in his statement. The Sixth Amendment of the United States Consti- guarantees right tution a criminal defendant the “to have Assistance of Counsel for his defence.”18 Supreme] “[T]he [United recognized States Court has right right that ‘the counsel to the effective ”19 assistance counsel.’ Supreme The United States Court has articulated requirements two for a defendant to establish that he is entitled a to new trial on the basis of ineffective assistance of counsel:

First, the defendant must perfor show counsel’s mance requires showing was deficient. This that counsel made errors so serious that functioning counsel was not as guaranteed the “counsel” by the defendant the Sixth Amend Second, ment. the defendant must show that the deficient performance prejudiced requires the defense. This showing deprive counsel’s errors were so serious as to the defen reliable.[20] trial, dant of a fair a trial whose is result by Defendant now claims that trial his counsel erred allowing prosecutor question expert his and the 18 Const, Michigan US Am parallel provision VI. The Constitution’s (“In nearly language. 1963, 1, every § uses identical Const art 20 criminal prosecution, right... the accused shall have the to have the assistance ....”). counsel for his or her defense This Court has held that Michigan greater protection Constitution “does not afford than federal precedent regard a right to defendant’s to counsel it when involves Pickens, People a claim of ineffective assistance of counsel.” 446 Mich (1994). 298, 302; 521 NW2d 797 19 Washington, 668, 686; 2052; Strickland v 466 US 104 Ct 80 L S Ed 2d (1984), quoting Richardson, 14; 674 McMann v n US 90 S (1970). 1441; Ct 25 L Ed 2d 763 20 Strickland, 687. US Dissenting Opinion Young, C.J. expert evalua- prosecutor’s Dr. Shahid’s about rebuttal in his evaluation Shahid’s refer to Dr. tion and to proposition closing be- argument. This is absurd his issue of first who opened raised it was cause defendant questioning insanity the door to first and who ex- his defense evaluation because Dr. about Shahid’s during selectively pert on the evaluation relied consid- and because defense’s case-in-chief calling against, Dr. Shahid to ered, but decided why majority explain it not The does witness stand. rely on Dr. Shahid’s the defendant would allow being witness, but called as a evaluation without using preclude prosecutor that same evalua- from calling impeachment in rebuttal without tion for as a witness. Shahid says Today’s majority decision, thus, in effect that required constitutionally prosecutor a call particular an out-of-court author of witness—the use of the defense’s selective statement —on the basis strategic decision statement and conscious The result of to call the author as witness. promote appel- majority’s trial and will be to decision gamesmanship. late majority’s flies in the face of the fact decision his confrontation criminal defendant can waive

that a “[cjounsel rights21 may waive an accused’s consti- rights when the circum- for tactical reasons tutional exceptional.”22 can also waive stances are not Counsel rights explic- “purposefully when he confrontation 21 Allen, 337, 342-343; 1057; L Illinois v Ct 25 Ed 2d 353 397 US 90 S Massachusetts, 97, 106; 330; (1970), quoting Snyder 54 S 78 v 291 US Ct (1934). L 674 Ed 22 (CA Lee, Loggins v 637, 8, 2004), citing v United States 374 F3d 650 1986). (CA 8, exceptional Frey, 364, are 368 “Circumstances 786 F2d personally acquiesced nor not waived when a defendant has Lee, attempted counsel.” 374 F3d at 650. waiver

574 489 Mich 515 Dissenting Opinion by Young, C.J. (and itly opens particular the door on otherwise inadmissible) questioning” line of because “such con- operates allowing govern- duct as a limited waiver ment to introduce further evidence on that same topic.”23 surprise case,

Under the circumstances this it is no object that defendant’s trial counsel failed to to the prosecutor’s use of Dr. Shahid’s evaluation to rebut insanity defendant’s defense. I would hold that defen- affirmatively right dant waived his to confront Dr. strategy, Shahid because he as chose, a matter of trial not Therefore, to call him as a witness.24 he cannot now claim the prosecutor’s failure to call Dr. Shahid as prosecutor a witness on an issue for which the bore no proof rights.25 burden his violated confrontation Notwithstanding the of waiver, issue defendant prosecutor’s claims that the use of Dr. Shahid’s evalu- right ation violated his Sixth Amendment to confront against evidentiary the witnesses him and the rules regarding hearsay. the introduction of I will discuss legal defendant’s claims seriatim.

B. CONFRONTATIONCLAUSE The Sixth Amendment to the United States Consti- provides, part, pros- tution in relevant “In all criminal (CA 2010). Lopez-Medina, 10, United. States 596 F3d I do prosecutor’s concede that rebuttal was an “otherwise inadmis questioning; however, provides support sible” line this decision further affirmatively for the conclusion defendant waived cross-examination of Dr. Shahid. disagreed attorney’s There is no evidence that with strategy. contrary, To the tried hearing counsel admitted at the Ginther present “[w]e had a discussion as to whether or not to .. . Shahid” as witness. III(D) part opinion, For the reasons stated in of this trial strategy objectively reasonable. 575 v Fackelman by Dissenting Opinion Young, C.J. right... enjoy the be shall ecutions, the accused against ..” This him. . the witnesses confronted right incorporated under the to the states been has Fourteenth Amendment.26 prevent “the Clause seeks

The Confrontation particularly procedure, and of criminal civil-law mode against parte evidence examinations as its of ex use Clause deci- its seminal Confrontation accused.”27 Washington, Supreme Court con- sion, v Crawford have allowed would not that “the Framers cluded of a witness who of testimonial statements admission appear unavailable to unless he was did not trial prior opportunity testify, for the defendant had a interpreting previous While cases cross-examination.”28 truth-seeking emphasized the Clause the Confrontation right of the function Crawford confrontation,29 jurisprudence reoriented Confrontation Clause Court procedural safeguards to ensure toward confrontation’s particular “reliability in a manner: be assessed testing in of cross-examination.”30 the crucible 26 406; 1065; Texas, 400, 2d 13 L Ed 923 380 US 85 S Ct Pointer v (1965). nearly parallel provision Michigan uses iden The Constitution’s (“In 1963, 1, every prosecution, § language. 20 criminal tical Const art right... with the witnesses to he confronted the accused shall have ....”). against him or her 27 Crawford, 541 US at 50. 28 added). (emphasis Id. at 53-54 29 Roberts, Supreme explained example, For v Court Ohio “Reflecting underlying purpose to as its Confrontation Clause follows: ensuring factfinding process by augment accuracy the defendant in the only evidence, test the Clause countenances an effective means to adverse hearsay that ‘there no material marked with such trustworthiness ” Roberts, departure general US reason of the rule.’ Ohio 448 from the (1980), by Crawford, 56, 65; 2531; 65 2d overruled 541 S Ct L Ed 597 100 Snyder, quoting US at 107. US 291 test, abrogating Crawford, Roberts US at 61. In Crawford principles” “departs explained from the historical Court that Roberts 489 Mich Dissenting Opinion by Young, C.J. majority helpfully summarizes this conclusion

articulating styles analysis”31 what it an “alternative whether a Confrontation determining Clause violation “(1) has occurred: Does person controversy against’ a ‘witness the comprise accused under (2) Clause; so, Confrontation if has the accused an opportunity been afforded to ‘confront’ that witness under Confrontation Clause?”32 Far from being an analysis, alternative these two questions simply assert Thus, principles. uncontested constitutional first majority’s analysis alternative does not answer difficult and fact-intensive inquiry required review this case. majority’s illustrates,

As the test and as the Craw- held, Court the Confrontation Clause “applies ford against ‘witnesses’ words, accused —in other those ”33 who testimony.’ ‘bear emphasized the Crawford distinction qualitative between testimonial statements and nontestimonial statements for purposes applying the Confrontation Clause: hearsay issue, wholly

Where nontestimonial at is is it design consistent with the Framers’ to afford the States flexibility development hearsay in their law .... Where issue, however, testimonial evidence is at the Sixth Amend ment demands required: what the common law unavail ability prior a opportunity for cross-examination.[34] Therefore, any case that applies the Confrontation determine, Clause must matter, as a threshold whether the statement at issue is testimonial.

the Confrontation Clause because it “admits statements that. .. consist parte testimony upon finding reliability.” of ex a mere Id. at 60. 31Ante at 562. Ante 562. 33 Crawford, Webster, quoting Dictionary 541 US at An American (1828). English Language of the 34 Crawford, 541 US at 68. Fackelman Dissenting Opinion Young, C.J. “TESTIMONY”?

1. WHAT CONSTITUTES pur- reports “[Miedical treatment created for poses under our deci- be testimonial ... would not today.” sion v Massachusetts

—Melendez-Diaz (2009)35 “ “Testimony” ‘[a] or declaration affir- solemn establishing prov- purpose mation made ”36 “[a]n explained ing fact.’ Court some government statement to who makes a formal accuser testimony person who that a bears in sense officers acquaintance not,” does to an makes casual remark “[t]he text, like constitutional and concluded that right history underlying of confronta- the common-law especially awith acute concern tion, thus reflects an specifictype statement.”37 of out-of-court scope

Although of testimo- it did not delineate acknowledged statements, Court nial Crawford “[v]arious of of this core class that formulations of exist,”38 and instead statements ‘testimonial’ day any choosing “[left] one, it another effort spell comprehensive definition of ‘testimo- out a ”39 progeny, reviewing it and its nial.’ Crawford related the considers two becomes clear that Court deciding all others when whether factors above extrajudicial testimonial, therefore statement is parameters the Confrontation Clause: within the of formality a criminal of within the investigation the statement purpose prosecution of the

or 35 Melendez-Diaz, at 312 n 2. 557 US 36 Dictionary 51, Webster, Crawford, quoting 2 An American 541 US at (alteration (1828) English Crawford) (emphasis Language of added).

37 Crawford, 541 US at 51.

38 Id.

39 at 68. Id. 515 Mich by Dissenting Opinion Young, C.J.

statement.40 Formal of part statements created as investigative judicial process or as statements —such “quite that are plainly affidavits” —are testimonial.41 Similarly, statements that express are made for the purpose investigating of and prosecuting crimes —such aas statement “the sole purpose was to [which] provide facie of the ‘prima evidence composition, qual- and the ity, weight’ net the analyzed substance” —are Contrarily, likewise testimonial.42 statements made for some other primary purpose as responses to —such interrogations in order “to police enable assistance to ongoing emergency”43 meet an or “medical reports created for purposes”44 treatment not testimonial. —are 40Notwithstanding majority’s contrary, characterization “ ” test,’ ‘two-part 555, articulation is less a strict at ante than a Supreme summation of factors the United States Court has consid determining most ered relevant in whether a statement is testimonial for purposes. majority confrontation is correct this summation anis “attempt synthesize very-difficult-to-synthesize several Confrontation Court,” Supreme analysis Clause decisions ante at but as the indicates, opinion in this I believe that those decisions contain consis pattern that, result, meaning tent as a some can—and must—be given to those decisions. 41Melendez-Diaz, formality 557 US at 310. And even if “is not the sole inquiry testimonial, touchstone” into whether a statement Michigan Bryant, 1143, 1160; US_,_; v 131 S Ct L179 Ed 2d 93 (2011), formality informality light “a statement’s can shed on whether particular primary purpose trial,” Bullcoming statement has a use at Mexico, 2705, 2721; 564 US_,_; New 131 CtS 180 L Ed 2d 610 (2011) (Sotomayor,J., concurring). 42Melendez-Diaz, 311, quoting Laws, 111, 13;§ 557 US at Mass Gen ch Bullcoming, see at_; (stating also 564 US 131 S Ct at 2716 “[t]he purpose [as same Melendez-Diaz] certificate in was served here”); question certificate in _; accord id. at S 131 Ct J., (“[T]his (Sotomayor, concurring) is not a case in which the State suggested purpose, primary purpose, an alternate much less an alternate [blood report.”). for the concentration] alcohol 43 Washington, 813, 822; 2266; Davis v 547 US 126 S Ct L165 Ed 2d (2006); Bryant, 224 US_; see also 562 131 S Ct 1143. 44Melendez-Diaz, 557 US at 312 n 2. 579 Opinion by Dissenting Young, C.J. in Melendez- referenced specifically example, This last case. relevant to the instant Diaz, particularly Melendez-Diaz, deconstructing reference in this In for to account this dissent fails claims that majority our decision of footnote 2—“ ‘under phrase the final “the circum that, instead, it argues ”45—and today’ treat created for report a medical stances under which considered testimonial could be purposes ment fact, the Melendez-Diaz day.”46 left for another simply Kennedy’s concern to Justice responding majority was create would of Melendez-Diaz holding that the core the con Moreover, while consequences.47 unintended supports decision majority’s the Melendez-Diaz text of to footnote opinion that this attaches interpretation its progeny all the applying caselaw 2, Crawford great significance proposition to the broader attaches pur a primary footnote statement’s applies: great weight in the determination is accorded pose In the is testimonial in nature.48 whether statement squarely facts of this case were not before end, while the Melendez-Diaz, major the Melendez-Diaz Court “medical for treat- ity’s reports statement created 45 Melendez-Diaz, quoting US n 2. Ante at 557 at 312 Ante at 550. (“It J., dissenting) Melendez-Diaz, (Kennedy, US is difficult at 335 damage holding point other the Court’s will do in to confine this contexts.”). majority proposition in its The itself affirms discussion Bullcoming Bullcoming, stating Court recent decision “clearly the admission reconfirmed that the Confrontation Clause bars investigation or report, prepared a in connection with criminal scientific added). however, majority, prosecution (emphasis ...Ante at 555 analysis apply Bullcoming’s Bullcoming broadly it too when would reads other than purposes aid criminal prepared to statements Bullcoming simply apply to cases investigation prosecution. does not like defendant’s.

580 489 Mich 515 Dissenting by Opinion Young, C. J. ment . . purposes . would not be our testimonial under decision today” highly regarding instructive how apply Confrontation principles Clause to the facts instant case.

There are also a number of instructive state supreme court cases that illustrate the Melendez-Diaz Court’s recognition that “medical created reports for treatment not purposes” instance, are testimonial.49 For People v Cage, the California Court held Supreme that a victim’s statement to his doctor at a hospital was testimonial it because was made for the purpose “immediate acute bear,, treatment”50 and not to testi- against mony the defendant. Alternatively, in Hartsfield v Commonwealth, Kentucky Supreme Court held that a statement made to a sexual assault nurse exam- iner was testimonial because the purpose of the ques- tioning was to evidence of past offenses with an “elicitO eye toward future criminal prosecution,” making nurse “an active participant the formal criminal investigation.”51

The Ohio Supreme Court’s decision in v State Stahl perhaps fully most a explained court’s inquiry into the purpose of a statement.52 It that, held although a forensic nurse in an working emergency room “serves prosecutorial by function collecting evidence,” that function is “at best . . secondary . primary moti- vation, the care of [the patients.”53 unit’s] The court went on to explain: 49Melendez-Diaz, 557 312 US at n 2. 50 People Cage, 965, 986; v 789; 40 Cal Rptr 4th 56 Cal 3d 155 P3d 205 (2007). Commonwealth, 2009). (Ky, v 277 SW3d Hartsfield Stahl, 186; 2006-Ohio-5482; State 111 Ohio St 3d 855 NE2d 834

(2006). 53Id. at 196-197. Dissenting Opinion Young, C.J. taking of [the nurse’s] defendant] asserts

[The help evidence, swabbing for DNA with the included which mouth, victim’s] taking pictures [the light, of ultraviolet used after the taking napkin [the victim] incident, prosecutorial purpose the ... unit’s demonstrates Emer victim’s] statements testimonial. [the and renders procedures, and a routinely gency perform these rooms reasonably believe situation could witness examination, including the incident medical the ... unit’s function.[54] statement, history primarily a medical serves “pri- room nurse’s emergency an distinguishing an- functions, the Stahl court “secondary” and mary” utterly is “[i]t concern that majority’s swered the purpose’ the apply ‘primary how a court would unclear a no context to case which test the Davis outside assistance] police immediate is [requiring emergency alternative regarding “what questions and its alleged” considered, and how would be would ‘purposes’ bear ‘primary’ any these is resolution of which of inherent in the Con- on meaningful way principles Clause[.]”55 frontation United States and reiterate the

These cases others in Melendez-Diaz acknowledgment Supreme Court’s of diagnosing for the purposes statements made testimonial, emergencies are not medical treating investiga- carry recognizing while statements into professionals turn medical tive purpose investiga- in the formal criminal participant[s] “active statements, they even if are testimonial tion” can create has not professionals.56 majority created medical 54Id. at 198. at Ante 559. 56Hartsfield, 244. While these eases from other courts 277 SW3d at analysis injuries,

apply purpose rather than to victims’ treatment for treatment, distinction is without a difference because this defendants’ purpose required when determin- to examine the declarant’s courts are 489 Mich 515 Dissenting Opinion by Young, C.J. Instead, this line it analysis.

followed substitutes an foreseeability into the mere inquiry a statement’s use at trial for an into primary inquiry purpose which the statement was The majority’s created. analy- sis contrary Davis, the mandates of simply Melendez-Diaz, Michigan recently Bryant.57 most Thus, majority Court continues misapply the Confrontation Clause of the caselaw United States Court.58 Supreme

2. APPLICATION In light foregoing analysis of the of Confrontation jurisprudence, Clause the statement at issue this case was not testimonial it because was neither formal nor created for the primary purpose of investigating or prosecuting stated, crimes.59As declarant, Dr. Sha- ing purposes whether the statement was made for the of medical (“[I]t Davis, analysis treatment. n 1 547 US is in final statements, interrogator’s questions, declarant’s not the that the Con- evaluate.”). requires telling frontation Clause us to A declarant-victim doctor what occurred can so doctor treat her is in no different position documenting than a declarant-doctor a medical evaluation so he can treat a criminal defendant. 57Bryant, US_131 562 S Ct 1143. 58 majority opinion limiting inquiry criticizes this not for into the primary purpose question of a to statement the narrow “whether police very specific statements to ongoing made the in the context of an emergency However, majority’s were testimonial. . . Ante at 558. approach ignores narrow the fact that in cases addition to Davis and Bryant purpose determining have considered a in statement’s whether its Indeed, introduction violates the Confrontation in Clause. Melendez- Diaz, just “primary” purpose identifying was it of the affidavits trial, they the tested substance that used it be at but their was “sole omitted). purpose.” Melendez-Diaz, (emphasis 557 US at 311 59Formality corresponds in the confrontation context to a statement’s specific investigative prosecutorial process. role within the Justice perhaps clearly principle Thomas separate articulated this most in his 583 v Fackelman by Opinion Dissenting Young, C.J. in during hospitalization hid, treated unit for intensive care Hospital’s psychiatric Flower rendering emergency In episode.60 psychiatric acute already had a patient to who treatment psychiatric to continued and who once before suicide attempted a detailed Dr. created Shahid depression, exhibit severe condition defendant’s medical that outlined evaluation of emer- course appropriate the most and determined gency treatment. of the entire evalu- context and contents

Because the it is testi- determining whether ation are to essential contains opinion to this monial, Appendix treat In order to minor redactions.61 evaluation with “ explained ‘the opinion, he Confrontation wherein Melendez-Diaz they only are implicated by extrajudicial insofar statements as is Clause materials, affidavits, deposi- as in testimonial such contained formalized ” Melendez-Diaz, at_; tions, testimony, 557 US prior or confessions.’ added), quoting (Thomas, J., concurring) (emphasis 129 S Ct (1992) 736; Illinois, 365; 346, 112 Ct 116 L Ed 2d 848 502 US S White v (Thomas J., concurring). testimonial, the concluding that Shahid’s evaluation was Dr. defendant, presumption Appeals operated under Court of Shahid, by police a “[L]ike a statement taken not Dr. the declarant. during interrogation, the statements attributed a custodial officer by responses questions posed appear Dr. to he defendant Dr. Shahid psychiatric People v purposes of defendant’s examination.” Shahid for Appeals, Fackelman, unpublished per opinion of the Court of curiam (Docket 284512), p Appeals August No. 2. The Court of issued purposes presuming for the that defendant was the “declarant” erred challenge. Dr. Shahid was the declarant of his Confrontation Clause diagnosis appeal. is at issue in whose of defendant majority agree that “the circumstances and context I with the determinative, highly relevant, are if not which the statement was made deciding Clause.” whether its admission offends Confrontation why purpose precisely creation Ante a statement’s at 560. This is testimonial, inquiry into whether statement matters so much to why analysis on the and contents of this dissent’s focuses context contrast, By majority opinion how focuses on evaluation. Shahid’s litigation, evaluation, produced any reason unrelated once likely prosecution. might he in future criminal used 489 Mich 515 Dissenting Opinion by Young, C.J. patient’s

defendant, Dr. Shahid had to understand his psychiatric particularly history, medical and in a situa- patient previously attempted in tion which his had emergency suicide, commit had been admitted on an severely depressed state, basis a and continued to express suicidal ideation. regarding

Thus, Dr. Shahid interviewed defendant every aspect particular, origin illness, its in the continuing death of defendant’s son and the effect of required on that death defendant’s mental state. This only defendant, Shahid ask about his son’s generally, specifically, also, death but more what he remembered about the incident with Krell. Dr. Shahid helpless, hopeless determined that defendant “feels and “[o]riented place person.” time, worthless” but is In short, the evaluation documented defendant’s men- physical tal and state at the time of the evaluation—his temperature, pulse, respiration, mood,affect, pressure and blood provided diagnosis plan of treat- —and periods during ment for the and after defendant’s hospitalization.

Important analysis for our fact that Dr. Sha- diagnosis hid’s evaluation did not end with his diagnosis plan defendant; rather, it followed with a diagnosing depression treatment. After defendant’s as psychosis,” “severe without Dr. Shahid concluded that “[c]ontinue defendant should Prozac” and “add Sero- quel,” drug “help patient agitation sleep, used to complaint and his that he cannot shut his mind.” Dr. Shahid also determined that defendant should con- psychotherapy discharge. tinue with after his inexorably All these facts lead to the conclusion that primary purpose undertaking Dr. Shahid’s and docu- menting psychiatric pro- defendant’s evaluation towas treatment, vide medical care not to serve as “an Opinion by Dissenting J.C. Young, investigation” formal criminal participant active was, therefore, created The evaluation or prosecution.62 anticipation of but in litigation, anticipation not in continued treatment. Dr. Shahid’s evalua- emphasizes that majority

The County want[ed] “the Monroe sheriff tion noted that discharged is to home” and [defendant] be called when him charges against legal “ha[d] that defendant Judicial Cir- Michigan 38th through the State aware of . . .” The fact that Shahid was cuit . against defendant does charges criminal pending his preparing primary purpose Dr. Shahid’s alter render treatment emergency psychiatric evaluation: to Moreover, there no indication that to defendant. was because of any differently treatment was handled acknowledgment charges, and pending of the legitimate part patient’s charges constitutes customary part psychiatric that is a evalua- history strange for the Indeed, it would be passing tions. the conditions evaluating to fail to note psychiatrist patient psychiatric under which the was referred to the essentially in the first This is emergency room instance. reference in an evaluation that otherwise passing recording treating defendant’s entirely devoted on defen- including an psychiatric emergency, emphasis undercutting Significantly, dant’s suicidal ideation. foreseeability analysis, there is no evi- majority’s been dence, other than aware that defendant had being Krell, any that Dr. Shahid had assaulting arrested in this prosecutor contact or the police other case. evaluation’s introduc- itself majority quotes “ ‘had suicidal

tory statement 244. 277 SW3d at Hartsfield, 489 MICH515 Dissenting Opinion by Young, C.J. ”63 thoughts.’ emphasized Dr. Shahid the suicidal ide- repeating evaluation, ation later in his that defendant attempted by drug stating had suicide overdose and that defendant continued to exhibit suicidal ideation— defendant “stated that he thinks about suicide ‘all the ” explained Moreover, time.’ Dr. Shahid that defendant psychiatric “was transferred to the intensive care unit safety patient thinking intensely for his since the just any- suicide, about and he does not want to live more.” majority distinguishes psychiatric

Also,the treat- ment that defendant received from other medical treat- suggests ment that this distinction is determinative in confrontation cases.64This distinction confuses the purpose documenting psychiatric evaluation with potential proceedings. only its on future Not has effect Supreme the United States Court “never addressed” issue,65at one least state court that it considered (albeit dicta) after made no distinction Crawford psychiatric between treatment and other medical treat- simply principled ment.66There is no distinction for applying differently the Confrontation Clause when analyzing psychiatric medical treatment than when analyzing “physical” medical treatment for illnesses— particularly purpose because courts must examine the an which out-of-court medical statement was cre- explained stated, ated. As Dr. Shahid in his evaluation psychiatric that defendant was admitted the to inten- safety” thinking sive care unit “for his because he “was 63Ante at 533.

64 See ante at 552-554. 65 at Ante 553. 66 Baumhammers, 1, 28; Commonwealth v 599 Pa n60 960 A2d 59 (2008) (explaining expert hy that to statements made an witness the psychologist, among statements, defendant’s former other were “not hearsay contemplated by Crawford”). ‘testimonial’ as the Court 587 Fackelman by Dissenting Opinion Young, C.J. of Dr. Thus, purpose . the . . intensely about suicide of defendant care and treatment emergency Shahid’s room emergency physician’s was no different than life-threatening physical of a person treatment patient. of the the immediate stabilization injuries: determination Shahid’s majority’s The to United contrary runs was testimonial evaluation caselaw Clause Supreme Court’s Confrontation States Melendez-Diaz The Court stated in on matter. pur- for treatment created reports that “medical testimonial, which position are not poses” holding Court subscribed.67 entire fact great weight on the contrary, majority places Dr. Shahid was aware and acknowl- that, because defendant, an charges against edged pendency ‘“ reasonably led] [be would “objective [psychiatrist] for use statements] would be available [his believe that ’ ”68 that the Notwithstanding fact at a later trial.” not the standard majority quotes standard that the is today,69 majority law is on our decision binding supra. n 3 See Crawford, quoting US at 51. Ante majority controlling a that the United States treats as standard possible Supreme adopted, applying three formu one of the Court has not Court had heen used to define testimonial that the noted lations Crawford However, expressly choose one Court declined to statements. Crawford only noting “interrogations controlling, law as of the three methods squarely class of testimonial state enforcement fall within” the officers Moreover, Crawford, ments, of the it defined. 541 US at 53. one however potential Court identified as other formulations Crawford ‘extrajudicial ... in “testimonial” —“ statements contained definition of affidavits, materials, depositions, prior testi testimonial such as formalized ” (Thomas, confessions,’ 51-52, quoting White, mony, US id. at 502 at 365 dissenting opinion, J., concurring) this not the to the result of —leads observation, Contrary majority’s at 557 majority’s see ante result. to the Thomas, including 35, majority, concluded that this n Justice the Crawford at issue in of “testimonial” included statements narrowest definition Thus, “hardly majority’s position fatal” to if it is Crawford. 489 Mich Dissenting Opinion by Young, C.J. give

fails to Dr. appropriate credence to Shahid’s efforts to diagnose defendant’s medical problem and create treatment plan, clearly efforts that were articulated the evaluation. The evaluation acknowledged itself defendant would be for hospitalized days” “10-14 receiving would be both prescription medications and psychotherapy during and after hospitalization. In reading evaluation, Shahid’s entire is it hard to conclude, as the majority does, that Dr. Shahid was primarily concerned anything other than defen- dant’s mental health. stated,

As the Melendez-Diaz affirmed Court the non- testimonial nature of medical reports created treat- purposes. ment Melendez-Diaz emphasized that review- ing courts must examine the primary purpose statement’s creation determining when it whether runs afoul of the Confrontation Clause. The majority has not provided any indication that Dr. Shahid did anything other than treat defendant for his severe depression.

3. IMPEACHMENT if, contrary my Even above, conclusion Dr. Sha hid’s nature, evaluation was testimonial the Con alternative formulation would result the conclusion that the at statement testimonial, issue in this case was not ante at 557 n equally it then position majority’s preferred nonfatal to this dissent’s that the formulation would lead to the conclusion that the at statement issue in this case was short, potential testimonial. because various definitions of Crawford’s way regarding “testimonial” do not lead to a clear result one or the other apply case, how to the Confrontation Clause in this we must examine how applied understanding the Court has its refined of the Confrontation Clause after Crawford. majority employed claims that Melendez-Diaz preferred its test “to ascertain that the statement issue Ante at 532. testimonial!.]” However, Court, like the the Melendez-Diaz Court reiterated Crawford “ ‘[v]arious the fact that formulations of this core class testimonial ” exist,’ Melendez-Diaz, expressly adopting statements without one. 310, quoting Crawford, US at US at 51. 589 Opinion by Dissenting Young, C.J. the use of testimonial not bar “does frontation Clause establishing the other than purposes statements notwith Accordingly, matter asserted.”70 truth that we should suggestion majority’s standing the in deter gymnastics” it “mental in what terms engage use of Dr. Shahid’s prosecutor’s mining whether ass matter the truth to prove evaluation was the United analysis that erted,71 just type that is jurispru Clause Confrontation Court’s Supreme States requires. dence aby prepon- burden of proving to meet his order insane at the legally that he was the evidence

derance of testimony crimes,72defendant presented of the time examination, Mistry admit- Dr. Dr. On direct Mistry. Dr. Hospital, “records from Flower that he reviewed ted he Mistry’s . .” Dr. admission records . . Shahid’s in- the door to opened Dr. Shahid’s records reviewed Dr. records influenced how Dr. Shahid’s about quiry of dis- including any Mistry’s opinion, points expert and the information opinion between his agreement Dr. evaluation. contained in Shahid’s direct beyond the of the “[going] scope Far from well sought to examination,” the prosecutor appropriately expert, defendant’s opinion proffered undermine the insane, by using Dr. legally the defendant was And Dr. impeach opinion.73 evaluation to Shahid’s powerful impeach- tool for Shahid’s evaluation was Dr. defendant did ment because Shahid concluded that he him from when evaluated psychosis not suffer 70 Street, 409, Crawford, citing 471 n US 541 US at 60 Tennessee (1985). 414; 2078; 425 105 85 L Ed 2d S Ct 71Ante at n 10. 768.21a(3). MCL 73Ante at 530. Mich 515 Dissenting Opinion by Young, C.J.

shortly after the crimes were committed.74 Having read reaching Dr. Shahid’s evaluation and records his own opinion, Mistry was properly compelled by the prosecutor’s impeachment explain how he came entirely treating different conclusion than the physi- concerning cian the defendant’s mental status at the time the of crimes. majority’s

The extensive quotations from the trial transcripts nothing indicate to the Dr. contrary: Mistry confirmed that he reviewed Dr. evaluation, Shahid’s including Dr. diagnosis defendant, Shahid’s of indicated that he disagreed diagnosis with that because of record, his review of the entire including information that Dr. Shahid did not have at disposal. his And yet, notwithstanding quotations, these extensive the major- ity does not provide sufficient to context understand the nature of prosecutor’s the cross-examination.75 That 768.21a(1) prove legal insanity, to requires showing order MCL capacity that appreciate the defendant “lacks substantial either to the quality wrongfulness nature and or the of his her conduct toor requirements agree conform his or her conduct the to the I law.” majority’s trial, the “[a]t observation that the medical term that both testifying experts describing legal insanity used as shorthand for ‘psychosis English at Ante 529. See also Shorter Dictio Oxford (6th nary ed), p (defining “psychosis” illness, as “severe mental derangement, involving reality”). or disorder a loss of contact with 75Importantly, prosecutor’s entire cross-examination did in not evaluation; rather, volve Dr. Shahid’s the entire cross-examination was impeaching Mistry’s opinion. prosecutor focused on Dr. raised other points completely to unrelated Dr. Shahid’s evaluation in to effort Mistry’s opinion incorporate show that Dr. did not relevant data. For instance, prosecutor testimony Mistry elicited Dr. from that he did captured by system “shows, view video a home-surveillance that partially, actually at least doing what the Defendant was at time crime,” although Mistry Dr. admitted that review of that video helpful” any regarding “wouldbe to conclusion defendant’s state of mind prosecutor at questioned Mistry the time of the crime. The also Dr. regarding house, including defendant’s behavior his mother’s defen gun register. Mistry dant’s actions to conceal the heat mother’s Dr. Fackelman Dissenting Opinion Young, C.J. initially sought that the prosecutor context shows in Dr. Shahid’s evalu- factual information contained use observations Mistry’s Dr. own that conflicted with ation Dr. questioning impeachment purpose proves Mistry the evaluation. about Dr. Mistry’s of conflict between points

One Dr. evaluation was the extent testimony and Shahid’s occurred on the remembered what which into part inquiry March 2007. As of his afternoon of Mistry state, mental Dr. interviewed defen- defendant’s recollection of dant, who that had no explained “[h]e from time[,] only what he heard other the events of challenging point this people.” It was Dr. the substance of Shahid’s first discussed prosecutor Mistry that Dr. had read confirming evaluation. After evaluation, asked Dr. Mis- prosecutor Dr. Shahid’s explained he was that defendant had try whether aware he day happened “that on the Shahid my pain” [Krell] to feel and that defendant wanted car and stopping seeing he remembers his stated “that responsible believes was person [defendant] that who death, off person his and stated that that took for son’s and, him quote: in the street I followed across the street.” Mistry’s

The to Dr. cred- prosecutor sought impeach conflicting basis these ibility expert as an on the of from the defendant. This evident statements defendant had “a motiva- suggestion that prosecutor’s Mistry] full Dr. about his [to tion not to tell the truth Mistry help Dr. could defendant’s memory” because “if a . . . .” While Dr. case he reaches certain conclusion mother, explained that, was he had interviewed defendant’s he while not “put explained gun house” and the at his mother’s aware defendant significant gun be a fact in effort to conceal” the would “deliberate evaluating of the crimes. mental status at time defendant’s 489 MlCH515 Dissenting Opinion by Young, C.J. Mistry denied that had lied him regarding defendant his lack he memory, diag- of admitted that of part him required nosis “to as to develop opinion whether is being [defendant] sincere or whether miscon- [he’s] struing things lying order to paint picture you [himself] of a certain way.” It only point prosecutor after this cross-examined Dr. Mistry regarding diag- Dr. Shahid’s Thus, nosis. raising after differences be- factual tween Dr. Shahid’s with psychiatric evaluation session the hospital and Dr. later Mistry’s pretrial defendant, interview with link prosecutor sought to those factual differences to the different diagnoses Indeed, themselves. the prosecutor asked Dr. Mistry whether he could “point anything specific in [Dr. Shahid’s you where . . . can he say evaluation] made a mistake,” and Dr. Mistry Rather, could not. Dr. Mistry disagree “[didn’t] Dr. observations,” with Shahid on his only “as to the diagnosis.”

In short, the prosecutor’s use of Dr. Shahid’s evalu- during ation his cross-examination of Dr. Mistry was of purpose impeaching Mistry’s expert Dr. opinion, not to prove the truth of Dr. Shahid’s evaluation.

However, prosecutor did just refer to Dr. Shahid’s evaluation during his cross-examination of Dr. Mistry. prosecutor also referred to the evaluation during his direct examination his rebuttal expert witness, Balay. Dr. As his cross-examination Mistry, prosecutor highlighted be- differences tween Dr. psychiatric Shahid’s session with defendant Balay’s and Dr. psychiatric interview of defendant. Dr. Balay explained that defendant “claimed to basically have no memory any of the events” that occurred on 28, 2007, afternoon March though even she that had acknowledged to described Dr. Sha- Dissenting Opinion Young, C.J. Dr. then Balay from that afternoon. hid some memories could either the that defendant prosecutor to explained “just lying,” be but be memories suppressing one or the other.” way knowing way no “[had] she end, with Dr. Balay agreed Dr. indicated she psychotic. not conclusion that defendant was Shahid’s Dr. disagreed Mistry’s that she She also stated doing so. In explained and her reasons conclusion had that defendant acted she determined particular, he of his stated motive —that methodically pursuit he had at this man who believed caused “was furious such methodical death of his son” —and that behav- determining factor ior is “the most relevant” conduct to the is able to conform his person whether of the law. As with cross-examination requirements Dr. of the direct examination of Mistry, purpose Balay impeach Mistry’s credibility Dr. to Dr. was diagnosis to Dr. Shahid’s necessarily assert that true.

Finally, the referred Dr. Shahid’s evalu- prosecutor closing argument, ation that “it’s during explaining say, to look had to important real at what Shahid testify you” he didn’t here before though even that Dr. “reached the conclusion at emphasizing Shahid that Mr. the end his examination Fackelman was [of] he had severe but that there was depressed, depression, However, change involved.” does not psychosis no case-in-chief, during pros- the fact that defendant’s im- proper ecutor used Dr. Shahid’s evaluation for than the truth of peachment purpose prove rather Moreover, explained matter court asserted. trial are “lawyers’ arguments statements and not evi- only “[e]vidence dence” and that includes sworn witnesses, were testimony of the exhibits which admit- I evidence, you into told anything ted else 489 594 Mich 515 Dissenting Opinion by Young, C.J. as

consider evidence.”76 Because Shahid’s evalua- criteria, meets “jurors tion none of these and because I presumed instructions,”77 are to follow their cannot conclude that the prosecutor’s closing argument preju- diced defendant. trial court’s cautionary instruc- properly tion insulated the from jury any inappropriate use of Dr. during argument. Shahid’s evaluation closing the majority seriously

Because in applying errs United States Supreme Court Confrontation Clause precedent case, to the instant I dissent respectfully would hold that Dr. Shahid’s medical evaluation was and, therefore, not testimonial subject not to the Con- frontation Moreover, Clause. if even Dr. Shahid’s evalu- testimonial, ation were it primarily used not to prove truth of the asserted, matter impeach but to defendant’s expert witness. Accordingly, defendant’s trial counsel did err by failing not to raise a Confronta- objection tion Clause to Dr. Shahid’s evaluation.

C. HEARSAY if Even Dr. Shahid’s is subject evaluation not to the Clause, Confrontation it subject is still to the Michigan of Evidence, Rules including evidentiary our regard- rules hearsay. However, ing because counsel is not ineffective failing for to objections,78 raise futile we must determine any objection whether to Dr. Shahid’s evaluation on evidentiary grounds would have been successful. matter,

As prehminary it is undisputed that Dr. Shahid’s evaluation, among facts data, provided other testimony basis of the two expert witnesses in 76 (5). 3.5(2) CJI2d See 77 (1998). People Graves, 476, 486; v Mich 581 NW2d 229 Snider, (2000) (“Trial People 393, 425; App v 239 Mich 608 NW2d 502 required position.”); is People counsel not to advocate a meritless see also v (After (2003). Riley Remand), 135, 142; 468 Mich 659 NW2d 611 Fackelman Opinion Dissenting Young, C.J. “The facts Furthermore, provides, MRE 703 this case.79 upon expert case which particular in the or data or inference shall be evidence.”80 opinion bases an inbe facts and data “shall However, though even such evidentiary subject our evidence,” they might be hearsay.81 regarding rules by” except as

“Hearsay provided is admissible “a rules,82 “hearsay” define as evidentiary our which expert undisputed case were the two witnesses in this It also testimony requirements qualified give pursuant of MRE 702. only “a requirements relevant to if he were would be Dr. Shahid These opinion MRE 702. “testif[ied] in the form of an . ...” who ... witness” testimonial, evaluation not that Dr. Shahid’s Because I conclude inapplicable admissible whether his evaluation would be MRE 702 is to hearsay rules. under our 80 conclusion, expert may opinion Contrary majority’s an the form to data, opinions prior including in information and contained “on historical evaluations, forming opinion regarding competency an a defendant’s when Dobben, 679, 698; responsibility.” People v 440 Mich 488 NW2d 726 criminal added). (1992) Thus, diagnosis (emphasis Dr. was one of the fact of Shahid’s have to pieces his evaluation not of data contained within and would several suggests. Moreover, 703, majority if Dr. MRE the even be redacted under as diagnosis psychosis had not did not suffer from Shahid’s witness, expert’s completeness, the MRE for the defense rule of been a basis 106, required introduced into have that the entire evaluation be would “ought contemporaneously because it in fairness ... be considered evidence the with” the rest of evaluation. 81 may Although expert “[a]n also the Dobben Court ruled that witness information,” hearsay 695-696, opinion id. at on I note that base his hearsay interpreted the MRE 703 intersection of our rules with Court last 2003 of MRE amend before the 1995 and amendments 703. Before these ments, provided, part, may require “The MRE 703 in relevant court opinion underlying an or in evidence.” facts or data essential to inference be (1978) added). Thus, amendments, (emphasis MRE 402 before the Mich cx require data gave trial court whether to that the facts and the discretion opinion underlying expert into I conclude be admitted evidence. Because hearsay exception allows for introduction of Dr. that an rules evaluation, portion I need whether of Dobben not determine Shahid’s light MRE I leave amendments of and would remains viable day. that determination another 82 MRE 802. Mich 515 Dissenting Opinion by Young, C.J.

statement, by other than the one made the declarant testifying while the trial or offered in hearing, evidence to the truth matter prove of the asserted.”83 It is uncontested that Shahid’s evaluation is “a state- ment, by other than the one made declarant while at the trial or . . .”84 testifying hearing.

Assuming for the sake of argument prosecu- that the referring tor’s to Dr. purpose Shahid’s evaluation was, in closing prove substantial to use it part, asserted,85 truth the matter MRE 803(6), busi- nevertheless, records exception, ness allows introduc- memorandum, tion record, “[a] data report, or com- form, acts, pilation, any transactions, occurrences, events, conditions, opinions, diagnoses, or made at or near time from by, information by, transmitted person with . knowledge diagnosis ...” As a of defen- psychiatric condition, dant’s Dr. Shahid’s evaluation squarely falls within this exception and therefore was admissible into evidence. 801(c). MRE 84However, defendant’s statements contained within Dr. Shahid’s hearsay-within-hearsay they evaluation are not because are defendant’s 801(d)(2)(A).Moreover, own they hearsay, statements. MRE even if are they treatment,” purposes are made for of medical MRE “Statements 803(4), hearsay and are therefore excluded rule. 85Although prosecutor closing argument asserted in that “it’s real important say,” to look prosecutor’s at what Dr. Shahid had to the initial credibility impeach use of Dr. Shahid’s evaluation was to the of defen expert prosecutor’s dant’s and the witness direct examination of his expert sought explain expert’s opinion. witness to the foundation of his opinion, prosecutor earlier sought

As stated in this even if the to use the prove to closing evidence the truth of the matter asserted in his argument, jury the lawyers’ trial court’s instruction the “[t]he to that evidence,” arguments “[tjhey’re only statements are not that meant help you theories,” legal to understand the evidence and each side’s jury only accept say things lawyers the “should that are supported by by your general evidence common own sense knowledge” properly jury any inappropriate insulated the from use of Dr. during closing argument. Shahid’s evaluation Fackelman by Opinion Dissenting Young, C.J. 803(6) also MRE observes correctly majority the custo- testimony of “the authentication requires However, the .”86 . . . witness qualified other dian or the fact that entirely overlooks majority defendant evidence into evaluation Dr. Shahid’s to admit required admitted expert instance, defendant’s since in the first in significant comprised, evaluation that Dr. Shahid’s his he based data” on which “facts and part, dispute not Moreover, defendant does opinion.87 evaluation, appeal. even on of Dr. Shahid’s authenticity evaluation, relied on first expert his own Since claim (certainly legitimately) hardly can defendant rebuttal, the evaluation it was used that when not even does Thus, this case inauthentic. became failed simply defendant which a situation present evaluation; of Dr. Shahid’s authenticity object to its authentic- rather, affirmatively endorsed forming it in relied on expert his own ity because insanity of the the foundation which was opinion, cannot circumstances, defendant Under such defense. error.88 the basis of authentication receive relief on 803(6) testify regarding role to refers to the custodian’s MRE regularly “kept in the course of a record was whether business practice activity” regular and whether it “was conducted business memorandum, record, report, activity or data make the that business questions that the additional compilation .. It does not refer to . raises, questions regarding of Dr. majority the substance such as those compiled psychiatric in the evaluations evaluation: whether Shahid’s pending patient’s treating patients to a regular practice “often refer “typi creating charges” evaluations doctors those criminal or whether materials, reports police Ante at 536-537 cally as ... other such review appear scope of a custodian questions be outside the what n 15. These beyond scope certainly expected to know and would be of records 803(6). MRE 87MRE 703. requirement suggest that the authentication does not This dissent Rather, 803(6), 536 n 15. MRE ante at “be stricken from” must any evaluation authenticate Dr. Shahid’s failure to dissent concludes 489 MICH 515 by Dissenting Opinion Young, C.J.

D. TRIAL STRATEGY I Even if were to conclude that trial counsel erred by raise a

failing to Confrontation Clause or hearsay (which objection Dr. not), Shahid’s evaluation I do before granting relief, defendant the Court must also determine whether that failure constituted error “so functioning serious that counsel as the ‘coun- sel’ guaranteed the defendant by the Sixth Amend- ment.”89 In undertaking inquiry, Strickland made clear that a defense counsel’s trial strategy must be given “[e]ven deference because the best criminal de- attorneys fense would not defend a particular client in way.”90 the same The Court explained: scrutiny performance Judicial of counsel’s must be highly tempting deferential. It is all too for defendant to second-guess counsel’s assistance after conviction or ad sentence, easy court, verse and it too is all for a examining defense proved unsuccessful, counsel’s after it has particular conclude act or omission of counsel was unreasonable.[91]

Instead, reviewing courts must “evaluate the conduct from perspective time,” counsel’s at the and defendants must “overcome the presumption that, under the cir- cumstances, the action challenged be ‘might considered ”92 sound strategy.’ trial cannot expert inure defendant’s benefit because his own admitted using forming expert and, opinion Shahid’s evaluation in his own therefore, required placed by the evaluation was to be into evidence pursuant Simply put, to MRE 703. defendant cannot benefit from his own failure to introduce evaluation. 89 Strickland., 466 US at 687.

90Id. at 689.

91Id. 92Id., quoting Louisiana, 91, 101; 158; Michel v 350 US 76 S Ct 100 L (1955). Ed 83 Dissenting Opinion Young, C.J. was to raise strategy trial with, defendant’s begin To contest the factual rather than insanity the defense Although prosecu- crimes. charged of the elements charged of the factual elements prove tor must doubt, the bears a reasonable beyond crimes defendant insanity by preponderance proving the burden trial counsel case, defendant’s this the evidence.93 object did not that he hearing Ginther at the stated defendant’s first cross-examined the prosecutor when because evaluation about Dr. Shahid’s witness expert it, to” which would to call attention he “didn’t want Moreover, coun- defense. insanity have undermined as to whether he “had a discussion stated that sel also that but explained Dr. Shahid” present not to even have been a bad witness that he would “the concern was out, have come would everything [evaluation] if defendant’s helped” rather than have hurt and it would insanity defense.94 his own expert had a dilemma:

Defense counsel thus evaluation to of Dr. Shahid’s portions had relied on legally defendant was own opinion establish his to the was harmful insane, the entire evaluation but he According expert, to the defense insanity defense. except evaluation his all of Dr. Shahid’s agreed with had not suffered a break that the defendant conclusion the crimes. Accord- he committed reality when with defen- counsel, consultation apparent after ingly, 768.21a(3). MCL damaging testimony in Presumably, potentially would have this about, majority Dr. curious such as whether cluded issues compelling,” whether “his [would be] not viewed as “rationale Shahid’s necessarily psychosis’ mean that defendant was diagnosis did not of ‘no incident,” prosecutor’s legally whether “the at the time of the not insane just diagnosis,” [would .. . expert misinterpreted or whether “he his had witness!.]” 563-564 n 41. Notwithstand heen] Ante at have an ineffectual majority’s curiosity, thing did not ing is certain: defense counsel one questions. jury these answers to want the to hear Shahid’s 489 Mich Dissenting Opinion by Young, C.J.

dant, downplay made a conscious decision to Dr. Sha- hid’s Given that the evaluation evaluation. contained information detrimental to his client’s defense— particularly the conclusion that defendant was from thus suffering psychosis legally sane —I strategy cannot conclude that this trial was objectively unreasonable. To the contrary, strategy defendant’s may strategy have the best represented possible: defen- rely dant was on portions allowed favorable of Dr. as Shahid’s statement the basis for his insanity defense while having Dr. take the avoiding Shahid stand explain finding psychosis,” “no which could have completely undercut proffered defendant’s defense. In- deed, this defense trial strategy proved partially suc- cessful; the found jury guilty but ill. mentally majority ought explain why strategy should not be given the deference requires. Strickland

Defendant now claims that failure to call Dr. Shahid to the witness stand his rights violated under Clause, majority Confrontation and the treats this failure ifas it were an omission. has been It made clear that an omission, this was not a but conscious strategy that defendant’s trial counsel employed.95 When prop- erly a considered as conscious to calling decision avoid as a expert witness an reasonably counsel thought would witness,” have been “a bad defendant’s claim of error seems to the very danger be that the Strickland Court warned against: allowing defendant to “second- majority The much makes of defense counsel’s claim at the Ginther hearing that he did consider Dr. to Shahid’s references evaluation begin with, failing confrontation violation. To did not counsel err in to recognize a confrontation violation because there was no confrontation recognize. right violation to But even if defendant had to confront Dr. Shahid, unequivocal strategy sought downplay defense counsel’s trial opinion Dr. Shahid’s of defendant’s mental and in fact state resulted in the affirmative decision not to call Dr. as a Shahid witness. Fackelman by Opinion Dissenting Young, C.J. conviction or adverse after counsel’s assistance guess problem majority compounds .”96The sentence . .. proved after it has counsel’s defense “examining that a act unsuccessful, concluding] particular [and] I do unreasonable.”97 Because counsel was omission of defendants should reward this Court not believe using then it as strategy trial a reasonable pursuing on this alternative I also dissent appellate parachute, that defense coun- conclusion majority’s basis from assistance objectively rendered unreasonable sel counsel.98 that, “insanity is an because majority explains a defendant to which respect

affirmative defense defendant had no choice proof,”99 carries the burden of mental the door to about his open questioning but to Moreover, majority through expert testimony. state witness could have [expert] “[n]o such explains to mention the existence of neglected altogether interviewed actually of the who report only person in the immediate wake of his conduct.”100 com- just These observations how Precisely! prove basic majority impeach- fails to understand pletely ment, strategic how just appropriately and reinforce as a defense counsel’s decision not to call Dr. Shahid majority that the believes that appear witness. It would 96Strickland, 466 US 689. 97Id. I that defense counsel did not render constitution Because conclude by failing object ally deficient of counsel use of assistance engage grounds, I need not Shahid’s evaluation on Confrontation Clause analysis: prong ineffective assistance

in the second of the Strickland Accordingly, potential prejudicial I neither effect of the claimed error. majority’s analysis regarding agree disagree whether the with the nor prejudice requiring alleged reversal. error resulted in confrontation 768.21a(3). 544; Ante at see also MCL 100Ante at 544. 489 Mich 515 Dissenting Opinion by Young, C.J.

no impeachment of the defense expert could have occurred under these prosecu- circumstances unless the tor called Dr. Shahid as his own If witness. the Confron- tation Clause can be read properly result, require then will seem a tiny compared shift to the Crawford seismic destruction that this new majority rule will require.

There is no question that Dr. Shahid’s evaluation contained any statements that expert would have had to take into account forming when an opinion regarding defendant’s mental state. As explained previously, the evaluation also revealed inconsistencies concerning what defendant remembered about afternoon question, inconsistencies that any expert witness would have had to resolve. Yet precisely because the defense expert was silent about inconsistencies, these pros- ecutor cross-examined him regarding his selective use of the evaluation. The majority would raise this strate- gic silence to a constitutional level and insulate the from expert such cross-examination. I would not ham- string impeachment expert witness such a way.

IV CONCLUSION Because Dr. Shahid’s evaluation initially used the defense as a part legitimate of its trial strategy to establish its insanity defense, the prosecutor’s use of that same evaluation in rebuttal cannot constitute a Confrontation Clause violation. The majority’s conclu- sion to the contrary rewards a clever appellate para- chute strategy.

Secondarily, Dr. Shahid’s evaluation was a “medical report[] created for treatment purposes .. . .”101United

101Melendez-Diaz, 557 US at n 2. Opinion by Dissenting Young, C.J. could not be clearer precedent Court Supreme States intro- prohibit Clause did not the Confrontation majority’s The evaluation into evidence. duction of the Court’s Confrontation Supreme apply failure in an cause further confusion only doctrine can Clause I would hold Accordingly, area of law. already confusing Dr. evaluation did use of Shahid’s prosecutor’s to confront right not violate defendant’s constitutional Furthermore, him. the evaluation against the witnesses hearsay under the business records was admissible object failure to to the and defense counsel’s exception, did not render his use of the evaluation prosecutor’s ineffective, nor was his trial constitutionally assistance objec- strategy downplay Shahid’s evaluation I affirm the tively Accordingly, unreasonable. would and affirm defen- judgment Appeals of the Court of dant’s convictions. J., C.J.

Zahra, Young, concurred with

APPENDIX 47-year-old Caucasian married male was referred Rescue Crisis Mental Health Services an emer- gency application indicating patient’s that the son was accident, killed in a and the eight ago months traffic patient gun patient drove to man’s home with who felt for the death of Patient has responsible his son. severe and had suicidal to over- depression thoughts that the emergency application dose. also indicated County Monroe sheriff wants to be called when the home. patient discharged

HISTORY OF PRESENT ILLNESS: Patient feeling depressed that he had been down and stated killed in 17-year-old June of 2006 after his son was since riding stated that his son was an auto accident. Patient 489 Mich 515 Dissenting Opinion by Young, C.J. with other individuals in the car and somebody chased car, his son’s and as a result there was an accident and son was killed that accident. Patient complains of sad, blue, feeling down and depressed. Complains of poor sleep, poor appetite, poor concentration and low energy. Feels worthless and has feelings guilt. Patient just states he empty feels inside. Has feelings hope- lessness. Patient stated that he thinks about suicide “all the time.” At the present time, patient does not have active any plan killing himself. Patient stated that after killed, his son was he an took overdose of pills that he had over-the-counter. patient The stated at that time, he informed his primary physician care and was started on Prozac 20 mg daily that later on in- creased to 40 mg daily. Patient stated prior that to this admission, he went to the person who he believes was responsible for and, his son’s death “I wanted him to my feel pain.” Patient states that during legal trial otherwise, the person who patient believes was for the responsible death of his son has not shown any remorse, and this makes patient very angry. patient The stated that he remembers stopping his car and seeing person who the patient believes was responsible for his son’s death and stated that person took off in and, the street “I followed him across the street.” states, Patient “I do not remember driving to Michigan driving his house. I do not remember what happened, and the I only thing remember is that I saw a terrified look on face, that man’s and at that I time felt I just woke up started apologizing that man.” patient stated that he went back to his car and away drove and stated that he stopped at his mother’s house, and he believes that he left the gun that he had him at his mother’s house. Patient stated that he had a handgun years and years that he kept dressing drawer his bedroom. The patient states he by Opinion Dissenting Young, C.J. of the drawer taking gun remember out does not Michigan. When he went to that house person’s when gun, in the him about if there were bullets I asked remember, thought he he does not but states patient that he in his and stated pocket that he had bullets or he he the bullets down the toilet flushed believes away. that he threw his bullets believes the death of his son on June Patient stated that since then 5, 2006, apart,” whole life has been torn “My he say Tuesday went on to that on went his patient School, his friends school, High Whitmer where son’s that he watched the baseball and states playing were watching he was game, but all the time when baseball and stated the school the baseball he missed his son won, just he left the he was playground team and when feeling sad, in tears and he was and then he believes game, brought that while to the a lot of memories going feeling got to him and his of loss more intensified. back Denies previous PAST PSYCHIATRIC HISTORY: above, patient mentioned did treatment. As psychiatric son, after the death of his then he was take overdose primary physician. started on Prozac care [Redacted ] MEDICAL HISTORY: FAMILY [Redacted.] HISTORY: abusing Denies [Redacted.] SOCIAL HISTORY: of his son he drugs alcohol, except since the death heavily myself.” had been more “to numb drinking life that he used to spiritual Patient described his God, anymore. why in God but “not If there is a believe it I away. did he me son and then took used give my goes Patient stated that he anymore.” but not pray support church to his wife. Patient looks

MENTAL EXAMINATION: STATUS acute distress. age, any physical of his stated 489 MICH515 Dissenting Opinion by Young, C.J. Mood is dysphoric, and affect is depressed. Temperature 97.7. Respirations Pulse 85. 16. Blood pressure 126/79 on admission. Today, patient’s is temperature 97.2. Pulse 81. 18. Respirations pressure Blood Pa- 141/95. tient helpless, hopeless feels and patient worthless. The has suicidal thoughts but denies any plans active hurting himself. Initially, patient was admitted to the adult closed unit but was transferred to the psychiatric intensive care unit for safety his since the patient was thinking intensely suicide, about and he just does not want to live anymore. Patient feels hopeless, helpless and worthless. Has marked feelings anger and guilt. time, Oriented to place person. and Recent and remote memory intact, intelligence is normal. Speech is relevant goal-oriented. During most part of this interview, patient crying and sobbing. He is deny- ing auditory or visual hallucinations but states that son, after the death of “I was smelling things and I felt things skin, under crawling my anymore.” but not Attention and concentration are extremely Pa- poor. states, tient “My mind is all going the time. I cannot shut I up my mind. am thinking about sonmy all the time.” At the present time, patient is denying any homicidal thoughts or I plans. specifically asked the if patient he wants to kill the person that he feels is responsible for the son, death of his patient stated, just “I feel sorry for him. I am not thinking of killing him.” Patient has suicidal thoughts but does not have any active plan of hurting himself. Patient has been admitted to the psychiatric intensive care unit for his safety.

STRENGTHS AND LIMITATIONS: Patient has supportive family and is employed, which is a strength. Loss of son is the limitation.

ESTIMATED LENGTH OF STAY: 10-14 days. Dissenting Opinion PEOPLE V FACKELMAN Young, C. J. DIAGNOSIS: with- single severe episode, Major depression,

Axis I: out psychosis.

Axis II: Deferred. Hyperlipidemia.

Axis III: (loss son). IV: Severe Axis Axis V: GAF 20.

PLAN: Off-label Prozac, Seroquel. I will add

Continue Sero- patient. with the Seroquel was discussed use agitation sleep, with help patient is added quel effects, shut his mind. Side that he cannot complaint his psychotropics with benefits of treatment risks versus were discussed to the treatment and alternatives any treatment receiving Risk of not patient. discussion, After we patient. with the also discussed current treat- to continue with the mutually decided ment. psychotherapy.

Supportive milieu.

Unit Community to follow at discharge, patient After choice. psychiatrist Health Center or a Mental through him legal charges against also has Patient Circuit, and count 38th Judicial Michigan the State of invasion, and count two is degree, home first one is (felonious assault). dangerous weapon with a assault Shahid, M.D., Agha [signed] 3/31/7

Case Details

Case Name: People v. Fackelman

Court Name: Michigan Supreme Court

Date Published: Jul 28, 2011

Citation: 802 N.W.2d 552

Docket Number: Docket 139856

Court Abbreviation: Mich.