Defendant appeals as of right from his convictions by a jury of first-degree criminal sexual conduct (CSC I), MCL 750.520b(l)(c) (circumstances involving commission of any other felony), first-degree home invasion, 750.110a(2), and unarmed robbery, MCL 750.530. We affirm.
At about 6:00 a.m. on October 20, 1998, 1 the victim called Flint 911 to report that someone was trying to break into her apartment. The police resрonded to the wrong address, and a man who had broken into her apartment through a window confronted the victim, a 73-year-old woman who used a walker. The intruder, defendant, tore the telephone off the wall, robbed and raped the victim, and then fled.
The victim then went outside in her nightgown and yelled for help. The owner and opеrator of a service station (Ronald Ferris) across the street responded, and 911 was again called. The police arrived at the scene 45 minutes to an hour after the first 911 call. When Ferris first encountered the victim, she told him that she had been raped, but she failed to tell that to the police detective when he first questioned her, indicating only that the perpetrator demanded money (which she gave him), took her television, and then tore her telephone off the wall.
After the detective left, the victim’s landlord and close friend Merl Avery arrived, and the victim told her about the break-in and theft but did not mention the rape. After speaking with Ferris, Avery аsked the *662 victim why she did not mention the rape, and the victim replied that the perpetrator told her that he would kill her if she told anyone. Avery then took her to the police station, where she told the detective that she had been raped. A vaginal swab and a swab from the victim’s clothing both matched defendant’s deoxyribonucleic acid (DNA) sample. The victim died before trial of causes unrelated to this case.
Defendant argues that the trial court erred when it ruled that the victim’s statements to Ferris and Avery were admissible. We disagree.
The admissibility of evidence is within the sound discretion of the trial court and will not be reversed unless the trial court abused its discretion.
People v McDaniel,
Crawford v Washington,
Defendant argues that declarant’s statements were testimonial under
Davis v Washington,
547 US_;
*663 Statements are nontestimonial when mаde in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such оngoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Defendant further argues that Ferris should be considered an agent of the police because “he acted as a police agent in relaying [the victim’s] report to the 911 operator and must have been seen as an agent... by the declarant [because] she told him ‘to please call the police.’ ” Because defendant cites no authority to support his agency theory, this Court need not address defendant’s agency argument.
People v Mackle,
Nevertheless, we conclude that Ferris was not an agent of the police. Although Ferris relayed information to the police at the request of the victim, this would, at most,
arguably
make him an agent of the victim. See
Meretta v Peach,
We also reject defendant’s argument that Fеrris should be treated as an agent of the police because the victim viewed him as such. An ostensible agency may be created “ ‘when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.’ ”
VanStelle v Macaskill,
*664 Similarly, we reject defendant’s argument that Avery should be treated as an agent of the police. Avery testified that she and the victim were “like family,” had known each other for about 20 years, had engaged in many activities together, and the two were so сlose that Avery had moved the victim into her home for years after the assault. Thus, it is clear that the victim did not view her longtime friend as an ostensible agent of the police for obtaining statements for use in court, but as a friend concerned for her well-being and need for treatment.
Even assuming that either Ferris or Avery conducted thе functional equivalent of a police interrogation, the victim’s statements were nontestimonial because they were made “under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency.” Davis, supra at 2273-2274. We hold that questions necessary to obtaining or providing emergency medical care are nontestimonial. 4 The 73-year-old victim, clothed in her nightgown, was outside in the early morning hours yelling for help because she had just been raped and robbed. She had yet to have a police response to her calls for help and was in need of emergency medical treatment. Under the circumstances, “any reasonable listener would recognize that [the victim] was facing an ongoing emergency.” Davis, supra at 2276. Because all statements by the victim *665 were necessary to resolving the ongoing emergency, the statements were nontestimonial. Id.
Defendant next argues that the Confrontation Clause bаrred admission of the victim’s statements to the detective and the 911 supervisor’s testimony concerning the victim’s statements to Ferris. We disagree.
Defendant argues at length that his oral request at trial for a “continuing objection to the hearsay.. . statements of the complaining witness” preserved his challenge to the victim’s statemеnts to the detective and the 911 supervisor. However, after reviewing the text of defendant’s objection, it is clear that defendant was referring to the statements that he challenged in his motion in limine, which the trial court ruled were admissible under the excited-utterance exception to the hearsay rule. Defendant’s motion in limine challenged only the victim’s statements to Ferris and Avery. Because the admissibility of the statements of the 911 supervisor or the detective was never challenged before the trial court, this issue is not preserved.
People v Grant,
An appellate court will not reverse a conviction on the basis of an unpreserved issue except for plain error that affected a defendant’s substantial rights by resulting in the conviction of an actually innocent person or seriously affecting the integrity, fairness, or public reputation of the judicial proceedings.
People v Carines,
Defendant’s argument about the testimony of the 911 supervisor 5 must fail. The 911 supervisor did not *666 answer either call, although she made the tapе that was played in court from the originals and authenticated both the tape and the transcript made from it. Under these circumstances, the only conduct of law enforcement to be considered under Davis, supra at 2274 n 2 (which defendant cites) would be her action in making a tape for trial from the originals. Even though Davis held that a cаller’s responses to a 911 operator could be considered testimonial under certain circumstances, it is inapplicable here because the victim’s statements were nontestimonial, as noted.
We also conclude that defendant declined to object to the victim’s statements to the detective аs a matter of trial strategy. Counsel for defendant argued in his opening statement that the evidence would show that the victim did not initially complain to police that she had been raped and that she only did so after being questioned by the friend. It does not appear that defendant could have shown this discrepancy without thе hearsay testimony of the detective regarding what the victim told him, which likely explains why defendant still did not object after the trial court indicated that the excited utterance exception might not apply to the victim’s statements to the detective. Thus, even assuming that the trial court should have ruled these statements inadmissible dеspite defendant’s failure to object, any alleged error cannot be an error requiring reversal. See
People v Griffin, 235
Mich App 27, 46;
In any event, assuming that the trial court erred in “admitting” the unchallenged testimony of the 911 supervisor or the detective regarding the victim’s statements, any such error would not amount to plain error
*667
affecting defendant’s substantial rights.
People v Jones,
Defendant next argues that he was denied the effective assistance of trial counsel when counsel failed to argue that the prosecution had not provided adequate independent evidence that the startling event actually occurred. We disagree.
Because no
Ginther
hearing was held,
People v Ginther,
To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient in that it fell below an objective standard of professional reasonableness, and that it is reasonably probable that, but for counsel’s ineffective assistance, the result of the proceeding would have been different.
People v Rodgers,
We find that it would have been futile for trial counsel to argue that there was not sufficient independent evidence to show that a startling event actually occurred. The prosecution рresented eyewitness testimony that bars had been removed from a window in the victim’s apartment and the window had been torn out, at least two witnesses testified that the victim’s lip had been injured, and defendant’s semen was recovered from a vaginal swab of the victim and from her clothing.
Defendant next argues that defense counsel’s failure to object to the incorrect jury instruction on unarmed robbery denied him the effective assistance of counsel. We disagree.
Our Supreme Court held in
People v Randolph,
However, assuming that defense counsel’s failure to object “fell below an objective standard of professional reasonableness[,]” there is no reasonable probability that objecting would have made a difference. Rodgers, supra at 714. The exact sequence of events in the apartment was never clearly established, but it is unlikely that the jury could have found that any force occurred only after the larcenies (of the victim’s television and money) were complete. It is far more likely that the jury inferred that the assault preceded the theft of the television, at least. That is, the evidence could support a finding that a larceny was committed by defendant using the necessary forсe, the evidence could not support a finding that defendant used force, frightened the victim, or assaulted her only after completing a larceny, which occurred in Randolph, supra at 534-535. It would be patently unreasonable for a rational jury to conclude that defendant pocketed a 19-inch television and then sexually assaulted the victim, so he *670 would necessarily have used force that put her in fear for her safety before taking the television.
Moreover, the victim’s 911 call clearly demonstrated her fear even before defendant gained entry into her apartment and defendant conceded during the hearing on his motion for a new trial that thе noise of the break-in would have immediately frightened the victim. The victim also told the detective that she gave defendant money after he broke in and demanded money, and there is no indication or argument that the victim would have willingly handed over money had she not been afraid. Accordingly, because there is simply no evidеnce that would support a finding that defendant only frightened or used force in an attempt to commit larceny or to escape or retain the property, it is overwhelmingly likely that the jury found that defendant accomplished a larceny by force or placing the victim in fear, so the error in the jury instruction was harmless.
Affirmed.
Notes
The long delay between the crime and the trial in the fall of 2005 was caused by the fact that the police had no leads to a suspect and only after deoxyribonucleic acid (DNA) technology allowed a cross-match was defendant identified as the perpetrator. In the meantime, the victim died.
US Const, Am VI.
There is no indicatiоn or argument made that defendant had any opportunity to cross-examine the victim.
See
Massachusetts v Tang,
66 Mass App Ct 53, 59;
Defendant’s brief is somewhat confusing inasmuch as he refers to the testimony of the 911 operator. However, only the supervisor who authenticated a recording of the 911 calls testified and she did not testify about the content of the tapes.
For brevity, we use the term “force” broadly to mean “force and violence, or ... assault or putting [a present person] in fear” within the meaning of MCL 750.530, and we use the term “larceny” to mean “rob, steal and take [property] from the person of another, or in his presence ... .”
In contrast, the current version of MCL 750.530 provides that the necessary force may occur “ ‘in the course of committing a larceny[,]’ [which] includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.”