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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DARIUS E. DIXON, Defendant-Appellant.

UNPUBLISHED April 27, 2010

No. 289019 Kent Circuit Court LC No. 08-004777-FC

Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ. PER CURIAM. Defendant appeals of right his jury trial conviction on four counts of armed robbery, MCL 750.529; four counts of torture, MCL 750.85; four counts of unlawful imprisonment, MCL 750.349b; four counts of obtaining personal information with the intent to commit identity theft, MCL 445.67; first-degree home invasion, MCL 750.110a(2); and unlawfully driving away a motor vehicle, MCL 750.413. Defendant was acquitted of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We affirm. Defendant's first claim on appeal is that the prosecutor violated his right of confrontation. Defendant claims that the lead detective's testimony about what a nontestifying codefendant told her was a violation of the Confrontation Clause because defendant was denied the opportunity to cross examine the codefendant about the alleged statement. While we agree with defendant that the testimony violated the Confrontation Clause, we find that reversal is not warranted because the error, while plain, did not affect defendant's substantial rights. We review unpreserved claims of constitutional error, such as this alleged violation of the Confrontation Clause, for plain error that affected defendant's substantial rights. People v Walker, 273 Mich App 56, 65-66; 728 NW2d 902 (2006). Under "plain error" review, the aggrieved party must show that: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights," and a "reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings." People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999). Defendant bears the burden of persuasion in regard to whether the error affected substantial rights, and generally must show that the error affected the outcome of the lower court proceedings. Carines, 460 Mich at 763.

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"The Confrontation Clause of the Sixth Amendment bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination." People v Payne, 285 Mich App 181, 197; 774 NW2d 714 (2009). While the United States Supreme Court did not identify precisely what makes a statement testimonial, it stated that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In determining whether a nontestifying witness is unavailable for purposes of the Confrontation Clause, courts have used the definition of "unavailability" from MRE 804(a). People v Garland, 286 Mich App 1, 7; __NW2d__(2009). See also People v Chavies, 234 Mich App 274, 284; 593 NW2d 655 (1999), overruled on other grounds People v Williams, 475 Mich 245; 716 NW2d 208 (2006). MRE 804(a) defines "unavailability" as: "Unavailability as a witness" includes situations in which the declarant

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