Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra, Justices

Order 

December 2, 2011

140704 & (92)(93)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 140704

COA: 274508

Wayne CC: 06-006502-01

REGINALD LENOIR LEWIS,

Defendant-Appellant. 

_________________________________________/

By order of February 4, 2011, the application for leave to appeal the January 12, 

2010 judgment of the Court of Appeals was held in abeyance pending the decision in 

People v Bryant, 483 Mich 132 (2009), cert gtd 559 US ___; 130 S Ct 1685; 176 L Ed 2d 

179 (2010). On order of the Court, the case having been decided on April 18, 2011, 

Michigan v Bryant, 562 US ___; 131 S Ct 1143; 179 L Ed 2d 93 (2011), the application 

is again considered. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, 

we AFFIRM the result reached by the Court of Appeals, but VACATE that part of the 

Court of Appeals opinion holding that the autopsy report was not testimonial and, 

therefore, that its admission did not violate the defendant’s Sixth Amendment right to be 

confronted with the witnesses against him. In particular, we disagree with the Court of 

Appeals’ reliance on MRE 803(8) and its determination that the autopsy report was not 

prepared in anticipation of litigation, see Bullcoming v New Mexico, 564 US __; 131 S Ct 

2705; 180 L Ed 2d 610 (2011). Nonetheless, we agree that the admission of the report 

was not outcome determinative. The motions to file supplemental authority are

GRANTED.

MARILYN KELLY, J. (concurring).

I concur in the Court’s order vacating part of the Court of Appeals published 

opinion and affirming defendant’s conviction. I do so because I believe that at least some 

portions of the Court of Appeals analysis of the Confrontation Clause issue presented are 

clearly erroneous. 

However, I concur only with great reluctance because I would prefer to grant leave 

to appeal. The Court should consider whether admission of the contents of an autopsy 

report through testimony of a medical examiner who did not prepare the report 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 _________________________________________

 Clerk

December 2, 2011

p1129

2

constitutes inadmissible testimonial hearsay. This is a jurisprudentially significant

question that has divided courts across the country.1

 Hearing oral argument would allow 

the Court to determine to what extent the Court of Appeals erred and to explicitly decide 

the constitutional question presented. I note that, by vacating the Court of Appeals 

Confrontation Clause analysis and affirming on alternate grounds, we are not deciding 

whether the autopsy report constituted testimonial hearsay evidence. 

 

1 Compare Wood v State, 299 SW3d 200 (Tex App, 2009) (finding a Confrontation 

Clause violation); State v Locklear, 363 NC 438 (2009) (same) with Lewis (On Remand), 

287 Mich App 356 (2009) (opinion below) (admission of autopsy report prepared by 

nontestifying medical examiner did not violate Confrontation Clause); People v Hall, 923 

NYS 2d 428, 430 (NY AD 1, 2011) (noting that Melendez-Diaz did not explicitly hold 

that autopsy reports are testimonial).