
    PEOPLE v McDANIEL
    Docket No. 122922.
    Decided November 4, 2003.
    On application of the defendant for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the judgment of the Court of Appeals, vacated the defendant’s conviction, and remanded to the trial court for proceedings consistent with this opinion.
    Paul E. McDaniel was convicted by a jury in the Wayne Circuit Court of delivery of less than fifty grams of heroin. The court, Patricia Fresard, J., over defendant’s objection, had admitted into evidence a police laboratory report identifying a substance as heroin without the supporting testimony of the chemist-officer who conducted the analysis. The Court of Appeals, Bandstra and Gage, JJ. (Fitzgerald, P.J., dissenting), in an unpublished opinion per curiam, affirmed the conviction on the basis that MRE 803(8), the public records exception to the hearsay rule, allowed admission of the report in accord with People v Stacy, 193 Mich App 19, 33 (1992). (Docket No. 234028). The defendant sought leave to appeal.
    In a unanimous opinion per curiam, signed by Chief Justice Corrigan, and Justices Cavanagii, Weaver, Kelly, Taylor, Young, and Markman, the Supreme Court held,-.
    
    The police laboratory report was clearly hearsay and is not admissible under the public records exception to the hearsay rule because it was destined to establish an element of the crime with which the defendant was charged and, therefore, was a police report made in a setting that was adversarial to the defendant. The report is also not admissible under the business records exception because the trustworthiness of a record is undermined when it is prepared in anticipation of litigation.
    Reversed, conviction vacated, and case remanded to the circuit court.
    Evidence — Hearsay Exceptions — Public Records — Business Records — Police Laboratory Reports — Controlled Substances.
    A police laboratory report identifying a suspected controlled substance and offered in a prosecution for a controlled substance offense is hearsay and is not admissible under the public records exception or the business records exception to the hearsay rule (MRE 803[6], [8]).
    
      
      Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Gail Rodwan) for the defendant.
   Per Curiam.

This case requires us to determine whether a police laboratory report is admissible, notwithstanding that it is hearsay, to prove the identity of a seized substance. The Court of Appeals held that the report was admissible under the public records exception to the hearsay rule, MRE 803(8), and affirmed defendant’s conviction on one count of delivery of less than fifty grams of heroin, MCL 333.7401(2)(a)(iv). We reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand the case to the trial court for further proceedings.

I

Defendant was charged with selling a packet of heroin to an undercover police officer. The contents of the packet were analyzed by a chemist who was a police officer and who prepared a report indicating that the packet contained heroin. However, at trial, the chemist who performed the analysis did not testify because he had retired. In his place, the prosecution presented Steven Gyure, a police department chemist who had worked in the department’s laboratory for thirty-one years. He had no personal knowledge of what occurred during the test of the contents of the packet. Gyure’s testimony, over defense counsel’s objection, was that there had never been a misidentification of a substance during his years working for the department. The court found the foundation sufficient and admitted the report into evidence under MRE 803(8).

A jury convicted defendant as charged. His only issue on appeal was that, in the absence of the testimony of the chemist who conducted the analysis, the report constituted hearsay and was inadmissible under MRE 802. The prosecution argued that the evidence was admissible under MRE 803(6) and (8), the business records and public records exceptions to the hearsay rule. In a divided decision, the Court of Appeals affirmed on the basis that the report was admissible as a public record under MRE 803(8). The Court declined to rule on the report’s admissibility under MRE 803(6). The defendant has sought leave to appeal.

II

The decision whether to admit evidence is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion. However, where, as here, the decision involves a preliminary question of law, which is whether a rule of evidence precludes admissibility, the question is reviewed de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

III

The laboratory report at issue is, without question, hearsay. MRE 801(c). As such, pursuant to MRE 802, it is not admissible unless it fits within at least one category of the allowable exceptions outlined in MRE 803 and 804. Admissibility was sought under MRE 803(8), which states that even though violative of hearsay rules, public records of “matters observed pursuant to duty imposed by law” are admissible, but that reports containing matters observed by police officers in criminal cases are not.

MRE 803(8) has been construed by the Court of Appeals in People v Stacy, 193 Mich App 19; 484 NW2d 675 (1992). There, following the interpretation of the federal counterpart to our rule, FRE 803(8), the Stacy Court held that the exclusion of hearsay observations by police officers was intended to apply only to observations made at the scene of the crime or while investigating a crime. The import of that holding is that MRE 803(8) allows admission of routine police reports, even though they are hearsay, if those reports are made in a setting that is not adversarial to the defendant. We do not deal with such a situation here. The report at issue, prepared by a police officer, was adversarial. It was destined to establish the identity of the substance—an element of the crime for which defendant was charged under MCL 333.7401. People v Mass, 464 Mich 615, 625-626; 628 NW2d 540 (2001). Thus, the Court of Appeals erred in applying Stacy. Because the report helped establish an element of the crime by use of hearsay observations made by police officers investigating the crime, the report cannot be admitted under MRE 803(8). Further, the error cannot be harmless because this was the only evidence that established an element of the crime for which defendant was charged.

Defendant argues, also, that the laboratory report could not have been admitted under MRE 803(6), the business records exception. Although the Court of Appeals did not address that issue because it found the report admissible under MRE 803(8), we find that a remand for consideration of it is unnecessary. The hearsay exception in MRE 803(6) is based on the inherent trustworthiness of business records. That trustworthiness is undermined when the records are prepared in anticipation of litigation. Palmer v Hoffman, 318 US 109, 113-114; 63 S Ct 477; 87 L Ed 2d 645 (1943); Solomon v Shuell, 435 Mich 104, 120-121, 130, 132; 457 NW2d 669 (1990). Hence, the police laboratory report is inadmissible hearsay because “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” MRE 803(6).

Accordingly, we reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand to the trial court for proceedings consistent with this opinion.

Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred. 
      
       Unpublished opinion per curiam, issued December 3, 2002 (Docket No. 234028).
     
      
       Those exceptions read as follows:
      The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      * ** *
      (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
      
        (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, and subject to the limitations of MCL 257.264; MSA 9.2324.
     
      
       “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
     
      
       We note that hearsay that is admissible under MRE 803 does not depend on the unavailability of the declarant. Thus, whether the chemist was available to testify is irrelevant to our analysis.
     