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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v NINA JILLAINE SHEPHERD a/k/a NINA JILLAINE BUTTERS, Defendant-Appellee. _______________________________ PER CURIAM.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 24, 2005

No. 127303

At issue is whether the alleged constitutional error of admitting in evidence a transcript of an unavailable witness's testimony in a different case was harmless. We

conclude that it was harmless because other evidence was sufficient to sustain defendant's conviction. Accordingly,

we reverse the judgment of the Court of Appeals and remand the matter to the trial court for the reinstatement of the conviction and the sentence. I. BACKGROUND In the early morning hours of June 2, 2003, defendant and her boyfriend, Bobby Butters, were departing from a

Midland County bar owned by Rose York. former employee of the bar and Butters

Defendant was a was a frequent

customer.

York testified that she observed defendant and

Butters in the parking lot after closing and overheard them discussing rides. She saw defendant get in defendant's

station wagon and she observed Butters drive off in his pickup truck. Unbeknownst to defendant or Butters, the pickup truck was under surveillance by a Midland County sheriff's

deputy, Sergeant Stephen Woods. saw someone who appeared to

Woods testified that he the general physical

match

description of Butters get into the truck after speaking to a woman in the parking lot. attempted to initiate a Another sheriff's deputy then traffic stop, but Butters

accelerated the truck to one hundred miles an hour, did not stop at a stop sign, and attempted to collide with a patrol car. He escaped, but was later apprehended. Butters eluding felonious the was charged MCL with third-degree two fleeing counts and of of

police, MCL

750.479a(3); malicious

assault,

750.82;

destruction

fire or police property, MCL 750.377b; operating a vehicle while having a suspended or revoked license, MCL

257.904(3)(b); and driving a vehicle with an invalid or missing license plate, MCL 257.255(1). As part of the

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alibi defense that Butters advanced, defendant testified that Butters had departed the parking lot with her, in her station wagon, on the morning of the crime, and that,

consequently, he could not have been the person in the truck who fled from the police. Butters was nevertheless

convicted of third-degree fleeing and eluding and one count of felonious assault.1 He was then charged with subornation At

of perjury, MCL 750.424, to which he pleaded guilty.2 his plea hearing, Butters testified that

defendant's

testimony at his trial for fleeing and eluding was false information and that he had requested defendant to provide that testimony. Defendant was charged with perjury for

giving the allegedly false testimony. II. At defendant's PROCEDURAL HISTORY trial, the court admitted the

transcript of the hearing at which Butters pleaded guilty of subornation of perjury. Also admitted were certain

The jury acquitted Butters of malicious destruction of fire or police property, and was unable to reach a verdict on the remaining count of felonious assault. The trial court dismissed that felonious assault charge and the licensing charges. The Court of Appeals affirmed. People v Butters, unpublished opinion per curiam of the Court of Appeals, issued July 22, 2003 (Docket No. 239277). By order of April 3, 2003 (Docket No. 246539), the Court of Appeals denied Butters's application for leave to appeal that conviction for lack of merit. 3

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statements that Butters was overheard making while he was in jail, a "script" of questions and answers that Butters had created for defendant in preparation for her testimony in his fleeing and eluding trial, and the testimony of witnesses who were present on the morning of the fleeing and eluding offense. Defendant's defense was that she was

telling the truth when she testified in the earlier trial. The trial court denied defendant's motion for a directed verdict, and the jury found defendant guilty of perjury. Defendant appealed, and the Court of Appeals majority reversed her conviction pursuant to Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).3 The

Court found constitutional error in the admission of the plea transcript, and the majority held that "[i]t is not at all clear that a rational jury would have found defendant guilty beyond a reasonable doubt absent the improperly The Court

admitted statement."

263 Mich App at 672-673.

of Appeals dissenting judge concluded that the error was harmless on the basis of the other evidence in support of the verdict. The prosecutor seeks leave to appeal, conceding that the plea transcript was improperly admitted, but arguing

3

263 Mich App 665; 689 NW2d 721 (2004). 4


that the error was harmless beyond a reasonable doubt in light of the other legally admissible evidence that

established defendant's guilt. III. STANDARD OF REVIEW

"A constitutional error is harmless if `[it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" People v

Mass, 464 Mich 615, 640 n 29; 628 NW2d 540 (2001), quoting Neder v United States, 527 US 1, 19; 119 S Ct 1827; 144 L Ed 2d 35 (1999). IV. ANALYSIS

In Crawford, supra, the United States Supreme Court held that, under the Confrontation Clause of the Sixth

Amendment, testimonial statements of witnesses absent from trial may not be admitted against a criminal defendant

unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.

The Court of Appeals held that the trial court's admission of the transcript, in which Butters pleaded guilty of the crime of subornation of perjury, violated defendant's right to confront the witnesses against her. concluded defect that the alleged automatic error was The Court correctly not a The structural question

requiring

reversal.

presented is whether the alleged constitutional error was

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harmless beyond a reasonable doubt.

We agree with the

dissenting Court of Appeals judge that it was.4 Harmless error analysis applies to claims concerning Confrontation Clause errors, see Delaware v Van Arsdall, 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674 (1986). But

to safeguard the jury trial guarantee, a reviewing court must "conduct a thorough examination of the record" in

order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same

absent the error.

Neder, supra at 19.5

Having conducted

such a review, we conclude beyond a reasonable doubt that a reasonable jury would have found defendant guilty of

perjury even if the transcript of Butters's guilty plea to the charge of subornation of perjury had not been admitted. At Butters's trial for fleeing and eluding, defendant testified that, on the morning in question, she had asked Butters to ride with her and that Butters gave his truck

Because we conclude that the admission of the guilty plea transcript was harmless, it is not necessary to address whether the admission of the transcript violated the Confrontation Clause of the United States Constitution, US Const, Am VI, and "it is an undisputed principle of judicial review that questions of constitutionality should not be decided if the case may be disposed of on other grounds." J & J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003). This Court adopted the Neder harmless error standard in Mass, supra at 640 n 29. 6

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keys to Tony Miller.

She testified that Butters requested

that she take him to his grandmother's house to pick up some beer, that he told others that he was riding with her, and that Butters left the bar in defendant's car. The statutory definition of perjury provides, in part: Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury . . . . [MCL 750.423.] Apart from the plea transcript, the prosecution offered at least four other pieces of evidence that strongly supported a guilty verdict for perjury by establishing that

defendant's testimony in the fleeing and eluding case was false.6 First, Rose York testified that she was standing

outside in the parking lot when the patrons were leaving the bar. She observed defendant and Butters leave the bar

together, heard them discussing rides, and saw them split up and go to their separate vehicles. She saw defendant Sheriff's

get into her car and Butters get into his truck. Deputy Woods corroborated York's testimony.

He testified

We recognize that the prosecutor emphasized erroneously admitted guilty plea transcript in argument, but this does not alter our analysis. 7


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the his

that he had knowledge of Butters's physical appearance from prior contacts with him, and that he saw a person who

generally matched that description talking with a woman and then getting in the vehicle that was being surveilled. Second, Tony Miller testified that he was very

intoxicated on the morning in question and needed to be driven home from the bar by Ty Maltby. Miller stated that

he was never in Butters's pickup truck, but that defendant later telephoned him to ask him to tell the police that he had been driving it. been drinking during Maltby, who testified that he had not the time in question, corroborated Thus,

Miller's testimony that Maltby drove Miller home.

Miller could not have been driving Butters's pickup truck at the time of the fleeing and eluding offense. Third, the prosecution also introduced the "script" that Butters had prepared for defendant and that had been introduced at the fleeing and eluding trial to impeach

defendant's testimony. it.

The trial court properly admitted

The script contained twenty-one questions and answers,

detailing the testimony that defendant would give at the earlier trial. It included the following:

3) Did you see keys in Butters [sic] hand? Yes[.] 4) What did he do with the keys? to his cousin Tony Miller[.] Gave them

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5) When did he give his keys to Miller? the way out of the Bar.

On

6) Why did Butters give his keys to Miller? Bob & I were going to his house to get beer from his refrigerator & then we were going to Tony's house. Tony needed a ride so Bob told Tony to take his truck. 7) How did you leave the bar? 8) Who was with you? Finally, two corrections My car[.]

Bob Butters[.] officers testified that,

after Butters was arrested and incarcerated in the Midland County Jail, they overheard him talking to two visitors.7 Butters told the visitors: that there was no way he would

have stopped for the sheriff's deputies because he had so much cocaine in the truck that he would have been put away for life; that he would have "killed one of the cops"

before allowing himself to be caught; and that there was no way defendant would be charged with perjury because they were just trying to scare her. Therefore, on the basis of this overwhelming evidence of the falsity of defendant's testimony in the fleeing and eluding trial, we conclude that it is clear beyond a

reasonable doubt that a reasonable jury would have found defendant guilty of perjury even if the transcript of

The Court of Appeals correctly found that the corrections officers' testimony about Butters's nontestimonial statements to his visitors was properly admitted under MRE 804(b)(3). 9


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Butters's plea to the charge of subornation of perjury had not been admitted. in admitting the Thus, the trial court's alleged error transcript was harmless beyond a

reasonable doubt.

The judgment of the Court of Appeals is

reversed, and this case is remanded to the Midland Circuit Court for the reinstatement of the conviction and the

sentence. Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

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S T A T E

O F

M I C H I G A N


SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v NINA JILLAINE SHEPHERD a/k/a NINA JILLAINE BUTTERS, Defendant-Appellee. _______________________________ WEAVER, J. (concurring). I agree with the result and most of the reasoning of the majority opinion. that I write separately of because the No. 127303

general

principle

"`questions

constitutionality

should not be decided if the case may be disposed of on other grounds,'" ante, p 6 n 4 (citation omitted), does not necessarily apply in criminal cases. partial concurrence and partial As I stated in my in People v

dissent

McNally, 470 Mich 1, 10-11; 679 NW2d 301 (2004), . . . that general principle does not apply here [in a criminal case]. The phrase used by the majority is a convenient and often-used shorthand for the principle that "considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress [or the Legislature] unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Ashwander v Tennessee

Valley Auth, 297 US 288, 341; 56 S Ct 466; 80 L Ed 688 (1936) (Brandeis, J., concurring). One of the earliest applications of this rule in Michigan was in 1874, when this Court said "any consideration of the constitutional question might have been waived, upon the ground that a legislative act should not be declared unconstitutional unless the point is presented in such a form as to render its decision imperative . . . ." Weimer v Bunbury, 30 Mich 201, 218 (1874). The reasons behind such judicial restraint include the delicacy and finality of judicial review of legislative acts, separation of powers concerns raised by ruling on the acts of the other two branches of government, and the need to show respect for the other two branches of government. See Rescue Army v Muni Court of Los Angeles, 331 US 549, 571; 67 S Ct 1409; 91 L Ed 1666 (1947), and Kloppenberg, Avoiding serious constitutional doubts: The supreme court's construction of statutes raising free speech concerns, 30 UC Davis L R 1, 13-14 (Fall, 1996). These concerns are not implicated here, because the constitutionality of an act of the Legislature or the Governor is not at issue. In deciding whether the defendant's postarrest, preMiranda silence was admissible in the prosecutor's case-in-chief, the Court would not be ruling on the validity of a legislative or executive decree, but on a lower court's decision whether to admit certain testimony. See Kloppenberg, Avoiding constitutional questions, 35 B C L R 1003, 1054 (1994). But I agree the that in this case it is when not necessary Court to has

address

constitutional

issue

the

concluded that the admission of the evidence was harmless. Elizabeth A. Weaver

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S T A T E

O F

M I C H I G A N


SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v NINA JILLAINE SHEPHERD a/k/a NINA JILLAINE BUTTERS, Defendant-Appellee. No. 127303

CAVANAGH, J. (dissenting). I dissent on the grounds that such an important, and recurring, curiam. issue should not be decided by opinion per

I would either hold this case in abeyance for this

Court's decision in People v Jackson, Docket No. 125250, or grant leave to appeal. Michael F. Cavanagh Marilyn Kelly



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