PEOPLE OF MI V NINA JILLAINE SHEPHERD
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
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
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127303
NINA JILLAINE SHEPHERD a/k/a
NINA JILLAINE BUTTERS,
Defendant-Appellee.
_______________________________
PER CURIAM.
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.
Defendant was a
former
was
employee
customer.
of
the
bar
and
Butters
a
frequent
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
deputy, Sergeant Stephen Woods.
saw
someone
who
appeared
to
County
sheriff’s
Woods testified that he
match
the
general
physical
description of Butters get into the truck after speaking to
a woman in the parking lot.
Another sheriff’s deputy then
attempted
traffic
to
initiate
a
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
the
felonious
was
charged
police,
assault,
MCL
with
MCL
third-degree
750.479a(3);
750.82;
malicious
fleeing
two
counts
destruction
and
of
of
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).
2
As part of the
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
of perjury, MCL 750.424, to which he pleaded guilty.2
his
plea
hearing,
Butters
testified
that
At
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
1
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).
2
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
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
admitted statement.”
doubt
absent
the
improperly
263 Mich App at 672-673.
The Court
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
requiring
alleged
error
automatic
The Court correctly
was
reversal.
not
a
The
structural
question
presented is whether the alleged constitutional error was
5
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
absent the error.
jury
verdict
would
have
Neder, supra at 19.5
been
the
same
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
4
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).
5
This Court adopted the Neder harmless error standard
in Mass, supra at 640 n 29.
6
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
get into her car and Butters get into his truck.
Deputy Woods corroborated York’s testimony.
6
Sheriff’s
He testified
We recognize that the prosecutor emphasized
erroneously
admitted
guilty
plea
transcript
in
argument, but this does not alter our analysis.
7
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
Miller’s testimony that Maltby drove Miller home.
Thus,
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
defendant’s testimony.
it.
and
eluding
trial
to
impeach
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[.]
8
Gave them
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
My car[.]
Bob Butters[.]
corrections
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
7
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
Butters’s plea to the charge of subornation of perjury had
not been admitted.
Thus, the trial court’s alleged error
in
transcript
admitting
the
reasonable doubt.
was
harmless
beyond
a
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
sentence.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
10
and
the
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
No. 127303
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
general
opinion.
principle
that
I
write
separately
“‘questions
of
because
the
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
dissent
in
People
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
v
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
address
agree
the
that
in
this
case
constitutional
it
issue
is
when
not
necessary
the
Court
to
has
concluded that the admission of the evidence was harmless.
Elizabeth A. Weaver
2
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
No. 127303
NINA JILLAINE SHEPHERD a/k/a
NINA JILLAINE BUTTERS,
Defendant-Appellee.
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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