PEOPLE v SHEPHERD
Docket No. 127303
Supreme Court of Michigan
Decided May 24, 2005
472 Mich 343 | 689 NW2d 721
Docket No. 127303. Decided May 24, 2005. On application by the prosecution for leave to appeal, the Supreme Court, in lieu of granting leave to appeal, reversed the judgment of the Court of Appeals and remanded the matter to the circuit court for the reinstatement of the conviction and the sentence.
Nina J. Shepherd was convicted by a jury in the Midland Circuit Court, Thomas L. Ludington, J., of perjury as a result of giving false testimony in the trial of her boyfriend for fleeing and eluding the police. The Court of Appeals, COOPER and KELLY, JJ. (HOEKSTRA, P.J., dissenting), reversed the conviction on the basis that the trial court erred in admitting at the defendant‘s trial the transcript of the boyfriend‘s plea of guilty to a charge of subornation of perjury relating to the defendant‘s testimony at the boyfriend‘s trial. The dissenting Court of Appeals judge concluded that the error was harmless. 263 Mich App 665 (2004). The prosecution sought leave to appeal in the Supreme Court.
In an opinion per curiam, signed by Chief Justice TAYLOR, and Justices CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
The alleged constitutional error of admitting in evidence the transcript of the defendant‘s boyfriend‘s plea of guilty to a charge of subornation of perjury is harmless because it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.
Justice WEAVER, concurring, stated that she agrees with the result and most of the reasoning of the majority opinion, but wrote separately to note that the general principle that questions of constitutionality should not be decided if the case may be disposed of on other grounds does not necessarily apply in criminal cases. In this case, it is not necessary to address the constitutional issue when the Court has concluded that the admission of the evidence was harmless.
Reversed and remanded for the reinstatement of the conviction and the sentence.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that the important and recurring issue in this matter should not
CONSTITUTIONAL LAW — CONFRONTATION CLAUSE — HARMLESS ERROR.
Harmless error analysis applies to claims concerning Confrontation Clause errors; 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 (
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Norman W. Donker, Prosecuting Attorney, and Michael T. Garner, Assistant Prosecuting Attorney, for the people.
Joseph L. Stewart for the defendant.
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 employee of the bar and Butters 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.
Butters was charged with third-degree fleeing and eluding the police,
II. PROCEDURAL HISTORY
At defendant‘s trial, the court admitted the transcript of the hearing at which Butters pleaded guilty of subornation of perjury. Also admitted were certain 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 admitted statement.” 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 argu-
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. The Court correctly concluded that the alleged error was not a structural defect requiring automatic reversal. The question presented is whether the alleged constitutional error was harmless beyond a reasonable doubt. We agree with the dissenting Court of Appeals judge that it was.4
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 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
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. Sheriff‘s Deputy Woods corroborated York‘s testimony. He testified 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. Maltby, who testified that he had not been drinking during 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 and eluding trial to impeach defendant‘s testimony. The trial court properly admitted it. The script contained twenty-one questions
3) Did you see keys in Butters [sic] hand? Yes[.]
4) What did he do with the keys? Gave them to his cousin Tony Miller[.]
5) When did he give his keys to Miller? On the way out of the Bar.
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? My car[.]
8) Who was with you? Bob Butters[.]
Finally, two 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 even if the transcript of Butters‘s plea to the charge of subornation of perjury had not been admitted. Thus, the trial court‘s alleged error in admitting the transcript was harmless
TAYLOR, C.J., and CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.
WEAVER, J. (concurring). I agree with the result and most of the reasoning of the majority opinion. I write separately because the general principle that ” ‘questions of constitutionality should not be decided if the case may be disposed of on other grounds,’ ” ante, pp 347-348 n 4 (citation omitted), does not necessarily apply in criminal cases. As I stated in my partial concurrence and partial dissent in People v 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 “[c]onsiderations 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
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, pre-Miranda 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 BCLR 1003, 1054 (1994).
But I agree that in this case it is not necessary to address the constitutional issue when the Court has concluded that the admission of the evidence was harmless.
CAVANAGH, J. (dissenting). I dissent on the grounds that such an important, and recurring, issue should not be decided by opinion per curiam. 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.
KELLY, J., concurred with CAVANAGH, J.