Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,
J ustices 

# Order

April 25, 2011

141122 & (51)

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant/ Cross-Appellee,

v SC: 141122 COA: 290031 Saginaw CC: 07-028869-FC NAYKIMA TINEE HILL, Defendant-Appellee/ Cross-Appellant.

________________ _______________ __________/

On March 9, 2011, the Cour t heard oral argument on th e application for leave to appeal the May 11, 2010 judgment of the Cour t of Appeals and the application for leave to appeal as cross-appellant. On order of the Court, the app lications are again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, we AFFIRM the judgment of the Court of Appeals in part. Trooper Escott was not required to be qu alified pursuant to MRE 702 because he was not testifying as an ex pert witness. Rather, he simply testified to the underlying facts and his personal observa tions concerning his use of a trained dog in the course of a criminal investigation. He did not interpret or extrapolate from those facts or personal observations.

We REVERSE the judgment of the Court of Appeals in part because the admission of Jacqueline Sistrunk’s out-of-court statement that she saw defendant wearing
“a brown-hooded coat w ith fur around it,” was harmless e rror because it is clear beyond a reasonable doubt that the jury verdict would have been th e same absent this error. People v Shepherd , 472 Mich 343, 348 (2005). The prosecutor presented eyewitness identification testimony of the three victims who each independently identified defendant
as their assailant. Such identificati on testimony was clear and unambiguous, and
occurred after each victim had a full and su stained opportunity to observe defendant during their 25 to 30 minute ordeal. In additi on, each victim identifie d the coat that was the subject of Sistrunk’s out-of-court statem ent as the one worn by defendant during the attack. Therefore, even absent Sistrunk’s out- of-court statement, the victims were able to connect the coat worn by th eir assailant to defendant. Further, two of the victims
identified the knife that was fo und in the pocket of the coat as the knife that was taken2

from their home and wielded by de fendant during the attack. Accordingly, due to this
substantial identification evid ence, any error in the admission of Sistrunk’s statement was harmless beyond a reasonable doubt. We RE MAND this case to the Saginaw Circuit
Court for reinstatement of defendant’s convic tion and sentence. In all other respects, leave to appeal is DENIED because we are not persuaded that th e remaining questions presented should be revi ewed by this Court.

M ARILYN K ELLY , J. ( concurring in part and dissenting in part ).

I concur in the part of the order affirm ing the Court of Appeals decision that Trooper Escott was not required to be qualifie d as an expert pursuant to MRE 702. However, I disagree with the majority’s reve rsal of the Court of Appeals decision to
remand the case for a new trial. In my view, allo wing the police officer to testify to
Sistrunk’s out-of-court statement was not harm less beyond a reasonable doubt. It is not clear that the jury verdict would have been the same ab sent this error. 1

Sistrunk told police that defendant wa s wearing “a brown-hooded coat with fur around it.” The majority opine s that this statement was ha rmless in light of the three eyewitnesses who “indep endently identified defendant as their assailant.” However, a
careful review of the evidence reveals a less than airtight circumstantial case, and without this statement, the jury could have come to a different conclusion.

Without Sistrunk’s statement, the prosecutio n’s case consisted primarily of: 1) the victims’ identification of defendant, 2) the fact that the dog followed a scent from the
victims’ house to the house where defendant wa s arrested, and 3) the fact that the shoes defendant was wearing when arrested matched footprints found at the victims’ house. None of this evidence is particularly co mpelling on its own or without Sistrunk’s

statement.

First, although all three victims di d positively identify defendant, the
circumstances of that identification were very suggestive. The police presented
defendant to the victims at th eir home a few hours after the crime while she was seated in the back of a police car. Before this, the only characteristics the victims had been able to provide police was that the assailant was an African-American female with bloodshot

eyes.

All three testified that they did not se e her hair, did not know what shade her complexion was, and that the assailant had wo rn a hooded coat thro ugh the entire attack. The hood covered her forehead reaching her eyeb rows. The certainty of the statements is diminished by the circumstances of the identification. As th e Court of Appeals stated, “it

1 People v Shepherd , 472 Mich 343, 348 (2005).3

is possible that the jury might have still cred ited the victims’ testimony. But it is also possible that the discrepancy wo uld have led the jury to believe that the victims made a mistake in identifying defendant.” 2

Second, a dog tracked a scen t from the victims’ home to the Porter Street house
and then to the Bond Street house where defendant was arrest ed. Officers searched the Porter Street house the day of the attack a nd found nothing connecti ng defendant with the crime. Curiously, the homeowner reported finding a coat with a knife in the pocket in the closet of the house the next day and brought th em to the police. While it is possible that the police missed them, th e coat was the main id entifying characteristic of the attacker.

In addition, despite the fact that the dog and defendant were together in the front yard of the Bond Street hous e, the dog never identified de fendant as the source of the scent. In fact, Trooper Escott te stified that he “went to that fro nt yard to assist the officer dealing with this female.” He further stated that Enzo lost the scen t at the Bond Street house and was unable to pick it up again. The tracking dog was “right there” near
defendant and lost the scent.

Third, to the extent it is persuasive, defendant denied that the shoes she was wearing at the time of the arrest belonged to her. She further contended that the shoes did not fit her, and she put them on only b ecause the police ordered her to do so.

Finally, the Court’s order greatly oversta tes the connection be tween defendant and
that coat and knife found at th e Porter Street house. There were two brown coats with fur
around the hood. One wa s found at the Bond Street house on the day of the crime, and the other showed up at the Porter Street house the next day, after the initial search. The coat found at the Bond Street house belong ed to Sistrunk’s boyfriend. It was brown
leather with fur around the ho od. Sistrunk admitted that she wore it sometimes. In addition, Sistrunk’s boyfriend and some ot her friends had traveled between the Bond
Street and the Porter Street houses the evening befo re the crime.

Further clouding the accuracy of the identifica tion of the coat is the fact that the
victims’ initial statements varied. It was onl y the in-trial identification of the coat that
matched. Their initial statemen ts to the police focused primar ily on the coat rather than on any of the assailant’s featur es, and their descriptions of the coat varied from a coat with no mention of color to an olive green coat . In fact, the victim in the best position to
view the assailant described the coat as a brown leather coat with fur around the hood. This description fits the coat discovered at the Bond Street house. In addition, no other witness could testify to ever having seen defendant wearing a coat matching that

2 People v Hill , unpublished opinion per curiam of th e Court of Appeals, issued May 11, 2010 (Docket No. 290031).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk April 25, 2011

t0421 4

description. This also severe ly undercuts defendant’s connec tion to the knife found in the pocket of the coat from the Porter Street house.

It is worth pointing out again that th e standard of review for finding a
constitutional error harmless is that it must be “clear beyond a reas onable doubt, that the jury verdict would have been the same absent the error.” 3 The coat was the crucial
characteristic of the identification. This wa s the linchpin of the prosecution’s case, and Sistrunk’s statement was the crucial piece of evidence that connected all the dots.

While there certainly is ev idence that implicates defendant and suggests she committed the crime, I cannot conc lude that this high standa rd has been met, given the significance of Sistrunk’s statement. Therefore, I dissent from that part of the Court’s order and would affirm the Court of Appeal s decision to reverse defendant’s conviction
and remand the case for a new trial.

3 Neder v United States , 527 US 1, 19 (1999).