Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

PEOPLE OF THE STATE OF MICHIGAN, 

FILED MAY 24, 2005 

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 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. 

Unbeknownst to defendant or Butters, the pickup truck 

was under surveillance by a Midland County sheriff’s 

deputy, Sergeant Stephen Woods. Woods testified that he 

saw someone who appeared to 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 to initiate a 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 was charged with third-degree fleeing and 

eluding the police, MCL 750.479a(3); two counts of 

felonious assault, MCL 750.82; malicious destruction 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). As part of the 

2
 
 

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 At 

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. 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 

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 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 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. 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 

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 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 

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. Sheriff’s 

Deputy Woods corroborated York’s testimony. He testified 

6 We recognize that the prosecutor emphasized the 

erroneously admitted guilty plea transcript in his 

argument, but this does not alter our analysis. 

7
 
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 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? Gave them 

to his cousin Tony Miller[.] 

8
 
 

 

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 

7

 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 admitting the 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 

10
 
_______________________________ 

 

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 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, p 6 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 "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 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. 

Elizabeth A. Weaver 

2
 
v 

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, 

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, 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. 

Michael F. Cavanagh

Marilyn Kelly