Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 m**  **ay 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 per jury 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 pro secutor 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 c ase 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 TennesseeValley 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, 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 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**