Michigan Supreme Court 

# Order
Lansing, Michigan

May 4, 2007 Clifford W. Taylor, Chief Justice 132528 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 132528 COA: 261162 Tuscola CC: 03-008846-FH RONALD CLARENCE BABCOCK, Defendant-Appellant.

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On order of the Court, the application fo r leave to appeal th e September 26, 2006 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J., concurs and states as follows:

I concur in the denial of defendant’s app lication for leave to appeal. Although the trial court committed error under the Confr ontation Clause by admitting the deposition testimony of the police officer who was merely out of town on her honeymoon, any error was harmless, in my judgment, because a rational jury would have convi cted defendant beyond a reasonable doubt on the basi s of the remaining evidence.

Defendant was charged and convicted of being a felon in po ssession of a firearm. Defendant alleges that his rights under the Co nfrontation Clause were violated when the trial court permitted excerpts from an absent police officer’s deposition testimony to be read to the jury. “Harmless error analysis applies to claims concerning Confrontation Clause errors . . . .” People v Shepherd , 472 Mich 343, 348 (2 005). “A constitutional error is harmless if ‘[it is] clear beyond a reasonable doubt that a rati onal jury would have found the defendant guilty absent the error.’” People v Mass , 464 Mich 615, 640 n 29 (2001), quoting Neder v United States , 527 US 1, 18 (1999). The harmless err or analysis in this case thus rests on whether a “rati onal jury” would have convicted defendant “beyond a reasonable doubt” on the basis of untainted evidence._______________________________________ __ 2

In the instant case, the disputed issue con cerned whether defen dant possessed the firearm. Besides the police officer, two other witnesses testified that defendant possessed the firearm: Shawn Lester, defe ndant’s ex-girlfriend, and Cind y Pero, the sister of one of defendant’s friends. Lester testified that d efendant selected a firearm at Wal-Mart and gave her money to purchase it. Lester bought the firearm and ammun ition, and brought it home with her. Defendant took the firearm and showed Lester how to load it. Lester further testified that defendant removed the firearm from her home the next day.

Lester’s testimony was corroborated by Pero . Pero testified that defendant brought the firearm to her home and told Pero that he intend ed to shoot sk eet with her brother. Pero’s testimony wa s corroborated in turn by Stella Sherman, who testified that Lester brought the firearm from Pero’s home to Sherman’s, there by supporting Pero’s testimony that the firearm had been at her home.

The trial court then read th e police officer’s deposition in to evidence. The police officer stated that defendant admitted that he possessed th e firearm. On cross

examination, the police offi cer acknowledged that she did not actually see defendant possess the firearm.

Thus, two witnesses besides the police o fficer testified that defendant possessed the firearm. Although the ex-girlfriend may have had so me motivation to falsely accuse defendant based on the termin ation of their relationship, her testimony was corroborated by the testimony of Pero, which was further supported by Sherman. Moreover, Pero did not have a similar motivation to falsely accuse defendant. Under these facts, the deposition testimony of th e police officer that defenda nt possessed the firearm was merely cumulative. Even without the admission of the police officer’s deposition testimony, a “rational jury” would have found that d efendant possessed the firearm “beyond a reasonable doubt.” Consequently, a ny Confrontation Clause error was harmless. For this reason, I concur in the denial of leave to appeal.

K ELLY , J., would grant leave to appeal.

p0501 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.

May 4, 2007

Clerk