Order Michigan Supreme Court
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, Robert P. Young, Jr.
Plaintiff-Appellee, 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 for leave to appeal the September 26, 2006
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J., concurs and states as follows:
I concur in the denial of defendant’s application for leave to appeal. Although the
trial court committed error under the Confrontation 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 convicted defendant
beyond a reasonable doubt on the basis of the remaining evidence.
Defendant was charged and convicted of being a felon in possession of a firearm.
Defendant alleges that his rights under the Confrontation 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 (2005). “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
(2001), quoting Neder v United States, 527 US 1, 18 (1999). The harmless error analysis
in this case thus rests on whether a “rational jury” would have convicted defendant
“beyond a reasonable doubt” on the basis of untainted evidence.
2
In the instant case, the disputed issue concerned whether defendant possessed the
firearm. Besides the police officer, two other witnesses testified that defendant possessed
the firearm: Shawn Lester, defendant’s ex-girlfriend, and Cindy Pero, the sister of one of
defendant’s friends. Lester testified that defendant selected a firearm at Wal-Mart and
gave her money to purchase it. Lester bought the firearm and ammunition, 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 intended to shoot skeet with her
brother. Pero’s testimony was corroborated in turn by Stella Sherman, who testified that
Lester brought the firearm from Pero’s home to Sherman’s, thereby supporting Pero’s
testimony that the firearm had been at her home.
The trial court then read the police officer’s deposition into evidence. The police
officer stated that defendant admitted that he possessed the firearm. On cross-
examination, the police officer acknowledged that she did not actually see defendant
possess the firearm.
Thus, two witnesses besides the police officer testified that defendant possessed
the firearm. Although the ex-girlfriend may have had some motivation to falsely accuse
defendant based on the termination 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 the police officer that defendant possessed the firearm was
merely cumulative. Even without the admission of the police officer’s deposition
testimony, a “rational jury” would have found that defendant possessed the firearm
“beyond a reasonable doubt.” Consequently, any Confrontation Clause error was
harmless. For this reason, I concur in the denial of leave to appeal.
KELLY, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 4, 2007 _________________________________________
p0501 Clerk