Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 24, 2005
PEOPLE OF THE STATE OF MICHIGAN,
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, 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
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.
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