People v. Shepherd

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[.]

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 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