People v. Shepherd

• Decision Date: 10 November 2004
• Docket Number: Docket No. 247945.
• Citation: People v. Shepherd, 689 N.W.2d 721, 263 Mich. App. 665 (Mich. App. 2004)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nina Jillaine SHEPHERD a/k/a Nina Jillaine Butters, Defendant-Appellant.
• Court: Court of Appeal of Michigan

689 N.W.2d 721

263 Mich. App. 665

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nina Jillaine SHEPHERD a/k/a Nina Jillaine Butters, Defendant-Appellant.

Docket No. 247945.

Court of Appeals of Michigan.

Submitted August 4, 2004, at Lansing.

Decided September 28, 2004, at 9:10 a.m.

Released for Publication November 10, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Norman W. Donker, Prosecuting Attorney, and Michael T. Garner, Assistant Prosecuting Attorney, for the people.

Joseph L. Stewart, Southfield, for the defendant.

Before: HOEKSTRA, P.J., and COOPER and KIRSTEN FRANK KELLY, JJ.

COOPER, J.

Defendant Nina Jillaine Shepherd appeals as of right her jury trial conviction of perjury in a court proceeding.¹ The trial court sentenced defendant to ten months in jail, followed by six months of electronic monitoring and twenty-four months of probation. We reverse defendant's conviction, as the trial court improperly admitted testimonial hearsay upon which defendant had no prior opportunity for cross-examination in violation of the Confrontation Clause of the Sixth Amendment. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

I. Background

The charges against defendant arose from her sworn testimony given in the trial of her boyfriend, Bobby Butters, for third-degree fleeing and eluding² and assault with a dangerous weapon.³ Defendant testified that she and Mr. Butters left the incident location in defendant's station wagon and, consequently, Mr. Butters could not have been the driver of the pickup truck that was used to flee from police and was involved in the assault. Despite defendant's testimony, Mr. Butters was convicted. Thereafter, the prosecution charged defendant with perjury, claiming that her testimony was false.

II. Admission of Hearsay Evidence

On appeal, defendant challenges the admission of three pieces of evidence as inadmissible hearsay. We review a trial court's decision to admit evidence for an abuse of discretion and underlying questions of law de novo.⁴

A. Transcript of Mr. Butters's Guilty Plea

Defendant first challenges the admission of the transcript of Mr. Butters's guilty plea to subornation of perjury. Following his convictions for fleeing and eluding and assault, Mr. Butters was charged as a codefendant with subornation of perjury for soliciting defendant to testify that she and Mr. Butters left the incident location together in defendant's station wagon. Mr. Butters entered a guilty plea to this charge in a separate proceeding.⁵ In light of the United States Supreme Court's recent decision in Crawford v. Washington,⁶ we find that the transcript is testimonial evidence upon which defendant had no prior opportunity for cross-examination and, therefore, was improperly admitted.

Pursuant to the Confrontation Clause of the Sixth Amendment, an accused has the right "to be confronted with the witnesses against him...."⁷ The right to confront one's accusers is a fundamental right based on an English common-law tradition. In criminal matters, evidence was presented through live testimony subject to adversarial testing.⁸ From the sixteenth to eighteenth centuries, however, the civil law practices of using ex parte examinations against an accused seeped into the criminal sphere.⁹ In 1791, when the Confrontation Clause was included in the Sixth Amendment, the confrontation right was understood to encompass the common-law tradition — in order to admit a testimonial statement against an accused, the witness must be unavailable and the accused must have had a prior opportunity for cross-examination.¹⁰ To remain faithful to this original understanding, the prior opportunity to cross-examine — confrontation — must exist before testimonial hearsay evidence may be admitted.¹¹

In 1980, however, the Supreme Court rendered its decision in Ohio v. Roberts.¹² Pursuant to Roberts, the statement of an unavailable witness may be admitted into evidence when it bears sufficient "indicia of reliability."¹³ The statement at issue in Roberts was the preliminary examination testimony of a witness who had since disappeared. Interestingly, the Court found the statement to be reliable because the defendant had the opportunity to cross-examine the witness at the examination and availed himself of that opportunity.¹⁴ As the states began applying Roberts, however, the "indicia of reliability" test turned out to be rather unreliable, as well as unpredictable. Whether a factor made evidence more or less reliable was in the eye of the beholder.¹⁵ Furthermore, the Court noted in Crawford:

The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude....

To add insult to injury, some of the courts that admit untested testimonial statements find reliability in the very factors that make the statements testimonial.[¹⁶]

In determining that the Confrontation Clause bars the admission of testimonial statements of witnesses against the accused unavailable to testify in court when there was no prior opportunity for cross-examination, the Supreme Court returned to "the essence of the confrontation right."¹⁷ "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."¹⁸ In rejecting the Roberts"indicia of reliability" test, the Court found: "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence or to amorphous notions of `reliability.'"¹⁹ "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."²⁰

Although prior cases failed to explicitly make this distinction between testimonial and nontestimonial evidence, it is clear that testimonial evidence from an unavailable declarant was never intended to be deemed reliable where the defendant had no prior opportunity for cross-examination.²¹ Prior to Roberts, the Supreme Court regularly held that testimonial evidence would only be admissible where the declarant was unavailable and the defendant had a prior opportunity for cross-examination.²²

The trial court's admission of the transcript of Mr. Butters's guilty plea was clearly improper. Mr. Butters's testimony made under oath in court is an obvious example of testimonial evidence — Mr. Butters bore testimony against himself implicating defendant in his crime of subornation of perjury. Defendant was absent from that proceeding and was given no opportunity for cross-examination. Furthermore, the transcript was presented to prove the truth of the matter asserted — that defendant gave false testimony pursuant to Mr. Butters's solicitation of these particular statements. As such, its admission violated defendant's Sixth Amendment right to confront the witnesses against her.

Our review of preserved, constitutional error is limited to the following analysis as outlined by the Michigan Supreme Court:

First, a court must ask if the error is a "structural defect[] in the constitution of the trial mechanism, which def[ies] analysis by `harmless-error' standards." These errors include that total deprivation of the right to trial counsel, an impartial judge, excluding grand jury members who are the same race as defendant, denial of the right to self-representation, denial of the right to a public trial, and a constitutionally improper reasonable doubt instruction. Upon finding any of these errors, a court must automatically reverse.

At the other end of the spectrum, however, are trial errors that "occur [ ] during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." This requires the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no "`reasonable possibility that the evidence complained of might have contributed to the conviction.'"[²³]

While the admission of testimonial hearsay evidence in violation of the Confrontation Clause does not rise to the level of structural error requiring automatic reversal, it is still constitutional error. When quantitatively assessed in this case, there is clearly more than a reasonable probability that the transcript of Mr. Butters's guilty plea to subornation of perjury contributed to defendant's conviction for perjury. Furthermore, it is not our role to second-guess the jury and determine a defendant's guilt.²⁴ It is not at all clear that a rational jury would have found defendant guilty beyond a reasonable doubt absent the improperly admitted statement. In fact, this transcript established an element of the charged offense — the falsity of defendant's previous testimony.²⁵ Accordingly, its admission was not harmless error and warrants reversal.

B. Jailhouse Statements to Relatives

Defendant also challenges the admission of statements that Mr. Butters made to relatives visiting him in jail following his trial. Jail guards overheard the conversation and testified about its content over defendant's objection. Mr. Butters's statements were consistent with him having been the driver of the fleeing pickup truck and inconsistent with defendant's testimony at his trial.

In a motion in limine held prior to trial,²⁶ defendant maintained that the overheard statements were inadmissible hearsay. The trial court disagreed, finding that the statements were voluntary and spontaneous, and therefore, were not the result of law enforcement interrogation, and were spoken without a suggestion of any motive to lie or distort...