People v. Lukity

Brickley, J.

I concur in the majority opinion, and write separately to acknowledge its discussion of the proper standard for reviewing whether error is harmless.

In People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998), we held that a court may not reverse a conviction unless it finds that it was “highly probable” that the error in question was not prejudicial. Id. at 205 . Today the majority overrules our decision in Geams, and holds that a court must not reverse a conviction unless it finds that it is “more probable than not” that the error in question was prejudicial. Ante at 495.

The harmless error statute states that “[n]o judgment or verdict shall be . . . reversed ... unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL 769.26; MSA 28.1096 (emphasis supplied). Our cases agree that the phrase “miscarriage of justice” means “prejudicial,” and this means simply that the error influenced the verdict. People v Mateo, 453 Mich 203, 215 ; 551 NW2d 891 (1996). The question before us, then, is how certain must the court be that the error was prejudicial?

In Geams, we adopted dictum in Mateo stating that the appropriate level of certainty was “whether it is highly probable that the challenged evidence did not contribute to the verdict . Id. at 205 , citing Mateo, supra at 219 . While I agree as a matter of pol *504 icy that this level of certainty is appropriate, I am unable to reconcile the Geams test with Michigan’s harmless error statute.

The statute states that the verdict should not be disturbed unless “it shall affirmatively appear” that the error was prejudicial. MCL 769.26; MSA 28.1096. The majority’s standard is more consistent with this language than the standard we set forth in Geams. 1

Because the language of the statute resolves this question and compellingly supports the majority’s conclusion, I concur.

Cavanagh, J. I must dissent from both the majority’s decision and its effort to recast this case into a vehicle with which to begin the process of both rewriting and simultaneously rendering effectively pointless large portions of our standards of review for error in criminal cases.

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In People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998), this Court continued down the path begun in People v Mateo, 453 Mich 203, 212 ; 551 NW2d 891 (1996), adopting the highly probable test of Justice Traynor for instances of preserved, nonconstitutional error. The essence of that test was that the prosecution must prove that it was highly probable that erroneously admitted evidence did not contribute to the *505 tainted verdict. As anyone who has ventured through the sixty-one pages and four opinions might note, Gearns and its companion were not easy cases, and there certainly was no lack of deliberation or debate among the Court. Now, but a year later, we are summarily told that Gearns was wrongly decided, and, moreover, so told by one whose views were heard among us in Gearns . 1

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In this case, as the majority is forced to agree, 2 there was clear error in the admission, before the complainant had even testified, of bolstering testimony regarding her character for truthfulness. By offering these “sneak previews” into complainant’s *506 character for truthfulness, the prosecutor was able to build up her purported character for truthfulness before it was even attacked. The gate to the minefield that is character evidence is closely guarded by our court rules, and the Court’s decision allowing the prosecutor to drag the jury down his selected path through that field was in error.

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The majority posits that Gearns is not true to MCL 769.26; MSA 28.1096, and thus must go. Nonetheless, the majority would look at the very same statute for the proposition that the statute “itself provides no specialized level of assurance.” Ante at 494. In the words “affirmatively appear,” of § 26, the majority finds lurking a rebuttable presumption of harmlessness. While the word “affirmatively,” under our rules of statutory construction, must surely be given meaning, I cannot fathom any definition 3 of the word that includes a meaning such as “in a sufficient fashion as to defeat a rebuttable presumption of harmlessness.” And yet, that is how the majority “reads” the statute:

unless in the opinion of the court, after an examination of the entire cause, it shall in a sufficient fashion as to defeat a rebuttable presumption of harmlessness, appear that the error complained of is a miscarriage of justice.

*507 Compare this, of course, with the Legislature’s own wording, viewed without the added gloss of the majority:

unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

A more literal and simpler definition of affirmatively, which, in its various forms, implies an assertion that something is true, might well speak more to a court having some level of assurance 4 than it does to any rebuttable presumption. 5

6 While claiming (correctly) that § 26 “controls” our inquiry, the majority must, in effect, add a considerable amount of text to the statute in order for it to “control” its chosen result.

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Were we in a world where stare decisis required more than a perfunctory disregarding note, I would apply the test of Gearns . The majority suggests that the testimony of complainant’s brother, cited in the margin (ante at 496-497) was persuasive that such error was harmless. While an apology by the defendant was acknowledged by the brother, the quotation offered by the majority contains far more information (as cited by the majority) offered by the prosecutor *508 than was actually contained in the brother’s rather ineffectual answers. While, if one were willing to build a house of inference cards, there certainly could be some evidence that defendant came close to confessing to the brother, 6 this merely points toward the primary problem with the majority’s newfound standard of review.

The majority (as opposed to the statute itself) crafts a “rebuttable presumption” under which the defendant must come forth with some showing that “it is more probable than not that the error was outcome determinative.” Id. at 496. Exactly how, I would ask, will this presumption ever be rebutted? In almost every criminal case, there will be at least two witnesses for the prosecution, the complainant and a law enforcement officer of some sort (and in those cases where the complainant is unavailable, there will likely be many more witnesses). Thus, there will nearly always be testimony on at least tangential issues, untainted by any error, no matter how egregious.

A favorite line among some of my colleagues in discussing harmlessness is “a reasonable jury could have found.” And thus, no matter what showing a defendant may make regarding how damning the error was to his cause, the appellate court (particularly if it sanctions inference piling) will always be in a position to state “a reasonable jury could have found” and rely on whatever untainted testimony (and inferences, tenable and otherwise) exists in the record. The majority has constructed a hurdle that cannot be cleared, not because of its height, but because of the wall on the other side.

*509 Review of error for harmlessness is by no means an easy task. This is so, in large part, because one of the most basic tenets of our system is that we do not journey behind a jury’s verdict or into the jury room. There is naturally some level of difficulty in determining what we insist we have no information of, whether the jury relied on the tainted evidence. 7 A burden placed on the prosecutor to establish that he proved guilt without and beyond the tainted evidence, to the extent that the jury would have had no need for the tainted evidence, is perhaps demanding, but nonetheless certainly achievable. 8 On the other hand, given our tendency to credit the jury for possibly selecting any pearl of evidence from a sea of shells, the majority’s test will place the defendant in a position of not only having to demonstrate the harm wrought by the error, but also of having to counter suppositions and inferences from other evidence that are limited only by the number of witnesses offered and the imagination of the reviewing court. The Legislature selected “affirmatively” as its level of assurance in § 26, not some more demanding term (e.g., positively, absolutely, or even clearly, etc. . . .). I fear the effect of the majority’s implicit statutory modification is to replace the balancing of the scales chosen by our Legislature with one of a markedly more severe tilt.

The majority’s effort today does not bode well for consistency in our law, adherence to (what is said by, as opposed to what we would prefer to be said by) *510 our statutes, or the worthwhileness of appellate review of nonconstitutional errors (or, for that matter, preservation of such errors).

Kelly, J., concurred with Cavanagh, J.

“Affirmative” is defined as “[t]hat which declares positively; that which avers a fact to be true; that which establishes . . . Black’s Law Dictionary (6th ed) at 59. “Appear” is relevantly defined as “to be proved.” Id. at 97. “Affirmative proof” is defined as “[e]vidence establishing the fact in dispute by a preponderance of the evidence.” Id. at 1215. The definitions in the standard dictionaries are not significantly different. See Random House Webster’s College Dictionary, pp 23, 66; American Heritage Dictionary (3d ed), pp 30, 88.

Justice Brickley is certainly free to come to a realization that he is in disagreement with his former view. Likewise, while Justice Taylor and the Chief Justice, upon finding that there is now a mEyority (even aside from Justice Brickley) to join them, are likewise free to cast their formerly rejected view as our new rule. Such endeavors, however, are likely to suggest that the decisions of this Court are only as stable as its composition, and that changes in it might be presumed by some to evidence a mandate for wholesale changes in the other, even in the absence of the passage of time, changes in circumstances, or any other of the more noble reasons to reevaluate our past decisions.

There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. [Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 866 ; 112 S Ct 2791 ; 120 L Ed 2d 674 (1992).]

To the extent this case can be built into a convenient vehicle to overrule Geams, error, one would hope, must be found as an initial matter. On the other hand, it may be that simple rules of judicial restraint may soon be discarded as well, should there be a majority more concerned with “correcting” our past cases than the presence of any actual need to address such matters.

As a reference, we might note the definition given to affirmative, the root of affirmatively, by a less zealous source:

affirmative . . .: adj. 1. Affirming or asserting that something is true or factual. 2. Logic. Denoting a proposition in which the predicate states something about the subject to be true, as apples have seeds.- — n. 1. An affirmative word or phrase. 2. The side in a debate that upholds a proposition. — affirmatively adv. [American Heritage Dictionary, Second College Ed, 1982, p 84.]

I suppose that what level of assurance this would be might, in part, depend on one’s definition of the remaining language in § 26, particularly miscarriage of justice. It would seem that the word affirmatively would likely have some level of assurance that there was a miscarriage of justice, but, again, the nature of the word itself is more an assertion that a proposition is correct than any requirement of a certainty thereof.

It would not seem appropriate to presume our Legislature unfamiliar with or unable to include a rebuttable presumption in this statute should it so wish.

Although there would certainly be some question regarding exactly what this testimony might imply defendant was confessing to.

I should point out that I am certainly not advocating a departure from our present system.

Such a burden also cautions to stay within the confines of our court rules and not burden otherwise viable evidence with a taint resulting from overreaching.