People v. Mateo

We granted leave in this case to determine the standard of review on appeal of preserved error that does not involve a constitutional claim. We hold that MCL 769.26; MSA 28.1096 does not impinge on this Court’s authority to determine practice and procedure and does not require a literal definition of miscarriage of justice. On direct review, the reviewing court is not to apply the standard for preserved constitutional error of harmless beyond a reasonable doubt, People v Anderson (After Remand), 446 Mich 392; 521 NW2d 538 (1994).

The statute is consistent with the view of the Court in Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946). Under our statute, as under federal law, a reviewing court is not to find nonconstitutional preserved error harmless simply because it concludes the jury reached the right result. Disregarding errors that do not affect substantial rights, the reviewing court is to examine the record as a whole and the actual prejudicial effect of the error on the factfinder in the case at hand. People v Lee, 434 Mich 59; 450 NW2d 883 (1990). Where the error asserted is the erroneous admission of evidence, the court engages in a comparative analysis of the likely effect of the error in light of the other evidence.

Because in this case the Court of Appeals correctly found overwhelming evidence of guilt, it does not affirmatively appear that there has been a miscarriage of justice. People v Straight, 430 Mich 418; 424 NW2d 257 (1988). Given that the evidence of guilt was overwhelming, it is unnecessary to reach the question of the level of confidence the reviewing court must have in the harmlessness of preserved error. The government has briefed only the Kotteakos standard, and the defendant has briefed only the Chapman standard. Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). While the highly probable standard may represent the appropriate test for the reasons discussed below, on an issue of such overriding importance to the jurisprudence of the state, formal adoption of this standard should not be undertaken without further assistance from the bench and bar. The decision of the Court of Appeals is affirmed.

I

On the date the events giving rise to this case took place, defendant, Raul Mateo, was living with Elva Lulgjurflj and their three children. Jose Cantu, Lulgjurflj’s brother and the victim in this case, was temporarily living with them at the time.

Cantu testified that he and defendant got into an argument in the early morning hours on January 12, 1990. Cantu had apparently made a comment regarding whether defendant was going to move out of the house and defendant took offense. After a brief verbal exchange, defendant left the room and returned with a pistol, placed it against Cantu’s head, and threatened to “blow [his] brains out.” Cantu managed to knock the pistol from defendant’s hand and pushed him out of the room. Defendant soon returned with a knife in each hand and repeatedly slashed Cantu in the head and arm.

Cantu managed to escape and ran to a nearby gas station. Maria Cantu, Jose Cantu’s mother, testified that her son called her, told her that Mateo had cut him, that she picked him up from the gas station and took him back to her home and then to the hospital. The fact that the victim was cut was also supported by the hospital records. Two police officers also testified without objection that Cantu’s sister had identified Mateo as the assailant.

Defendant was charged with assault with intent to murder, felonious assault, and as a second felony offender.

At trial, defendant presented an alibi through Crystal Blair, a former girlfriend, who testified that defendant was with her during the time the attack took place. Defendant did not testify. The prosecutor cross-examined Blair about certain phone conversations Blair had with another former girlfriend of defendant, Jennifer Brecht. Blair denied having conversations about defendant with Brecht. The prosecutor then called Brecht who, over objection, testified that Blair had called her and warned her that defendant was “very violent.”

Defendant was convicted as charged. Defendant appealed, alleging that Brecht’s testimony was improper rebuttal on a collateral issue. The Court of Appeals agreed. In spite of the error, however, the Court went on to conclude that the evidence against defendant was “overwhelming” and that any error in admitting Brecht’s testimony “was harmless beyond a reasonable doubt.”

Defendant, in propria persona, filed a delayed application for leave to appeal with this Court. The application was initially held in abeyance for People v Dunn, 446 Mich 409; 521 NW2d 255 (1994). Following release of that case, we granted leave, limited to “(1) whether the trial court erred in permitting witness Brecht to testify as a rebuttal witness, (2) what is the appropriate standard for determining when nonconstitutional error in admitting evidence is reversible, and (3) whether any error in the admission of the testimony of witness Brecht was error requiring reversal.”

We agree with the Court of Appeals that, in these circumstances, extrinsic evidence of defendant’s assaultive behavior was error. While the nature of Blair’s relationship with the defendant was relevant to her credibility, and she had testified on direct examination that their relationship was good, it is unclear how any assaultive behavior in that relationship bore on Blair’s credibility. People v Figgures, 451 Mich 390; 547 NW2d 673 (1996). The prosecutor does not argue that Blair’s testimony was prompted by fear of the defendant, but, rather, contends that the testimony was directed to revealing facts of favoritism toward the defendant. United States v Abel, 469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450 (1984). While the scope of rebuttal is within the trial court’s discretion, we find that extrinsic evidence of defendant’s assaultive behavior was error. 1 McCormick, Evidence (4th ed), § 40, p 137.

Finding preserved nonconstitutional error, we now discuss the proper standard for assessing the effect of the error.

A

The legislative framework for appellate resolution of this question has guided appellate review in criminal cases for almost fifty years. It is consistent with the Court’s authority to regulate practice and procedure. Const 1963, art 6, §§ 1, 5.

We are not required to decide whether our harmless error statute is a legislative attempt to supplant the Court’s authority. Correct construction of the statute does not dictate a literal reading of the term “miscarriage of justice.” The legislative history of the former federal statute, 28 USC 391, adopted in the same time frame as the Michigan statute, indicates that review is to be rendered “ ‘without presuming that any error which may appear had been of necessity prejudicial to the complaining party.’ ” United States v Lane, 474 US 438, 458; 106 S Ct 725; 88 L Ed 2d 814 (1986), quoting HR Rep No. 913. This reflects the view of Secretary of War Taft that “ ‘[n]o judgment of the court below should be reversed except for an error which the court, after hearing [sic] the entire evidence, can affirmatively say would have led [the jury] to a different verdict.’ ” Id. Likewise, our statute should not be construed to require actual innocence, but, rather, it should be viewed as a legislative directive to presume the validity of verdicts and to reverse only with respect to those errors that affirmatively appear to undermine the reliability of the verdict.

Given that there is no inherent conflict between the statute and the standard we create today for appellate review, we should (1) affirm that reversal is not required unless an error is harmful, and (2) clarify which of the conflicting standards used in past decisions by our state courts is correct.

B

In Michigan, the harmless-error rule is primarily embodied in statute, with additional statements of the doctrine in our court rule and evidentiary rule. The “miscarriage of justice” language in our statute, as well as the date of enactment, supports the conclusion that it was part of a general movement in state courts to adopt the approach of the English Judicature Act, rejecting reversals for technical errors. 3 LaFave & Israel, Criminal Procedure, § 26.6(a), pp 257-258. The Judicature Act provided that the Court of Appeals was not to order a new trial on the basis of “the improper admission or rejection of evidence” or a misdirection of the jury “unless . . . some substantial wrong or miscarriage has thereby been occasioned.” Traynor, The Riddle of Harmless Error (Ohio State Univ Press, 1970), p 10 and-n 22 (emphasis added). As Professors LaFave and Israel point out, “American appellate courts recognized that the newly adopted harmless error legislation, . . . had a different frame of reference as to different types of rights.” Id., p 258. With regard to error of the type covered by the English Judicature Act, the American legislation remained concerned with whether the error had resulted in a “miscarriage of justice,” id., e.g., whether an error had a sufficient bearing on the whole trial proceeding to require reversal. The intent of the miscarriage-of-justice standard used in such harmless-error legislation to encompass the English approach is evidenced by legislative directive to examine the entire record. Id., p 259. Thus, the Legislature’s directive to examine the entire record to find whether it “affirmatively appear[s] that ... a miscarriage of justice” has occurred supports the conclusion that, for the evidentiary error here alleged, reversal should be predicated by evaluating the error against the remaining evidence. “It was in the tradition of testing an evidentiary error against the remaining evidence (both for effect and relevance) that an examination of the full record was most likely to be needed.” LaFave & Israel, p 259. Thus, as further noted (and as reflected in numerous cases decided under our statute):

As for some types of error, such as the erroneous admission or exclusion of evidence, overwhelming evidence of guilt will ordinarily lead to the conclusion that the error was harmless. It would take evidence of an extraordinary quality to conclude that its erroneous admission or exclusion may have contributed to the verdict where the government had before the jury other evidence that could clearly and positively establish guilt. [Id., § 26.6(b), p 269.]

The statute and court rules employ different articulations of what constitutes a harmful error — “miscarriage of justice,” “inconsistent with substantial justice,” “affecting substantial rights.” Each conveys, however, a need for a determination of prejudice.

[T]he rule always in effect in Michigan, both before and after enactment of the mentioned statutes and unaffected thereby, has been and is that the question of reversal is controlled by determination of whether the error was prejudicial. [People v Nichols, 341 Mich 311, 332; 67 NW2d 230 (1954).]

Any reliance on earlier cases for the proposition that the statutory test is whether the defendant was actually guilty, see Soltar v Anderson, 340 Mich 242, 244; 65 NW2d 777 (1954); People v Bigge, 288 Mich 417, 421; 285 NW 5 (1939), is incorrect. We have since recognized, in accord with the precedent of all sister states and federal courts, LaFave & Israel, § 26.6, p 258, that the statute and rules are merely “different articulations of the same idea: appellate courts should not reverse a conviction unless the error was prejudicial.” People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972).

Simply stated, and employed in both federal rule and case law and state statute and court rule, reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence. See, e.g., People v Peterson, 450 Mich 349, 377-378; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995); People v Straight, supra at 427; People v Young (After Remand), 425 Mich 470, 505; 391 NW2d 270 (1986); see also, e.g., Kotteakos, supra at 764-765; Lane, supra at 455-460 (Brennan, J., concurring in part and dissenting in part).

n

A

The view that preserved nonconstitutional error should be reviewed under the harmless beyond a reasonable doubt standard is incompatible with the history and purpose of the statute and court rules. As noted above and explained in Kotteakos, swpra at 759-760, the harmless-error statute analyzed in that case, as well as state laws such as those enacted and currently in force in Michigan, were aimed at curbing “the general course of appellate review in American criminal causes” to reverse decisions because of the occurrence of inconsequential, technical errors. Id. at 759. The purpose of these statutes was stated in Kotteakos:

To substitute judgment for automatic application of rules; to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record. [Id. at 760.]

The triumph of judgment over technicality described above and incorporated in our own statute provides no basis for raising the bar of confidence in the harmlessness of an error to “beyond a reasonable doubt.” The fundamental protections of individual liberties embodied in constitutional rights are not at issue when the error is not of constitutional dimension.

The United States Supreme Court in Chapman, supra at 24, expressly limited its holding to federal constitutional errors, and the federal courts have continued to maintain a distinction in the standard of review of constitutional and nonconstitutional errors. United States v Pirovolos, 844 F2d 415, 425 (CA 7, 1988). Justice Cavanagh fails to provide a persuasive reason for requiring this Court to proceed on a different course.

B

Courts have historically and correctly employed the miscarriage of justice standard by evaluating the nature of the error in light of the entire record. See, e.g., Peterson, supra at 377-379 (holding that errors did not affect the jury’s decision to convict, and thus did not result in a miscarriage of justice); People v Pickens, 446 Mich 298, 334; 521 NW2d 797 (1994) (holding that error did not prejudice the defendant under the statutory miscarriage-of-justice standard); Straight, supra at 427 (applying the harmless-error statute, and finding proper direction in its inquiry from Kotteakos, the Court held that it could not “safely conclude” that the erroneously admitted evidence did not have a substantial influence on the jury’s result); Young, supra at 505 (holding that error in admission of evidence was not harmless, quoting from Kotteakos for a statement of proper appellate inquiry); People v Wilcox, 303 Mich 287, 296; 6 NW2d 518 (1942) (in affirming the defendant’s conviction, the Court disposed of “some slight errors” alleged by the defendant, concluding that “even if there is any merit to them, they could not have affected the result or resulted in a miscarriage of justice”); People v Lahnala, 193 Mich 144, 163; 159 NW 352 (1916) (Ostrander, J.) (reversing and granting a new trial for prejudicial error, and concluding that “[i]n my opinion, that is, and must always be, a miscarriage of justice”).

III

There remains an issue of the level of assurance an appellate court on direct review must have that a preserved, nonconstitutional error was not prejudicial and thus harmless.

A

The Kotteakos test, as articulated by the prosecutor, does not definitively settle on this question. Thus, as previously noted, federal courts have variously adopted tests described as a highly probable, more probable than not, and a reasonable likelihood that the error affected substantial rights. See n 15.

After rejecting the rigid Chapman test, former Chief Justice Traynor’s book on harmless error discusses two possible tests. The first test assesses whether it is highly probable that the challenged evidence did not contribute to the verdict. The second test asks whether it is more probable than not, i.e., a preponderance of the evidence, that the error did not affect the verdict.

After analyzing the above tests, Chief Justice Tray-nor argues that the highly probable test is most appropriate.

The nebulous test of reasonableness is unlikely to foster uniformity either in the application of standards, should there be any, or in the pragmatic exercise of discretion. Discretion is at least under better control within tests that focus on the degree of probability as more probable than not, highly probable, or almost certain. I should welcome a test of high probability for harmlessness. Given an error that affected a substantial right, the judgment below is suspect. Unless the appellate court believes it highly probable that the error did not affect the judgment, it should reverse.

Any test less stringent entails too great a risk of affirming a judgment that was influenced by an error. Moreover, a less stringent test may fail to deter an appellate judge from focusing his inquiry on the correctness of the result and then holding an error harmless whenever he equated the result with his own predilections.

There are objections also to the two tests that are more stringent than that of high probability. If the test were the mere presence of error, appellate courts could reverse, as many did in the nineteenth century, for any error, no matter how trivial. The end result was public disaffection with the judicial process. Almost as stringent is a test that would require reversal unless the court was almost certain that the error did not affect the judgment. [Traynor, The Riddle of Harmless Error, supra, pp 34-35.]

While Justice Traynor suggests that the highly probable test strikes the appropriate balance between protecting both the public and defendants’ interests in fair trials, the prosecutor has not briefed or argued the question of the level of assurance that a proper construction of Kotteakos requires, and the defendant has briefed and argued only that the level of assurance should be harmless beyond a reasonable doubt. Given the absence of such input, it is unwise for this Court to unilaterally adopt a definitive standard. Further, it is unnecessary to do so. The Court of Appeals properly concluded that the evidence against the defendant was overwhelming. By definition, the error was harmless under any standard other than the Chapman standard rejected here as unwarranted for nonconstitutional error.

In summary, (1) MCL 769.26; MSA 28.1096 is not a legislative usurpation of this Court’s authority and miscarriage of justice must affirmatively appear on review of nonconstitutional preserved error. (2) Those courts analyzing preserved error in terms of their view regarding whether the defendant is guilty have been wrong. The defendant’s right to a fair trial by jury requires that preserved error be reviewed in terms of its effect on the factfinder. (3) Those courts analyzing nonconstitutional error for harmlessness beyond a reasonable doubt have proceeded in error. (4) Those courts denying relief because the preserved error had only slight or negligible influence on the verdict have proceeded correctly.

Defendant’s conviction is affirmed.

Brickley, C.J., and Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.

The separate opinion observes that “Kotteakos contains its own level of confidence and assurance tests, namely, the question is whether the error had ‘substantial influence’ on the trier of fact . . . Post at 259. Despite this observation, and explicit language urging this Court to “adopt wholeheartedly the approach of the United States Supreme Court in Kotteakos,” post at 242, the author claims to adopt the highly probable test, but never applies that test in reaching the ultimate conclusion that Mateo was denied constitutionally effective assistance of counsel. To the contrary, in analyzing the facts of this case, the separate opinion states that it is “[ajpplying the Kotteakos standard,” post at 264, to determine whether the error was harmless.

The separate opinion never establishes the relationship between the Kotteakos standard and the highly probable standard. If the two standards are the same, there would seem to be no need to adopt the highly probable test. If the standards are different, the analysis in the application section of the separate opinion sheds no light on how they differ. Thus, the separate opinion itself illustrates the wisdom of further argument regarding whether Kotteakos contains its own level of confidence, whether another level of assurance is appropriate, and how various formulations of Kotteakos would be applied.

MCL 750.83; MSA 28.278.

MCL 750.82; MSA 28.277.

MCL 769.10; MSA 28.1082.

Unpublished opinion per curiam, issued February 17, 1993 (Docket No. 134528), slip op at 1.

448 Mich 868 (1995).

Moreover, if MCL 769.26; MSA 28.1096 is not controlling on this Court for harmless error review, what about the language of MCL 768.29; MSA 28.1052 (duty of a judge at trial) or MCL 722.28; MSA 25.312(8) (standard of appellate review in child custody cases)? See Fletcher v Fletcher, 447 Mich 871, 876-882; 526 NW2d 889 (1994), id. at 890-900 (Levin, J, writing separately). Numerous other examples could be cited.

It is argued that a harmless error rule is procedural. As Judge Traynor observes, the Morgan classification of rules of law as substance or procedure are:

“The rules which determine the legal relations between the parties when all the facts are known or assumed are rules of substance.” [Quoting Morgan, Rules of evidence: Substantive or procedural? 10 Vand L R 467-468 (1957).] Within these terms, a harmless-error rule could hardly be deemed procedural. . . . Far from being procedural, a harmless-error rule is of a piece with substantive rules, for it too is a mandate to the judge, at this stage the appellate judge, calling for the last word on the legal effect of the findings. [Traynor, The Riddle of Harmless Error (Ohio State Univ Press, 1970), pp 39-40.]

No judgment or' verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, 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.]

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [MCR 2.613(A).]

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground for objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [MRE 103 (emphasis added).]

Our harmless-error statute was originally enacted in 1915 PA 89, at the same time that “a substantial number of states adopted such legislation.” 3 LaFave & Israel, Criminal Procedure, § 26.6(a), pp 257-258.

While Robinson recognized that the question for harmless-error review was one of prejudice, it erroneously applied the Chapman standard to review of nonconstitutional errors. Id. at 559-564. In addition, the articulation of the harmless-error test in Robinson was dicta. Before engaging in that discussion, the Court reversed and remanded the case for a new trial because of the admission of involuntary statements by the defendant. Id. at 559.

Cf. English v Caldwell, 30 Mich 362, 364 (1874); Miskiewicz v Smolenski, 249 Mich 63, 74; 227 NW 789 (1929) (the plaintiffs allegations of error, even if correct, would not be prejudicial because “had the errors not been made ... the jury’s verdict would have been the same”).

The harmless-error statute in Kotteakos was an earlier version of the current federal rule, 28 USC 2111, which now provides:

On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.

The current and former statutes do not differ in any respect relevant to the issue before us. See Kotteakos, supra at 757, for text of the version of the rule in effect at the time of that case.

See also People v Johnson, 427 Mich 98, 115-116, n 14; 398 NW2d 219 (1986) (Boyle, J.) (providing an outline of harmless-error review under the federal rules, and noting that, under the then-proposed Michigan Rules of Criminal Procedure, reversal for nonconstitutional error should only occur where there has been proof that the alleged error prejudiced the defendant).

Federal courts have phrased the inquiry into the harmlessness of nonconstitutional error in a variety of distinctive questions. See, e.g., Government of Virgin Islands v Toto, 529 F2d 278, 284 (CA 3, 1976) (assessing whether it is highly probable that an alleged error did not contribute to a verdict); United States v Neuroth, 809 F2d 339, 342 (CA 6, 1987) (determining harmlessness by asking whether it is more probable than not, i.e., a preponderance of the evidence, that the error did not affect the verdict); United States v Hawkins, 905 F2d 1489, 1493 (CA 11, 1990) (nonconstitutional errors “do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant’s substantial rights”). (Emphasis added.)

See, e.g., Commonwealth v Story, 476 Pa 391; 383 A2d 155 (1978); Saltzburg, The harm of harmless error, 59 Va L R 988 (1973).

See, e.g., Government of Virgin Islands v Toto, n 17 supra at 284; United States v Ladd, 885 F2d 954, 957-958 (CA 1, 1989); Story, n 18 supra at 424-426 (Pomeroy, J., concurring).

See, e.g., Neuroth, n 17 supra at 342; United States v Rasheed, 663 F2d 843, 850 (CA 9, 1981). «,

The testimony at trial was unrebutted and was corroborated by the victim’s statement to his mother immediately after the incident that defendant was his attacker (testimony, the evidentiary significance of which the separate opinion fails to assess), a handgun found in the bathroom, the broken bathroom door, medical treatment of the slashes, and the statement of Cantu’s sister.

If the evidence is overwhelming, the error is harmless, United States v Meneses-Davila, 580 F2d 888 (CA 5, 1978); United States v Hemandez-Bermudez, 857 F2d 50 (CA 1, 1988).

The separate opinion’s conclusion that Mateo’s counsel was constitutionally deficient was not raised, briefed, or argued before this Court and is not properly before us for our review.