Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  June 14, 2019                                                                Bridget M. McCormack,
                                                                                              Chief Justice

                                                                                     David F. Viviano,
                                                                                     Chief Justice Pro Tem
  158545
                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
                                                                                  Richard H. Bernstein
                                                                                  Elizabeth T. Clement
  PEOPLE OF THE STATE OF MICHIGAN,                                                Megan K. Cavanagh,
            Plaintiff-Appellee,                                                                    Justices


  v                                                     SC: 158545
                                                        COA: 325730
                                                        Wayne CC: 14-008324-FC
  CARL RENE BRUNER II,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the August 21, 2018
  judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), and in
  lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and
  REMAND this case to the Wayne Circuit Court for a new trial. The Court of Appeals
  erred in concluding that the prosecution established that the confrontation violation was
  harmless beyond a reasonable doubt. Reviewing the record de novo, we cannot conclude
  that admission of Westley Webb’s testimony—the only evidence that placed a gun in the
  defendant’s hand—“did not tip the scale in favor of the prosecution and contribute to the
  jury’s verdict.” People v Anderson, 446 Mich 392, 407 (1994). Instead, it seems
  “reasonable to believe that this evidence affected the jury’s decision to convict.” Id.

        We do not retain jurisdiction.

        ZAHRA, J. (dissenting).

        I would deny leave to appeal because I agree with the Court of Appeals that the
  Confrontation Clause error in this case, the admission of Westley Webb’s preliminary-
  examination testimony at defendant’s joint trial with codefendant, was harmless beyond a
  reasonable doubt. 1 It is true that the erroneously admitted testimony was the only
  evidence explicitly placing a gun in the possession of defendant. But as the panel noted
  after an examination of the record, the prosecution presented a very strong



  1
   The applicable harmless-error standard 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.’ ”
  People v Anderson (After Remand), 446 Mich 392, 406 (1994), quoting Chapman v
  California, 386 US 18, 23 (1967) (quotation marks omitted).
                                                                                                               2

circumstantial case against defendant. 2

        Evidence was presented showing that defendant possessed a motive to shoot the
security guards, as defendant was reportedly very angry that he been ejected from the
club for fighting. Defendant subsequently lingered around the club, and witnesses
testified that defendant pointed angrily or made hand gestures and stated that he would be
back. Defendant was denied reentry to the club to look for his phone because he refused
to be searched, at which point he was described as “[s]till hostile.” 3 Security guards
working at the club reported that defendant was watching them from across the street
before defendant was observed riding past the club multiple times in the passenger seat of
a vehicle driven by codefendant. This caused at least two of the security guards to draw
their weapons and hold them at their sides. The security guards noticed defendant’s
sudden absence from the vehicle, and were actively looking for him just seconds before
they were shot at from behind. After the shooting, defendant engaged in abnormal
behavior by abruptly cutting off communication with the victim’s mother and abandoning
plans to meet up with his girlfriend. This circumstantial evidence is compelling.

       Moreover, I question the impact of Webb’s testimony. While Webb’s testimony
was certainly inculpatory, it was also convoluted, inconsistent, and somewhat confusing.
And Webb was effectively impeached by codefendant’s trial counsel, who emphasized
Webb’s prior convictions and the fact that Webb only testified pursuant to a deal with the
prosecutor. For these reasons, I conclude that the erroneous admission of Webb’s
testimony was harmless beyond a reasonable doubt.

       MARKMAN, J., joins the statement of ZAHRA, J.




2
  “ ‘Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.’ ” People v Nowack, 462 Mich
392, 400 (2000), quoting People v Carines, 460 Mich 750, 757 (1999) (quotation marks
omitted).
3
  Security guards testified that the purpose of such a search was “[f]or security reasons”;
it was not permitted to “bring a weapon in the building.” Defendant’s refusal to be patted
down by the security guards at least supports an inference that he possessed a weapon,
apart from Webb’s testimony.



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 14, 2019
       s0611
                                                                             Clerk
