                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 16, 2015
               Plaintiff-Appellee,

v                                                                   No. 318473
                                                                    Bay Circuit Court
MARK JAMES ELDRIDGE,                                                LC No. 12-011030-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and BECKERING, JJ.

BECKERING, J (concurring in part, dissenting in part).

        I write separately because I would find that the trial court erred when it permitted the
prosecutor, over defendant’s objection, to ask Rebekah Lloyd whether Judge Sheeran opined that
she lied to a jury. The trial court found the question permissible pursuant to MRE 608(b), which
provides, in pertinent part:

       Specific instances of the conduct of a witness, for the purpose of attacking or
       supporting the witness' credibility, other than conviction of crime as provided in
       Rule 609, may not be proved by extrinsic evidence. They may, however, in the
       discretion of the court, if probative of truthfulness or untruthfulness, be inquired
       into on cross-examination of the witness (1) concerning the witness' character for
       truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
       untruthfulness of another witness as to which character the witness being cross-
       examined has testified.

        Under MRE 608(b), a cross-examining attorney may inquire about a specific instance of
conduct, but may not prove a specific instance of conduct by extrinsic evidence. People v Lane,
__ Mich App __; __ NW2d __ (Docket No. 313818, issued November 4, 2014), slip op at 18.
See also People v Phillips, 170 Mich App 675, 681; 428 NW2d 739 (1988) (holding that MRE
608(b) did not permit a cross-examining attorney to use a hearsay statement to prove the specific
instance of conduct). Because a cross-examining attorney may not introduce extrinsic evidence,
the attorney is “stuck with” the witness’s answer to the inquiry about the specific instance of
conduct. Wischmeyer v Schanz, 449 Mich 469, 478; 536 NW2d 760 (1995).

       I would find the prosecutor’s questions to Lloyd were not permissible under MRE 608(b).
The prosecutor asked Lloyd, “Ma’am, in front of Judge Sheeran in the Bay County Courthouse,
at a hearing on April 24th of 2012, Judge Sheeran found that you had lied to a jury, isn’t that
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true?”1 As a follow-up, the prosecutor asked Lloyd: “So, [Judge Sheeran] did say that he
believed you had lied to a jury?” The prosecutor’s questions were improper under MRE 608(b)
for several reasons. Initially, the questions were improper because they sought to circumvent
MRE 608(b)’s ban on extrinsic evidence by injecting extrinsic evidence into the questions
themselves. In this instance, a proper question under MRE 608(b) could have been, “Have you
ever lied to a jury before?” Or, perhaps “Did you lie to a jury in another proceeding?” If the
prosecutor had asked such a question and Lloyd denied as much, the prosecutor would have been
“stuck with” her answer, and would not have been able to introduce extrinsic evidence to
indicate otherwise. See Wischmeyer, 449 Mich at 478. See also Lane, __ Mich App at __, slip
op at 18. Here, however, the prosecutor circumvented MRE 608(b)’s prohibition on extrinsic
evidence by injecting extrinsic evidence into the questions asked. This was not permissible. See
Park & Lininger, The New Wigmore: A Treatise on Evidence, Impeachment with Character
Evidence, § 3.3.4, pp 124-125. See also United States v Davis, 183 F3d 231, 257 n 12 (CA 3,
1999), quoting Stephen A. Saltzburg, Impeaching the Witness: Prior Bad Acts and Extrinsic
Evidence, 7 Crim Just 28, 31 (Winter 1993) (“counsel should not be permitted to circumvent the
no-extrinsic-evidence provision [in Rule 608(b)(1)] by tucking a third person’s opinion about
prior acts into a question asked of the witness who has denied the act”).2

        Moreover, the prosecutor’s question was improper because it amounted, in essence, to
hearsay testimony offered by the prosecutor. By asking whether Judge Sheeran “did say that he
believed you had lied to a jury?” the prosecutor put a hearsay statement in front of the jury.
Hearsay is a statement “other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is
inadmissible, unless an exception applies. MRE 802. Here, the relevance of the statement was
the truth of the matter asserted, i.e., that Judge Sheeran believed Lloyd lied to a jury. Permitting
the prosecutor to question Lloyd in this manner effectively allowed the prosecutor to inject
hearsay statements into the questions.

        In addition, the plain language of MRE 608(b) supports that the inquiry in this case was
impermissible. MRE 608(b) permits inquiry into the “[s]pecific instances of the conduct of a
witness . . . .” (Emphasis added). The rules of evidence are interpreted in the same manner as
statutes, and when the plain language of a rule of evidence is unambiguous, it must be enforced
as written. People v Snyder, 301 Mich App 99, 104-105; 835 NW2d 608 (2013). Here, MRE
608(b) refers to the conduct of a witness. It makes no mention of inquiry into another
individual’s evaluation of a specific instance of the witness’s conduct.3 Pursuant to the plain
language of MRE 608(b), the prosecutor would have been allowed to ask Lloyd about specific



1
    This was in reference to the judge’s comments at Lloyd’s sentencing hearing in another matter.
2
 Because the Michigan Rules of Evidence were patterned after the Federal Rules of Evidence,
our courts often refer to federal precedent for assistance in interpreting and applying our rules of
evidence. See People v Katt, 468 Mich 272, 280; 662 NW2d 12 (2003).
3
  MRE 608(a) permits evidence of a witness’s character for truthfulness in the form of opinion or
reputation testimony. That rule is not at issue in this case.


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instances of her own conduct. Thus, if the prosecutor had asked Lloyd whether she lied—not
whether someone else believed that Lloyd lied—the question would not have been prohibited by
MRE 608(b). However, the prosecutor’s questions did not follow this format, and were not
proper under the plain language of MRE 608(b). Nor would I find that the questions were
permitted under any other rule of evidence, for that matter.4

        Nevertheless, I concur with the result reached by the majority opinion because I find that
the evidentiary error was harmless. “[A] preserved, nonconstitutional error is not grounds for
reversal unless, after an examination of the entire cause, it affirmatively appears that it is more
probable than not that the error was outcome determinative.” People v Williams, 483 Mich 226,
243; 769 NW2d 605 (2009), citing MCL 769.26. Here, the victim testified that defendant
contacted her “[a]lmost every night” for a period of time after she obtained a no-contact order.
The victim was able to recognize defendant’s voice “right away,” and she recalled defendant
telling her that he had “people looking for her” and that he was going to “beat [her] ass worse
than before.” The victim identified multiple telephone numbers from which she alleged
defendant sent or caused others to send threatening and/or harassing telephone calls and text
messages. One of those telephone numbers belonged to Lloyd. Lloyd’s testimony concerned
only one date out of several on which the victim testified she received threatening and harassing
telephone calls. Absent the single occasion referenced by Lloyd, there were, according to the
victim’s testimony, multiple other dates and times when defendant sent her threatening and/or
harassing text messages and telephone calls. Moreover, the victim recalled receiving harassing
and/or threatening Facebook messages from defendant. In short, defendant overstates Lloyd’s
importance as a witness in this case; Lloyd’s testimony did not explain a majority of the
unconsented, threatening and/or harassing contact alleged by the victim.

        On the issue of harmless error, I also note that the victim testified that all of the
threatening and harassing contact ceased after defendant was served with a personal protection
order (PPO). Defendant’s theory of the case was that he was not responsible for the threatening
and harassing messages. If someone else, not defendant, was responsible for the messages and
telephone calls, it was oddly coincidental that those messages and telephone calls stopped
immediately after defendant was served with a PPO.

         In conclusion, the trial court should not have permitted the inquiry noted above.
However, because I find that the error was harmless in light of the remaining evidence offered at
trial, I concur in the majority’s decision to affirm defendant’s conviction. Defendant was not
entitled to a new trial.

                                                            /s/ Jane M. Beckering



4
  In reaching this conclusion, I note that, had Lloyd been convicted of perjury in a prior
proceeding, such a conviction may have been admissible to impeach her testimony under MRE
609. However, there is no indication that Lloyd was convicted of perjury in the prior
proceeding; instead, it simply appears that the prosecutor attempted to impeach her with
comments that a judge made at sentencing in her prior criminal case.


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