People v. McAllister , 249 Mich. App. 34 ( 2001 )

on remand

Before: Hood, P.J., and Gage and Whitbeck, JJ.

Per Curiam.

This case is before us on remand from the Supreme Court. On original submission, we concluded that the introduction of information regarding an anonymous telephone call was erroneous, but was not outcome determinative, citing People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999). People v McAllister, 241 Mich App 466, 469-471; 616 NW2d 203 (2000). On remand, the Supreme Court has directed us to address defendant’s claim under the standard for unpreserved constitutional error set forth in People v Carines, 460 Mich 750; 597 NW2d 130 (1999).¹ We continue to affirm.

To avoid forfeiture of a constitutional claim, the defendant must show that an error occurred, it was plain, and it affected the outcome of the lower court proceedings. Carines, supra at 763. In the present case, defendant has failed to meet this burden. Three witnesses were able to identify defendant as the assailant, and a waitress at the bar placed defendant at the scene. McAllister, supra at 470-471. Defendant was not denied his right of confrontation when he was able to challenge the identification by these witnesses in light of visibility conditions and the duration of the attack on the victim. The trial court also provided a cautionary instruction regarding the limited purpose of the information and that it was not admitted for the truth of the matter asserted.²

Affirmed.

1 People v McAllister, 465 Mich 884 (2001).

2 We note that following the completion of the next witness and after the jury was excused, the trial court acknowledged that the anonymous tip issue had been raised by defense counsel at a sidebar. The substance of the sidebar and ruling were then placed on the record. Specifically, defense counsel objected to the context of the conversation, and the trial court allowed “it” with a curative instruction. Analysis of preserved constitutional error that is not the result of a structural defect is reviewed for harmless error. People v Anderson (After Remand), 446 Mich 392, 405-406; 521 NW2d 538 (1994); Carines, supra at 774. This error does not constitute a structural defect, Anderson, supra at 405, and this error, quantitatively assessed in the context of other evidence presented at trial, was harmless beyond a reasonable doubt. Id. at 405-406.