People v. Buie

• Decision Date: 02 October 2012
• Docket Number: Docket No. 278732.
• Citation: 825 N.W.2d 361,298 Mich.App. 50
• Parties: PEOPLE v. BUIE.
• Court: Court of Appeal of Michigan — District of US

298 Mich.App. 50

825 N.W.2d 361

PEOPLE

v.BUIE.

Docket No. 278732.

Court of Appeals of Michigan.

Submitted July 3, 2012, at Lansing.

Decided Oct. 2, 2012, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the People.

State Appellate Defender (by Jonathan R. Sacks), for defendant.

Before: BECKERING, P.J., and WHITBECK and M.J. KELLY, JJ.

ON REMAND

PER CURIAM.

This is the third time that defendant James Henry Buie's appeal is before this Court. A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC) involving a victim under the age of 13, MCL 750.520b(1)(a), three counts of first-degree criminal sexual conduct involving the use of a weapon, MCL 750.520b(1)(e), and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant appealed his convictions, and in People v. Buie, 285 Mich.App. 401, 418–419, 775 N.W.2d 817 (2009), we remanded to the trial court to determine whether the video-conferencing procedure used to present the testimony of a doctor and a DNA expert was necessary to further a public policy or state interest important enough to outweigh defendant's confrontation rights. In People v. Buie, 485 Mich. 1105, 1105–1106, 779 N.W.2d 81 (2010), our Supreme Court ordered that, in addition to the above determination, the trial court was required to make findings regarding good cause and consent to the video-conferencing procedure pursuant to MCR 6.006(C). After remand, in People v. Buie (After Remand), 291 Mich.App. 259, 274–276, 804 N.W.2d 790 (2011), we held that the trial court plainly erred by permitting witnesses to testify through two-way interactive video, warranting reversal and a new trial. However, in People v. Buie, 491 Mich. 294, 297, 817 N.W.2d 33 (2012), our Supreme Court reversed, concluding that defendant had waived his right to confrontation and that MCR 6.006(C) had not been violated. The Supreme Court then remanded this case to this Court for consideration of defendant's remaining issues on appeal. Id. at 320, 817 N.W.2d 33. Because we find that defendant's remaining issues on appeal lack merit, we affirm defendant's convictions.

I. BASIC FACTS

The underlying facts of this case are set forth in greater detail in our two prior opinions; however, we will briefly summarize them here. Defendant was convicted of sexually assaulting three females: BS and two minors (ages 13 and 9). BS invited defendant into the apartment where she was babysitting the two minors in hopes of trading sex for cocaine, but defendant produced a firearm during the event and sexually assaulted all three victims. Hours later, a physician examined the minor victims and concluded that they had suffered sexual trauma to their genitals. An employee with the Forensic Biology Unit of the State Police concluded that analysis of the DNA samples linked the evidence taken from the victims to defendant.

A jury convicted defendant as described above, and the trial court sentenced him as a fourth-offense habitualoffender, MCL 769.12, to concurrent terms of life imprisonment for each CSC conviction and to a consecutive two-year term of imprisonment for the felony-firearm conviction.

II. ANALYSIS

A. DEFENDANT'S ABSENCE DURING PORTIONS OF VOIR DIRE

Defendant argues that he is entitled to a new trial because his constitutional and statutory rights to be present during his trial were violated when the court held a significant portion of voir dire outside his presence. We disagree.

At trial, defendant did not object to his absence from the courtroom during voir dire. Therefore, the issue is unpreserved. See People v. Carines, 460 Mich. 750, 761–765, 597 N.W.2d 130 (1999). We review for plain error “unpreserved claims of constitutional error.” Id. at 764, 597 N.W.2d 130. To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred, (2) the error must be plain, and (3) the error must have affected the defendant's substantial rights, which generally requiresthe defendant to show that the error affected the outcome of the lower-court proceedings. Id. at 763, 597 N.W.2d 130. “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings' independent of the defendant's innocence.” Id. at 763, 597 N.W.2d 130, citing United States v. Olano, 507 U.S. 725, 736–737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

The Michigan Supreme Court has recognized that a defendant has a right to be present during voir dire. People v. Mallory, 421 Mich. 229, 247, 365 N.W.2d 673 (1984). This Court has recognized that only “a defendant may waive both his statutory and constitutional right to be present during his trial.” People v. Montgomery, 64 Mich.App. 101, 103, 235 N.W.2d 75 (1975). Waiver is defined as “the intentional relinquishment or abandonment of a known right.” Carines, 460 Mich. at 762 n. 7, 597 N.W.2d 130 (quotation marks and citation omitted). A defendant can waive his right to be present by (1) voluntarily being absent after the trial has begun, People v. Swan, 394 Mich. 451, 452, 231 N.W.2d 651 (1975), or (2) being “so disorderly or disruptive that his trial cannot be continued while he is present,” Mallory, 421 Mich. at 248, 365 N.W.2d 673.

“It is not seriously questioned that a defendant has the power to waive constitutional rights, provided he does so intelligently, understandingly and voluntarily.” People v. Brown, 46 Mich.App. 592, 597, 208 N.W.2d 590, aff'd 393 Mich. 174, 224 N.W.2d 38 (1973). “A valid waiver of a defendant's presence at trial consists of a specific knowledge of the constitutional right and an intentional decision to abandon the protection of the constitutional right.” People v. Woods, 172 Mich.App. 476, 479, 432 N.W.2d 736 (1988); see also People v. Palmerton, 200 Mich.App. 302, 303, 503 N.W.2d 663 (1993). “One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000) (quotation marks and citation omitted).

Defendant argues that he did not waive his right to be present during voir dire when he said, “I don't want to set [sic] in here myself. I would like to be excused myself [sic].” Rather, defendant contends his statement “represented an unfortunate reaction and expression of frustration after the judge ‘excused’ a potential panelist, and the trial court questioned a panelist who initially said they could not be fair.”

1. VOLUNTARY WAIVER OF RIGHT TO BE PRESENT AT TRIAL

The record establishes that defendant specifically asked to be excused from the courtroom. As such, it is reasonable to conclude that he voluntarily and intentionally wished to be absent from the voir dire in progress. The record is silent, however, as to whether he was ever specifically apprised of his constitutional right to be present. Therefore, a finding that defendant knowingly or understandingly waived the protection of his constitutional right cannot be made. See Montgomery, 64 Mich.App. at 103, 235 N.W.2d 75 (noting that this Court cannot presume that the defendant waived his constitutional right on the basis of a silent or sketchy record); People v. Thompson, 52 Mich.App. 262, 267, 217 N.W.2d 63 (1974) (stating that waiver of the right to be present cannot be presumed from a silent record).

2. GROUNDS FOR REMOVAL FROM COURTROOM

This Court has recognized that it is within the trial court's discretion to removea defendant from the courtroom if the defendant's behavior is disruptive. People v. Harris, 80 Mich.App. 228, 229–230, 263 N.W.2d 40 (1977). In Harris, the defendant had “repeatedly interrupted the trial with his willful and disorderly behavior, making it impossible to carry on the proceedings in his presence.” Id. at 230, 263 N.W.2d 40. The trial court had warned the defendant that he would be removed from the courtroom if the behavior continued. Id. Once the defendant was removed, the trial court had offered him the opportunity to return if he would behave appropriately. Id. The defendant refused, and this Court ultimately concluded on review that “the trial court acted within the proper scope of discretion in removing defendant from the proceedings.” Id.

The record in this case indicates that defendant interrupted voir dire once before he asked to leave and was removed from the courtroom. Although he had a prior history of acting out and disrupting the proceedings as evidenced during his second preliminary examination,¹ defendant's conduct during voir dire was not repeatedly disruptive, and he was not continually warned by the court to modify his behavior to avoid removal, as occurred in Harris, 80 Mich.App. at 230, 263 N.W.2d 40. Defendant's one outspoken moment, by itself, does not justify removal from the courtroom. See id. Thus, we conclude that defendant did not waive his right to be present by interrupting the voir dire proceedings. See id.

3. PREJUDICE ARISING FROM DEFENDANT'S TEMPORARY ABSENCE FROM THE TRIAL

“[T]he test for whether defendant's absence from a part of his trial requires reversal of his conviction is whether there was any reasonable possibility that defendant was prejudiced by his absence.” People v. Armstrong, 212 Mich.App. 121, 129, 536 N.W.2d 789 (1995). The Michigan Supreme Court has also held that “it is no longer the law that injury is conclusively presumed from defendant's every absence during the course of a trial.” People v. Morgan, 400 Mich. 527, 535, 255 N.W.2d 603 (1977).

Here, defendant was absent for only a short period ² during voir dire before he returned, and he was present for the remainder of the trial. During his absence, several jurors were...