People v. Buie

• Citation: 285 Mich. App. 401,775 N.W.2d 817
• Decision Date: 25 August 2009
• Docket Number: Docket No. 278732.
• Parties: PEOPLE v. BUIE.
• Court: Court of Appeal of Michigan (US)

775 N.W.2d 817

285 Mich. App. 401

PEOPLE v. BUIE.

Docket No. 278732.

Court of Appeals of Michigan.

Submitted January 7, 2009, at Grand Rapids.

Decided August 25, 2009, at 9:10 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

State Appellate Defender (by Jonathan Sacks, Deputy Director) for the defendant.

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

PER CURIAM.

Defendant James H. Buie appeals as of right his jury trial convictions 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 CSC 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. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to life imprisonment for his CSC convictions and two years' imprisonment for his felony-firearm conviction. We remand for further proceedings consistent with this opinion.

I

On June 27, 2001, defendant entered a house in Grand Rapids, Michigan, and sexually assaulted B.S. and minors L.S., age 13, and D.S., age 9. At the time of the incident, L.S. and D.S. lived in the house with their mother, their two brothers, and their mother's roommate. B.S., who was a close family friend, was at the house that night to babysit the children while their mother was out. L.S. and D.S.'s mother testified that she knew that B.S. had used cocaine in the past, but believed that B.S. was "clean" when she asked her to watch the children. B.S. later admitted, however, that she was still using cocaine at the time of the incident.

B.S. arrived at the house at approximately 7:00 p.m. Between 1:00 and 2:00 a.m., she went and sat down on the front porch. B.S. initially reported that defendant forced her back inside the house at gunpoint. According to B.S.'s trial testimony, however, defendant approached her while she was seated on the porch. He asked to use a telephone. B.S. consented and allowed defendant to enter the house. She then propositioned defendant to exchange sexual favors for cocaine and led him into a large closet. Once inside the closet, defendant pointed a gun at B.S.'s head and penetrated her vagina with his penis. He also attempted to penetrate her anally.

During the assault, B.S. heard the minor's mother's roommate at the front door. After the roommate entered the house, defendant struck him in the head with a gun. The roommate fell to the floor, unconscious. At that point, L.S., D.S., and the other two children entered the room. L.S. and D.S. testified that they saw defendant holding a gun to B.S.'s head. Defendant then ordered B.S. and all four of the children to enter the closet and lie down.

According to L.S., defendant subsequently moved her from the closet to the couch. Once on the couch, defendant penetrated her vagina with his penis. During the assault, defendant told L.S. that he loved her and that if she tried to escape, he would kill her family. Defendant assaulted L.S. again in her bedroom and in the kitchen. At some point, he attempted to penetrate her anally. After the assault in the kitchen, defendant took L.S. back to the couch and told her to put her head down. Defendant then moved D.S. from the closet to the kitchen. According to D.S., defendant penetrated her vagina with his penis. L.S. remained on the couch with her head down and could hear D.S. crying in the kitchen. Defendant then moved D.S. back to the closet and assaulted her again. Defendant held a gun throughout the assaults.

After defendant assaulted D.S. in the closet, he left the house and B.S. called the police. L.S. and D.S. were unable to identify the man who assaulted them. The roommate described the man who hit him as a black male, but was also unable to identify defendant as his assailant. At trial, B.S. identified defendant as the man who assaulted her, L.S., and D.S. She testified that she had never seen him before the night of the incident and had not seen him since that night.

Dr. Vincent Palusci examined L.S. and D.S. approximately six hours after the assaults. Dr. Palusci testified that his findings "were indicative of sexual conduct of direct trauma to the genitals, and in the case of [L.S.], also her anus, which were not explainable in any other manner than the histories provided" by the girls. Christine Dunnick, a forensic nurse, examined B.S. after the assaults and found a "half a centimeter perianal tear, which is near the anal opening," consistent with the history provided by B.S. Dr. Palusci and nurse Dunnick collected evidence, including vaginal and rectal swabs, during the examinations and placed the evidence in rape kits. The kits were then sealed and released to the appropriate law enforcement agencies.

The trial court designated Rodney Wolfarth as an expert in the area of DNA analysis. Wolfarth conducted DNA testing on the swabs in the rape kits and the nightgown worn by L.S. during the assaults, as well as a fitted sheet, a pillowcase, and cigarette butts found at the scene. Wolfarth testified that he found sperm cells in the vaginal and rectal swabs taken from L.S. When he tested the sperm cells from the rectal swab, "it was consistent with a mixture and the mixture was consistent with [L.S.] and an unknown semen donor, designated as Donor 1." Wolfarth found the same mixture on the nightgown and found DNA from Donor 1 on the fitted sheet, pillowcase, and cigarette butts. Wolfarth was unable to identify a match for the DNA at that time, but stated that once DNA testing is completed, the "probative DNA result is entered into what is a DNA data bank called CODIS, which stands for Combined DNA Indexing System." The data are stored to allow for comparisons to convicted felons' profiles at a later date. When a match is made between a DNA sample and a known profile, it is referred to as a CODIS hit.

At trial, prosecution witness L.B. testified that defendant sexually assaulted her in 2004, when she was 13 years old. L.B. told her sister that defendant had assaulted her and, shortly thereafter, the incident was reported to the police. DNA analysts subsequently determined that defendant's DNA matched sperm cells from L.B.'s vaginal swab and underwear. The results of the DNA testing were entered into CODIS.

On February 1, 2005, a CODIS hit occurred when the system matched defendant's DNA to the DNA samples taken in this case. Thereafter, a search warrant to conduct a buccal swab for defendant's DNA was obtained. Defendant was initially uncooperative, but eventually consented to the swab. Joel Schultze, who was designated by the trial court as an expert in DNA analysis, testified that the DNA sample was tested and compared to Wolfarth's previous findings. According to Schultze, the DNA material on the nightgown, pillowcase, fitted sheet, and cigarette butts were consistent with defendant's DNA. In addition, the rectal swab taken from L.S. was consistent with a mixture of L.S. and defendant at 10 of 13 locations. Defendant's DNA was not found on any of the swabs taken from D.S., but Schultze explained that even if penetration occurs, "if there's no ejaculation, the male DNA is not going to be there." Schultze further testified: "In the Caucasian population the probability is 1[in] 1.4 quintillion that [a] randomly chosen person would match the profiles on the cigarettes butts, nightgown, pillowcase and sheet. In the African-American, it's 1[in] 188.9 quadrillion." As for the rectal swab match, "in the Caucasian population it would be approximately one to two million—one in one to two million people would be able to contribute to that mixture on the rectal swab. In the African-American, it would be one in approximately 100,000 to 175,000 African-Americans."

Defendant was convicted and sentenced as previously stated. He now appeals as of right.

II

Defendant argues that the trial court erred when it permitted Dr. Palusci and Wolfarth to testify by way of two-way, interactive video technology. At trial, before the first witness testified by videoconferencing, defense counsel stated: "[M]y client has—wanted to question the veracity of these proceedings." On appeal, defendant argues that the testimony violated his constitutional right to confront the witness against him and was not properly admitted under any state statute or court rule. Because defendant failed to specifically object to the use of the video technology on these grounds at trial, this issue is unpreserved. See People v. McPherson, 263 Mich.App. 124, 137, 687 N.W.2d 370 (2004).

A

We review unpreserved claims of nonstructural, constitutional error for plain error. People v. Carines, 460 Mich. 750, 764, 597 N.W.2d 130 (1999); see also People v. Shepherd, 472 Mich. 343, 347, 697 N.W.2d 144 (2005) (stating that a violation of the Confrontation Clause was not a structural error).

To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. [Carines, supra at 763, 597 N.W.2d 130 (citations omitted).]

Therefore, the error will only warrant reversal if 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. (quotation marks and citation omitted).

The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment states, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the...