People v. Buie

• Decision Date: 24 May 2012
• Docket Number: Docket No. 142698.
• Parties: PEOPLE v. BUIE.
• Court: Michigan Supreme Court

491 Mich. 294
817 N.W.2d 33

PEOPLE
v.
BUIE.

Docket No. 142698.

Supreme Court of Michigan.

Argued Nov. 10, 2011.
Decided May 24, 2012.

[817 N.W.2d 35]

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 Sacks) for defendant.

Opinion of the Court
MARKMAN, J.

[491 Mich. 297]We granted leave to appeal to consider whether witness testimony taken by two-way, interactive video was properly admitted during defendant's trial. Our consideration implicates two issues: (1) whether defendant's constitutional right to be confronted with the witnesses against him was violated by the admission of video testimony, U.S. Const., Am. VI; Const. 1963, art. 1, § 20, and (2) whether the admission of video testimony violated MCR 6.006(C). Because we conclude that defendant waived his right of confrontation under the United States and Michigan Constitutions and that the court rule was not violated, we reverse the Court of Appeals' judgment and remand to that Court for consideration of defendant's remaining issues.

I. FACTS AND HISTORY

Defendant was convicted of sexually assaulting BS and two female minors: LS, age 13, and DS, age 9. The assaults occurred on June 27, 2001, after BS, seeking to trade sex for cocaine, invited defendant into the apartment where she was babysitting LS and DS. In lieu of the desired

[817 N.W.2d 36]

bargain, defendant held BS at gunpoint and raped her, LS, and DS. LS and DS were unable to identify the man who assaulted them, but at trial BS identified defendant as the perpetrator of the crimes.

Within hours of the assault, Dr. Vincent Palusci examined LS and DS. He found evidence “ ‘indicative of sexual conduct of direct trauma to the genitals, and in the case of [LS], also her anus, which were not explainable in any other manner than the histories provided’ ” by the children. People v. Buie, 285 Mich.App. 401, 404, 775 N.W.2d 817 (2009) (Buie I ). Palusci collected vaginal [491 Mich. 298]and rectal swabs during the examinations and placed the swabs into rape kits. The kits were then sealed and released to the appropriate law enforcement agencies. An employee of the Michigan State Police's Forensic Biology Unit, Rodney Wolfarth, conducted DNA testing on the swabs and on other objects found at the scene of the crime. Wolfarth found sperm cells in the swabs and designated their originator “Donor 1.”

Wolfarth was unable to identify Donor 1 at the time but entered his results into a DNA database known as CODIS, an acronym for “Combined DNA Indexing System.” On February 1, 2005, CODIS matched defendant's DNA to Donor 1, and he was arrested and charged with the crimes. Before trial, defense counsel consented to the use of video testimony by Palusci and Wolfarth, and at trial, they were permitted to testify by this method. People v. Buie (After Remand), 291 Mich.App. 259, 267, 804 N.W.2d 790 (2011) (Buie II ). However, immediately before Palusci testified, defense counsel stated that defendant “ ‘wanted to question the veracity of these proceedings, so I'll leave that to the Court's discretion.’ ” Id.

After a brief discussion between the court and the information technology staff concerning how the video equipment would operate, Palusci testified. Defendant was eventually convicted by a jury 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. Defendant appealed, arguing that the video testimony violated his constitutional right of confrontation and was not properly admitted under any statute or court rule.

The Court of Appeals adopted the test articulated in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), [491 Mich. 299]to determine whether the admission of the video testimony had violated defendant's right of confrontation. Buie I, 285 Mich.App. at 415, 775 N.W.2d 817. Pursuant to that test, the Court of Appeals then remanded the case to the trial court and ordered it to assess whether permitting the video testimony had been “necessary to further an important public policy or state interest.” Id. at 418, 775 N.W.2d 817. The prosecutor appealed here, and defendant cross-appealed. This Court denied both applications for leave to appeal but instructed the trial court to “make [additional] findings regarding good cause and consent pursuant to MCR 6.006(C).” People v. Buie, 485 Mich. 1105, 1106, 779 N.W.2d 81 (2010). Dissenting in part from the order, Justice Corrigan explained:

In light of defense counsel's complete statement, I cannot conclude that “the nature” of that statement manifested anything other than consent. As a threshold matter, the complete statement of defense counsel is “consent” under the Court of Appeals own analysis of the dictionary definition of the term. When defense counsel stated “I'll leave that to the Court's discretion,” defendant essentially acquiesced to the taking

[817 N.W.2d 37]

of testimony using two-way interactive video technology. Defense counsel cannot acquiesce to the court's handling of a matter at trial, only to later raise the issue as an error on appeal. A contrary result would run afoul of the well-established legal principle that a defendant must “raise objections at a time when the trial court has an opportunity to correct the error” and cannot “harbor error as an appellate parachute.” [Id. at 1107, 779 N.W.2d 81 (citations omitted).]

On remand, the trial court held an evidentiary hearing. At that hearing, the prosecutor was asked:

Q. Now, do you recall specifically any conversation you may have had with defense counsel or the Court concerning the use of the video technology from these witnesses from remote locations?

[491 Mich. 300]A. I don't recall specifically what was said between [defense counsel] and myself. I do know, you know, thinking about that, that regarding Dr. Palusci's testimony, that I don't believe she objected to it being the video feed because she wanted—she knew the testimony—

* * *

I don't remember [defense counsel's] exact words, but she had indicated that Dr. Palusci—she believed Dr. Palusci's testimony was going to be damaging, so she wanted him, whether it be live or on the screen, done with as quickly as possible.

Defense counsel agreed that she had discussed the use of video testimony before trial. When asked whether she was “agreeable” to the use of video testimony by Palusci and Wolfarth, defense counsel explained:

Understanding that [the witnesses were not local] and the nature of this particular case and the fact that it had been dragging out for quite a while by this time, I felt—I was in agreement that this would be the best way to have [Palusci and Wolfarth] testify without subjecting them to being here physically.

When asked whether there was “a benefit to having the testimony by video rather than having testimony live,” defense counsel responded:

I didn't think there was any problem. I wouldn't call it a benefit or a burden. It was just two individuals testifying on a tele—on a big screen rather than sitting here. They were sworn as I was this afternoon. They were asked questions by the prosecution. They were cross-examined by me. There was some redirection. I believe I even re-crossed on at least one of the witnesses. And it was done.

Although defense counsel stated that “every conversation [she] had with [defendant] throughout [her] representation was done either in the lock-up area here [491 Mich. 301]at the—at the courthouse or with him sitting at the defense table,” when asked whether she would have “discussed with [defendant] this—the testimony—the video procedures beforehand,” she answered that “[d]espite [defendant's] contentiousness, [she] discussed everything with him” and that “[defendant] was well aware of the prosecutor's desire to have [the witnesses] testify via video.”

Defense counsel was then asked whether defendant himself had responded when informed that Palusci and Wolfarth would testify by video. She answered:

Oh, yeah, of course. [Defendant] objected to everything. It was—you know, it was classic Buie from beginning to end, “This is wrong. That is wrong.” But, you know, yeah. And I believe I made a statement on the record indicating

[817 N.W.2d 38]

defendant's] disdain for the two individuals testifying via video.

She was then asked:

Q. Okay. And where you said, “I understand this is this particular courtroom's first attempt at this type of technological proceeding and my client is wanting to question the veracity of these proceedings, so I'll leave that to the Court's discretion,” is it fair to say then that that statement is you expressing [defendant's] objection to the procedure?

A. Absolutely.

However, when questioned further about that statement, defense counsel explained:

A. [Defendant] was questioning the veracity of everything. It was just—it was a blanket James Buie, this is a farce, and that was pretty much his attitude from beginning to end.

Q. Okay. Was that specifically as regarding the use of the video testimony itself, or was this about everything?

[491 Mich. 302]A. I didn't take it as that. I took it as he had a problem with every piece of this case, every—from beginning to end up until the point that he was too cowardly to come into the courtroom at sentencing. So, no, I didn't take it as specifically he had a problem with the—the—I mean I can't get into his mind, but this was what I was dealing with from the—from the beginning to the end of this case, so I didn't specifically take it as he had a problem with the videotape. It's just he had a problem with the fact that he was on trial for raping two little girls.

At this point, the trial court had defense counsel read this Court's order, Buie,...