People v. Kasben

• Decision Date: 06 May 1987
• Docket Number: Docket No. 88702
• Citation: 404 N.W.2d 723,158 Mich.App. 252
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Michael KASBEN, Defendant-Appellant. 158 Mich.App. 252, 404 N.W.2d 723
• Court: Court of Appeal of Michigan — District of US

Page 723

404 N.W.2d 723

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Michael KASBEN, Defendant-Appellant.

Docket No. 88702.

158 Mich.App. 252, 404 N.W.2d 723

Court of Appeals of Michigan.

Submitted Feb. 5, 1987.

Decided March 2, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 253] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. Foresman, Pros. Atty., and Raymond O. Howd, Asst. Atty. Gen., for the people.

James M. Hunt, Traverse City, for defendant-appellant on appeal.

Before WALSH, P.J., and J.H. GILLIS and GLASER, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). Defendant appeals as of right. We affirm.

Defendant first claims that he was denied his right to confrontation when the four-year-old victim was allowed to testify at the preliminary examination over a closed-circuit television transmission which defendant was allowed to view from a separate room. U.S.Const., Am. VI; Const.1963, art. [158 MICHAPP 254] 1, Sec. 20. Initially, defendant was scheduled for a preliminary examination; however, despite efforts by the prosecution, the victim was unwilling to tell his story in defendant's presence. Defendant had been living in the victim's family's house trailer and was accused of molesting the victim when others were away from the trailer and defendant was babysitting the victim and his infant sister. The trial court adjourned the scheduled preliminary examination at the prosecutor's request.

Subsequently, the trial court suggested that this case would be an appropriate one to use a closed-circuit camera to transmit the victim's testimony. At a hearing to determine the victim's competency to testify, the victim again refused to talk about the incident. The victim expressed concern that defendant would hear what he was saying. The victim's stepmother stated that the victim did not want to discuss the incident in the presence of any males. When told that he would be on television and that defendant would not be present, the victim agreed to tell his story because "he [defendant] won't get me."

The trial court noted that this was an extreme case where the child would not testify if defendant was present and, therefore, the state's compelling interest in pursuing cases of this nature and protecting the child would justify a closed-circuit television procedure. The trial court further noted that it would protect defendant's right to confrontation in every way possible. Hence, the trial court stated that defendant would be allowed to view the victim's preliminary examination testimony while it was taking place and would be provided with a pad and pencil so that he could make notes. Moreover, defendant would be allowed to confer with his attorney as necessary to suggest a question or [158 MICHAPP 255] a line of questioning. At these times, a recess would be called.

On April 1, 1985, the preliminary examination was held. The victim was seated in the courtroom. The judge, the prosecutor, the defense attorney and the cameraman were also present. It is unclear whether the stenographer was also present. In any event, defendant was in the judge's chambers with an officer and was able to view and hear the proceeding live through a closed-circuit television setup. Defendant was provided with pencil and paper so that he could make notes during the victim's testimony. At the conclusion of the direct examination, defendant was given an opportunity to confer with his attorney. Defense counsel cross-examined the victim.

At trial, however, the victim did testify in defendant's presence. As noted above, defendant was convicted.

Having reviewed a substantial number of cases on the confrontation issue raised by defendant, we find that the right to confrontation is not an absolute right and may bend to other compelling interests such as those presented in this case. See and compare People v. Arenda, 416 Mich. 1, 7-13, 330 N.W.2d 814 (1982), reh. den. 417 Mich. 1105 (1983); People v. Henderson, 132 Misc.2d 51, 503 N.Y.S.2d 238 (1986); People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977 (1986); People v. Johnson, 146 Ill.App.3d 640, 100 Ill.Dec. 330, 497 N.E.2d 308 (1986); State v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986); State v. Daniels, 484 So.2d 941 (La.App., 1986). Cf. In the Matter of the Appeal in Pinal County Juvenile Action Nos J-1123 and J-1124, 147 Ariz. 302, 709 P.2d 1361 (1985); Kansas City v. McCoy, 525 S.W.2d 336 (Mo, 1975). The procedures used in this case were sufficient to protect this defendant's rights. Id.

[158 MICHAPP 256] Defendant also claims that he was denied his constitutional right to effective counsel because he was incapable of speaking with defense counsel while the victim testified. U.S.Const., Am. VI; Const.1963, art. 1, Sec. 20. In Johnson, supra, 100 Ill.Dec. 337, 497 N.E.2d 315, in discussing this claim, the court held:

"As we have noted, defendant was provided with a recess for the purpose of conferring with counsel prior to cross-examination, and with the means to take notes so he would not have to rely on his memory. A defendant's freedom to consult with counsel during trial is not absolute. It is limited to a degree by the trial judge's responsibility to maintain decorum and enforce order. (People v. Lewis [1977], 53 Ill.App.3d 89, 95; 11 Ill.Dec. 68, 73, 368 N.E.2d 619, 624.) In the unusual case at bar, in view of the apparent timidity of the minor witnesses it was doubly important that defendant not interrupt their testimony by conversation. Since defendant was not necessarily entitled to confer with counsel during actual testimony, and since defendant does not claim he was prevented from conferences during the break in the testimony, we find no abridgment...