People v. Remand)

• Decision Date: 11 January 2011
• Docket Number: Docket No. 278732.
• Citation: 291 Mich.App. 259,804 N.W.2d 790
• Parties: PEOPLEv.BUIE (After Remand).
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 259

804 N.W.2d 790

PEOPLE

v.BUIE (After Remand).

Docket No. 278732.

Court of Appeals of Michigan.

Submitted Oct. 14, 2010.Decided Jan. 11, 2011.

Bill Schuette, Attorney General, B. Eric Restuccia, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Assistant Prosecuting Attorney, for the people.State Appellate Defender (by Jonathan Sacks) for defendant.Before: BECKERING, P.J., and WHITBECK and M.J. KELLY, JJ.

AFTER REMAND

PER CURIAM.

Defendant 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. When defendant first appealed to this Court, he argued that the trial court erred in permitting Dr. Vincent Palusci and Rodney Wolfarth to testify by way of two-way, interactive video technology. Specifically, defendant argued that the testimony violated his constitutional right of confrontation and was not properly admitted under any state statute or court rule. Retaining jurisdiction, we remanded for the trial court to determine whether permitting the video procedure was necessary to further an important public policy or state interest. People v. Buie, 285 Mich.App. 401, 418, 775 N.W.2d 817 (2009). Our Supreme Court denied plaintiff and defendant leave to appeal, but instructed the trial court to also “ make findings regarding good cause and consent pursuant to MCR 6.006(C)” on remand. People v. Buie, 485 Mich. 1105, 1106, 779 N.W.2d 81 (2010). Following an evidentiary hearing, the trial court issued an opinion and order holding that there was no error in permitting the video procedure because it furthered several state interests or public policies and defendant consented to the procedure. We disagree with the trial court's holding. Because permitting the video procedure cannot be deemed harmless error, we must vacate defendant's convictions and sentence and remand for a new trial.

I

Defendant was convicted of sexually assaulting BS and minors LS, age 13, and DS, age 9. According to the testimony at trial, on June 27, 2001, defendant held BS at gunpoint in a closet, penetrated her vagina with his penis, and attempted to penetrate her anally. Defendant subsequently penetrated LS's vagina with his penis and attempted to penetrate her anally. He then penetrated DS's vagina with his penis. At trial, BS identified defendant as the man who assaulted her, LS, and DS. She testified that she had never seen him before the night of the assaults and had not seen him since that night. LS and DS were unable to identify the man who assaulted them.

Dr. Palusci examined LS and DS within hours of the assaults, Wolfarth conducted DNA testing on the swabs collected by Dr. Palusci, as well as other evidence, and both testified regarding their findings. As we detailed in our earlier opinion:

Dr. Vincent Palusci examined LS and DS 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 [LS], also her anus, which were not explainable in any other manner than the histories provided” by the girls. Christine Dunnick, a forensic nurse, examined BS after the assaults and found a “half a centimeter perianal tear, which is near the anal opening,” consistent with the history provided by BS. 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 LS 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 LS. When he tested the sperm cells from the rectal swab, “it was consistent with a mixture and the mixture was consistent with [LS] 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 LB testified that defendant sexually assaulted her in 2004, when she was 13 years old. LB 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 LB'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 LS was consistent with a mixture of LS and defendant at 10 of 13 locations. Defendant's DNA was not found on any of the swabs taken from DS, but Schultze explained that even if penetration occurs, “if there's no ejaculation, the male DNA is not going to be there.”

[ Buie, 285 Mich.App. at 404–406, 775 N.W.2d 817.]

The trial court permitted Dr. Palusci and Wolfarth to testify by way of two-way, interactive video technology. Before the first witness testified, defense counsel stated: “[M]y client has—wanted to question the veracity of these proceedings, so I'll leave that to the Court's discretion.”

Following his jury trial, defendant was convicted as previously stated. He then appealed his convictions and sentence in this Court, arguing that Dr. Palusci's and Wolfarth's video testimony violated his constitutional right of confrontation and was not properly admitted under any state statute or court rule. We adopted the test articulated in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), to determine whether a trial court infringes on a defendant's right of confrontation when it allows witness testimony to be taken by way of two-way, interactive video technology. Buie, 285 Mich.App. at 415, 775 N.W.2d 817. We held that a “trial court must hear evidence and make case-specific findings that the procedure is necessary to further a public policy or state interest important enough to outweigh the defendant's constitutional right of confrontation and that it preserves all the other elements of the Confrontation Clause.” Id. Additionally, we held that

[p]ursuant to the plain language of MCR 6.006(C)(2), a trial court may take witness testimony by two-way, interactive video technology if: (1) the defendant is either present in the courtroom or has waived the right to be present, (2) there is a showing of good cause, and (3) the parties consent.

[ Id. at 417, 775 N.W.2d 817.]

Based on the record before us at the time, we could not determine that there was a showing of good cause or that defendant consented. Id. We remanded the case, ordering the trial court to determine whether permitting the video procedure was necessary to further an important public policy or state interest. Id. at 418, 775 N.W.2d 817. Defendant subsequently filed an application for leave to appeal in the Supreme Court. The Supreme Court denied the application, but instructed the trial court to also “make findings regarding good cause and consent pursuant to MCR 6.006(C).” Buie, 485 Mich. at 1106, 779 N.W.2d 81.

On remand, the trial court held an evidentiary hearing. The parties stipulated that at the time of trial, Dr. Palusci worked at Wayne State University in Detroit, Michigan and Wolfarth worked at the Virginia State Crime Lab in the western part of Virginia. Although it would have been inconvenient, both witnesses would have testified in person if videoconferencing had not been available.

The prosecutor assigned to this case at the time of trial testified that although he and defense counsel discussed the use of the video technology, he could not recall the specifics of their discussions. He recalled informing defense counsel that testifying in person would be inconvenient for Dr. Palusci and Wolfarth. He also recalled defense counsel stating that she believed Dr. Palusci's testimony would be damaging to the defense and wanted the testimony to be “done with as quickly as possible.” The prosecutor testified that he would never arrange for a witness to testify by way of video technology without first obtaining a stipulation from defense counsel. Defendant was not included in the prosecutor's discussions with defense counsel.

Defendant's trial counsel testified that she discussed the use of the video technology with the prosecutor and the trial court in chambers before trial. She testified that this case had proceeded very slowly for a number of reasons. She understood that it would be problematic and time consuming for Dr. Palusci and Wolfarth to testify in person, although...