People v. Buie

817 N.W.2d 33, 491 Mich. 294, 2012 WL 1912195, 2012 Mich. LEXIS 754
CourtMichigan Supreme Court
DecidedMay 24, 2012
DocketDocket 142698
StatusPublished
Cited by166 cases

This text of 817 N.W.2d 33 (People v. Buie) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Buie, 817 N.W.2d 33, 491 Mich. 294, 2012 WL 1912195, 2012 Mich. LEXIS 754 (Mich. 2012).

Opinions

MARKMAN, J.

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, US 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 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 NW2d 817 (2009) (Buie I). Palusci collected vaginal [298]*298and 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 NW2d 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(l)(a); three counts of first-degree CSC involving the use of a weapon, MCL 750.520b(l)(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 US 836; 110 S Ct 3157; 111 L Ed [299]*2992d 666 (1990), to determine whether the admission of the video testimony had violated defendant’s right of confrontation. Buie 1,285 Mich App at 415. 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. The prosecutor applied for leave to appeal here, and defendant applied to cross-appeal. This Court denied both applications 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 (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 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 (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?
[300]*300A. 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 [301]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People of Michigan v. Thaddeus Cortrez Wilson
Michigan Court of Appeals, 2025
People of Michigan v. Seth Torrese Lipscomb
Michigan Court of Appeals, 2025
Kenneth Alan Gupton v. Lynnette Gupton
Michigan Court of Appeals, 2025
20231130_C362470_87_362470.Opn.Pdf
Michigan Court of Appeals, 2023
In Re J L Janose Minor
Michigan Court of Appeals, 2023
People of Michigan v. Saad Arbabe
Michigan Court of Appeals, 2023
People of Michigan v. Anthony James Dulaney
Michigan Court of Appeals, 2023
People of Michigan v. Percy Williams
Michigan Court of Appeals, 2023
People of Michigan v. Jason Scott Knuppenburg
Michigan Court of Appeals, 2023
In Re Catrell Javon Shelton
Michigan Court of Appeals, 2023
People of Michigan v. Ronnie Lamont Spears
Michigan Court of Appeals, 2023
People of Michigan v. Justin David Langsford
Michigan Court of Appeals, 2022
People of Michigan v. Nathaniel Ward
Michigan Court of Appeals, 2020
People of Michigan v. Romante Jomall Adams
Michigan Court of Appeals, 2020
People of Michigan v. Michael Germaine Burton
Michigan Court of Appeals, 2020
People of Michigan v. Dennis Ray Farmer Jr
Michigan Court of Appeals, 2020
People of Michigan v. Tyler Maliek Allen
Michigan Court of Appeals, 2020
People of Michigan v. Darrius Zarran Williams
Michigan Court of Appeals, 2020

Cite This Page — Counsel Stack

Bluebook (online)
817 N.W.2d 33, 491 Mich. 294, 2012 WL 1912195, 2012 Mich. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-buie-mich-2012.