The Michigan Court of Appeals was presented with a case that involved the testimony of non-victim witnesses by way of two-way interactive video technology. The issue before the Court was whether this use of such two-way interactive video testimony violated the defendant’s confrontation rights at trial. This issue was a question of first impression in Michigan.

More specifically, Defendant appealed as of right jury trial convictions of first-degree criminal sexual conduct (CSC) with a person under the age of 13, and possession of a firearm during the commission of a felony. The trial court sentenced the defendant as an habitual offender, fourth offense to life imprisonment for his CSC convictions and two years imprisonment for his felony-firearm conviction. Dr. Vincent Palusci and Dr. Rodney Wolfarth testified on behalf of the People via two-way interactive video technology at the trial.

The Michigan Court of Appeals noted that the United States Supreme Court and the Michigan Court of Appeals have recognized that the right of the accused to meet witnesses face-to-face is not absolute and the Confrontation Clause simply “reflects a preference for face-to-face confrontation at trial.” See, Maryland v. Craig, 497 US 836 (1990); People v. Pesquera, 244 Mich. App. 305 (2001). This preference “must occasionally give way to considerations of public policy and the necessities of the case.” the case.”

In Craig, supra, the United States Supreme Court held that allowing the testimony of a child witness, who was alleged to be a victim of abuse, via one-way closed circuit television did not violate the defendant’s right to confrontation because the procedure adequately protected the other elements of the Confrontation clause: the oath, the cross-examination, and the ability of the trier of fact to view the demeanor of the witness. The Craig Court however, stated that this procedure may only be used if the prosecution shows it is “necessary to further an important state issue.” Therefore, if the prosecution wishes to have a child testify in such a manner, the trial court must hear evidence and make a case-specific finding that the procedure is necessary.

Like the United States Supreme Court, the Michigan Courts have recognized that presenting testimony over closed-circuit television did not violate the defendant’s right to confrontation. Pesquera, supra.

The Buie Court adopted the Craig test to determine whether a trial court infringes on a defendant’s right to confrontation when it allows witness testimony to be taken through two-way interactive video technology. The Court ruled that the 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 to confrontation and that it preserves all of the other elements of the Confrontation Clause.

The Court concluded that “Given the absence of record evidence or any findings by the trial court regarding the necessity of the video-conferencing procedure implemented in this case, we cannot determine whether the defendant’s constitutional right of confrontation was violated.” The Court remanded the case back to the lower court to hear evidence and make case specific findings as to whether the procedure was necessary to further public policy or a state interest important enough to outweigh defendant’s constitutional rights. Further, the Court held it was not proper for the lower court to take the witnesses’ testimony via two-way interactive video technology pursuant to MCR 6.006(C)(2).

The Court remanded for further proceedings consistent with their opinion and the Court’s accompanying order.

People v. Buie, case no. 278732, released August 25, 2009.

Editor’s Note: The Prosecutor is going to seek review in the Supreme Court. The Buie decision should not have any affect on cases that involve the testimony of witnesses at a preliminary examination or evidentiary hearing (i.e. Daubert), or any other miscellaneous hearings, as the defendant’s right of confrontation does not apply at these hearings. Additionally, please note that pursuant to MCLA 766.11a and MCR 6.006(B)(C), it is strongly encouraged that video technology be utilized where it is available, especially if it involves the testimony of the MSP Laboratory Experts.

The defendant appealed as of right his jury trial convictions of operating a motor vehicle while intoxicated, third offense, operating a motor vehicle while license suspended, and possession of an open alcohol container in a motor vehicle.

This case arises from a police stop of the defendant while he was driving his motor home on January 15, 2007 in the snow. While traveling along I-75 southbound, Officer Chamberlain noticed tire tracks that were traveling from the extreme right hand to the extreme left hand side of the road, covering both lanes of travel. Another officer, Officer Williams followed the tracks off I-75 and then continued to follow the tracks in order to catch up with the vehicle that was leaving them to determine why that vehicle was weaving in the roadway. Officer Williams caught up with the defendant’s vehicle, when he observed it halfway across the center of the roadway.

At his first contact with the defendant, Officer Williams smelled intoxicants, observed slurred speech, and also observed the defendant perform poorly on his sobriety tests. Officer Williams testified that he was aware that a diabetic may sometimes appear intoxicated based on blood sugar issues and that he was aware the defendant was diabetic because the defendant told him so.

Later during the stop, Officers Williams and Chamberlain entered defendant’s motor home after the defendant said he was cold. The officers noticed a brown paper bag directly to the right of the driver’s seat with a six-pack of beer inside it. There were four empty bottles, while the fifth bottle was three quarters empty, and the sixth was unopened. There were also beer cans in the sink that defendant claimed were his daughter’s from a previous night. It was at this time the officers arrested the defendant.

A sample of the defendant’s blood was taken. The blood test revealed that defendant’s blood alcohol content was 0.13 grams per one hundred milliliters of blood. The defendant filed a motion to suppress his blood sample and the blood test results, arguing that his Fourth Amendment rights were violated because his consent to the blood draw was the product of coercion when the police incorrectly told him that the implied consent statute still applied to him even though he had diabetes. The trial court denied the defendant’s motion to suppress, concluding that although defendant had been improperly informed about the consequences of his refusal to take a blood test because he was a diabetic, his alcohol content would have been inevitably discovered had the officer followed the correct procedure.

The court of appeals disagreed with the trial court’s ruling. The court noted that Officer Williams was unaware of the diabetes exception for a blood withdrawal under the implied consent statute. Therefore, Officer Williams erroneously instructed the defendant that if he refused to provide a blood sample, the license suspension consequences under MCL 257.625a(6) (b)(v) would apply. Based on this incorrect information, the defendant consented to providing a blood sample. The police did not obtain a search warrant nor take any steps to do so.

As to the issue of inevitable discovery, the court stated that “based on the facts here, there was an independent legal means to obtain the evidence by securing a search warrant. To allow a warrantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement.” The Court concluded that, because no application of the inevitable discovery doctrine saves the warrantless search, the trial court should have suppressed the evidence of the defendant’s blood alcohol.

The case was reversed and remanded for entry of an order vacating defendant’s OWI conviction under the theory that he operated a vehicle with a bodily alcohol content of 0.08% or more.

People v. Hyde, case no. 282782, released September 1, 2009.