PEOPLE OF MI V NICHOLAS A MECONIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
January 24, 2008
Wayne Circuit Court
LC No. 06-100055
NICHOLAS A. MECONI,
Advance Sheets Version
Before: Servitto, P.J., and Sawyer and Murray, JJ.
SAWYER, J. (concurring).
Although I agree with the result reached by the majority, and do not necessarily disagree
with its reasoning, I write separately because I believe we should address the substantive issue
raised. We are asked in this appeal to determine whether a crime victim may be sequestered
despite his or her right, under Const 1963, art 1, § 24(1) to be present at "trial and all other court
proceedings the accused has the right to attend." I would hold that a victim may not be
Defendant was charged with aggravated assault, MCL 750.81a, against his cousin, Nikki
Kleinsorge. At the outset of the bench trial in the 25th District Court, the trial court ordered that
the witnesses be sequestered. Although other witnesses left, Kleinsorge did not leave, apparently
on the advice of the crime victim's advocate. Kleinsorge's presence in the courtroom was not
discovered until after both the prosecutor and the defense attorney made their opening statements
and Kleinsorge was called as the prosecutor's first witness.
Defendant moved for a mistrial on the basis of the violation of the sequestration order,
arguing that the victim had heard the defense's opening statement and, therefore, was "prepared"
for her testimony. The trial court granted the mistrial. Thereafter, defendant moved to exclude
Kleinsorge's testimony at the new trial because, having heard the opening statement at the
original trial, she knew defendant's trial strategy, a description of the expected testimony of
defense witnesses, and other evidence defendant intended to introduce. The trial court granted
the motion, excluding Kleinsorge's testimony at trial. The prosecutor sought an interlocutory
appeal to the circuit court, which ultimately denied the prosecutor's application for leave to
appeal. This Court thereafter granted the prosecutor's application for leave to appeal in this
The sequestration of witnesses is addressed by both court rule and statute. First, MRE
615 provides as follows:
At the request of a party the court may order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person whose presence is
shown by a party to be essential to the presentation of the party's cause.
Next, MCL 780.761, which is part of the Crime Victim's Rights Act, specifically addresses the
issue of the sequestration of a victim who will be called as a witness:
The victim has the right to be present throughout the entire trial of the
defendant, unless the victim is going to be called as a witness. If the victim is
going to be called as a witness, the court may, for good cause shown, order the
victim to be sequestered until the victim first testifies. The victim shall not be
sequestered after he or she first testifies.
There is little doubt that the trial court's order sequestering the victim before her testimony (i.e.,
during opening statements) was consistent with both the rule of evidence and the statute. But the
inquiry does not end there because there is also a constitutional provision establishing certain
rights for the victims of crime.
Const 1963, art 1, § 24 provides in pertinent part as follows:
(1) Crime victims, as defined by law, shall have the following rights, as
provided by law:
* * *
The right to attend trial and all other court proceedings the accused has the
right to attend.
* * *
(2) The legislature may provide by law for the enforcement of this section.
This constitutional provision clearly grants the victim the right to be present at the entire trial to
the same extent that the defendant is so entitled. And it is undisputed that a defendant has the
right to be present during opening statements. The question before us then becomes whether the
grant of authority to the legislature to "provide by law" for the enforcement of the constitutional
provision carries with it the grant of authority to restrict the otherwise absolute grant of a right to
the victim to be present during the entire trial. I conclude that it does not.
Defendant first argues that the constitutional provision does not authorize a victim to
disobey a sequestration order. This argument, however, is backwards. The question is not
whether the constitution authorizes a violation of a sequestration order, but whether a statute or
court rule may authorize sequestration despite the constitutional provision.
Defendant next argues that the impingement on the victim's right to attend the trial
caused by the sequestration was minimal as opening statements took less than four minutes. Not
only does this argument overlook the fact that in many cases the exclusion would be longer than
four minutes, it also overlooks the fact that the constitution grants a right to the victim to be
present during all proceedings, not almost all proceedings or all but four minutes of the
Defendant also argues that the prosecutor's argument ignores the fact that MCL 780.761
expressly authorizes sequestration of the victim before the victim's testimony. Defendant argues
that there can be no violation of the constitution because the sequestration order is authorized by
statute. I am not aware of any authority, nor does defendant cite any authority, for the
proposition that a constitutional provision may be violated if such violation is authorized by
statute. Indeed, as Justice Taylor observed in People v Moore, 470 Mich 56, 81 n 3; 679 NW2d
41 (2004) (Taylor, J., dissenting), it is "a fundamental axiom of American law, rooted in our
history as a people and requiring no citations to authority, that the requirements of the
Constitution prevail over a statute in the event of a conflict." See also Marbury v Madison, 5 US
(1 Cranch) 137, 177; 2 L Ed 60 (1803) ("an act of the legislature, repugnant to the constitution, is
Similarly, defendant's argument that there could be no violation of the victim's rights
because the prosecutor expressly agreed to the sequestration order is without merit. There is no
provision in Const 1963, art 1, § 24 for the prosecutor to waive the victim's right to attend the
trial. The right of the victim to attend the trial belongs to the victim, not the prosecutor.
Therefore, it is the victim, not the prosecutor, who may waive that right. And there is no
indication in this case that the victim waived her right to attend the entire trial.
This, then, brings us back to the question we originally posed: Does Const 1963, art 1, §
24, by its own terms, authorize the Legislature to restrict the victim's right to attend the entire
trial? Questions of constitutional and statutory interpretation are both questions of law that are
reviewed de novo. People v McCuller, 479 Mich 672, 681; 739 NW2d 563 (2007). Although
defendant never squarely addresses this issue in his brief, I believe that we must address it given
the importance of this issue. And, in doing so, I reject the conclusion that MCL 780.761 validly
grants the trial court the authority to sequester the victim.
Const 1963, art 1, § 24(2) grants the Legislature the authority to "provide by law for the
enforcement of this section." As always, to interpret the meaning of the constitution, we first
look to the words actually used in the constitution. That is, we look to the plain meaning of the
words used, as the people would understand them at the time of ratification. Co Rd Ass'n of
Michigan v Governor, 474 Mich 11, 15; 705 NW2d 680 (2005). The provision at issue here
clearly and unambiguously authorizes the Legislature to enact legislation to enforce the
constitutional provision. There is no grant of authority to diminish the constitutional right. The
primary definition of "enforce" is "to put or keep in force; compel obedience to." Random
House Webster's College Dictionary (2000). The Legislature's authorizing a trial judge to
exclude a victim from a portion of the trial hardly compels obedience to a constitutional
provision that grants the victim the right to attend the entire trial.
Rather, the clearer and more logical interpretation of § 24(2) is that the Legislature is
authorized to enact laws that enforce and uphold the various rights granted in § 24(1). For
example, among the other rights granted in § 24(1), the victim has the right to be informed of the
defendant's release from incarceration. Section 24(2) presumably authorizes the Legislature to
enact a statute that determines who is obligated to inform the victim of the defendant's release,
how that notice is to be given to the victim, and when that information is to be given to the
victim. In short, the Legislature is constitutionally tasked with the job of implementing the rights
granted in § 24, not defining them.
Finally, defendant argues that the victim's presence during opening statements violated
his due process rights under the federal constitution. Defendant cites no authority that
establishes a federal constitutional right for a criminal defendant to have the prosecution
witnesses sequestered. The prosecutor, on the other hand, provides ample authority for the
proposition that a failure to sequester witnesses is not, by itself, a due process violation. See,
e.g., Bell v Duckworth, 861 F2d 169 (CA 7, 1988), and State v Beltran-Felix, 922 P2d 30 (Utah
In sum, I conclude that Const 1963, art 1, § 24(1) grants the victim the right to be present
at the entire trial to the same extent that the defendant has a right to be present. This includes the
right to be present at portions of the trial that occur before the victim testifies, including opening
statements. This constitutional right cannot be limited by statute and is not limited by the federal
constitution. Accordingly, the trial court erred in ruling that Kleinsorge cannot testify at trial
because Kleinsorge cannot be sequestered from any portion of the trial (or at least not from those
portions that defendant has a right to attend).
/s/ David H. Sawyer