PEOPLE OF MI V NICHOLAS A MECONI

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION January 24, 2008 9:05 a.m. Plaintiff-Appellant, v No. 273040 Wayne Circuit Court LC No. 06-100055 NICHOLAS A. MECONI, Defendant-Appellee. 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 involuntarily sequestered. 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 Court. -1- 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 -2- 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 proceedings. 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 void"). 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 -3- 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 App, 1996). 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 -4-