PEOPLE OF MI V RONALD CARL ROSE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 1, 2010
APPROVED FOR
PUBLICATION
August 26, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 290936
Allegan Circuit Court
LC No. 07-015359-FC
RONALD CARL ROSE,
Defendant-Appellant.
Before: MURRAY, P.J., and SAAD and M. J. KELLY, JJ.
PER CURIAM.
Defendant Ronald Carl Rose appeals as of right his convictions by a jury of four counts
of criminal sexual conduct in the first degree, MCL 750.520b, and two counts of disseminating
sexually explicit matter to a minor, MCL 722.675. The trial court sentenced defendant to serve
25 years to 50 years in prison for each of his convictions of criminal sexual conduct in the first
degree and to serve 16 months to 24 months in prison for each of his convictions of
disseminating sexually explicit matter to a minor. The court ordered that the sentences be served
concurrently and with 50 days credit on each. Because we conclude that there were no errors
warranting relief, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
The present case has its origins in allegations of sexual abuse by JB against her older
sister’s husband, Ronald Rose. JB is the youngest of five children. At the time of the trial, JB
was eight years old. JB has a brother, RB, who is approximately two years older than her and
has three older sisters who were each in their early twenties at the time of the trial. Rose’s wife
is JB’s oldest sister.
Rose and his wife had a home within 5 to 6 miles of JB’s parent’s home in Allegan
County. Although RB and JB lived with their parents, they spent a significant amount of time at
Rose’s home and often stayed over night. In June 2007, JB revealed to her mother that Rose had
been sexually assaulting her for some time. After JB’s revelations, RB also indicated that Rose
had exposed him to pornography and touched him inappropriately.
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The prosecutor charged Rose with eight separate crimes on the basis of these revelations.
The first four counts were for criminal sexual conduct in the first degree committed against JB:
one count for digital-vaginal penetration, one count for penile-vaginal penetration, one count for
penile-oral penetration, and one count for penile-anal penetration. The prosecutor also charged
Rose with accosting a minor for immoral purposes and with criminal sexual conduct in the
second degree. At trial, the prosecutor argued that the accosting charge was founded on Rose’s
provision of alcohol to JB and that the criminal sexual conduct in the second degree charge was
founded on Rose’s touching of JB’s chest. However, the prosecutor agreed to dismiss these
charges after the close of her proofs because JB did not testify that Rose provided her with
alcohol or touched her chest. The last two charges were for disseminating sexually explicit
matter to JB and RB.
JB testified at trial about the timing and location of the abuse that she suffered. She said
that the abuse occurred at Rose’s house in the bedroom and living room. Sometimes her older
sister was home and sometime she was even in the same room, but she did not see the abuse
because she was asleep when “we did it in the back room.” Sometimes the abuse occurred at
night and sometimes during the morning.
She also described the nature of the abuse. She said Rose put his private part by her
private part—by both the “back and the front.” She said he tried to put his private into her front
private but it just did not work and she told him it hurt. She said she was sideways on the bed
and that white stuff came out of his private part and got on her leg and the bed. JB said that Rose
“put his private in the back while I was on my stomach.” She said he put it in her “bottom, but it
didn’t go all the way in.” It hurt and she told him. She said she knew that the white stuff came
out again because she could feel it on her leg. She said that, a lot of times, he put his private into
where her poop comes.
She also testified that sometimes Rose would touch her front private with his fingers.
She said he tried to make his finger go in, but it hurt. In addition, he made her put her “mouth on
him” more than once. Sometimes he would touch it while she put her mouth on it and would
move it in her mouth. He was lying on his back on the bed and she was on her knees.
Finally, JB testified that Rose would sometimes show her and her brother movies: “They
had girls on it and that had the exact same thing that he did to me.” He also showed them
magazines with people with no clothes on. Rose told her that the movies were about having sex
and would watch the movies with her and RB. He also sometimes had the movies on while he
was doing stuff to her.
RB also testified at trial. He said he did not like going over to his older sister’s house
when Rose was there because he would show them bad stuff—videos and magazines with naked
people. He would put the videos on and the people would have sex. RB said that Rose told them
that the videos showed how babies were made. Sometimes Rose would play with his penis in
front of them. Rose would have his pants half way down and would move his penis up and
down. RB said that his older sister was never home when this happened.
Rose’s defense was that he had been wrongfully accused. Specifically, he presented
testimony—including the testimony of two of JB’s older sisters—that suggested that JB’s mother
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caused JB and RB to fabricate the allegations in an effort to break-up the marriage between Rose
and JB’s older sister.
The jury rejected Rose’s defense and returned a verdict of guilty on each of the six
remaining counts.
In October 2008, Rose moved for an evidentiary hearing or new trial. In his motion,
Rose argued that he was deprived of a fair trial when his trial counsel failed to timely object to
the prosecution’s failure to produce a written summary of the proposed testimony by its expert
on child sexual abuse dynamics. He also argued that his counsel unreasonably failed to call an
expert to rebut the medical testimony at trial. He also claimed that his trial counsel unreasonably
failed to call a rebuttal witness, GA, who would have testified that JB’s father told her that he
knew that Rose had done nothing wrong. Rose also argued that there was evidence that one of
the juror’s knew JB’s aunts, GA and LB, as well as her uncle, BB. Rose alleged that this juror
worked with BB and may have heard things about the case at work. For these reasons, Rose
asked the trial court to order hearings on the issues or grant a new trial.
In February 2009, the trial court issued an opinion and order denying Rose’s motion for a
new trial. The trial court determined that the evidence did not demonstrate grounds for relief on
the basis of a juror’s limited knowledge of a single witness, GA, who did not actually testify at
trial. Further, the court noted that the affidavits attached by Rose in support of his motion did
not show that the juror had engaged in misconduct. Rather, the affidavits established the mere
possibility that he might have been exposed to prejudicial remarks. This evidence, the trial court
concluded, was insufficient to warrant relief.
This appeal followed.
I. USE OF A WITNESS SCREEN
A. STANDARDS OF REVIEW
Rose first argues that the trial court violated his rights under the state and federal
constitutions, as well as MCL 600.2163a, when it permitted JB to testify from behind a screen
that prevented her from being able to see Rose even though he could see her. Rose contends that
the use of a witness screen is inherently prejudicial and that the United States Supreme Court has
specifically disavowed the use of one-way screens to prevent a witness from being able to see a
defendant. He also argues that the trial court failed to make the necessary findings in order to
use the alternate procedures permitted under MCL 600.2163a and, in any event, the use of a
screen is not permitted under that statute.
This Court reviews de novo questions of constitutional law such as the right to confront
witnesses. People v Bryant, 483 Mich 132, 138; 768 NW2d 65 (2008). However, this Court
reviews the trial court’s findings of fact underlying the application of constitutional law for clear
error. See People v Oliver, 464 Mich 184, 191; 627 NW2d 297 (2001). This Court also reviews
de novo the proper interpretation of a statute. People v Martin, 271 Mich App 280, 286-287; 721
NW2d 815 (2006).
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B. THE TRIAL COURT’S FINDINGS
On the first day of trial, the prosecutor moved for permission to use a screen during JB’s
testimony. The prosecutor stated that she made the motion because JB indicated that she was
afraid to testify in Rose’s presence. The trial court agreed to take testimony from JB’s therapist.
Jill VanderBent testified that she supervised nine therapists for Bethany Christian
Services and that she also counseled JB. VanderBent stated that she was treating JB for
symptoms related to trauma including nightmares, bed-wetting, difficulty concentrating, zoning
out, and anger outbursts. JB had also expressed fear about having to come and testify in court—
that she did not want to see Rose and “was very fearful.” She even stated that she feared that she
could not testify in his presence. VanderBent stated that it was her opinion that testifying faceto-face might trigger some traumatic experiences and cause “numbing, shutting down, not being
able to speak even.” She opined that if JB were to see Rose it could be traumatic for her, but that
the use of a screen that would permit others to see her without JB being able to see Rose would
sufficiently safeguard her emotional and psychological well-being. Further, when asked whether
JB “would be psychologically and emotionally unable to testify if we didn’t have some sort of
protection that goes beyond re-configuring the courtroom,” VanderBent opined that it was “a
likely possibility.”
On cross-examination, VanderBent continued to assert the high potential for harm if JB
were forced to testify face-to-face with Rose:
Q.
Okay. Now, what do you predict for her mental health if she testifies? Or
that she won’t be able to testify or that she’ll be harmed? Can you clarify that?
A.
Sure. The concern is that [JB] specifically because she had indicated to
me that she’s very fearful of seeing the defendant. If she has to testify in his
presence there’s concern that that would be a trigger for her which could cause
her to exhibit some of these symptoms I had expressed; the numbing out, spacing
out and possibly not even being able to speak.
Q.
Is she able to articulate this fear clearly?
A.
Yes.
Q.
Does she exhibit any symptoms of fear?
A.
Yes. She’s very fearful, very shaky, talks about being very nervous,
stomach aches.
Q.
This is related to testifying?
A.
In front of the defendant.
Q.
Specifically in front of the defendant.
A.
Correct.
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Q.
Would she suffer any permanent emotional damage do you think?
A.
That’s hard to say.
***
Q.
Is there any particularly heightened effect on [JB] of testifying versus say
any other witness in a traumatic case?
A.
Well I think the difference in this particular case is that [JB] has expressed
this fear of being in front of face to face to the defendant. Some, you know, it
varies based on the child. However, because she has verbally expressed that this
is very scary for her, shows me that this is something we need to try to prevent her
from being so fearful. Because if she’s too fearful and she becomes—her stress
arousal happens, she’s going to have a very difficult time expressing, verbalizing
and accessing her memories.
Rose’s trial counsel objected to the prosecutor’s motion for permission to use a screen on
the grounds that the prosecution had not established the burden under MCL 600.2163a and
because the use of the screen violated Rose’s right to confront JB and was otherwise prejudicial.
Nevertheless, Rose’s trial counsel also argued that the trial court had to use the burden
established under MCL 600.2163a when deciding whether to use a screen: “The defendant
asserts that that is the correct standard for the use of a witness screen. It would be the same for
video recorded deposition testimony.” Rose’s trial counsel also did not suggest any alternatives
to the use of the screen, such as the methods stated under MCL 600.2163a(3), (4), (14), (16), or
(17).
After hearing the parties’ arguments, the trial court found that there was “a high
likelihood” that testifying face-to-face with Rose would cause JB to “regress in her therapy, have
psychological damage” and could cause her “to possibly not testify.” For that reason, the trial
court concluded that the criteria under MCL 600.2163a had been met and that it was necessary to
use a screen to protect the welfare of the child. The trial court also determined that Rose’s rights
would be adequately protected because he would be able to see JB, as would the jury, and he
would be able to cross-examine her.
C. MCL 600.2163a
In this case, the trial court relied on MCL 600.2163a for the authority to use a witness
screen. Under MCL 600.2163a(15), if the trial court finds, upon the motion of a party, that “the
special arrangements specified in subsection (16) are necessary to protect the welfare of the
witness, the court shall order those special arrangements.” The special arrangements listed under
subsection 16 include excluding unnecessary persons from the courtroom during the witness’
testimony, rearranging the courtroom to move the defendant as far from the witness stand as
reasonable, and using a questioner’s stand or podium. MCL 600.2163a(16). If the court finds
that the witness will be psychologically or emotionally unable to testify even with the benefits of
the protections afforded under subsections (3), (4), (14), and (16), the court shall order the video
recorded deposition of the witness in lieu of live testimony. MCL 600.2163a(17).
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On appeal, Rose argues that the trial court erred to the extent that it relied on MCL
600.2163a because it failed to make the necessary findings under that statute and because the
statute does not specifically permit the use of witness screens.
As noted, MCL 600.2163a requires the trial court to employ very specific protections and
none of these protections includes the use of a witness screen. Thus, the trial court could not
properly rely on MCL 600.2163a. Nevertheless, the trial court’s erroneous reliance on MCL
600.2163a does not necessarily warrant relief. See People v Burton, 219 Mich App 278, 287;
556 NW2d 201 (1996) (“Additionally, even if it were error to apply the statute, it does not
necessarily follow that defendant’s right to confrontation was violated.”). The Legislature
provided that the protections afforded under MCL 600.2163a were “in addition to other
protections or procedures afforded to a witness by law or court rule.” MCL 600.2163a(19).
Accordingly, while trial courts may rely on MCL 600.2163a to afford witnesses certain
protections, the existence of this statute does not preclude trial courts from using alternate
procedures permitted by law or court rule to protect witnesses. And trial courts have long had
the inherent authority to control their courtrooms, which includes the authority to control the
mode and order by which witnesses are interrogated. MRE 611(a); People v Banks, 249 Mich
App 247, 256; 642 NW2d 351 (2002) (“It is well settled in Michigan that a trial court has broad
discretion in controlling the course of a trial.”). This inherent authority also includes the ability
to employ procedures that limit a defendant’s right to confront his accusers face-to-face even
when the provisions of MCL 600.2163a do not apply. See Burton, 219 Mich App at 287-291.
Thus, the trial court’s erroneous reliance on MCL 600.2163a does not itself warrant relief.
Rather, the relevant inquiry is whether the trial court’s decision to use a witness screen violated
Rose’s Sixth Amendment right to confront JB or violated Rose’s basic right to due process and a
fair trial. See Id. at 287.
D. THE RIGHT TO CONFRONT WITNESSES FACE-TO-FACE
The United States Supreme Court first addressed whether the use of a screen to shield a
witness from viewing the defendant while testifying violated the defendant’s constitutional right
to confront the witnesses against him in Coy v Iowa, 487 US 1012; 108 S Ct 2798; 101 L Ed 2d
857 (1988). In Coy, the defendant was arrested and charged with sexually assaulting two 13year-old girls while they were camping in their backyard. Id. at 1014. On the prosecutor’s
motion, the trial court permitted the complaining witnesses to testify from behind a screen. With
adjustments to the lighting in the courtroom, the defendant could dimly see the witnesses, but the
witnesses could not see the defendant. Id. at 1014-1015. On appeal to the Supreme Court, the
defendant argued that the trial court violated his constitutional rights by permitting the screen
because the Confrontation Clause gave him the right to face-to-face confrontation and because
the screen eroded the presumption of innocence. Id. at 1015.
Justice SCALIA, writing the majority opinion, noted that the Supreme Court has “never
doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with
witnesses appearing before the trier of fact.” Id. at 1016. He explained that the perception that
confrontation is essential to fairness “has persisted over the centuries” because “it is always more
difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Id. at 1019. Moreover,
Justice SCALIA opined that the benefits of face-to-face confrontation outweighed the potential
harms to the witness:
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Thus the right to face-to-face confrontation serves much the same purpose as a
less explicit component of the Confrontation Clause that we have had more
frequent occasion to discuss—the right to cross-examine the accuser; both
“ensur[e] the integrity of the factfinding process.” The State can hardly gainsay
the profound effect upon a witness of standing in the presence of the person the
witness accuses, since that is the very phenomenon it relies upon to establish the
potential “trauma” that allegedly justified the extraordinary procedure in the
present case. That face-to-face presence may, unfortunately, upset the truthful
rape victim or abused child; but by the same token it may confound and undo the
false accuser, or reveal the child coached by a malevolent adult. It is a truism that
constitutional protections have costs. [Id. at 1019-1020 (citations omitted).]
Turning to the facts in the case before the Court, Justice SCALIA stated that it was
“difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-toface encounter.” Id. at 1020. Although he acknowledged that the Court had in the past stated
that the right to confront witnesses was not absolute, Justice SCALIA differentiated those prior
holdings on the ground that they did not involve the literal meaning of the Confrontation Clause:
“To hold that our determination of what implications are reasonable must take into account other
important interests is not the same as holding that we can identify exceptions, in light of other
important interests, to the irreducible literal meaning of the Clause: ‘a right to meet face to face
all those who appear and give evidence at trial.’” Id. at 1020-1021 (citation omitted).
Justice SCALIA did leave open the possibility that there might be exceptions to the right to
face-to-face confrontation. Id. at 1021. Such an exception, he opined, would “surely be allowed
only when necessary to further an important public policy.” Id. However, such an exception
was not established through a “legislatively imposed presumption of trauma.” Id. Rather,
because there had been no “individualized findings that these particular witnesses needed special
protection, the judgment here could not be sustained by any conceivable exception.” Id. For
these reasons, the Court reversed the judgment of the Iowa Supreme Court and remanded the
case for a harmless error review. Id. at 1022.
Although Justice O’CONNOR was one of the six justices who signed Justice SCALIA’S
opinion, she wrote a concurrence to clarify that the use of procedures “designed to shield a child
witness from the trauma of courtroom testimony” might be permissible under facts different than
those present in the case before the Court. Id. at 1022. Justice O’CONNOR acknowledged that
the Confrontation Clause generally required that a witness face the defendant. However, she
explained that this requirement was not absolute:
But it is also not novel to recognize that a defendant’s “right physically to face
those who testify against him,” even if located at the “core” of the Confrontation
Clause, is not absolute, and I reject any suggestion to the contrary in the Court’s
opinion. Rather, the Court has time and again stated that the Clause “reflects a
preference for face-to-face confrontation at trial,” and expressly recognized that
this preference may be overcome in a particular case if close examination of
“competing interests” so warrants. [Id. at 1024 (citations omitted).]
Justice O’CONNOR went on to state that she would permit the use of a particular trial
procedure that called for something other than face-to-face confrontation if that procedure were
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necessary to further “an important public policy.” Id. at 1025. Moreover, although a mere
generalized legislative finding of necessity is insufficient to establish such a necessity, where a
court “makes a case-specific finding of necessity, as is required by a number of state statutes, our
cases suggest that the strictures of the Confrontation Clause may give way to the compelling
state interest of protecting child witnesses.” Id. at 1025 (citations omitted).
Almost two years to the day after the decision in Coy, the United States Supreme Court
clarified whether and to what extent there were exceptions to a defendant’s right to confront
witnesses face-to-face. See Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666
(1990). In Craig, the defendant was charged with physically and sexually abusing a six-year-old
girl who attended a kindergarten and prekindergarten center owned and operated by the
defendant. Id. at 840. Before trial, the State moved to permit the child to testify via one-way
closed circuit television. Id. The trial court permitted the use of this procedure after first taking
evidence and finding, as required under the relevant state statute, that the child witness and other
child witnesses would suffer serious emotional distress such that the children would not be able
to reasonably communicate. Id. at 842-843. The state court of appeals reversed the defendant’s
convictions because the State’s showing of necessity was insufficient under the decision in Coy.
Id. at 843.
Writing for the majority, Justice O’CONNOR noted that the right guaranteed by the
Confrontation Clause insures not only a personal examination of the witness, but also that the
witness will testify under oath, be subject to cross-examination, and that the jury will have the
opportunity to observe the witness’ demeanor. Id. at 845-846. She explained that the benefits
conferred by this right could not be reduced to any one element of confrontation:
The combined effect of these elements of confrontation—physical presence, oath,
cross-examination, and observation of demeanor by the trier of fact—serves the
purposes of the Confrontation Clause by ensuring that evidence admitted against
an accused is reliable and subject to the rigorous adversarial testing that is the
norm of Anglo-American criminal proceedings. [Id. at 846.]
This was even true of the core value of the Confrontation Clause—the right to face-to-face
confrontation. Id. at 847 (“[W]e have nevertheless recognized that [face-to-face confrontation] is
not the sine qua non of the confrontation right.”). “For this reason, we have never insisted on an
actual face-to-face encounter at trial in every instance in which testimony is admitted against a
defendant.” Id. Rather, “[a]s suggested in Coy, our precedents confirm that a defendant’s right
to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at
trial only where denial of such confrontation is necessary to further an important public policy
and only where the reliability of the testimony is otherwise assured.” Id. at 850.
Turning to Maryland’s statutory procedure, Justice O’CONNOR noted that it did prevent a
child witness from seeing the defendant as he or she testifies. However, she found it significant
that the remaining elements of the confrontation right were preserved: “The child witness must
be competent to testify and must testify under oath; the defendant retains full opportunity for
contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit
by video monitor) the demeanor (and body) of the witness as he or she testifies.” Id. at 851. The
presence of these elements “adequately ensures that the testimony is both reliable and subject to
rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person
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testimony.” Id. Because the procedure left sufficient safeguards in place, where the use of the
procedure is necessary to further an important state interest, its use will “not impinge upon the
truth-seeking or symbolic purposes of the Confrontation Clause.” Id. at 852. Therefore, Justice
O’CONNOR stated, the critical inquiry is whether use of the procedure was necessary to further an
important state interest. Id.
Justice O’CONNOR reiterated that the Court had already recognized that the States have a
compelling interest in protecting minor victims of sex crimes from further trauma and
embarrassment. Id. And, on a similar basis, she concluded that a “State’s interest in the physical
and psychological well-being of child abuse victims may be sufficiently important to outweigh,
at least in some cases, a defendant’s right to face his or her accusers in court.” Id. at 853. But
the State may not limit face-to-face confrontation unless the State makes an adequate showing of
necessity. Id. at 855. The requisite finding is case-specific; the trial court must hear evidence
and determine whether the procedure “is necessary to protect the welfare of the particular child
witness who seeks to testify.” Id. In order to warrant dispensing with face-to-face confrontation,
the trial court must find that the emotional distress suffered by the child was both caused by the
presence of the defendant and is more than a de minimis distress caused by nervousness,
excitement, or reluctance to testify. Id. at 856. Applying these standards to the Maryland
procedure, Justice O’CONNOR determined that the statute’s requirement that the trial court find
that the child would suffer serious emotional distress such that the child would not reasonably be
able to communicate met the necessity requirements and, for that reason, was consonant with the
Confrontation Clause. Id. at 856-857.
Since the decision in Craig, this Court has adopted the test stated in Craig and
determined that trial courts may limit a defendant’s right to face his accuser in person and in the
same courtroom. See Burton, 219 Mich App at 289 (holding that the trial court did not err when
it permitted a mentally and physically challenged adult who was brutally physically and sexually
assaulted to testify via close circuit television even though the witness did not meet the
requirements of MCL 600.2163a); People v Pesquera, 244 Mich App 305, 309-314; 625 NW2d
407 (2001) (holding that the trial court properly allowed the child victims of sexual assault—
ranging in age from 4 to 6—to give videotaped depositions in lieu of live testimony under MCL
600.2163a); see also People v Buie, 285 Mich App 401, 408-410, 415; 775 NW2d 817 (2009)
(adopting the test stated in Craig for determining whether a trial court may permit an expert
witness to testify by way of videoconferencing). In order to warrant the use of a procedure that
limits a defendant’s right to confront his accusers face-to-face, the trial court must first determine
that the procedure is necessary to further an important state interest. Burton, 219 Mich App at
288. The trial court must then hear evidence and determine whether the use of the procedure is
necessary to protect the witness. Id. at 290. In order to find that the procedure is necessary, the
court must find that the witness would be traumatized by the presence of the defendant and that
the emotional distress would be more than de minimis. Id.
In this case, the trial court clearly found that the use of the witness screen was necessary
to protect JB when it invoked MCL 600.2163a and stated that it was “necessary to permit this to
protect the welfare of this child.” In making its findings, the trial court also clearly referenced
the fact that JB expressed fear of Rose and that, given her age, the nature of the offenses, and her
therapist’s testimony, there was “a high likelihood” that testifying face-to-face with Rose would
cause her to “regress in her therapy, have psychological damage” and could cause her “to
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possibly not testify.” These findings were sufficient to warrant limiting Rose’s ability to
confront JB face-to-face. See Craig, 497 US at 856-857. In addition, aside from JB’s inability
to see Rose, the use of the witness screen otherwise preserved the other elements of the
confrontation right and, therefore, adequately ensured the reliability of the truth-seeking process.
Id. at 851-852. Consequently, the trial court’s decision to permit JB to testify with the witness
screen did not violate Rose’s right to confront the witnesses against him.
E. DUE PROCESS AND THE PRESUMPTION OF INNOCENCE
We shall next address Rose’s argument that the use of the witness screen was inherently
prejudicial and violated his right to due process. Every defendant has a due process right to a
fair trial, which includes the right to be presumed innocent. Estelle v Williams, 425 US 501, 503;
96 S Ct 1691; 48 L Ed 2d 126 (1976). Under the presumption of innocence, guilt must be
determined solely on the basis of the evidence introduced at trial rather than on “official
suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.”
Holbrook v Flynn, 475 US 560, 567; 106 S Ct 1340; 89 L Ed 2d 525 (1986). For that reason,
courts must be alert to courtroom procedures or arrangements that might undermine the
presumption of innocence in the defendant’s favor. Estelle, 425 US at 503-504. However, not
every practice tending to single out the accused must be struck down. This is because the jurors
are understood to be “quite aware that the defendant appearing before them did not arrive there
by choice or happenstance.” Holbrook, 475 US at 567. Notwithstanding this, certain procedures
are deemed to be so inherently prejudicial that they are generally not permitted at trial. See
Illinois v Allen, 397 US 337, 344; 90 S Ct 1057; 25 L Ed 2d 353 (1970) (holding that “no person
should be tried while shackled and gagged except as a last resort.”); Estelle, 425 US at 504-505
(stating that it violates a defendant’s due process right to a fair trial to compel a defendant to
wear identifiable prison garb during trial). When determining whether a particular procedure is
inherently prejudicial, courts examine whether there is an unacceptable risk that impermissible
factors will come into play. Holbrook, 475 US at 560; see also Estes v Texas, 381 US 532, 542543; 85 S Ct 1628; 14 L Ed 2d 543 (1965) (stating that questions of inherent prejudice arise
where “a procedure employed by the State involves such a probability that prejudice will result
that it is deemed inherently lacking in due process.”). One important factor in determining
whether a particular practice is inherently prejudicial is whether the practice gives rise primarily
to prejudicial inferences or whether it is possible for the jury to take a wider range of inferences
from the use of the procedure. Holbrook, 475 US at 569 (“While shackling and prison clothes
are unmistakable indications of the need to separate a defendant from the community at large, the
presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly
dangerous or culpable.”). Where a particular procedure is not inherently prejudicial, the
defendant bears the burden of showing that the procedure actually prejudiced his trial. Id. at 572.
However, where the procedure is inherently prejudicial, it will not be upheld if the procedure
was not necessary to further an essential state interest. Id. at 568-569.
Surprisingly few courts have had the opportunity to address whether the use of a screen is
inherently prejudicial under due process. As discussed above, the Court in Coy determined that
the use of a screen without particularized findings violated the defendant’s right to confront the
witnesses against him. The Court did not address whether the use of a screen is inherently
prejudicial under due process. However, in his dissent, Justice BLACKMUN did address this issue
and determined that the use of a screen was not inherently prejudicial:
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Unlike clothing the defendant in prison garb, Estelle v Williams, supra, or
having the defendant shackled and gagged, Illinois v Allen, 397 US 337, 344
(1970), using the screening device did not “brand [appellant] . . . ‘with an
unmistakable mark of guilt.’” See Holbrook v Flynn, 475 US at 571, quoting
Estelle v Williams, 425 US at 518 (BRENNAN, J., dissenting). A screen is not the
sort of trapping that generally is associated with those who have been convicted.
It is therefore unlikely that the use of the screen had a subconscious effect on the
jury’s attitude toward appellant. See 475 US at 570. [Coy, 487 US at 1034-1035
(BLACKMUN, J., dissenting).]
In contrast to this view, at least one state court has held that the use of a screen is
inherently prejudicial. See State v Parker, 276 Neb 661; 757 NW2d 7 (2008). The court in
Parker explained that the use of a large screen to shield the victim from the defendant’s view
might have caused the jury to conclude that the trial court placed the screen “because the court
believed her accusations were true.” Id. at 672. Even if this connection were discounted, the
court determined that there were no innocuous inferences that the jury could make concerning
the screen and numerous impermissible inferences:
Instead, more akin to prison garb or shackles, the screen acted as a dramatic
reminder of Parker’s position as the accused at trial. The scene presented of the
jurors watching Parker as he was forced to look onto a large panel instead of his
accuser makes palpable the marks of shame and guilt caused by this looming
presence in the courtroom. Nor can we ignore . . . the dramatic emphasis placed
by the screen upon the State’s key witness. In a case such as this, where the
jury’s assessment of the credibility of the accuser is so crucial, the risk of these
impermissible factors simply cannot be overlooked. [Id. at 673.]
We do not agree that the use of a screen is inherently prejudicial; rather, we agree with
Justice BLACKMUN’S conclusion that a screen is generally not the type of device that brands a
defendant with the mark of guilt, such as wearing prison garb or being shackled and gagged.
Coy, 487 US at 1034-1035 (BLACKMUN, J., dissenting). We also do not agree with the assertion
in Parker that the use of the screen can never be associated with innocuous events or give rise to
a wider range of inferences beyond prejudicial ones. Parker, 276 Neb at 673; Holbrook, 475 US
at 569 (noting that the presence of guards does not necessarily give rise to impermissible
inferences). Although a juror might conclude that the witness fears the defendant because the
defendant actually harmed the witness, a reasonable juror might also conclude that the witness
fears to look upon the defendant because the witness is not testifying truthfully. A reasonable
juror could also conclude that the screen is being used to calm the witness’ general anxiety about
testifying rather than out of fear of the defendant in particular. Likewise, any time a child victim
testifies against a defendant who is accused of harming the child victim, the jury is going to
reasonably infer that the child has some fear of the defendant. Finally, there are a variety of
different screens and screening techniques that may be employed to shield a victim from having
to see the defendant and, for that reason, the potential for prejudice will vary depending on the
particular screen or screening technique employed. Accordingly, we cannot conclude that the
use of a screen—no matter what its size or composition may be and no matter how it was
employed at trial—must in every case be presumed to prejudice the defendant. See Holbrook,
475 US at 569 (“However, ‘reason, principle, and common human experience,’ counsel against a
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presumption that any use of identifiable security guards in the courtroom is inherently
prejudicial. In view of the variety of ways in which such guards can be deployed, we believe
that a case-by-case approach is more appropriate.” [citation omitted]); see also Carey v
Musladin, 549 US 70; 127 S Ct 649; 166 L Ed 2d 482 (2006) (holding that state court did not
misapply federal law when it determined that it was not inherently prejudicial for members of the
public to wear buttons with the victim’s image during the trial).
Moreover, the evidence in this case does not support the conclusion that the screen
actually prejudiced Rose’s trial. There is no evidence in the record that discloses the screen’s
appearance—we do not know its size, shape, color, or the nature of the materials used. In
contrast to the court in Parker, this Court also has no record evidence as to how the screen was
stored in the courtroom or placed before JB testified. See Parker, 276 Neb at 672 (placing
emphasis on the fact that screen at issue was large, opaque, and jutted curiously into the room
and noting the manner in which it was placed before the witness testified and concluding that, on
the basis of the nature of the screen actually used—all screens are inherently prejudicial).
For this reason, we conclude that Rose has failed to meet his burden to show that the use
of the screen prejudiced his trial. Holbrook, 475 US at 572.
Even if the use of the screen were inherently prejudicial, the trial court could nevertheless
utilize the screen if its use were necessary to further an essential state interest. Holbrook, 475
US at 568-569; see also Parker, 276 Neb 673 (“Having determined that the screen was
inherently prejudicial, we subject the procedure to close judicial scrutiny and consider whether it
was justified by an essential state interest specific to this trial.”). The United States Supreme
Court has already held that the state has a compelling interest in protecting child witnesses from
the trauma of testifying where the trauma is the result of the defendant’s presence and would
impair the child’s ability to testify. See Craig, 497 US at 855-857. And the trial court in this
case found that the use of the screen was necessary in order to ensure that JB would be able to
testify. Thus, the question is whether the trial court correctly determined that the use of the
screen itself—as opposed to some other technique for shielding JB—was necessary under the
facts of this case.
In Parker, the court recognized that the trial court had determined that the use of the
screen was necessary in order to protect the child witness and ensure that she would be able to
testify accurately and completely. Parker, 276 Neb at 673. However, the court still determined
that the trial court erred because it “had available another equally effective method of protecting
S.M. while procuring her testimony that would not have been inherently prejudicial to Parker’s
due process rights.” Id. at 674. The court explained that video recording or closed circuit
television would have been more effective because “the jury would not usually be specifically
aware that the child was being shielded from the defendant. Instead, the jury could easily infer
that the accommodation was standard procedure for children who, as common sense dictates,
may be intimidated by the courtroom environment.” Id. at 675.
We do not agree that a witness screen—even if assumed to be inherently prejudicial—
could not be used under any circumstance because of the availability of video recording or
closed circuit television. It is true that, in the analogous context of shackling, courts have held
that, even where the trial court makes the necessary findings in support of using restraints, the
defendant generally has the right to have the minimum level of restraints necessary to maintain
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safety and decorum and have held that the trial court must take steps to minimize any prejudice
from the use of restraints. See DeLeon v Strack, 234 F3d 84, 87-88 (CA 2, 2000); United States
v Brooks, 125 F3d 484, 502 (CA 7, 1997). Hence, the trial court had a duty to take steps that
adequately protected JB from the trauma of testifying while minimizing the prejudice to Rose.
Nevertheless, the analysis in Parker assumes that video is always preferable to the use of a
screen because the use of video will always be less prejudicial. Yet a reasonable juror could just
as easily infer that the child witness was recorded or interrogated in a separate room to shield the
child from the defendant. This is especially true if the witness testifies through closed circuit
television with the parties’ trial counsel present with the witness; in such a case, it will be
patently obvious to the jury that the parties’ trial counsel left the courtroom in order to
interrogate the witness rather than bring the witness into the courtroom. Thus, the concern that
the jury will infer that the court employed the video procedure in lieu of live testimony in order
to protect the witness from the defendant is present for both the use of a screen and the use of
video. Likewise, use of video equipment deprives the jury of the ability to see the witness in
person and judge his or her reactions without the distorting effects created by the use of video or
recording devices. For these reasons, even if the use of the screen were inherently prejudicial,
under some circumstances a trial court might properly conclude that the use of a physical
screening method safeguarded a defendant’s rights better than the use of closed circuit television
or recorded deposition. See Holbrook, 475 US at 572. Because Rose has not presented any
evidence that the use of the screen occasioned more prejudice than an alternate method—indeed
Rose’s trial counsel did not even suggest use of another method—we conclude that Rose’s claim
under due process would fail even if we were to conclude that screen were inherently prejudicial.
II. DISCOVERY SANCTION
A. STANDARDS OF REVIEW
Rose next argues that the trial court erred when it denied his motion to preclude the
testimony by Thomas Cottrell, who was the prosecution’s expert on child sexual abuse
dynamics. Specifically, Rose argues that the trial court abused its discretion by failing to
preclude the testimony, even after it found that there had been a discovery violation, on the sole
basis that the motion was untimely. Rose also argues that, to the extent that the trial court
properly denied his motion as untimely, his trial counsel’s failure to make the motion earlier
constituted the ineffective assistance of counsel.
This Court reviews a trial court’s decision regarding the appropriate remedy for a
discovery violation for an abuse of discretion. People v Davie (After Remand), 225 Mich App
592, 597-598; 571 NW2d 229 (1997). A trial court abuses its discretion when it selects an
outcome that falls outside the reasonable and principled range of outcomes. People v Yost, 278
Mich App 341, 379; 749 NW2d 753 (2008). Where there has been no evidentiary hearing and
no findings of fact by the trial court, this Court reviews de novo the entire record to determine
whether the defendant’s trial counsel’s representation constituted the ineffective assistance of
counsel. People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611 (2003).
B. DISCOVERY VIOLATION
On the day before trial was to begin, Rose’s trial counsel moved to preclude Cottrell from
testifying at trial. Rose’s counsel argued that exclusion was appropriate because the prosecution
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failed to comply with the trial court’s earlier discovery order that required the prosecution to
supply a written curriculum vitae for all expert witnesses as well as a written summary of the
expert’s proposed testimony and the basis for that testimony. Rose’s counsel indicated that the
prosecutor’s failure to comply with the discovery order prevented him from evaluating the
expert’s credentials or preparing for cross-examination.
On the second day of trial, the trial court addressed Rose’s motion. The trial court found
that the prosecutor had not complied with the discovery order, but nevertheless refused to
preclude Cottrell from testifying. The court found it noteworthy that the defense had known
about the proposed expert for months:
However, notice of Mr. Cottrell was given months ago and I don’t—and there is
no objection regarding Mr. Cottrell, as an expert, in respect to that matter until the
day before this trial is commenced. This is a matter that could have been
addressed weeks ago, months ago, it wasn’t. So in this Court’s opinion you
waived that requirement. So that is denied. The Court will allow Mr. Cottrell to
testify consistent with the decisions of the Supreme Court . . . .
Rose has not argued that Cottrell’s testimony was inadmissible or that Cottrell was not
competent to testify as an expert. Rather, Rose only argues that the trial court should have
sanctioned the prosecutor for failing to comply with the trial court’s discovery order by
precluding Cottrell from testifying—that is, Rose argues that the trial court should have
precluded otherwise relevant and admissible testimony solely on the basis that the prosecutor
failed to give Rose a written copy of Cottrell’s curriculum vitae and proposed testimony. Trial
courts have the discretion to fashion an appropriate remedy for a discovery violation. Davie, 225
Mich App at 597-598. “‘The exercise of that discretion involves a balancing of the interests of
the courts, the public, and the parties.’ It requires inquiry into all the relevant circumstances,
including ‘the causes and bona fides of tardy, or total, noncompliance, and a showing by the
objecting party of actual prejudice.’” Id. at 598 (citations omitted). However, the exclusion of a
witness is an extreme sanction that should not be employed if the trial court can fashion a
different remedy that will limit the prejudice to the party injured by the violation while still
permitting the witness to testify. Yost, 278 Mich App at 386.
Cottrell did not testify about the substantive facts of this case; as he noted on crossexamination, he had not interviewed any person related to the case and had not reviewed any
reports. Rather, his testimony was limited to explaining certain behaviors commonly engaged in
by the perpetrators and victims of child sexual abuse. Given the nature of this testimony, Rose’s
trial counsel did not require significant advance notice in order to prepare for Cottrell’s crossexamination. Further, although the prosecutor failed to comply with the discovery order, Rose’s
trial counsel had notice that the prosecutor intended to have Cottrell testify months before trial
and could have requested the documentation at any point before trial and remedied any prejudice
occasioned by the failure to submit the summary. Moreover, Rose’s counsel did not ask the trial
court to postpone Cottrell’s testimony in order to give him more time to prepare; instead, he
asked for the extreme sanction of preclusion. There was also no evidence that Rose’s trial
counsel was actually unable to effectively cross-examine Cottrell at trial. Given the nature of the
testimony, the fact that any minimal prejudice could readily have been cured had Rose’s trial
counsel raised the issue earlier, and the absence of any evidence of prejudice, we conclude that
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the trial court’s decision to deny Rose’s motion to preclude Cottrell from testifying was within
the reasonable and principled range of outcomes. Yost, 278 Mich App at 379.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Rose also argues on appeal that his trial counsel was ineffective for failing to move to
preclude Cottrell from testifying earlier. “To establish ineffective assistance of counsel, the
defendant must show: (1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and (2) that there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different.” Id. at 387.
On this record, Rose’s trial counsel’s decision not to move to exclude Cottrell earlier
cannot be said to fall below an objective standard of reasonableness. The decision whether and
when to make a motion are matters of trial strategy and professional judgment that are entrusted
to a defendant’s trial counsel. People v Traylor, 245 Mich App 460, 463; 628 NW2d 120
(2001). And Rose’s trial counsel may reasonably have concluded that the trial court would not
grant a motion to exclude Cottrell’s testimony at a point sufficiently in advance of trial to correct
the discovery violation. Instead, counsel may have thought that the best point to make the
motion was immediately before trial when he could reasonably argue that the deficient discovery
would prevent him from adequately preparing. Therefore, on this record, we cannot conclude
that Rose’s trial counsel’s decision fell below an objective standard of reasonableness under
prevailing professional norms.
Likewise, given the limited nature of Cottrell’s testimony and the trial court’s ability to
fashion a less extreme sanction, it is highly unlikely that the trial court would have precluded
Cottrell from testifying had his counsel filed the motion earlier. See Yost, Mich App at 386
(noting that trial courts must, when able, fashion a remedy short of exclusion). Indeed, in its
opinion and order denying Rose’s motion for a hearing or new trial, the court essentially asserted
the same thing. Rose has also not presented any evidence that, had his counsel had more time to
prepare, he might have more effectively challenged Cottrell’s testimony on cross-examination.
Accordingly, Rose has failed to show that his trial counsel’s failure to seek preclusion earlier
prejudiced his trial.
The trial court did not abuse its discretion when it denied Rose’s motion to preclude
Cottrell from testifying and Cottrell’s trial counsel was not ineffective for failing to make the
motion earlier.
III. JUROR ISSUES
A. STANDARDS OF REVIEW
Finally, Rose argues that the trial court abused its discretion when it denied his motion
for a new trial on the basis of a juror’s failure to disclose his familiarity with JB’s family. In the
alternative, he argues that the trial court abused its discretion when it denied his motion for an
evidentiary hearing to explore this juror’s knowledge and to evaluate whether his trial counsel
would have sought to dismiss the juror.
-15-
This Court reviews a trial court’s decision concerning whether to grant a motion for a
new trial for an abuse of discretion. People v Brown, 279 Mich App 116, 144; 755 NW2d 664
(2008). This Court also reviews a trial court’s decision concerning whether to hold an
evidentiary hearing for an abuse of discretion. People v Unger, 278 Mich App 210, 216-217;
749 NW2d 272 (2008).
B. NEW TRIAL OR HEARING
On appeal, Rose argues that the trial court should have granted him a new trial because
there was evidence that one of the jurors knew people who were related to the victim and failed
to disclose that information to the court during voir dire. At the very least, Rose concludes, the
trial court should have held an evidentiary hearing to determine the full extent of the juror’s
knowledge and to learn whether his trial counsel would have exercised a peremptory challenge
had he known that the juror knew members of the victim’s extended family.
A criminal defendant has the right to be tried by an impartial jury. People v Miller, 482
Mich 540, 547; 759 NW2d 850 (2008). A juror’s failure to disclose information that the juror
should have disclosed may warrant a new trial if the failure to disclose denied the defendant an
impartial jury. Id. at 548. “The burden is on the defendant to establish that the juror was not
impartial or at least that the juror’s impartiality is in reasonable doubt.” Id. at 550.
During voir dire in the present case, the potential jurors were asked if they knew any of
the witnesses in the case, which included several members of JB’s family. Each of the witnesses
from JB’s family were from her immediate family. Juror #168 did not indicate that he knew any
of these witnesses. However, on the third day of trial, Juror #168 brought to the trial court’s
attention that he might have known a potential witness.
Juror #168 told the court that he thought the witness was GA, who he knew in Junior
High School approximately 40 years ago. Rose’s trial counsel indicated that he did have a
potential rebuttal witness named GA. When asked, the juror told the court that he had not had
any contact with her since Junior High School. The trial court then asked the juror whether he
would treat the witness any differently or would he evaluate her testimony by the same standards
as every other witness and the juror responded that he would treat her the same as any other
witness. After this, the trial court indicated that it was “satisfied there’s no problem.”
After the verdict, Rose’s new counsel filed a motion for a new trial and eventually
submitted three affidavits in support of that motion. The affidavits were by the victims’ aunts,
GA and LB, and their uncle, BB.1 In their affidavits, GA and LB averred that on the first day of
trial they went to lunch in a restaurant and discussed the case in the presence of a person they
later realized was juror #168. They both indicated that juror #168 did not give any sign that he
recognized them. In his affidavit, BB averred that he had become acquainted with juror #168 at
work before trial and that the juror told him that he remembered BB’s family, but was more
familiar with BB’s sisters, GA and LB. From this evidence and the fact that juror #168 told the
1
In the affidavits, the affiants used their formal names. However, for ease of reference, we have
referred to them by the initials of their names as used at trial.
-16-
court that he knew GA, Rose argues that it is clear that juror #168 knew JB’s family and failed to
spontaneously disclose that information to the court. This, he further argues, amounts to juror
misconduct that warrants a new trial.
Although these affidavits are evidence that Juror #168 might have known members of
JB’s extended family at one time, there is no evidence that Juror #168 actually knew any of the
members of JB’s family who were identified as potential witnesses before trial. It is also
undisputed that the potential jurors were not asked whether they knew GA. Accordingly, there is
no evidence that the juror misled the court when he denied knowing any of the potential
witnesses. Further, the juror’s own statements on the third day of trial and the affidavits
demonstrate that the juror’s knowledge of the family was limited to decades old interactions and
limited recent interactions at work. BB himself averred that Juror #168 did not at first know him
from work, but only learned that BB was a member of the family after BB approached him and
disclosed this fact. Further, there was no evidence that Juror #168 actually knew JB’s father or
his immediate family members. Finally, the mere fact that Juror #168 might have known the
victims’ aunts and uncles to some limited degree does not establish that the juror harbored any
bias against or in favor of the family. Absent evidence that Juror #168 was partial, Rose has
failed to establish the prejudice required in order to warrant a new trial on the basis of Juror
#168’s failure to spontaneously bring up the fact that he knew some members of JB’s family.
See Miller, 482 Mich at 553-554. Accordingly, the trial court did not err when it refused to grant
Rose a new trial on the grounds of juror misconduct.
For similar reasons, the trial court did not err when it denied Rose’s motion to hold an
evidentiary hearing concerning whether and to what extent Juror #168 might have known
members of JB’s family. In this case, although there was evidence that Juror #168 might have
had some limited knowledge of the family, there is no evidence that Juror #168 was partial.
Instead, Rose essentially invited the trial court to speculate that Juror #168 might have had some
bias on the basis of his purported failure to disclose his knowledge of the family. However, the
mere possibility of prejudice is insufficient to warrant relief. People v Nick, 360 Mich 219, 227;
103 NW2d 435 (1960). And, absent more concrete evidence tending to suggest bias, the trial
court was well within the principled range of outcomes when it declined Rose’s motion for an
evidentiary hearing.
Finally, we note that, in his motion for a new trial and supporting affidavits, Rose argued
that Juror #168 was potentially exposed to outside information about the case. However, on
appeal, Rose has not addressed this argument by reference to law or facts. Therefore, we
conclude that Rose has abandoned these alternate claims of juror impropriety. Martin, 271 Mich
App at 315.
There were no errors warranting relief.
Affirmed.
/s/ Christopher M. Murray
/s/ Henry William Saad
/s/ Michael J. Kelly
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