PEOPLE OF MI V JAMES HENRY BUIE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 11, 2011
Plaintiff-Appellee,
v
No. 278732
Kent Circuit Court
LC No. 05-010021-FC
JAMES HENRY BUIE,
Defendant-Appellant.
AFTER REMAND
Before: BECKERING, P.J., and WHITBECK and M. J. KELLY, JJ.
WHITBECK, J. (concurring).
I concur in the majority’s scholarly opinion. I write separately only to emphasize the
importance of, and the historical basis for, adherence to the constitutional requirement that an
accused has the right to confront the witnesses against him.1
For a wide variety of reasons, our jurisprudence contains an interlocking web of rights
and restrictions, all aimed at protecting those whom the state accuses of crimes. We require that
when investigation turns to custodial interrogation, the police must inform the subject of that
interrogation that he or she has the rights to remain silent and to the services of an attorney.2
And there is a constitutional prohibition against unreasonable search and seizure.3 Further, a
criminal defendant has a constitutional right to a public trial by an impartial jury.4 That
defendant has a constitutional right against compelled self-incrimination and a concomitant
presumption of innocence.5 He or she has a constitutional due process right to be convicted only
1
US Const, Am VI; Const 1963, art 1, § 20.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
3
US Const, Am IV; Const 1963, art 1, § 11.
4
US Const, Am VI; Const 1963, art 1, § 20.
5
People v Fields, 450 Mich 94, 108; 538 NW2d 356 (1995), citing US Const, Am V; Const
1963, art 1, § 15.
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upon prosecutorial proof of guilt beyond a reasonable doubt,6 a right to a unanimous jury
verdict,7 a constitutional right to compulsory process,8 and a constitutional right to effective
assistance of counsel.9
These protections continue even after conviction. In Michigan, a criminal defendant has
an absolute right of appeal following conviction10 and to the reasonable assistance of counsel in
perfecting and prosecuting such an appeal.11 Conversely, the prosecution has no constitutional
right to appeal.12
Thus, the right at issue in this case, the constitutional “confrontation clause”13 as it is
popularly called, is only one strand in this interlocking web of rights and restrictions. But it is an
important strand and one steeped in history. “The right to confront one’s accusers is a concept
that dates to Roman times.”14 The origins of the clause itself go back to the 16th and 17th
centuries. During that time, the English Crown “used criminal proceedings as weapons against it
political enemies,” most notoriously through the device of the Star Chamber.15 Essentially, the
English courts used an inquisitorial mode of criminal procedure in which, for example, “justices
of the peace would interrogate witnesses privately and offer the testimony against the accused at
trial without calling the witness to the stand.”16
The 1603 trial of Sir Walter Raleigh provides perhaps the most well-known instance of
the potential for abuse inherent in the inquisitorial mode.17 The main witness against Raleigh
6
Sandstrom v Montana, 442 US 510, 520-524; 99 S Ct 2450; 61 L Ed 2d 39 (1979).
7
People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994), citing US Const, Am VI;
Const 1963, art 1, § 14; FR Crim P 31(a); and MCR 6.410(B).
8
Const 1963, art 1, § 20.
9
Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People
v Pickens, 446 Mich 298, 309, 312-313; 521 NW2d 797 (1994).
10
Const 1963, art 1, § 20.
11
Id.
12
People v Richmond, 486 Mich 29, 36; 782 NW2d 187 (2010).
13
US Const, Am VI; Const 1963, art 1, § 20.
14
Crawford v Washington, 541 US 36, 43; 124 S Ct 1354; 158 L Ed2d 177 (2004), citing Coy v
Iowa, 487 US 1012, 1015; 108 S Ct 2798; 101 L Ed 2d 857 (1988); Herrmann & Speer, Facing
the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va J Intl L 481
(1994).
15
W. Jeremy Counseller & Shannon Rickett, The Confrontation Clause After Crawford v
Washington: Smaller Mouth, Bigger Teeth, 57 Baylor L Rev 1, 7 (2005).
16
Id.
17
Crawford, 541 US at 44; Counseller & Rickett, 57 Baylor L Rev at 7-8.
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never testified in person at the trial.18 Rather, officers reported his statements in court.19 Raleigh
objected to the use of these out-of-court statements—saying at one point, “Good my Lords, let
my accuser come face to face, and be deposed,” 20—but his objections were unsuccessful, and he
was convicted and hanged.21
Rather clearly, Raleigh’s trial demonstrates the twin evils caused by the inability to
confront witnesses:
First, without confrontation by cross-examination, the accused is unable to
test the credibility of the declarant’s testimony. Confrontation by crossexamination is needed to ensure the reliability of testimony. Second, without a
right to confrontation the government may develop ex parte testimony for use
against the accused at trial. The right to confrontation serves as a check on the
government’s ability to secretly develop evidence against its citizenry, a
worthwhile purpose, irrespective of the reliability to the testimony.[22]
The proposed Federal Constitution did not originally contain a confrontation clause. But
the First Congress included the clause in the proposal that became the Sixth Amendment.23
Early state decisions indicated that the right to cross-examine witnesses in person was at the core
of the original understanding of the clause.24 And subsequent United States Supreme Court
decisions followed this understanding:
Where testimonial statements are involved, we do not think the Framers
meant to leave the Sixth Amendment’s protection to the vagaries of the rules of
evidence, much less to amorphous notions of “reliability.” Certainly none of the
authorities discussed above acknowledges any general reliability exception to the
common-law rule. Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation. To be sure, the Clause’s
ultimate goal is to ensure reliability of evidence, but it is a procedural rather than
18
Crawford, 541 US at 44; Counseller & Rickett, 57 Baylor L Rev at 7.
19
Crawford, 541 US at 44; Counseller & Rickett, 57 Baylor L Rev at 7.
20
1 Criminal Trials 389-520 (David Jardine ed, 1850).
21
Crawford, 541 US at 44; Counseller & Rickett, 57 Baylor L Rev at 7-8.
22
Counseller & Rickett, 57 Baylor L Rev at 8.
23
Crawford, 541 US at 49.
24
Id., citing North Carolina v Webb, 2 NC 103, 104 (1794) to the effect that, “[I]t is a rule of the
common law, founded on natural justice, that no man shall be prejudiced by evidence which he
had not the liberty to cross examine[,]” and South Carolina v Campbell, 30 SCL 124, 125 (1844)
to the effect that one of the “‘indispensable conditions’ implicitly guaranteed by the State
Constitution was that ‘prosecutions be carried on to the conviction of the accused, by witnesses
confronted by him, and subjected to his personal examination.’”
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a substantive guarantee. It commands, not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of crossexamination. The Clause thus reflects a judgment, not only about the desirability
of reliable evidence (a point on which there could be little dissent), but about how
reliability can best be determined.[25]
Indeed, as Justice SCALIA opined, the “text of the Sixth Amendment does not suggest any openended exceptions from the confrontation requirement to be developed by the courts.”26
But technology has intruded and public policy concerns have surfaced. In Maryland v
Craig, the United States Supreme Court faced the question whether the confrontation clause
categorically prohibited a child witness in a child abuse case from testifying against a defendant
at trial outside the defendant’s physical presence, by one-way closed circuit television. A
majority of the Court held that there was no such categorical prohibition.28 The majority adopted
a two-pronged test to determine if allowing a child witness’s testimony outside the defendant’s
physical presence by one-way closed circuit television in a sexual abuse case violated the
confrontation clause. The Court delineated four elements of the confrontation clause: (1)
physical presence, (2) an oath, (3) cross-examination, and (4) “observation of demeanor by the
trier of fact.”29 In conjunction with these elements, the first prong of the Craig test is whether
there is a public policy or state interest important enough to outweigh the defendant’s
constitutional right of confrontation.30 And the second prong is whether the procedure in
question preserves all the other elements of the confrontation clause.31
27
Notably, Justice SCALIA, joined by Justice BRENNAN, Justice MARSHALL, and Justice
STEVENS, dissented.32 Justice SCALIA asserted that the rule that a “defendant should be
25
Crawford, 541 US at 61; see also Mattox v United States, 156 US 237, 244; 15 S Ct 337; 39 L
Ed 409 (1895) (“The substance of the constitutional protection is preserved to the prisoner in the
advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal
of a cross-examination. This, the law says, he shall under no circumstances be deprived
of . . . .”)
26
Crawford, 541 US at 54.
27
Maryland v Craig, 497 US 836, 840; 110 S Ct 3157; 111 L Ed 2nd 666 (1990).
28
See id. at 844 (“We have never held, however, that the Confrontation Clause guarantees
criminal defendants the absolute right to a face-to-face meeting with the witnesses against them
at trial.” [emphasis in the original]) and id. at 847 (“[W]e have never insisted on an actual faceto-face encounter at trial in every instance in which testimony is admitted against a defendant.”
emphasis in the original [emphasis in original]).
29
Id. at 846.
30
Id. at 851-852, 855.
31
Id.
32
Id. at 860-870 (SCALIA, J., dissenting).
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confronted by the witnesses who appear at trial is not a preference ‘reflected’ by the
Confrontation Clause; it is a constitutional right unqualifiedly guaranteed.”33 Justice SCALIA
went on to say,
The Court today has applied “interest-balancing” analysis where the text
of the Constitution simply does not permit it. We are not free to conduct a costbenefit analysis of clear and explicit constitutional guarantees, and then to adjust
their meaning to comport with our findings. The Court has convincingly proved
that the Maryland procedure serves a valid interest, and gives the defendant
virtually everything the Confrontation Clause guarantees (everything, that is,
except confrontation). I am persuaded, therefore, that the Maryland procedure is
virtually constitutional. Since it is not, however, actually constitutional I would
affirm the judgment of the Maryland Court of Appeals reversing the judgment of
conviction. [34]
In our prior opinion in this case,35 we noted that, like the United States Supreme Court in
Craig, this Court has recognized that presenting testimony over closed-circuit television does not
violate the defendant’s right of confrontation in two special circumstances.36 We analyzed a
number of federal decisions and then went on to adopt the Craig test:
Like the majority of federal courts that have examined this issue, we adopt
the Craig test to determine whether a trial court infringes a defendant’s right of
confrontation when it allows witness testimony to be taken through two-way,
interactive video technology. The trial court must hear evidence and make casespecific findings that the procedure is necessary to further a public policy or state
interest important enough to outweigh the defendant’s constitutional right of
confrontation and that it preserves all the other elements of the Confrontation
Clause. [37]
While I see considerable intellectual merit in Justice SCALIA’s absolutist view of the
confrontation clause—after all, the document does say, “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him”38—I believe that our
decision to adopt the Craig test in our prior opinion was a prudential one, given the prior
decisions in People v Burton and People v Pesquera, and the precedent in Craig itself.
33
Id. at 863.
34
Id. at 870.
35
People v Buie, 285 Mich App 401; 775 NW2d 817 (2009).
36
Id. at 409, citing to People v Pesquera, 244 Mich App 305, 309; 625 NW2d 407 (2001) and
People v Burton, 219 Mich App 278, 290-291; 556 NW2d 201 (1996).
37
Id. at 415.
38
US Const, Am VI (emphasis added).
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I also find significant that the prosecution concedes that in this case there was no public
policy or state interest in having the witnesses in question testify by video. Therefore, despite
the trial court’s conclusory statements to the contrary, there is no basis on the record on which
we could ground a holding that there was a public policy or state interest sufficiently important
to outweigh Buie’s constitutionally guaranteed right of confrontation. Further, although Buie’s
counsel may have consented to the video procedure pursuant to MCR 6.006(C)(2), she did so
over Buie’s express objection. Manifestly, then, it was plain error to permit the two witnesses in
question to testify using the video procedure.
I fully recognize that the crimes in question here—criminal sexual conduct involving a
victim under the age of 13,39 three counts of criminal sexual conduct involving the use of a
weapon,40 and one count of possession of a firearm during the commission of a felony41—are
heinous ones. I further recognize that there was substantial evidence of Buie’s guilt in this
matter and that the video testimony of the two witnesses in question was crucial to establishing
that guilt. And I finally recognize that others may assert that we base our decision to vacate
Buie’s convictions and sentence upon “technicalities.”
But, while it is true that the Constitution is not a suicide pact,42 it is also not a wish list.
Nor can we modify it in lockstep with evolving technology. The words in our most fundamental
formative documents have continuing meaning and it is our responsibility as members of the
judiciary to ensure that such meaning has effective life. The web of protection that we have
woven around those whom the state accuses, or may accuse, of crimes is at the center of our
system of justice. It is one of the safeguards that distinguish that system from those despotic and
tyrannical regimes in which political prosecutions and governmentally orchestrated sham trials
are commonplace. A criminal defendant’s right to confront witnesses face to face and to subject
such witnesses to the test of cross-examination is not a technicality, it is crucial protection that
has been with us almost from the very beginning of our republic. It may be waived, as MCR
6.006(C)(2) provides, but it cannot be judicially abrogated. Raleigh’s ghost haunted the Framers
and he haunts us still, to our great benefit.
/s/ William C. Whitbeck
39
MCL 750.520b(1)(a).
40
MCL 750.520(1)(e).
41
MCL 750.227b.
42
See Terminiello v Chicago, 337 US 1, 37; 69 S Ct 894; 93 L Ed 1131 (1949) (VINSON, J.,
dissenting).
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