PEOPLE OF MI V JOHN KENNETH GOERKE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 25, 2002
Plaintiff-Appellee,
V
No. 225195
Oakland Circuit Court
LC No. 99-167765-FC
99-167766-FC
JOHN KENNETH GOERKE,
Defendant-Appellant.
Before: Talbot, P.J., and Smolenski and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions on four counts of first-degree
criminal sexual conduct. Defendant was sentenced to twenty-three to fifty years in prison for the
two convictions arising out of assaults occurring before January 1, 1999. He was sentenced as a
second habitual offender to twenty to fifty years for the two convictions arising out of assaults
occurring after January 1, 1999, with 181 days credit for time served. We vacate defendant’s
convictions and remand for retrial.
The complainant was the 11 year old mentally impaired daughter of defendant’s live-in
girlfriend. Prior to trial, the prosecution moved to exclude defendant from the courtroom during
the complainant’s testimony, arguing that she would be unable to testify if the defendant was
present in the courtroom. The trial court took the matter under advisement. On the day of trial,
the trial court heard testimony from the complainant outside of the jury’s presence, and
concluded “it would be better” if the complainant and the defendant were in different rooms
when the complainant testified. Defendant objected to being removed from the courtroom
during complainant’s testimony, and argued that the procedures outlined in MCL 600.2163a1
accorded sufficient protection to complainant. The trial court apparently disagreed.2 Defendant
1
MCL 600.2163a provides the trial court with several ways to protect an underage or
developmentally disabled witness who testifies at trial. The trial court may clear the courtroom
of all persons not necessary to the proceedings, or position defendant in the courtroom so that the
defendant is not in complainant’s view. The trial court may also allow a witness’ testimony to be
videotaped and shown to the jury.
2
The record does not contain the trial court’s order that defendant would be excluded from the
courtroom. Instead, there is reference to the fact that a company would be coming to set up the
court room to accommodate closed circuit television for the complainant’s testimony. The
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was able to confer with his trial counsel during several breaks in the cross-examination of the
complainant. At defendant’s request, the jury was instructed to make no inference from the fact
that defendant was absent from the courtroom during the testimony.
Defendant first argues that because the trial court excluded him from the courtroom and
forced him to watch the complainant’s testimony by way of closed-circuit television, his
constitutional and statutory right to be present during his trial, and to confront witnesses against
him, were violated, requiring reversal of his conviction.3 We agree that defendant’s statutory
right to be present during his trial was violated, and that this violation requires reversal of his
conviction.
Whether defendant’s statutory right to be present during his trial was violated requires us
to construe the statute at issue, a question of law which this court reviews de novo. Kelly v
Builder’s Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001). A preserved nonconstitutional
error is “presumed not to be ground for reversal unless it affirmatively appears that, more
probably than not, it was outcome determinative. People v Krueger, 466 Mich 50, 54; 643
NW2d 223 (2002).4
MCL 768.3 provides, “No person indicted for a felony shall be tried unless personally
present during the trial . . . .” In Krueger, the Michigan Supreme Court found that the exclusion
of defendant from the courtroom during the child witness’ testimony was a violation of the
defendant’s statutory right to be personally present during trial and required reversal of his
conviction. While the Supreme Court noted that the statutory right to be present was not
absolute, id. at 53 n 9, it found that the evidence of defendant’s guilt presented a close question,
and that evaluating the error in light of the weight and the strength of the untainted evidence, the
error in removing the defendant from the courtroom was outcome determinative. Id. at 54-56.
We conclude that under the facts of this case, as in Krueger, it is more probable than not
that the error in removing defendant from the courtroom while the complainant testified was
outcome determinative. The complainant’s testimony was pivotal to defendant’s conviction.
First, the complainant testified outside of the presence of the jury that she would not be able to
testify while she was in the same room as defendant. Although the trial court might have
accomplished this separation without removing defendant from the courtroom by utilizing the
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parties do not dispute, however, that defendant was in fact excluded from the courtroom
3
We note that defendant does not assert in his statement of questions presented that his right to
confront the complainant was violated by the trial court’s order. Thus, we do not address this
issue since resolving this question is unnecessary to our resolution of the case.
4
The prosecutor contends that defendant has not preserved this issue. We disagree. The
prosecutor argued that the victim was not going to testify “adequately” if “she knows he’s in the
courtroom.” The trial court agreed and ruled that the victim’s testimony would be given “in a
separate room.” Defense counsel objected to this procedure and argued instead that it was
possible to shield the defendant from the victim’s view while both she and the defendant
remained in the courtroom. We are satisfied that this colloquy on the record was sufficient to
preserve defendant’s objection to his removal from the courtroom.
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methods described in MCL 600.2163a, these procedures were not used.5 Without the
complainant’s testimony, no case could be presented against the defendant. Second, while the
complainant’s brother testified at trial that he observed one of the alleged assaults, he had denied
witnessing the assault when he testified at the preliminary examination. In addition, he and
complainant had different recollections about what else was occurring when the assault allegedly
took place, requiring the jury to make crucial determinations about the complainant’s credibility.
Third, complainant’s mother also testified that the complainant had told her at one time that the
allegations were untrue.
As in Krueger, the proofs in this case are not overwhelming and illustrate that an
effective cross-examination of the complainant was vitally important to the defense.
Defendant’s removal from the courtroom during the complainant’s testimony deprived him of
the ability to convey urgent lines of inquiry to his lawyer. In addition, defendant was unable to
make the subtle statement by his presence and demeanor in court that he was innocent of the
charges against him. Krueger, supra at 55. We therefore conclude that defendant should not
have been excluded from the courtroom during the testimony of the complainant, vacate
defendant’s conviction and remand for retrial.6
/s/ Michael J. Talbot
/s/ Michael R. Smolenski
/s/ Kurtis T. Wilder
5
The record does not describe whether a live closed circuit feed of the complainant’s testimony
was not possible to arrange. Because the motion to exclude the defendant from the courtroom
was not decided by the trial court until the day of the trial, we presume there was no longer
sufficient time remaining to videotape the complainant’s testimony for presentation to the jury as
an alternative to excluding defendant from the courtroom.
6
Because we vacate defendant’s convictions, we also find it unnecessary to address defendant’s
constitutional “right to be present” claim, or his claims that the sentencing guidelines were
improperly scored.
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