MSC: Screen between victim, accused didn’t violate right to confront

The Michigan Supreme Court has vacated its leave to appeal in a case in which a man said he was denied his right to confront his accuser.

In People v. Rose, Ronald Rose, was accused of sexually abusing his wife’s 8-year-old sister, and of showing pornographic pictures to the girl and her brother. At his trial, the girl testified, and the court allowed for a screen to be placed between Rose and the girl, so that she could not see him, but the jury and Rose could see her.

Rose’s lawyer, Scott A. Grabel of East Lansing said in October at arguments that the screen was nothing more than a theatrical prop — the most prejudicial thing he’d ever seen in a criminal trial.

But Allegan County Prosecuting Attorney Judy Hayes Astle argues that Rose’s defense attorney said it was important for the girl to be present in the courtroom during the trial, rather than testifying by closed circuit television or Skype, and the screen provided a way to allow her testimony while protecting her from having to see the accused.

The jury deliberated for just two hours, and found Rose guilty of four counts of first-degree criminal sexual conduct and two counts of distributing obscene material to minors. He was sentenced to 25-50 years in prison on each count of CSC, and one year and four months to two years for the pornography offenses.

Rose appealed, and the Court of Appeals upheld the conviction.

The Michigan Supreme Court, in a short order on Dec. 9, vacated its Feb. 2, 2011, order granting leave because the Court is “no longer persuaded that the questions presented should be reviewed by this Court.”

Justice Marilyn Kelly dissented, and said that the trial court violated Rose’s due process rights, saying, “The screen branded defendant with ‘an unmistakable mask of guilt’ by suggesting to the jury that the witness had a good reason to fear viewing the defendant; namely, that defendant had abused her.”

Then, Kelly said the trial court made it even worse: “This error was compounded when the trial court gave no instruction to the jury directing it not to draw an inference adverse to the defendant from the use of the screen.”

She said that use of the screen is not expressly permitted under MCL 600.2163a, which provides procedures for presenting child witness testimony.

Kelly wrote that when balancing the need to protect minors’ well-being, and protecting a defendant’s constitutional right to confront witnesses, “The trial court must make a ‘case-specific’ finding that the procedure is necessary to further that state interest. Here, the Court of Appeals concluded that the trial court made sufficient findings that the screen was necessary to protect [the girl]. It relied on the trial court’s conclusion that there was a ‘high likelihood’ that [the girl] would suffer psychological damage if forced to testify without the screen.”

The U.S. Supreme Court, she said, has not addressed whether the use of such a screen violates a defendant’s due process rights.

But it has determined that some procedures are “so inherently prejudicial that they are generally not permitted at trial.” The test of such procedures is whether there is “an ‘unacceptable risk that impermissible factors will come into play,'” which hinge on “a ‘wider range of inferences that a juror might reasonably draw’ from the procedure other than to band defendant ‘with an unmistakable mark of guilt.'”

She wasn’t buying the Court of Appeals’ opinion that stated a reasonable juror might conclude that the child was being screened because she “fears to look upon the defendant because she is not testifying truthfully.”

Nonsense, Kelly wrote: “No reasonable juror could so conclude. Courts are not in the habit of protecting people who proffer perjured testimony.”

Rather, the screen could only send one message to the jury: “[T]hat the court deemed the witness to be worthy of protection from the defendant.”

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MSC stays precedential effect of COA suspended-license case

The Michigan Supreme Court has stayed the precedential effect of a Court of Appeals decision that requires county prosecutors trying driving-with-suspended-licenses cases to produce at trial the state clerks who mailed the suspension notices to the defendants.

In People v. Nunley (majority opinion) (dissenting opinion), the COA reasoned that proof of notice to defendants is an element of the crime. As such, a certificate that the notice was mailed is testimonial and Confrontation Clause principles apply. Those principles include the right to confront in court the person who mailed the certificate.

Michigan Attorney General Bill Schuette was granted intervenor status in the case. His motion to stay the precedential effect of the case and to enlarge the record on appeal was granted in a MSC order released Dec. 2.

For an analysis of the COA’s opinion in Nunley, see “Mailing certificate testimonial, state clerk must appear at trial,” which appeared in our Oct. 21 issue.

The Washtenaw County prosecutor’s application for leave to appeal remains pending.

SCOTUS vacates MSC Confrontation Clause ruling

The U.S. Supreme Court has ruled, in Michigan v. Bryant, that the Confrontation Clause was not violated when police testified at trial that a gunshot victim identified his shooter in response to police questioning.

The Court, in a 6-2 decision, vacated the Michigan Supreme Court’s contrary conclusion (People v. Bryant).

Covington was shot outside of Bryant’s house and managed to drive himself to a gas station. Someone called the police, who arrived before the medical responders. The police asked Covington, who was in great pain and having trouble breathing, who shot him. Covington named Bryant as the shooter. Covington died a few hours later.

The police testified at Bryant’s trial that Covington identified Bryant. Bryant was convicted of second-degree murder.

The MSC reversed the conviction, ruling that Covington’s statements were inadmissible testimonial hearsay.

The U.S. Supreme Court ruled that the statements were not testimonial, and vacated the MSC’s decision.

The Court, citing Davis v. Washington, 547 U. S. 813 (2006), said the circumstances, viewed objectively, showed that

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose … to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’ s trial did not violate the Confrontation Clause.

When Covington responded to questions from the police

he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive.

Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” …

For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime.

They asked exactly the type of questions necessary to enable them “to meet an ongoing emergency.” …

“Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. …

The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation.

“The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

The Court vacated the MSC’s decision.

We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules.