People v. Buie

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED MAY 24, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 142698

JAMES HENRY BUIE,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

MARKMAN, J.
We granted leave to appeal to consider whether witness testimony taken by two-

way, interactive video was properly admitted during defendant’s trial. Our consideration

implicates two issues: (1) whether defendant’s constitutional right to be confronted with

the witnesses against him was violated by the admission of video testimony, US Const,

Am VI; Const 1963, art 1, § 20, and (2) whether the admission of video testimony

violated MCR 6.006(C). Because we conclude that defendant waived his right of

confrontation under the United States and Michigan Constitutions and that the court rule
was not violated, we reverse the Court of Appeals’ judgment and remand to that Court for

consideration of defendant’s remaining issues.

I. FACTS AND HISTORY

Defendant was convicted of sexually assaulting BS and two female minors: LS,

age 13, and DS, age 9. The assaults occurred on June 27, 2001, after BS, seeking to trade

sex for cocaine, invited defendant into the apartment where she was babysitting LS and

DS. In lieu of the desired bargain, defendant held BS at gunpoint and raped her, LS, and

DS. LS and DS were unable to identify the man who assaulted them, but at trial BS

identified defendant as the perpetrator of the crimes.

Within hours of the assault, Dr. Vincent Palusci examined LS and DS. He found

evidence “‘indicative of sexual conduct of direct trauma to the genitals, and in the case of

[LS], also her anus, which were not explainable in any other manner than the histories

provided’” by the children. People v Buie, 285 Mich App 401, 404; 775 NW2d 817

(2009) (Buie I). Palusci collected vaginal and rectal swabs during the examinations and

placed the swabs into rape kits. The kits were then sealed and released to the appropriate

law enforcement agencies. An employee of the Michigan State Police’s Forensic

Biology Unit, Rodney Wolfarth, conducted DNA testing on the swabs and on other

objects found at the scene of the crime. Wolfarth found sperm cells in the swabs and

designated their originator “Donor 1.”

Wolfarth was unable to identify Donor 1 at the time but entered his results into a

DNA database known as CODIS, an acronym for “Combined DNA Indexing System.”

On February 1, 2005, CODIS matched defendant’s DNA to Donor 1, and he was arrested

and charged with the crimes. Before trial, defense counsel consented to the use of video

2
testimony by Palusci and Wolfarth, and at trial, they were permitted to testify by this

method. People v Buie (After Remand), 291 Mich App 259, 267; 804 NW2d 790 (2011)

(Buie II). However, immediately before Palusci testified, defense counsel stated that

defendant “‘wanted to question the veracity of these proceedings, so I’ll leave that to the

Court’s discretion.’” Id.

After a brief discussion between the court and the information technology staff

concerning how the video equipment would operate, Palusci testified. Defendant was

eventually convicted by a jury of two counts of first-degree criminal sexual conduct

(CSC) involving a victim under the age of 13, MCL 750.520b(1)(a); three counts of first-

degree CSC involving the use of a weapon, MCL 750.520b(1)(e); and possession of a

firearm during the commission of a felony, MCL 750.227b. Defendant appealed, arguing

that the video testimony violated his constitutional right of confrontation and was not

properly admitted under any statute or court rule.

The Court of Appeals adopted the test articulated in Maryland v Craig, 497 US

836; 110 S Ct 3157; 111 L Ed 2d 666 (1990), to determine whether the admission of the

video testimony had violated defendant’s right of confrontation. Buie I, 285 Mich App at

415. Pursuant to that test, the Court of Appeals then remanded the case to the trial court

and ordered it to assess whether permitting the video testimony had been “necessary to

further an important public policy or state interest.” Id. at 418. The prosecutor appealed

here, and defendant cross-appealed. This Court denied both applications for leave to

appeal but instructed the trial court to “make [additional] findings regarding good cause

and consent pursuant to MCR 6.006(C).” People v Buie, 485 Mich 1105, 1106 (2010).

Dissenting in part from the order, Justice CORRIGAN explained:

3
 In light of defense counsel’s complete statement, I cannot conclude
that “the nature” of that statement manifested anything other than consent.
As a threshold matter, the complete statement of defense counsel is
“consent” under the Court of Appeals own analysis of the dictionary
definition of the term. When defense counsel stated “I’ll leave that to the
Court’s discretion,” defendant essentially acquiesced to the taking of
testimony using two-way interactive video technology. Defense counsel
cannot acquiesce to the court’s handling of a matter at trial, only to later
raise the issue as an error on appeal. A contrary result would run afoul of
the well-established legal principle that a defendant must “raise objections
at a time when the trial court has an opportunity to correct the error” and
cannot “harbor error as an appellate parachute.” [Id. at 1107 (citations
omitted).]

On remand, the trial court held an evidentiary hearing. At that hearing, the

prosecutor was asked:

Q. Now, do you recall specifically any conversation you may have
had with defense counsel or the Court concerning the use of the video
technology from these witnesses from remote locations?

A. I don’t recall specifically what was said between [defense
counsel] and myself. I do know, you know, thinking about that, that
regarding Dr. Palusci’s testimony, that I don’t believe she objected to it
being the video feed because she wanted--she knew the testimony--

* * *

I don’t remember [defense counsel’s] exact words, but she had
indicated that Dr. Palusci--she believed Dr. Palusci’s testimony was going
to be damaging, so she wanted him, whether it be live or on the screen,
done with as quickly as possible.
Defense counsel agreed that she had discussed the use of video testimony before trial.

When asked whether she was “agreeable” to the use of video testimony by Palusci and

Wolfarth, defense counsel explained:

Understanding that [the witnesses were not local] and the nature of
this particular case and the fact that it had been dragging out for quite a

4
 while by this time, I felt--I was in agreement that this would be the best
way to have [Palusci and Wolfarth] testify without subjecting them to being
here physically.

When asked whether there was “a benefit to having the testimony by video rather than

having testimony live,” defense counsel responded:

I didn’t think there was any problem. I wouldn’t call it a benefit or a
burden. It was just two individuals testifying on a tele--on a big screen
rather than sitting here. They were sworn as I was this afternoon. They
were asked questions by the prosecution. They were cross-examined by
me. There was some redirection. I believe I even re-crossed on at least one
of the witnesses. And it was done.

Although defense counsel stated that “every conversation [she] had with

[defendant] throughout [her] representation was done either in the lock-up area here at

the--at the courthouse or with him sitting at the defense table,” when asked whether she

would have “discussed with [defendant] this--the testimony--the video procedures

beforehand,” she answered that “[d]espite [defendant’s] contentiousness, [she] discussed

everything with him” and that “[defendant] was well aware of the prosecutor’s desire to

have [the witnesses] testify via video.”

Defense counsel was then asked whether defendant himself had responded when

informed that Palusci and Wolfarth would testify by video. She answered:

Oh, yeah, of course. [Defendant] objected to everything. It was--
you know, it was classic Buie from beginning to end, “This is wrong. That
is wrong.” But, you know, yeah. And I believe I made a statement on the
record indicating [defendant’s] disdain for the two individuals testifying via
video.
She was then asked:

Q. Okay. And where you said, “I understand this is this particular
courtroom’s first attempt at this type of technological proceeding and my

5
 client is wanting to question the veracity of these proceedings, so I’ll leave
that to the Court’s discretion,” is it fair to say then that that statement is you
expressing [defendant’s] objection to the procedure?

A. Absolutely.

However, when questioned further about that statement, defense counsel explained:

A. [Defendant] was questioning the veracity of everything. It was
just--it was a blanket James Buie, this is a farce, and that was pretty much
his attitude from beginning to end.

Q. Okay. Was that specifically as regarding the use of the video
testimony itself, or was this about everything?

A. I didn’t take it as that. I took it as he had a problem with every
piece of this case, every--from beginning to end up until the point that he
was too cowardly to come into the courtroom at sentencing. So, no, I
didn’t take it as specifically he had a problem with the--the--I mean I can’t
get into his mind, but this was what I was dealing with from the--from the
beginning to the end of this case, so I didn’t specifically take it as he had a
problem with the videotape. It’s just he had a problem with the fact that he
was on trial for raping two little girls.

At this point, the trial court had defense counsel read this Court’s order, Buie, 485 Mich

1105, explaining that the court would be asking defense counsel to address a conclusion

reached in Justice CORRIGAN’s separate statement “so that as clearly as possible, there be

no question about what [defense counsel] intended or--or what happened.” After defense

counsel had done so, the court asked defense counsel:

Q. According to Justice Corrigan, you never objected to the use of a
two-way, interactive video technology for taking Dr. Palusci and Dr.
Wolfarth’s testimony. Is that true or false?

A. I never--I never objected.

Q. So the statement of Justice Corrigan is true?

A. It is.

6
 Defendant also testified at the evidentiary hearing. He explained that he and

defense counsel did not get along and that he had requested a new attorney. He further

claimed that he had no knowledge of the video testimony until it was about to happen.

With regard to the video testimony, defendant explained:

A. I told [defense counsel] that I just didn’t--it just didn’t feel right.
I said, “Shouldn’t they be in the witness chair?”

Q. And what did [defense counsel] do after you told her that?

A. No, I told her--I told her I didn’t feel right about it, they should
be in the witness chair, and she said, “Everything is going to be all right.” I
said, “Well, I want you to get up and object to it because it just don’t seem
right.”

Q. Okay. And did she get up and say something?

A. Yes.

Q. And what did she say?

A. She didn’t say the word object like I told her. She--

Q. But this statement that we’ve read at this hearing today about
questioning the veracity of the proceedings, is that when she made that
statement?

A. Yes.

Following this hearing, the trial court issued a written opinion and order holding

that there was no error in permitting the video testimony. After hearing the witnesses’

testimony and evaluating their demeanor and credibility, the court found that “Defendant

consented to the taking of testimony by video when his counsel stated on the record that

Defendant wanted to question of the veracity [of the] proceedings but left it to [the] trial

7
court’s discretion whether to proceed” and “according to [defense counsel], Defendant

did not object to the video testimony. His intent was to object to the proceedings in

general because he disliked being prosecuted.” Because the Court of Appeals had

retained jurisdiction, this case then returned to it. With the benefit of the supplemental

record, the Court of Appeals concluded that (1) contrary to the trial court’s factual

findings, defendant had objected to the video procedure, (2) the testimony had violated

both the Confrontation Clause and MCR 6.006(C), and (3) the resultant error amounted

to plain error. Buie II, 291 Mich App at 274-276. Accordingly, it reversed the trial court

and vacated defendant’s convictions and sentences. The prosecutor appealed, and we

granted leave. People v Buie, 489 Mich 938 (2011).

II. STANDARD OF REVIEW
We review the trial court’s factual findings for clear error. People v Cress, 468

Mich 678, 691; 664 NW2d 174 (2003). We review de novo questions of constitutional

law and issues of statutory interpretation, City of Taylor v Detroit Edison Co, 475 Mich

109, 115; 715 NW2d 28 (2006), and we interpret court rules using the “same principles

that govern the interpretation of statutes,” Ligons v Crittenton Hosp, 490 Mich 61, 70;

803 NW2d 271 (2011).
III. ANALYSIS

At issue in this case is how the waiver of the rights allowed defendants under the

Confrontation Clauses of our state and federal constitutions is to be effected and whether

the use of video testimony satisfied the requirements of MCR 6.006(C).

8
 A. CONFRONTATION CLAUSE

The Confrontation Clauses of our state and federal constitutions provide that in all

criminal prosecutions, the accused has the right to be confronted with the witnesses

against him. US Const, Am VI; Const 1963, art 1, § 20. The United States Supreme

Court has held “that the Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of fact,” Coy v Iowa, 487 US 1012,

1016; 108 S Ct 2798; 101 L Ed 2d 857 (1988), but has also held that “the face-to-face

confrontation requirement is not absolute,” Craig, 497 US at 850. In Craig, the Court

articulated a two-part test for dispensing with face-to-face confrontation: first, the denial

of such confrontation must be “necessary to further an important public policy” or state

interest and, second, denial is permitted “only where the reliability of the testimony is

otherwise assured.” Id. at 850, 852. Whether the second prong has been satisfied is

assessed by three indicators: (1) the taking of an oath, (2) the availability of cross-

examination, and (3) the observation of the witness by the jury. Id. at 845-846, 851,

citing California v Green, 399 US 149, 158; 90 S Ct 1930; 26 L Ed 2d 489 (1970).

B. GENERAL WAIVER PRINCIPLES

“Waiver is the ‘intentional relinquishment or abandonment of a known right.’”

People v Carines, 460 Mich 750, 762-763 n 7; 597 NW2d 130 (1999), quoting United

States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (quotation

marks omitted). The United States Supreme Court explained in Olano:

Whether a particular right is waivable; whether the defendant must
participate personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at stake. See,

9
 e.g., 2 W. LaFave & J. Israel, Criminal Procedure § 11.6 (1984) (allocation
of authority between defendant and counsel); Dix, Waiver in Criminal
Procedure: A Brief for More Careful Analysis, 55 Texas L. Rev. 193
(1977) (waivability and standards for waiver). [Olano, 507 US at 733.]
This Court has recognized that “[w]hile the defendant must personally make an informed

waiver for certain fundamental rights such as the right to counsel or the right to plead not

guilty, for other rights, waiver may be effected by action of counsel.” People v Carter,

462 Mich 206, 218; 612 NW2d 144 (2000). In New York v Hill, 528 US 110, 114-115;

120 S Ct 659; 145 L Ed 2d 560 (2000), the United States Supreme Court explained at

greater length:

“Although there are basic rights that the attorney cannot waive
without the fully informed and publicly acknowledged consent of the client,
the lawyer has—and must have—full authority to manage the conduct of
the trial.” Taylor v. Illinois, 484 U.S. 400, 417-418 [108 S Ct 646; 98 L Ed
2d 798] (1988). As to many decisions pertaining to the conduct of the trial,
the defendant is “deemed bound by the acts of his lawyer-agent and is
considered to have ‘notice of all facts, notice of which can be charged upon
the attorney.’” Link v. Wabash R. Co., 370 U.S. 626, 634 [82 S Ct 1386; 8
L Ed 2d 734] (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 [25 L Ed
955] (1880)). Thus, decisions by counsel are generally given effect as to
what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 [103 S
Ct 3308; 77 L Ed 2d 987] (1983), what evidentiary objections to raise, see
Henry v. Mississippi, 379 U.S. 443, 451 [85 S Ct 564; 13 L Ed 2d 408]
(1965), and what agreements to conclude regarding the admission of
evidence, see United States v. McGill, 11 F. 3d 223, 226-227 (CA1 1993).
Absent a demonstration of ineffectiveness, counsel’s word on such matters
is the last.

Additionally, we asserted in Carter, 462 Mich at 215:

“One who waives his rights under a rule may not then seek appellate
review of a claimed deprivation of those rights, for his waiver has
extinguished any error.” United States v Griffin, 84 F3d 912, 924 (CA 7,
1996), citing Olano, [507 US] at 733-734.

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 C. CONFRONTATION CLAUSE WAIVER

There is no doubt that the right of confrontation may be waived and that waiver

may be accomplished by counsel. This fact was recently reaffirmed in Melendez-Diaz v

Massachusetts, 557 US 305, ___ n 3; 129 S Ct 2527, 2534 n 3; 174 L Ed 2d 314 (2009)

(stating that “[t]he right to confrontation may, of course, be waived, including by failure

to object to the offending evidence”), but was also recognized a century ago in Diaz v

United States, 223 US 442; 32 S Ct 250; 56 L Ed 500 (1912).1 In Diaz, a defendant was

convicted of homicide, in part on the basis of testimony from an earlier trial2 that had

been introduced by defense counsel. Diaz, 223 US at 449, 444. The Court considered

whether counsel’s introduction of the prior record waived the defendant’s right of

confrontation and explained that a defendant is “free to assert [his right of confrontation]

or to waive it, as to him may seem advantageous.” Id. at 450. The Court concluded that

because “the accused, by his voluntary act, placed in evidence the testimony disclosed by

the record in question, and thereby sought to obtain an advantage from it, he waived his

right of confrontation . . . .” Id. at 452-453. Thus, the Court made clear that defense

counsel may waive the right of confrontation on a defendant’s behalf.

1
Diaz involved crimes committed in the Philippine Islands while the United States was
its sovereign. Thus, the right of confrontation at issue arose under the Philippine Civil
Government Act, which provided defendants the right “‘to meet the witnesses face to
face.’” Diaz, 223 US at 449. However, the Supreme Court decided the relevant issue by
considering “cases relating to the like right secured by the constitutions of the several
States and the Constitution of the United States.” Id. at 450-451 (emphasis added).
2
That earlier trial involved an assault and battery that caused injuries to which the victim
had succumbed by the time of the conviction at issue in Diaz.

11
 Among the cases cited in support of this conclusion, our decision in People v

Murray, 52 Mich 288; 17 NW 843 (1883), was given particular emphasis. Diaz, 223 US

at 451-452. In Murray, defense counsel at trial stipulated the admission of witness

depositions. After the defendant was convicted of murder, the defendant argued on

appeal that these stipulations had violated his right of confrontation. Justice COOLEY

responded for the Court:

A chief ground of error relied upon is that the prosecution was
allowed to put in evidence certain depositions taken out of court of
witnesses not present at the trial. The facts seem to be that the attorneys for
the respective parties stipulated to put in certain depositions on both sides,
and they were put in accordingly. This, it is said, was in violation of the
respondent’s constitutional right to be confronted with his witnesses. But
the court made no ruling in the matter; what was done was voluntarily done
by the parties; the defendant had the benefit of the stipulation, and, for
aught we can know, it may have been made chiefly in his interest. But
however that may be, when the court has made no ruling we can have
nothing to review. This Court cannot relieve a party from a criminal
conviction because of his own voluntary action on the trial.

It is said the counsel for respondent was counsel assigned to him by
the court and may not have been counsel of his choice. We do not know
how the fact was, but we know it is customary to allow the respondent to
choose for himself. But however that may be, the counsel acted for the
respondent without objection, and without complaint that he did not do the
best he could for him.

The defendant undoubtedly had a constitutional right to be
confronted with his witnesses. He waived that right in this case, apparently
for his own supposed advantage and to obtain evidence on his own behalf.
It would have been a mere impertinence for the court to have interfered and
precluded this stipulation being acted upon. But it would have been more
than an impertinence; it would have been gross error. And it would be
palpable usurpation of power for us now to set aside a judgment for a
neglect of the court not at the time complained of, but in respect to
something where any other course would have been plain error.

12
 Under the view taken by the respondent it would seem that when the
evidence had been obtained under his stipulation, the court was put in
position where it was impossible to avoid error; for if the evidence was
received, he might complain, as he does now, that his constitutional right
was violated, and if the court refused to receive it when he was consenting,
the respondent would be entitled to have the conviction set aside for that
error.

I shall always be ready to preserve in its integrity every
constitutional right; but I do not understand that the Constitution is an
instrument to play fast and loose with in criminal cases any more than in
any other, or that it is the business of courts to be astute in the discovery of
technical difficulties in the punishment of parties for their criminal conduct.
[Murray, 52 Mich at 290-291.]

For more than a century Murray has stood for two propositions in this state: (1) the right

of confrontation may be waived3 and (2) that waiver may be effected by counsel.4

3
See, e.g., People v Miller, 121 Mich App 691, 702 n 6; 329 NW2d 460 (1982), citing
Murray, 52 Mich 288 (“Among the rights which an accused may waive are: right to
confront witnesses . . . .”). In United States v Aptt, 354 F3d 1269 (CA 10, 2004), the
court stated:

A defendant is free to waive objections to evidence by stipulation,
perhaps “to obtain evidence on his own behalf” or in return for other
concessions from the prosecution. Diaz, [223 US at 451] (quoting [Murray,
52 Mich at 290]). In such contexts, admitting the stipulated evidence is so
far from being error that it would be an “impertinence” and “gross error”
for a court to interfere with the stipulation. [Diaz, 223 US] at 452.

See also Belt v United States, 4 App DC 25, 31 (1894) (citing Murray for the same
proposition).
4
See, e.g., People v Baker, 7 Mich App 7, 11; 151 NW2d 217 (1967):

Defense counsel, after the prosecutor made this statement here
complained of, corroborated the prosecutor’s statement by replying: ‘That’s
correct.’ Defense counsel is an able and experienced practitioner who has
tried many cases in the criminal courts in this jurisdiction. He was
undoubtedly aware that his client had a constitutional right to be confronted

13
Michigan has not been alone in accepting these propositions. See part III(D) of this

opinion.

D. CONFRONTATION CLAUSE WAIVER BY COUNSEL

The majority of courts that have addressed this issue have concluded that the right

of confrontation may be waived, and that the waiver may be effected by counsel, as long

as counsel’s decision constitutes reasonable trial strategy and the defendant does not

object to the waiver.5 Indeed, these concerns were also present in Murray. Regarding

with the witnesses. There is no reversible error present in this second issue.
Cf. [Murray] 52 Mich 288.

See also People v Garcia, 51 Mich App 109, 114-115; 214 NW2d 544 (1974):

[S]ince the statute limiting the use of testimony taken at a former
hearing is designed to protect defendant’s right to confrontation, and this
right may be waived, [Murray, 52 Mich 288], it inexorably follows that the
stipulation by defendant’s counsel to allow the trial judge to read the
transcript could constitute a conscious choice of trial strategy on the part of
defendant’s attorney . . . .
5
Regarding federal courts, see, e.g., Janosky v St Amand, 594 F3d 39, 48 (CA 1, 2010),
citing Cruzado v Puerto Rico, 210 F2d 789, 791 (CA 1, 1954); United States v Plitman,
194 F3d 59, 63 (CA 2, 1999); United States v Stephens, 609 F2d 230, 232-233 (CA 5,
1980); United States v Reveles, 190 F3d 678, 683 n 6 (CA 5, 1999); United States v
Joseph, 333 F2d 1012, 1013 (CA 6, 1964); United States v Cooper, 243 F3d 411, 418
(CA 7, 2001) (“The majority of circuits that have addressed this question have held or
stated that a defendant’s attorney can waive his client’s . . . confrontation right ‘so long as
the defendant does not dissent from his attorney’s decision, and so long as it can be said
that the attorney’s decision was a legitimate trial tactic or part of a prudent trial
strategy.’”); United States v Robinson, 617 F3d 984, 989-990 (CA 8, 2010); United States
v Gamba, 541 F3d 895, 900-901 (CA 9, 2008), citing Wilson v Gray, 345 F2d 282, 287-
288 (CA 9, 1965); and Hawkins v Hannigan, 185 F3d 1146, 1155-1156 (CA 10, 1999).

Regarding state courts, see, e.g., People v Campbell, 208 Ill 2d 203, 217; 802
NE2d 1205 (2005) (adopting the majority view that “counsel may waive a defendant’s
right of confrontation as long as the defendant does not object and the decision to

14
trial strategy, it was implicit in Murray that counsel’s waiver would have been in the

defendant’s interest.6 That aim is presumed, as shown by the Court’s comment that “for

aught we can know, it may have been made chiefly in his interest.” Murray, 52 Mich at

290. This presumption is in line with recent caselaw. “[A] defendant must overcome the

strong presumption that his counsel’s action constituted sound trial strategy under the

circumstances.” People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000), citing

People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997); see also People v Carbin,

463 Mich 590, 601; 623 NW2d 884 (2001). It is also in line with Hill’s explanation that

“decisions by counsel are generally given effect as to . . . what evidentiary objections to

raise . . . . Absent a demonstration of ineffectiveness, counsel’s word on such matters is

the last.” Hill, 528 US at 115.

It is also implicit in Murray that any objection a defendant may have must be

made on the record. This is supported by Justice COOLEY’s statement that “when the

court has made no ruling we can have nothing to review,” Murray, 52 Mich at 290, which

suggests that a defendant must object in such a way that the trial court must respond with

stipulate is a matter of trial tactics and strategy”); Lee v State, 266 Ark 870, 876-877; 587
SW2d 78 (Ark App, 1979); State v Oyama, 64 Hawaii 187, 188; 637 P2d 778 (1981);
Waldon v State, 749 So 2d 262, 266 (Miss App, 1999); State v Bromwich, 213 Neb 827,
830; 331 NW2d 537 (Neb, 1983); Ludlow v State, 761 P2d 1293, 1295 (Okla Crim App,
1988); State v Harper, 33 Wash App 507, 510; 655 P2d 1199 (1982); Bilokur v
Commonwealth, 221 Va 467, 473; 270 SE2d 747 (1980).
6
Murray, 52 Mich at 290 (noting that the defendant “waived that right in this case,
apparently for his own supposed advantage and to obtain evidence on his own behalf”)
(emphasis added).

15
a ruling. As Murray stated, it is not “the business of courts to be astute in the discovery

of technical difficulty,” and in fact “it would be palpable usurpation of power for us now

to set aside a judgment for a neglect of the court not at the time complained of . . . .” Id.

at 290-291 (emphasis added). Rather, those difficulties must be brought to the court’s

attention by the parties. Again, as Justice CORRIGAN articulated:

Defense counsel cannot acquiesce to the court’s handling of a matter
at trial, only to later raise the issue as an error on appeal. A contrary result
would run afoul of the well-established legal principle that a defendant
must “raise objections at a time when the trial court has an opportunity to
correct the error” [People v Grant, 445 Mich 535, 551; 520 NW2d 124
(1994)] and cannot “harbor error as an appellate parachute.” [People v
Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).] [Buie, 485 Mich at
1107 (CORRIGAN, J., concurring in part and dissenting in part) (citation
omitted).]

Other courts have indicated that objections must be made on the record. For instance,

they have found waiver where the defendant failed to “manifest” dissent,7 where there

was no “evidence” that the defendant disagreed with counsel’s objection,8 and where the

defendant “indicated” no dissent.9 In addition, courts have held that “[w]here the

7
See Cruzado, 210 F2d at 791 (“When an accused is represented by counsel, it is
generally to be assumed that counsel adapts his trial tactics to what in his judgment is for
the best interests of the accused. If the accused, being present, manifests no dissent, it is
usually fair to assume that he approves of, or at least acquiesces in, the decisions taken in
open court in his behalf by his counsel.”).
8
See Hawkins, 185 F3d at 1155-1156 (holding that defense counsel effectively waived
the defendant’s right of confrontation where counsel’s decision to stipulate to testimony
was a matter of prudent trial strategy and “there [wa]s no evidence that [the defendant]
disagreed with or objected to his counsel’s decision”).
9
See Joseph, 333 F2d at 1013 (holding that the right to confrontation “may be effectively
waived by counsel in open court in the presence of an accused who indicates no dissent”).

16
defendant is ‘aware of the stipulation . . . [and does] not object to the stipulation in court,’

we presume that he has acquiesced in his counsel’s stipulation.” United States v

Robinson, 617 F3d 984, 989-990 (CA 8, 2010), citing United States v Lee, 374 F3d 637,

650 (CA 8, 2006).

Further, Murray itself underscored the practical concern that allowing a defendant

to object to defense counsel’s consent off the record provides a defendant with “an

appellate parachute.” Under such a rule, a defendant might acquiesce in or even

expressly agree with defense counsel’s waiver outside of court and then claim to have

objected behind closed doors, or even in his own mind, when he does not enjoy the

outcome he desires. In light of the obvious impracticalities of such a rule, we reaffirm

the rule applied in Murray, and consonant with the rule applied in a majority of state and

federal courts, that where the decision constitutes reasonable trial strategy, which is

presumed, the right of confrontation may be waived by defense counsel as long as the

defendant does not object on the record.10

In reaffirming this rule, we also clarify that the right of confrontation is not a right

that must be personally waived by the defendant in Michigan, despite our Court of

Appeals’ decision in People v Lawson, 124 Mich App 371, 376; 335 NW2d 43 (1983), in

which the Court asserted:

10
This rule is largely in agreement with the rule articulated by the Court of Appeals
below that “defense counsel may only waive a defendant’s right of confrontation if the
waiver is a legitimate trial tactic or strategy and the defendant does not object to the
decision.” Buie II, 291 Mich App at 272.

17
 The res gestae rule in Michigan strengthens the confrontation
clause’s guarantees. However, it is not as integral a part as cross-
examination, the oath, and demeanor. As such, a defense counsel can
waive this particular right for a defendant. On the other hand, the more
integral rights of the confrontation clause must be personally waived by the
defendant. In Brookhart [v Janis, 384 US 1; 86 S Ct 1245; 16 L Ed 2d 314
(1966)], the Supreme Court reversed the defendant’s conviction because the
record did not clearly show that the defendant himself (rather than defense
counsel) waived his confrontation right to cross-examine the witnesses
against him.

Lawson’s conclusion that “the more integral rights of the confrontation clause must be

personally waived by the defendant” is incompatible with Murray and with the widely

accepted rule that counsel may waive the right of confrontation. Further, Lawson

misread Brookhart, its primary authority for the personal-waiver requirement. Although

Brookhart discussed confrontation, the dispositive issue in that case concerned

whether counsel has power to enter a plea which is inconsistent with his
client’s expressed desire and thereby waive his client’s constitutional right
to plead not guilty and have a trial in which he can confront and cross-
examine the witnesses against him. [Brookhart, 384 US at 7.]

Thus, Brookhart merely dealt with waiver of the right to plead not guilty, not waiver of

the right of confrontation. Accordingly, Brookhart does not stand for the proposition that

a defendant must personally waive the right of confrontation.

As the Court of Appeals below correctly indicated, “the personal waiver rule

articulated by [Lawson] is dictum and is, therefore, not binding.” Buie II, 291 Mich App

at 272. Still, Lawson has been cited in a number of other cases, including Buie I,11 as

11
See, e.g., People v Farquharson, 274 Mich App 268, 277; 731 NW2d 797 (2007).
Several Court of Appeals decisions have also cited Lawson for the general proposition
that waiver must be made by a defendant, but concluded that “[t]he right of confrontation

18
well as by defendant,12 for the proposition that personal waiver of the “integral elements

of the Confrontation Clause” is required. Buie I, 285 Mich App at 418. For the reasons

we have set forth, this is not a correct statement of law, and we take this opportunity to

overrule that portion of Lawson.

In sum, we adopt the following rule to govern the waiver of the right of

confrontation by counsel in Michigan: if the decision constitutes reasonable trial strategy,

which is presumed, the right of confrontation may be waived by defense counsel as long

as the defendant does not object on the record.13

is not of such moment that it requires waiver by the defendant personally when he is
represented by counsel.” People v Johnson, 70 Mich App 349, 350; 247 NW2d 310
(1976). See, e.g., People v Bartley, unpublished opinion per curiam of the Court of
Appeals, issued December 16, 2010 (Docket No. 294149), p 6; People v Powe,
unpublished opinion per curiam of the Court of Appeals, issued November 17, 2009
(Docket No. 286175), p 3.
12
Defendant claims that People v Saffold, 465 Mich 268, 281; 631 NW2d 320 (2001),
requires personal waiver of the right of confrontation because confrontation is among the
rights of which a defendant must be advised before a valid guilty plea may be entered.
Though it is true that a defendant must be advised of the right of confrontation before
pleading guilty, People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), that does not
suggest that the right itself must be personally waived. Rather, the purpose of the
articulation of that right in Jaworski, not unlike in Brookhart, was to ensure that a
defendant knowingly pleads guilty-- that is, that the defendant is aware of the rights that
are waived by pleading guilty.
13
Although the dissent concedes that “defense counsel failed to communicate a
cognizable objection” at trial, it takes issue with our requirement that a defendant’s
objection must be “on the record.” Post at 3. The dissent concludes that our opinion
“allows a defense attorney to waive a criminal defendant’s right of confrontation despite
the defendant’s unequivocal objection to the attorney” if an attorney “fails to voice a
proper objection . . . .” Post at 3. However, a counsel’s failure to object may result in the
waiver of a defendant’s rights in many instances. The dissent overlooks that a defendant
may seek relief in such instances by establishing that defense counsel rendered

19
 E. APPLICATION OF WAIVER

Clear error is present when the reviewing court is left with a “definite and firm

conviction” that an error occurred. Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243

NW2d 244 (1976). Because an objection must be on the record, the focus should be on

what transpired at trial and whether the trial court should reasonably have concluded that

defense counsel objected to the use of the video technology. In this case, the trial court

implicitly determined that there had been no objection to the video testimony because it

never ruled on any such objection.

Immediately before Palusci testified, defense counsel stated:

I understand this is this particular courtroom’s first attempt at this
type of technological proceeding, and my client has--wanted to question the
veracity of these proceedings, so I’ll leave that to the Court’s discretion.

A review of the record indicates that this statement did not constitute an objection for

several obvious reasons. First, the statement is not phrased as an objection, and indeed

the word “objection” is altogether missing. Second, as Justice CORRIGAN explained,

“When defense counsel stated ‘I’ll leave that to the Court’s discretion,’ defendant

essentially acquiesced to the taking of testimony using two-way interactive video

technology.” Buie, 485 Mich at 1107 (CORRIGAN, J., concurring in part and dissenting in

part). Third, in the immediate aftermath of counsel’s statement, the trial court had a

member of its information technology staff explain how the video equipment worked,

ineffective assistance. Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d
674 (1984).

20
which clearly suggests that the court believed that the statement did not constitute an

objection but constituted a request for further information about the operation of the

video equipment. Fourth, immediately after the discussion regarding the equipment,

Palusci testified without further complaint by counsel. If counsel’s statement had been

intended as an objection, we would expect that she might have questioned the trial court’s

response of having the staff explain how the equipment would work, since that response

would have been entirely unresponsive to an objection. Fifth, no statement or complaint

was made before the video testimony of Wolfarth. The record strongly suggests that the

trial court concluded, and did so correctly, that defense counsel’s statement had not

constituted an objection to the procedures the court adopted. Nevertheless, the Court of

Appeals overlooked this record and focused entirely on the evidentiary hearing,

reasoning:

Given the testimony of both defendant and defense counsel at the
evidentiary hearing on remand, we cannot conclude that defendant
consented to the video procedure through counsel. To the contrary,
defendant objected to the use of the technology and had counsel place his
objection on the record. Because defendant expressly objected to the use of
the technology, defense counsel’s agreement with its use does not qualify
as a waiver . . . . [Buie II, 291 Mich App at 274.][14]

Although the Court of Appeals disagreed with the trial court’s factual findings, it failed to

articulate how those findings constituted clear error. That is, it did not explain how it was

14
When the Court of Appeals stated earlier in its opinion that “defendant failed to object
to the use of the video technology on the grounds he raises on appeal,” it was presumably
indicating that defendant did not object on the record. Buie II, 291 Mich App at 268. If
this presumption is correct, it alone is a sufficient basis to reverse the Court of Appeals
because a defendant’s objection must be on the record, as discussed earlier.

21
left with a “definite and firm conviction” that an error had occurred. Tuttle, 397 Mich at

46. We are certainly not left with such a conviction. Therefore, we must defer to the trial

court’s findings of fact-- specifically, that defendant did not object to the use of the video

testimony. That this decision constituted reasonable trial strategy is a presumption that

was never addressed, much less rebutted. Indeed, at the evidentiary hearing, defense

counsel stated that she did not have any problem with Palusci and Wolfarth testifying by

video. Accordingly, the trial court’s findings were not clearly erroneous, and we believe

that defendant, through his counsel, waived his right of confrontation and “extinguished

any error” that may have been committed. Carter, 462 Mich at 215.

F. MCR 6.006(C)
Defendant also challenges the admission of the video testimony on the basis that it

occurred in violation of MCR 6.006(C), which governs the use of video and audio

technology in judicial proceedings. MCR 6.006(C) provides, in pertinent part:

Defendant in the Courtroom—Other Proceedings. As long as the
defendant is either present in the courtroom or has waived the right to be
present, upon a showing of good cause, district and circuit courts may use
two-way interactive video technology to take testimony from a person at
another location in the following proceedings:

(1) evidentiary hearings, competency hearings, sentencings,
probation revocation proceedings, and proceedings to revoke a sentence
that does not entail an adjudication of guilt, such as youthful trainee status;

(2) with the consent of the parties, trials. A party who does not
consent to the use of two-way interactive video technology to take
testimony from a person at trial shall not be required to articulate any
reason for not consenting. [Emphasis added.]

22
MCR 6.006(C)(2) only allows video testimony “with the consent of the parties.” MCR

6.003(1) defines “party,” as it applies in MCR 6.006, to include the “lawyer representing

the party.” Thus, “parties” in MCR 6.006(C)(2) encompasses both the lawyer and the

client, and the lawyer may consent on behalf of his or her client. Still, it does not follow

that this consent overrides an objection by the defendant because both the defendant and

defense counsel comprise the “party.” Thus, if either the defendant or counsel objects,

the “party” cannot be said to have consented. However, as with the Confrontation

Clause, for the defendant’s objection to be valid, it must be made on the record.

Otherwise, the trial court has no way of discerning that an error may have been

committed. Accordingly, for the reasons stated in our analysis of Confrontation Clause

waiver, we also conclude that defense counsel consented to the use of the video

technology and that defendant did not object on the record.

Defendant also argues that the use of “good cause” in MCR 6.006(C) imports the

constitutional standard from Craig for dispensing with confrontation, to wit, that the

“cause” be “necessary to further an important public policy” or “state interest.” We

reject this argument. The court rule does not refer to Craig or its standard. There is a

substantive distinction between “good cause” and “necessary to further an important state

interest,” and we have adopted only the former language. “Good cause” simply means a

“satisfactory,” “sound or valid” “reason,” whereas “necessary” means “essential” or

“indispensible.” Random House Webster’s College Dictionary (1997). Moreover, under

the court rule there is no need to identify a corresponding state interest; any sound reason

is sufficient.

23
 Because a trial court “may use two-way interactive video technology to take

testimony from a person at another location,” MCR 6.006(C) (emphasis added), the

decision to do so is reviewed for an abuse of discretion. The use of the word “may”

makes clear that the decision is “a matter left to the discretion of the trial court,” Warda v

Flushing City Council, 472 Mich 326, 332; 696 NW2d 671 (2005), and discretionary

decisions are reviewed for abuse of discretion, see Detroit Tug & Wrecking Co v Gartner,

75 Mich 360, 361; 42 NW 968 (1889). An abuse of discretion occurs when the trial court

chooses an outcome falling outside the range of principled outcomes. People v Babcock,

469 Mich 247, 269; 666 NW2d 231 (2003). In this case, in which both parties apparently

consented to the use of video testimony, the trial court did not choose an outcome falling

outside the range of principled outcomes by concluding that convenience, cost, and

efficiency were sound reasons for using video testimony. That is, the trial court did not

abuse its discretion by concluding that good cause for using video testimony was shown.

Thus, MCR 6.006(C) was satisfied, and the use of video testimony was proper.

IV. CONCLUSION
This case presents two issues: (1) whether defendant’s constitutional right to be

confronted with the witnesses against him was violated by the admission of video

testimony and (2) whether the admission of video testimony violated MCR 6.006(C).

Because we conclude that defendant waived his right of confrontation under the United

States and Michigan Constitutions and that the court rule was not violated, we reverse the

24
Court of Appeals’ judgment and remand to that Court for consideration of defendant’s

remaining issues.

Stephen J. Markman
Robert P. Young, Jr.
Mary Beth Kelly
Brian K. Zahra

25
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 142698

JAMES HENRY BUIE,

Defendant-Appellee.

HATHAWAY, J. (concurring in the result).

I concur in the result only in this factually unique case.

Diane M. Hathaway
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 142698

JAMES HENRY BUIE,

Defendant-Appellee.

CAVANAGH, J. (dissenting).

I respectfully dissent and would affirm the judgment of the Court of Appeals,

which vacated defendant’s convictions and remanded for a new trial.

I would hold first that the public policies or state interests that the trial court relied

on to justify allowing the two-way, interactive video testimony did not outweigh

defendant’s right of confrontation, as guaranteed by the United States and Michigan

Constitutions. US Const, Am VI; Const 1963, art 1, § 20. Pursuant to Maryland v Craig,

497 US 836, 850, 852; 110 S Ct 3157; 111 L Ed 2d 666 (1990), a trial court may only

employ a procedure that infringes on a defendant’s right of confrontation if the court has

made an individualized finding that the “denial of such confrontation is necessary to

further an important public policy” or “important state interest.”1 On remand, the trial

1
Because both Dr. Vincent Palusci and Rodney Wolfarth took the oath to testify
truthfully, were subject to cross-examination, and could be observed by the jury when
testifying, I agree that the use of the two-way, interactive video technology in this case
implicates only the “physical presence” requirement of the Confrontation Clause. See
Craig, 497 US at 845-846 (noting that the right of confrontation includes four elements:
court in this case cited cost savings, efficiency, convenience of the witnesses, and

avoiding delay as the public policies or state interests justifying the video testimony, yet

failed to explain how these interests were important enough to outweigh defendant’s right

of confrontation. I would hold that cost savings, efficiency, convenience of the

witnesses, and avoiding delay are not sufficiently important state interests to justify the

abrogation of a defendant’s right of confrontation.

In my view, the majority improperly avoids the aforementioned issue under Craig

by concluding that defendant waived his right of confrontation through his attorney when

the attorney stated, “I understand this is this particular courtroom’s first attempt at this

type of technological proceeding, and my client has--wanted to question the veracity of

these proceedings, so I’ll leave that to the Court’s discretion.”2 Assuming arguendo that

defense counsel’s statement that she would leave the matter to the discretion of the trial

court constituted an attorney’s waiver, I disagree with the majority’s conclusion that

defense counsel’s statement effected a valid waiver of defendant’s right of confrontation.

Rather, I would hold that there can be no effective waiver of that right by an attorney

when the record clearly shows that the attorney’s purported waiver was in direct

contravention of the defendant’s express objection. As the majority notes, defense

counsel admitted on remand that her statement to the trial court that her client wanted “to

question the veracity of these proceedings” was “[a]bsolutely” her expression of

“physical presence, oath, cross-examination, and observation of demeanor by the trier of
fact”).
2
In my view, the meaning of this statement is so inscrutable that the trial court should
have inquired further to determine whether defendant was objecting.

2
defendant’s objection to the use of two-way video testimony. Defense counsel later

admitted, however, that she never actually objected. Consistently with defense counsel’s

testimony, defendant testified on remand that he instructed his attorney to object and that

she stood and made the “veracity of the proceedings” statement, but never used the word

“object.” Thus, it is clear that defendant objected, voiced his objection to his attorney,

and instructed her to object, yet defense counsel failed to communicate a cognizable

objection despite her client’s instruction.

The majority acknowledges that an attorney cannot waive a client’s core

constitutional right of confrontation over the client’s objection. Yet the majority’s

opinion condones an attorney’s decision to make no cognizable objection, even though

the attorney is aware that her client wishes to object. By holding that “the right of

confrontation may be waived by defense counsel as long as the defendant does not object

on the record,” ante at 19, the majority essentially charges criminal defendants with the

legal knowledge and skill of an attorney. Under the majority’s new rule, when an

attorney fails to voice a proper objection to a procedure that implicates a core

constitutional right, the defendant will be required to know the legal basis for the

objection, override his attorney, and make the objection on the record himself. It is the

attorney’s duty to object, not the client’s. In my view, the majority opinion allows a

defense attorney to waive a criminal defendant’s right of confrontation despite the

defendant’s unequivocal objection to the attorney.

Additionally, while I agree with the majority opinion that the good-cause standard

for use of two-way video testimony in MCR 6.006(C) is not synonymous with the Craig

standard of “necessary to further an important public policy” or “state interest,” I do not

3
agree with the majority that defendant consented under MCR 6.006(C)(2). The same

facts that support my conclusion that defendant did not waive his right of confrontation

support my conclusion that defendant did not consent to the video testimony. Therefore,

I would affirm the Court of Appeals’ judgment and hold that the video testimony was not

properly admitted under MCR 6.006(C).

Finally, I agree with the Court of Appeals that the error affected the outcome of

the proceedings because the chain of evidence for the DNA could not have been

established without the foundational testimony provided by Palusci and Wolfarth.

Therefore, I respectfully dissent and would affirm the Court of Appeals’ decision

to vacate defendant’s convictions and sentences and remand for a new trial. The right of

confrontation is too important for a court to condone an attorney’s waiver or consent over

the unequivocal objection of a criminal defendant.

Michael F. Cavanagh
Marilyn Kelly

4