Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 24, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 117375
THOMAS TODD KRUEGER,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
Defendant was charged with and convicted by a jury of one
count of first-degree criminal sexual conduct1 and one count
of attempted second-degree criminal sexual conduct.2 He
1
MCL 750.520b(1)(a) (penetration of a victim under
thirteen).
2
MCL 750.520c(1)(a) (sexual contact with a victim under
thirteen).
appeals, claiming that he was deprived of his constitutional3
and statutory4 right to be present at trial when the trial
judge removed him from the courtroom while the complainant
testified.
We conclude that under MCL 768.3 a defendant has a right
to be physically present at trial. The trial judge's decision
to remove this defendant from the courtroom while taking
testimony from the complainant constituted error requiring
reversal.
I. Facts and Proceedings
The complainant was five years of age at the time of
trial and initially named someone other than defendant as
having committed the sexually abusive acts in question.
Eventually she accused the defendant, her father,5 of the
sexual abuse. He denied the charges. At defendant's
preliminary examination, it became clear that the complainant
likely would be unable to testify in court at trial. Her
preliminary examination testimony was obtained on videotape in
closed chambers with only the judge, a social worker, and the
attorneys present. Defendant was bound over for trial.
3
US Const, Am VI ; Const 1963, art 1, § 20.
4
MCL 768.3.
5
Defendant and the child's mother were divorced shortly
before the child was born.
2
At trial, the judge entertained the prosecution's
pretrial motion to use the statutory procedures of MCL
600.2163a6 to allow the child to testify outside the
defendant's presence. Over defendant's objection, the judge
instead removed defendant from the courtroom and allowed the
child to testify in his absence. The courtroom was closed to
everyone but the jury, a social worker, the attorneys, a law
enforcement officer, and the court's staff.
Defendant was allowed to watch the child's testimony on
closed circuit television and to confer with counsel during
the single recess that was called. To assist with this, the
defendant was permitted to take notes with a pencil and paper.
The judge explained defendant's absence from the courtroom to
the jury in the following instruction:
I have made a decision, ladies and gentlemen,
that the defendant will not be present in the
courtroom during the testimony. However, we have
made arrangements so that he can view the testimony
from another room. Okay?
The complainant told the jury of one incident where defendant
encouraged her to kiss his privates and of a second where he
6
MCL 600.2163a offers the judge several options for
protecting an underage witness in court, including clearing
the court of all people not necessary to the proceedings;
positioning the defendant so that the defendant is located far
from the witness stand, and allowing a witness' testimony to
be videotaped.
3
penetrated her digitally. The Court of Appeals affirmed the
conviction in an unpublished opinion.
II. The Statutory Violation
This case involves a question of statutory
interpretation, which we review de novo. People v Webb, 458
Mich 265, 274; 580 NW2d 884 (1998). We are asked whether the
trial court violated defendant's right under MCL 768.3 to be
present at his own trial. MCL 768.3 provides:
No person indicted for a felony shall be tried
unless personally present during the trial . . . .
The statute has its origin in the Revised Statutes of 1846,
ch 165, § 9.7 We have had few occasions to review this
statute previously, and those came in cases where we concluded
that the defendants had waived their right to be present. No
such waiver is presented here. Therefore, we must consider
whether the statutory term "personally present" mandates that
a defendant be physically present at trial.
We apply the ordinary meaning of "personally" and
"present."8 The primary meaning of "personally" is "in person;
7
See also 1857 CL 6076; 1871 CL 7955; How Stat 9568; 1897
CL 11951; 1915 CL 15824; 1929 CL 17296; 1948 CL 768.3.
8
As these are not technical terms or words of art, we
comply with the directive of the Legislature, given at MCL
8.3a, that: "All words and phrases shall be construed and
understood according to the common and approved usage of the
language . . . ." See Horace v Pontiac, 456 Mich 744, 756;
575 NW2d 762 (1998).
4
directly." Random House Webster's College Dictionary (1995).
The relevant meaning of "present" is "being with one or others
in the specified or understood place." Id. Given these
definitions, there can be no doubt that when a defendant is
physically removed from the courtroom during trial, he is not
personally present as required by MCL 768.3. Under the facts
of this case, the statute was violated.9
III. The Extent of the Error
There was a statutory error in this case that was
preserved by objection. It must be evaluated under the
standard for preserved, nonconstitutional error announced in
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
Under Lukity, the error is presumed not to be a ground for
reversal unless it affirmatively appears that, more probably
9
We are not suggesting that a defendant's statutory right
to be personally present under MCL 768.3 is absolute. Rather,
the facts of this case do not present a situation where the
statutory right can be abrogated. We recognize, also, that
a defendant's constitutional right to be present at trial is
not absolute. Diaz v United States, 223 US 442; 32 S Ct 250;
56 L Ed 500 (1912). For example, a defendant can lose his
Confrontation Clause right to be present in the courtroom
under the Sixth Amendment where he continues disruptive
behavior after being warned to refrain. Illinois v Allen, 397
US 337; 90 S Ct 1057; 25 L Ed 2d 353 (1970). See also People
v Staffney, 187 Mich App 660; 468 NW2d 238 (1991). However,
the facts that would lead to a defendant's removal under Allen
are not applicable here. There is no allegation that
defendant's behavior presented an obstacle to the trial
judge's ability to conduct the trial. Thus, we do not address
whether constitutional exceptions like that in Allen are
applicable to the right conferred by MCL 768.3.
5
than not, it was outcome determinative. As was explained in
People v Elston,10 "[a]n error is deemed to have been 'outcome
determinative' if it undermined the reliability of the
verdict." That determination requires that we "focus on the
nature of the error in light of the weight and strength of the
untainted evidence." Id. at 766.
The evidence of defendant's guilt presented a close
question. There were no third-party eyewitnesses, no medical
findings, and no confession. The complainant initially named
someone other than defendant as the person who had sexually
abused her. Under the circumstances, if there were an error
closely linked with the complainant's believability, it had a
high probability of influencing the verdict. The trial judge
instructed the jury that he had decided to remove defendant
from the courtroom. While the instruction made clear that
defendant's absence was not voluntary, the court did not
attempt to explain why the decision had been made or to allay
jury speculation about it.
Not only do these facts suggest that the proofs were not
overwhelming in this case, they illustrate that an effective
cross-examination of the complainant was vital to the defense.
Yet, in violation of his statutory right, defendant was
removed from the courtroom. Although he was permitted to view
10
462 Mich 751, 766; 614 NW2d 595 (2000).
6
the proceedings through closed-circuit television, he was
effectively unable to convey urgent lines of inquiry to his
lawyer.11 Defendant was provided with paper and pencil with
which to take notes and had the opportunity to consult with
his attorney only during a break in the complainant's
testimony. Additionally, he was deprived of the ability to
make the subtle statement by his presence and demeanor in
court that he was innocent of the charges made by his
daughter.
On the basis of the foregoing facts, we conclude that it
is more probable than not that the statutory error was outcome
determinative. Therefore, we find that the error requires
reversal.
IV. Conclusion
Under the facts of this case, we hold that defendant
should not have been removed from the courtroom while the
complainant testified. It is more probable than not that the
error was outcome determinative because the complainant's
11
Although the United States Supreme Court affirmed a
procedure that similarly separated a defendant from his
counsel in Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L
Ed 2d 666 (1990), that Court was not faced with the same right
to counsel issue presented here. In Craig, the witness
testified in a video deposition outside the defendant's
presence. However, he remained in constant electronic
communication with his counsel. Thus urgent questions and
objections could be made as if both were in the same room.
Id. at 841-842.
7
testimony was pivotal and the jury was left to speculate
adversely to defendant about his absence. We find it
unnecessary to reach the constitutional issue raised.
Defendant's conviction is vacated and the case is remanded for
retrial.
CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred with KELLY , J.
8