Opinion
359376
05-02-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY LAMONT-DSHAWN BROWN, Defendant-Appellant.
Eaton Circuit Court LC No. 2020-020080-FC
Before: LETICA, P.J., and N. P. HOOD and MALDONADO, JJ.
LETICA, P.J.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316(1)(a) (premeditated murder) and (b) (murder during commission of a felony), and possession of a firearm during commission of a felony (felony-firearm), MCL 750.227b(1). He was sentenced to life imprisonment for the first-degree murder conviction and a consecutive term of two years' imprisonment for the felony-firearm conviction. Defendant appeals as of right, and we affirm.
I. FACTUAL BACKGROUND
The victim was murdered after defendant and three others engaged in a ruse designed to convince the victim that they had arrived at his apartment to play a game of dice. Defendant and the victim exchanged messages about how defendant had found "easy pros" and was trying to "pay [the victim] back" and "make some money too." In light of these exchanges, the victim gave defendant his address. Defendant, his then 15-year-old codefendant, WF, and Neal Prince were permitted to enter the victim's apartment. However, the men left when the victim indicated that he did not have any dice.
For his role in the murder, WF entered into a plea agreement and was sentenced to a term of years. Prince was also convicted and his convictions were affirmed on appeal. See People v Prince, unpublished per curiam opinion of the Court of Appeals, issued February 1, 2022 (Docket No. 352799).
According to WF, defendant and the others left the victim's apartment and conferred in the parking lot. After discussing their strategy, defendant, WF, and Prince returned to the victim's apartment and were allowed to enter. Once in the apartment, WF shot the victim in the back, and defendant then shot the victim in the head twice. Unbeknownst to the murderers, the victim's roommate had a computer set up in the bedroom that recorded by motion sensor. Accordingly, the perpetrators were captured on video ransacking the bedroom in a series of video clips. Specific items stolen from the victim's apartment, including a backpack, foam shoes, and a cross pendant, as well as distinctive jeans worn by Prince during the murder, were recovered from Prince's home. Although defendant deleted his phone calls and social media activity at and near the time of the murder, his exchanges were nonetheless recovered through the phone records and social media accounts of the individuals with whom defendant communicated.
Additional testimony concerned defendant's interactions with Prince, which were reflected on Prince's phone and Facebook accounts. This evidence included that Prince proposed to defendant shortly after the murder that they "do it again," and defendant admonished Prince for posting rap lyrics about the murder on Facebook.
During an interview with the police, defendant denied any role in the victim's murder. But, in addition to the circumstantial evidence obtained through phone records and social media, WF testified at defendant's trial, addressing defendant's role in the murder. While testifying, WF wore a face mask that apparently covered his nose and mouth during defendant's July 2021 trial. The attorneys raised concerns about hearing and understanding WF's testimony while wearing the mask. When the attorneys asked that he remove the mask, WF expressed that he did not "feel comfortable doin' that during this pandemic," and the trial court ruled that he did not have to unmask. Instead, WF was asked to adjust and speak closer to the microphone, and the ventilation system was shut off to allow the parties and the jury to better hear the testimony. At the conclusion of the testimony, the trial court denied defendant's request to provide an instruction addressing unfavorable inferences pertaining to the prosecutor's failure to produce witnesses, M Crim JI 5.12. Ultimately, the jury convicted defendant as charged.
II. CONFRONTATION RIGHTS
Defendant contends that his rights under the Confrontation Clauses of the United States and Michigan Constitutions were violated when WF was permitted to testify while wearing a face mask. Specifically, defendant submits that the mask interfered with the jury's ability to assess WF's credibility by covering part of his face and the mask made WF's testimony difficult to understand. We conclude that defendant has failed to establish plain error arising from this unpreserved issue.
A defendant must preserve an issue by raising it before the trial court. People v Swenor, 336 Mich.App. 550, 562; 971 N.W.2d 33 (2021). This requirement applies to both constitutional and nonconstitutional issues. Id. "When a party raises a separate argument on appeal than the party raised before the trial court, the party must satisfy the standard for plain-error review." Id. Defendant acknowledges, and we agree, that defense counsel failed to preserve this issue for appellate review because a violation of the Confrontation Clauses was not raised in the trial court.
Generally, whether a defendant's right of confrontation has been violated presents a question of constitutional law that the appellate court reviews de novo. People v Bruner, 501 Mich. 220, 226; 912 N.W.2d 514 (2018). When this Court engages in de novo review, the review is conducted independently without deference to the lower court. Id. However, this Court reviews unpreserved issues of constitutional error for plain error affecting a party's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999); People v Lowrey, 342 Mich.App. 99, 108-109; 993 N.W.2d 62 (2022). An error is plain if it is clear or obvious, and it affects substantial rights if it affected the outcome of the lower court proceedings. Carines, 460 Mich. at 763. Additionally, reversal is only warranted if a defendant has shown actual innocence or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. People v Davis, 509 Mich. 52, 67-68; 983 N.W.2d 325 (2022).
The United States and Michigan Constitutions protect a defendant's right to confront the witnesses against him. U.S. Const, Am VI; Const 1963, art 1, § 20. "A primary interest secured by the Confrontation Clause is the right of cross-examination." People v Adamski, 198 Mich.App. 133, 138; 497 N.W.2d 546 (1993) (citations omitted). Indeed, "[t]he right of confrontation insures that the witness testifies under oath at trial, is available for cross-examination, and allows the jury to observe the demeanor of the witness." People v Watson, 245 Mich.App. 572, 584; 629 N.W.2d 411 (2001) (citation omitted). Cross-examination is a valuable right of the accused to expose falsehoods and bring out the truth. See Pointer v Texas, 380 U.S. 400, 404; 85 S.Ct. 1065; 13 L.Ed.2d 923 (1965). However, the right of cross-examination is not unfettered; it does not include a right to cross-examine witnesses about irrelevant issues and may bend to other legitimate interests of trial procedure or societal expectations. Adamski, 198 Mich.App. at 138. Furthermore, face-to-face confrontation is not an indispensable element of the Confrontation Clause. Maryland v Craig, 497 U.S. 836, 850; 110 S.Ct. 3157; 111 L.Ed.2d 666 (1990). The right may be satisfied without face-to-face confrontation when "denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. However, "[t]hat the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with." Id.
We recognize that in People v Jemison, 505 Mich. 352, 363-365; 952 N.W.2d 394 (2020), our Supreme Court questioned the continued viability of the United States Supreme Court decision in Craig in light of Crawford v Washington, 541 U.S. 36; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004), and opted to limit Craig's application to the facts, specifically addressing the circumstance of a child witness testifying by one-way video. Id. at 356 n 1 and 365. But, the confrontation rights delineated in Crawford were protected in this trial. Specifically, "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross[-]examination." Crawford, 541 U.S. at 68. The Constitution demands confrontation and an "indicium of reliability" is insufficient for admission of testimonial statements. Id. at 68-69. Defendant was permitted to confront WF because he testified in-person at trial and was subject to cross-examination. And, the trial court was authorized to allow WF to wear a mask, see MRE 611(a)(1) and (b)(1), in a manner that allowed the jury to understand the testimony, yet protect WF who was subjected to conditions that made him more susceptible to the transmission of COVID-19. Thus, the factual circumstances of Crawford and Jemison, where out-of-court testimony was admitted, is not present here. Nonetheless, we address the broader unpreserved issue raised by the defense that challenges whether the right to confront witnesses is denied when the witness wears a mask while testifying in-person at trial during a continuing health crisis, an issue not squarely presented in Crawford, Craig, or Jemison.
For instance, a defendant's right to face-to-face confrontation of child witnesses may be limited. See MCL 600.2163a; People v Pesquera, 244 Mich.App. 305, 311-312; 625 N.W.2d 407 (2001).
First, defendant asserts that the trial court's decision to allow WF to wear a face mask impaired the jury's ability to make important credibility determinations. Defendant has not established that a clear or obvious error occurred regarding this unpreserved issue.
An error is plain if it is clear or obvious. Carines, 460 Mich. at 763. "An error is also plain when it is contrary to well-settled law." Swenor, 336 Mich.App. at 564. Defendant relies on People v Sammons, 191 Mich.App. 351; 478 N.W.2d 901 (1991), to assert that a face mask unconstitutionally infringes on a defendant's right of confrontation. However, Sammons is demonstrably distinguishable. In Sammons, 191 Mich.App. at 354, a police officer and an informant went to a hotel room to purchase a pound of cocaine. The defendant and the informant went into the bathroom purportedly to get the cocaine while the police officer spoke to two of the defendant's associates. After the defendant and the informant emerged from the bathroom, the defendant gave the informant a "sample" of the cocaine from a pile on the night stand. While the money was being counted, one of the defendant's associates went to retrieve the cocaine. Police officers arrived and arrested the defendant and his associates. One of the associates was arrested while entering a van, and a search of the vehicle revealed a sealed package of drugs. Id. at 354355.
Before trial, the defendant raised the issue of entrapment. Specifically, the defendant claimed that the informant was known to him merely as "Rick." The defendant claimed that Rick pressured him into initiating and participating in the drug sale. The prosecutor called Rick to testify to rebut the defendant's allegations. Rick was allowed to testify while wearing a full-face mask and without disclosing his true identity. Rick denied pressuring or threatening defendant, and the trial court rejected the defense theory of entrapment. Id. at 355-356.
On the record, the defense counsel described that the witness was wearing "a ski or some type of mask where his face and head" were not visible. Sammons, 191 Mich.App. at 363-364 n 4.
This Court noted that, at the entrapment hearing, both the defendant and his sister testified about Rick's persistence in coordinating the sale of cocaine. In contrast, the prosecutor called Rick to testify while wearing a full-face mask, and the defense was instructed not to ask Rick any identifying questions. The trial court did admit Rick's criminal record but struck any identifying information. The trial court justified the procedure because the defendant or his associates purportedly offered a substantial quantity of drugs to kill Rick. Id. at 357-359.
This Court held that a witness's wearing of a full-face mask prevented the trial judge, as the trier of fact, from observing the witness's demeanor when testifying. Specifically, it was determined that "the irrelevance of a defendant's guilt or innocence in resolving an entrapment claim [did not] render[] the protections afforded by the Confrontation Clause inapplicable to an entrapment hearing." Id. at 361. Furthermore, because Michigan law did not permit the entrapment issue to be renewed at trial, the denial of protections afforded by the Confrontation Clause would deny the defendant the opportunity to challenge the evidence presented and impede a trial subject to rigorous adversarial testing. Id. at 361-362. This Court concluded "it would be fundamentally unfair, and contrary to principles of due process, to allow the state to present evidence designed to defeat a defendant's claim of entrapment and at the same time restrict the defendant's ability to effectively examine the reliability of such evidence." Id. at 362.
Applying the Sammons decision, defendant submits that the face mask worn by WF that apparently covered his mouth and nose deprived defendant of the right of confrontation because it limited the jury's ability to assess WF's credibility. However, the Sammons Court noted the unique scenario presented by an entrapment defense. Such a defense was resolved prior to trial, could not be renewed at trial, and restricted the defendant's ability to effectively challenge the reliability of the evidence when a full-face mask was worn by a witness.
In this case, the face mask worn by WF did not completely cover his face and apparently did not impair a viewing of WF's expressions or the ability to assess his credibility. Indeed, when WF was questioned regarding the number of visits to the victim's apartment, the attorneys and the trial court questioned whether WF's prior testimony addressed the arrival at the apartment complex itself as opposed to the entry into the victim's apartment. The trial court reached the conclusion that WF was confused by the questioning in light of WF's facial expressions.
Specifically, the trial court stated, "I'm not tellin' ya how to answer the questions, but I think [WF], from looking at his facial expressions, is confused. So I'd, I think if you help clarify it, we could, he could, it'd assist his answering."
Our conclusion is also buttressed by recent caselaw holding that a defendant's Sixth Amendment Confrontation Clause rights were not violated when the witnesses against him testified while wearing partial face masks or coverings during the COVID-19 pandemic. In United States v Maynard, 90 F 4th 706 (CA 4, 2024), the defendant, a police officer, was convicted of depriving a person of their constitutional rights under the color of law, 18 USC 242, for using force against an arrestee, and sentenced to 108 months' imprisonment. Before trial, the federal district court ordered everyone, including the witnesses, "to 'wear a face covering or mask, which cover[ed] both the wearer's nose and mouth, at all times.'" because of the COVID-19 pandemic. Id. at 709. The defendant challenged this order, asserting that it violated his Sixth Amendment right to confront the witnesses against him. Id. In lieu of opaque face masks or coverings, the defendant moved the trial court to allow the witnesses to wear a clear face shield. Id. The federal district court denied the defendant's motion after "finding that the mask requirement was 'necessary to ensure the safety of those present[]' and that 'face shields ha[d] not proven as effective as masks that cover the nose and mouth and seal around the wearer's face ....'" Id. On appeal, the defendant claimed that the Sixth Amendment's Confrontation Clause was violated by the requirement that witnesses wear masks while testifying. Id. at 710.
Although decisions of lower federal courts are not binding on this Court, "they may be considered as persuasive authority." People v Walker, 328 Mich.App. 429, 444-445; 938 N.W.2d 31 (2019).
The Maynard Court acknowledged that the right to confrontation was not absolute and could be satisfied in the absence of physical face-to-face confrontation. Id. That is, the denial of face-to-face confrontation was appropriate when necessary to further an important public policy and the reliability of the testimony was "otherwise assured." Id. (quotation marks and citation omitted). The federal district court determined that protecting people against COVID-19 transmission was an important public policy interest. Id. The Maynard Court recognized that at the time of the defendant's trial in November 2021, more than 700,000 people in the United States had died from COVID-19 and that nearly 5,000 of those death were in West Virginia, where the defendant's trial took place. Id. at 710-711. In fact, the state recorded more than 350 new hospitalizations and 100 deaths in that week. Id. at 711. And the Centers for Disease Control and Prevention ("CDC") advised that even vaccinated people continue to wear masks indoors in public areas with substantial transmission. Id. The CDC further recommended that individuals "who were immunocompromised wear masks regardless of the level of community transmission." Id. These facts demonstrated that the federal district court's order was necessary to further an important public policy. Id.
The Maynard Court also rejected the defendant's assertion that Crawford v Washington, 541 U.S. 36; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004), was violated, determining that the Crawford Court found that testimonial hearsay statements were inadmissible at trial unless a witness was unavailable and a prior opportunity for cross-examination was shown. Maynard, 90 F 4th at 711. A test of the reliability of the hearsay statements was rejected in favor of the test of crossexamination. Id. The Maynard Court then determined that the requirement that the testimony be "otherwise assured" was satisfied because the witnesses testified under oath, were physically present in the courtroom, were subject to cross-examination, and had their demeanors observed by the jury and the defendant. Id. at 711-712. The Maynard Court further rejected the contention that masks "covering only a witness's nose and mouth" hindered the jury's ability to judge the witnesses' credibility. Id. at 712. It noted that a jury's assessment of credibility was not limited to facial expressions. Id. Rather, the jury also examined the words the witnesses said, the manner in which the words were said, the witnesses' body language, any pauses in the testimony, the mannerisms, and any other intangible factors. Id. In the Maynard trial, the witnesses testified in person and under oath, were subject to cross-examination, and could be seen and observed by the defendant and the jury. Id. Given these circumstances, the federal appellate court rejected the defendant's Confrontation Clause challenge to the district court's order requiring witnesses, who testified at a criminal trial held during the COVID-19 pandemic, wear partial face masks or coverings. Id.
In addition to health issues, a witness may also wear a facial mask, disguise, or veil for other reasons, including public safety and religious beliefs. United States v de Jesus-Castenada, 705 F.3d 1117, 1119 (CA 9, 2013), amended 712 F.3d 1283 (CA 9, 2013). In de Jesus-Castenada, the confidential informant, called as a witness, was continuing his participation in an ongoing investigation involving a drug cartel. For safety reasons, it was requested that this witness be to testify in disguise, specifically with a wig, a moustache, and sunglasses. The trial court allowed the witness to testify while wearing a wig and a moustache, but without the sunglasses. It concluded that the disguise was a "small impingement" on the jury's ability to assess the witness's credibility. Id. On appeal, the defendant claimed that the disguise violated the Confrontation Clause. The appellate court rejected this challenge, noting that the wig and mustache was "necessary to further an important state interest, namely a witness's safety, given that the safety concern was so high and the disguise so minimal." Id. at 1120. In making its request, the government delineated the geographical location and the dangerousness of the drug cartel. The appellate court affirmed the trial court's determination, noting that the witness was physically present in court, he testified under oath while being advised of the penalty for perjury, and was subject to cross-examination before the defendant. Although in disguise, the jury was able to hear the witness's voice, see his entire face and his facial reactions to questions, and observe his body language. Because the key elements of assessing witness demeanor and determining credibility were presented to the jury, the defendant's challenge to witness credibility premised on the Confrontation Clause was rejected. Id. at 1121. In People v Ketchens, unpublished opinion of the California Court of Appeals, issued June 7, 2019 (Docket No. B282486), a witness was about to enter her vehicle when the rear window was shot out. The witness heard additional gunfire but did not see a shooting. She believed that the gun was fired from a red truck and relayed that information to the police, causing them to stop the occupants of the truck and locate a victim. Id. at slip op 3. At trial, the witness wore a scarf covering the majority of her face, including one of her eyes. The defense questioned the need for the witness to wear a scarf. Outside the presence of the jury, the witness explained that it was worn because of her Muslim faith. On the second day of trial, the witness appeared wearing the scarf, but both eyes were visible. The defense questioned whether the witness was wearing the scarf for religious reasons or because she was afraid. The defendant argued that requiring the witness to remove the scarf was a minor infringement on her First Amendment religious beliefs. When questioned about the visibility of both eyes, the witness agreed to also expose her nose if there was a "need" to see it. When asked why her religion did not permit a display of the rest of her face, the witness explained that it was to protect her beauty. Id. at slip op 10-13. On appeal, the appellate court acknowledged that a right to face-to-face confrontation evolved to prevent evidence premised on depositions or ex parte affidavits. But, it determined that covering a part of a witness's face did not necessarily implicate the Confrontation Clause. The witness's exposure of her eyes and nose and the finding that her lips were visible despite the scarf was likened to a man testifying with a beard. Because the purposes and benefits of face-to-face confrontation were not meaningfully impaired by the manner in which the witness wore her scarf on the second day of trial, the Confrontation Clause challenge was rejected. Id. at slip op 16-19. The Ketchens decision, like our unpublished opinions, does not constitute binding precedent, id. at slip op 1, but is cited as demonstrative of other face coverings that were challenged premised on the Confrontation Clause. But see United States v Alimehmeti, 284 F.Supp.3d 477, 489 (2018) (rejecting a reporter's suggestion, that was opposed by the government and the defense, to have the witness testify in disguise by wearing makeup or a niqab, determining that such testimony might compromise the defendant's ability to confront his accusers and cause tension with the Confrontation Clause.).
In the present case, WF's masking was questioned because of the ability to understand his answers. When the possibility of mask removal was discussed, WF expressed his desire to continue wearing the mask in light of COVID-19. Indeed, when defendant's trial began on July 17, 2021, nearly 608,000 people in the United States had died from COVID-19. In Michigan, there were over 235 new hospitalizations and 22 deaths that week, with both rates increasing.Moreover, the CDC continued to recommend that even vaccinated individuals wear masks indoors when in public areas with substantial transmission. See id. at 711. The trial court did not require WF to remove his mask, but took other means to ensure that WF's testimony was understandable. The ventilation system was shut off and, afterward, there were no additional complaints about WF's mask.
See <https://covid.cdc.gov/covid-data-tracker/#trends_totaldeaths_select_00> (accessed April 29, 2024).
See <https://covid.cdc.gov/covid-data- tracker/#trends_weeklyhospitaladmissions_weeklydeathcruderate_26> (accessed April 29, 2024).
Defendant did not raise any claimed violation of the Confrontation Clause in the trial court. And, although vaccines were available at the time of trial, defendant did not question vaccination, transmission, or hospitalization rates and the need for WF to wear a mask.
Additionally, defendant asserted that allowing WF to wear a face mask violated his right to confrontation by rendering WF's testimony difficult to understand. We reject this argument because, when WF could not be clearly understood, questions were reiterated and measures were taken to make him more understandable. There is no indication that defendant's right to crossexamine WF was impaired.
An inability to understand a witness may interfere with a defendant's right to crossexamine a witness. See People v Cunningham, 215 Mich.App. 652, 657; 546 N.W.2d 715 (1996) (addressing an inadequate translation). In this case, however, defendant has not established a clear or obvious error or that, if there was any error, it affected the outcome of his proceedings. Defendant also has not established that any resulting inability to hear each of WF's answers prejudiced him.
Defense counsel clearly expressed when WF could not be heard, resulting in questions being repeated and answered. Moreover, counsel asked WF to repeat his response when the answer was not clearly heard. The court asked defense counsel to let it know if WF could not be heard. Further, whenever defense counsel-or any other party present-indicated that WF could not be heard, the trial court took some action to make WF easier to hear. Indeed, the trial court took measures, including directing WF to speak into the microphone and apparently shutting off the ventilation system, to improve the clarity of WF's testimony for the parties and the jurors listening to the testimony. After these measures were taken, there were no complaints of a continued inability to hear or understand WF's answers to the questions posed. And, on crossexamination, defense counsel was not limited in his questioning, but was allowed to cover questions and topics raised during direct examination. Accordingly, defendant has not demonstrated that any error in his ability to hear some of WF's answers affected the outcome of the lower court proceedings because there is no indication that defendant missed and was unable to respond to WF's testimony in a manner that impaired his ability to cross-examine him.
We note that, in People v Coxton, unpublished per curiam opinion of the Court of Appeals, issued February 28, 1997 (Docket No. 189562), p 2, this Court refused to reverse when there were many instances in the record "where other persons in the courtroom, including the prosecutor, court reporter and defense counsel, indicated that they could not hear what was being said" but "the judge, like the other people who did not hear what a witness said, asked that the testimony be repeated." Although the issue in that case was whether the defendant was entitled to a new trial on the basis that the judge could not hear what was being said, we also consider this case for its persuasive value.
Specifically, the trial judge asked an employee whether "the noise [could be] turned off above [the jury] again." When directing that this noise be shut off, the trial judge stated that, "It may get warm in here."
We also consider as persuasive several cases addressing "partial" face masks worn at trial during the COVID-19 pandemic. This Court has held that a partial face covering does not prevent the defendant from confronting the witness because the covering of a nose and mouth does not alter the difficulty level in ascertaining the credibility of testimony. See People v Wilson, unpublished per curiam opinion of the Court of Appeals, issued January 19, 2023 (Docket No. 356825), p 9. Although unpublished opinions are not binding, we may consider the rationale contained in an unpublished opinion to be persuasive. People v Green, 260 Mich.App. 710, 720 n 5; 680 N.W.2d 477 (2004); MCR 7.215(C)(1). Federal and other courts have similarly rejected constitutional challenges to the wearing of a face mask during the COVID-19 pandemic. See, e.g., United States v O'Sullivan, unpublished memorandum and order of the United States District Court for the Eastern District of New York, issued October 27, 2023 (Case No. 20-CR-272); Lopez v Gamboa, unpublished opinion and order of the United States District Court for the Central District of California, issued December 15, 2022 (Docket No. 22-cv-4281-JEM); United States v Crittenden, unpublished order of the United States District Court for the Middle District of Georgia, entered August 21, 2020 (Case No. 4:20-CR-7); State v Hadlock, 2021-Ohio-3176, unpublished opinion of the Ohio Court of Appeals, issued September 13, 2021 (the court permitted the witness, a doctor, to testify while masked after he stated his preference to wear a mask); State v Raney, 331 Or.App. 693; ___P.3d___ (2024) ("the trial court did not err by requiring testifying witnesses to wear masks under the circumstances"); People v Edwards, 76 Cal App 5th 523; 291 Cal.Rptr 3d 600 (2022) ("It does not violate the confrontation clause for a judge to order trial witnesses to wear masks during the current pandemic. The Constitution does not require judges to imperil public health."). Cf. Smith v State, ___S.W.3d___ (Tex Crim App, 2024) (Docket No. 14-23-00048-CR) (absent evidence necessitating "a prophylactic witness masking policy during a January 2023" jury trial, the court's directive compromised the defendant right to confrontation). Defendant did not identify authority to support his argument that the trial court committed any error, much less a clear or obvious error, by allowing a witness to testify while wearing a partial face mask during a global pandemic.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also submits that defense counsel provided ineffective assistance by failing to object to WF's wearing a face mask. This argument lacks merit because an objection on confrontation grounds would have been futile, and regardless, it is not reasonably likely that defendant would have obtained a different result because when WF could not be heard, remedial measures were taken.
A criminal defendant has a fundamental right to the effective assistance of counsel. U.S. Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 U.S. 648, 654; 104 S.Ct. 2039; 80 L.Ed.2d 657 (1984). The United States Supreme Court has observed that the rights to counsel, due process, and a fair trial are intertwined:
[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause[.] [Strickland v Washington, 466 U.S. 668, 684-685; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).]
"In order to obtain a new trial, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012) (citation omitted).
Defendant has not established that counsel's performance addressing WF's decision to wear a face mask during a pandemic fell below an objective standard of reasonableness. The defendant must overcome the strong presumption that defense counsel rendered adequate assistance and made "all significant decisions in the exercise of reasonable professional judgment." People v Vaughn, 491 Mich. 642, 670; 821 N.W.2d 288 (2012). When applying this standard, the reviewing court must consider the range of possible reasons that counsel may have had for acting in that particular manner. Id. "[A] reasonably competent lawyer might want to avoid the appearance of bullying the witness ...." People v Gioglio, 296 Mich.App. 12, 26; 815 N.W.2d 589 (2012), vacated in part on other grounds 493 Mich. 864 (2012). Defense counsel is not required to make meritless or futile objections. People v Putman, 309 Mich.App. 240, 245; 870 N.W.2d 593 (2015).
Although no binding caselaw has been issued regarding whether a witness's wearing a face mask during the COVID-19 pandemic violated a defendant's right to confrontation, as previously discussed, the available authority indicates that such an objection would have been meritless. Counsel may have believed that a challenge would be unsuccessful or that insisting that a clearly reluctant witness unmask would be perceived by the jury as bullying the witness. Defense counsel's decision not to raise this issue was not objectively unreasonable.
Similarly, defendant has not established that, but for counsel's performance, there was a reasonable probability that defendant would have received a different outcome. Again, defense counsel repeatedly indicated when WF could not be understood, questions were repeated until audible answers were given, and measures were taken to make WF's responses clearer and to reduce noise in the courtroom. Because the record does not indicate that defendant was rendered unable to confront or cross-examine WF because he was wearing a face mask, there is no indication that a different result was reasonably likely had defense counsel objected to WF's wearing a face mask.
IV. MISSING-WITNESS INSTRUCTION
Defendant contends that the trial court erred by failing to issue a jury instruction allowing the jury to infer that two witnesses, one male and one female, would have provided evidence unfavorable to the prosecution. We disagree.
This Court reviews for an abuse of discretion the trial court's determinations regarding whether to issue a missing-witness instruction and whether the prosecution exercised due diligence. People v Eccles, 260 Mich.App. 379, 389; 677 N.W.2d 76 (2004). The trial court abuses its discretion when it commits an error of law or uses an incorrect legal framework. People v Everett, 318 Mich.App. 511, 516; 899 N.W.2d 94 (2017). The trial court also abuses its discretion when its decision falls outside the range of principled outcomes. Id.
MCL 767.40a addresses the prosecution's obligation to identify and produce witnesses, and it provides in pertinent part as follows:
(3) Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.
(4) The prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the court and for good cause shown or by stipulation of the parties.
This statute provides the defendant with notice of potential witnesses. Everett, 318 Mich.App. at 518. If a prosecutor endorses a witness under MCL 767.47a(3), the prosecutor "is obliged to exercise due diligence to produce that witness at trial." Eccles, 260 Mich.App. at 388. If a prosecutor fails to exercise due diligence to produce the witness, the jury should be issued a missing-witness instruction:
A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence. If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness's testimony would have been unfavorable to the prosecution's case. [Id. (citations omitted).]
"[D]ue diligence is the attempt to do everything reasonable, not everything possible, to obtain the presence of a witness." Id. at 391, citing People v Cummings, 171 Mich.App. 577, 585; 430 N.W.2d 790 (1988).
In this case, the lead detective testified that he interviewed defendant after statements were made by a female witness that defendant and the victim had been together at her residence the night before the murder, with the male witness and some others. The female witness indicated that she had a concealed pistol license and a pistol, which she turned over to the police. Defendant argued that the testimony of these witnesses was important to his case because one of the witnesses owned the only gun that had been admitted into evidence. He proffered that the testimony of the female witness was pertinent because she may have testified about who may have used the gun and whether it went missing.
On the last day of the prosecution's proofs, the prosecutor stated that he had been unable to secure the attendance of these two witnesses, who lived together. The prosecutor outlined the efforts that had been made to secure the attendance of these witnesses. According to the prosecutor, the police attempted to serve them at two different addresses on three different dates. The female witness had reported a change of address, but when the investigator attempted to serve the witnesses there, the investigator saw no cars and reported that the grass appeared overgrown. The prosecutor personally attempted to contact the female witness via the phone number provided for a previous trial eight separate times over three weeks. The phone number rang, was answered, and then was immediately hung up. The prosecutor attempted calling from different phone numbers. The prosecutor also attempted to use two jail systems to determine whether either witness was imprisoned and discovered that both had been arrested but were no longer in custody.
To the extent that defendant argues that no testimony was offered to support the prosecutor's statements, we note that, when the trial court has no reason to doubt the candor of a licensed attorney's representation to the court, it may accept that attorney's assertions to the court. People v Dunbar, 463 Mich. 606, 617, n 13; 625 N.W.2d 1 (2001). In the absence of some indication that the prosecutor was not telling the truth, the absence of sworn testimony to support the prosecutor's statements does not warrant reversal.
Although defendant argues that the prosecutor could have sought to determine whether the female witness had a new phone number, the prosecution was not required to do everything possible to locate the witnesses. Additionally, it is reasonable to infer that the witness continued to have the same number because the phone rang, was picked up, and then was hung up, rather than going to voicemail or simply going unanswered. We conclude that the trial court's decision to decline to issue a missing-witness instruction after determining that the prosecution exercised due diligence to secure the attendance of the witnesses did not fall outside the range of principled outcomes.
We note that defendant recently filed a Standard-4 brief. Administrative Order No. 2004-6, 471 Mich. c, cii (2004). However, defendant's brief failed to cite to any errors in the record and failed to cite any authority in support of his claim of errors. In fact, defendant merely compiled a paragraph of legal terms and concluded that if the appeal was reviewed in "all" areas, he would be entitled to relief. The simple announcement of a position without adequate development and citation to authority results in the abandonment of the argument. People v Waclawski, 286 Mich.App. 634, 679; 780 N.W.2d 321 (2009). We will not discover and rationalize the basis for a defendant's claim of error and then search for authority to sustain or reject the position. Id.
Noah P. Hood, J. (concurring in part, dissenting in part.)
I respectfully concur in the result. I agree with the majority's analysis and conclusions in Section IV regarding the missing-witness instruction. And I agree with the majority's ultimate conclusion that this Court should affirm defendant Anthony Lamont-Dshawn Brown's conviction, but I disagree with the majority's Confrontation Clause analysis.
I write separately because I would affirm on the basis that the masked witness's testimony was a plain error, but Brown cannot establish prejudice warranting reversal. It is apparent that a Confrontation Clause violation occurred. See Crawford v Washington, 541 U.S. 36, 61-63; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004) (holding that the Confrontation Clause requires a face-to-face encounter). See also People v Sammons, 191 Mich.App. 351, 363-366; 478 N.W.2d 901 (1992) (holding that a witness testifying with a mask on violates the Confrontation Clause). The trial court allowed a prosecution witness to testify while wearing a mask; this necessarily violated the bright-line rule requiring a face-to-face confrontation. See Crawford, 541 U.S. at 61-63, 67-68. See also Sammons, 191 Mich.App. at 359-366. Even under the more flexible Confrontation Clause precedent that predates Crawford, an error occurred because the trial court permitted the masked testimony without making fact-findings or legal conclusions regarding the necessity of the procedure (i.e., wearing a mask during testimony) or balancing the valid interest in the witness testifying while wearing a mask (i.e., the witness's health) against Brown's confrontation rights, including those that remained intact (i.e., oath, cross-examination). See Maryland v Craig, 497 U.S. 836, 855-858; 110 S.Ct. 3157; 111 L.Ed.2d 666 (1990) (outlining procedures for making findings supporting a decision to use special procedures for witness testimony). See also United States v Maynard, 90 F 4th 706, 710-712 (CA 4 2024) (affirming the district court application of Craig's balancing test in the context of masked testimony during COVID-19). Despite this obvious error occurring either under Crawford or Craig, Brown cannot establish prejudice, so his claim fails the third prong of our plain-error analysis. See Coy v Iowa, 487 U.S. 1012, 1021-1022; 108 S.Ct. 2798; 101 L.Ed.2d 857 (1988); People v Jemison, 505 Mich. 352, 355-357; 952 N.W.2d 394 (2020).
Although not binding on state courts, federal circuit court decisions may be considered for their persuasive value. Wilcox v Wheatley, 342 Mich.App. 551, 561 n 7; 995 N.W.2d 594 (2022).
Finally, I write separately because although both the Crawford line of precedent and Craig line of precedent suggest Confrontation Clause violations are subject to review for prejudice, I question our ability to adequately or consistently measure the prejudice resulting from such violations, particularly when all indications suggest such violations concern an integral aspect of criminal trials. See Jemison, 505 Mich. at 362-365.
I. BACKGROUND
The majority accurately summarizes the factual background. Critically, Brown's codefendant, WF, testified against him at trial, describing Brown's role in the murder. WF was 15 at the time of the offense and 17 at the time of trial. While testifying, WF, who was incarcerated at the time, wore a face mask that apparently covered his nose and mouth. There was no discussion of the necessity of the face covering prior to his testimony. At the start of his testimony, when the prosecutor could not hear his initial answers, the prosecutor, trial judge, and witness had the following exchange:
Prosecutor: Does he have to have the mask on?
Court: Do you wanna wear the mask?
WF: Yes.
Court: Yes.
Prosecutor: Okay.
After some additional questions, defense counsel indicated that he, his co-counsel, and Brown were having difficulty hearing WF's testimony. The trial court then stated, "[C]an you speak up or am I gonna have to rule that you're not available as a witness . . . ?" Brown's counsel then suggested WF could take the mask off. The trial court replied, "He doesn't want to [take off the mask], he doesn't have to. It's Covid-19." WF then refused counsel's request to pull his mask up so it did not touch his mouth and muffle his voice, replying, "Don't feel comfortable doin' that during this pandemic." Brown's counsel never objected to this procedure as violative of the Confrontation Clause. And the trial court never explicitly weighed Brown's right to confrontation against WF's (or the public's) interest in wearing a mask for health reasons.
The trial was in the summer of 2021. We may take judicial notice that this was during the COVID-19 pandemic and between six and eight months after vaccines for COVID-19 became available. The COVID-19 pandemic was particularly devastating for incarcerated individuals and individuals working in prisons and jails.
II. CONFRONTATION CLAUSE VIOLATION
Brown argues that the Confrontation Clause violation resulting from WF's masked testimony was a plain error warranting reversal. Like the majority, I disagree. Although an error occurred and it was plain (which is to say obvious), Brown cannot establish an outcomedeterminative prejudice let alone an error warranting reversal under plain-error. See Jemison, 505 Mich. at 355-357 (remanding for trial court to determine whether Confrontation Clause violation was harmless). See also Coy, 487 U.S. at 1021-1022 (denial of face-to-face confrontation is subject to harmless-error review, similar to other types of violations of the Confrontation Clause).
The majority correctly observes that because Brown's counsel did not object to the testimony at trial his claim is subject to plain-error analysis. See People v Carines, 460 Mich. 750, 762 n 7 &763; 597 N.W.2d 130 (1999); People v Davis, 509 Mich. 52, 64-65; 983 N.W.2d 325 (2022). To obtain relief under the plain-error rule, a defendant must prove that (1) an error occurred, (2) the error was plain, and (3) that the plain error affected substantial rights-in other words, the error affected the outcome of the proceedings. People v Anderson, 341 Mich.App. 272, 280; 989 N.W.2d 832 (2022). If a defendant satisfies these three requirements, we must determine whether the plain error warrants reversal, in other words, whether it seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of the defendant's innocence. Carines, 460 Mich. at 763-764. Sometimes identified as a fourth prong of plain-error analysis, this last step conceptually overlaps with the third prong. Davis, 509 Mich. at 75-76.
This standard also applies to the rare category of constitutional errors identified as "structural errors." People v Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015). Structural errors are "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards." See Arizona v Fulminante, 499 U.S. 279, 309; 111 S.Ct. 1246; 113 L.Ed.2d 302 (1991) (holding that the use of coerced confession at trial was a structural error); Weaver v Massachusetts, 582 U.S. 286, 293-296; 137 S.Ct. 1899; 198 L.Ed.2d 420 (2017) (holding that the right to public trial is structural); United States v Gonzalez-Lopez, 548 U.S. 140, 148-150; 126 S.Ct. 2557; 165 L.Ed.2d 409 (2006) (holding that the Sixth Amendment right to counsel of one's choice is structural). Our Supreme Court recently explained that forfeited structural errors are also "particularly ill-suited to an analysis of whether the error affected the outcome of the trial court proceedings." Davis, 509 Mich. at 72. Therefore, "the existence of a forfeited structural error alone satisfies the third prong of the plain-error standard, and a defendant need not also show the occurrence of outcome-determinative prejudice." Id. at 74. In other words, a forfeited structural error automatically satisfies the third prong and creates a formal rebuttable presumption that a defendant has satisfied the fourth prong. Id. at 73-75. As discussed in Section III, Brown has not argued that a Confrontation Clause violation-or specifically that a violation of the face-to-face encounter aspect of the Confrontation Clause-is plain error. We will not raise this issue for him.
Regarding the first prong of the plain-error analysis, the trial court permitting WF's masked testimony was an error for two reasons. First, the partial face mask denied Brown the right to a face-to-face confrontation. See Crawford, 541 U.S. at 61-62, 67-68. See also Sammons, 191 Mich.App. at 364-366. Second, the trial court permitted this abrogation of Brown's Confrontation Clause rights without making case-specific fact-findings and legal conclusions regarding its necessity. See Craig, 497 U.S. at 855. Such an abrogation may be permissible, but not without case-specific fact-finding and legal conclusions. See id. The tension, or awkwardness, between these two conclusions is directly tied to the unresolved conflict in the Supreme Court's Confrontation Clause precedent. Compare Crawford, 541 U.S. 61-63 (holding that the Confrontation Clause's requirement of a face-to-face confrontation is absolute and rejecting balancing test approach) with Craig, 497 U.S. at 852 (holding that the Confrontation Clause's requirement of a face-to-face encounter is not absolute, permitting a balancing of interests and necessity for alternative procedures). See also Jemison, 505 Mich. at 360-366 (discussing the Crawford/Craig conflict, noting that Crawford did not explicitly overrule Craig, and reconciling the two cases by limiting Craig's application to the specific facts in that case, but not directly addressing other cases holding the same).
The Sixth Amendment of the United States Constitution and Article 1, § 20 of the Michigan Constitution guarantee criminal defendants the right to confront the witnesses against them. See U.S. Const, Am VI; Const 1963, art 1, § 20. A primary objective of the Confrontation Clause is to compel witnesses to" 'stand face to face with the [fact-finder] in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.'" People v Buie, 285 Mich.App. 401, 408; 775 N.W.2d 817 (2009), quoting Mattox v United States, 156 U.S. 237, 242-243; 15 S.Ct. 337; 39 L.Ed. 409 (1895). The right to confrontation" 'is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.'" Buie, 285 Mich.App. at 408, quoting Barber v Page, 390 U.S. 719, 721; 88 S.Ct. 1318; 20 L.Ed.2d 255 (1968). The Confrontation Clause has four elements: (1) physical presence, (2) an oath, (3) cross-examination, and (4) "observation of demeanor by the trier of fact ...." Buie, 285 Mich.App. at 408 (quotation marks and citations omitted; alteration in original). When combined, these elements ensure "that evidence admitted against an accused is reliable and subject to . . . rigorous adversarial testing ...." Craig, 497 U.S. at 846.
Our Supreme Court has interpreted the holding in Craig as limited to its specific facts in order to reconcile that case with Crawford. See Jemison, 505 Mich. at 355-357 (reconciling Crawford with prior, narrower holding in Craig).
Although reliability had long been a touchstone of Confrontation Clause jurisprudence, in Crawford v Washington, the United States Supreme Court established a bright-line rule requiring a face-to-face encounter for all testimonial evidence. Crawford, 541 U.S. at 61-63. See also Jemison, 505 Mich. at 360-366 (reconciling Crawford with prior, narrower holding in Craig). Crawford requires face-to-face cross-examination for testimonial evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine. Jemison, 505 Mich. at 362, citing Crawford, 541 U.S. at 68.
In this respect, I read our Confrontation Clause precedent differently than the majority. Like our Supreme Court in Jemison, 505 Mich. at 360-366, I acknowledge a tension between Crawford's bright-line rule requiring a face-to-face encounter and the "open-ended balancing tests" in Craig. See id. See also id. at 356 ("Crawford did not specifically overrule Craig, but it took out its legs"). I understand Craig, Crawford, and Jemison as each involving the parameters of a defendant's right to a face-to-face confrontation. See Craig, 497 U.S. at 850 ("face-to-face confrontation requirement is not absolute . . ."); Crawford, 541 U.S. at 42-50 (holding that a face-to-face meeting between an accuser and the accused was an essential part of the confrontation right); Jemison, 505 Mich. at 360-366. I am not alone in recognizing the vergence their holdings create. See United States v Cox, 871 F.3d 479, 492-495 (CA 6, 2017) (SUTTON, J., concurring); McAllister, The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L Rev 481, 507-512 (2010).
Here, that requirement was not satisfied because the witness testified behind a mask. See Sammons, 191 Mich.App. at 351. In Sammons, we held that the defendant's Confrontation Clause right to a face-to-face encounter was violated when the trial court allowed a prosecution witness to testify while wearing a mask (covering his face and head) and without disclosing his true identity. Sammons, 191 Mich.App. at 359-366. In Sammons, the defendant was charged with drug trafficking offenses. Id. at 354-356. At an entrapment hearing prior to trial, the defendant testified that an informant identified as "Rick" pressured him into participating in the drug conspiracy. Id. During the hearing, the trial court permitted "Rick," the prosecution's chief witness, to testify while wearing a mask that covered his face and head, and instructed the defense that he could not ask identifying questions of "Rick." Id. at 355-357. The trial court justified these procedures on the grounds that one of the defendants allegedly offered someone a quarter pound of cocaine to kill and emasculate "Rick." Id. at 358-359. See also id. at 359 n 2. This Court accepted that the state had a valid interest in promoting the safety of witnesses, but relying on Craig and Coy, concluded that the procedure (a full-face mask) failed to preserve sufficiently the court's ability to assess the witness's credibility through observation of demeanor. Id.at 364-366. On that basis, we remanded for a new entrapment hearing. Id. at 376.
The majority correctly observes that this case is different from Sammons, but it is not that different. Admittedly, the face covering in Sammons was different. There, the masked covered both the witness's face and head (apparently a ski mask). Here, WF's mask only covered his face-specifically his nose and mouth (presumably a surgical mask). While such a covering permits some assessment of a witness's demeanor, I must conclude that it still implicates the right to a face-to-face confrontation. Cf. Sammons, 191 Mich.App. at 359-366 (comparing the ski mask in Sammons to the screen used in Craig). Though not as obvious or egregious as the violation in Sammons, a mask covering a witness's nose and mouth (be it a surgical mask, a neck gaiter, a bandana, or a kerchief) still diminishes the face-to-face encounter and attendant assessment of credibility, and I would conclude still amounts to a violation of the face-to-face confrontation aspect of the Confrontation Clause. See Sammons, 191 Mich.App. at 359-366. Put simply, testifying with a COVID mask puts this case closer to Sammons than it does to an individual testifying without a mask at all. If we conclude otherwise, we must be prepared for every prosecution witness, from informants to law enforcement officers, to elect to wear a surgical mask when testifying.
I acknowledge that in unpublished opinions, this Court has addressed other closely-related issues involving face coverings at trial during COVID-19. See, e.g., People v Wilson, unpublished per curiam opinion of the Court of Appeals, issued January 19, 2023 (Docket No. 356825), p 9 (holding that the trial court requiring a defendant to wear a partial face mask at trial during the COVID-19 pandemic did not violate the Confrontation Clause, the trial court instructed witnesses to remove their face masks when testifying and other aspects of the Confrontation Clause were preserved); Collins v Nizzi, unpublished per curiam opinion of the Court of Appeals, issued January 20, 2022 (Docket Nos. 354510, 354871), pp 1, 6-10 (rejecting the plaintiff's argument that he was denied a fair trial because jurors wore face masks that covered their mouth and nose during voir dire and trial, and that certain witnesses wore face masks while testifying in plaintiff's no-fault trial). See also United States v Crittenden, unpublished order of the United States District Court for the Middle District of Georgia, issued August 21, 2020 (Docket No. 4:20-CR-7) (rejecting constitutional challenge to wearing a face mask and concluding that COVID-style masks eliminate only two aspects of demeanor for the jury to consider: movement of the nose and mouth). Although unpublished opinions are not binding, we may consider the rationale contained in an unpublished opinion to be persuasive. People v Green, 260 Mich.App. 710, 720 n 5; 680 N.W.2d 477 (2004); MCR 7.215(C)(1). I am not persuaded. Most notably none of our unpublished authorities deal with precisely this issue. And Crittenden appears to conflict with our existing caselaw. Cf. Sammons, 191 Mich.App. at 363-366.
This brings us to the other difference between this case and Sammons: the reason for wearing a mask. In Sammons, the witness testified with a mask to protect his identity due to alleged threats. See Sammons, 191 Mich.App. at 357-358, 363-364. Here, WF testified with a mask to protect his health, and potentially the health of others in the court and his detention facility during the COVID-19 pandemic. But under Crawford, the reason for abandoning the face-to-face encounter requirement of the Confrontation Clause does not matter. See Crawford, 547 U.S. at 5356, 67-69. Confrontation is required, or there is a violation. See id. That is true whether an individual is wearing a mask to protect their identity, or wearing a mask to protect their health. I would conclude that wearing a mask (even a surgical mask) during adverse testimony at a criminal jury trial is an obvious violation of the Confrontation Clause-at least under Crawford.
Our Confrontation Clause precedent, however, is somewhat muddled. See Jemison, 505 Mich. at 360-366. Crawford and its progeny established a bright-line rule requiring face-to-face confrontation without exception. Jemison, 505 Mich. at 356, citing Crawford, 541 U.S. at 68. But another line of cases-the precedent on which the majority relies-allows more flexibility and balancing of interests to abrogate portions of a defendants Confrontation Clause rights. See, e.g., Craig, 497 U.S. at 836; Coy, 487 U.S. at 1021. But see Crawford, 541 U.S. at 67-68.
As the majority observes, under that line of cases, the rule requiring a face-to-face encounter is not absolute. People v Johnson, 315 Mich.App. 163, 184; 889 N.W.2d 513 (2016), quoting Craig, 497 U.S. at 847. But see Jemison, 505 Mich. 360-366 (reconciling Craig and Crawford by limited the holding in Craig to its facts); Crawford, 541 U.S. at 67-68 (rejecting "open-ended balancing tests" and holding that the right to confrontation for testimonial evidence is absolute). In fact, this strand of precedent states that face-to-face encounters are not a requirement so much as a "preference." Craig, 497 U.S. at 849. This line of cases has never been explicitly overruled. See Jemison, 505 Mich. at 363; Maynard, 90 F 4th at 711 (reconciling Craig and Crawford by limited the holding in Crawford to its facts). This case exposes that tension between these two strands of precedent.
Nonetheless, even under this older and more malleable interpretation of the Confrontation Clause, an error occurred. The trial court failed to make findings of fact or legal conclusions about the necessity of WF wearing a mask while testifying, the legitimate interests supporting it, and what of Brown's other confrontation rights (i.e., oath, cross-examination) remained. See Craig, 497 U.S. at 855-856.
Under Craig, the requirement of (or preference for) a face-to-face confrontation "must occasionally give way to considerations of public policy and the necessities of the case." Craig, 497 U.S. at 848. Although this line of precedent held that the right is not absolute, the United States Supreme Court noted that it cannot be easily dispensed. Id. at 852. To that end, the United States Supreme Court previously identified procedures for finding a case-specific necessity before dispensing with the face-to-face confrontation requirement. See id. at 855-856. See also Johnson, 315 Mich.App. at 525-530 (discussing with approval the broad application of this framework to other modifications of witness testimony, including abrogation of confrontation rights and the presence of witness support persons).
In Maryland v Craig, the United States Supreme Court affirmed the trial court's decision to allow a witness to testify via one-way close-circuit television after making findings and conclusions supporting the abrogation of the defendant's confrontation rights. See id. at 852-856. There, the defendant was charged with physically and sexually abusing a six-year-old who attended the defendant's kindergarten. Id. at 840. The prosecution requested the court allow the child victim-witness to testify via one-way close-circuit television. Id. The trial court permitted the use of the procedure after receiving evidence and making a finding, pursuant to an existing statute, that the child witness would suffer serious emotional distress to the extent that the child would not be able to reasonably communicate. Id. at 842-843. The United States Supreme Court held that the procedure did not violate the defendant's right to confrontation. Id. at 847. It was in this context that the Court concluded, as the majority observes, that the Confrontation Clause does not require "an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant." Id. at 847 (emphasis in original). See also Coy, 487 U.S. at 1021 (holding, two years earlier, that there may be exceptions to the Confrontation Clause, but those exceptions "would surely be allowed only when necessary to further an important public policy."). But the Court also clarified that a trial court may only use a special procedure when the prosecution shows that it is "necessary to further an important state interest." Craig, 497 U.S. at 852 (holding that there was a "compelling" state interest "in the protection of minor victims of sex crimes from further trauma and embarrassment") (quotation marks and citation omitted). Thus, there are two requirements: (1) a legitimate state interest; and (2) an adequate showing of necessity. See id. at 855. See also Johnson, 315 Mich.App. at 184-185. Regarding the findings of necessity to justify the use of a special procedure, the Supreme Court stated:
The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify[.]" [Craig, 497 U.S. at 855-856 (citations omitted).]
Acknowledging that the procedure the Court outlined in Craig is tailored to the specifics of that case, this Court has broadly applied this framework to other procedures that may abrogate (or implicate) the right to confrontation. See Sammons, 191 Mich.App. at 351. See also Johnson, 315 Mich.App. at 183-188 (acknowledging the framework in the context of a witness support dog and concluding that the use of a support dog did not implicate the Confrontation Clause).
One year after the decision in Craig, our Court applied its framework in People v Sammons, the primary case on which Brown relies. Sammons, 191 Mich.App. at 361-366. Though not explicitly stated, in Sammons, this Court appears to have acknowledged that the trial court considered the prosecution's interest in protecting the informant witness when allowing him to testify while wearing a mask. See id. at 357-358.
Even if we accept that the trier of fact was still largely able to assess WF's credibility, and we accept that Brown largely had his opportunity to eyeball or stare down the witness, under more recent precedent, we still must conclude that the trial court erred because it never considered whether WF's mask was necessary, or whether the state, WF, or someone else had a legitimate interest in WF testifying with a mask. To underline this point, we appear to have accepted that WF actually was afraid of getting infected with COVID-19. The reality is, aside from one reference to the pandemic, there is no evidence supporting this conclusion. Obviously, the trial court would have been equipped to make such findings. Even if WF was the only witness (or only person during the trial, including the lawyers, judge, and jurors) who wore a mask, the trial court could likely find a necessity for an incarcerated person in the summer of 2021 wearing a mask to protect themselves against COVID-19. But the trial court bears the responsibility for making those findings. And though our Supreme Court has limited the application of Craig to the facts of that case, see Jemison, 505 Mich. at 365, to the extent it is still good law, we have looked to the procedures outlined in Craig for guidance in assessing whether to allow abrogation of the face-to-face requirement. See Johnson, 315 Mich.App. at 182-186. It just did not happen here. This was an obvious error under the Craig strand of precedent.
Further, this error is what distinguishes this case from United States v Maynard, the primary (and most persuasive) case on which the majority relies. There, the Fourth Circuit affirmed the federal district court's order, over the defendant's objection, that everyone in the courtroom during a criminal trial had to wear a face mask, including testifying witnesses. See Maynard, 90 F 4th at 709-711. The trial court concluded that face masks were necessary in light of the COVID-19 pandemic, and rejected the defendant's plea to allow witnesses to wear transparent face shields during testimony, finding them inadequate to protect the public health. Id. The district court found that the defendant's confrontation rights were not violated, and the Fourth Circuit affirmed its findings and conclusions. Id. Here, however, there are no findings and conclusions for us to affirm. Accepting that Craig, as illustrated in Maynard, provided a mechanism for the trial court to allow masked testimony, the trial court was still obligated to follow the procedure like the trial court did in Maynard. Its failure to do so is plain error.
Nonetheless, although there was an obvious Confrontation Clause violation thus satisfying the first two prongs of the plain-error analysis, Brown still cannot show that the error prejudiced him. See Coy, 487 U.S. at 1021-1022. Though the Crawford line of cases and Craig line of cases require different analyses of whether a Confrontation Clause violation occurred, both strands of precedent subject violations of the face-to-face encounter requirement to harmless-error review. See Coy, 487 U.S. at 1021-1022 (denial of face-to-face confrontation is subject to harmless-error review, similar to other types of violations of the Confrontation Clause); Jemison, 505 Mich. at 366-367 (finding a Confrontation Clause violation under Crawford and remanding to the trial court to determine whether the violation was harmless). Admittedly, it remains unclear how exactly courts should go about measuring prejudice stemming from Confrontation Clause violations, particularly the requirement for an oath and face-to-face encounter, which unlike the right to crossexamination, are not directly tied to eliciting evidence. The simplest method appears to be asking whether a defendant has shown that the result would be different but for the violation. Here, Brown has not shown that anything would be different if WF testified without a mask. It is not clear that the jury would have reached a different conclusion if they could have seen WF's face during his testimony. Because Brown has failed to establish prejudice, I agree with the majority's ultimate conclusion affirming his conviction.
Further, as the majority acknowledges, the trial court stopped when trial participants could not hear WF's testimony, and the transcript of the trial is sufficiently clear.
III. THE DIFFICULTY MEASURING PREJUDICE STEMMING FROM CONFRONTATION CLAUSE VIOLATIONS
The defense has not raised the issue of whether a Confrontation Clause violation (or more specifically a violation of the Confrontation Clause's requirement of a face-to-face encounter) is a structural error. We will not raise that issue for them. Nonetheless, applying the plain-error standard to a forfeited claim of a Confrontation Clause violation again forces us into the awkward position of measuring the prejudice associated with an indispensable part of criminal jury trials. See Crawford, 541 U.S. at 61-62; Jemison, 505 Mich. at 355-357.
This Court, our Supreme Court, and the United States Supreme, have not yet held that a violation of the Confrontation Clause is a structural error. See People v Walker, 273 Mich.App. 56, 67-68; 728 N.W.2d 902 (2006) (COOPER, J., concurring) (noting a gap in Confrontation Clause precedent); Jemison, 505 Mich. at 360-366. But see United States v Graham, 278 F App'x 538, 544 n 2 (CA 6, 2008) (holding that admission of evidence in violation of the Confrontation Clause is not a structural error). But the principles and directions outlined in Crawford and more recent Confrontation Clause precedent suggest that Confrontation Clause violations, particularly violations of its procedural components (i.e., an oath, physical presence before the fact-finder, a face-to-face encounter with the accused), are precisely what structural error contemplates:
Although not binding on state courts, federal circuit court decisions may be considered for their persuasive value. Wilcox, 342 Mich.App. at 561 n 7.
[The Confrontation Clause's] ultimate goal is to ensure reliability of evidence, but it is a procedural rather than 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 cross-examination. 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."). [Crawford, 541 U.S. at 61-62 (opinion by SCALIA, J.).]See Jemison, 505 Mich. at 361-363 (analyzing preserved Confrontation Clause error and explaining that the Confrontation Clause "does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was 'face-to-face' confrontation.") (Quotation marks and citation omitted; emphasis in original).
Had Brown raised this issue, we might be required to confront more directly the question of how a defendant in his position could ever prove prejudice related to a violation of the face-to-face requirement of the Confrontation Clause. Crawford and Jemison suggest that we should not have to answer this question because confrontation rights are intrinsic and pervasive, and the harm resulting from their denial is impossible to measure. See Crawford, 541 U.S. at 61-62; Jemison, 505 Mich. at 355-357. But see Jemison, 50 Mich. at 366-367 (remanding for a determination of whether the violation was harmless). The Confrontation Clause is not just about reliability; rather, it establishes bright-line procedures that define the fundamentals of criminal proceedings. See Crawford, 541 U.S. at 61-62, 67-68; Jemison, 505 Mich. at 355-357, 360-362. Had Brown argued that the Confrontation Clause violation was a structural error, it undoubtedly would have affected our plain-error analysis, and may have yielded a different outcome. This issue however is not presently before us.
IV. CONCLUSION
For the reasons stated above, I concur in the result. A Confrontation Clause violation occurred, but Brown cannot establish whether and how it affected the outcome. Nothing in this opinion should be construed as diminishing the devastating impact of COVID-19 on criminal courts and their various stakeholders, including incarcerated individuals. Our courts remain able to protect the health and safety of court stakeholders and the constitutionally-mandated components of criminal trials.