20230112_C355983_46_355983.Opn.Pdf

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re NMH, UNPUBLISHED
January 12, 2023
PEOPLE OF THE STATE OF MICHIGAN,
Appellee,
v No. 355983
Calhoun Circuit Court
NMH, LC No. 2020-002015-PP
Respondent-Appellant.
Before: BOONSTRA, P.J., and GADOLA and HOOD, JJ.
HOOD, J. (concurring.)
In the 2001 short story Little Brother, Walter Mosley imagined a future where courts are
efficient because of advances in automation and video technology. The protagonist defends
himself against an artificial intelligence prosecutor and before an automated judge because he
cannot afford live, in-person proceedings. Although we presently are a long way from this
imagined dystopia, the courts must remain vigilant against the gradual, frog-boiling
dehumanization of the criminal judicial system—even in times of crisis.
This case presents another node along the path to that potential future. While I agree with
the bulk of the analysis and conclusions in the majority opinion, I write separately because my
agreement with the majority’s handling of the third and fourth prong of plain-error analysis is
premised on two conditions. First, we are bound by People v Anderson, ___ Mich App ___; ___
NW2d ___ (2022) (Docket No. 354860), app held in abeyance ___ Mich ___; 978 NW2d 835(2022), which I believe was wrongly decided as it relates to prejudice and structural error arising
out of video sentencing. Second, respondent has not argued that the apparent—and obvious—
Confrontation Clause violations in this case prejudiced her or amount to structural errors that
would place this case outside of Anderson’s framework. Because that argument is not presently
before us, and because we are bound by Anderson, I agree with the majority.
I. BACKGROUND
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The majority opinion accurately describes the factual and procedural background of this
case. Critically, this case involved indirect, criminal contempt proceedings for a personal
protection order (PPO) violation. Because the contempt was criminal in nature, most if not all
criminal procedural protections were required. The factfinder—in this case the trial court—viewed
the entirety of the testimony via video. So did the respondent. The trial court never advised
respondent of her rights under the Confrontation Clause to demand that the factfinder and the
accused view the testimony in person.
II. PRESERVATION AND STANDARD OF REVIEW
The majority opinion applies the correct standard of review: plain-error analysis. See
People v Carines, 460 Mich 750, 763 n 7; 597 NW2d 130 (1999). Like the question of physical
presence, the apparent Confrontation Clause violations are forfeit rather than intentionally waived.
See People v Davis, 509 Mich 52, 64-65; ___ NW2d ___ (2022). Here, nothing in the record
suggests that respondent knew she had a right to confront her accuser or have the trial court as the
factfinder observe the testimony in person to more accurately assess witness credibility. We,
therefore, would review the unpreserved Confrontation Clause issue for plain error if that issue
were before us. See id.As stated in the majority opinion, in order to obtain relief under the plain-error rule, a
contemnor bears the burden of proving 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. Anderson, ___ Mich App at ___; slip op at 4 (citation omitted). If a defendant
satisfies these three requirements, the court must determine whether the plain error seriously
affected the fairness, integrity, or public reputation of the judicial proceedings independent of the
defendant’s innocence. Carines, 460 Mich at 763-764. This last step, sometimes identified as a
fourth prong of plain-error analysis, 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 NW2d 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 US 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, ___ US ___; 137 S Ct 1899, 1907-1908; 198 L Ed 2d 420 (2017) (holding that the
right to public trial is structural); United States v Gonzalez-Lopez, 548 US 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). Because their harm is extensive, intrinsic, and difficult to prove, “preserved
structural errors result in automatic relief to the defendant to ensure insistence on certain basic,
constitutional guarantees that should define the framework of any criminal trial.” Davis, 509 Mich
at 67 (quotation marks and citation omitted). 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.” Id. at 73. 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 prongs. Id. at 73-75. The burden then shifts
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to the prosecution to present facts that “affirmatively demonstrate that, despite the error, the overall
fairness, integrity, and reputation of the trial court proceedings were preserved.” Id. at 76.
III. LAW AND ANALYSIS
I agree with the majority that respondent has satisfied the first and second prong of the
plain-error analysis. My hesitation relates to the third-prong of plain-error analysis and
consideration of whether plain error seriously affected the fairness, integrity, or public reputation
of the judicial proceedings independent of the defendant’s innocence, the so-called fourth prong.
I agree with the majority’s conclusion that respondent has not satisfied the third prong, prejudice,
because we are bound by the holding in Anderson and because respondent has not raised the
Confrontation Clause violation as an issue in this appeal. I discuss both issues below.
A. ANDERSON WAS INCORRECTLY DECIDED
First, the majority reaches the correct conclusion because we must follow this Court’s prior
holding in Anderson. See MCR 7.215(J)(1). But this Court’s conclusion in Anderson was
incorrect.1 There, following a bench trial, the trial court sentenced the defendant via Zoom video
conference. Anderson, ___ Mich App at ___; slip op at 2. Aside from the defendant not being
present at sentencing and not being able to see his attorney during the hearing, the sentencing
hearing complied with constitutional requirements. See id. at ___; slip op at 2. The defendant
appealed, arguing in part, that he was entitled to resentencing because he was not physically
present. Id. at ___; slip op at 4.
There, like here, the error was unpreserved. See Anderson, ___ Mich App at ___; slip op
at 6. At the outset, this Court held that video sentencing was not a structural error because “(1)
the right to be physically present at sentencing is designed to protect the defendant from an
erroneous sentence, and not necessarily to protect some other interest, (2) the effects of sentencing
a defendant remotely is not too difficult to measure, and (3) the error will not always result in
fundamental unfairness.” Id. at ___; slip op at 6, citing Weaver, 137 S Ct at 1908. In support of
these conclusions, this Court cited Weaver, which did not involve video proceedings or sentencing
at all. See Anderson, ___ Mich App at ___; slip op at 6; see also Weaver, 137 S Ct at 1908 (holding
that closing the court room for two days of jury selection where all of the seats in the courtroom
were occupied by the pool of prospective jurors did not violate the defendant’s right to a public
trial or satisfy the defendant’s ineffective assistance of counsel claim).
Having concluded that the error was not structural, this Court also concluded that the
defendant failed to satisfy the third and fourth prongs of the plain-error standard. Anderson, ___
1
Notably, this Court held in a recent unpublished opinion that remote participation in sentencing
was a structural error. People v Harbenski, unpublished per curiam opinion of the Court of
Appeals, issued March 31, 2022 (Docket No. 356731), p 6 (“[W]e hold that the lack of in-person
sentencing in this case was structural error that affected defendant’s substantial rights and seriously
affected the integrity and fairness of the judicial proceedings.”). In Anderson, which was decided
the same day as Harbenski, this Court held the opposite. See Anderson, ___ Mich App ___; slip
op at 7 (“Defendant’s remote participation in the sentencing was not a structural error.”).
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Mich App at ___; slip op at 6-8 & 8 n 4. First, this Court held that the defendant failed to show,
or even argue, outcome-determinative prejudice. Id. at ___; slip op at 6-8. This Court reasoned
that the plain-error standard required the defendant to “successfully establish that, had he been
physically present in the courtroom, there is a reasonable probability that his sentence would have
been different.” Id. at ___; slip op at 6. The Court concluded that his physical absence from the
courtroom still allowed him to participate (albeit without the ability to confer with his attorney)
and did not restrict his ability to put in evidence or argument in favor of a low sentence. Id. at __;
slip op at 7. In dictum, the Court stated that the effect of the error was not difficult to discern
because “if it were necessary, all that would be required to determine whether defendant’s physical
presence impacted the sentence would be to remand for the trial court to indicate whether it did.”
Id. at ___; slip op at 7. In other words, the defendant did not prove that the remote proceedings
resulted in a harsher sentence, and even if he had, this Court could remand to the sentencing court
for the sentencing judge to say whether the outcome was prejudiced by video sentencing.
This is wrong for three reasons. First, it assumes that a sentencing judge who imposed a
harsher sentence due to remote sentencing would be able to recognize that prejudicial effect of
remote proceedings on remand. In reality, implicit prejudices in sentencing may be quantifiable,
but hard—or impossible—for an individual trial judge to recognize. See People v Heller, 316
Mich App 314, 320-321; 891 NW2d 541 (2016) (“Abundant social science research demonstrates
that video conferencing ‘as a mediating technology’ may color a viewer’s assessment of a person’s
credibility, sincerity, and emotional depth.”).2 Second, the Anderson analysis calcifies a standard
that a defendant can effectively never prove. There is no way to show that a video sentence
affected the outcome, and even if there is a question, the trial judge can simply say it did not.
Relying on the logic in Anderson, it is essentially impossible for a defendant to satisfy the third
prong of the plain-error standard following a trial court’s failure to advise a defendant of their right
to be in person at various stages of trial, including sentencing. The difficulty in quantifying or
proving prejudice related to such violations would seem to be an indication that either video
sentencing is either never prejudicial or it is precisely the type of hard-to-measure error that
reviewing courts should not have to quantify—structural. The simplest explanation is that remote
sentencing without an appropriate waiver is an error that is intrinsic, pervasive, and impossible to
measure. Precisely the sort of error that we should find is structural. This is the third reason
Anderson is wrong. See Heller, 316 Mich App at 318-320 (discussing the “profound significance”
of sentencing, acknowledging the “intensely personal nature of the process,” and noting the
“dehumanize[ation]” of that process associated with video sentencing.)
In reaching its conclusion that remote sentencing is not a structural error, this Court also
acknowledged—but largely ignored—the principles outlined in Heller, 316 Mich App at 321. In
Heller, this Court first recognized the constitutional right to in-person sentencing. Compare
Anderson, ___ Mich App at___; slip op at 6 (“[T]he error will not always result in fundamental
unfairness”), with Heller, 316 Mich App at 321 (“In our view, Heller’s absence from the
sentencing nullified the dignity of the proceedings and its participants, rendering it fundamentally
2
This Court in Heller relied on the discussion of unintended, negative effects of videoconferencing
in the legal world as stated in Salyzyn, A New Lens: Reframing the Conversation about the Use of
Video Conferencing in Civil Trials in Ontario, 50 Osgoode Hall L J 429, 445 (2012).
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unfair.”). In Heller, however, this Court did not explicitly state that it was applying the plain-error
standard or its prejudice prong, though the error in Heller appeared to be unpreserved. See Heller,
316 Mich App at 315, 321. Nonetheless, this Court strongly indicated that the lack of in-person
sentencing for felony convictions was a structural error when it stated that sentencing via video
conference renders the sentencing “fundamentally unfair.” Id. Considering the statement in
Heller’s extended discussion on the importance of in-person sentencing, this Court in Anderson
should have concluded that sentencing via video conference without a valid waiver is structural,
plain error.
The reasoning in Heller was sound. Sentencing in person is different than on Zoom. See
Anderson, ___ Mich App at ___; slip op at 6. See also Heller, 316 Mich App at 319-321. On
Zoom, a defendant appears to be one and half to three inches on a computer screen (or smaller if
sentenced via video from the Michigan Department of Corrections). In person, the defendant
stands between 6 feet and 25 feet from the judge. Unlike Zoom, in person, the judge cannot mute
a defendant, victim, or member of the public who becomes overwhelmed during the sentencing
hearing. On Zoom, there is no packing the courtroom with supporters, family, or victim advocates.
There is no real interaction with the public outside of broadcasting proceedings to invisible masses
on YouTube. And the trial judge cannot see the defendant or victim quake as they allocute. The
Court in Anderson appeared to recognize these differences, see Anderson, ___ Mich App at ___;
slip op at 6 (“Remote proceedings, despite the greatly improved and available technologies, simply
do not compare to face-to-face interaction.”)3, and it ignored them, see id. at ___; slip op at 6-8.
Nonetheless, we are bound by Anderson. I, therefore, must agree with the majority’s
conclusion regarding the third and fourth prong of the plain-error analysis.
B. CONFRONTATION CLAUSE VIOLATIONS
Finally, I agree with the majority’s conclusions regarding the third and fourth prong of
plain-error analysis because, aside from passing reference in respondent’s brief, respondent has
not raised the issue of the obvious Confrontation Clause violations in this case. This critical issue,
therefore, is not presently before us. Had respondent raised the issue, we would be required to
consider three questions: (1) whether the Confrontation Clause violations prejudiced respondent;
3
The Court noted the critical importance of in-person sentencing, citing as examples Heller and
several outer jurisdiction cases. See Anderson, Mich App at ___; slip op at 6, citing Heller, 316
Mich App at 319-320; United States v Williams, 641 F3d 758, 764 (CA 6, 2011) (“As our sister
circuits have recognized, and anyone who has used video conferencing software is aware, ‘virtual
reality is rarely a substitute for actual presence.’ ”) (citation omitted); United States v Lawrence,
248 F3d 300, 304 (CA 4, 2001) (stating that Rule 43 of the Federal Rules of Criminal Procedure
reflects the policy that “virtual reality is rarely a substitute for actual presence and that, even in an
age of advancing technology, watching an event on the screen remains less than the complete
equivalent of actually attending it.”); and United States v Fagan, 464 F Supp 3d 427, 429-430 (D
Me, 2020) (“From thirty years of federal sentencing, I can attest to the importance of seeing the
defendant in the same room at sentencing. Physical presence makes unavoidable the recognition
that—in sentencing—one human being sits in judgment of another, with a dramatic impact on the
future of a living, breathing person, not just a face on a screen.”).
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(2) whether they affected the fairness, integrity, and public reputation of the court proceedings;
and (3) whether Confrontation Clause violations, like those in this case, are structural errors.
As stated above, this contempt was criminal in nature; therefore, respondent had the right
to be present during critical stages of the proceedings. See In re Contempt of Dougherty, 429 Mich
81, 91; 413 NW2d 392 (1987) (holding that criminal contempt requires most procedural safeguards
of other criminal cases). But unlike Anderson, Heller, and the majority of cases analyzing the right
to physical presence during criminal proceedings, this case also involved the court’s denial of
respondent’s right to be present during adverse testimony and factfinding. This case, therefore,
also implicates respondent’s more specific Confrontation Clause rights (1) to see petitioner’s
testimony live in court and (2) to have the trial judge, as the factfinder, see his testimony live in
court. See Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004); People
v Jemison, 505 Mich 352, 355-357; 952 NW2d 394 (2020); see also In re Contempt of Dougherty,
429 Mich at 91 (noting that criminal contempt requires most criminal procedures). 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 US Const, Am
VI; Const 1964, art 1, § 20. A primary objective of the Confrontation Clause is to compel
witnesses to “stand face to face with the [factfinder] 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, 407-408; 775 NW2d 817 (2009), quoting
Mattox v United States, 156 US 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 US 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). When
combined, these elements ensure “that evidence admitted against an accused is reliable and subject
to . . . rigorous adversarial testing . . . .” Maryland v Craig, 497 US 836, 846; 110 S Ct 3157; 111
L Ed 2d 666 (1990).4
Although reliability had long been a touchstone of Confrontation Clause jurisprudence, in
Crawford, the United States Supreme Court established a bright-line rule requiring a face-to-face
encounter for testimonial evidence. Crawford, 541 US at 61-63; see also Jemison, 505 Mich at
355-357 (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 356, citing Crawford,
541 US at 68. Admitting a prosecution witness’s video testimony over a defendant’s objection
necessarily violates a defendant’s state and federal constitutional rights to confrontation. Jemison,
505 Mich at 356 (reversing conviction for first-degree criminal sexual conduct because
4
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).
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prosecution’s forensic expert witness’s testimony via two-way video conference violated the
Confrontation Clause).
Here, the trial court clearly erred by conducting the evidentiary hearing and sentencing via
video without first advising respondent of her right to appear in person and making the appropriate
waivers on the record. But the trial court also erred in allowing the prosecution to present
testimony, including that of petitioner, without advising respondent of her Confrontation Clause
rights. This error was as, if not more, obvious than the trial court’s error in failing to advise
respondent of her more general right to be physically present during proceedings that may
adversely affect her rights.
The Supreme Court has also 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 NW2d 902 (2006) (COOPER,
J., concurring) (noting a gap in Confrontation Clause precedent); but see United States v Graham,
278 F App’x 538, 545 n 2 (CA 6, 2008) (holding that admission of evidence in violation of the
Confrontation Clause is not a structural error).5 But the principles and directions outlined in
Crawford and more recent Confrontation Clause precedent suggest that the Confrontation Clause
violations in this case are precisely what structural error contemplates. See Crawford, 541 US at
61-62 (“[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.”) (opinion
by SCALIA, J.); 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).
As indicated above, this Court has reached different conclusions regarding the effect and
constitutional implications of criminal proceedings via video conference. Compare Anderson, ___
Mich App at ___; slip op at 7-8 (holding that the defendant satisfied the first two prongs of plain-
error analysis but not the third), with Heller, 316 Mich App at 314 (holding sentencing via video
was fundamentally unfair without explicitly citing the plain-error standard).6 Our analysis,
5
Although caselaw from lower federal courts is not binding precedent, it may be considered for
its persuasive value. People v DeRousse, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 358358); slip op at 4.
6
Unpublished cases from this court have also reached various outcomes. Harbenski, unpub op at
4-5 (holding that sentencing via video conference was a structural error; remanding for
resentencing or waiver of right to in-person sentencing); People v Harbenski, unpublished per
curiam opinion of the Court of Appeals, issued March 31, 2022 (Docket No. 356731) (BOONSTRA,
J. concurring) (finding that video sentencing was plain error without structural error); People v
Enciso, unpublished per curiam opinion of the Court of Appeals, issued October 8, 2020 (Docket
No. 342965), pp 5-7, lv pending (holding that defendant sentenced via video conference satisfied
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however, has almost exclusively been limited to the right to physical presence during sentencing,
not physical presence during factfinding. See, e.g., Heller, 316 Mich App at 314 ; Anderson, ___
Mich App at ___; slip op at 7; Harbenski, unpub op at 3-6; see also People v Enciso, unpublished
per curiam opinion of the Court of Appeals, issued October 8, 2020 (Docket No. 342965), pp 5-7,
lv pending. Assessing prejudice in video sentencing can be particularly difficult, see Anderson,
___ Mich App at ___; slip op at 7-8, and does not implicate the same issues that are present with
video testimony and video factfinding. I am unaware of cases assessing the resultant prejudice a
defendant or criminal contemnor experiences when the court violates her right to be present during
factfinding and testimony, absent prior misconduct or disruption by the defendant. I can only
assume that is because such an error in criminal proceedings is exceptionally rare, and video
testimony obviously requires knowing, intelligent, and voluntary waivers of rights under the
Confrontation Clause. The same should be true in the context of criminal contempt proceedings.
If respondent had raised the issue, we would have to consider whether respondent has
satisfied the third prong of plain error analysis because use of two-way videoconferencing for
testimony affected her substantial rights. This Court and the United States Supreme Court have
recognized that the right to confrontation allows an accused to confront their accusers, and allows
the jury, or factfinder, to weigh a witness’s credibility more accurately. Buie, 285 Mich App at
408 (noting that the right to confrontation is essential to a fair trial); Craig, 497 US at 846 (stating
that the elements of the Confrontation Clause right to confrontation ensure that testimony against
the accused is reliable and subject to rigorous adversarial testing). Without these elements, I am
convinced that the trial court largely heard all of the testimony, but it is unclear if the trial court
was in the same position to assess the credibility of either respondent or petitioner. By extension,
the court, as the factfinder, was not in the same position it would otherwise be to determine
respondent’s guilt.
Crawford and Jemison suggest that these are questions that we should not have to answer
because confrontation rights are intrinsic and pervasive, and their denial is impossible to measure.
See Crawford, 541 US at 61-62; Jemison, 505 Mich at 355-357. The Confrontation Clause is not
just about reliability; rather, it establishes bright-line procedures that define the fundamentals of
criminal proceedings. See Crawford, 541 US at 61-62, 67-68; Jemison, 505 Mich at 355-357, 360-
362. If asked, and if appropriately applying our Supreme Court’s precedent and that of the United
States Supreme Court, I would likely conclude that this sort of error is structural.
But without the Confrontation Clause problem, and being required to follow Anderson, it
is difficult to say that the errors affected respondent’s substantial rights. It is difficult to ignore
that the trial court failed to ask if respondent consented to taking testimony and engaging in
factfinding remotely. Without respondent’s waiver, the court engaged in a process that almost
certainly would not have occurred in an ordinary criminal context. Had it occurred in an ordinary
criminal case, the need to reverse for waivers or retrial would be obvious. If this issue were before
us, the outcome might have been equally obvious.
the first two prongs of plain-error analysis, but did not satisfy the third prong because his
sentencing hearing otherwise complied with constitutional requirements and he could not
demonstrate prejudice).
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For these reasons, I respectfully concur in the result.
/s/ Noah P. Hood
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