Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

March 5, 2010 

139712 & (55) 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellant/ 

Cross-Appellee, 

v SC: 139712 

 COA: 278732 

Kent CC: 05-010021-FC 

JAMES HENRY BUIE, 

Defendant-Appellee/ 

Cross-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the August 25, 2009 

judgment of the Court of Appeals and the application for leave to appeal as crossappellant are considered, and they are DENIED, because we are not persuaded that the 

questions presented should be reviewed by this Court prior to the completion of the 

proceedings ordered by the Court of Appeals. We note, however, that the Court of 

Appeals relied on an incomplete statement by defense counsel to support its conclusion 

that defendant did not consent to the use of two-way interactive video testimony under 

MCR 6.006(C)(2). People v Buie, 285 Mich App 401, 417 (2009). Before the first 

witness testified via video-conferencing, defense counsel stated in full, “I understand this 

is this particular courtroom’s first attempt at this type of technological proceeding, and 

my client has—wanted to question the veracity of these proceedings, so I’ll leave that to 

the Court’s discretion.” Defense counsel made no other statement indicating that 

defendant objected to the video-conferencing procedure. Because of the nature of the 

attorney’s statement and because the trial court failed to make any findings regarding 

good cause under MCR 6.006(C), the applications for leave to appeal are denied and the 

proceedings ordered by the Court of Appeals should take place. In addition to 

determining whether the use of two-way interactive video technology was necessary to 

further an important public policy or state interest as ordered by the Court of Appeals, the 

trial court shall make findings regarding good cause and consent pursuant to MCR 

6.006(C). 

CORRIGAN, J. (concurring in part and dissenting in part). 
2

I concur in this Court’s order insofar as it clarifies the existing record regarding a 

statement made by defense counsel, which the Court of Appeals twice mischaracterized 

in a published opinion. I dissent, however, from the implication that “the nature” of 

defense counsel’s complete statement did not amount to consent under MCR 6.006(C)(2). 

Because defense counsel plainly consented to the taking of testimony using two-way 

interactive video technology, I would not expend further judicial resources analyzing the 

issue during the proceedings on remand. 

A jury convicted defendant of two counts of first degree criminal sexual conduct 

involving a victim under the age of 13,1

 three counts of first degree criminal sexual 

conduct involving the use of a weapon,2

 and possession of a firearm during the 

commission of a felony.3

 Defendant appealed, arguing in part that the trial court violated 

defendant’s constitutional right to confront the witnesses against him when it permitted 

two witnesses, Dr. Vincent Palusci and Dr. Rodney Wolfarth, to testify using two-way 

interactive video technology. Concluding that the issue was one of first impression, the 

Court of Appeals remanded the case for an evidentiary hearing to determine whether 

defendant’s Sixth Amendment right to confrontation was violated when the trial court 

permitted Dr. Palusci and Dr. Wolfarth to testify using two-way interactive video 

technology as opposed to physically appearing in court. 

I concur with this Court’s order to the extent that it illuminates the careless 

mischaracterization of the record by the Court of Appeals. Specifically, the Court of 

Appeals omitted the complete transcript of defense counsel’s statement when it 

concluded that “[d]efense counsel’s statement does not qualify as agreement, approval, or 

permission; in fact, it indicates that defendant objected to the videoconferencing 

procedure.”4

 I have scrutinized the record. This statement is false. The Court of 

Appeals twice quoted defense counsel as stating “my client has-wanted to question the 

veracity of these proceedings.”5

 However, defense counsel stated, in full, that “I 

understand this is this particular courtroom’s first attempt at this type of technological 

proceeding, and my client has—wanted to question the veracity of these proceedings, so 

I’ll leave that to the Court’s discretion.” A review of the record reveals that defense 

counsel never objected to the use of two-way interactive video technology for the taking 

of Dr. Palusci’s and Dr. Wolfarth’s testimony. 

 

1

 MCL 750.520b(1)(a). 

2

 MCL 750.520b(1)(e). 

3

 MCL 750.227b. 

4 People v Buie, 285 Mich App 401, 417 (2009). 

5 Buie, 285 Mich App at 407, 417. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

March 5, 2010 

p0302 

 

3

In light of defense counsel’s complete statement, I cannot conclude that “the 

nature” of that statement manifested anything other than consent. As a threshold matter, 

the complete statement of defense counsel is “consent” under the Court of Appeals own 

analysis of the dictionary definition of the term.6

 When defense counsel stated “I’ll leave 

that to the Court’s discretion,” defendant essentially acquiesced to the taking of testimony 

using two-way interactive video technology. Defense counsel cannot acquiesce to the 

court’s handling of a matter at trial, only to later raise the issue as an error on appeal.7

 A 

contrary result would run afoul of the well-established legal principle that a defendant 

must “raise objections at a time when the trial court has an opportunity to correct the 

error”8

 and cannot “harbor error as an appellate parachute.”9 Because defense counsel 

assented to the trial court’s use of two-way interactive video technology, I would 

conclude that defendant plainly consented under MCR 6.006(C)(2) and would foreclose 

the issue on remand. 

Accordingly, I concur in part and dissent in part from this Court’s order. 

 

6

 As the Court of Appeals acknowledged, MCR 6.006 does not define the term “consent,” 

but Black’s Law Dictionary (8th ed) defines the term as “[a]greement, approval, or 

permission as to some act or purpose, esp. given voluntarily by a competent person; 

legally effective assent.” Buie, 285 Mich App at 417. 

7

 See People v Fetterley, 229 Mich App 511, 520 (1998). 

8 People v Grant, 445 Mich 535, 551 (1994). 

9 People v Carter, 462 Mich 206, 214 (2000).