People of Michigan v. Steve Nafie Gatie ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 24, 2017
Plaintiff-Appellee,
v No. 329572
Wayne Circuit Court
STEVE NAFIE GATIE, LC No. 14-007383-01-FH
Defendant-Appellant.
Before: BECKERING, P.J., and SAWYER and SAAD, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction of carrying a concealed weapon
(CCW), MCL 750.227, for which he was sentenced to one year of probation. We affirm.
On July 12, 2014, Detroit police officers heard “loud bangs” indicative of gunfire and
drove toward the area of the sound. The officers arrived at a liquor store and saw three
individuals at the street corner sidewalk lighting and throwing fireworks into the street. When
the officers drove into the parking lot, the men began to walk toward the store. Officer Lonnie
Peugh approached defendant and noticed the shape of a handgun underneath defendant’s shirt,
but a gun was not exposed. Officer Peugh’s partner, Officer Alen Ibrahimovic, similarly
observed a bulge at defendant’s right side underneath his clothes that appeared to be a handgun.
A defense witness, Kevin Orow, testified that he and defendant were standing on a sidewalk that
wrapped around the store, not on the public sidewalk, and that defendant possessed a gun that
was visibly displayed at his side waist. The trial court disbelieved Orow’s testimony and found
defendant guilty of carrying a concealed weapon.
On appeal, defendant argues that reversal is required because Officer Ibrahimovic
violated a sequestration order when he reviewed the preliminary examination testimony of
Officer Peugh before Officer Ibrahimovic testified at trial. We disagree.
The trial court’s decision to sequester witnesses and any violation of a sequestration order
is reviewed for an abuse of discretion. People v Roberts, 292 Mich. App. 492, 502-503; 808
NW2d 290 (2011). The principles addressing the construction of statutes are applicable to the
rules of evidence. People v Jackson, 498 Mich. 246, 257; 869 NW2d 253 (2015). If the plain
language of a rule of evidence is unambiguous, its plain meaning is enforced without further
judicial construction. Id. at 257-258.
-1-
MRE 615 addresses exclusion of witnesses and provides:
At the request of a party the court may order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person whose presence is
shown by a party to be essential to the presentation of the party’s cause.
In People v Meconi, 277 Mich. App. 651, 654; 746 NW2d 881 (2008), this Court delineated the
purpose of sequestration and the remedies available for violation of a sequestration order:
The purposes of sequestering a witness are to “prevent him from
‘coloring’ his testimony to conform with the testimony of another,” and to aid “in
detecting testimony that is less than candid.” Additionally, the United States
Supreme Court has recognized three sanctions that are available to a trial court to
remedy a violation of a sequestration order: “(1) holding the offending witness in
contempt; (2) permitting cross-examination concerning the violation; and (3)
precluding the witness from testifying.” Although usually stated in the context of
a defense witness’s exclusion in a criminal case, courts have routinely held that
exclusion of a witness’s testimony is an extreme remedy that should be sparingly
used. [Citations omitted.]
At the preliminary examination, defense counsel moved for sequestration of witnesses
and the district court instructed all witnesses to wait in the hall. Only Officer Peugh testified at
the preliminary examination. The circuit court also ordered sequestration of witnesses at trial. It
is undisputed that Officer Ibrahimovic was not present during Officer Peugh’s trial testimony.
But after Officer Peugh testified, Officer Ibrahimovic was called to the stand and acknowledged
that he had read Officer Peugh’s preliminary examination testimony. Defendant moved for
dismissal, arguing that Officer Ibrahimovic violated the sequestration by reviewing Officer
Peugh’s prior testimony. The trial court found that there was no violation and denied
defendant’s motion.
This Court considered and rejected a similar claim in People v Stanley, 71 Mich. App. 56,
61; 246 NW2d 418 (1976). In that case, the defendant alleged that a sequestration order was
violated by two police witnesses. Specifically, the trial court had ordered the witnesses
sequestered during the trial. It was later learned that two police officers, Rollett and Formes,
while sequestered, had discussed Formes’s difficulty in identifying the defendant, the suspect he
had arrested. Rollett denied describing the defendant to Formes during the conversation.
Defense counsel alleged that the conversation violated the sequestration order, but the trial court
ruled that the sequestration order was not violated because, although it had excluded the
witnesses from the courtroom, it did not order the witnesses to refrain from discussing the case
with one another. Id. This Court recognized the distinction between the exclusion of witnesses
from the courtroom and a directive that witnesses not discuss the case, and held that the trial
court did not abuse its discretion by allowing the witnesses to testify, explaining:
-2-
We agree with defendant that one of the purposes of the sequestration of a
witness is to prevent him from “coloring” his testimony to conform with the
testimony of another. When witnesses are excluded from the courtroom,
however, they are not automatically put on notice that they are not to discuss their
testimony. We are directed to no statute or court rule which requires a trial judge
to caution witnesses not to discuss the case while sequestered.
The exclusion of witnesses from the courtroom is within the discretion of
the trial judge. So too is the ordering of the sequestered witnesses not to discuss
the evidence while outside the courtroom. We question the efficacy of a
sequestration order, however, if the witnesses are not ordered not to discuss the
evidence. We agree with the opinion of another court which faced the same
question:
We wish to indicate our view, however, that ordinarily,
when a judge exercises his discretion to exclude witnesses from the
courtroom, it would seem proper for him to take the further step of
making the exclusion effective to accomplish the desired result of
preventing the witnesses from comparing the testimony they are
about to give. If witnesses are excluded but not cautioned against
communicating during the trial, the benefit of the exclusion may be
largely destroyed.
Failure to so caution the witnesses, however, does not constitute reversible
error absent abuse of discretion in ruling on a request for such a warning.
In the instant case the trial court was not asked to caution the witnesses
nor did he abuse his discretion in permitting the witnesses to testify, as there was
no violation of the sequestration order. We find further that defendant Stanley
was not prejudiced by the conversation of the witnesses. Rollett testified that
Formes had not described defendant Stanley to him and that the conversation
concerned only Formes’ difficulty in identifying the defendant. We note that
defendant Stanley was also identified with fingerprints as the person Formes
arrested. There was no error. [Id. at 61-63 (citations omitted).]
In the instant case, the trial court similarly did not err in concluding that there was no
violation of the sequestration order. At the preliminary examination, defense counsel merely
moved to “sequester any and all witnesses with the exception of the officer in charge,” and the
district court instructed the witnesses to step into the hallway until further notice. The defense
did not request that the court further instruct the witnesses that they could not discuss the case.
Similarly, at the bench trial, defense counsel requested sequestration of the witnesses and did not
request further instruction regarding discussion of the case or review of documents or prior
testimony pertaining to the case. It is undisputed that Officer Ibrahimovic was not present during
Officer Peugh’s trial testimony.
Furthermore, the plain language of MRE 615 allows the court to order exclusion of
witnesses “so that they cannot hear the testimony of other witnesses.” Jackson, 498 Mich. at 257-
-3-
258. Officer Ibrahimovic did not “hear” the testimony of other witnesses. Apparently, in
preparation for trial, the officer reviewed the prosecutor’s file, which contained the preliminary
examination transcript. However, the officer’s exclusion from the courtroom did not include
direction regarding the rationale for the exclusion or require that he take preventive measures
consistent with that rationale, such as not reviewing the police reports or prior testimony of his
partners. Accordingly, the trial court did not err in finding that there was no violation of the
sequestration order.
Defendant contends that he was prejudiced by Officer Ibrahimovic’s review of the
preliminary examination transcript because the officer was not previously subject to cross-
examination and he was able to conform his testimony to that previously provided by Officer
Peugh, and thereby buttress the credibility of Officer Peugh’s testimony. However, the trial
court allowed defendant to cross-examine Officer Ibrahimovic regarding the claimed violation,
thereby enabling the trial court, as the trier of fact, to determine the impact, if any, of Officer
Ibrahimovic’s review on the credibility of each officer’s testimony. Although the trial court did
not err in finding that the sequestration order was not violated, defendant’s contention that he
was prejudiced by any violation of the sequestration order is also without record support.1
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Henry William Saad
1
Going forward, we recommend that the trial court take the further step of ordering witnesses
not to read one another’s testimony or discuss the case if they have not already testified
themselves.
-4-