Background
William August Ketner was prosecuted following two controlled purchases of methamphetamine and fentanyl by a confidential informant working with the Michigan Intelligence Network Team. The purchases occurred in June and July 2022 and were covertly recorded. A jury acquitted Ketner of charges arising from the June transaction but convicted him of delivering methamphetamine and fentanyl during the July transaction and maintaining a drug house.
On the second day of trial, defense counsel asked to have defense witness Estelle Norton testify by Zoom because she could not obtain transportation to the courthouse. The trial court denied the same-day request, citing the lack of notice to the prosecution and anticipated difficulty presenting exhibits to Norton remotely. Ketner appealed, arguing that the ruling violated his right to present a defense, that the prosecutor improperly used leading questions, and that trial counsel was ineffective for failing to object to certain questions.
The Court’s Holding
The Court of Appeals affirmed. Reviewing the unpreserved constitutional claim for plain error, the court held that the trial court properly exercised its discretion under Michigan’s videoconferencing rules. Factors supporting the ruling included the request’s timing, the lack of prosecutorial consent, the need to use exhibits during cross-examination, and the importance of assessing Norton’s credibility. The court distinguished a prosecution witness who had been permitted to testify remotely because the prosecution sought permission before trial, the witness lived in Arizona, and his testimony concerned the technology used to make and access recordings.
The court also concluded that the ruling did not deny Ketner a meaningful opportunity to present a defense. The trial court barred only Norton’s remote appearance, not her testimony altogether, and the defense cross-examined the confidential informant about his plea agreement and possible bias. The challenged prosecution questions either went unanswered after sustained objections, did not suggest a desired answer, or permissibly developed or clarified testimony. Because the questions were not improper and Ketner showed no prejudice, his prosecutorial-error and ineffective-assistance claims also failed.
Key Takeaways
- A criminal defendant’s right to present a defense remains subject to established procedural rules governing remote testimony.
- A same-day videoconferencing request may be denied when the opposing party lacked notice and remote examination would complicate the use of exhibits or credibility assessment.
- Yes-or-no questions are not automatically leading, and reversal requires prejudice or a pattern of eliciting inadmissible evidence.
Why It Matters
The decision underscores that parties seeking remote witness testimony in a Michigan jury trial should provide advance notice and address the factors governing videoconferencing, including exhibit handling, credibility, cost, distance, and potential prejudice. A court may treat witnesses differently when their circumstances and proposed testimony materially differ.
The opinion also illustrates the difficulty of obtaining reversal based on isolated allegedly leading questions, especially when objections were sustained, the testimony could have been elicited through rephrased questions, and the defendant cannot identify inadmissible evidence or a reasonable probability of a different verdict.