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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v EDWARD PINKNEY, Defendant-Appellant.

UNPUBLISHED July 14, 2009

No. 282144 Berrien Circuit Court LC No. 2005-401979-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v EDWARD PINKNEY, Defendant-Appellee. No. 286992 Berrien Circuit Court LC No. 2005-401979-FH

Before: Jansen, P.J., and Hoekstra and Markey, JJ. PER CURIAM. Following a jury trial, defendant was convicted of giving valuable consideration to influence the manner of voting by a person, MCL 168.931(1)(a), influencing a person voting an absent voter ballot, MCL 168.932(h), and three counts of possessing, returning, or soliciting to return an absent voter ballot, MCL 168.932(f). The trial court sentenced defendant to five years' probation with a delayed jail sentence of 365 days. Subsequently, after finding that defendant violated the terms of his probation, the trial court revoked defendant's probation and sentenced him to 3 to 10 years' imprisonment. In Docket No. 282144, defendant appeals as of right his convictions. In Docket No. 286992, defendant appeals the trial court's order revoking his probation. We affirm defendant's convictions, but reverse the order revoking his probation. I. Introduction On February 22, 2005, the voters of Benton Harbor recalled Glen Yarbrough from his position as a city commissioner. After Yarbrough made a complaint that defendant, a community activist, had paid people $5 to vote in the recall election, the Benton County Sheriff's -1-

Department conducted an investigation into the election. The investigation led to defendant's arrest for giving valuable consideration to influence the manner of voting by a person (Count I), influencing a person voting an absent voter (AV) ballot (Count II), and possessing AV ballots (Counts III-V). Defendant first went to trial in March 2006. After the jury was unable to reach a verdict, the trial court declared a mistrial. After the prosecutor announced his intention to retry defendant, defendant obtained new counsel. Counsel filed numerous pretrial motions, none of which resulted in the dismissal of any charges against defendant. The pretrial motions included a motion to dismiss Counts III-V, a motion to permit defendant to question Brenda Fox, a key prosecution witness, about an alleged arrest for prostitution, a motion to exclude the utterances of two unknown persons which indicated that the persons were being paid $5 to vote, and a motion requesting an adjournment of his trial until Berrien County's jury selection procedures were reformed and he was assured of a jury venire that was drawn from a fair cross-section of the community. Defendant went to trial for a second time in March 2007. Fox testified that defendant asked her to recruit people from the local soup kitchen to vote AV ballots in the recall election and he told her that he would pay $5 to each person that she recruited. On February 21, 2005, the day before the recall election, Fox recruited 15 people from the soup kitchen to vote an AV ballot. After defendant arrived at the soup kitchen at approximately 12:45 p.m., Fox and those she had recruited followed him to the federal building, which housed the city clerk's office. Fox took those she had recruited into the city clerk's office in groups of five. Following defendant's instruction, Fox instructed each person to mark "yes" on his or her AV ballot. When a group of five finished voting, Fox led the group back outside, where each person received $5 from defendant. There was evidence presented that the AV ballots voted by Danelle Williams, Latoyia Williams, Rosie Miles, Schelena Miles, Mary Foster, Rev. Robert Foster, Teresa Foster, Earlene Wiley, Taneka Dumas, and David Jackson had been possessed by defendant.1 Several of the AV envelopes that accompanied the AV ballots bore Marian Anderson commemorative stamps and the stamps had not been cancelled. In addition, the AV envelopes had the address of the city clerk's office as the return address. Defendant testified that, while he asked Fox to recruit people to pass out flyers and he paid $5 to those who had passed out flyers, he never asked Fox to recruit people to vote in the recall election and he had not paid anyone to vote. Defendant admitted that he provided postage stamps and address labels for people to place on AV envelopes, but he did this only to make sure that the AV ballots were returned in the mail. He testified that he never possessed an AV ballot that belonged to another person.

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Testimony was also presented that Teresa Foster, Taneka Dumas, and Schelena Miles had not voted the AV ballots that were cast in their names.

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The jury convicted defendant on the five charges. With regard to counts III-V, the jury unanimously found that defendant had possessed the AV ballots of Danelle Williams, Latoyia Williams, and Rosie Miles. Defendant moved for a new trial. He claimed that he was entitled to a new trial because he had been denied his constitutional rights to a public trial and to an impartial jury, he was never arraigned on the information, and because the information failed to specify which AV ballots he possessed. The trial court denied defendant's request for a new trial. II. Right to Public Trial On appeal, defendant argues that he was denied his sixth amendment right to a public trial when the public was required to watch jury selection in an alternate courtroom by way of a live video transmission. Specifically, defendant claims that his right to a public trial was violated because all members of the public, including his wife Dorothy Pinkney, were excluded from the courtroom, the transmission did not operate properly for a significant period of time, the transmission did not allow for adequate viewing of any prospective jurors, and the prospective jurors were referred to by number, rather than name. A On the morning of jury selection, before the prospective jurors were brought into the courtroom, the court officer announced that, because the courtroom would be "filled full" with prospective jurors, any member of the public who wanted to watch jury selection must proceed to an alternate courtroom, where jury selection would be shown over a live video transmission. Defendant did not object to the closure of the courtroom to the public.2 Defendant first objected to the closure of the courtroom in a post-conviction motion for a new trial, where he argued that the closure of the courtroom to the public violated his sixth amendment right to a public trial. Defendant claimed that the trial court's error in closing the courtroom to the public was compounded by the court's requirement that the prospective jurors be referred to by number rather than name and the fact that the live video transmission did not operate properly for a significant period of jury selection. The trial court held an evidentiary hearing, where it heard the testimony of Dorothy Pinkney and two of defendant's supporters, Mary Gault and Belinda Brown. The three women had watched jury selection from the alternate courtroom. Following the hearing, the trial court made findings of fact, including: (1) the live video transmission was faulty; the transmission was off for one to two hours, out of the five and one-half hours of jury selection;3 (2) the members of

No member of the public objected either. The courtroom was only closed to the public during jury selection. The transmission was not off for a continuous period of one to two hours. According to the testimony of the three female observers, the transmission went off for several periods, each lasting between 10 and 30 minutes.
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the public watching jury selection from the alternate courtroom had a limited view of the prospective jurors; they could not see any prospective jurors sitting in the jury box; and (3) Dorothy Pinkney informed defendant of the problems with the live video transmission during the morning recess and the lunch break, but defendant did not notify the trial court of the technological problems. The trial court concluded that defendant had waived the issue whether he had been denied his right to a public trial. It reasoned that defendant never objected to its decision to require the public to watch jury selection from an alternate courtroom, never requested that any particular member of the public be allowed to remain in the courtroom, and did not inform the trial court of the technological problems with the transmission after he had learned of the problems.4 The trial court also concluded that, because defendant had not objected to the trial court's practice of referring to prospective jurors by number, rather than name, defendant had waived any issue concerning the propriety of the practice.5 B The Sixth Amendment, applicable to the states through the 14th Amendment, Duncan v Louisiana, 391 US 145, 148; 88 S Ct 1444; 20 L Ed 2d 491 (1968), provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." US Const, Am VI. The Michigan Constitution also guarantees an accused the right to a public trial. Const 1963, art 1,

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