PEOPLE OF MI V ROBERT LEE HICKS

Michigan Supreme Court
Lansing, Michigan
Megan K. Cavanagh,
Chief Justice
Brian K. Zahra
Richard H. Bernstein
Elizabeth M. Welch
Kyra H. Bolden
Kimberly A. Thomas
Noah P. Hood,
Justices
Order
May 22, 2026
SC: 168364-5 & (59)
COA: 365011, 368313
Macomb CC: 2020-001556-FC
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
ROBERT LEE HICKS,
Defendant-Appellant.
On order of the Court, the application for leave to appeal the February 13, 2025
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court. The motion to
dismiss is DENIED.
HOOD , J. (concurring).
I respectfully concur in the denial of the application for leave to appeal. I write
separately because this case presents yet another Confrontation Clause violation without
redress, and I hope to highlight this recurring issue. I continue to question our ability to
measure prejudice when it comes to Confrontation Clause violations.
This case started with defendant Robert Lee Hicks and Adam Cartwright
committing a series of crimes between March 31, 2020, and April 1, 2020. The Macomb
County case, from which this appeal stems, relates to Hicks and Cartwright stealing items
from Natasha Brown, including her van and wallet, while one of them had a gun. Hicks
and Cartwright fled in her van, loaded the items from it into a different stolen car, and
began driving again. The police pursued them. After a multi-hour chase, Hicks and
Cartwright crashed the car, and the police arrested them. The prosecution charged Hicks
with carjacking, armed robbery, and receiving and concealing stolen property. Cartwright
pleaded guilty. Hicks went to trial.
Among the various issues Hicks raises, Hicks argues that the trial court violated his
Confrontation Clause rights by allowing his former codefendant, Cartwright, to testify via
Zoom videoconference from the Michigan Department of Corrections (MDOC).
On the fourth day of trial, on July 22, 2022, the trial judge informed the parties that
Cartwright would be available to testify by Zoom. Hicks made multiple explicit objections.

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He noted his right to “face [his] accuser.” The trial court noted its preference for his in-
person testimony but indicated that the MDOC did not accommodate Cartwright’s in-
person appearance.
At the request of Hicks’s defense attorney, Daniel Garon, a record was made
regarding Cartwright’s appearance. The prosecutor said that her office had prepared the
writ for July 22 and sent it to the MDOC, which sent a confirmation but gave the date of
August 2. Garon said, “Apparently, the Department of Corrections has made Mr.
Cartwright available by Zoom. . . . So, the question then becomes defendant’s right of
confrontation in court versus the judicial economy of confrontation by Zoom and
proceeding in a normal course, and I’ll leave that to the Court’s discretion.” Then the
following exchange occurred:
The Court: Well, personally, I prefer everyone to be in person, but I
know our state court administrator’s office and some of the rules we got from
the Supreme Court said we are supposed to accommodate not in person as
much as possible. I do less of it probably than most courts, but apparently
the Ionia Correctional Facility hasn’t given us a choice, despite having a writ
to get him here physically. They have got him here on Zoom, so I think we’re
going to have to proceed that way.
Defendant Hicks: I firmly object to that, your Honor. I—
Mr. Garon: Mr. Hicks, your objection is noted on the record, so
there’s—that’s—there’s nothing else that we need to do in order to preserve
your appellate rights. We’ve made our objection, the objection is noted, the
Court of Appeals will look at it and decide the issue.
At the defense’s request, the prosecution made an offer of proof. The prosecutor
questioned Cartwright outside the presence of the jury. The defense had an opportunity to
question him.
Then the trial judge said, “[I]f we want Mr. Cartwright to testify, we have to have
him testify now. Are we going to bring the jury in?” “Yes,” said Garon. The judge asked,
“Mr. Hicks, you want Mr. Cartwright to testify?” Hicks responded that “[t]his was not
done properly” and took issue with what Cartwright had said, claiming that he was lying.
Defense counsel noted that Hicks exercised his rights under the res gestae rules to have
Cartwright appear to testify, despite the testimony apparently being unfavorable. Then the
following exchange occurred:
The Court: So, how are we proceeding? Are we going to have Mr.
Cartwright testify in front of the jury, or are we not?
Defendant Hicks: Yes, we are.

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I write separately for two reasons: (1) to acknowledge that a Confrontation Clause
violation occurred, and (2) to address waiver. Whether a defendant was denied the right to
confront a witness is a constitutional question that is reviewed de novo. People v Jemison,
505 Mich 352, 360 (2020). But a Confrontation Clause violation is subject to harmless-
error review. See id. at 367 (remanding for the trial court to determine whether the
violation was harmless).
At the threshold, the Court of Appeals incorrectly concluded that Hicks waived the
confrontation issue. Waiver is “the intentional relinquishment or abandonment of a known
right.” People v Carter, 462 Mich 206, 215 (2000) (quotation marks and citations omitted).
To waive a right, the party must “clearly express[] satisfaction with a trial court’s
decision[.]” People v Davis, 509 Mich 52, 64 (2022) (quotation marks and citation
omitted). The reason Cartwright testified at trial was that Hicks insisted on securing
Cartwright’s testimony. The Court of Appeals concluded that Hicks waived the
confrontation issue because after the offer of proof regarding Cartwright’s testimony,
Hicks said he still wanted to proceed with Cartwright before the jury. Considering his prior
explicit objections, I do not read his failure to repeat his confrontation objection as waiver.
At that point, the trial court made it clear that Hicks’s choice was to either proceed without
Cartwright’s testimony or to consent to his testimony by video conference. So the issue is
not waived.
And a Confrontation Clause violation did occur. The Sixth Amendment of the
United States Constitution and Article 1, § 20 of the Michigan Constitution guarantee
criminal defendants the right to be confronted with the witnesses against them. See US
Const, Am VI; Const 1963, art 1, § 20. 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[.]” People v Buie, 285 Mich App 401, 408 (2009) (quotation marks and
citation 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 (1990).1 Though reliability had long been a touchstone of
Confrontation Clause jurisprudence, in Crawford v Washington, the United States
Supreme Court established a bright-line rule requiring a face-to-face encounter for all
testimonial evidence. Crawford v Washington, 541 US 36, 61-63, 68-69 (2004). See also
Jemison, 505 Mich at 360-366 (reconciling Crawford with the prior, narrower holding in
Craig). Unless a witness is unavailable and the defendant had a prior opportunity to cross-
examine them, Crawford requires face-to-face cross-examination for testimonial evidence.
Jemison, 505 Mich at 361-362, citing Crawford, 541 US at 68.
1 This 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.

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I, Elizabeth Kingston-Miller, 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.
May 22, 2026
4
Clerk
Here, Cartwright testified by videoconference over Hicks’s multiple explicit
objections. The lack of a physical presence during his testimony, which is to say, the lack
of a face-to-face confrontation, necessarily violated the Confrontation Clause.
Acknowledging that the error occurred, we still apply harmless-error review—even
for preserved Confrontation Clause errors. Coy v Iowa, 487 US 1012, 1021-1022 (1988).
See also Jemison, 505 Mich at 366-367 (finding a Confrontation Clause violation under
Crawford and remanding to the Court of Appeals to determine whether the violation was
harmless). Hicks cannot establish prejudice. The police arrested him after an extended
police chase in a vehicle that he and Cartwright had stolen earlier that night. The witness
at the heart of his confrontation claim—his codefendant—directly implicated him. So, the
error in allowing Cartwright to testify remotely was harmless. I therefore concur in the
denial order.
Finally, I again question our ability to adequately or consistently measure the
prejudice resulting from Confrontation Clause violations, particularly when such violations
concern an integral aspect of criminal trials. See Jemison, 505 Mich at 362-365. See also
People v Brown, 351 Mich App ___, ___ (May 2, 2024) (Docket No. 359376) (H OOD , J.,
concurring in part and dissenting in part); slip op at 3-10. If a Confrontation Clause
violation never results in prejudice, at some point we will have to ask whether the right
actually exists, or whether we have mischaracterized the nature of the right.

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