Criminal Defense Newsletter

CRIMINAL DEFENSE NEWSLETTER

Volume 19, Number 12

September, 1996

Visit SADO on the Web: http://www.sado.org/

Contents

Expert Testimony on Eyewitness Reliability
ID Experts on the SADO List
ID Issues Filed by SADO Attorneys
Welfare Reform & Drug Convictions
From Our Readers: Prosecutor Subpoenas & Untranscribed Sidebars
Circuit Court Opinion of the Month: Entrapment Ruling Frees Drug Lifer
In a Manner of Speaking
Criminal Defense Leadership Conference
Habeas Relief Based on Ineffective Counsel
Memories of Sexual Abuse
SADO Web Site Active
Costs of Housing Parolees
Training Events
United States Supreme Court Opinions
Michigan Supreme Court Opinions
Selected Court of Appeals Opinions
Unpublished (but persuasive)
Training Calendar

Expert Testimony on Eyewitness Reliability

In most documented cases of the conviction of innocent persons, mistaken eyewitness identification is the culprit. Regardless, many continue to believe that eyewitness identifications and testimony are generally reliable and persuasive forms of evidence, and that any inaccuracies are readily detectable by the layperson. However, recent scientific studies show that eyewitness accuracy is affected by numerous factors, including identification procedures commonly used by police.

An expert witness can educate the trier of fact on the reliability (or lack thereof) of eyewitness identifications, the effects of various police procedures, and ways to improve the accuracy of these procedures. It has thus become very important for defense counsel and others to obtain a working knowledge of the results of the recent studies, to understand the relationship between the admissibility of eyewitness identifications and the experts' findings, and to know when and how to present expert testimony on eyewitness identifications.

Admissibility of Eyewitness Identification Testimony

In United States v Wade, 388 US 218 (1967), the United States Supreme Court acknowledged the inherent unreliability of many eyewitness identification procedures and examined the relationship between these procedures and eyewitness identification testimony. Because police procedure was known to affect the accuracy of the identification, crossexamination of the eyewitness was often insufficient to assure reliability. Thus, the Wade Court held that the accused has a Sixth Amendment right to counsel at a post-indictment corporeal lineup. Where counsel was not present during the procedure, testimony concerning the procedure is per se inadmissible at trial. Gilbert v California, 388 US 263 (1967).

Nonetheless, the accused may not have a right to counsel at pre-indictment photographic identification procedures unless there are "unusual circumstances" and the accused can be readily produced by the police. People v Jackson, 391 Mich 323 (1974); People v Kurylczyk, 443 Mich 289 (1993) cert den 510 US 1058 (1994). Thus, in many cases, defense counsel's role in assessing the reliability of identification procedures may be limited.

Moreover, unnecessarily suggestive identification procedures, whether pre or post-indictment, may constitute a denial of due process rights. Stovall v Denno, 388 US 293 (1967). The rule of Stovall was extended to photographic identification procedures in Simmons v United States, 390 US 377 (1968). In fact, photographic identification procedures were found to be particularly dangerous since an initial mistaken photo identification may "color" any subsequent corporeal identification. Where the procedures are unnecessarily suggestive or conducive to mistaken identification, a hearing must be held to determine if an independent basis for the identification exists.

Several factors determine whether the eyewitness identification has an independent basis assuring its reliability. People v Kachar, 400 Mich 78 (1977). These factors are:

the witness's prior relationship with the accused;
the witness's opportunity to observe the offender and the offense;
the length of time between the offense and the identification;
the accuracy of the witness's description of the offender prior to the identification procedure in light of the defendant's actual appearance;
any prior identification or failure to identify the defendant;
any identification of a person other than the defendant as the culprit prior to the suggestive procedure;
the nature of the offense and characteristics of the witness;
idiosyncratic features of the defendant.

Although many studies of eyewitness accuracy indicate that several of these factors are important, the studies isolate many others that are not among the Kachar factors. Also, judges and jurors may rely on "common-sense" factors to assess reliability and credibility. For example, although the witness's certainty has been found to be a weak indicator of accuracy, judges and jurors may rely heavily on it when assessing the reliability and credibility of the identification. See also Manson v Braithwaite, 432 US 98 (1977) (eyewitness confidence constitutionally permissible factor in assessing independent basis).

In People v Franklin Anderson, 389 Mich 155 (1973), the Court reviewed the basis of the holdings in the "Wade cases" and considered their application to cases involving photographic identification procedures. The Court relied on studies showing that eyewitness confidence had little relation to accuracy, the stress of events could severely distort memory, and identification procedures encouraged "positive identification of things merely similar." Id., at 205. The Franklin Anderson Court took judicial notice of four procedural and psychological factors involved in eyewitness identifications:

the natural and usually necessary reliance on eyewitness identification of defendants by the police and prosecution;
the scientifically and judicially recognized fact that there are serious limitations on the reliability of eyewitness identification of defendants;
the scientifically and judicially recognized fact that frequently employed police and prosecution procedures often (and frequently unintentionally) mislead eyewitnesses into misidentification of the defendant;
the historical and legal fact that a significant number of innocent people have been convicted of crimes they did not commit and the real criminal was left at large." Id., at 172.

However, despite judicial recognition almost 25 years ago of the vagaries of eyewitness identification evidence, courts have only recently shown a willingness to allow expert testimony on eyewitness identification.

In 1983, a state supreme court first found reversible error in the exclusion of expert testimony on eyewitness identification. State v Chapple, 135 Ariz 281; 660 P2d 1208 (1983). Cf. People v Hill, 84 Mich App 90 (1978). California and other states soon followed suit; however, decisions were and continue to be case-specific. The eyewitness identification had to be a key element in the prosecution's case and not substantially corroborated by other evidence lending it independent reliability. The defendant was required to present a qualified expert to testify on the specific psychological factors that could have affected the accuracy of the witness's identification but would not be known or understood by the jurors. See People v McDonald, 37 Cal 3d 351, 208 Cal Rptr 236 (1984); United States v Smith, 736 F2d 1103 (CA 6) cert den 469 US 868 (1984). Some decisions required the defendant to present an alibi defense before expert testimony would be considered. State v Moon, 45 Wash App 692, 726 P2d 1263 (1986). But cf., People v David Allen Carson, where failure to appoint an expert was not error because the indigent defendant was able to present an alibi defense [___ Mich App ___ (#159501, 6-4-96) opinion vacated and conflicts panel convened on another ground, ___ Mich App ___ (6-14-96)].

In general, courts have advanced three grounds for exclusion of expert testimony: doubts about the scientific validity of psychological experiments; doubts about the effect of the testimony on the jury (invasion of the jury's province, juror confusion, prejudicial effect); and continued confidence in cross-examination and jury instructions to protect the defendant from the inherent weaknesses of eyewitness identification testimony.

Recent studies of eyewitness identification and related police procedures suggest that these grounds for exclusion may no longer be valid in every case. The procedural and evidentiary requirements for admission of expert testimony will be examined later in this article. A summary of the findings of recent psychological studies will assist counsel to successfully argue for the admission of such testimony.

Summary of Eyewitness Identification Research

The number of studies on the factors influencing eyewitness identification has grown quickly during the last two decades. 1 A close examination of individual studies reveals that their conclusions are based upon sound scientific methodology. 2 Moreover, researchers reject the common argument that "laboratory conditions" don't mirror the circumstances of real crimes and thus are inherently inaccurate. Many point out that lab conditions produce higher witness performance than what would occur during an actual crime. The actual identity of the "culprit" in the experiments is known, and identification responses of subjects can be evaluated for accuracy.

In general, the studies reveal that several factors not included in Kachar influence the accuracy of eyewitness identifications and suggest that alternative police procedures could improve their accuracy. 3

Witness Factors

One group of findings focuses on factors influencing the witness's ability to perceive and recall the offender's face. 4 "Stable characteristics" such as sex, race, intelligence, and certain personality characteristics are not useful predictors of identification accuracy. Age, however, was found to be significant: younger and older witnesses were generally less accurate than other adults.

On the other hand, studies of "malleable characteristics" such as the witness's state of mind or intoxication produced mixed results. Expectation of a subsequent lineup while viewing the crime had little effect on accuracy, and similar results were reached in tests involving eyewitnesses with training in identification, such as bank tellers. Although alcohol intoxication is potentially an important factor, few studies have examined the effects of varying levels of intoxication.

Several aspects of the witness's memory can be relied on as indicators of accuracy and reliability. Greater detail in the description of an offender's face increases the accuracy of identifications only slightly. Similarly, a witness's memory of peripheral details is inversely related to the accuracy of offender identification: where the witness was able to testify in great detail about the circumstances surrounding the offense, more positive identifications were made, but these identifications proved less accurate.

Perhaps most importantly, the witness's confidence in his or her ability to identify the offender during a police procedure is unrelated to the accuracy of the identification. Franklin Anderson, supra, 389 Mich at 174-175, 217-219. This may be particularly damaging since studies also suggest that the perception of the witness's confidence in his or her identification is relied upon by jurors and judges to assess the witness's credibility.

Offender and Offense Factors

In addition to "witness factors," factors involving the offender and the offense may also affect the accuracy of the identification. "Distinctive targets" -- highly attractive or highly unattractive offenders -- are more often correctly identified and less often mistakenly identified. Conversely, a change in physical appearance of the offender and the use of "disguises" greatly affect the accuracy of later identifications. In particular, changes in hairstyle or the use of a hat to conceal the hairline was found to greatly hamper the ability of eyewitnesses to make accurate identifications later.

Factors surrounding the offense itself proved to be the most important predictors of accuracy. Not surprisingly, the longer the eyewitness is exposed to the offender, the more accurate the description. 5 "Weapon focus" also proved to be a real phenomenon affecting eyewitness accuracy: eyewitnesses were significantly more accurate where no weapon was used during an offense. Levels of accuracy increased slightly where a weapon was only implied. "Crime seriousness" also plays a role: in studies involving the theft of various objects, results showed that, in general, the more expensive the item stolen, the more accurate the witness's description of the alleged thief. Bystanders were found to be slightly more accurate than victims. 6

Interestingly, studies have found that race and gender play a role in the accuracy of facial identification. 7 Cross-race identifications were found to be less accurate than same-race identifications. Cross-gender identifications exhibited the same disability, but the levels of inaccuracy were less significant.

Post-Offense Factors

Post-offense factors also affect accuracy. Although the studies to date are somewhat inconclusive, longer delays between the offense and the identification procedure seem to produce fewer correct identifications and more false identifications.

Most importantly, the studies have clearly shown the effects of commonly used police identification procedures. Researchers also suggest that several procedures not commonly used by police might produce more reliable identifications. For example, where witnesses first view a lineup without a suspect present and do not make any identification, subsequent lineups with the suspect present produce more accurate results. Researchers also urge the use of single-suspect lineups (when possible) with known-innocent distracters. The devastating effects of a mistaken identification choice are minimized by this procedure.

The research on the effects of police procedure on eyewitness accuracy constitutes a broad sub-category of eyewitness identification studies. 8 However, several procedures and concepts warrant specific attention: "instruction bias," "sequential" and "simultaneous presentations," and "functional size."

"Instruction bias," the most obvious example of which involves the police telling the eyewitness that the suspect is present in the lineup or photo array, has a profound effect on false identification rates. Any suggestion by the police that a suspect is present in the lineup increases the number of positive identifications, and where police do not "instruct" the eyewitness one way or the other, the witness will fail to identify any suspect more frequently.

Even where no instruction bias is present, the structure of the lineup procedure may affect the accuracy of identifications. Studies suggest that the cognitive process used by an eyewitness in selecting a person from a lineup involves a "relative judgment." This simply means that the eyewitness will choose the person who most resembles the eyewitness's memory of the offender relative to the other members of the lineup. Thus, in lineups where the actual culprit is absent, error rates will increase. To combat the effects of the relative judgment process, researchers have suggested use of "sequential presentation" procedures.

In sequential identification procedures, the witness is presented with single photographs or given the opportunity to view each possible offender separately. In contrast, simultaneous lineups involve the presentation of all possibilities at once. The findings show that a simultaneous presentation -- which is used most often by police -- doesn't produce a higher number of correct identifications where the "offender" is present in the lineup, but it does produce more mistaken identifications where the "offender" is absent. Sequential procedures, on the other hand, produce fewer false identifications where the culprit is absent and do not reduce the number of accurate identifications where the culprit is present.

"Functional size" refers to the number of members of a lineup procedure who resemble the suspect closely enough to be a viable choice for the eyewitness. Functional size can be contrasted with "nominal size," which indicates the total number of members of a lineup. For example, if there are six members of a lineup or photo array, five of whom are black and one (the suspect) is white, the functional size is one, the nominal size six. The ability of the witness to identify the culprit is not significantly reduced by increases in functional size. 9

Defense Counsel's Options

Although an expert witness could certainly help to explain the factors affecting eyewitness accuracy in a particular case, defense counsel typically must rely on the "protection" afforded by jury voir dire and instruction, and eyewitness cross-examination. However, counsel may not be afforded the opportunity to identify "favorable" jurors during voir dire, and studies also suggest that jurors' general attitudes toward eyewitnesses do not predict reactions to specific testimony with any degree of accuracy. Jurors tend to over-estimate the accuracy of eyewitness identifications: they undervalue the effects of viewing conditions and over-value the witness's memory of peripheral details and confidence in the identification choice. Regardless, defense counsel should request that the court read to the jury CJI2d 7.8, which alerts jurors to the inherent problems with eyewitness testimony. 10

Cross-examination of the eyewitness is limited by counsel's access to information about the viewing conditions at the crime scene, witness factors, and knowledge of the actual procedures used during subsequent police procedures. In addition, as noted above, the right to counsel during such police procedures may not apply, and when it does, the damage caused by the suggestive procedure may be imperceptible or simply too strong for defense counsel to overcome.

When confronted with these problems, defense counsel must first gain a familiarity with the factors that influence eyewitness accuracy established in the recent studies. In particular, it may be useful for counsel to review the findings on the effects of weapon focus, changes in facial features and the use of "disguises," cross-race recognition, and, most importantly, the suggestiveness of commonly used identification procedures.

The use of expert testimony on these factors can be very helpful. Although the data on the effectiveness of expert testimony is necessarily limited because of the current state of the law, findings suggest that jurors are not confused or prejudiced by such testimony. It educates jurors, and this works for both the prosecution and defense. Moreover, unopposed expert testimony produces the greatest degree of juror sensitivity to the factors outlined above and the least amount of skepticism of the testimony. 11

Using Expert Testimony on Eyewitness Reliability

The goal is to challenge jurors' mistaken confidence in the reliability of eyewitness testimony. To increase the likelihood that the expert testimony will be admitted, it is important to begin searching for the expert witness early so that he or she will have ample opportunity to become familiar with the facts of the case. The ability of the expert witness to testify to the connection between general principles established by the research and the operative psychological factors in the case at bar is crucial.

Securing the Expert Witness

The witness must be a qualified psychologist with sufficient "knowledge, skill, experience, training, or education" to meet the requirements of MRE 702. The witness must demonstrate that he or she is familiar enough with the facts of the case to aid the jury in understanding a material issue in the case. People v Boyd, 65 Mich App 11 (1975).

The psychology department of a major university would be a good place to began searching for a qualified expert. Also, even a cursory examination of the scientific literature will provide counsel with several possible sources. The witness must know the methodology used in experiments on eyewitness identification. Prior experience testifying is also helpful. Expert-witness fees will vary according to the witness's credentials and experience.

Indigent defendants may have a due-process right to a court-appointed expert if the testimony is crucial to the case. MCL 775.15; MRE 706. The defendant must show that he cannot proceed safely to trial without appointment of the expert, that a denial would result in an unfair trial. 12 This will generally not be the case where the defendant presents alibi witnesses.

More importantly, the subject matter of the testimony must be proper. As noted above, the general principles in question must be applicable to the specific facts of the case in which the expert is to testify. Furthermore, in Michigan, the general principles underlying the proffered testimony must meet the "general acceptance" standard of Frye v United States, 54 USApp DC 46; 293 F 1013 (1921). This means that defense counsel must initially overcome the "bad science" hurdle. The issue is not whether all experts in the field agree, but whether the method of inquiry in the field is generally accepted as sound scientific methodology. This should no longer be the problem that it once was because the scientific basis of eyewitness-reliability experiments is generally accepted within the field. Defense counsel's familiarity with the studies will certainly help meet this requirement. 13

In addition to showing that the methodology underlying the proposed testimony is sound, defense counsel must show that the probative value of the evidence is not substantially outweighed by its likely prejudicial effect or the likelihood of juror confusion or waste of time. MRE 403. The inquiry will involve a balancing of two factors:

the ability of the expert's testimony to aid the trier of fact to accurately determine a disputed issue or the likelihood of misleading or confusing the jurors, and
the "fit" between the subject matter of the proffered testimony and the particular factors involved in the case that may have impaired the accuracy of the eyewitness's identification of the accused.

United States v Downing, 753 F2d 1224, 1227 (CA 3, 1985). People v Smith, 425 Mich 98 (1986).

In showing that the probative value will not be outweighed by prejudice or juror confusion, defense counsel will have to overcome two commonly held assumptions: (1) jurors exaggerate the importance of expert testimony, and (2) the expert will testify to common-sense information and cross-examination of the eyewitness would produce essentially the same result as the expert testimony.

To undermine these assumptions of prejudice and confusion, defense counsel may wish to argue that findings on several factors are far from unanimous: thus, the "common-sense" argument may not be persuasive in a given case. Most importantly, counsel must connect the expert's qualifications and the subject matter of the proffered testimony to specific factual issues in the case. Counsel should not simply argue factors affecting the eyewitness's immediate ability to perceive the offender. In addition, ask whether:

the eyewitness is very young or old;
the delay between the offense and a subsequent identification procedure was lengthy;
the lineup or photo array was conducted using one of the fallible procedures identified above (instruction bias, simultaneous presentation, low functional size);
the identification is cross-racial or cross-gender;
the eyewitness displayed confidence in the identification choice or extensive recall of peripheral detail;
the suspect wore a hat or other "disguise;"
the suspect displayed a weapon.

Then offer to the court the expert's work on the relevant factors and the findings of that and other researchers' work.

When examining the expert, if possible given the facts of the case, stick to questions concerning the factors about which there is little debate. Again, "malleable" witness characteristics, offense characteristics, and the effects of police identification procedures are all areas upon which broad consensus within the psychology community exists. Avoid questions which invite the expert to comment directly on the reliability of the eyewitness in the case.

The goal is simply to invite the trier of fact to question the assumption that eyewitness testimony is per se reliable and persuasive. If expert testimony on eyewitness identifications is allowed at trial, the jury will almost certainly make a better informed evaluation of the identification. If such testimony is more frequently admitted during criminal trials, it seems likely that fewer innocent persons will be convicted.

by Tobin Miller, Research Assistant &
principal author, and
Fred Bell, Assistant Defender

Both Mr. Miller and Mr. Bell work in the Lansing office of the State Appellate Defender Office.

ENDNOTES

For a recent and complete summary of research findings, see Cutler & Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (New York: Cambridge UP, 1995), pp 55-269.
Many of the studies are funded by such organizations as the National Science Foundation, the National Institutes of Mental Health, and the National Institute of Justice. Studies are also subject to peer review. Thus, despite suspicion that psychologists do not engage in scientific research, it is clear that the methodology of the studies should withstand scrutiny under both the Frye and Daubert standards.
Also, the Kachar factors are broadly phrased whereas the experts' studies often precisely define the factor affecting eyewitness accuracy.
Shapiro & Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychological Bulletin 139 (1986). This article summarizes 128 studies involving 16,590 subjects and is thus the most comprehensive review of eyewitness studies to date. Unfortunately, however, no studies on the effects of witness intoxication or "weapons focus" are included.
It should be noted that, in some studies, the improvement in accuracy "levels off" as duration increases beyond a certain time.
Research on the effects of witness stress and arousal, and on the effects of violence, is necessarily limited because of ethical restraints on the researcher. Some studies utilizing videotaped exposure to violent crime do indicate a high correlation between violence, identification accuracy, and witness memory. As to witness arousal, the "Yerkes-Dodson Law" holds that attentiveness levels correspond to levels of arousal in this way: a person just waking up has low arousal and low attentiveness; an athlete preparing for performance has moderate levels of arousal and an ideal level of attentiveness; a person in danger or under duress has high levels of arousal and low attentiveness.
Shapiro & Penrod, supra, at 145. See also, Anthony, Cooper & Mullen, Cross-Racial Facial Identification: A Social Cognitive Integration, 18 Personality and Social Psychology Bulletin 296 (1992).
See Wells, What Do We Know about Eyewitness Identification? 48 American Psychologist 553 (1993) for information on the effects of police procedures on eyewitness accuracy. Wells, a well-known researcher of the topic, clearly defines key terms and provides a complete bibliography.
Lindsay & Wells, What Price Justice? Exploring the Relationship of Lineup Fairness to Identification Accuracy. 4 Law & Human Behavior 303 (1980).
This instruction reflects the general conclusions of Franklin Anderson, supra.
See Cutler, Dexter & Penrod, Expert Testimony and Jury Decision Making: An Empirical Analysis, 7 Behavioral Sciences and Law 215 (1989).
See Ake v Oklahoma, 470 US 68 (1985) (capital case), and People v David Allen Carson, supra.
See Sheldon & MacLeod, From Normative to Positive Data: Expert Psychological Evidence Re-Examined, 1991 Crim L R 811 (1991).

ID Experts on the SADO List

The Criminal Defense Resource Center maintains a database of information about expert witnesses who are willing to work for a criminal defendant, including those who specialize in eyewitness identification. We have two in this category:

Dr. Steven R. Miller
460 International Center
400 Monroe Street
Detroit, MI 48226
(313) 963-8597
Dr. Miller is in private practice in Consulting Forensic Psychology and Clinical Psychotherapy.
Dr. Lawrence D. Spiegel
1385 Highway 35, Suite 270
Middleton, New Jersey 07748-2012
(201) 267-6000
Dr. Spiegel is an Associate Professor at New Jersey's Kean College and Monclair State University.

SADO's database is available to criminal defense attorneys though either the SADO Website [http://www.sado.org/], or the phone consulting service [(313) 256-9833]. Experts in the collection have not been rated or otherwise reviewed by SADO; they have been referred by criminal defense attorneys, and have agreed to the listing.

ID Issues Filed by SADO Attorneys

In addition to listings of expert witnesses, SADO's Web site [http://www.sado.org/] contains appellate pleadings filed recently by staff attorneys. Web access joins the more traditional method of using brief bank material, either by visiting the office or calling a research assistant. As a sidebar to this month's lead article, we are providing a sampling of identification issues raised in recent months by SADO attorneys:

a defendant claims violation of his state and federal due process rights by the district court's denial of his request for a lineup, instead of the in-court identification which took place in suggestive circumstances [BB 7392];
a defendant alleges violation of his due process right to a fair trial and the right to present a defense where the trial court ruled that a complainant could not testify at an evidentiary hearing about whether her lineup identification of the defendant was suggestive [BB 7646];
the lineup itself was impermissibly suggestive, making testimony about it and an in- court identification inadmissible, where the in- court identification lacked an independent basis [BB 7651 and 7714];
an in-the-field counselless identification was unduly suggestive and tainted a later in-court identification, requiring suppression of identification testimony which lacked an independent basis [BB 7524]; and
the trial court should have suppressed the in-court identification of the defendant as the product of unnecessarily suggestive newspaper photographs [BB 7272].

These are samples of the many pleadings available to criminal defense attorneys who handle assigned criminal cases. For more information on Web access, call John Powell at (313) 256-9833.

The Effects of Welfare Reform Legislation on
Individuals with Drug Convictions

Alert reader (and CDAM President) John Minock spotted the following information about the effect of recently-signed federal legislation on individuals with drug convictions. Public Law 104-193. Attorneys should be aware of these ancillary consequences of criminal proceedings.

The information was collated by the Legal Action Center, 236 Massachusetts Avenue, N.E., #505, Washington, D.C. 20002; more information is available from Gwen Rubinstein at (202) 544-5478. The Legal Action Center is working on materials supporting individual state's efforts to opt out of the federal scheme.

Provision	Changes
Aid to Families with Dependent Children	Eligibility denied to individuals who are convicted of a drug use, possession, or distribution felony after the date of enactment [8-22-96].
Food Stamps	Eligibility denied to individuals who are convicted of a drug use, possession, or distribution felony after the date of enactment [8-22-96].
Federal Medicaid	Eligibility not affected.
Exceptions	Eligibility not affected for emergency medical services under Medicaid; short term, noncash emergency disaster relief, immunizations; testing and treatment of communicable diseases; prenatal care; job training; drug treatment.
Benefits for Family Members	Not affected; payments are to be reduced by the amount that would have been paid for the individual with the felony conviction.
How State Will Obtain Information on Drug Convictions	Self-report of applicants for public assistance.
State Implementation Options	Through legislation, states may opt out entirely or limit the period of ineligibility.
Effective Date	Applies to convictions after enactment [8-22-96].

From our Readers:
Prosecutor Subpoenas and Untranscribed Sidebars

This month, we have two newsletter readers looking for information from other criminal defense attorneys. The first, on the subject of prosecutor subpoenas, is Detroit attorney Ken Mogill. He wants to know if anyone has any experience with the new investigative subpoena power granted to prosecutors by 1995 PA 148 (eff. 10-1-95). The act was a response to the perceived problem that certain witnesses may be afraid to cooperate in a crime's investigation, or may simply wish to avoid involvement. It allows prosecutors to petition a district, circuit or Recorder's Court judge for authority to issue one or more subpoenas to investigate the commission of a felony. The prosecutor's petition and any evidence obtained in an investigation are confidential, and reporters do not have to disclose the identity of an informant. A person may object to an investigative subpoena or file reasons for noncompliance, and may have legal counsel present during an inquiry. Prosecutors may file a motion for an order compelling compliance or granting immunity. Penalties for perjury and contempt and included. Any defense attorney with information about local use of the new law should call Mr. Mogill directly at (313) 962-7210.

The second inquiry, on the subject of untranscribed sidebars, is from Lansing attorney Patrick Rose. Assigned to handle an indigent defendant's appeal of his first-degree murder conviction, Mr. Rose went about the customary collection of transcripts. Although two court reporters filed affidavits that complete transcripts were filed, Mr. Rose discovered that as many as thirty sidebars, or "bench conferences," were noted in transcripts without elaboration on their contents. A review of a partial videotape of trial revealed that the conferences were recorded, and trial counsel explained that they often included Allegan Circuit Judge George Corsiglia's substantive rulings on motions and objections. A request to the court reporters produced one's response that she was directed by the judge not to transcribe the bench conferences. Mr. Rose obtained an affidavit from trial counsel and filed a show cause motion, which was denied; he then appealed the denial to the Court of Appeals. It granted the request for transcription, "in the following limited fashion:"

Defendant's appellate counsel may review the tapes of the bench conferences and may file a written request with the trial court for transcription of bench conferences which appellate counsel believes are necessary to advance arguments defendant wishes to raise on appeal or in a motion for new trial. Defense counsel shall provide a concise statement of reasons for any such requests. A copy of the written request shall be served upon plaintiff, who may file written objections with reasons therefore. The circuit judge shall promptly rule on any such defense requests, with the court's rulings and reasons therefore placed on the record or in a written opinion. MCR 7.216(A)(4), (7), and (9).

Mr. Rose has thoroughly briefed the issue of access to such essential parts of the record, arguing both that such exceptions are unconstitutional and not contemplated under even the court rule which recently limited access to transcripts of voir dire. The question for newsletter readers is whether the practice of limiting appellate access to substantive sidebars has come up in any other part of the state. Responses may go directly to Patrick Rose at (517) 482-2422.

Tired of talking to yourself? Talk to other readers or the editor by sending a letter to the Criminal Defense Resource Center, for publication in the Criminal Defense Newsletter. The letter can take any form you wish, from requesting help with a legal issue, sharing a successful tactic, posing a rhetorical question, to simply blowing off steam. Address letters to the Editor, Criminal Defense Newsletter, 3300 Penobscot Building, 645 Griswold, Detroit, MI 48226.

Circuit Court Opinion of the Month:
Entrapment Ruling Frees Drug Lifer

Ruling in a case which assumed a high-profile due to efforts by the defendant's family, Wayne Circuit Judge Marianne O. Battani determined on July 25, 1996 that defendant Gary Wayne Fannon was entrapped into a drug deal which led to his mandatory lifetime imprisonment. People v Fannon, No. 87-0982, 7-25-96. Mr. Fannon was eighteen years old when the deal occurred, and served ten years in prison before his recent release. A long list of appellate efforts, largely underwritten by Mr. Fannon's mother, culminated in the successful motion for relief from judgment. Those efforts included claims that the mandatory life term imposed on those who deliver more than 650 grams of cocaine is unconstitutionally cruel and unusual.

What ultimately opened the door to further review of the case was the claim of ineffective assistance of trial and appellate counsel. Following denial of leave by the Michigan Supreme Court, without prejudice to a filing under MCR 6.508(D), new appellate counsel conducted an evidentiary hearing on the claim that prior attorneys mishandled the obvious entrapment defense. Witnesses testified that Mr. Fannon did not deal cocaine before his contact with undercover police officer Johnston, though he had sold marijuana, and that he had no prior convictions, felony or misdemeanor. Officer Johnston, found by Judge Battani to be incredible on the point, used cocaine with Mr. Fannon and actually was dismissed from the police force for using drugs. The officer initiated the cocaine deal with the young Mr. Fannon, claiming that he came into a large amount of money and that cocaine dealing was more profitable. Mr. Fannon relayed this information to his trial attorney, who decided that entrapment was not a valid defense, in part on his belief that Fannon's testimony at an entrapment hearing would be admissible against him at trial. He apparently did not discuss the defense with the defendant. Trial counsel's decisions were not valid strategy, according to the expert witness who testified, pointing out as well that trial counsel's experience did not prepare him to defend a life offense (in part reflected by the retainer significantly lower than what an experienced attorney would charge).

Judge Battani found both trial and appellate counsel to have rendered constitutionally ineffective assistance, and granted relief under MCR 6.508(D) on good cause based on Mr. Fannon's colorable claim of innocence, backed up by serving ten years in prison. Passing on to the merits of the entrapment defense, Judge Battani found the conduct of the police officer so reprehensible that the standards of People v Juillet, 439 Mich 34 (1991) were satisfied. The drug-using officer had no reason to believe that Fannon was a cocaine dealer, yet escalated his involvement to the point of a major transaction. Expressing some reservations about the drug lifer law, Judge Battani observed that Mr. Fannon was a "basically punk kid" who was a "wannabe drug dealer." She set aside his conviction, and set an appeal bond.

Mr. Fannon was represented by Patrick J. McQueeney, and the transcript of Judge Battani's ruling is available to defense attorneys upon request. The prosecution has decided not to appeal the ruling, and Mr. Fannon has been released.

In a Manner of Speaking . . .

My goodness, Macomb County must be an exciting place. Debbie Gutierrez-McGuire spotted this one in a prosecutor's opening statement:

PROSECUTOR

Have you an amusing anecdote, quotation or transcript excerpt? Consider passing it along to us for publication in the Criminal Defense Newsletter, anonymously if you wish. Contributions should be addressed to Dawn Van Hoek at the Criminal Defense Resource Center, 3300 Penobscot Building, 645 Griswold, Detroit, MI 48226.

Criminal Defense Leadership Conference Planned for October

The Criminal Defense Leadership Conference Committee, joined by the State Bar of Michigan's Assigned Counsel Standards and Defender Systems and Services Committees, have announced the results of a survey of criminal defense attorneys, as well as a conference intended as a forum to discuss those results. Hundreds of criminal defense attorneys throughout Michigan returned questionnaires which revealed the following:

73% of those responding think that fees for appointed counsel are much too low;
61% approve of state funding for a defender training institute;
65% say that there should be state standards for appointed trial counsel;
57% would like better results from legislators; and
75% said they would participate in an organizational meeting to address these issues.

Billing the event as the "1996 Criminal DefenseBar Leadership Conference," organizers have reserved space at the State Bar Building, 306 Townsend Street, in Lansing, between 9:30 and 3:30 on October 19, 1996. The agenda will include a number of speakers, including:

Elisabeth Semel

Leslie Hagin, Legislative Director and Counsel for the National Association of Criminal Defense Lawyers, on how the political mind works and how to influence it; and

Julie Stewart, Executive Director of Families Against Mandatory Minimums, on expanding interaction with other groups.

Registration for the event is $25, payable to "James A. Frederick," and should be sent to him at P.O. Box 532, Alpena, MI 49707-0532. Questions or comments about the event may be addressed to Mr. Frederick at (517) 356-3438, Frank Eaman at (313) 882-1100, or Liz Jacobs at (313) 962-4090.

Federal Court Grants Habeas Relief Based on
Ineffective Counsel Claim

Demonstrating that appellate attorneys still need to look to federal courts for relief from state court errors, Federal District Judge Horace W. Gilmore's decision in Fagan v Tripplett, No. 95-71040, 5-30-96 vacated a first- degree criminal sexual conduct conviction based on questionable DNA testimony. Judge Gilmore found both cause and prejudice established by the petitioner, who was serving an 8 to 15-year sentence and who failed to obtain relief in Michigan's appellate courts.

The case involved a claim by petitioner's daughter that he committed a sexual assault which led to her pregnancy, which then led to an abortion. Defense counsel obtained DNA testing of the fetus by Lifecodes, for paternity purposes, at the 1988 trial. A Lifecodes technician became the prosecution's first witness, when the complainant failed to appear at trial, and he testified that petitioner could have been the father of the fetus; he put the odds of paternity at 99.96 percent. The complainant appeared the next day, recanting her earlier testimony that she had intercourse with her father, and claiming instead that the fetus's father was a boy her own age. Appeals of the resulting jury conviction included an evidentiary hearing on whether trial counsel was constitutionally ineffective in his handling of the DNA evidence. While state appeals were unsuccessful, with the Court of Appeals finding any error harmless, the evidentiary hearing provided Judge Gilmore with grounds for his conclusion that the proceedings were unfair.

Looking to Strickland v Washington, 466 US 668 (1984) for ineffective assistance standards, Judge Gilmore found a Sixth Amendment violation in trial counsel's material and egregious errors. Counsel admitted at the hearing that he mistakenly thought that because petitioner had agreed to DNA testing, he could not object to its use at trial. He added that he failed to conduct research or consult with DNA experts on the admissibility of paternity statistics, even though such statistics had not yet been used in Michigan criminal cases. Counsel's conduct "actually had an adverse effect on the defense," Judge Gilmore found, as the DNA paternity testimony at trial was the only direct evidence of guilt, where the complainant exonerated petitioner. Furthermore, a DNA expert's testimony at the evidentiary hearing strongly suggested that the Lifecodes results were inconclusive and misrepresented at trial. The expert explained that the paternity test performed produces inconclusive results unless all male relatives with access to the victim are ruled out as possible fathers; complainant shared a bedroom with her brother, and he was not tested. Where Lifecodes did not rule out the brother before using paternity index calculations, the results were inadmissible. Cause and prejudice being established by petitioner under Strickland, the habeas writ was granted.

Mr. Fagan was represented by SADO attorneys Jim Krogsrud, Ron Bretz and Lyle Marshall in his federal court proceedings; Mr. Marshall advises that the prosecution's appeal is pending. Appellate counsel also received considerable assistance from SADO's Chief Investigator, Linda Borus, and expert witnesses Dr. Julian Adams and Dr. Benjamin Grunbaum. A copy of the opinion is available to attorneys upon request.

Memories of Sexual Abuse:
In the News Again as Former Clients Sue Their Michigan Therapist

The civil arena will be the setting for sorting out whether alleged victims of sexual abuse were encouraged to confabulate accusations of sexual abuse, as several cases await a ruling from 49th Circuit Judge Lawrence Root on motions to dismiss. Eight former clients of Eagle Village, a private agency near Cadillac, have sued Joseph Gardner, a counselor who specialized in sexual abuse of children. Plaintiffs allege that Gardner brainwashed them into believing or saying that they had been sexually abused, generally by a parental figure. Several specifically deny that the abuse occurred, claiming that Gardner wore them down or otherwise convinced them. "Former clients sue sex-abuse therapist," Detroit Free Press, 9-5-96, p.1B.

Significantly, the alleged victims have found their positions supported by former employees of Eagle Village. One has claimed that she herself was "badgered" on the subject of abuse by Gardner, when she went to him about her depression; a second recounted claims of numerous children that Gardner "was always saying" they were abused, when they weren't abused.

One of the plaintiffs is Shannon Ganger, who has recanted her claim that her father, Robert Ganger, molested her. Then just fourteen years-old, Ms. Ganger allegedly was told that she "was in denial" about the abuse; after two years, she told Gardner "believe what you want." Her claim led to a two-year prison term for her father.

The plaintiffs are represented by attorney David Ritchie, who has responded to arguments that governmental immunity protects the Eagle River Agency. That issue remains pending before Judge Root.

Repressed memory cases have received appellate attention in Michigan, as in Lemmerman v Fealk, 449 Mich 56 (1995), where the Supreme Court decided not to extend the limitations period for tort actions based on childhood sexual abuse for which a memory was only recently "refreshed." The Court noted the controversial status of repressed memory within the scientific community, and suggested that any exceptions to the limitations period be taken up in the legislature. Refreshed memory also was under analysis in People v Lee, 434 Mich 59 (1990), where the Court determined that hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed memory.

More recently, the Rhode Island Supreme Court cautioned that state's trial judges that they must be the "gatekeepers" when repressed memories are offered. State v Quattrocchi, ___ A2d ___; 1996 WL 427875 (No. 95-343-CA, 7-31-96). If such evidence is offered, the trial judge must hold a preliminary evidentiary hearing, outside the jury's presence, to determine whether such evidence is reliable and whether the situation is one on which expert testimony is appropriate. The court relied on Daubert v Merrell Dow Pharmaceuticals Inc., 509 US 579, 593-94 (1993) for its construction of an evidentiary rule identical to that used in Rhode Island.

For good background on repressed memory, attorneys should review "Therapeutic Recollection of Childhood Abuse: When a Memory May Not be a Memory," Criminal Defense Newsletter (March, 1994), p.1., and "False Allegations of Child Sex Abuse: A Case in Point," Criminal Defense Newsletter (October, 1994), p.1. Additional information is available from the False Memory Syndrome Foundation, 3401 Market Street, Suite 130, Philadelphia, PA 19104-3315.

SADO Web Site Active During First Month

Activity on SADO's new Web Site during its first month was impressive, with an average 585 "hits" registered each day of August, 1996. A "hit" is registered each time a user goes to a new "page" at the site; each page contains a collection of information, files, or links to other pages. A total of 678 "user sessions," or separate times a user visited the site, resulted in the total of 17,469 hits recorded in August. Since publicity about the site did not start until mid-month, and it is just starting to appear in Web directories and search engines, SADO's Web team is pleased with the high traffic at the site.

Thursday and Friday were the most active days of the week, according to the site's tracking program, and the most active time of day is between 7:00 and 8:00 p.m. The slowest day is Sunday, and least active time is between 7:00 and 8:00 a.m. Activity levels during the day or week have no impact on a user's ability to fully use the site's resources; given the power of SADO's Web server and connection, users will not encounter a "busy signal" or slow-down in access time.

Users of the site were quick to take advantage of its unique and most useful features. Nearly 200 files were downloaded from the site during August, including summaries of appellate decisions and full text of appellate briefs. Summaries of recent decisions are available to all from the "public" side of the site, while a searchable database of briefs and much more are available to registered criminal defense attorneys. Over 200 criminal defense attorneys registered and received password-protected access to the database and discussion group side of SADO's site. Registration may by initiated by logging onto the site and following instructions which appear in several locations.

Criminal defense attorneys are encouraged to visit SADO at:

http://www.sado.org/

Persons with questions about the service may either leave an e-mail message at the site, or call John Powell at (313) 256-9833. Training on Internet use by criminal defense attorneys will take place on Friday, November 8, 1996, during the CDAM Conference in Traverse City.

Costs of Housing Parolees Convicted of New Crimes

Since costs of incarceration sometimes play a role at sentencing, we report the following: counties must continue to pay for housing parolees convicted of new felonies, despite the Legislature's 1995 attempt to shift the cost to the state. The Michigan Attorney General recently interpreted the legality of 1995 Enrolled HB 4410, section 305(3), which provides that:

The county jail reimbursement program shall reimburse counties for housing parolees who have been convicted of a new felony, parole violators, and offenders being returned by the department of corrections from community placement to institutional status and for prisoners who volunteer for placement in a county jail.

Governor Engler vetoed this portion of the bill, noting that it would result in additional unappropriated expenditures estimated at $2.9 to $4.3 million, and "because it attempts to amend a statute by reference and is therefor unconstitutional." Without reaching the issues surrounding the veto, Attorney General Frank Kelly found the language void ab initio since it violated the "reenact and republish" clause of the Michigan Constitution, Const 1963, art 4, sec. 25. The prior law which was not properly reenacted or republished, and which directly conflicts with the new language, is MCL 800.454(1); MSA 28.1714(4)(1), which exempts this group of prisoners from the reimbursement scheme.

The new opinion is OAG 6912, released 8-12-96.

Training Events

Headlines Marketing Corporation (HMC) will present "The Definitive Course on the Intoxilyzer 5000" on October 2-5, 1996, in Atlanta, Georgia. Limited to 36 criminal defense attorneys, this comprehensive course exceeds training recommendations of the National Safety Council for breath test training. Participants will learn about the Intoxilyzer 5000, simulators, calibration checks, breath test concepts, test sequence options, infrared theory and practice, Widmark theory, pharmacology and toxicology of alcohol, interpretation of alcohol curves, and legal challenges. They also will be given two written exams and one lab performance using factory-calibrated machines. Registration is $2,295, which includes hotel and all meals. More information is available from Adriana Antelo at (404) 816-3111.

The Criminal Advocacy Program (CAP) of Wayne Circuit and Recorder's Courts will present once again its annual series of seminars for court-appointed criminal defense attorneys, including sessions on Jury Selection (October 4, 1996), Michigan Law Update (October 18, 1996), Guilty Pleas (October 25, 1996), Cross-Examining Police Witnesses in Drug Cases (November 22, 1996), and United States Supreme Court Review (December 6, 1996). All sessions will be held in the 13th Floor Auditorium of Detroit's City-County Building, and will begin at 1:30 p.m.

The Criminal Defense Bar Leadership Conference Committee (CDBLCC), in conjunction with the State Bar's Assigned Counsel Standards and Defender Systems and Services Committees, will host the "1996 Criminal Defense Bar Leadership Conference," on October 19, 1996, in Lansing, Michigan. Details appear earlier in this month's newsletter.

The National Legal Aid and Defender Association (NLADA) and the Indiana Public Defender Council (IPDC) will present "Appellate Defender Training," on October 21-23, 1996, in Indianapolis, Indiana. The three- day seminar includes workshops, writing exercises and oral presentations, as well as tracking according to experience level. It is designed for attorneys representing indigent clients on appeal. Enrollment is limited, and registration costs from $220 to $350. For more information, call (317) 232-2490.

The Appellate Practice Section of the State Bar of Michigan (APSSBM) will be joined by the Wayne State University Law School (WSU) as co-sponsors of "Making Your Case in the Sixth Circuit," scheduled for 1:00 on October 29, 1996, in the Community Arts Auditorium of Wayne State University. The program will feature mock oral arguments in two cases, one civil and one criminal. Experienced appellate attorneys will argue each case to panels of Sixth Circuit Judges, and participants will discuss strategy afterwards. Judges Ralph B. Guy, Jr, James L. Ryan, Richard F. Suhrheinrich, David A. Nelson and Karen Nelson Moore will participate. Sixth Circuit Clerk Leonard Green will speak on procedural aspects of perfecting appeals, briefing and appendix preparation. The program is free to law students, $25 for Section members, and $40 for all others.

The National Association of Criminal Defense Lawyers (NACDL) will host a seminar titled "The Ultimate in Juror Persuasion" on November 6-9, 1996, in San Antonio. Billed as "interactive CLE," the seminar will allow participants to view successful techniques in realistic trial settings, as well as brainstorm with top trial attorneys on how to win over jurors. More information is available from NACDL by calling (202) 872-8688.

The Criminal Defense Attorneys of Michigan (CDAM) will host its fall advanced training conference on November 8-9, 1996, in Traverse City, Michigan. Titled "Courtroom Persuasion and Effective Defense," the conference will feature Friday lectures and workshops on persuasive techniques for attorneys, cross- examination, federal practice, jury selection, and stress management. Also featured is a workshop titled "Criminal Defense Attorneys and the Internet," which will be conducted by staff of the Criminal Defense Resource Center. Saturday's half-day session will include presentations on drafting jury instructions, representation of developmentally disabled clients, and sentencing issues including the developing guidelines. Registration is $40, and the number of attendees is limited. Criminal defense attorneys should call Mary Sawnick at (313) 256-9833 for more information.

The National Legal Aid and Defender Association (NLADA) will host its 74th Annual Conference on November 11-14, 1996, in Las Vegas, Nevada. Details will appear here as they become available.

The Taxation Sections of the American Bar Association (ABA) and the California State Bar (CSB) will co-sponsor "Criminal Tax Fraud in the '90s," on November 14-15, 1996, in Washington, DC, and on December 5-6, 1996, in San Francisco, California. Presenters will address representation of a client before a criminal tax investigation, how to gather evidence, ethical problems, civil considerations during and after the criminal tax investigation, federal sentencing guidelines, and trial issues. The program also will feature a roundtable discussion involving senior IRS officials and representatives of the DOJ's Tax Division, focusing on the government's law enforcement initiatives, policies and priorities. Registration fees range from $600 (non-ABA member) to $100 (law student); more information is available by calling (800) 285-2221.

The National Association of Criminal Defense Lawyers (NACDL) will host its annual Advanced Criminal Law Ski Seminar in Aspen, Colorado, on January 26 - February 2, 1997. Details will appear here as they become available. NACDL may be contacted at (202) 872-8688.

The National Association of Criminal Defense Lawyers (NACDL) will host its Mid-Winter Meeting and Seminar, titled "Cutting-Edge Defenses That Win Cases," on February 12-15, 1997, in New Orleans, Louisiana. Faculty will focus on innovative defenses that have proven effective, including how to "steal" the offense, identify the stealth juror, defend high-profile clients, put the police on trial, and humanize an unappealing client. Also on tap are sessions on how to mount a psychiatric defense, use animated and polygraphic evidence, and "make the cooperating co-defendant the greatest thing that ever happened to your case." More information is available from NACDL at (202) 872-8688.

United States Supreme Court Opinions

Opinion summaries written by Patricia Gambill.

DUE PROCESS VIOLATION
EVIDENCE -- Relevancy
INSTRUCTIONS -- Intoxication
DEFENSES -- Intoxication
INSTRUCTIONS -- Intent and Wilfulness

Montana v Egelhoff
___ US ___; 116 SCt 2013;
135 LEd2d 361 (1996)

On certiorari granted to petitioner State of Montana, the Supreme Court, reversing the Montana Supreme Court, reinstated respondent's jury-tried convictions of two counts of deliberate homicide. Case below: 272 Mont 114, 900 P 2d 260 (1995).

The Montana Supreme Court erred in striking down as violative of due process a state statute which precludes consideration of intoxication in determining whether mens rea exists. Justice Scalia, joined by Chief Justice Rehnquist and Justices Kennedy and Thomas, found no support for the state court's conclusion that the Due Process Clause guarantees a right to introduce all relevant evidence, and noted that the rule allowing jurors to consider intoxication as mitigating or negating mens rea is not fundamental, as it is of fairly recent vintage, in derogation of a long common-law tradition to the contrary, and contrary to the law of a substantial minority of jurisdictions.

Justice Ginsburg, concurring in the judgment, viewed the statute as a redefinition of mens rea which was well within the legislature's power to define the elements of criminal offenses.

Justice O'Connor, joined in dissent by Justices Stevens, Souter and Breyer, would affirm the state court's conclusion that the statute violates due process by a blanket exclusion of a class of evidence which negates an essential element of the offense and denies a fair opportunity to defend against the state's accusations.

Justice Souter, also dissenting separately, reasoned that the state supreme court's opinion foreclosing an interpretation of the statute that would pass constitutional muster was a binding interpretation of state law by the state's highest court, and would therefore affirm.

Justice Breyer, joined by Justice Stevens in a separate dissent, rejected Justice Ginsburg's view that the statute redefined mens rea, and suggested that eliminating consideration of intoxication as affecting mental state would lead to inappropriate acquittals as well as inappropriate convictions.

HABEAS -- Federal
DUE PROCESS VIOLATION -- Failure to Give Notice and Opportunity to Be Heard
APPEALS -- Preservation of Issue
DUE PROCESS VIOLATION -- Withholding Crucial Evidence
SENTENCING AND PUNISHMENT -- Death Penalty
Gray v Netherland, Warden
___ US ___; 116 SCt 2074;
135 LEd2d 457 (1996)

On certiorari granted to petitioner Gray, the Supreme Court, vacating the decision of the Fourth Circuit, vacated district court grant of habeas as to petitioner's jury-tried conviction of capital murder and sentence of death. Case below: 58 F3d 59 (CA 4 1995).

At the penalty phase of petitioner's capital murder trial, the state introduced evidence linking petitioner to two previous murders for which he had not been charged. Petitioner's failure to raise in state court his claim that the state denied him due process by failing to disclose exculpatory evidence related to the uncharged murders barred relief absent a showing of cause and prejudice, which petitioner had not made. Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy and Thomas, held that due process did not entitle petitioner to any specific length of notice of the state's intent to use evidence of the uncharged killings, but ordered remand for a determination of whether petitioner's additional claim that the state had misrepresented which evidence it intended to introduce from the earlier murders had been raised below.

Justice Stevens, dissenting, would hold that use of the uncharged murder evidence would have rendered the penalty phase fundamentally unfair even with proper notice, as the evidence was insufficient even to support charging petitioner with the crimes.

Justice Ginsburg, in a dissent joined by Justices Stevens, Souter and Breyer, would hold that petitioner was denied a meaningful opportunity to defend against the evidence introduced at the penalty phase, and would reverse the Fourth Circuit and reinstate the district court's grant of habeas.

JURY -- Right To
GUILTY PLEA -- Sentencing Agreement
Lewis v United States
___ US ___; 116 SCt 2163;
135 LEd2d 590 (1996)

On certiorari granted to petitioner Lewis, the Supreme Court, affirming the Second Circuit, left intact petitioner's bench-tried convictions of two counts of obstructing the mail, 18 USC �1701. Case below: 65 F3d 252 (CA 2 1995).

A defendant charged with multiple petty offenses does not have a right to a jury trial even if the aggregate of the possible sentences exceeds six months, held a 5-4 Court. Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia, Souter and Thomas, found dispositive the legislative determination of whether an offense is petty (punishable by imprisonment for six months or less) or serious (punishable by imprisonment in excess of six months). The characterization of an offense does not change merely because a defendant is charged with multiple offenses at one time, and therefore multiple charges aggregating to over six months do not confer on a defendant a right to a jury.

Justice Kennedy, joined by Justice Breyer, concurred in the judgment here, on the basis that the court's pretrial commitment to impose a sentence no greater than six months vitiated this petitioner's right to jury trial. They expressed grave reservations, however, about the holding, finding it a serious incursion on the right to jury trial without support in the Court's precedent.

Justice Stevens, joined in dissent by Justice Ginsburg, would view the prosecution, rather than the individual charge, as the criterion for the right to jury trial, and would find the court's sentencing commitment irrelevant since the right attaches, if at all, when a defendant is charged.

DEFENDANT -- Right to Proceed in Pro Per
PRISONERS' RIGHTS
Lewis, Director, Arizona Department
of Corrections, et al v Casey et al
___ US ___; 116 SCt 2174;
135 LEd2d 606 (1996)

On certiorari granted to petitioners Lewis et al, the Supreme Court, reversing the Ninth Circuit, struck down district court injunction governing the operation of petitioners' prison law libraries and remanded for further proceedings. Case below: 43 F3d 1261 (CA 9 1994).

To show that prison legal library facilities violate Bounds v Smith, 430 US 817 (1977), so as to justify generalized injunctive relief, the members of the respondent class of inmates must show (1) that they have as individuals been harmed in or prevented from pursuing meritorious direct appeals, collateral proceedings, habeas petitions or 42 USC �1983 actions by the inadequacy of the prison library facility, and (2) that such injuries are so widespread as to justify system-wide relief. Justice Scalia, writing for the Court, noted that only two cases of actual harm were established; while these merited relief, they did not require the sweeping provisions of the injunctive relief granted by the district court. "It is for the courts," Scalia wrote, "to remedy past or imminent official interference with individual inmates' presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur."

Justice Thomas, concurring, criticized Bounds v Smith as wrongly decided on the basis of "obsolete theories of equal protection"; even if Bounds were properly decided, moreover, he would not extend the Bounds "right of access to the courts" to confer a right to particular kinds of legal assistance or research facilities.

SENTENCING AND PUNISHMENT -- Guidelines -- Departure Reasons
Melendez v United States
___ US ___; 116 SCt 2057;
135 LEd2d 427 (1996)

On certiorari granted to petitioner Melendez, the Supreme Court, affirming the Third Circuit, left intact petitioner's sentence of 10 years on conspiracy to distribute cocaine, 21 USC �846. Case below: 55 F3d 130 (CA 3 1995).

The government's motion for downward departure from the federal sentencing guidelines range of 135 to 168 months did not authorize the sentencing court to depart below the statutory minimum of 10 years. Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, Souter and Ginsburg, concluded that a sentencing court has no jurisdiction to depart downward from a statutory minimum sentence without a motion by the government for such a departure. While substantial cooperation may in some cases justify departure below the minimum, the government's failure to request such a departure in petitioner's case left the court without authority to sentence him to less than 10 years. The majority saw no reason to decide whether Congress had authorized the Sentencing Guidelines Commission to create a "unitary" system [in which a motion authorizing departure from the Guidelines range also authorized departure from the statutory minimum], as the Commission had not done so, and as petitioner would not be helped if it had.

Justice Souter, concurring, agreed that there was no jurisdiction to sentence below the mandatory minimum absent a motion by the government, but differed with Justice Thomas as to whether a policy statement by the Commission supported the majority holding.

Justice Stevens, writing separately, concurred in the judgment; while he would find it eminently reasonable for a motion to depart below the Guidelines range to also confer jurisdiction to depart below the statutory minimum, he found clear evidence that Congress intended otherwise.

Justice Breyer, joined by Justice O'Connor, concurred with the majority that no statutory authorization existed for departing below the statutory minimum without the prosecution's approval. However, reading the statute and guidelines on "substantial assistance" in pari materia, they would hold that assistance which warrants departure from the Guidelines also warrants departure below the mandatory minimum, and that a motion authorizing one departure authorizes the other. They would remand for further proceedings as to petitioner's sentence.

DOUBLE JEOPARDY -- Multiple Punishments
FORFEITURE
United States v Ursery;
United States v $405,089.23 in
United States Currency
___ US ___; 116 SCt 2135;
135 LEd2d 549 (1996)

In #95-345, on certiorari granted to petitioner United States, the Supreme Court, reversing the Sixth Circuit, reinstated respondent Ursery's jury-tried conviction of manufacturing marijuana; in #95-346, the Supreme Court, reversing the Ninth Circuit, reinstated district court grant of summary judgment for the government in civil forfeiture proceeding against property connected with controlled-substance and money laundering violations. Cases below: 59 F3d 568 (CA 6 1995) [Ursery]; 33 F3d 1210 (CA 9 1994) [$405,089.23].

Civil forfeitures do not constitute "punishment" within the ambit of the Double Jeopardy Clause, and thus criminal conviction and forfeiture of property based on the same facts do not constitute impermissible multiple punishment. Chief Justice Rehnquist, joined by Justices O'Connor, Kennedy, Souter, Ginsburg and Breyer, reviewed the Court's precedent in concluding that forfeitures are in rem civil proceedings which reach a broader class of items than merely those used in violations of law, and which further broad remedial goals. Neither the purpose nor the effect of forfeiture, they concluded, was so punitive as to negate Congress's intent in establishingit as a civil proceeding. However, "[w]here a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relationship to the goal of compensating the Government for its loss, but rather appears to qualify as `punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment."

Justice Kennedy concurred in the majority opinion, but wrote separately to observe that statutes providing for forfeiture of instrumentalities of crime are not directed at the perpetrators of crime, but rather at the owners who allow their property to be so used.

Justice Scalia, joined by Justice Thomas, concurred in the judgment, but would hold that the Double Jeopardy Clause prohibits only successive prosecutions, and not multiple punishments.

Justice Stevens, writing separately, concurred with the forfeiture of proceeds of crime in #95-346, and with the forfeiture of contraband items in #95-345, as a defendant has no lawful right to possess proceeds or contraband. He dissented, however, as to the forfeiture of Ursery's home, finding this clearly punitive and therefore implicating double jeopardy.

Michigan Supreme Court Opinions

Opinion summaries written by Patricia Gambill.

APPEALS -- Harmless Error
APPEALS -- Standard of Review
EVIDENCE -- Rebuttal
IMPEACHMENT -- Collateral Matter
COUNSEL -- Ineffectiveness Of -- Failure to Object

People v Mateo
#96079, July 31, 1996
SADO - ROBYN FRANKEL and
CORI YATES for defendant

On leave granted to the defendant, the Court, affirming the Court of Appeals, left intact defendant's jury-tried convictions of assault with intent to murder and felonious assault, and plea-based conviction as second felony offender. Case below: unpublished (#134528, 2/17/93).

Michigan's statutory harmless-error rule, MCL 769.26; MSA 28.1096, requires that a preserved non-constitutional error be evaluated against the remaining evidence, and that a conviction not be reversed unless the error was prejudicial; the "harmless beyond a reasonable doubt" standard for preserved constitutional error articulated in Chapman v California, 386 US 18 (1967), should not be applied to non-constitutional error. Justice Boyle, joined by Chief Justice Brickley and Justices Riley and Mallett, distinguished the Chapman constitutional- error standard as appropriate where fundamental protections of individual rights are involved, but not in reviewing non-constitutional error (here, the impeachment of a witness on a collateral matter). As the Court of Appeals properly found overwhelming evidence of guilt here, no miscarriage of justice occurred, and it was unnecessary for the Court to decide the level of confidence an appellate court must have that an error was in fact harmless.

Justice Weaver, writing separately, observed that, since a defendant no longer enjoys the presumption of innocence after being convicted, it is appropriate to place on the defendant the burden of showing why a conviction should be reversed. She read the statutory harmless-error rule as creating a presumption that certain non-constitutional errors are harmless, which can be overcome only by showing a miscarriage of justice.

Justice Cavanagh, noting that "[t]he line between evidentiary error and constitutional error is rarely clear," criticized the majority's constitutional/non-constitutional dichotomy, and would adopt the "harmless beyond a reasonable doubt" test as a uniform standard for harmless error. Under this standard or under a less stringent standard, however, he would not find the error complained of by defendant to be harmless, and would reverse the Court of Appeals.

Justice Levin, also writing separately, agreed with the majority that prejudice is required before a conviction may be reversed for non-constitutional error. He would reverse defendant's conviction here, however, because the error would not have been harmless but for defense counsel's ineffectiveness in failing to make a hearsay objection to other evidence of defendant's guilt.

COUNSEL -- Right To -- Waiver
DEFENDANT -- Right to Proceed in Pro Per
APPEALS -- Harmless Error
People v Lane
#99664, July 31, 1996
J. RICHARD COLBECK

On leave granted to the defendant, the Court, affirming the Court of Appeals, left intact defendant's jury-tried convictions of two counts of assaulting a prison employee and bench-tried conviction as fourth habitual offender. Case below: unpublished (#155399, 4-27-94).

Where defendant had waived counsel and represented himself with the help of advisory counsel at trial on the substantive offenses, the trial court's failure to comply with MCR 6.005(E) at the beginning of defendant's habitual offender trial was harmless in the absence of any claim of prejudice. Justice Weaver, joined by Chief Justice Brickley and Justices Boyle, Riley and Mallett, concluded that MCR 6.005(E) requires only that the record show that the court advised defendant of the right to an attorney, at public expense if necessary, and that the defendant either requested or waived counsel; this procedure may be repeated if the court at any point doubts defendant's understanding of the options or their disadvantages. Failure to adhere strictly to the court rule in a waiver of counsel inquiry is not automatically reversible; reversal is justified only if the error could have been outcome-determinative, and was not warranted here.

Justice Levin, joined in dissent by Justice Cavanagh, would place the burden on the prosecution to show a valid waiver of counsel, and on the court to create a record showing that a purported waiver is voluntary and knowing. As the non-compliance here may have affected defendant's sentence as a habitual offender, they would remand for resentencing, at which defendant should have counsel present if he wishes.

DOUBLE JEOPARDY -- Multiple Prosecutions
CONTROLLED SUBSTANCES, DELIVERY
CONSPIRACY
PROSECUTOR -- Comments -- Credibility of Witnesses
People v Mezy; People v Hermiz
#101689 and #102274, July 31, 1996
LAURENCE IMERMAN and DOMNICK J. SORISE

On leave granted to the prosecution in #101689, the Court, reversing the Court of Appeals, reinstated defendant Mezy's jury-tried conviction of conspiracy to deliver over 650 grams of cocaine and remanded for further proceedings; on leave granted to the defendant in #102274, the Court, affirming in part and reversing in part the Court of Appeals, left intact defendant Hermiz's jury-tried conviction of conspiracy to deliver over 650 grams of cocaine and remanded for further proceedings. Cases below: 208 Mich 545 (1995) [Mezy]; 207 Mich App 449 (1994) [Hermiz].

Defendants, who had been previously convicted of conspiracy to possess with intent to distribute large amounts of cocaine in a federal court in Florida, were entitled to remand for the trial court to determine whether successive state-court prosecutions in Michigan for conspiracy to possess with intent to deliver over 650 grams of cocaine were barred by MCL 333.7409; MSA 14.15(7409). Justice Weaver, joined by Justices Boyle and Riley, agreed that remand was necessary to determine whether there were two separate conspiracies, in which case defendants could properly be prosecuted for the second under Michigan law. They would further hold that successive state and federal prosecutions are permissible under both the state and the federal constitutions, and would overrule People v Cooper, 398 Mich 450 (1976).

Chief Justice Brickley, writing separately, concurred with Justice Weaver that remand was required under MCL 333.7409; MSA 14.15(7409), a provision of the Controlled Substances Act which bars dual prosecution for the same act, but would not reach the constitutional issue involved in Cooper. His review of the record persuaded him that there were two separate conspiracies here, and therefore that defendants were probably not subject to impermissible successive prosecutions. However, he would remand to allow the trial court to apply the correct law in the first instance. He also agreed that an instance of prosecutorial vouching for a witness's credibility was harmless, even though no curative instruction was given after the defense objected.

Justice Levin, joined in dissent by Justices Cavanagh and Mallett, also found remand necessary for further factual findings and decision on defendants' statutory dual-prosecution claim, and would not reach the issue of whether Cooper should be overruled. They cited Brown v Ohio, 432 US 161 (1977), as prohibiting successive prosecution and cumulative punishment for a greater offense and a lesser included offense, in whichever sequence; if one conspiracy is included in another, only one may be prosecuted.

Selected Court of Appeals Opinions

Opinion summaries written by Patricia Gambill.

SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
CRIMINAL SEXUAL CONDUCT -- Sentencing
STATUTORY INTERPRETATION
APPEALS -- Conflicts Procedure

People v Robert David Raby
#173809, July 30, 1996
SMOLENSKI, Michael J. Kelly, Corrigan,
Saad, Bandstra, Markey, Markman
SADO - SUSAN MEINBERG

On rehearing by special conflicts panel pursuant to Admin Order 1994-4, affirmed trial court's scoring of Guidelines Offense Variable (OV) 12 in sentencing of defendant on plea-based conviction of one count of first- degree criminal sexual conduct. Prior opinion: 213 Mich App 801 (1995).

A conflict between the earlier opinion in this case and People v Warner, 190 Mich App 26 (1991), as to the scoring of prior sexual penetrations between a defendant and a victim, under OV 12, was resolved in favor of the Warner panel's position that evidence of previous penetrations may be scored. Smolenski, joined by Saad and Bandstra, found that defendant's near-daily penetrations of his infant daughter over a two-year period constituted the same "criminal transaction" for Guidelines purposes, as they involved a "continuous time sequence" and a "single intent or goal." Scoring the numerous penetrations under OV 12 was consistent with the plain language of the Guidelines; alternatively, if construction of the language were necessary, this was a reasonable construction which best effectuated the purpose of the Guidelines.

Markman, joined by Corrigan and Markey, concurred in Smolenski's opinion, but wrote separately to clarify the de novo standard of review on the legal issue of whether OV 12 includes penetrations other than that for which defendant was convicted. If particular factors could be scored under only one Offense Variable, they would prefer to limit OV 12 to penetrations during the uninterrupted episode for which defendant is convicted, and to score previous penetrations under OV 25 [contemporaneous criminal acts]. However, they found no reason why the conduct at issue could not be scored under both variables. Here, where both a narrower and a broader construction of OV 12 were reasonable, they would not reverse the trial court's broader construction.

Kelly, dissenting, expressed concern that the majority's reading of OV 12 in this egregious case was result-driven, and would reverse the sentencing court.

MOTION FOR NEW TRIAL -- Newly Discovered Evidence
DEFENSES -- Entrapment
People v Corey Anthony LaPlaunt
#182801, July 26, 1996
PC: Hood, Markman, Davis
DAVID POINDEXTER

Affirmed defendant's jury-tried convictions of possession with intent to deliver marijuana and attempted furnishing contraband to a prisoner; remanded for further proceedings on defendant's motion for new trial.

The inmate who supplied the only evidence of defendant's intent recanted his story several months after sentencing, after a claim of appeal had been filed, and after the deadline for a timely motion for new trial; by the time the trial court denied defendant's motion for new trial, it was too late to file a motion to remand. The panel ordered remand, pursuant to MCR 7.216(A)(5), for the trial court to determine whether the alleged recantation warranted a new trial, reasoning, "to foreclose altogether defendant's opportunity to bring his motion in the trial court would result in manifest injustice in this case . . . . Under the circumstances, defendant should have some forum within which to proceed."

The trial court did not err, however, in finding that defendant was not entrapped, where an inmate volunteered to police that defendant, a prison guard, had agreed to bring drugs into the prison, and where there was no evidence of inducements, reliance on close relationships, threats, duress, intimidation or coercion. People v Juillet, 439 Mich 34 (1991).

RETAIL FRAUD
LARCENY IN A BUILDING
ROBBERY UNARMED -- Included Offense
PROSECUTOR -- Abuse of Discretion in Charging Offense
People v Michael Ramsey
#186989, August 6, 1996
FITZGERALD, Neff, Nelson
ROBERT G. FLEMING

Affirmed defendant's bench-tried conviction of larceny in a building.

Defendant was initially charged with unarmed robbery after assaulting store employees who had detained him during an apparent shoplifting incident. While the retail fraud statute prohibited the prosecution from charging larceny in a building on these facts, it did not prohibit the charging of unarmed robbery, nor did it prohibit the court from convicting on the cognate included offense of larceny in a building.

DEFENSES -- Statute of Limitations
EMBEZZLEMENT
DOUBLE JEOPARDY -- Multiple Punishment
GUILTY PLEA -- Waiver Effects
People v Jean Dolores Artman
#168170, August 13, 1996
PC: Cavanagh, Marilyn Kelly, Johnson
SADO - ANNE YANTUS

Affirmed defendant's conviction by conditional nolo plea of attempted embezzlement by an agent over $100.

Defendant, who was the victim's attorney in a wrongful death lawsuit, deposited settlement proceeds into a client trust account in 1984 pending conclusion of a probate matter which was ultimately resolved in September of 1985. From 1985 through 1990, defendant made the victim's mortgage payments from the account, but also transferred money into her own account during the same period, telling the victim in 1987 and 1988 that a "higher court" was delaying the release of the funds. Charges were brought in April 1992; the parties agreed on the dates of the various deposits to and withdrawals from the trust account, but differed only on when the offense was completed. On these facts, the trial court did not err in ruling that when the embezzlement occurred, and whether the statute of limitations barred prosecution, were factual questions for the jury; defendant's motion to dismiss was properly denied. Defendant's urging that embezzlement should not be treated as a continuing offense was inapposite, as the charge was based on a withdrawal that clearly occurred within the limitations period. The panel also declined to adopt a "first-in-first-out" analysis of defendant's trust account activity, noting that it was not defendant's practice to follow this accounting method with respect to the trust account in question.

Defendant's double-jeopardy claim was not waived by her plea, and was reviewed de novo. However, the prosecution was not barred by defendant's previous disbarment based on the same facts, as attorney disciplinary proceedings are civil in nature and designed for the protection of the public.

GUILTY PLEA -- Sentencing Agreement
COUNSEL -- Ineffectiveness Of -- At Sentencing
APPEALS -- Law of the Case
APPEALS -- Failure to Object Below
People v Thomas Robert Swirles
#181032, August 6, 1996
NEFF, Doctoroff, Fitzgerald
SADO - VALERIE NEWMAN

Affirmed sentences of 25 to 50 years and 2 years on defendant's plea-based convictions of armed robbery and felony firearm. Prior opinion: 206 Mich App 416 (1994).

A plea bargain for a "sentence recommendation that the defendant receive an initial sentence within that recommended by the sentencing guidelines as determined by the court at the time of sentencing" was ambiguous, as it was unclear whether the prosecutor was to recommend generally that the sentence fall within the guidelines range or to recommend a specific sentence which fell within the range. However, both defendant and the prosecutor testified on remand that they understood the bargain to allow the prosecutor to recommend any number of years that fell within the guidelines range, and defendant and his attorney acquiesced in this interpretation by failing to object at sentencing. As a meeting of the minds had occurred, the trial court did not err in finding that the prosecutor's recommendation of a 25-year minimum sentence, where the guidelines range was 5 to 25 years, complied with the sentencing agreement.

People v Nixten, 183 Mich App 95 (1990), did not afford defendant relief here, as the prosecutor promised to recommend a specific number within the guidelines range and did so; Nixten found a specific recommendation to be a violation of an agreement for a general recommendation. The panel specifically disapproved the holding of Nixten, and would overrule it had it not been affirmed as precedential by People v Shuler, 188 Mich App 548 (1991), under Admin Order 1990-6.

Defendant was not entitled to infer additional support for construing the agreement to permit only a non-specific recommendation by claiming that otherwise his trial attorney would have rendered ineffective assistance of counsel.

In view of its holding, the panel declined the prosecution's invitation to affirm for failure to demonstrate plain error pursuant to People v Grant, 445 Mich 535 (1994), which was decided while defendant's earlier appeal was pending. The prosecution had failed to show a reason why the law of the case doctrine should not govern the issue of whether the lack of defense objection at sentencing precluded review.

Fitzgerald concurred in result only.

DEFENSES -- Jurisdiction, Lack Of
JUVENILE PROCEEDINGS
IMMIGRATION
DUE PROCESS VIOLATION
CONFRONTATION -- Right To
DEFENDANT -- Absence at Critical Stage
CONFESSIONS -- Voluntariness -- Non-English-Speaking Defendant
SELF-INCRIMINATION -- Violation of the Privilege
MURDER, FIRST-DEGREE -- Sufficiency of Evidence
DEFENSES -- Self-Defense
COUNSEL -- Ineffectiveness Of
PROSECUTOR -- Comments -- Credibility of Witnesses
PROSECUTOR -- Comments -- Defendant's Credibility
PROSECUTOR -- Comments -- Duty to Convict
INSTRUCTIONS -- Self-Defense -- Duty to Retreat
People v Tuan Truong
People v Tai Van Nguyen
#162306 and #162307, August 16, 1996
MARKMAN, McDonald, Johnson
SADO - PETER VAN HOEK attorney for Truong
MARTIN BERES attorney for Nguyen

Affirmed defendants' jury-tried convictions of first- degree murder and felony firearm.

Where defendant Truong had previously petitioned the probate court to correct his birthdate from 1978, which was listed in his immigration papers, to 1974, the probate court order raised a rebuttable presumption that the 1974 date was correct, and the trial court did not clearly err in relying on that date to establish jurisdiction over Truong. The Supremacy Clause, US Const art VI, clause 2, did not preclude the trial court from relying on the 1974 birth date, even though the Immigration and Naturalization Service had made a different determination based on the information available to it at the time.

Occasional minor lapses in simultaneous translation, which affected only attorney colloquies and not questions to or answers from witnesses, did not render the trial unfair nor deprive Truong of his rights to due process, confrontation, or presence at trial.

Truong's contention that he did not understand the translation of his Miranda rights, and that his statement to police was therefore involuntary, was belied by Truong's written and verbal representations that he understood and by his logical answers to the questions which followed. Under the circumstances, the trial court did not clearly err in finding that Truong had the necessary level of understanding.

An unresponsive remark that codefendant Nguyen "said that he wanted an attorney and didn't want totalk to [police] any more," to which neither defendant objected, did not undermine defendants' self-defense claim nor deny either defendant a fair trial.

Evidence that the decedent had previously assaulted and threatened defendants, but that his gun was still in his waistband when defendants shot him eight times in the back, sufficiently disproved Nguyen's claim of self- defense.

Nguyen's rejection of a plea to second-degree murder was not the result of ineffective assistance by trial counsel, but rather appeared from the record the result of defendants' insistence that they would not plead guilty because they had done nothing wrong.

The prosecutor's closing argument concerning the credibility of witnesses and of Nguyen was fair comment on the evidence. A comment that "on behalf of the Wyoming Police Department and on behalf of the State of Michigan, I am asking you to convict" was not an impermissible "civic duty" argument, as it neither injected issues broader than guilt or innocence nor asked jurors to suspend their powers of judgment.

Finally, Nguyen was not entitled to an instruction that a person has no duty to retreat from his place of business, as he was not working at the time of the shooting. Counsel's failure to request an instruction which was inapplicable to the facts was not ineffective.

Unpublished (but persuasive)

Language in MCR 7.215(C) allows parties to cite an unpublished opinion, even though it is not precedentially binding, as long as a copy is provided to the court and opposing parties. To obtain a copy of any of the following opinions, contact Michigan Lawyers Weekly at 1-800-678-5297 (charge of $3.99 per order plus 69� per page), providing the "MA" number for each case.
Opinion summaries written by Patricia Gambill.

EVIDENCE -- Hearsay

People v Richards
#175607, 6-28-96
MA 25209 (2pp)

The trial court erred in admitting hearsay evidence of a description of the suspect given to police by an anonymous tipster, as the statement was not admitted for any recognized purpose (such as to explain the subsequent actions of the police) and was more prejudicial than probative. As the rest of the trial focused on the similarities between the description and defendant's appearance, the error could not be said to be harmless, and reversal was required.

SEARCH AND SEIZURE -- Stops
SEARCH AND SEIZURE -- Consent
People v Wilson
#167567, 7-2-96
MA 25261 (3pp)

Defendant, a passenger in a vehicle subjected to a traffic stop, had a reasonable expectation of privacy in the contents of his shoe. Where a police officer directed defendant to remove his shoes and defendant did so, only acquiescence, and not voluntary consent, was shown; absent any other lawful basis for the search, suppression of the cocaine found in the shoe and reversal of defendant's conviction were required.

HABITUAL CRIMINAL PROCEEDINGS -- Sufficiency of Evidence
EVIDENCE -- Judicial Notice
People v Pree
#160522, 7-5-96
MA 25286 (4pp)

Viewed in a light most favorable to the prosecution, the evidence was insufficient to establish that defendant was the same "John Pree" who had been convicted of the three previous felonies which formed the basis of the fourth-offender supplemental information. The trial court could not take judicial notice that the fingerprints on the arrest card belonged to defendant, as the prosecution requested, because this amounted to taking judicial notice of an element of the offense which the prosecution was required to prove beyond a reasonable doubt.

JURY -- Selection -- Challenge to the Array
JURY -- Challenges -- Race-Gender Exclusion
People v Clark (On Remand)
#185008, 7-9-96
MA 25382 (2pp)

On remand from the Supreme Court for reconsideration in light of People v Hubbard, (After Remand) 217 Mich App 459 (1996), the panel concluded that the process in use in Kalamazoo County at the time of trial, allocating prospective jurors from a general source list to the circuit court venires, systematically and unconstitutionally excluded African Americans from the venires. Remand for retrial was ordered.

JURY -- Selection -- Challenge to the Array
JURY -- Challenges -- Race-Gender Exclusion
People v Smith
#134460 and #175350, 7-9-96
MA 25343 (3pp)

The jury selection process in use in Kalamazoo County at the time of defendant's trial, which excluded residents of the city of Kalamazoo, created a constitutionally significant underrepresentation of African Americans in the venires; although African Americans comprised 7.4% of the population of Kalamazoo County during the relevant time period, only 3.3% to 4% of those actually appearing in venires were African American. Remand for retrial was ordered.

SENTENCING AND PUNISHMENT -- Presentence Reports -- Contents
People v Vaughn
#163017, 7-9-96
MA 25345 (3pp)

Where the sentencing court, in response to defendant's challenge, stated that it was not considering a disputed plea-based conviction in imposing sentence, defendant was entitled to remand to have the disregarded information stricken and to have a corrected copy forwarded to the Department of Corrections.

INSTRUCTIONS -- Duty to Charge
INSTRUCTIONS -- Unanimous Verdict
JURY -- Verdict -- Unanimous Verdict
People v Freeman
#159170, 7-19-96
MA 25462 (3pp)

Where there was sufficient but not overwhelming evidence that defendant committed two acts which could constitute felonious assault (throwing a beer bottle at the victim's head and threatening to burn her with a cigarette), the trial court erred reversibly by failing to instruct sua sponte that jurors must agree unanimously on which act was the basis for their verdict.

FELONY MURDER -- Sufficiency of Evidence
LARCENY
FALSE PRETENSES
People v Jacobs
#180192, 7-19-96
MA 25490 (3pp)

Where defendant accepted money from the victims for fake crack cocaine which the victims believed to be genuine, and then shot them, defendant had committed the crime of false pretenses rather than larceny by trick. As false pretenses, unlike larceny, is not enumerated as a predicate offense for felony murder, reversal and remand for entry of convictions of second-degree murder was ordered.

SENTENCING AND PUNISHMENT -- Restitution
People v Washington
#181979, 7-19-96
MA 25497 (2pp)

The trial court erred in ordering payment of $1,197 in restitution without considering defendant's ability to pay, where no restitution agreement or other special circumstances existed. On remand, the trial court is also to resolve a discrepancy in the record as to whether defendant was convicted as a third or fourth felony offender.

WITNESSES -- Cross-Examination
JUDGE -- Conduct Of
JUDGE -- Interrogation of Witnesses
People v Edmonds
#168666, 7-19-96
MA 25469 (2pp)

Defendant was denied a fair trial by the conduct of the trial judge, including interruption and interference with defense counsel's cross-examination, refusal to allow re-cross following the redirect examination of one prosecution witness, interruption of defense counsel's examination to ask a witness whether the witness had used drugs at the crime scene, and instruction of defense counsel as to which witnesses counsel could and could not call.

SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SENTENCING AND PUNISHMENT -- Resentencing
JUDGE -- Disqualification -- Reassignment on Remand
People v Staley
#178555, 8-20-96
MA 25916 (2pp)

Despite defendant's history of abusive relationships, substance abuse, and lengthy record of misdemeanors and property crimes, the panel reluctantly agreed that a sentence of life imprisonment for conviction of aggravated stalking as a fourth felony offender was disproportionate. Defendant's criminal history consisted primarily of misdemeanor and property offenses. Remand for resentencing before a different judge was ordered.

CRIMINAL SEXUAL CONDUCT
WITNESSES -- Expert
People v Jurk (On Remand)
#193719, 8-2-96
MA 25705 (4pp)

On remand for reconsideration in light of People v Peterson, 450 Mich 349 (1995), the panel agreed that defendant's general denial of the charged criminal sexual conduct offenses did not attack the child victims' credibility by pointing to specific behaviors as inconsistent with sexual abuse. The trial court erred, therefore, in admitting testimony of the victims' treating psychologists that specific behaviors were consistent with having been sexually abused, and the error was not harmless.

SEARCH AND SEIZURE -- Announcement of Identity and Purpose
People v Gonzales
#182116, 7-30-96
MA 25631 (5pp)

Police failed to comply with the "knock-and- announce" statute where they shouted "Police, warrant" while in front of a neighbor's house, then rammed defendant's front door without allowing time for defendant to respond or open the door voluntarily. As the prosecution presented no witnesses at the hearing, there was no showing of exigent circumstances which would have excused compliance. Kelly, dissenting, would find that adequate time elapsed in light of the "large-scale and noisy disturbance" resulting from the arrival of two vans full of police officers, and would affirm.

SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
People v Weston
#178269, 8-2-96
MA 25685 (2pp)

Defendant's Sentencing Information Report was improperly scored when the same felony conviction was scored both as a high severity felony under PRV 1 and as a low severity felony under PRV 2. As the correct scoring dropped the Guidelines range from 3 to 10 years to 1 1/2 to 5 years, and as the sentencing court indicated that defendant was being sentenced at the low end of the Guidelines range, remand was ordered for determination of whether a different sentence should be imposed in light of the scoring correction.

DUE PROCESS VIOLATION -- Right to Present Defense
PRETRIAL MOTIONS AND PROCEDURE -- Continuance or Adjournment
WITNESSES -- Expert -- Psychiatric Expert
DEFENSES -- Insanity
People v French
#176703, 8-30-96
MA 26050 (4pp)

The trial court abused its discretion in denying defendant's motion for a continuance to obtain an independent psychiatric examination and in requiring that the expert's report be filed within five days. As defendant had asserted his due-process right to present a defense, had a legitimate reason for asserting the right (an unfavorable report from the Recorder's Court Psychiatric Clinic), had not been negligent in asserting the right, and had not requested previous adjournments, the trial court should have allowed a reasonable continuance to allow an independent exam before trial. Remand was ordered for appointment of an independent expert to evaluate defendant's criminal responsibility and, if warranted, for a motion for new trial.

DOUBLE JEOPARDY -- Multiple Punishments
UTTERING AND PUBLISHING
FALSE PRETENSES
People v Neely
#177841, 8-27-96
MA 26011 (3pp)

Defendant was subjected to impermissible multiple punishments when he was convicted and sentenced on both uttering and publishing and false pretenses for presenting a forged receipt to a store clerk to obtain a refund voucher. Vacation of the false pretenses conviction was ordered.

JUVENILE PROCEEDINGS
INDICTMENT AND INFORMATION -- Amendment Of
DUE PROCESS VIOLATION -- Failure to Give Notice and Opportunity to Be Heard
ASSAULT, FELONIOUS
WEAPONS, CONCEALED ON PERSON
People v Wilson (In re Wilson)
#179868, 8-6-96
MA 25744 (3pp)

Respondent's due-process right to notice and opportunity to defend were violated by the amendment of the juvenile petition at the close of the proofs, over objection, to add a charge of carrying a concealed weapon to the original charge of assault with intent to murder. Respondent was entitled to vacation of the CCW adjudication, but not to further relief where the record established that that adjudication had not affected the court's dispositional order.

DISCOVERY
PROSECUTOR -- Withholding Evidence
DUE PROCESS VIOLATION -- Crucial Evidence Withheld
People v Nunez
#188541, 8-20-96
MA 25928 (3pp)

Evidence of a particular conversation, in which defendant allegedly negotiated a price for recurring large cocaine transactions with an undercover officer, was properly excluded after the prosecution repeatedly violated orders to provide the defense a copy of the tape recording of the conversation, and provided only a transcript in which all of defendant's statements were designated as "inaudible."

PAROLE
DEFENSES -- Jurisdiction, Lack Of
People v Sinclair
#182817, 8-23-96
MA 25999 (3pp)

The circuit court erred in reversing the Parole Board's grant of parole on the grounds that defendant had provided evidence of his employability, but not of employment. The grant of parole, as opposed to release on parole, does not require employment. Wayne County Prosecutor v Parole Board, 210 Mich App 148 (1995). In a related issue, the circuit court which heard the parole issue had no authority to "remand" to the Detroit Recorder's Court for resentencing, as courts of equal jurisdiction cannot review each other's decisions.

Training Calendar

Complete details on the training events listed below appear earlier in this month's newsletter.

October 2 - 5 Intoxilizer 5000 HMC - Atlanta, GA
October 4 Jury Selection CAP - Detroit, MI
October 18 Michigan Law Update CAP - Detroit, MI
October 19 Criminal Defense Bar Leadership Committee CDBLCC - Lansing, MI
October 21 - 23 Appellate Defender Training NLADA/IPDC - Indianapolis, IN
October 25 Guilty Pleas CAP - Detroit, MI
October 29 Sixth Circuit Practice APSSBM/WSU - Detroit, MI
November 6 - 9 Juror Persuasion NACDL - San Antonio, TX
November 8 - 9 Trial Advocacy CDAM - Traverse City, MI
November 11 - 14 Annual Conference NLADA - Las Vegas, NV
November 14 - 15 Criminal Tax Fraud in the '90s ABA/CSB - Washington, DC
November 22 Cross-Examining Police Witnesses CAP - Detroit, MI
November 5 - 6 Criminal Tax Fraud in the '90s ABA/CSB - Washington, DC
December 6 United States Supreme Court Review CAP - Detroit, MI
January 26 - February 2 Ski Seminar NACDL - Aspen, CO
February 12 - 15 Cutting Edge Defenses NACDL - New Orleans, LA

Criminal Defense Resource Center
3300 Penobscot Building
645 Griswold Street
Detroit, MI 48226
(313) 256-9833

Dawn Van Hoek, Director and Newsletter Editor
Criminal Defense Resource Center

October 2 - 5	Intoxilizer 5000	HMC - Atlanta, GA
October 4	Jury Selection	CAP - Detroit, MI
October 18	Michigan Law Update	CAP - Detroit, MI
October 19	Criminal Defense Bar Leadership Committee	CDBLCC - Lansing, MI
October 21 - 23	Appellate Defender Training	NLADA/IPDC - Indianapolis, IN
October 25	Guilty Pleas	CAP - Detroit, MI
October 29	Sixth Circuit Practice	APSSBM/WSU - Detroit, MI
November 6 - 9	Juror Persuasion	NACDL - San Antonio, TX
November 8 - 9	Trial Advocacy	CDAM - Traverse City, MI
November 11 - 14	Annual Conference	NLADA - Las Vegas, NV
November 14 - 15	Criminal Tax Fraud in the '90s	ABA/CSB - Washington, DC
November 22	Cross-Examining Police Witnesses	CAP - Detroit, MI
November 5 - 6	Criminal Tax Fraud in the '90s	ABA/CSB - Washington, DC
December 6	United States Supreme Court Review	CAP - Detroit, MI
January 26 - February 2	Ski Seminar	NACDL - Aspen, CO
February 12 - 15	Cutting Edge Defenses	NACDL - New Orleans, LA