Also, the Supplemental Capitol Outlay bill (HB4085) requires the Department of Corrections to submit the request for proposals to the Joint Committee on Capitol Outlay and the House and Senate Appropriation Subcommittees on Corrections at least fourteen days before the request for proposals is released to vendors. If not submitted for approval, future appropriations will not be made for a youth correctional facility.
Escape From a Juvenile Facility: Senate Bill 870 (PA 256, eff. 1-1-97). This legislation creates the crime of escape from a juvenile facility and provides penalties. Escape is defined as leaving without authority or failure to return to custody when required. Juvenile facility is defined as any county facility, or institution operated as an agency of the county or the Juvenile Division of the Probate Court, or a state institution or agency as described in the Youth Rehabilitation Services Act. It applies to any committed or placed juvenile who escapes or attempts to escape from a facility, or from the custody of an employee of that facility. The juvenile who escapes or attempts escape is guilty of a felony and may be sentenced to imprisonment for not more than four years, or a fine of not more than $2,000, or both.
Juvenile Boot Camp Act: Senate Bill 696 (PA 243, eff. 8-1-96) & House Bill 4723 (PA 263, eff. 8-1-96). The Michigan Family Independence Agency is required to develop one or more boot camp programs for juveniles. The programs shall provide physically strenuous work and exercise patterned after military basic training, not to exceed 120 days.
Juvenile Line-ups: Senate Bill 697 (PA 251, eff. 1-1-97). The probate court code is amended to allow the court to order juveniles to submit to lineups for identification purposes. Juveniles, parents, guardians or custodians must be notified of rights to an attorney and to have an attorney present during the lineup.
Detention of Waived Juveniles in Adult Jails: Senate Bill 724 (PA 254, eff. 1-1-97). This legislation allows juveniles who have been waived to the Circuit or Recorder's Court, with prior approval of the county sheriff, to be detained in an adult jail facility pending trial. It also provides that they must be physically separated from adults.
Juvenile Criminal Reporting: House Bill 4445 (PA 259, eff. 1-1-97). This legislation amends the Public Act creating the Bureau of Criminal Identification and Records within the Department of State Police to require the Department to collect identifying and other information related to arrests and adjudications involving the specified juvenile offenses. It also requires local agencies to report juvenile offenses, crimes and criminal offenders to the state police, and requires fingerprinting of juvenile offenders.
Burden of Proof: House Bill 4037 (PA 257, eff. 1-1-97). Prior to the nineteenth birthday, the court must conduct a hearing to determine if a juvenile under the custody of the Michigan Family Independence Agency has been rehabilitated and does not pose a risk to public safety if released from custody. This legislation amends the probate code to shift the burden of proof from the agency to the juvenile to prove by a preponderance of the evidence that he or she has been rehabilitated and will not present a serious risk to the public if released from custody. The juvenile may use reports by the agency to meet the burden of proof.
Parent Attendance at Court Hearings: Senate Bill 698 (PA 252, eff. 1-1-97). This legislation requires that parents attend all hearings involving their juvenile unless excused by the court for good cause. Failure to appear does not provide grounds for appeal by the juvenile, nor is it good cause for adjournment of the juvenile case. Enforcement is through contempt and fines.
| by Patrick Clark, Associate Director |
| Michigan Council on Crime and Delinquency |
For more information contact the Coalition for Juvenile Justice Reform, 300 N. Washington Square, Suite 102, Lansing, Michigan 48933, (517) 482-4161.
Criteria for Waiver of Jurisdiction & Sentencing
These criteria are used in determining whether a juvenile should be sentenced as an adult for certain offenses (those not checked in the "specified juvenile offenses" list):
- seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim;
- the culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile's participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by sentencing guidelines;
- the juvenile's prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior;
- the juvenile's programming history, including, but not limited to, the juvenile's past willingness to participate meaningfully in available programming;
- the adequacy of the punishment or programming available in the juvenile justice system;
- the dispositional options available for the juvenile.
Specified Juvenile Offenses
The checked offenses are those for which juveniles must be sentenced as an adult, or for which an adult sentencing is possible after analysis of criteria (those factors identified in "criteria for waiver of jurisdiction & sentencing" list).
| [check mark] | Arson of a dwelling | 750.72 |
| [check mark] | Assault with intent to murder | 750.83 |
| Assault with intent to do great bodily harm less than murder with a weapon | 750.84 |
|---|
| [check mark] | Assault with intent to kill or maim | 750.86 |
| Assault with intent to rob or steal while armed | 750.89 |
|---|
| [check mark] | Attempted murder | 750.91 |
| Breaking and entering/home invasion with a weapon | 750.110a |
|---|
| [check mark] | Conspiracy to commit murder | 750.157a |
| [check mark] | Solicitation to commit murder | 750.157b |
| Escape or attempted escape* | 750.186a |
|---|
| [check mark] | First-degree murder | 750.316 |
| [check mark] | Second-degree murder | 750.317 |
| [check mark] | Kidnapping | 750.349 |
| [check mark] | First-degree criminal sexual conduct | 750.520b |
| [check mark] | Armed robbery | 750.529 |
| [check mark] | Carjacking | 750.529a |
| Bank, and safe or vault robbery | 750.531 |
|---|
| [check mark] | Manufacture, Sale, Delivery or Possession of 650gr Controlled Substance | 333.7401, 333.7403 |
([check mark] - offenses which require an adult sentence)
In addition, attempt, conspiracy or solicitation to commit one of above the specified offenses, or a lesser included offense of above specified charged offenses, or any other violation arising from the same transaction as a charged specified offense, also constitute a specified juvenile offense.
* Adult sentence limited to escape from a high or medium security facility operated by the Family Independence Agency or a privately run high security juvenile facility.
A Note on Upcoming Legislative Activity
While the Juvenile Justice Package Summary is primarily the work of Pat Clark of the Michigan Council on Crime and Delinquency, who also deserves kudos for his work in the legislature on these issues, others in the defense community, notably Tom Harp and Frank Vandervort and myself, assisted with the lobbying effort and the bill analysis and summary after the failure of the lobbying effort. If you have any questions about the juvenile package or would like additional information, feel free to contact me at the SADO Lansing office.
The legislature has been very active recently, with more to come. In addition to adoption of the juvenile legislation described above, in this month's newsletter, the period leading up to summer break saw passage of a eight-bill telecommunications/computer fraud package, measures demanding that prisoners pay for certain medical, dental and college course costs, a three-bill prison trespass package, a bill increasing penalties for defacing the flag and a thirteen-bill friend of the court/family law package. Hearings are currently ongoing in the Senate on the primary court reorganization measure, with conference committee scheduled July 2, 1996. The Legislative Sentencing Guidelines Commission is holding a series of meetings in early summer in an effort to meet a mid-summer deadline for submission of its plan to the legislature. Details on these and other legislative matters will be provided in upcoming issues of the Criminal Defense Newsletter.
Farewell to Dan, "The Answer Man"
We announce with regret the departure of Dan Marcus, an attorney who worked with the Criminal Defense Resource Center for nearly ten years as its primary contact with outside attorneys. Dan answered many thousands of calls from attorneys throughout the state, providing inestimable support over the years. Best of all, he did so with a spirit and intelligence which made attorneys feel welcome to call again, whether their question was simple or complex.
Dan will practice criminal law on a part-time basis in Oakland County. We wish him the best!
Welcome to B.J. Belcoure, Our New Legal Assistant
Attorney B.J. Belcoure has joined the Criminal Defense Resource Center to provide phone and direct support services to other criminal defense attorneys. B.J. has practiced law in the Detroit area for nearly twenty years, and will give advice to trial and appellate attorneys who have questions about criminal law and procedure. He joins attorney Susan Walsh in a schedule which makes such support available every afternoon during the work week (B.J.), as well as all day on Tuesday and Friday (Susan). We welcome B.J. to the team!
Voir Dire Transcript Case Filed in U.S. Supreme Court
We've reported for over a year on challenges raised to the amended MCR 6.425(F)(2) [eff. 7-1-94], which conditions appellate access to voir dire transcripts on exhaustion of all peremptory challenges, sentencing to a term of life imprisonment without possibility of parole, or a showing of "good cause." See "Denial of Voir Dire Transcript Request Affirmed," Criminal Defense Newsletter, (December, 1995), "Transcript Challenge On Is Way to State Court," Criminal Defense Newsletter (February, 1995), and "New Court Rule Limiting Access to Voir Dire Transcripts Draws Suit Against Justices," Criminal Defense Newsletter (January, 1995).
A case challenging the rule's application is now before the United States Supreme Court, filed by SADO's Dave Moran. LaFave v Michigan, petition for certiorari filed 6-13-96, lv den 451 Mich 869 (1996). Mr. LaFave asserts that the rule violates his equal protection and due process clause rights by denying him, solely because of his indigence, any opportunity to discover and raise appellate issues arising from the jury selection portion of his trial. He also claims that the rule violates his federal constitutional rights to the effective assistance of counsel during his first appeal as of right.
Attorneys wishing a copy of the petition should contact the Criminal Defense Resource Center.
Communications Decency Act Ruled Unconstitutional
In a ruling delivered just four months after the Communications Decency Act was signed into law by President Clinton, a three-judge panel of the federal district court in Philadelphia, Pennsylvania invoked the First Amendment to enjoin enforcement of its ban on "indecent" communications. The unanimous ruling came in ACLU, et al v Reno, a suit filed by numerous organizations concerned about the Act's impact on Internet use. ACLU v Reno, District Court for E.D. Pennsylvania, No 96-963, 6-12-96.
The ruling followed five days of trial which featured witnesses testifying about government censorship of serious literary works, medical information, nude art in museum collections, briefs in obscenity cases, safe sex information and even "chat room" discussions of sexual abstinence. The CDA criminalizes [up to 2 years/$250,000 fine] prohibits interstate use of an interactive computer service to display in a manner available to persons under 18 years of age:
| . . . any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication . . . |
Judge Stewart Dalzell, in the recent ruling, observed that " . . . the Internet may fairly be regarded as a never-ending worldwide conversation." Concluding that the Government may not interrupt that conversation, he added that "the Internet deserves the highest protection from government intrusion." Judge Ronald Buckwalter found the "indecency" and "patently offensive" provisions to be unconstitutionally vague. Chief Judge Dolores K. Sloviter observed that the First Amendment must not be subjected to the disparate interpretations of judges and prosecutors, and agreed that the CDA was vague and overly broad.
The government has appealed the ruling. The full text of the court's decision and updates are available on the excellent Web pages of the ACLU and Electronic Frontier Foundation.
Public Hearing Scheduled for Proposed Appointment System
The Hearings Committee of the State Bar's Representative Assembly will hold a public hearing on August 8, 1996, on Assembly member Matthew Abel's proposal for appointment standards for assigned trial counsel. The hearing will take place at the Detroit Bar Association, 300 Buhl Building, 535 Griswold, Detroit, at 3:00 p.m. Those unable to attend may submit written comments to Carl E. Chioini, 306 Townsend St., Lansing, MI 48933-2083.
The proposal would vest the power to appoint trial attorneys in a local administrative person or committee, removing it from judges. It appears in full text at page 6 of the October, 1995, Criminal Defense Newsletter. When considered by the Representative Assembly in April of 1996, that body referred it to the Hearings Committee for further consideration. If adopted as a matter of State Bar policy by the Assembly, the proposal will go to the Michigan Supreme Court, which may adopt it as an administrative rule governing the state's courts.
Oakland County's Circuit Court recently adopted its own version of the proposal, removing the counsel appointment authority from judges and giving it to a local administrator. Criminal Defense Newsletter, May, 1996, pages 7-9. The local order also created a committee of lawyers and judges who will establish training requirements and eligibility criteria for attorneys wishing to take assigned criminal cases. That committee also will develop a performance survey intended to obtain judicial feedback on individual attorneys.
From Our Readers: Gang Profiles
We featured last month a lead article on the substantive use of "drug profiles," generally offered as an "expert" police officer's testimony about characteristics of drug dealers. In a related vein, reader Valerie Newman spotted in one of her cases expert testimony about "gang profiles." While Michigan case law has addressed the former type of testimony, forbidding its substantive use, there is not yet an appellate decision on gang evidence.
Ms. Newman's research revealed an excellent discussion of the subject in an Illinois case, People v Mason, 274 IllApp3d 715 (1995). There the defendant stood trial for the murder of another member of his gang, and the prosecution admitted extensive "gang profile" evidence through both a police officer and through defendant's confession. For the professed purpose of showing a motive, the prosecution admitted detailed evidence about elements of gang life and organization, including facts about gang rivalries, graffiti, tattoos and drug sales. This evidence went too far, the appellate court ruled, as it was both irrelevant and inflammatory. The prosecution had the right to show that defendant was a member of the particular gang, to show a motive for killing another gang member, but too much emphasis was placed on the distracting and prejudicial "lifestyle" evidence. The court reversed the defendant's murder conviction on this ground.
Ms. Newman's brief in the Michigan case, People v Carlos Lopez, is available to attorneys upon request.
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 by Escalation
It took nearly ten years, but David Ryan finally obtained review of his claim that police entrapped him into escalating drug deals which culminated in one which led to a mandatory life term. Review occurred in the context of a motion for relief from judgment heard by Oakland Circuit Judge David F. Breck, who conducted an evidentiary hearing and ultimately ruled that the charge of delivering more than 650 grams of cocaine must be dismissed. People v David Ryan, No. 87-082806-FH, June 12, 1996.
Both cause and prejudice were shown by Mr. Ryan, who claimed that his trial and appellate attorneys rendered constitutionally ineffective assistance in representing him. Initial trial counsel, who obtained $25,000 for his services, did not conduct a preliminary exam, and turned the case over to a second attorney shortly before a trial date. The second trial counsel did not move for a preliminary exam, and did not talk to the defendant or any police officers until the day of trial. This attorney, who told the defendant to "head for the hills," conducted a bench trial at which no defense was presented. Appellate counsel failed to claim ineffective assistance of trial counsel.
The recent evidentiary hearing before Judge Breck produced an interesting "battle of the experts;" for the defense, CDAM President John Minock, and for the prosecution, the Wayne County Prosecutor's chief appellate attorney, Timothy Baughman. Mr. Ryan also testified, relating the facts of his cocaine addiction, small sales to a friend named "Marie," and escalating sales to an undercover police officer (Summers) introduced by Marie. Baughman, who has never defended a case, asserted that counsel would not be ineffective for failing to raise entrapment under the circumstances; he admitted, however, that he would have raised entrapment if he was representing Ryan. Judge Breck found this case to present a "classic example of an attorney entirely failing to subject the prosecution's case to meaningful adversarial testing." While counsel was "present" during trial, the defendant was represented only in form, rather than substance. There was a complete denial of counsel and presumptive prejudice, for state and federal constitutional purposes, under the standard of United States v Cronic, 466 US 648 (1984).
Reviewing the entrapment issue on its merits, Judge Breck found that Mr. Ryan carried the burden of showing entrapment by escalation, on facts even more compelling than those of People v Killian, 177 Mich App 220 (1982) or an unpublished case, People v Darden (No. 153078, 11-3-94). In Killian, police escalated the defendant's criminal culpability from possession of cocaine and selling of marijuana to dealing large quantities of cocaine; the appellate panel dismissed charges, finding that police impermissibly manufactured and instigated the higher crime. In Darden, entrapment was not made out, but the panel identified a number of relevant factors. Here, Ryan was an addict selling ounces to feed his addiction, and Officer Summers became the means for feeding the habit. Four small transactions led to a fifth, in which a kilogram was provided to Summers by Ryan's supplier; Ryan did not know the price of a kilo, and only followed through on the deal when Summers offered an extra $1,000. At the beginning, there was no evidence that Ryan was dealing in large quantities, and the escalation proceeded to a mandatory life offense. Ruling for the defense, Judge Breck found Summers to be an incredible witness, and considered Ryan's successful polygraph results (though he noted the result would be the same without them).
Congratulations to Neil Fink, who represented Mr. Ryan on the recent motion. Defense attorneys wishing a copy of the opinion should contact the Criminal Defense Resource Center.
Criminal Defense Bar Association in Formation
Criminal defense attorneys from across Michigan have been meeting recently to discuss forming a new bar association devoted to defense interests. The Ad Hoc Committee to Form a Criminal Defense Bar Association, consisting of eight attorneys, has determined to focus attention on:
- fees for appointed counsel;
- state funding for a defender training institute;
- state standards for appointed trial counsel; and
- legislative input from a criminal defense perspective.
The Ad Hoc Committee is circulating a survey among the criminal defense community, and readers will find it as an insert in this month's newsletter. An organizational meeting is planned for October, 1996, in Lansing.
Organizers emphasize that the new bar association is intended to complement, rather than compete with, the activities of the Criminal Defense Attorneys of Michigan. CDAM currently files numerous amicus curiae briefs and conducts two large training conferences each year.
In a Manner of Speaking . . .
Maybe this court reporter was thinking ahead to the snack break, as lawyers argued about the admissibility of similar acts evidence [thanks to contributor Peter Van Hoek]:
DEFENSE COUNSEL: Now, keep in mind they had the X rape, the Y rape, the Z situation, -- I say they had the X rape -- I think that's a Fig Newton of somebody's imagination -- but anyway, they had some other cases, but they didn't have any suspects and they hadn't had any suspects for years.
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.
Training Events
The National Association of Criminal Defense Lawyers (NACDL) will host its Annual Meeting & Seminar on August 7-10, 1996, in Santa Monica, California. Titled the "Anatomy of Trying Drug Cases," seminar topics include forfeiture and double jeopardy, creative sentencing, bail and detention, jury selection, opening statements, closing arguments, cross-examination of informants and deceitful witnesses, suppressing evidence, multiple defendant cases, and police perjury and misconduct. A luncheon on August 9th will feature Johnnie L. Cochran, Jr. as the keynote speaker. Registration is $300 for NACDL members and $425 for non-members before July 19th; fees go up $50 after that date. More information is available by calling Kate Carroll at (202) 872-8688.
The Bureau of National Affairs, Inc. (BNA), publisher of The Criminal Law Reporter, will present "U.S. Law Week's 18th Annual Constitutional Law Conference" on September 6-7, 1996, at the National Press Club in Washington, D.C. Distinguished faculty members will be joined by Judge Frank H. Easterbrook as guest speaker in a program moderated by a Baltimore Sun reporter. Criminal law topics to be discussed include double jeopardy problems raised by civil forfeiture, pretext traffic stops, and race-based selective prosecution. Registration is $525, or $600 on the day of the event. Contact BNA for more information at (800) 452-7773.
The State Bar of Michigan's Criminal Law Section (SBMCLS) will present a program on Forfeiture Issues as part of the Bar's Annual Meeting on September 20, 1996, in Grand Rapids. Details will appear here as they become available.
The National Child Abuse Defense & Resource Center (NCADRC) will present "Child Abuse Allegations II: The Law, The Science, The Myths, The Reality," on September 20-22, 1996, in Las Vegas, Nevada. The conference will use a variety of formats (discussion, demonstration, workshop) to explore a wide variety of topics; included are identification of trial issues, suggestibility of children, detecting interviewer bias, detecting medical misdiagnosis, analyzing pathology reports, and challenging experts. SADO attorney Debra Gutierrez-McGuire endorses this as is the best conference she has ever attended. Registration is $350 ($290 for public defenders), if postmarked by 8-5-96. More information is available via FAX at (419) 865-0526.
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. Mark your calendars now; details to follow.
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.
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.
1996 Defender Books and Diskettes Available
The printed and diskette versions of the 1996 Defender Trial and Sentencing Books are now available by mail order, to criminal defense attorneys, from the Criminal Defense Resource Center. Owners of prior editions of the books have received order forms by mail; if you haven't heard from us, and want to order the set, please call Maria Sanchez at (313) 256-9833. We lack sufficient supplies to fill orders for inmates, but numerous copies are on file in institutional law libraries.
This year, the diskette set also includes a "mini" edition of our larger Defender Database, including prior issues of the Criminal Defense Newsletter and selected court rules. All materials are searchable by key word using our search program, Folioviews. This static collection of research material may be supplemented by accessing the complete Database, which will be available to registered criminal defense attorneys on SADO's Web Site (set for launch in late July). We'll announce Web access in next month's newsletter.
Certiorari Granted in the United States Supreme Court
PAROLE
PROBATION
DUE PROCESS VIOLATION
Young v Harper
#95-1598, 5-28-96
59 CrL 3057
The issue in the case is whether Oklahoma's Preparole Conditional Supervision Program, which releases otherwise qualified parole-eligible inmate chosen by the Pardon and Parole Board to work and live outside prison with restrictions resembling parole, is sufficiently similar to parole or probation that participation is protected by the Due Process Clause. The lower court found the process provided this inmate did not live up to the standards of Morissey v Brewer, 408 US 471 (1972), and ordered habeas relief. Case below: 64 F3d 563 (CA10, 1995).
SEARCH AND SEIZURE -- Probable Cause
SEARCH AND SEIZURE -- Stops
SEARCH AND SEIZURE -- Automobiles
Maryland v Wilson
#95-1268, 6-17-96
59 CrL 3073
Granting review to the prosecution, the Court agreed to consider whether the ruling of Pennsylvania v Mimms, 434 US 106 (1977), which authorizes police to order a driver to exit a vehicle during a traffic stop, extends as well to passengers. The lower court affirmed suppression of cocaine dropped by the passenger upon exiting the vehicle, finding that a new detention was involved in the order to exit. Case below: 664 A2d 1 (Md CtSpecApp, 1995).
SENTENCING AND PUNISHMENT -- Guidelines
STATUTORY INTERPRETATION
United States v LaBonte
#95-1726, 6-24-96
59 CrL 3085
At issue in the case is whether the "at or near the maximum term authorized" language of 28 USC 994(h) refers to the sentence authorized before or after statutory penalty enhancements are applied. The lower court was guided by the Sentencing Commission's commentary to career offender guidelines, Guideline 4B1.1, which directs sentencing judges to determine career offenders' offense levels based on sentences authorized before statutory penalty enhancements are applied. Case below: 70 F3d 1396 (CA1, 1995).
EX POST FACTO LAW
Lynce v Mathis
#95-7452, 5-13-96
59 CrL 3041
Granting review to the defendant, the Court agreed to consider whether the ex post facto clause was violated by retroactive application of an offense-based exclusion from eligibility for early release from custody. Defendant was recommitted to prison under the new law. Case below: unpublished (CA11, 1995).
CONSTITUTIONAL RIGHTS
FIREARMS
STATUTORY INTERPRETATION
Printz v United States
#95-1478, 6-17-96
59 CrL 3073
Consolidating this case with Mack v United States, 66 F3d 1025 (CA9, 1995), the Court agreed to review whether Congress had the power under Article I, Section 8 of the Constitution, consistent with the Tenth Amendment as interpreted in New York v United States, 505 US 144 (1992), to command state-created chief law enforcement officers to search records to determine whether persons may lawfully purchase handguns, to destroy records concerning handgun purchasers, and to provide reasons for adverse determinations, as mandated by the Brady Act, 18 USC 922(s)(2), (6) (B) and (C). Case below: 66 F3d 1025 (CA9, 1995).
SENTENCING AND PUNISHMENT -- Concurrent Sentence
United States v Gonzales
#95-1605, 6-17-96
59 CrL 3074
At issue is whether a sentence imposed under 18 USC 924(c), which establishes a mandatory five-year firearm sentence and prohibits it from being concurrent "with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried," relates only to other federal sentences. In this case, the federal sentence was ordered to run concurrently with the previously imposed state sentence for the same conduct, which the defendant had already begun to serve. Case below: 65 F3d 814 (CA 10, 1995).
SEXUALLY VIOLENT PREDATOR
DOUBLE JEOPARDY -- Multiple Punishment
EQUAL PROTECTION VIOLATION
DUE PROCESS VIOLATION
Kansas v Hendricks
#95-1649, 6-17-96
59 CrL 3074
Consolidating this case with Hendricks v Kansas, 912 P2d 129 (1996), the Court agreed to review a broad constitutional challenge to Kansas' Sexually Violent Predator Act, including whether it violates substantive due process principles (and what level of constitutional scrutiny applies to such claims), double jeopardy prohibitions, ex post facto prohibitions, and equal protection guarantees. The Court also will consider whether the state law, providing for long-term, indefinite confinement of sexually violent predators, must be considered criminal even though it is labeled a civil proceeding. Case below: 912 P2d 129 (Kansas SupCt, 1996).
PROSECUTOR -- Abuse of Discretion in Charging Offense
18 USC 242 [Wilful Violation of Due Process Rights]
United States v Lanier
#95-1717, 6-17-96
59 CrL 3074
At issue in the case is whether a state judge's sexual assaults and harassment of court employees and litigants qualify as "constitutional crimes" for purposes of 18 USC 242, which requires that a constitutional right allegedly violated by a state actor be one that has been specifically established by decision of the United States Supreme Court in factual circumstances similar to those charged. Case below: 73 F3d 1380 (CA6, 1996).
Leave Granted in the Michigan Supreme Court
SENTENCING AND PUNISHMENT -- Resentencing
SENTENCING AND PUNISHMENT -- Right of Allocution
SENTENCING AND PUNISHMENT -- Trial Court's Mistake of Law
DEFENDANT -- Absence of at Critical Stage
People v Miles
#100683, 5-21-96
Peter Jon Van Hoek, State Appellate Defender Office, for defendant-appellant.
The Court agreed to consider whether the trial court erred by amending defendant's felony firearm sentence from two to five years, when it discovered that defendant had a prior felony firearm conviction, without conducting a sentencing hearing. Modification in defendant's absence, without a hearing, was affirmed by a majority of the Court of Appeals panel; it concluded that MCR 6.429(A) allows a sentencing court to simply modify an invalid sentence. Dissenting Judge White would have ordered a resentencing hearing, given the possibility that the sentencing court might have imposed a different term on the underlying armed robbery conviction, had it known that a five-year felony firearm sentence was required. Case below: unpublished opinion (#164256, 7-12-96).
FELONY MURDER -- Instruction on Elements
INSTRUCTIONS -- Intent and Wilfulness
INSTRUCTIONS -- Inferences
People v Dumas
#102355, 5-22-96
Peter Jon Van Hoek, State Appellate Defender Office, for defendant-appellant.
In its order granting leave, the Court specified its interest in "whether the trial court improperly instructed that the intent required for a felony murder conviction can be inferred from the intent to commit the underlying felony." After giving CJI2d 16.4 on the elements of felony murder, the trial court told jurors:
| If you find that the defendant consciously intended to commit, attempted to commit or assisted others in the commission of the crime of robbery or larceny, you may infer that he knowingly created a high risk of death or serious bodily injury with knowledge that it probably would cause death.
|
The Court of Appeals panel found that the charge "may have somewhat blurred" the intent element; however, other instructions were proper and the jury charge must be reviewed "as a whole." It also read People v Kelly, 423 Mich 261 (1985), which involved the same judge giving the same instruction, as permitting the inference of intent from perpetration of the underlying felony. In this case a witness saw two men go into an auto repair shop, heard the victim say he had no money, and then heard a gunshot. Case below: unpublished opinion (#153325, 1-11-96).
PROSECUTOR -- Abuse of Discretion in Charging Offence
CONTROLLED SUBSTANCES, DELIVERY -- Sufficiency of Evidence
CONSPIRACY -- Sufficiency of Evidence
People v Justice
#105352, 5-17-96
Steven C. Bullock for defendant-appellant.
Granting leave to the defendant, the Court agreed to consider whether the amounts of cocaine involved in several drug deliveries could be aggregated to form the basis for higher charges, in this case conspiracy to deliver 650 grams and conspiracy to deliver between 225 and 650 grams. The trial court quashed the in-formation, applying the test of People v Porterfield, 128 Mich App 35 (1983), but the Court of Appeals reinstated the charges. The Court of Appeals found evidence on an ongoing conspiracy involving the two buyers, Boyer and Kausler, who understood that they could purchase cocaine from defendant whenever they needed it. Judge White, dissenting, did not feel that the facts supported an ongoing conspiracy; instead, the unrefuted testimony showed that arrangements for each purchase were separately bargained for, each purchase was separately paid for, and there was no on-going arrangement for sales, or discussion of such an arrangement. Case below: unpublished opinion (#173326, 12-28-96).
SENTENCING AND PUNISHMENT -- Consecutive Sentencing
CONSPIRACY -- Sentencing
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing
People v DeNio
#105328, 5-21-96
Jeanice Dagher-Margosian for defendant-appellee.
At issue in the case is whether the trial court had authority to make sentences consecutive under the conspiracy statute, rather than the sections of the controlled substances act for which consecutive sentencing is mandatory. The Court of Appeals vacated consecutive sentences of 3 to 20 years and 2 to 4 years on plea-based convictions of conspiracy to deliver less than 50 grams of cocaine and conspiracy to deliver marijuana, remanding for correction of the sentences. Case below: 214 Mich App 647 (1995).
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
HABITUAL CRIMINAL PROCEEDINGS -- Sentencing
People v Hansford
#104770, 5-22-96
Monsey C. Wilson for defendant-appellee.
While no issue was specified in the order granting leave to the Wayne County Prosecutor, appeal centers on whether the trial court erred in imposing a 40 to 60-year sentence on this defendant, convicted of entering an occupied dwelling without permission and receiving or concealing stolen property over $100, as well as fourth habitual offender. The Court of Appeals panel used sentencing guidelines for the underlying offenses as a reference point for proportionality, finding that the sentence greatly exceeded the highest recommended minimum of 3 years. Although noting defendant's extensive record and poor history of community supervision, as well as the fact that in the new case defendant stole from his hospitalized mother, the panel held the sentence disproportionate. To support that conclusion, the panel noted that prior convictions were for larcenies and stolen property offenses, and a misdemeanor fleeing and eluding, and that defendant's longest previous sentence was 3 to 7 years, imposed in 1988. The Prosecutor's application emphasized that this was defendant's second conviction as a fourth habitual offender, and asked the Court to consider whether there was an abuse of sentencing discretion under People v Cervantes, 448 Mich 620 (1995), and whether People v Milbourn, 435 Mich 630 (1990) remains the law of the state. Case below: unpublished opinion (#165364, 4-11-95).
SENTENCING AND PUNISHMENT -- Restitution
GUILTY PLEAS -- Sentence Negotiation
People v Burton
#100585, 5-22-96
Sheila N. Robertson, State Appellate Defender Office, for defendant-appellant.
Granting leave to the defendant, the Court limited review to "whether the restitution provision should be stricken from the judgment of sentence." Defendant pled guilty to three counts of false pretenses, admitting that he obtained a total of $1040, in exchange for dismissal of additional charges, non-issuance of potential charges and an agreement that the prosecution would recommend sentencing within the guidelines. At sentencing, the trial court imposed a term of 72 to 120 months, and also ordered restitution of $8477.50, over defendant's objection that he was unable to pay. Responding to the prosecution's answer to a Supreme Court "show cause" order, defendant argued that the situation was governed by People v Schluter, 204 Mich App 60 (1994), that the plea agreement did not contemplate payment of restitution, that inability to pay was not properly investigated or considered, and that restitution must be constitutionally limited to the losses arising from the conviction offense(s), absent an agreement to make restitution beyond such losses. Case below: unpublished (#167752).
GUILTY PLEA -- Sentencing Aspect
GUILTY PLEA -- Plea Negotiations
GUILTY PLEA -- Refusal to Accept
People v Grove
#103004, 5-29-96
Lester O. Pollak for defendant-appellee.
The court has granted leave to the prosecution for consideration of whether the trial court erred by refusing to accept defendant's guilty plea after reviewing the presentence report, where defendant agreed to plead guilty to a reduced charge of fourth-degree criminal sexual conduct in return for dismissal of two additional charges and the prosecutor's recommendation of a one-year jail sentence. The Court of Appeals reversed the ensuing jury-tried conviction, finding that the court lacked authority to reject the guilty plea; under People v Killebrew, 416 Mich 189 (1982) and the Michigan Court Rules, the panel ruled, a trial court has the power to reject a plea only when the plea agreement includes a specific sentence disposition. The panel remanded to allow defendant to plead under the original plea bargain; if the court rejects the prosecutor's sentence recommendation, it must state what sentence it would find appropriate and allow defendant to affirm or withdraw his plea. Case below: 208 Mich App 574 (1995).
PRETRIAL MOTIONS AND PROCEEDINGS -- Change of Venue
JURY -- Prejudice of Individual Jurors
JURY -- Prejudicial Publicity
People v Jendrzejewski
#103374, 6-6-96
Kristina Dunne, State Appellate Defender Office, for defendant-appellee.
Leave was granted to consider whether the trial court erred by denying defendant's motion for change of venue, where charges brought in a small community led to convictions on two counts of first-degree murder, felony firearm and second habitual offender. Numerous panels of jurors were called during several days of voir dire; overall, 119 jurors were interviewed and eighty-three were excused either for cause or peremptorily. Defendant exhausted all of his challenges, asked for more, and renewed his motion for change in venue. With seventy percent of jurors excused for cause, nine of the fourteen seated admitting that they knew about the case, and two stating that they could set aside their already-formed opinions, the Court of Appeals found an abuse of discretion in denial of the motion. Considering the totality of circumstances, including the extensive pretrial publicity, the panel was convinced that defendant did not receive a fair trial before impartial jurors. Case below: unpublished opinion (#168041, 4-6-95).
SENTENCING AND PUNISHMENT -- Consecutive Sentencing
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing
STATUTORY INTERPRETATION
People v Gilbert Banks
#101601, 5-24-96
Joan Ellerbusch Morgan for defendant-appellant.
Granting leave to the defendant, the Court agreed to consider whether: (1) the Legislature intended to require consecutive sentencing for a substantive drug law conviction and a conviction of conspiracy to commit that same drug law offense, where the two convictions arise from a single transaction, and (2) whether defendant's pleas of guilty constitute a waiver of this argument. The Court of Appeals reviewed the "express language" of MCL 333.7401(3); MSA 14.15(7401)(3) to summarily conclude that the sentences could run consecutively, even though based on the same conduct. The case is to be heard with Tucker, below. Case below: unpublished opinion (#164750, 10-20-94).
SENTENCING AND PUNISHMENT -- Consecutive Sentencing
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing
STATUTORY INTERPRETATION
People v Tucker
#103191, 5-24-96
E. Craig Smith for defendant-appellant.
Granting leave to the defendant, the Court limited review to whether the Legislature intended to require consecutive sentencing for a substantive drug law conviction and a conviction of conspiracy to commit that same drug law offense, where the two convictions arise form a single transaction. The issue was not among those addressed by the Court of Appeals panel, which affirmed both convictions and sentences. The case is to be heard with Banks, above. Case below: unpublished opinion (#151725, 4-10-95).
EVIDENCE -- Relevancy
People v Brooks
#100016, 6-5-96
Lyle Marshall, State Appellate Defender Office, for defendant-appellant.
Granting leave to the defendant, the Court agreed to consider "whether exclusion of evidence of cocaine in the bloodstream of the deceased constituted reversible error." The trial court refused to admit evidence that the homicide victim, Kristine Kurtz, had cocaine and cocaine metabolites in her blood, or defendant's testimony that he stole a half pound of cocaine from the home and saw evidence of cocaine dealing while he was there. The Court of Appeals agreed with the ruling that such evidence was irrelevant and inadmissible under MREs 403 and 401. The fact the Kurtz had cocaine in her blood "does not make it more probable or less probable that someone other than defendant shot Kurtz," according to the unanimous panel. Case below: unpublished opinion (#145333, 3-14-96).
ROBBERY, ARMED -- Sufficiency of Evidence
People v James W. Banks
#103593, 6-5-96
Richard Ginsberg, State Appellate Defender Office, for defendant-appellant.
At issue in the case is whether there was sufficient evidence that an assault took place or that a co-defendant possessed an article or object which induced the complainant's belief that he was armed, in this armed robbery prosecution. Rejecting both arguments and sustaining the conviction, the Court of Appeals relied on testimony by the complainant that the co-defendant had his left hand in the slash pocket of his jacket and stated "You are going to be robbed." Although she did not see a weapon, she dumped contents of the cash register on the counter, and saw defendant take it. Defendant admitted being in the store with the other man that night, but testified that he was surprised that man announced a stickup; he claimed that he took his soda pop, rather than money, from the counter. On the assault element, the panel summarily found evidence that the complainant was placed in fear by the co-defendant's actions. On the armed element, the panel did not feel it necessary that a victim demand to see a gun; seeing the co-defendant "mov[e] whatever he had in his pocket around" with his hand was sufficient. Judge Murphy, dissenting, characterized the evidence differently, feeling there was no more than testimony that the co-defendant moved his hand around inside his pocket. He felt that there was no more than a subjective belief that the man had a gun, which was insufficient under People v Saenz, 411 Mich 454 (1982). Case below: unpublished opinion (#168213, 6-20-95).
Michigan Supreme Court Opinions
Opinion summaries written by Patricia Gambill
CONFESSIONS
EVIDENCE -- Hearsay -- Statements against Interest
DUE PROCESS VIOLATION -- Crucial Evidence Withheld
People v Barrera; People v Musall
#98663 and #98683, May 7, 1996
ARTHUR TARNOW for Barrera
SADO - DEBRA G. McGUIRE for Musall
On leave granted to defendants Barrera and Musall, the Supreme Court, reversing the Court of Appeals, reversed jury-tried convictions of felony murder and remanded for retrial. Case below: unpublished (#119344 and #146673, 1-5-94).
The trial court erred reversibly in excluding from evidence at defendants' trial the statement of a separately tried codefendant, Copeland, that he acted alone and spontaneously in stabbing the victim. Justice Cavanagh, joined by Chief Justice Brickley and Justices Levin, Riley and Mallett, reasoned that Copeland's statement was self-incriminating, rather than merely exculpatory of defendants, and was against his penal interest in a real and tangible way when he made it. In order to determine the trustworthiness of a statement for purposes of MRE 804(b)(3), a court must look to the totality of the circumstances, including the statement's contents and the circumstances under which it was made; if the declarant was in custody at the time, the court should also consider whether any relationship existed between the declarant and the exculpated party, whether Miranda warnings had been given, whether the statement was voluntarily made, and whether the statement was given to curry favor with the authorities. Here, Copeland expressly denied that any deals had been made for his statement [he was himself convicted of felony murder on the basis of the statement]. Balancing the due-process right to present exculpatory evidence and the policy behind MRE 804(b)(3), the majority found less corroboration required where the statement against penal interest is crucial to the defense theory than when it is more remote or tangential. On these facts, the exclusion of Copeland's statement was error, and it could not be deemed harmless.
Justice Boyle, dissenting, would find Copeland's statement insufficiently reliable to be admitted under MRE 804(b)(3).
Justice Weaver did not participate.
JUDGE -- Conduct Of
In the Matter of Hocking
#98750, March 22, 1996
JOHN COTE
On review of findings and decision of the Judicial Tenure Commission, the Court, affirming in part and reversing in part, affirmed suspension but shortened its length from 30 days to 3 days.
Justice Boyle, joined by Chief Justice Brickley and Justices Riley, Mallett and Weaver, agreed that the respondent circuit judge engaged in misconduct prejudicial to the administration of justice by instigating a confrontational exchange with an attorney arguing a custody motion before him, challenging her to explain why the motion was not frivolous as he had predetermined that it was, making caustic comments in an abusive tone, and personally attacking counsel. This behavior warranted a three-day suspension. The Commission erred, however, in finding misconduct in several other incidents, including an "inept expression of . . . reasons for finding mitigating circumstances" at a criminal sexual conduct sentencing which was characterized below as sexist and "bizarre," an intemperate exchange with the assistant prosecutor at that sentencing concerning the judge's downward departure from the Guidelines, and an allegedly retaliatory grievance against an attorney who had joined in a request for investigation of the respondent in the wake of this sentencing.
Justice Cavanagh, joined in dissent by Justice Levin, would impose no sanction, finding the custody motion incident merely an isolated episode of rudeness which did not prejudice the administration of justice.
CONFESSIONS -- Corpus Delicti
People v McMahan
#98505, May 21, 1996
JACK KRAIZMAN
On leave granted to the prosecution, the Supreme Court, affirming the Court of Appeals, reversed defendant's jury-tried conviction of second-degree murder. Case below: unpublished (#144657, 12-14-93).
A 4-3 Court upheld the common-law corpus delicti rule in holding that defendant's confession was improperly admitted against him where there was insufficient proof that the victim died by some criminal agency. Justice Mallett, joined by Chief Justice Brickley and Justices Levin and Cavanagh, noted that the underlying purposes of the rule -- precluding conviction of a homicide where none was committed, minimizing the weight attached to a confession, and requiring that a conviction be supported by collateral evidence -- remain viable even in the wake of strengthened procedural safeguards. As the victim's body was never found, no weapon was recovered, and no motive was shown, death by criminal agency was not proven here, and the admission of the confession was reversibly erroneous.
Justice Boyle, joined in dissent by Justices Riley and Weaver, would abolish the corpus delicti rule and would instead permit admission of a confession to prove all elements of the offense if substantial independent evidence tends to establish the confession's trustworthiness. Opper v United States, 348 US 84 (1954).
EVIDENCE -- Rebuttal -- Scope Of
People v Figgures
#98856, May 21, 1996
SADO - LYLE MARSHALL
On leave granted to defendant, the Supreme Court, affirming the Court of Appeals, left intact defendant's jury-tried conviction of breaking and entering an occupied dwelling with intent to commit a felony and plea-based conviction of being a third felony offender. Case below: unpublished (#131600, 2-1-94).
Where defendant testified that he did not commit and would not have committed the charged acts against his ex-wife because they were in the process of reconciling at the time of the offenses, he opened the door to cross-examination concerning a series of harassment complaints and an ex parte indictment filed during this period. Justice Riley, joined by Justices Boyle, Mallett and Weaver, found the rebuttal evidence properly responsive to defendant's testimony and theory and therefore admissible in rebuttal, even if it could have been offered in the case-in-chief. In light of the overwhelming other evidence against defendant, any error in the admission of the rebuttal evidence was at worst harmless.
Justice Cavanagh, joined in dissent by Chief Justice Brickley and Justice Levin, would hold that the rebuttal evidence should have been submitted in the case in chief, and that the error was not harmless here because defendant's credibility was the crux of his defense.
COUNSEL -- Right To
COUNSEL -- Ineffectiveness Of
People v Pubrat
#100563, June 4, 1996
PEGGY K. MADDEN
On leave granted to the prosecution, the Supreme Court, reversing the Court of Appeals, reinstated defendant's convictions by nolo plea of attempted larceny in a building and carrying a concealed weapon and remanded for further proceedings. Case below: 206 Mich App 340 (1994).
A 5-2 Court held that defendant could not collaterally attack his convictions or sentences on the basis that his attorney was suspended from the practice of law at the time of his plea and his sentencing. Chief Justice Brickley, joined by Justices Cavanagh, Boyle, Riley and Weaver, reasoned that an attorney who has been suspended but not permanently separated from the bar is still an attorney, and that representation by a suspended attorney does not, without more, create a reasonable probability that the attorney rendered ineffective assistance. To hold otherwise would burden the courts with verifying that a defendant's attorney is not under suspension, and would provide defendants represented by suspended attorneys with an "appellate parachute." While the majority reinstated the conviction, it did so without prejudice to defendant's potential to seek relief from judgment if he can demonstrate that the representation was ineffective.
Justice Mallett, joined in dissent by Justice Levin, would hold that a defendant who was represented by a suspended attorney is at least entitled to a Ginther hearing, as the suspension calls into question the competency of representation.
PAROLE -- Revocation
SENTENCING AND PUNISHMENT -- Consecutive Terms
Wayne County Prosecutor v Department of
Corrections; People v Young
#101052 and #101387-101389, May 29, 1996
STUART FRIEDMAN and NEAL BUSH for Young
On leave granted to defendants Department of Corrections and Young, the Supreme Court, reversing the Court of Appeals, remanded to the Court of Appeals for further proceedings. Case below: 206 Mich App 144 (1994).
A unanimous Court held that when a parolee commits another crime while on parole, he will be required to serve the minimum on each offense, plus whatever additional time the Parole Board requires him to serve because of the parole violation. Justice Levin, writing for the Court, rejected the Court of Appeals holding -- that a prisoner must first serve the remainder of the maximum term on the paroled offense before beginning to serve his sentence on the new crime -- as based on a strained reading of the statute. The statutory purpose of putting parolees who re-offend on a par with inmates or escapees who commit additional crimes was consistent with the longstanding policy of the Department of Corrections, in which the Legislature had apparently acquiesced.
Justice Boyle concurred in the majority opinion, but also wrote separately to stress that the Court was not deciding the separate issue of whether good-time credit should be forfeited where a parolee returns to prison with a new offense.
INSTRUCTIONS -- Included Offense
MURDER, SECOND-DEGREE -- Included Offense
ASSAULT WITH INTENT TO DO GREAT BODILY HARM -- Included Offense
People v Bailey
#101017, June 18, 1996
JOAN ELLERBUSCH MORGAN
On leave granted to the prosecution, the Court, reversing the Court of Appeals, reinstated defendant's jury-tried conviction of voluntary manslaughter. Case below: 207 Mich App 8 (1994).
Overruling People v Boles, 420 Mich 851 (1984), a 4-3 Court held that the trial court properly refused the defendant's request for instruction on assault with intent to do great bodily harm as an included offense of second-degree murder, where no evidence was presented of any independent intervening cause of death. Justice Boyle, joined by Justices Riley, Mallett and Weaver, distinguished between necessarily included offenses, in which case it is impossible to commit the greater offense without also committing the lesser, and cognate included offenses, which share some but not all elements of the charged offense. Before a cognate offense instruction can be given, the cognate offense must be of the "same class or category" as the charged offense, and there must be evidence which would allow a reasonable jury to convict of the lesser but not the greater offense. Here, assault with intent to do great bodily harm is a cognate offense of second-degree murder; assault with intent to do great bodily harm "by necessary implication" presupposes that the assailant's act did not result in the victim's death. Where defendant admitted striking the victim in the side with a baseball bat, and the cause of death was internal bleeding secondary to blunt force injuries, instruction on a cognate offense such as assault with intent to do great bodily harm invited jury speculation without evidentiary basis as to whether defendant was culpable for the death.
Justice Cavanagh, joined in dissent by Chief Justice Brickley and Justice Levin, would affirm the Court Appeals, finding erroneous the refusal to instruct on assault with intent to do great bodily harm. They felt the error was not harmless where jurors acquitted of the charged offense and convicted on a lesser included offense.
Justice Levin also wrote separately to note that instruction on involuntary manslaughter would have been appropriate here, as there was evidence that defendant was grossly negligent in inflicting injury in excess of that intended, but no evidence that defendant acted on adequate provocation in the heat of passion so as to support conviction of voluntary manslaughter. He reasoned that it was within the province of the jury to convict of assault with intent to commit great bodily harm while acquitting of murder and manslaughter, although defendant had intentionally committed great bodily harm that resulted in death.
APPEALS -- Prosecutorial Appeal
MOTION FOR NEW TRIAL
DOUBLE JEOPARDY -- Multiple Prosecutions -- Following Hung Jury
People v Torres
#102759, June 25, 1996
SADO - RON STEINBERG
On leave granted to the prosecution, and leave to cross-appeal granted to defendant, the Court, affirming in part and reversing in part the Court of Appeals, remanded for further proceedings as to defendant's jury-tried conviction of possession of over 650 grams of cocaine. Case below: 209 Mich App 651 (1995).
Defendant was initially convicted of possession of over 650 grams of cocaine; the trial court then granted a new trial sua sponte. A second trial ended in a hung jury, and the trial court dismissed on double jeopardy grounds before a third trial could be held. A 5-2 Court concluded that the prosecution could raise, in its appeal from the dismissal order, the sua sponte grant of a new trial, as that order was nonfinal and double jeopardy was not implicated. Justice Riley, joined by Chief Justice Brickley and Justices Boyle, Mallett and Weaver, reasoned that MCL 770.12; MSA 28.1109 allows prosecutorial appeal of right from a final order to include issues related to earlier interlocutory orders. Here, the third trial, as a continuation of the second, would not have remedied any abuse of discretion by the trial court in reversing the conviction from the first trial. No double jeopardy violation results from retrial after a conviction is set aside for an error unrelated to sufficiency of the evidence, as here. Because appellate reversal of the new trial order would merely reinstate the conviction from the first trial, no danger of successive prosecutions contrary to the Double Jeopardy Clause is presented.
In a related issue, the trial court erred in dismissing the simple possession charge prior to the third trial on the basis that defendant had been impliedly acquitted of possession with intent to deliver at the first trial, as simple possession and possession with intent to deliver are not the "same offense" for double jeopardy purposes.
Justice Cavanagh, joined by Justice Levin, concurred that the trial court erred in dismissing the simple possession charge on double jeopardy grounds, but dissented as to the scope of the prosecutor's appeal. They found the review of earlier non-final orders outside the scope of the prosecutorial appeal statute and contrary to considerations of sound public policy and judicial economy.
Selected Court of Appeals Opinions
Opinion summaries written by Patricia Gambill.
PERJURY -- Sufficiency of Evidence
People v James Lee Honeyman
#167331, March 12, 1996
MARKMAN, Corrigan, Payant
JAMES BONFIGLIO
Affirmed defendant's jury-tried conviction of perjury and sentence of 5 to 15 years.
While in jail and under suspicion of breaking and entering a restaurant, defendant, seeking "a deal," volunteered information incriminating one Gonzalez in a breaking and entering of an insurance agency. At Gonzalez's preliminary examination, defendant, who was the only prosecution witness, recanted, and charges were dismissed. As defendant's false statement under oath resulted in dismissal of the charges, they were clearly material and affected the outcome of the proceeding. The truth of defendant's statements to police and the falsity of defendant's testimony were supported by evidence that defendant corroborated much of what police already knew about the break-in at the insurance agency, and that defendant mouthed the words, "Don't worry," to Gonzalez while being led into Gonzalez's preliminary exam. Viewed most favorably to the prosecution, the evidence was therefore sufficient both for bindover and for conviction, and defendant's motion for directed verdict was properly denied.
SEARCH AND SEIZURE -- Incident to Arrest
SEARCH AND SEIZURE -- Inventory Search
People v Earl Ray Houstina
#176600, March 26, 1996
TAYLOR, MacKenzie, Talbot
JOSEPH P. KIERPIEC
On appeal of right by prosecution, reversed circuit court order suppressing evidence and dismissing one count of possession with intent to deliver less than 50 grams of cocaine, and remanded for further proceedings.
When defendant appeared in district court to litigate a small claims matter, a court officer learned that there was a bench warrant outstanding for failure to appear for a creditor's examination. Defendant was arraigned on the bench warrant and placed in the court's lockup until he could post bond. A search of defendant's coat to ascertain that no personal belongings were inside revealed six bags of cocaine. On these facts, the circuit court clearly erred in suppressing the cocaine, as the search of the coat was justified as a valid search incident to arrest and as an inventory search pursuant to a reasonable and standardized policy. The court officer, although not a sworn peace officer, could lawfully take defendant into custody on a bench warrant, as the agent of the court.
JUVENILE PROCEEDINGS
TRAFFIC OFFENSES
DEFENSES -- Res Judicata
Kelli M. Welch v District Court
215 Mich App 253 (1996)
PC: Wahls, O'Connell, Smolenski
RICHARD J. ABOOD & THOMAS A. DOYLE for plaintiff
Affirmed summary disposition for defendants.
The district court, and not the Court of Claims nor the probate court, has jurisdiction over civil infractions committed by minors. Where plaintiff failed to timely appeal the finding of responsibility, and instead waited over three years to bring a collateral attack in the Court of Claims, the grant of summary disposition for defendants was not error. The circuit court to which plaintiff resorted after losing in the Court of Claims properly ruled against plaintiff on res judicata grounds.
OUIL
DEFENSES -- Jurisdiction, Lack Of
Javier M. Rodriguez v Secretary of State
215 Mich App 481 (1996)
BANDSTRA, Gribbs, Grathwohl
BRIAN ALBRITTON for plaintiff
On the Secretary of State's appeal of right in #167281 and on leave granted to the Secretary of State in #177969, reversed circuit court order setting aside revocation of petitioner Rodriguez's drivers license.
Under MCL 257.323(6); MSA 9.2023(6), a circuit court reviewing a drivers license revocation has the authority to set aside the revocation, but not to modify it, for example, by granting a restricted license. As none of the six statutory bases for setting aside a revocation was present, the court exceeded its jurisdiction.
SENTENCING AND PUNISHMENT -- Consecutive Terms
PAROLE
STATUTORY INTERPRETATION
People v Cedrick Kraig Tolbert
#182583, April 19, 1996
YOUNG, Hood, Brown
ELIZABETH R. VERNEY
Affirmed consecutive sentence of 6 to 48 months on defendant's plea-based conviction of malicious destruction of property over $100.
Defendant's sentence of 6 to 48 months fell within the guidelines range of zero to nine months, and was therefore presumptively proportionate absent any defense showing to the contrary.
Where defendant was on parole from a prior sentence for breaking and entering at the time he committed this offense, the panel was unpersuaded that MCL 768.7a(2); MSA 28.1030(1)(2) required defendant to first serve out the maximum term on the B&E before beginning this sentence. Although rejecting the contrary interpretation of People v Young, 206 Mich App 144 (1994), lv gtd 448 Mich 929 (1995), as "frank error," the panel found itself bound by Admin Order 1994-4 to follow Young and affirm.
CRIMINAL SEXUAL CONDUCT -- Victim's Prior Sexual Conduct
EVIDENCE -- Rape Shield Law
CONFRONTATION -- Right To
EVIDENCE -- Hearsay
People v Brian James Mooney
#144270, April 23, 1996
MARILYN KELLY, Taylor, Cooper
STUART G. FRIEDMAN
Affirmed defendant's jury-tried convictions of two counts of first-degree criminal sexual conduct and concurrent sentences of 12 to 20 years.
Defendant, who participated with Godfrey and another man in the repeated rape of the victim at a party, was not deprived of a fair trial by the victim's testimony that she was a virgin prior to the assault, nor by the prosecution's references to this fact in argument. The plain language of the rape-shield statute, MCL 750.520j; MSA 28.788(10), does not prohibit a victim from testifying as to her prior sexual conduct. Nor was defendant deprived of his right to confrontation, as defendant's theory of the case was that the victim consented to intercourse, but then fabricated the rape allegations to explain her injuries to her parents. Since the virginity evidence was consistent with defendant's theory, and defendant was not seeking to impeach the victim on the issue of her virginity, he was not entitled to claim on appeal that the evidence denied him a fair trial.
The trial court abused its discretion in admitting Godfrey's false exculpatory statement to his grandmother, explaining the blood on his clothes as that of a party guest who was cut by a broken beer bottle, as it was hearsay without probative force against defendant. However, the error was harmless in light of overwhelming evidence of defendant's guilt.
Taylor, concurring in part and dissenting in part, would hold that defendant waived any error on the rape-shield issue by failing to object or to cross-examine the victim about her virginity, but would hold that the Confrontation Clause requires that a defendant be allowed to cross-examine a victim who testifies on direct that she is a virgin.
CRIMINAL SEXUAL CONDUCT -- Sufficiency of Evidence
STATUTORY INTERPRETATION
PROSECUTOR -- Abuse of Discretion to Prosecute
DEFENSES -- Collateral Estoppel
APPEALS -- Preservation of Issue
SELF-INCRIMINATION -- Violation of the Privilege
DUE PROCESS VIOLATION
CONFESSIONS
In re Andrea Lynn Hildebrant
Ogemaw County DSS v Andrea Lynn Hildebrant
#174245, April 23, 1996
PC: Doctoroff, Michael J. Kelly, Markey
JON R. MACDONALD
Affirmed defendant's jury-tried conviction of third-degree criminal sexual conduct.
The 16-year-old defendant, who had been sexually involved with her adopted brother since she was eleven years old and he was ten, was properly prosecuted for third-degree criminal sexual conduct. The statutory language does not exclude any class of offenders based on age, as the purpose of the statute is to protect minors without regard to the age of the potential perpetrator.
By failing to object in the trial court, defendant waived review of her claim that her brother's guilty plea to gross indecency should have collaterally estopped the filing of charges against her.
No due process violation resulted from preliminary examination testimony by a DSS worker that defendant admitted she had been having intercourse with her brother, as defendant had not objected to the statements below, and as the error was not outcome-determinative.
BREAKING AND ENTERING -- Sufficiency of Evidence
GUILTY PLEA -- Adequacy of Factual Basis
People v Steven Ace Brownfield
#170012, April 26, 1996
CORRIGAN, Bandstra, Crane
SADO - VALERIE NEWMAN
Remanded for further proceedings as to defendant's plea-based conviction of breaking and entering an occupied dwelling.
Defendant went with his two friends, Nutt and Previch, to the home of Nutt's stepfather, where Nutt lived. Nutt, who was allowed to come and go as he pleased and to bring friends over, opened the unlocked back door, and all three went inside and took guns from the house. On these facts, there was insufficient evidence of a breaking to convict defendant of breaking and entering, and remand for vacation of the conviction and further proceedings was ordered.
SEARCH AND SEIZURE -- Incident to Arrest
People v Val Riccardo Fernengel
#180586, April 26, 1996
REILLY, Wahls, O'Connell
SADO - ROLF BERG
Reversed and remanded defendant's jury-tried convictions of carrying a concealed weapon and possession of a firearm by a felon, MCL 750.224f; MSA 28.421(6), and plea-based conviction as fourth felony offender.
Defendant, a restaurant owner, was the subject of an outstanding felony warrant from another state unrelated to the complaint on which police were investigating him. In order to arrest defendant, officers called in a food order to be delivered to the public safety building, which was two blocks from the restaurant. Defendant drove up in the van, parked, and walked toward the building with the food; police arrested him about 20 to 25 feet from the van, and searched the van while defendant was being handcuffed. As defendant had voluntarily left the van and begun walking away before police confronted him, and as the interior of the van was no longer under his "immediate control," Chimel v California, 395 US 752 (1969), the search exceeded the permissible scope of a search incident to arrest, and the pistol seized from the van should have been suppressed.
O'Connell, dissenting, would affirm the convictions, finding the search reasonable under the Fourth Amendment.
HOLMES YOUTHFUL TRAINEE ACT
SENTENCING AND PUNISHMENT
People v Glennie W. Dash Jr.
#177524, April 26, 1996
MCDONALD, Doctoroff, Sullivan
DENNIS R. WALTERREIT
On leave granted to the prosecution, reversed trial court order assigning defendant to trainee status under the Holmes Youthful Trainee Act on bench-tried conviction of larceny from a person and remanded for further proceedings.
As defendant had been convicted by bench trial, rather than by guilty plea, he was not eligible for disposition under the Holmes Youthful Trainee Act, MCL 762.11; MSA 28.583(11), and the trial court erred by sua sponte assigning defendant to trainee status.
OUIL -- Instructions on Elements
INSTRUCTIONS -- Presumptions and Inferences
EVIDENCE -- Breathalyzer
People v Donald Robert Calvin
#178002, April 26, 1996
PC: White, Holbrook, Schaefer
JOHN TALPOS
On delayed leave granted to the prosecutor, reinstated defendant's jury-tried conviction of driving while impaired.
MCL 257.625a(9)(a); MSA 9.2325(1)(9)(a) embodies a permissive or rebuttable presumption that a defendant's ability to drive is not impaired where a blood, breath or urine test indicates a blood-alcohol level of 0.07% or less. Jurors at defendant's district court trial were instructed in accordance with CJI2d 15.5(5) that they may find, from a blood alcohol level of 0.07% or less, that the defendant did not violate the law, "but you are not required to do so." As this instruction was consistent with the legislative intent in the statute, the circuit court erred in reversing the conviction.
OBSTRUCTION OF JUSTICE
People v Lyle Robert Vallance Jr.
#170511, April 26, 1996
BANDSTRA, Corrigan, Crane
JEANNE M. DELORME
Affirmed defendant's jury-tried conviction of obstruction of justice.
Defendant's intimidation of a witness to criminal proceedings against him could properly be prosecuted as obstruction of justice, notwithstanding defendant's claim that the 22 offenses enumerated by Blackstone [4 Blackstone, Commentaries (1890), pp 161-177, cited in People v Thomas, 438 Mich 448, 455 n5 (1991)], which do not include witness intimidation, exhaustively set forth the common-law offense of obstruction of justice.
CHILD SEXUAL ABUSE
PRELIMINARY EXAMINATION -- Insufficient Evidence to Bind Over
STATUTORY INTERPRETATION
WITNESSES -- Privileged Communications
EVIDENCE -- Hearsay
People v Kevin Pitts
#180336 and #180850, April 5, 1996
MARILYN KELLY, Markman, Bucci
CORNELIUS PITTS
On leave granted to both parties, reinstated one count of child sexually abusive activity, MCL 750.145c(2); MSA 28.342a(2), and remanded for further proceedings.
Defendant used a hidden video camera to videotape himself having sex with a 16-year-old girl, then showed the tape to others for entertainment. Defendant was properly charged with child sexually abusive activity based on these facts, notwithstanding his claim that he was not within the class of persons responsible for the girl's welfare. The child sexual abuse statute was intended to address a broader class of potential perpetrators than the Child Protection Law; moreover, even if the two acts were read in pari materia, the Child Protection Law definition of child abuse "encompasses sexual exploitation, regardless of whether it is engaged in or caused by someone responsible for the care of the child."
Defendant's challenge to the bindover as based on hearsay admitted in violation of the teacher-student privilege, MCL 600.2165; MSA 27A.2165, was rejected. Defendant's incriminating statements were made during a conference in the assistant principal's office, at which the victim, another student, a teacher, and the assistant principal were all present; the communications were therefore not confidential, and the victim's testimony about them violated no privilege. As defendant had already stipulated to the existence of the videotape before the victim testified, her testimony would at most have been cumulative, and reversal was not required.
SENTENCING AND PUNISHMENT -- Trial Court's Use of Uncounseled Prior Convictions
RETAIL FRAUD
COUNSEL -- Right To
HABITUAL CRIMINAL PROCEEDINGS -- Validity of Prior Convictions
People v Thomas William Richert
(After Remand)
#155564, April 2, 1996
O'CONNELL, Reilly, Shelton
SADO - KRISTINA DUNNE
Affirmed defendant's plea-based conviction of first-degree retail fraud and sentence of 16 to 24 months.
Defendant's previous uncounseled plea to second-degree retail fraud, for which only a fine was imposed, was properly used as a prior offense to elevate his next retail fraud from second-degree to first-degree. As defendant was not sentenced to imprisonment for the earlier misdemeanor offense, he had no constitutional right to counsel, and the absence of counsel did not invalidate the plea for purposes of enhancement.
DOUBLE JEOPARDY -- Multiple Prosecutions
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SENTENCING AND PUNISHMENT -- Guidelines
ACCESSORY -- Sentencing
People v William J. Spicer
#175690, April 9, 1996
PC: Doctoroff, Hood, Gribbs
SADO - DEBORAH KEENE
Affirmed defendant's plea-based convictions of aiding and abetting armed robbery and uttering and publishing, and concurrent sentences of 10 to 20 years and 5 to 14 years.
Where defendant broke and entered a building in Saginaw County, from which he obtained the checks which he later uttered and published in Bay County, defendant's conviction of breaking and entering in Saginaw County did not preclude the subsequent Bay County prosecution for uttering and publishing under state or federal double jeopardy principles. Absent any evidence that defendant broke into the building specifically to steal and forge the checks, it could not be said that the two offenses were part of a single continuous criminal transaction.
In an issue of apparent first impression, the panel rejected as erroneous the sentencing court's conclusion that the Guidelines did not apply where defendant was being sentenced for aiding and abetting a Guidelines offense. However, as the court scored the Guidelines for the underlying offense and imposed a sentence below the midpoint of the applicable range, stating that its sentence would have been the same even if the Guidelines applied, the sentence was proportionate to offense and offender.
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
APPEALS -- Prosecutorial
SENTENCING AND PUNISHMENT -- Statement of Reasons for Sentence
People v Willie Lee Perry
#176654, April 12, 1996
TAYLOR, Jansen, Smolenski
SADO - SUSAN MEINBERG
On appeal of right by the prosecution, remanded for further proceedings as to sentence of 3 to 20 years on defendant's bench-tried conviction of delivery of 50 to 225 grams of cocaine.
The sentencing court properly considered defendant's work history, lack of a prior criminal record, residence with his mother and stepfather, acceptance at a community college and receipt of a grant to pay for college in determining whether there were substantial and compelling reasons to depart from the statutory presumptive minimum sentence of 10 years. However, the court's additional consideration of the probation officer's subjective judgment that probation would be recommended if the offense were probationable, and of the fact that defendant had sustained a serious leg injury in fleeing from the scene of the offense, did not satisfy the "objective and verifiable" standard of People v Fields, 448 Mich 58 (1995). On remand, the lower court is to consider whether the objective and verifiable factors support a departure, and, if so, the extent of that departure in light of the presumptive proportionality of the 10-year statutory minimum.
Jansen, dissenting, would affirm the sentence as not clearly erroneous.
MURDER, SECOND-DEGREE
OUIL
PROSECUTOR -- Abuse of Discretion in Charging Offense
MOTION FOR DIRECTED VERDICT
People v Richard Allen Baker
#176907, May 17, 1996
NEFF, Smolenski, Johnston
JOSEPH J. FARAH and TERRANCE SHEEHAN
Vacated defendant's jury-tried convictions of two counts of second-degree murder and remanded for further proceedings.
Evidence that defendant drove recklessly while drunk [exceeded speed limit, went through red light] was insufficient to support a finding of malice, and the trial court consequently erred in submitting the charges of second-degree murder to the jury. People v Goecke, ___ Mich App ___ (#177417, 2-27-96). On remand, convictions of involuntary manslaughter are to be entered, and defendant is to be resentenced.
Smolenski, dissenting in part, would find sufficient evidence to support a malice instruction, and would affirm the convictions.
STALKING -- Instructions on Elements
JUDGE -- Disqualification
DOUBLE JEOPARDY -- Multiple Punishments
CONTEMPT
DEFENSES -- Void for Vagueness
COUNSEL -- Right To -- Of One's Own Choosing
COUNSEL -- Substitution
APPEALS -- Harmless Error
People v John Leroy Coones
#166114, May 21, 1996
BANDSTRA, O'Connell, Batzer
SADO - RICHARD GINSBERG
Affirmed and remanded for resentencing on jury-tried convictions of aggravated stalking, malicious destruction of property over $100, entering a dwelling without permission, and entering on the premises of another after being forbidden to do so by the occupant, MCL 750.552; MSA 28.820(1).
Defendant was not entitled to a jury instruction on the "conduct that serves a legitimate purpose" exception to the stalking statute, notwithstanding his claim that his pursuit of his estranged wife was aimed at communicating with her and saving their marriage, where this pursuit was clearly in violation of the terms of his bond on a previous offense and of the restraining order his wife had obtained.
The fact that the trial judge had participated in the show-cause hearing on the temporary restraining order in defendant's divorce case did not require disqualification.
As the Legislature intended to impose multiple punishment for stalking and violating a restraining order, defendant's convictions of contempt and stalking did not violate state or federal double jeopardy clauses.
Defendant's claim that the aggravated stalking statute was impermissibly vague was tersely rejected. People v White, 212 Mich App 298 (1995).
The trial court abused its discretion in removing defense counsel from the case before sentencing without any showing of physical incapacity, gross incompetence or contumacious conduct, and defendant was consequently entitled to resentencing.
O'Connell, concurring, found it unnecessary to determine whether the removal of counsel was subject to harmless-error analysis where defendant had shown actual prejudice.
Batzer, also concurring, would characterize defendant's motion to disqualify the trial court as frivolous, but agreed with O'Connell that it was not necessary to reach the issue of whether harmless-error analysis applied to the removal of counsel.
HABITUAL CRIMINAL PROCEEDINGS -- Validity of Prior Convictions
COUNSEL -- Right To
SENTENCING AND PUNISHMENT -- Trial Court's Consideration of Uncounseled Prior Convictions
People v Bruce Carlton Justice
#170619, May 17, 1996
YOUNG, Fitzgerald, Sawyer
JEFFREY YOUNG
Affirmed defendant's plea-based convictions of first-degree retail fraud and being a second felony offender, and sentence of 18 to 36 months.
A prior uncounseled conviction of larceny under $100, for which defendant was fined but not jailed, could properly be used to enhance the current offense from second-degree to first-degree retail fraud. Nichols v United States, ___ US ___, 114 SCt 1921, 128 LEd2d 745 (1994). The majority found the right to counsel under Const 1963, art 1, §20 no broader than that under the Sixth Amendment.
Fitzgerald, concurring, would find a broader state constitutional right to counsel and would reverse defendant's first-degree retail fraud conviction, if not bound by Admin Order 1996-4 to follow the prior decision in People v Richert, ___ Mich App ___ (#155564, 4-2-96).
SEARCH AND SEIZURE -- Stops
PRELIMINARY EXAM -- Insufficient Evidence to Bind Over
MOTION FOR DIRECTED VERDICT
WITNESSES -- Expert
OUIL
People v Dale Thomas Peebles
#174421, May 17, 1996
PC: Markman, Marilyn Kelly, Bucci
ANGELO A. PLAKAS
Affirmed defendant's jury-tried conviction of operating while impaired and plea-based conviction of violating a license restriction.
Defendant was observed driving slowly in a shopping mall parking lot with headlights off at 3:30 a.m.; police stopped him, performed field sobriety tests, and arrested him. On these facts, police had a basis for reasonable suspicion of either theft or careless driving, and either suspicion would have justified the stop. The fact that one of the officers also believed erroneously that it was a traffic offense to drive without headlights at night did not vitiate the validity of the stop. The trial court did not abuse its discretion in denying defendant's motion to quash the bindover or suppress test results.
A police officer with one year and seven months service, who had had four to five hours of training on field sobriety tests plus additional on-the-job training, was properly qualified as an expert witness to testify about the tests administered here, and defendant's motion in limine was properly denied.
DOUBLE JEOPARDY -- Multiple Punishments
People v Manual Antonio Rivera
#176110, May 17, 1996
PC: O'Connell, Hood, Horn
SADO - CORI YATES
Affirmed defendant's jury-tried convictions of assault with intent to murder, discharging a firearm from a vehicle with intent to commit harm, and two counts of felony firearm.
Conviction of both assault with intent to murder and discharging a firearm from a vehicle with intent to commit harm, MCL 750. 234a; MSA 28.431(1), did not impermissibly punish defendant twice for the same offense. The two statutes protect different social norms, involve different elements and vary substantially in penalty.
EVIDENCE -- Proof of Other Crimes
PROSECUTOR -- Improper Questioning of Witness
EVIDENCE -- Character
EVIDENCE -- Prejudice/Probative Value
COUNSEL -- Ineffectiveness Of -- Failure to Object
People v Abruse Ullah Jr.
#180408, May 17, 1996
TAYLOR, Fitzgerald, Houk
CARL ZIEMBA
Reversed defendant's jury-tried convictions of two counts of first-degree criminal sexual conduct.
Defendant was charged in the beating and sexual assault of the victim, his estranged wife. Reversal was required by the prosecutor's repeated elicitation of references to defendant's previous beatings of the victim, where the prosecutor explicitly offered the evidence to show defendant's character, and where the evidence was more prejudicial than probative.
Finally, defense counsel's failure to object timely to the victim's bad-acts testimony about other beatings was a serious error which prejudiced defendant.
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SENTENCING AND PUNISHMENT -- Guidelines
HABITUAL CRIMINAL PROCEEDINGS -- Sentencing
People v Sheldon Lee Gatewood (On Remand)
#193626, May 14, 1996
PC: Bandstra, Gribbs, Cavanagh
SADO - DEBORAH KEENE
On remand from the Michigan Supreme Court for further consideration [450 Mich 1021 (1996)], the panel acknowledged that the Sentencing Guidelines are not an appropriate consideration in reviewing habitual offender sentences. Limiting its review of defendant's sentence to proportionality as set forth in People v Milbourn, 435 Mich 630 (1990), the panel affirmed the sentence as proportionate and not an abuse of discretion. Prior opinion: 214 Mich App 211 (1995).
PROSECUTOR -- Abuse of Discretion to Prosecute
STATUTORY INTERPRETATION
People v Debra (Parmentier) Herrick
#182634, May 14, 1996
PC: Smolenski, Griffin, Garbrecht
JOHN M. SENGER
On leave granted to defendant, reversed trial court order denying defendant's motion to dissolve the appointment of a special prosecutor pursuant to MCL 49.160; MSA 5.758.
The prosecutor's decision not to prosecute defendant for her alleged role in threatening a defense attorney did not constitute a conflict of interest which would justify appointment of a special prosecutor under MCL 49.160; MSA 5.758, and the trial court's holding to the contrary was clearly erroneous. The court has no broader authority under the statute to appoint a special prosecutor where, as here, a citizen's warrant is filed.
SEARCH AND SEIZURE -- Standing
EVIDENCE -- Alias
GUILTY PLEA -- Specific Performance of Bargain
People v Louise Judith Lombardo
#176431, May 10, 1996
HOOD, O'Connell, Horn
SADO - LYLE MARSHALL
Affirmed trial court order denying defendant's motion to suppress evidence; reversed defendant's conviction by conditional guilty plea of possession with intent to deliver 50 to 225 grams of cocaine and remanded for reinstatement of defendant's original plea-based conviction of possession of 25 to 50 grams of cocaine.
The trial court did not clearly err in holding that defendant had no standing to challenge the search and seizure of a package addressed to an apparently fictitious male name at her mailing address. Where the evidence failed to show that the male name was in fact the alias of the female defendant, and where it was apparent that the use of the alias was part of a criminal scheme, defendant had no reasonable expectation of privacy in the contents of the package.
Defendant originally pled guilty to possession of 25 to 50 grams in return for her cooperation in helping police apprehend three coconspirators; the prosecutor subsequently got this plea agreement set aside on the basis of defendant's undisclosed phone contacts with one of the coconspirators, although this was not a violation of the written plea agreement. Under these circumstances, allowing the prosecutor to withdraw from the plea bargain after defendant had fully performed resulted in an abuse of prosecutorial authority which did not serve the ends of justice. Remand to allow the reinstatement of the original plea bargain and for resentencing was ordered.
POST-CONVICTION PROCEEDINGS -- Expungement
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing
PROBATION
People v Robert A. Cohen
#177290, June 4, 1996
FITZGERALD, Corrigan, Schmucker
ROBIN LERG
On appeal of right by the prosecution, reversed trial court order expunging defendant's plea-based conviction of delivery of 50 to 225 grams of cocaine.
The trial court abused its discretion in expunging a drug conviction for which defendant had been sentenced to lifetime probation, as a life probation sentence may not be reduced except by revocation. MCL 771.2(3); MSA 28.1132(3).
Schmucker, dissenting, would hold that a trial court has authority to expunge a conviction for which life probation was imposed, but would remand in this case to allow the trial court to balance the factors enumerated in the expungement statute, MCL 780.621; MSA 28.1274(101).
COUNSEL -- Of One's Own Choosing
COUNSEL, RIGHT TO
People v James Johnson, Jr.
#163267, March 5, 1996
JANSEN, Murphy, Kaczmarek
DEBRA GUTIERREZ
Reversed and remanded for new trial with a different judge defendant's jury-tried convictions of armed robbery, assault with intent to commit murder and two counts of felony firearm.
In a previous interlocutory appeal it was held that Bay County Circuit Court judge Eugene C. Penzien's required interim investigation orders violated both the constitution and various statutes. People v Johnson, 203 Mich App 579 (1994). In this appeal it was held that Judge Penzien improperly removed court-appointed counsel for refusing to comply with and for challenging the interim investigation orders. A trial court may not remove a defendant's counsel merely over a disagreement regarding the conduct of defense counsel. A trial court may remove counsel on the basis of gross incompetency, physical incapacity, or contumacious conduct. Since the trial judge removed defense counsel because he disagreed with his conduct, the removal was in error.
Because defendant's Sixth Amendment right to counsel was implicated when defense counsel was removed during a critical stage of the proceedings, a harmless error analysis was not applicable and defendant need not show prejudice. A trial court cannot remove court-appointed counsel, over defendant's objection, in circumstances in which retained counsel could not be removed. Whether substitute counsel performed competently was irrelevant as the trial court's improper removal of appointed counsel before trial infected the entire trial mechanism. Because this is an important constitutional issue, defendant's failure to specifically object was of no consequence.
Judge Kaczmarek dissented in part, holding that defendant must show that removal of counsel was harmless error. He would find defendant's ineffectiveness claim lacking in merit and would affirm defendant's conviction and sentence.
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SENTENCING AND PUNISHMENT -- Indeterminate Sentence
PAROLE
EVIDENCE -- Proof of Other Crimes
APPEALS -- Harmless Error
IDENTIFICATION PROCEDURES
WITNESSES -- Expert
INSTRUCTIONS -- Eyewitness Identification
PROSECUTOR -- Improper Questioning of Witness
PROSECUTOR -- Comments
APPEALS -- Failure to Object Below
People v David Allen Carson
#159501, June 4, 1996
TAYLOR, Jansen, Noecker
SADO - AMY NEVILLE
Affirmed defendant's jury-tried convictions of assault with intent to rob armed and assault with intent to do great bodily harm, and plea-based conviction as second felony offender; remanded for resentencing on assault with intent to rob armed.
Where the Guidelines range was 8 to 20 years, defendant's sentence of parolable life imprisonment was disproportionate and required resentencing. The majority found itself bound to follow the holding of People v Lino, 213 Mich App 89 (1995), and People v Love, 214 Mich App 296 (1995), that a parolable life term is more severe as a matter of law than a lengthy indeterminate sentence, but noted that more recent statistics belied the finding that lifers are almost never paroled.
Admission of a prosecution witness's testimony that he recognized defendant because defendant had spoken to him and showed him a prison identification card was error, but harmless in light of the victim's conclusive identification of defendant as her attacker.
The trial court did not abuse its discretion in refusing to appoint at public expense an expert witness on eyewitness identification, as defendant was not prevented from proceeding safely to trial and presenting alibi witnesses, and as defense counsel attacked the victim's identification of defendant in argument. Nor did the trial court err by declining to instruct on the eyewitness identification studies cited in People v Franklin Anderson, 389 Mich 155 (1973), where the instruction given, CJI2d 7.8, presented the principles of Anderson and apprised jurors of appropriate considerations in evaluating eyewitness testimony.
Unspecified questioning and argument by the prosecution were not improper and did not entitle defendant to reversal.
Jansen, writing separately, concurred in affirming defendant's convictions, but would also affirm the parolable life sentence as proportionate in light of defendant's prior assaultive felony conviction, 16 juvenile adjudications, and numerous major misconducts while imprisoned on the previous felony, as well as the facts of the current offense.
Important Note: On June 14, 1996, the Court of Appeals issued an order vacating the panel's decision and convening a special panel pursuant to Administrative Order 1996-4. The panel will resolve the conflict between Carson and People v Lino (After Remand), 213 Mich App 89, 98 (1995).
CONFRONTATION -- Right to
CONSTITUTIONAL RIGHTS
DUE PROCESS VIOLATION
WITNESSES-- Cross-Examination
People v Keith Cunningham
#170163, March 5, 1996
WAHLS, McDonald, Leiber
SADO - RON BRETZ
Reversed and remanded defendant's jury-tried conviction of first-degree criminal sexual conduct.
The trial court abused its discretion when it denied defendant's motion for a mistrial. Defendant's constitutional right to confrontation was violated where the complainant, who was from Thailand, testified at trial through an interpreter who did not translate each question and answer, but instead, had a conversation with the complainant which was not translated for the trier of fact. It is not the role of an interpreter to clarify an unclear or unresponsive answer. A limitation on cross-examination preventing defendant from placing before the jury facts from which to infer bias, prejudice or lack of credibility of a prosecution witness constitutes a denial of confrontation rights.
Where defendant's request to tape record complainant's cross-examination was denied and the burden of demonstrating harmlessness was on the prosecutor because of the constitutional dimension of the error, remand for a new proceeding was required.
EVIDENCE -- Hearsay -- Excited Utterances
People v Kowalak
#187956, February 23, 1996
MARKMAN, Murphy, Hoekstra
MICHAEL MODELSKI
Affirmed interlocutory order denying defendant's motion to quash and to suppress statement, in first-degree murder prosecution.
Defendant's statement that he "was going to kill [his mother] for what [she] did" by testifying against him at a child custody hearing was not hearsay since it was offered against him [MRE 801(d)(2)]. It was admissible as an hearsay exception for excited utterances [MRE 803(2)], where defendant's mother called a friend within forty-five minutes of hearing her son say that he would kill her, and her statement related back to the startling event of the death threat. Further, the mother was elderly (82), and had just finished testifying that her grandchildren should not interact with her son. Considering the circumstances bearing on spontaneity and lack of deliberation, the time elapsed was not too long. Finally, there was sufficient independent circumstantial proof that a startling event took place: defendant's mother testified against him under difficult circumstances, she was upset when she relayed the content of her son's threat, she called her friend over after the hearing, and was upset during the ensuing visit.
GUILTY PLEA -- Sentencing Aspect
GUILTY PLEA -- Withdrawal Of
People v Baker
#181749, February 27, 1996
O'CONNELL, Reilly, Shelton
DORY A. BARON
Affirmed plea-based convictions on two counts of second-degree criminal sexual conduct and concurrent sentences of three to fifteen years.
The trial court was within its rights to take back its initial acceptance of the parties' sentence agreement, where review of the presentence report convinced the court that more time was warranted. Defendant agreed to plead guilty in exchange for a sentence no greater than five years' probation and dismissal of the second count; at sentencing, after reviewing the PSIR, the court said it would not uphold the agreement. After a second plea, he received concurrent terms of three to fifteen years. While a court may accept a plea agreement without reviewing the PSIR, final acceptance must await PSIR consideration. People v Killebrew, 416 Mich 189, 207 (1982). Killebrew's "final acceptance" language, plus that of MCR 302(C), indicate that a court need not be bound by its initial acceptance. MCR 6.310, which requires a defendant's motion or consent to vacation of a plea, was deemed inapplicable.
OUIL/OWI
MURDER, SECOND DEGREE
PROSECUTOR -- Abuse of Discretion in Charging Offense
APPEALS -- Prosecutorial Appeal
PRELIMINARY EXAM -- Insufficient Evidence to Bind Over
People v Goecke
#177417, February 27, 1996
PC: Doctoroff, McDonald, Sullivan
MARK G. BUTLER
Reversed circuit court decision to reinstate second-degree murder charge, on defendant's interlocutory appeal.
The circuit court was without jurisdiction to reinstate second-degree murder charges in this case, where the prosecution failed to appeal the district court's bindover on OUIL causing death and chose instead to move for amendment of the information. Allowing the prosecution to proceed by amendment would circumvent appellate filing requirements and change the standard of review applied by a circuit court, which normally would review a bindover decision for an abuse of discretion. The contrary ruling of People v Clark, 154 Mich App 772 (1986) was repudiated by this panel.
Passing to review of the bindover decision, the panel agreed that OUIL causing death was the appropriate charge under the circumstances. Defendant drove at high speed, ran one red light, and had a BAC of 0.17% after his arrest; standing alone, these facts did not rise to the malice required for a second-degree murder charge. Although the panel found the different malice definitions of People v Aaron, 409 Mich 672 (1980) and People v Dykhouse, 418 Mich 488 (1984) could lead to different results, the panel felt it unnecessary to reach the issue in light of the clear legislative indication that OUIL causing death is the presumptive charge. Enactment of the new offense as a more serious penalty for drunk driving causing death, the Legislature reserved second-degree murder for "extenuating circumstances which indicate malice." This case did not present such circumstances.
JUVENILE PROCEEDINGS -- Waiver
DEFENSES -- Jurisdiction, Lack Of
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
People v Allen David Parrish
#188341, April 2, 1996
PC: Smolenski, Markey, Sullivan
ROBERT S. DOMBROWSKI
Affirmed defendant's conviction by conditional nolo plea of third-degree criminal sexual conduct and sentence of 7 to 15 years.
The 16-year-old defendant was originally charged with first-degree CSC, but pled to third-degree CSC. As first-degree CSC is an enumerated offense under the automatic waiver statute, MCL 600.606; MSA 27A.606, the circuit court acquired jurisdiction to try defendant as an adult, and did not lose jurisdiction when defendant pled to third-degree CSC, which is not enumerated in the statute. People v Dean, 198 Mich App 267 (1993).
On de novo review, the panel rejected defendant's contention that normal due process considerations attending the traditional waiver process do not accompany an automatic waiver under the statute. A juvenile who is automatically waived to circuit court receives the same procedural protections as one who remains within the juvenile system, except that the juvenile court does not conduct the probable-cause hearing in an automatic-waiver case. The same factors must be considered in either case in determining whether to sentence the offender as a juvenile or as an adult, and there is no constitutional right to be treated as a juvenile.
Defendant's sentence of 7 to 15 years, although a departure from the guidelines range of 3 to 6 years, was not disproportionate given defendant's history of inappropriate sexual activity with family members and other women while in residential treatment programs, deliberate discontinuance of his medication shortly before this offense, and slim prospects for rehabilitation, as well as the offense itself, which involved the break-in of a house in the middle of the night and the rape of a young girl at knifepoint.
SEARCH AND SEIZURE -- Probable Cause
SEARCH AND SEIZURE -- Stops
People v Massey
#170352, March 1, 1996
M.J. KELLY, O'Connell, Giddings
KARRI MITCHELL
Reversed denial of defendant's motion to suppress cocaine seized during warrantless search.
Reviewing the trial court's denial of defendant's suppression motion on a clearly erroneous standard, the panel's majority found the warrantless search unjustified by the "very limited" scope of the "plain feel" exception. Defendant was a passenger in a car stopped for speeding, an officer noticed a bulge in his pocket and asked him to step out for a patdown, and the patdown led to the officer's conclusion that the bulge was a soft brown paper bag, rather than a weapon. While the stop was lawful and a Terry-type patdown was justified, the patdown did not make the identity of the lump immediately apparent to the officer, who only identified cocaine upon opening the brown paper bag. When he knew it wasn't a weapon and when he only suspected the bag contained narcotics, the further opening was not constitutional.
Judge O'Connell, dissenting, felt it was "immediately apparent" to the officer that defendant possessed narcotics. He added his disagreement with People v Champion, 205 Mich App 623 (1994), lv grt'd 448 Mich 851 (1995), a case questioning the incriminating nature of a pill bottle in that defendant's groin area, stating that its location lent the incriminating flavor to an otherwise innocuous item.
INSTRUCTIONS -- Duress
FELONY MURDER
EVIDENCE -- Proof of Other Crimes
IMPEACHMENT -- Criminal Acts -- Parole or Probation Status
DOUBLE JEOPARDY -- Multiple Punishments
People v Donald J. Gimotty
#174635, April 9, 1996
PC: Taylor, MacKenzie, Talbot
SADO - P. E. BENNETT
Affirmed defendant's jury-tried convictions of felony murder, fleeing a police officer resulting in serious bodily injury [MCL 750.479a(5); MSA 28.747(1)(5)], conspiracy to commit retail fraud, and felonious driving; vacated jury-tried conviction of first-degree retail fraud and sentence of one to two years.
Defendant drove the getaway car for Billingslea, who shoplifted six dresses from a clothing store; during the high-speed chase which followed, defendant ran a red light and struck another car, injuring the driver and killing her passenger. Notwithstanding defendant's claim that Billingslea slapped him and ordered him to drive, defendant was not entitled to a duress instruction on the felony murder count, as duress is not a defense to homicide. Nor was a duress instruction warranted as to the charge of fleeing a police officer, since defendant had not established that his flight was necessitated by conduct which would cause a reasonable person to fear death or serious bodily harm.
While retail fraud is not specifically enumerated in the felony murder statute, it is a "larceny of any kind" within the ambit of the statute.
The homicide was part of the same continuous transaction as the retail fraud, and defendant could not claim to have reached a place of temporary safety prior to the homicide, where defendant sped out of a shopping mall parking lot onto a heavily traveled suburban road, and was observed doing so by a driver who called police on his car phone and followed defendant until the police chase began. Bindover on felony murder was appropriate under these circumstances.
Where defendant had testified on direct that he fled because Billingslea was threatening him, the prosecutor could properly inquire on cross-examination whether the real reason for his flight was instead that he was on probation. This inquiry did not go to character or criminal propensity, but rather to the reasons for defendant's flight.
Defendant was entitled to vacation of the conviction and sentence for first-degree retail fraud, the predicate felony for the felony murder conviction, under double jeopardy principles.
APPEALS -- Mandamus
PAROLE
EX POST FACTO LAW
Jimmie Lee Riley v Michigan Parole Board
#155257, April 5, 1996
PC: Doctoroff, McDonald, Sullivan
IN PRO PER and JASON S. JULIAN
Affirmed trial court order granting defendant Parole Board's motion for summary disposition on plaintiff's petition for mandamus.
Plaintiff sought mandamus to compel defendant to conduct a parole interview with him, alleging that he had a statutory right to appear before defendant after serving four years of his sentence. As plaintiff could have sent defendant the appropriate parole reminder form to call its attention to the fact that he had not been interviewed, but failed to do so, the trial court correctly found that plaintiff had not exhausted his administrative remedies.
Before 1992 amendments to the "lifer law," parole interviews were statutorily required after 4 years of a sentence and thereafter every 2 years; the amendments changed the frequency to after 10 years and every 5 years thereafter. These amendments did not constitute an ex post facto law increasing plaintiff's punishment, as they were a mere procedural change which did not affect his substantive rights or his eligibility for parole.
SENTENCING AND PUNISHMENT -- Credit for Time Served
People v John Jacob Scott
#185536, April 5, 1996
PC: Doctoroff, Hood, Gribbs
STEVEN C. WICHMANN
Affirmed trial court order denying sentence credit against sentence of one year on plea-based conviction of OUIL, third offense.
The trial court originally deferred sentencing for a year and ordered defendant into a residential substance abuse program; defendant was involuntarily terminated from the program after 135 days. On resentencing, defendant was not entitled to credit against his new sentence for the 135 days spent in the treatment program, as it was not jail time and did not result from inability to post bond. Contra, People v Stange, 91 Mich App 596 (1979).
OUIL
ADMISSIBILITY -- Scientific Evidence
WITNESSES -- Expert
People v Arthur Daniel Berger
#168973, June 14, 1996
PC: McDonald, Wahls, Leiber
JOSEPH MIHELICK
On leave granted to defendant, affirmed defendant's conviction of OUIL, second offense.
In an issue of apparent first impression in Michigan, the panel concluded that the horizontal gaze nystagmus (HGN) field sobriety test is scientific evidence, and that its general acceptance and reliability as a qualitative test for the presence of alcohol have been proven. The prosecution was not required to offer expert testimony to prove the validity of the test, and the trial court did not err by failing to conduct a Davis-Frye hearing. The only foundation required for the admission of HGN test evidence is evidence that the test was properly performed and that the officer administering the test was qualified to perform it. The evidence was properly admitted in this case.
Leiber did not participate.
POST-CONVICTION PROCEEDINGS -- Expungement
CONTROLLED SUBSTANCES, POSSESSION -- Sentencing
PROBATION
STATUTORY INTERPRETATION
PARDON
People v Frank Martin Jones
#179522, June 7, 1996
PC: Hoekstra, Michael J. Kelly, Graves
GERALD CURTIS
Affirmed trial court order denying defendant's motion for expungement of plea-based conviction of possession of 50 to 225 grams of cocaine.
The trial court properly refused to expunge a drug conviction for which defendant had been sentenced to life probation under the Controlled Substances Act, as a life probation sentence can be reduced only where imprisonment is imposed. The statute, MCL 771.2; MSA 28.1099, clearly intended such a result, which also avoids a separation of powers problem (only the Governor can grant a pardon).
FORFEITURE
WEAPONS OFFENSES
STATUTORY INTERPRETATION
MCL 750.239 [Firearms Forfeiture]
People v Michael Joseph Switras
#172637, June 7, 1996
FITZGERALD, White, Thomas
MARILYN J. ZIMMERMAN
On leave granted to defendant, reversed district court order forfeiting firearm as condition of defendant's sentence on jury-tried conviction of careless discharge of a firearm resulting in property damage, MCL 752.862; MSA 28.436(22).
The firearms forfeiture statute, MCL 750.239; MSA 28.436, extends by its terms only to firearms used in violations of Chapter 37 of the Penal Code. A review of the statutory history persuaded the panel that the offense of which defendant was convicted did not fall within the ambit of Chapter 37, and that forfeiture was therefore not authorized.
OUIL -- Sentencing
People v Richard Dean Vezina
#179672, June 11, 1996
PC: Doctoroff, Neff, Fitzgerald
PETER H. SHUMAR
On leave granted to defendant, affirmed conviction by conditional guilty plea of OUIL, second offense, and sentence of 25 days in jail and 18 months probation; reversed trial court order leaving decision whether to revoke defendant's driver's license within discretion of the Secretary of State.
Defendant was arrested and charged with a second OUIL less than seven years after his first OUIL conviction, but did not plead guilty until more than seven years after the first conviction. At the time of defendant's arrest, MCL 257.625(6)(b); MSA 9.2325(6)(b) provided for sentence enhancement where a second violation of the statute occurred within seven years after the first conviction, and the trial court properly enhanced defendant's sentence under this provision. However, as defendant's two convictions were separated by more than seven years, neither the Secretary of State nor the trial court had authority to revoke defendant's license under MCL 257.625b(5)(b)(iii); MSA 9.2325(2)(5)(b)(iii).
FORFEITURE
CONTROLLED SUBSTANCES, DELIVERY
CONTROLLED SUBSTANCES, POSSESSION
People v $234,200 in United States Currency,
et al and Tufnell
#173498, June 21, 1996
PC: Markey, Holbrook, Matuzak
JAMES C. THOMAS
Reversed trial court order granting summary disposition for plaintiff on forfeiture petition against defendant property and remanded for further proceedings.
Claimants, the parents and sole heirs of a deceased suspected cocaine and marijuana dealer who died intestate, had standing to raise an innocent-owner defense at a forfeiture proceeding against property seized from their son's storage locker three days after his death. The trial court erred in ruling that claimants lacked standing as a matter of law; on remand, claimants may raise this defense, and plaintiff must negate it by clear and convincing evidence in order to prevail.
SENTENCING AND PUNISHMENT -- Consecutive Terms
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SPEEDY TRIAL
JUDGE -- Abuse of Discretion
CONTROLLED SUBSTANCES, DELIVERY -- Sufficiency of Evidence
People v Clodoveo Hughes, Jr.
#182957, June 18, 1996
NEFF, Doctoroff, Fitzgerald
JOSEPH L. JERKINS
Affirmed defendant's jury-tried conviction of delivery of less than 50 grams of cocaine as second controlled-substance offender, and sentence of 8 to 40 years.
After defendant was arrested and released on this charge, he was arrested on marijuana charges by federal agents; the federal case came to trial first, and defendant was sentenced to 10 years. Under these circumstances, the Michigan court properly ordered defendant's sentence to run consecutively to the federal sentence. MCL 333.7401(3); MSA 14.15(7401)(3), which provides for certain drug sentences to run consecutively to any sentence imposed for "another felony," extends to federal felonies as well as to Michigan felonies, absent evidence of legislative intent to limit its scope. The Penal Code's definition of "felony," MCL 750.7; MSA 28.197, extends only to the Penal Code, and not to the Controlled Substances Act, which is part of the Public Health Code.
The consecutive-sentencing provision did not implicate the principle of proportionality, as defendant's federal sentence was subject to review under federal law and not state law.
Defendant's claim that the prosecutor manipulated the trial in order to allow the federal court to sentence first, so that the state consecutive-sentencing provision could then be triggered, was unsupported; the state trial was delayed at the behest of defendant's trial counsel, no demand for speedy trial was made, and trial began about nine months after arrest.
The record established that the sentencing court was aware of its discretion, contrary to defendant's contention. The eight-year minimum term did not violate the principle of proportionality in light of the circumstances surrounding the offense and offender.
Finally, defendant was not entitled to reversal of his conviction for insufficient evidence based on claims concerning the credibility of a prosecution witness.
CRIMINAL SEXUAL CONDUCT -- Sufficiency of Evidence
EVIDENCE -- Proof of Other Crimes
WITNESSES -- Improper Expression of Opinion
APPEALS -- Failure to Object Below
People v Pete John Asevedo Jr
#146647, July 2, 1996
PC: Hoekstra, Saad, Latreille
SADO - RALPH SIMPSON
Affirmed defendant's jury-tried convictions of three counts of first-degree criminal sexual conduct.
As personal injury within the ambit of the first-degree criminal sexual conduct statute may be proven under either a mental-anguish theory or a bodily-injury theory, and as defendant did not challenge the sufficiency of the evidence of mental anguish, the panel found it unnecessary to consider his claim that evidence of bodily injury was insufficient to convict. Bodily injury and mental anguish are not alterative theories upon which a jury must make independent findings, or reach unanimity; they are merely different ways to define the single element of personal injury.
Evidence that, over a month before the charged offense, defendant became enraged with a former girlfriend and punched out a window in an effort to assault her was properly admitted to bolster the prosecution's theory that the charged events were not consensual. Defendant's objection to the evidence on relevancy grounds was insufficient, moreover, to preserve for appeal a claim that the evidence was improperly admitted as propensity evidence contrary to MRE 404(b).
Finally, an emergency room nurse's testimony that the victim was not "faking," and that she personally believed the victim had been raped, did not rise to the level of manifest injustice in light of overwhelming evidence of guilt.
GUILTY PLEA -- Specific Performance of Bargain
GUILTY PLEA -- Withdrawal Of
CONFESSIONS
EVIDENCE -- Plea Negotiations
SENTENCING AND PUNISHMENT -- Statement of Reasons for Sentence
People v Jack Lawrence Hannold, Jr.
#162859, July 2, 1996
PC: Neff, Smolenski, Johnston
SADO - CHARI GROVE
Affirmed defendant's jury-tried conviction of possession with intent to deliver 50 to 225 grams of cocaine and sentence of 10 to 20 years.
Defendant pled guilty to a reduced charge in return for testimony against a codefendant pursuant to a sealed plea agreement, but failed to incriminate the codefendant at the preliminary exam; the prosecution moved successfully to withdraw the plea, and defendant was convicted of the originally charged offense at trial. While the terms of the sealed agreement should have been placed on the record, it was clear that the prosecution, defendant, defense counsel and the court were all aware of the terms, and failure to put them on the record was at worst harmless error.
The trial court did not clearly err in setting aside the plea despite defendant's offer to testify if his family received police protection, as the issue was not whether defendant would be willing to testify, but whether he had already refused to testify. As defendant had not lived up to his part of the agreement, he was not entitled to demand specific performance by the prosecution.
Defendant's incriminating statements on the day of his arrest were not inadmissible under MRE 410, as there was no indication that he reasonably expected to negotiate a plea at that time, nor that a prosecuting attorney was present. Counsel's failure to object to admission of these statements was not ineffective, as the objection would have been fruitless.
Finally, the sentencing court did not refuse to consider post-arrest factors in deciding whether substantial and compelling reasons existed to depart from the statutory minimum term of 10 years, but rather found that the post-arrest factors presented did not justify departure. This determination was not an abuse of discretion.
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.
PRISONERS' RIGHTS -- Disciplinary Proceedings
APPEALS -- Appellate Procedures
Tate v Department of Corrections
#170063, 2-6-96
CDRC * (1p)
* Available to attorneys from CDRC
Where the circuit court dismissed the inmate plaintiff's petition for review of a prison disciplinary proceeding, without considering any evidence of record on plaintiff's claim that he had timely prepared his petition for rehearing and delivered it to prison officials, remand for inquiry into whether plaintiff sought rehearing timely was required. Plaintiff may not be required to pay filing fees unless the trial court has first complied with the procedure set forth in Martin v Department of Corrections, 201 Mich App 331 (1993).
COMPETENCY -- To Plead Guilty
PRETRIAL PROCEEDINGS AND MOTIONS -- Continuance or Adjournment
People v Krieger
#186926, 3-29-96
MA 24108 (3pp)
The trial court erred in denying defendant's motion to adjourn sentencing for an evaluation of his competency at the time of his nolo plea to uttering and publishing, after defendant was evaluated in connection with other pending charges and found to be in dire need of institutional psychiatric care. The other evaluation, together with defense counsel's reports of apparently delusional statements by defendant prior to the plea, were more than sufficient to make a minimal showing that defendant may have been incompetent when he entered his plea, and thus to trigger a referral for evaluation and a competency hearing.
FELONY FIREARM -- Sufficiency of Evidence
People v Owens (On Rehearing)
