CRIMINAL DEFENSE NEWSLETTER
Volume 20, Number 2November, 1996
Visit SADO on the Web: http://www.sado.org/
Contents

Jury Instructions: A Judicial Perspective
Criminal Defense Online
New in the Online Brief Bank
MSC Extends Time for Filing Transcripts
Remember to Renew CDN Subscription
Circuit Court Opinion of the Month: Alternative Asset Seizure and Damages
First Amendment Victory for Protesters
Training Events
Attorney Fees
In a Manner of Speaking
Certiorari Denied in the U.S. Supreme Court
Certiorari Granted in the U.S. Supreme Court
Michigan Supreme Court Order
Leave Granted in the Michigan Supreme Court
Selected Court of Appeals Opinions
Unpublished (but persuasive)
Training Calendar
Jury Instructions: A Judicial Perspective

[Editor's Note: this article was part of a presentation made by the Hon. Dennis C. Kolenda at the November conference sponsored by the Criminal Defense Attorneys of Michigan. It appears here with their permission.]

INTRODUCTION

The court's objective at a trial is the truth, ascertained with rules designed to imbue the outcome with integrity and fairness. The attorneys are out to win. Those are not incompatible objectives. The truth is easier to prove than fiction. But neither objective can be expected if the decision maker does not understand the rules which govern the particular proceeding. When the decision maker is a jury, the instructions given by the court become essential to finding the truth and winning. Somebody will prevail, but the outcome will be whimsical [not accurate, or, if factually accurate, not acceptable as fair and honest] unless the jury genuinely knows and understands the applicable law. That can happen only if the instructions are both legally correct and understood by the jury. Achieving the latter is far more difficult and takes far more effort than the former.

THE COURT RULE

RULE 6.414 Conduct of Jury Trial

(Criminal Cases)

(A) - (E) . . .
(F) Instructions to the Jury. Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments. After closing arguments are made or waived the court must instruct the jury as required and appropriate, but with the parties' consent, the court may instruct the jury before the parties make closing arguments. After jury deliberations begin, the court may give additional instructions that are appropriate.

(G) - (H) . . .

TECHNIQUES, STYLE AND CONTENT

Every trial judge and every trial lawyer entertains a personal theory on what is the most important portion of any trial. Since several studies indicate that approximately 75% of all jurors claim that their ultimate verdict was the same as their evaluation based on the opening statement, such statements are prime contenders for the title of "most important." But, in any given case, something else can be determinative. Voir dire can be critical. All of us have seen cases won or lost by an especially good or ineffective closing argument. Obviously, the impression jurors get from witnesses and from counsel can be critical, making the actual presentation of proofs critical.

Another aspect of trial, the instructions, can be especially significant. Unless a jury knows what it is to decide and what it can do with the information given to it, the entire trial process becomes whimsical. Instructions tell jurors what they can do with what they have seen and heard. In addition, the preparation of instructions educates counsel, and one of the most common reasons for reversal is error in instructions. Hence, even if proposed instructions are ignored at the trial level, they can be very useful. They can get a new trial.

A review of the court rules, cases and literature dealing with instructions, as well as experience, uncovers several rules of thumb. The point of these comments is to give one judge's views on how to compose and pose instructions to accomplish as much as possible, i.e., to intelligently instruct a jury, to educate trial counsel, and to have something left for appeal if trial does not go well. Sample criminal instructions will appear in next month's newsletter.

Rule #1

Research and draft proposed jury instructions very early in trial preparation. Most attorneys draft them as the last step in trial preparation. Many do nothing more than write out a list of SJI2d or CJI2d numbers. They should do much more, and they should do it very early. Because instructions tell juries what has to be proven and what is appropriate evidence to prove it, researching them early can reveal to trial counsel what has to be proven and by whom, what has to be defended and by whom, and what is an appropriate way to do either or both. Drafting instructions also helps counsel develop a theme for trial. The more closely trial presentation parallels what will be in the instructions, the more comprehensible is that presentation and the more likely it is that the jury will find that presentation to satisfy what the judge's instructions say must be proven. At a minimum, early preparation avoids the discovery just a few days before trial, when it usually is too late to do anything about it, that counsel has missed some key element, that there is something which must be proven at which no discovery has been directed, and/or that there is some defense available to the opponent for which no response can be crafted quickly.

Rule #2

Review all pattern instructions critically and skeptically. Do not accept them simply because they are the standard. Do your own research and do not hesitate to redraft a form instruction where appropriate. Even if they are not inaccurate, it is useful to redraft standard instructions to fit the particulars of your case. Standard instructions do not accommodate the "personality" of the individual case. The more realistically instructed is a jury, the more likely they are to understand the case and to accurately evaluate the issues. Admittedly, judges will almost surely use the standard instructions, ignoring your substitutes. Nonetheless, draft substitutes. The drafting process will educate you significantly. You may get lucky and have your substitutes used at trial. More likely, and no less significantly, proposing a revised instruction will preserve a point for appeal. People v Joseype Johnson, 407 Mich 196, 216 (1979). Remember, if you have not proposed anything other than the form, you will not be allowed to complain on appeal, even if the form is clearly incorrect. See MCR 2.516(A) and MCR 6.414(F).


It is common wisdom that verbatim use of this State's standard instructions, the SJI2d and CJI2d, is mandatory. Their use is common practice, but not as is required as thought. In People v Petrella, 424 Mich 221, 277 (1985), the Supreme Court tartly "remind[ed] the bench and bar once again that the Michigan Criminal Jury Instructions do not have the official sanction of this Court. Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to insure their accuracy and appropriateness to the case at hand." In that case, the Court concluded that CJI 20:2:11(5) was wrong. Other standard criminal instructions have also been found to be wrong. Whenever you draft a better criminal instruction, feel free to present it and feel free to remind the Court of the admonition in Petrella.

The civil instructions do have the sanction of the Supreme Court, but it is error to conclude that their unvarying use is required. It is not. Pertinent provisions of the Michigan Standard Jury Instructions (SJI2d) "must" be given "if" they are applicable, accurately state the applicable law, and are requested by a party, MCR 2.516(D)(2). In other words, if they do not accurately state the law or if they are inapplicable in the particular case, the SJI need not be given. In addition, the subrule dealing with the SJI2d specifically states that it "does not limit the power of the court to give additional instructions on applicable law not covered by the SJI," MCR 2.516(D)(4). The Court of Appeals has held that "[w]here a standard jury instruction does not adequately cover a particular area, the trial court is obligated to give additional instructions when requested where those instructions properly instruct on the applicable law." Sherrard v Stevens, 176 Mich App 650, 655 (1988).

Furthermore, the "automatic reversal rule" for any departure or deviation from the SJI2d is no longer the law. "No presumption of error arises as a result of a deviation or addition to the Standard Jury Instructions . . ." Jones v Porretta, 428 Mich 132, 146 (1987). Trial verdicts should be set aside for instructional error, including departures from the SJI2d, only if "noncompliance with the rule resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be 'inconsistent with substantial justice.'" Johnson v Corbet, 423 Mich 304, 327 (1985). In short, how juries are to be instructed has been returned to the discretion of the trial courts, giving counsel plenty of opportunity to ask for what they think are appropriate instructions molded to the particular case.

Even if an SJI2d instruction accurately states the law and is applicable, an experienced trial judge, "in the exercise of informed discretion," can conclude that it may confuse the jurors or distract them from the material issues in the case, or prolong the instructions out of proportion to the educational benefit to the jurors, unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to the ability of the jurors to decide the case intelligently, fairly, and impartially, Johnson v Corbet, supra. The conferring of such discretion is an invitation to counsel to massage the SJI2d to fit the particular case. In Jones v Poretta, supra, at 146-147, fn 3, the Court cautioned against reading that opinion and Johnson v Corbet, supra, as encouraging deviations from, or additions to, the SJI2d, but the rejection of any presumption of error does not discourage such modifications. Therefore, citing to trial courts the aforequoted passages from Johnson v Corbet, supra, and Jones v Poretta, supra, justifies the exercise in altering the standard instructions. See also Moody v Pulte Homes, Inc, 423 Mich 150 (1985).

Rule #3

Submit preliminary instructions and press the trial court to use them. Instructions at the end of trial are far less useful than instructions before trial. Many jurors have said so. It does not do much good to tell a jury, days after they have heard some information, that that information is not evidence to be considered by them or is evidence to be considered by them, or to tell them what are the issues to be decided. Not having known that when the evidence and argument were presented, the jury did not receive either with an awareness of their significance. If most cases are decided early, quality preliminary instructions are crucial.

Remind trial judges that they must give properly requested preliminary instructions. One of the civil court rules says that they "shall" be given and that what must be given goes beyond simply the duties of the jury and trial procedure. If properly requested, a trial court must preliminarily instruct a jury as to "the law applicable to the case." MCR 2.516(B)(1). The criminal rule which deals with instructions is silent regarding preliminary instructions, but nothing in it or elsewhere prohibits such instructions, and MCR 6.414(A) gives enough control over trial proceedings to include preliminary instructions. Of particular usefulness is the fact that preliminary instructions do not have to be standard instructions. MCR 2.516(B)(1). In other words, preliminary instructions give counsel their greatest opportunity to mold the instructions to fit the case and to educate the jury.

Rule #4

Unless impossible because of a last-minute development, submit all proposed instructions in writing, hand-written if need be. The court rules require written proposed instructions. MCR 2.516(A)(1) and MCR 6.414(F). While oral requests can be entertained, and the failure to honor an oral request might result in a reversal. Johnson v Corbet, supra, at 316, and People v VanWyck, 72 Mich App 101, 102-103 (1976), 76 Mich App 17 (1977), 402 Mich 266 (1978), 83 Mich App 581 (1978), no lawyer should count on such luck on appeal. Besides, judges are more comfortable with what they can study. The more comfortable a judge is with a proposed instruction, the more likely it will be used.

Whenever you propose something other than a form instruction, cite the court to the source, down to the precise page in the opinion upon which you are relying. If possible, append to proposed instructions the case, etc. which is their source and highlight the passages used in the instruction. An instruction grounded in case law is more likely to be given. A cite-less proposed instruction may be sound, but is not likely to be given by a court because it looks unsupported.

Rule #5

The pertinent rule, the cases and the treatises all say that instructions are to be written in the vernacular, not in the language of appellate decisions. See Aikin v Weakerly, 19 Mich 482, 500-501 (1870); and Austin Mfg Co v Vroman, 35 Mich 310, 330 (1877). See also MCR 2.516(D)(4), which commands that supplemental instructions be "concise, understandable, conversational, and nonargumentative." If the courts would listen to what they write, that would be a good rule to follow. Unfortunately, the best hope of getting different instructions accepted is to model them on published decisions. In that way, you are not asking a court to do anything other than read the law, which is something judges are comfortable doing. Accordingly, draft your instructions around the decisions, although do your best to avoid jargon and legalese. After all, you want the instructions to be used.

Rule #6

Avoid argumentative instructions. A rule, MCR 2.517(D)(4), as well as common sense, says so. When certain points of law favor your opponent, put them in. That way, your instructions have credibility. The law is seldom all one-sided in any case, so judges virtually presume that one-sided instructions are inaccurate.

Rule #7

Relate the applicable law to the facts of your case, remembering to do it in a fair manner. There is good case law, which should be cited to the trial court, saying that instructions should be written that way. Hill v Harbor Steel & Supply Co, 374 Mich 194, 208 (1965); and In re Wood's Estate, 374 Mich 218, 292 (1965). Abstract instructions are difficult for lawyers to understand. They probably make no sense whatsoever to juries. Juries are not being asked to engage in jurisprudential discourses. They are being asked to decide a specific case by applying the law to the particulars of that case. Help them by focusing the law on the case.

Rule #8

When a jury is being given several alternatives, e.g., multiple counts in civil cases, or lesser-included offenses in criminal cases, propose instructions which explicitly compare the alternatives and explain differences. When several complex principles are stated correctly, but without a comparison which spells out the differences between them, the effect of the court's silence on the differences can be to obscure them and to leave the jury at liberty to speculate. Point out to the trial judge that inadequate distinctions can be reversible error. People v Ray, 406 Mich 999 (1979). Always use as your guiding principle that juries are not likely to know what they are not explicitly told. Because jurors are not lawyers, they cannot be expected to deduce anything about the law.

Rule #9

Keep all instructions as simple as possible and as short as possible. Remember that your perspective is much, much different than the jury's. You are schooled in the law. Jurors know nothing about the law, save what they remember from civics class, what they have heard on television, and what they pick up on the street, all of which are probably wrong. Also, you know the case in and out, or should know it that well. Be careful the instructions do not presume things you know, but the jury does not. But, don't be terse to the point of being uninformative. To comprehend, jurors need some repetition, examples, etc.

Keep in mind that you have another, much different perspective, one you probably do not appreciate. You are reading written instructions. That gives them extra meaning. The jury is not reading those instructions. They are hearing them read to them. Oral instructions aurally received do not have the impact of, and are not retained as well as, instructions which can be seen on the printed page, studied and restudied. The eye imprints in the mind what it sees. The ear tends not to do the same thing. Instructions which are legally correct because of the various phrases and nuisances in them may be worthy of publication, and say much about your legal abilities, but will be lost on a jury. After all, the point of jury instructions is to educate the jury so that they decide the case in your favor, not merely to show to everyone that you know what the law is. That law has to be meaningfully conveyed to the jurors, not just put on the record in their presence.

Rule #10

Do not be afraid to tell juries the truth. The appreciate and reward the respect for their intelligence and deal appropriately with the truth. If evidence is admissible for only a limited purpose, tell the jury the legitimate use of the evidence, what it is not to be considered for, and the why of both. If something inappropriate is said or done during a trial, tell the jury to ignore it and why that is the proper thing to do. Contrary to lawyers' popular belief, cautionary instructions work. Juries understand them and work hard to obey such instructions. Juries also recognize efforts to cover-up or misinform them, and their imaginations then run wild. The truth is far easier to deal with than inaccurate speculation.

The timing of cautionary instructions is very important. Studies show that they are most effective when given in anticipation of, i.e., before, something happening, e.g., evidence being accepted for a limited purpose. Immediately afterwards is the next most effective time for a cautionary instruction. The least effective, although not ineffective, time for such an instruction is in the court's final instructions. Therefore, the need for cautionary instructions must be anticipated, and such instructions, like all instructions, should be drafted and submitted in advance, unless such an early submission will prompt opposing counsel to submit what would otherwise not be offered in the belief that it is not properly submissible for any purpose. Even when the truly unexpected happens, draft in longhand, if need be, an instruction and ask for it to be given right away.

Rule #11

Weave into your arguments to the jury as much of the actual language of the instructions to be given by the court as you can. However, do not tell the jury that the judge will instruct them thus and so. Just talk to them in the language which you know the judge will use. That way, in the end, when the jury hears the judge instruct them in your words, your credibility is greatly enhanced. Instead of being reminded by the judge that you knew what he or she was going to say, the jury is being told that you know the law, can be trusted on to fairly tell them, and that the judge is in fact agreeing with you, not you with him or her. With any luck, the jurors' natural reaction will be to accept everything else you said. After all, the judge told them that you were correct and can be trusted.

Rule #12

Be inventive and innovative. Do not feel compelled to do things as they have always been done. Tradition is a brick of the law, but don't be trapped by it. If something different appears useful to your case, try it, or, at least, try to try it. For example, civil jury instructions can be given before final argument, not only afterwards as is common. See MCR 2.516(B)(3). Sometimes, that different order of proceedings makes your final words to the jury all the more persuasive. In criminal cases, the instructions must still come last. MCR 6.414(F). You won't ever get the unusual unless you ask for it. The worst that can happen if you ask for the unusual is being told no. Lawyers ought be able to handle rejection.

Rule #13

Whenever a trial judge does not give an instruction with which you are satisfied and on which subject you have proposed a concrete alternative, object on the record. Submitting a proposed instruction will not preserve your entitlement to complain on appeal that the judge did not use your proposal, unless, after the jury was instructed, but before it began its deliberations, you placed on the record your objection to the fact that the judge did not use your proposal. See MCR 2.516(C); People v Pollick, 448 Mich 376, 387-388 (1995); and People v Hodges, 179 Mich App 629, 632 (1989). Every trial judge must give you an opportunity to then state objections. If the judge does not, remind him or her. Usually they will have just forgotten. If they refuse to listen to you before the jury begins deliberations, at the first convenient point make it known on the record that you asked to be heard and were not allowed to be heard. Remember, demand to be heard. If the judge says no, you have preserved your point. But, if you did not ask, you have nothing to appeal.

Rule #14

If at all possible, have a hard copy of the instructions available to give to the jury. Have a complete set of instructions on a word processor. Make that word processor available to the judge. When, after you have argued as much as you can to get your instructions, take whatever the court says it will give and make a hard copy. You understand the instructions, it you do, because you have had the opportunity to study them, to read them and reread them until you understand them. Unless jurors are given a copy of the instructions, all they know is what they remember having heard, which, almost by definition, will not have been all of the instructions. And, even if they heard all the words spoken by the court and remember everything they heard, jurors cannot possibly have understood it all on the first hearing. Only a hard copy of the instructions will give them what they really need: an understandable and usable version; a statement to which they can refer to study what was said and to answer questions as they come up during deliberations.

The trial court can give the jury a full set of the instructions, either in writing or electronically re-corded. If the court wants to give the jury only a portion of the instructions, counsel for all parties must agree, VanBelkum v Ford, 183 Mich App 272, 274-275 (1989). No one need agree if the court gives an entire set of the instructions, MCR 2.516(B)(5) and 6.414(G).

CONCLUSION

If three quarters of all jurors make up their minds after the opening statements, little else we do during the course of a trial is important. However, if the few who do not make up their minds are the dominant members of the jury, good trial techniques and proper instructions may educate them to agree with you, and they may then influence their colleagues. Furthermore, none of us will ever know when we have one of those cases which will not be decided until the end. That case does require educating the jury on what to do with all of the evidence. Do not leave it up to your opponent or to a judge's law clerk. The former is not going to help you if he or she can avoid it, and the latter is usually too inexperienced to understand the reality of trial. Finally, if all else fails, properly drafted jury instructions may enable you to reverse an adverse verdict, or at least, give you the wherewithal to settle a case.

by Hon. Dennis C. Kolenda
Circuit Judge, Grand Rapids, Michigan
Criminal Defense Online: http://www.sado.org/

SADO Forum Active in First Month

We announced last month the launch of SADO's online forum, a discussion group for criminal defense attorneys. Those who register (certifying that they practice criminal defense) join an e-mail group which shares questions and solutions to problems. An attorney's question about police officers testifying as drug "profile" experts, for example, recently produced a long series of useful responses from other practitioners. Responses often range from citations of case law to tactical suggestions. Forum participants have the option of responding to the forum as a whole, or to the particular attorney who posted the question.

With roughly 200 attorneys in the forum, the first month [October, 1996] saw over 30 substantive questions posted. Each question and response appears automatically in an attorney's e-mailbox; by scanning the subject headings, an attorney may decide which messages to read.

SADO Forum Traffic Captured in Searchable Database

The quality of e-mail traffic in the SADO Forum has been so high that we decided to turn it into its own searchable database. Registered criminal defense attorneys (those who have access to the Forum and Database) will now find the Forum identified as a separate database. After searching for case law on a particular issue, attorneys may also want to check the Forum database to see if it has been discussed by practitioners. Attorneys also may browse the collection, which is organized by subject. By clicking on "Contents" within the database, attorneys can easily identify each message thread, including both the original question and all responses.

Those wishing more information about the forum should check the SADO Web site, http:// www.sado.org/, or call John Powell at (313) 256-9833.
New and Interesting in the Online Brief Bank

Attorneys with online access to the SADO Brief Bank may be interested in the following issues recently filed by SADO attorneys. This is just a sampling of the hundreds of pleadings now available to registered criminal defense attorneys through SADO's Web site, http://www.sado.org/. Attorneys also may use the brief bank at SADO's Detroit office, 3300 Penobscot Building, 645 Griswold, Detroit, during normal business hours.

Judge's Duty to Control Proceedings

Propriety of Interrogation Techniques

Diminished Capacity due to Cocaine Psychosis

Duty to Identify Res Gestae Witnesses

Presentation of Entrapment at Trial
Supreme Court Lengthens Time for Filing Transcripts

The Michigan Supreme Court recently amended an appellate rule on filing of transcripts, providing a sunset date which apparently means that the issue will be revisited next year. MCR 7.210(B) was amended to extend from 56 to 91 days the time within which a court reporter must file a transcript in an interlocutory criminal appeal or custody case. The time starts when the transcript is ordered, and the amendment restores the deadline to its previous status, before rules were amended in 1989. The change is effective for transcripts ordered on or after January 1, 1997, but before November 1, 1997. The Court will reexamine the need for the increase in time for filing, at that later date.
Remember to Renew CDN Subscription

Last month's Criminal Defense Newsletter contained as an insert our annual subscription renewal form, marking the CDN's twentieth year of providing the latest and most comprehensive information to Michigan's criminal defense attorneys. Please remember to return your subscription renewal form now, to ensure uninterrupted service. If your form has disappeared, call Maria at (313) 256-9833 for another.
Circuit Court Opinion of the Month: Alternative Asset Seizure and Damages

The City of Royal Oak's attempt to obtain a civil judgment for damages from an employee's embezzlement activities failed recently, in a case heard by Oakland Circuit Judge David F. Breck. Ruling in Royal Oak v Harris, #95- 506165-CZ, 6-5-96, Judge Breck granted defendant's motion for summary disposition, rejecting each of the Plaintiff City's claims. Defendant, the former deputy treasurer for Royal Oak, pled nolo to six counts of embezzlement over $100 by an agent or trustee. He was ordered in the criminal case to pay $39,025.25 in restitution, pursuant to the Crime Victims Rights Act.

Plaintiff's first count was for "claim and delivery," a civil action to recover possession of "goods or chattels" authorized under MCR 3.105(A)(1). This claim failed because its object was money. According to Powers v Fisher, 279 Mich 442 (1937), intangible or incorporeal property such as money cannot be the object of such claims, primarily because by nature it is easily intermingled with lawfully obtained money.

Plaintiff's claim for treble damages, under MCL 600.2919a; MSA 27A.2919(1), was rejected as violating the constitutional proscription against double jeopardy. The statute authorizes recovery of three times the amount of actual damages by any person damaged as a result of another person's receipt or concealment of embezzled property, when the latter was aware that the property was embezzled. Citing United States v Halper, 490 US 435 (1989), Judge Breck construed the sanction as a "punishment," solely punitive in nature. Since the city's actual damages of nearly $150,000 were about $49,000, the claim for treble damages bore no rational relationship to the goal of making the city whole and was "excessively disproportionate."

Finally, Count III of the complaint failed on jurisdictional grounds. Plaintiff sought forfeiture of the Defendant's rights to any retirement benefits under the Public Employee Retirement Benefits Forfeiture Act, MCL 38.2701; MSA 3.982(1). Defendant was an authorized target of such an action, as the embezzlement was linked to his work as a public employee, but the Act confers on the sentencing judge exclusive jurisdiction over forfeiture. This separate civil action could not give rise to the remedy sought by the City.

Defendant was represented by Patrick T. Barone, of Sylvan Lake. Attorneys may obtain a copy of the opinion by contacting the Criminal Defense Resource Center.
Newspaper Protesters at Commencement Win First Amendment Victory

A group attending the University of Michigan's December, 1995 commencement exercises at Crisler Arena, organized to protest Detroit Free Press Publisher Neal Shine's receipt of an honorary degree, recently won dismissal of misdemeanor charges in Fifteenth District Court. Judge Elizabeth Pollard Hines granted the defendant's motion in People v Booth, et al, ##M9507733-A through M9507733-L, 10-30-96, dismissing charges of disturbing the peace. The decision was based in large part on the judge's review of videotapes prepared by both the police and defendants.

The penal statute, MCL 750.170; MSA 28.367, provides:

Independent of the dispositive argument, Judge Pollard Hines rejected defendants' claims of selective prosecution and violation of equal protection. No evidence of intentional or purposeful discrimination was presented in support, despite a general claim that other protests at graduation ceremonies have not resulted in prosecution.

Taking the issue as a matter of law, the Judge then evaluated the argument that the First Amendment protected the defendants' conduct. She rejected the claim that failure to move against protesters in the past meant that this prosecution was based on the content of the protesters' message, finding the logic questionable and the evidence lacking. Considering Crisler Arena as "public property which the State has opened for use by the public as a place for expressive activity," a middle-ground in the First Amendment spectrum, Judge Pollard Hines then considered whether a compelling state interest justified the prosecution. The defendants' actions were not disruptive enough to rise to the level of disturbing the peace, according to the Judge. Although Public Safety officers identified themselves and attempted several times to quiet the defendants, the entire "disturbance" last only 2 and 1/2 minutes; further, no property was destroyed, no objects were thrown, no obscenities were used, and the audience was loudly clapping as the word "scab" was shouted. The ceremony continued, without pause, as Shine was introduced and made his remarks. Defendants were escorted from the ceremony without incident.

Noting that even Shine himself remarked that protesters were "doing what the Constitution says they can do," Judge Pollard Hines found the restriction on defendants' "speech" to be greater than what was essential to keep the peace. Attorneys may request a copy of the opinion by contacting the Criminal Defense Resource Center.
Training Events

The National Criminal Defense College will present "Advanced Cross-Examination 1996," on December 13-15, 1996, in Atlanta, Georgia. Lectures, demonstrations and workshops will be presented by a nationally-recognized faculty, with emphasis on the "why and how" of this important trial skill. Registration is $475, hotel discounts are available, and enrollment is limited. For more information, contact NCDC at (912) 746-4151.

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

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

The State Bar of Michigan's Criminal Law Section will host its 20th Annual Mid-Winter Ski Conference on February 16-18, 1997, at Shanty Creek Resort in Bellaire, Michigan. In addition to the traditional update on case law and new legislation, the program will include sessions on post-conviction proceedings and Michigan's grand jury procedures. More details will appear here as they become available.

The National Association of Criminal Defense Lawyers (NACDL) will hold its "Sixth Annual Legislative Fly-In" on March 24-25, 1997, in Washington, D.C. More details will appear here as they become available, or contact NACDL at (202) 872-8688.
Attorney Fees: New York Judge Awards
Overhead to Avoid Low Fee Schedule

Perhaps it was the fact that the judge once worked as a legal aid attorney. Whatever his motivation, New York Supreme Court Justice Budd G. Goodman recently chose a complex criminal case as the vehicle to deviate from a statutory attorney fee schedule which he deemed much too low. Ruling in People v Brisman (Nos. 6984/94, 1372/95, 6596/94, 11792/94 and 264/94, 10-9-96), Judge Goodman wrote that "although fiscal considerations should play an important role, they cannot be an overriding concern when the ability of the court to carry out its essential function of the assurance of justice and due process is implicated."

Reporting on the case, the National Law Journal noted that deviations from New York's fee schedule for indigent defense services have been officially dis- couraged since 1994 by New York City Mayor Rudolph Giuliani and Justice Francis T. Murphy, presiding justice of the Appellate Division, 1st Department. This did not stop Judge Goodman from citing the cost of overhead for his decision to award $75 per hour, rather than the statutory $40 per hour, for in-court representation. "Judge: Poverty Lawyers Also Need a Safety Net," National Law Journal, 10-28-96, p.A13. A well-known consultant on the fee issue, Robert Spangenberg, was quoted in the article, noting an increase in successful challenges to statutory fee schedules.

The Spangenberg Group of consultants also provided a sampling of fee schedules for non-capital cases, reproduced here:

StateHourly Rate *Authority for Hourly RateMaximum
Alaska$50 / 60Code$4,000
California$45 / 85Local judgeNo maximum
Idaho$40 / 50Local judgeNo maximum
Illinois$30 / 40Statute$1,250
Mississippi$20 / 30-35Local judgeNo maximum
Nevada$75 / 75Statute$2,500+
New Jersey$15 / 22.50Public DefenderNo maximum
New York$25 /40Statute$1,200
Oklahoma$40 / 60Local judge$3,500
South Carolina$40 / 60Statute$3,500
* Out-of-court/in-court hourly rates
In a Manner of Speaking . . .

Dave Moran spotted this gem in one of his cases. Earth to complaining witness . . . come in, please . . .

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.
Certiorari Denied in the United States Supreme Court

CONFESSIONS
EVIDENCE -- Hearsay -- Statements Against Interest
DUE PROCESS VIOLATION -- Crucial Evidence Withheld

Michigan v Barrera
#96-189, 10-14-96

Denying certiorari to the prosecution, the Court let stand the Michigan Supreme Court's decision in People v Barrera and People v Musall, 450 Mich 261 (1996). The Barrera majority found that the trial court erred reversibly in excluding the statement of a separately-tried codefendant, Copeland, that he acted alone and spontaneously in stabbing the victim. It found the statement to be self-incriminating, as against the codefendant's penal interest when made, and trustworthy under the totality of circumstances. Here, Copeland expressly denied that any deals had been made for his statement. Balancing the due process right to present exculpatory evidence with 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. The defendants' felony murder convictions were reversed, a decision sustained by the most recent appellate action. Case below: 450 Mich 261 (1996).
Certiorari Granted in the United States Supreme Court

RETROACTIVITY
HABEAS CORPUS

Lambrix v Singletary
#96-5658, 11-1-96
60 CrL 3065

At issue in the case is whether the doctrine of Teague v Lane, 489 US 288 (1989), bars relief based upon Espinosa v Florida, 505 US 1079 (1992), in habeas corpus proceedings. The lower court applied Teague to rule that Espinosa could not be retroactively applied to overturn a conviction which became final before Espinosa was announced, where that case announced a new rule. Espinosa held that a sentencing judge's proper reweighing of aggravating factors is insufficient to cure constitutional defects in a sentencing jury's consideration of those factors. Case below: 72 F3d 878 (CA 11, 1995).
CONSTITUTIONAL RIGHTS -- Separation of Powers
CONSTITUTIONAL RIGHTS -- Miscellaneous
RELIGIOUS FREEDOM RESTORATION ACT

Boerne, Texas v Flores
#95-2074, 10-14-96

The Court agreed to review a broad range of constitutional challenges to the Religious Freedom Restoration Act, which forbids substantial governmental burden on the exercise of religion unless it furthers a compelling governmental interest by the least restrictive means. The challenges include; (1) whether fundamental principles of federalism are violated by "commandeering" state and local governments to be agents for federal policy, (2) whether the separation of powers doctrine is violated by congressional overruling of Supreme Court precedent on the scope of the First Amendment's free exercise clause, (3) whether Congress violated the First Amendment free exercise clause by exclusively privileging religion over other expressions of conscience, and (4) whether Katzenbach v Morgan, 384 US 641 (1966) should be overruled in part. Case below: 73 F3d 1352 (CA5, 1996).
Michigan Supreme Court Order

CONTROLLED SUBSTANCES, DELIVERY -- Included Offense
CONTROLLED SUBSTANCES, POSSESSION -- Included Offense
INSTRUCTIONS -- Included Offense
CONSTITUTIONAL RIGHTS -- Separation of Powers

People v Binder
#105477, 10-25-96

Responding to the prosecution's application for leave, the Court's majority decided to:

The Court of Appeals panel's majority (Judge Reilly dissenting) determined that the Michigan Legislature could not encroach on judicial powers by prohibiting instruction on or conviction of lesser included drug offenses which are not "major controlled substance offenses," the limitation contained in the statute. The new order adopts the Reilly dissent, which effectively found the challenge moot. [Editor's note: as the new Supreme Court order did not resolve the question on the merits, it remains possible to litigate the question of the statute's constitutionality.] Case below: 215 Mich App 30 (1996).
Leave Granted in the Michigan Supreme Court

IMPEACHMENT -- Criminal Acts -- Use of Prior Convictions
EVIDENCE -- Proof of Other Crimes

People v Douglas L. Crawford
#104696, 10-25-96

Appellate counsel not yet appointed; leave granted on pro per application.

Granting leave to the defendant, the Court agreed to consider "whether the trial court erred by admitting evidence of the defendant's prior offense and conviction." The Court of Appeals summarily dealt with the issue, citing People v Vandervliet, 444 Mich 52 (1993), and affirming the trial court's decision to admit prior convictions involving cocaine delivery "where defendant's intent to deliver cocaine in the instant case was an issue." Case below: unpublished opinion (#165956, 10-10-95).
WEAPONS, CONCEALED -- Sufficiency of Evidence
EVIDENCE -- Circumstantial

People v Anthony Valentin
#103763, 10-30-96

Richard Ginsberg, State Appellate Defender Office, for defendant-appellant.

Leave was granted on the issue of "whether the trial judge erred by denying the motion for directed verdict on the charge of carrying a dangerous weapon in a motor vehicle." Responding to a request for help from a local bar, a police officer found the manager outside the building. The manager pointed out the defendant in the parking lot, and indicated that he had a gun. As the officer asked defendant to stop, he continued to walk toward a parked car; he opened its driver's door, leaned inside, withdrew, and moved away from the car. Officers approached, found a passenger in the front seat, heavily asleep, and ordered this man out. Inspecting the car, they found a gun in plain view on the floor, by the driver's seat. The Court of Appeals affirmed defendant's CCW conviction, drawing several inferences from the facts; namely, that defendant sought to dispose of the gun by putting it in a car under his control, before responding to police, and also that he was the driver of the car, since the passenger was asleep. These inferences, plus being in close proximity to the car immediately before the gun was found, were deemed sufficient to establish that defendant knew the gun was in the car, was the car's driver, and was the party carrying the gun. Case below: unpublished opinion (#164932, 6-20-95).
EVIDENCE -- Hearsay
IMPEACHMENT -- Criminal Acts

People v Robert Wesley Kilbourn
#106190, 10-30-96

James Bonfiglio for defendant-appellee.

Granting the prosecution's application for leave, the Court will review the propriety of the trial prosecutor's questioning of a detective about statements made by the defendant's father, where those statements implicated defendant as the person who had shot into the victims' house. The Court of Appeals reversed defendant's two convictions for assault with intent to do great bodily harm, finding the statements to amount to inadmissible hearsay under People v Stanaway, 446 Mich 643 (1994). The statements did not become admissible for impeachment purposes "merely because the prosecutor had previously elicited a denial of the purported statement by [the father]." Further, in light of less than overwhelming evidence and the prejudicial impact of the testimony, the error could not be considered harmless. Case below: unpublished opinion (#155397, 9-22-95).
MOTION FOR NEW TRIAL -- Great Weight of Evidence
APPEALS -- Standard of Review

People v Lemmon
#105850, 11-6-96

Counsel for defendant-appellee not yet appointed.

Responding to the Wayne County Prosecutor's application, the Court agreed to review whether the trial court erred in setting aside the jury-tried criminal sexual conduct convictions, where it doubted the credibility of the young complainants and their mother. The issue was framed as whether a trial court may sit as the "thirteenth juror," and what standard should be applied to decisions for new trial based on witness credibility. This case was characterized as a pure credibility contest, where the defendant denied any misconduct, and the trial court cited the admitted lies by the children about such things as doing homework, as well as their demeanor as witnesses. The prosecution is requesting that People v Herbert, 444 Mich 466, 477 (1993) be overruled or at least modified, reading that case as granting "unfettered discretion" for the trial court to disagree with the jury's conclusion. The preferable standard, according to the application, is a federal one: to grant a new trial, the court must find that the prosecution witnesses' testimony was "either physically impossible or so inherently implausible that it could not be believed by a reasonable juror." The prosecutor also argued that the statutory right of the prosecution to insist on a jury trial is compromised by the decision to grant a new trial. Case below: unpublished orders (#189329, 1-31-96 and 3-12-96).
GUILTY PLEAS -- Specific Performance of Bargain
GUILTY PLEAS -- Refusal to Accept
JUDGE -- Duty to Control Proceedings
JURY -- Prejudicial Publicity
SENTENCING AND PUNISHMENT -- Presentence Report

People v Austin
#103521, 11-13-96

Valerie Newman, State Appellate Defender Office, for defendant-appellant.

Granting leave to the defendant, the Court limited review to "the questions whether the trial court abused its discretion in refusing to accept the defendant's guilty plea which was part of a plea bargain agreement; whether the trial court should have granted the defendant's motion for mistrial on the ground of juror misconduct; and whether this case should be remanded to the trial court for correction of the presentence report." This case is to be argued and submitted with People v Grove, lv grt'd ___ Mich ___ (#103004, 5-29-96). The Court of Appeals determined that MCR 6.301(A) gave the trial court the authority to reject the plea agreement reached by the parties on the day before trial, almost a month after the deadline for pleas set in the court's scheduling order; the rules were read to allow a court to control its docket in the interests of reducing delay and expense. Chief Judge Doctoroff dissented on this issue, and would find that there is no authority to reject the plea unless it lacks voluntariness or accuracy. On the second issue, the panel found no prejudice shown where a juror admitted that he inadvertently became aware of a newspaper article, though he did not read it firsthand, and he did not communicate its contents to other jurors. On the last issue, the panel would not order resentencing where the trial court specifically stated that the challenged information was not considered in imposing sentence. Case below: 209 Mich App 564 (1995).
Selected Court of Appeals Opinions

Opinion summaries written by Patricia Gambill.

APPEALS -- Standard of Review
PROSECUTOR -- Abuse of Discretion in Charging Offense
CONSTITUTIONAL RIGHTS -- Separation of Powers
PERJURY

People v Edward Barksdale, Jr.
#187328, October 15, 1996
PC: Sawyer, Bandstra, O'Connell
MARK J. KRIGER

On leave granted to the prosecution, reversed district court order granting evidentiary hearing in prosecution of defendant for perjury other than during a court proceeding, MCL 750.423; MSA 28.665.

The prosecutor's discretionary decision to charge defendant, a police officer who made false statements in an affidavit for a search warrant, with the felony of perjury rather than the misdemeanor of unlawfully procuring a search warrant, MCL 780.658; MSA 28.1259(8), was not reviewable for abuse of discretion, but only for whether it was unconstitutional, illegal or ultra vires. Absent any indication that these limits had been violated, the prosecution must be allowed to proceed on the original felony charge.
CONFRONTATION -- Right To
WITNESSES -- Cross-Examination
JURY -- Selection -- Challenge to the Array
WITNESSES -- Expert
APPEALS -- Failure to Object Below

People v Michael James Burton
#165893, October 8, 1996
PC: Neff, Saad, Markey
MARTIN J. BERES

Affirmed defendant's jury-tried convictions of one count of assault with intent to murder, two counts of first- degree criminal sexual conduct, and one count of breaking and entering an occupied dwelling with intent to commit a felony.

Defendant's Sixth Amendment right of confrontation was not violated, on the facts of this "extreme" case, by the trial court's decision to allow part of the victim's testimony to take place by closed-circuit television outside the presence of the defendant and the jury. The victim, who had sustained severe closed-head injuries in the assault, experienced difficulties in the courtroom shortly after she began testifying to background facts. At a subsequent evidentiary hearing, the victim testified that she was specifically frightened by the presence of the defendant, and an expert in rehabilitation from traumatic brain injury testified that the victim was the emotional equivalent of a five-year-old, was suffering from severe stress partly due to defendant's presence, and would likely be unable to complete her testimony and be at risk of permanent emotional damage if special provisions were not made. The court erred in basing its ruling in part on MCL 600.2163a; MSA 27A.2163(1), absent any indication that the victim suffered from a developmental disability as defined in the statute. However, defendant's confrontation rights were protected as fully as possible under the circumstances; if the victim became unavailable due to her trauma and her preliminary exam testimony were read in instead, defendant would have also lost the ability to re-cross-examine the victim. The trial court properly considered whether use of the procedure was necessary to protect the witness's welfare, whether the witness would be traumatized by the defendant's presence specifically rather than by the courtroom generally, and whether the victim's emotional distress would be more than de minimis.

Defendant's claim that the jury array failed to contain a representative cross-section of the community was unpreserved for review. People v Hubbard (After Remand), 217 Mich App 459 (1996).

The trial court did not abuse its discretion in qualifying as an expert a social worker with an M.S.W. which included classes in medical social work, nine years of counseling experience, and five months experience rehabilitating 18 brain-injured clients. Defendant's failure to object below waived review of his claim that the social worker's testimony was irrelevant and overly prejudicial.
CRIMINAL SEXUAL CONDUCT
ACCESSORY
CHILD SEXUALLY ABUSIVE ACTIVITY
DOUBLE JEOPARDY -- Multiple Prosecutions
CRIMINAL SEXUAL CONDUCT -- Included Offense
GROSS INDECENCY -- Included Offense
EVIDENCE -- Videotapes
EVIDENCE -- Necessity of Laying Foundation
PRETRIAL MOTIONS AND PROCEDURE -- Change of Venue
JURY -- Right To -- Waiver Of
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring

People v Christopher Michael Hack
#171030, October 8, 1996
SAWYER, Neff, Gotham
FRANK D. EAMAN

Affirmed defendant's jury-tried convictions of four counts of first-degree criminal sexual conduct and two counts of child sexually abusive activity, and concurrent sentences of 18 to 30 years and 7 to 20 years respectively.

Defendant, a 17-year-old, forced a three-year-old girl to perform fellatio on a one-year-old boy and, together with others, videotaped the acts. On these facts, defendant was properly convicted as a principal, rather than an aider and abettor, for using one child as the instrumentality to commit a sexual penetration of the other. Defendant's argument that the children were not criminally culpable, and that he therefore could not have aided and abetted a crime, was rejected as inapposite.

As intent to produce or distribute material commercially is not an element of child sexually abusive activity, undisputed evidence that the children were videotaped as they performed sexual acts was sufficient to establish guilt.

Two convictions for child sexually abusive activity based on a single videotape did not violate defendant's double jeopardy rights. As the statute criminalizes inducing "a child" to engage in specified acts, defendant was properly charged here with two counts, one for each child.

Defendant was not entitled to an instruction on gross indecency as an included offense of first-degree CSC, as the two statutes protect different societal interests and have no inherent relationship to each other. A requested instruction on second-degree CSC was also properly denied, as there was no evidence of a sexual contact for a sexual purpose.

Defendant's videotape of the victims was properly authenticated under MRE 901, where two witnesses who were present on the date of the offense identified the video and its contents from their own personal knowledge, and its admission was not barred by any other rule of evidence.

No violation of defendant's due process rights resulted from an alleged ambiguity as to whether one or two instances of child sexually abusive activity occurred, as the two convictions arose from the number of victims, rather than from the number of acts.

The trial court did not abuse its discretion in denying defendant's motion for change of venue due to pretrial publicity, where all of the jurors who acknowledged having seen the publicity also stated that they could hear the case impartially based on the evidence, and where defense counsel expressed satisfaction with the panel.

Absent any indication of jury bias, the trial court did not err in refusing to grant defendant's request for a bench trial over the prosecutor's objection.

Finally, Offense Variable 5 was properly scored at 15 points where the victims were moved to a different area of the house, away from the girl's mother, before the offense. Evidence of defendant's conduct and comments on the videotape, together with testimony that defendant brought the children into the bedroom, forced the girl's head between the boy's legs, encouraged the children and called the others into the room before the second incident amply supported the scoring of Offense Variable 9 to indicate that defendant was a leader in a multiple-offender situation. The scoring of OV 2 and OV 13, which defendant also challenged, was not addressed, as defendant was in any event in the highest offense severity level.

Neff, dissenting in part, would reverse defendant's convictions of first-degree CSC as an aider and abettor, as the children could not commit the offense as principals because of their ages.

Gotham, concurring, found no requirement that a principal must supply the mens rea for an offense, and would not require it here, where defendant not only procured the act but supplied the necessary mens rea.
PERJURY -- Sufficiency of Evidence
SELF-INCRIMINATION -- Violation of the Privilege
EVIDENCE -- Prior Testimony
APPEALS -- Law of the Case

People v Andrew Kozyra
#172275, October 11, 1996
CORRIGAN, MacKenzie, Clulo
SADO - DAVE MORAN

Affirmed defendant's jury-tried conviction of perjury.

Defendant's conviction was supported by sufficient evidence as to the materiality of the false statement made under oath, where defendant had signed a forged will as a witness and later testified that he had signed it before the testator's death, rather than after. As this could have materially affected the outcome of an investigation by the Attorney General into the will's validity, the trial court correctly denied defendant's motion for directed verdict.

The Court of Appeals' earlier holding, that defendant had waived any Fifth Amendment privilege claim as to the introduction at his criminal trial of his deposition testimony from the probate proceeding, was the law of the case. Defendant's only avenue to challenge this was by appeal to the Supreme Court, rather than relitigation in the Court of Appeals.
CRIMINAL SEXUAL CONDUCT -- Sufficiency of Evidence

People v John Michael Regts
#180058, October 8, 1996
SAWYER, Griffin, Harrison
TERESA A. CHAPMAN

Affirmed defendant's convictions by conditional nolo plea of fourth-degree criminal sexual conduct and attempted fourth-degree criminal sexual conduct.

Where defendant, a clinical psychologist, manipulated therapy sessions to establish a relationship which subjugated the victim into submitting to his sexual advances, the evidence of coercion was sufficient to support conviction, and the circuit court properly reinstated charges on a coercion theory.

Although not a medical doctor, defendant was properly charged with CSC under a theory of improper or unethical medical treatment, as psychotherapy falls within the Public Health Code's definition of the "practice of medicine," and as a restrictive view of medical treatment would frustrate the statutory purpose.
ARREST -- Probable Cause
SEARCH AND SEIZURE -- Incident to Arrest
DEFENDANT -- Right to Testify in Own Behalf
APPEALS -- Harmless Error

People v Deris Delinore Solomon
#181158, October 15, 1996
DOCTOROFF, Hood, Bandstra
SADO - DAVE MORAN

Affirmed defendant's jury-tried conviction of unarmed robbery.

Defendant was apprehended by store security personnel while fleeing on foot from the scene of the robbery; the police who responded obtained a description from the victim and spoke to eyewitnesses before arresting and searching defendant. On this basis, the trial court did not err in finding probable cause to arrest and in admitting the victim's keys, which were found on defendant's person during a search incident to arrest.

The trial court erred in denying defendant's request to testify, after both sides had rested but before closing arguments, where no undue disruption, surprise or prejudice would have resulted. However, the error was harmless here, as defendant's testimony could not have changed the result in light of overwhelming eyewitness evidence.
EVIDENCE -- Relevancy
EVIDENCE -- Proof of Other Crimes
EVIDENCE -- Prejudice/Probative Value
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
STATUTORY INTERPRETATION

People v Corey Danisher Harris
#159887, September 27, 1996
NEFF, Fitzgerald, Nelson
EILEEN KAVANAGH

Affirmed and remanded for resentencing on defendant's jury-tried convictions of assault with intent to murder and felony firearm.

The trial court did not abuse its discretion in admitting evidence that defendant was carrying an unregistered gun with an obliterated serial number when he shot the victim, where the prosecution contended that the victim, a police officer, was shot because defendant was afraid of being caught carrying an illegal weapon. Whether or not defendant knew the victim was a police officer was a question of fact for the jury.

Resentencing was required, however, where four of defendant's five prior juvenile offenses were scored as high- severity adjudications under Prior Record Variable 3, rather than as probation violations as required by MCR 5.944(A). However, a sentencing court is free to determine that such probation violations might justify upward departure from the Guidelines range. Although defendant's sentence remained within the Guidelines range under the corrected scoring of PRV 3, remand was reluctantly ordered to allow the trial court to decide whether it would have imposed the same sentence in light of the correction.
DOUBLE JEOPARDY -- Multiple Punishments
HABITUAL CRIMINAL PROCEEDINGS
PROSECUTOR -- Abuse of Discretion in Charging Offense

People v William Eugene Phillips
#179105, September 27, 1996
McDONALD, Markey, Talbot
DOUGLAS BAKER

Affirmed defendant's jury-tried conviction of being a felon in possession of a firearm and plea-based conviction as third felony offender.

Defendant was not subjected to impermissible multiple punishments by the use of the same prior felony convictions to prove the felon in possession charge and to enhance his sentence under the Habitual Offender Act, as the legislature had not seen fit to prohibit the mutual use of a prior conviction. Nor did the prosecutor abuse charging discretion by filing a supplemental information on the felon in possession count, even though this allowed for sentencing exposure beyond the five-year statutory maximum.
SEARCH WARRANT -- Sufficiency of Underlying Affidavit
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing
HABITUAL CRIMINAL PROCEEDINGS -- Sentencing
STATUTORY INTERPRETATION

People v Terry Lamont Poole
#169867 and #169987, September 17, 1996
TAYLOR, Holbrook, Nykamp
SADO - RICHARD GINSBERG

Affirmed defendant's jury-tried convictions of delivery of 50 to 225 grams of cocaine and possession with intent to deliver 50 to 225 grams of cocaine, and consecutive sentences of 13 to 20 years and nonparolable life.

The magistrate properly found probable cause to connect defendant to the address to be searched, where the search warrant affidavit recited that a resident of defendant's former address had told an informant where defendant had moved, that defendant's old jail records gave the new address as one where a relative could be contacted, and that a named informant had stated that he was at "Terry's place" on the street in question in the course of a statement against his own penal interest.

Defendant delivered cocaine to a police officer eight days before the search revealed the cocaine which he was charged with possessing with intent to deliver. At separate trials almost a year later, defendant was convicted of both counts, and subsequently sentenced to nonparolable life on the possession offense as a second drug offender under MCL 333.7413(1); MSA 14.15(7413)(1). Under the statutory provision at issue, repeat drug offender sentencing was proper, as defendant was "convicted previously" of the delivery offense and was "thereafter convicted" of the possession, even though the second offense was committed before the first conviction. Precedent involving repeat felony firearm convictions, on which defendant relied, was distinguishable as arising under the Penal Code, to which the rule of lenity applies, rather than the Public Health Code, which is to be liberally construed. Any remedy for the apparent harshness of this penalty is within the province of the Legislature, rather than the courts.

Holbrook, dissenting in part, would find the second drug offender sentencing provision inapplicable here, and would remand for resentencing.
OUIL/OWI
APPEALS -- Standard of Review -- Clear Error
DUE PROCESS VIOLATION
MCL 257.625a(6)(d) [Chemical Blood Alcohol Test]
EVIDENCE -- Blood Samples

People v John Walter Prelesnik
#179370, September 27, 1996
MARILYN KELLY, Saad, Matuzak
BERNARD F. FINN

On leave granted to the defendant, reversed circuit court order reinstating one count of OUIL and remanded for further proceedings.

The decision of the circuit court that defendant had been afforded a reasonable opportunity to obtain a chemical test after his arrest for OUIL, and that his request over 2½ hours after his arrest was properly denied as untimely, was reviewable for clear error under MCR 2.613(C).

Arizona v Youngblood, 488 US 51 (1988), on which the district court relied in dismissing the charges, was inapposite, as the issue here was not the due-process implications of police failure to preserve potentially useful evidence, but rather defendant's statutory right to an independent chemical test under MCL 257.625(a)(6)(d); MSA 9.2325(1)(6)(d). The majority observed that:

Saad, dissenting, would hold the delay unreasonable and would affirm the circuit court's reinstatement of the charges.
DOUBLE JEOPARDY -- Multiple Prosecutions -- Following Hung Jury
DUE PROCESS VIOLATION
SEPARATION OF POWERS
PROSECUTOR -- Abuse of Discretion to Prosecute

People v James Sierb
#179269, September 27, 1996
CAVANAGH, Hood, McDonald
DUNCAN M. SZYMANSKI

On appeal of right by the prosecution, affirmed trial court order dismissing one count of burning real property and one count of burning insured property.

The trial court did not abuse its discretion in concluding that fundamental fairness required dismissal of the charges with prejudice after two trials ended in hung juries. While no specific number of mistrials due to jury deadlock will compel dismissal in all cases, the appropriate case-by-case analysis will consider such factors as the severity of the charges; the number of prior mistrials and the circumstances of jury deliberation, to the extent known; the length and complexity of prior trials and the similarity of the evidence presented; the likelihood of any substantial difference in a subsequent trial, if permitted; the court's own evaluation of the relative strength of the parties' cases; and the diligence and professional conduct of both counsel, especially the prosecutor. On these facts, the public's interest in retrial did not outweigh defendant's right to fundamental fairness, and dismissal on due process grounds did not violate the constitutional separation of powers.

McDonald, dissenting in part, would not find a third trial barred here, especially in light of the jury poll results (8-4 to convict at first trial and 6-6 at second).
EVIDENCE -- Proof of Other Crimes
EVIDENCE -- Prior Testimony
EVIDENCE -- Relevancy
EVIDENCE -- Prejudice/Probative Value
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
DOUBLE JEOPARDY -- Multiple Punishment

People v Terrance Lamont Gibson
#187010, October 18, 1996
NEFF, Hoekstra, Lostracco
SADO - GAIL RODWAN

Affirmed defendant's jury-tried conviction of first- degree criminal sexual conduct and sentence of 20 to 40 years.

Where defendant testified that the victim consented to sex in exchange for drugs, the trial court properly admitted, on the issue of plan or scheme, testimony from a 1993 criminal sexual conduct trial in which defendant claimed the victim had consented to sex in exchange for drugs. The evidence was relevant, as it tended to show that defendant employed a similar means of selecting victims who were crack users so that he could claim a sex-for-drugs trade if he were accused. Where jurors received an appropriate limiting instruction, and were informed that the 1993 trial had resulted in acquittal, it could not be said that the evidence was more prejudicial than probative.

Offense Variable 2 was properly scored at 25 points, reflecting personal injury to the victim. As Guidelines scoring does not implicate double jeopardy, this scoring did not subject defendant to impermissible multiple punishment although personal injury was already reflected in the degree of CSC charged.
STOLEN PROPERTY, RECEIVING OR CONCEALING -- Sufficiency of Evidence
JURY -- Verdict -- Unanimity
INSTRUCTIONS -- Unaminous Verdict
DOUBLE JEOPARDY -- Multiple Prosecutions
APPEALS -- Remedies

People v Floyd Vernon Quinn, Jr.
People v Kenneth Dwain Leslie
#161152 and #161236, October 25, 1996
NEFF, Marilyn Kelly, Stempien
JOHN A. WATTS

Reversed each defendant's jury-tried conviction of receiving or concealing stolen property over $100.

Defendants were charged for attempting to sell machine blueprints which they obtained from their employer. During trial, the court allowed the prosecution to add a claim that defendants attempted to sell setup sheets for the same machine, although only one count was charged against each defendant. Testimony showed that defendant Quinn obtained permission to take the blueprints home, so evidence was insufficient to establish that the blueprints were stolen or converted, and defendants could not be convicted on this theory. The charging of a single count violated defendants' right to a unanimous verdict, as it permitted jurors to convict without agreeing unanimously on a single theory. Without any indication of which theory the verdict was based on, retrial was barred as to either theory.
DOUBLE JEOPARDY -- Multiple Prosecutions
GUILTY PLEA -- Waiver Effects
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
SENTENCING AND PUNISHMENT -- Consecutive Terms
CONTROLLED SUBSTANCES, DELIVERY -- Sentencing

People v Douglas Allen Feazel
#181072, November 1, 1996
PC: Markman, McDonald, Matuzak
H. EUGENE BENNETT

Remanded for further proceedings as to defendant's plea-based convictions of conspiracy to deliver less than 50 grams of cocaine and delivery of less than 50 grams of cocaine; vacated in part consecutive sentence of 2 to 20 years on conspiracy conviction.

Defendant delivered cocaine to one Schaefer in Isabella County, knowing that Schaefer intended to deliver the cocaine to a third party in Eaton County. After defendant was convicted in Isabella County, the instant charges were brought in Eaton County. Defendant's guilty pleas did not waive his claim that the Eaton County charges were barred by double jeopardy. As the record was unclear as to the facts supporting the charges in the respective counties, the panel ordered remand for an evidentiary hearing and determination of whether the charges violated the "same transaction" test of People v McMiller, 202 Mich App 82 (1993).

The fact that defendant's sentences were consecutive did not, without more, render them disproportionate. However, the sentence on the conspiracy offense was erroneously made consecutive to the Isabella County sentence defendant was currently serving, as conspiracy offenses are excluded from the consecutive drug sentencing provision of MCL 333.7401(3); MSA 14.15(7401)(3). People v Denio, 214 Mich App 647 (1995), lv grt'd 451 Mich 897 (1996).

Markman, concurring separately, would hold that Denio was wrongly decided.
MURDER, FIRST-DEGREE -- Sufficiency of Evidence
ATTEMPTS -- Sufficiency of Evidence
MURDER, FIRST-DEGREE -- Instructions on Elements
MURDER, FELONY -- Instructions on Elements
ATTEMPTS -- Instructions on Elements

People v Calvin Donald Graham
#175926, November 5, 1996
HOEKSTRA, Michael J. Kelly, Quinnell
SADO - VALERIE NEWMAN

Affirmed defendant's jury-tried conviction of arson of a dwelling and plea-based conviction as fourth habitual offender; reversed and remanded jury-tried conviction of attempted murder.

Viewed in a light most favorable to the prosecution, the evidence was sufficient to convict defendant of attempted murder, where defendant's ex-girlfriend found her home and car on fire at 4:00 a.m., the telephone wires cut, a burning rope on her gas meter, and defendant in the neighborhood shortly thereafter.

However, the trial court erred reversibly by giving the felony murder instruction, which allowed jurors to convict of attempted murder without finding intent to kill, rather than the premeditated murder instruction.
MOTION FOR NEW TRIAL

People v Steven Wallace Bart
#191403, November 8, 1996
TAYLOR, Young, Livo
MARY MACDOUGALL

On remand from the Supreme Court for consideration as on leave granted to the prosecution, reversed trial court order granting defendant's motion for new trial and remanded for further proceedings.

The trial court granted defendant's post-verdict motion for directed verdict of acquittal on the charged offense of armed robbery without ruling conditionally on defendant's motion for new trial, as required by MCR 6.419(C). After the directed verdict was reversed on appeal, the court abused its discretion in granting defendant's motion for new trial on the basis of "entirely insufficient" reasons.
ARREST -- Illegal
RESISTING A POLICE OFFICER -- Sufficiency of Evidence
DEFENSES -- Jurisdiction, Lack Of
COUNSEL -- Ineffectiveness Of -- Failure to Object

People v Dean Blair Carrick
#175743, November 8, 1996
CORRIGAN, Young, Callahan
PATRICK K. COLLISON

Reversed defendant's jury-tried conviction of resisting or obstructing a police officer.

An off-duty motor carrier commercial vehicle enforcement officer, who was out of uniform and driving his personal vehicle, did not have authority to stop defendant's semi-trailer truck or to detain or arrest defendant, and the resulting altercation could not give rise to a charge of resisting a lawful arrest. Defense counsel was ineffective for failing to challenge the officer's authority, as defendant would have prevailed and would not have been convicted, but for this error.
SEARCH AND SEIZURE -- Plain View
SEARCH AND SEIZURE -- Stops

People v Larry Massey (On Remand)
#197677, November 12, 1996
MICHAEL J. KELLY, O'Connell, Wahls
KARRI MITCHELL

On remand from the Supreme Court for reconsideration in light of People v Champion, 452 Mich 96 (1996), the panel again reversed defendant's conviction. Prior opinion: 215 Mich App 639 (1996).

A permissible investigative stop and frisk did not establish probable cause to believe that a small lump in defendant's jacket pocket was contraband. Where the incriminating nature of the object was not apparent to the officer until he had removed it from the pocket, its seizure was not justified under the "plain feel" exception, and the trial court erred by failing to suppress it.

O'Connell, dissenting, would admit the evidence, finding the requirements of the "plain feel" exception satisfied here.
CONFESSIONS -- Custodial Interrogation

People v Colleen Slocum (On Remand)
#190122, November 5, 1996
MARKMAN, Smolenski, Buth
SUSAN F. REED

On remand from the Supreme Court for consideration as on leave granted to the prosecution, reversed trial court order granting defendant's motion to suppress statement in prosecution for conspiracy to commit first-degree murder, conspiracy to commit kidnapping, assault with intent to murder, first-degree home invasion, obstruction of justice and felony firearm.

Some 21 hours after defendant was advised of her Miranda rights and refused to make a statement, police again questioned her about the same incident and obtained an incriminating statement. Under the circumstances, police "scrupulously honored" defendant's right to cut off questioning, and the trial court erred in suppressing the confession. The panel stressed that defendant had invoked only the right to cut off questioning, rather than the right to counsel.
EX POST FACTO LAW
SEARCH WARRANT -- Sufficiency of Underlying Affidavit
FELON IN POSSESSION OF FIREARM -- Instructions on Elements

People v Frank Emery Tice
#181348, November 15, 1996
DOCTOROFF, Hood, Bandstra
SADO - DEBORAH KEENE

Reversed and remanded defendant's jury-tried convictions of being a felon in possession of a firearm and possession of marijuana.

Defendant was properly charged and convicted of being a felon in possession of a firearm for possessing a gun within five years of his discharge from probation on attempted possession of cocaine, although the cocaine conviction preceded the effective date of the felon in possession statute. The felon in possession conviction did not impose additional punishment for the earlier cocaine conviction, but instead stemmed from defendant's post-statute conduct.

As the record was silent on the circumstances of the affiant's failure to sign the affidavit supporting the search warrant, remand for a hearing on whether the affidavit was made on oath before a magistrate was required.

Finally, defendant was entitled to reversal of the felon in possession conviction where the court instructed jurors that defendant was a convicted felon, as this took one of the elements of the offense away from the jury.
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.

PROSECUTOR -- Improper Questioning of Witness
PROSECUTOR -- Comments -- Credibility of Witnesses
EVIDENCE -- Polygraph
EVIDENCE -- Proof of Other Crimes
EVIDENCE -- Relevancy
APPEALS -- Cumulative Effect of Error

People v Harrington
#176020, 9-27-96
MA 26448 (5pp)

Reversal of defendant's bench-tried CSC convictions was required by the cumulative effect of the errors, including a prosecution witness's vouching for the credibility of another prosecution witness, repeated references to polygraph exams, and references to defendant's drinking problem, attendance at Alcoholics Anonymous, and family therapy.
DOUBLE JEOPARDY -- Multiple Punishment

People v Finley
#180402, 9-27-96
MA 26457 (3pp)

As conviction of both felony murder and the underlying felony of breaking and entering subjected defendant to impermissible multiple punishment, vacation of the breaking and entering conviction and sentence was ordered.
COUNSEL -- Ineffectiveness Of -- Failure to Object
INDICTMENT AND INFORMATION -- Amendment Of
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring

People v Minter, Davidson and Williams
#179675, #179676 and #180248, 9-13-96
MA 26228 (7pp)

Davidson's defense counsel was ineffective for consenting to amendment of the information at trial from the misdemeanor of unlawfully taking and using a motor vehicle to the felony of UDAA, and reversal of the resulting UDAA conviction was required. The sentencing court erred in assessing Williams 25 points on Guidelines Offense Variable 2 where the record showed no evidence of bodily injury; as Williams' sentence exceeded the corrected Guidelines range, remand for reconsideration of the sentence in light of the correction was ordered.
DEFENDANT -- Absence at Critical Stage
COMPETENCY -- To Stand Trial

People v Gorsline and Gruber
#180396 and #181014, 10-11-96
MA 26650 (4pp)

The trial court erred by holding Gorsline's competency hearing in her absence, as even defense counsel's express waiver could not waive the defendant's right to be present at a stage where her substantial rights are affected. As less than three years had elapsed since trial, the appropriate relief was remand for a nunc pro tunc competency hearing.
INSTRUCTIONS -- Included Offenses -- Misdemeanors
INSTRUCTIONS -- Self-Defense
INSTRUCTIONS -- Defendant's Theory of Case

People v Romanchuk
#171946, 10-11-96
MA 26636 (4pp)

Where jurors could have rationally found that defendant assaulted the victim and inflicted serious injuries without specific intent to do great bodily harm less than murder, the trial court erred in refusing defendant's request for instruction on aggravated assault as an included offense of assault with intent to do great bodily harm. This, together with refusal of a requested self-defense instruction, required reversal of the assault conviction and retrial.
HABITUAL CRIMINAL PROCEEDINGS
JURY -- Right To

People v Jenkins
#187857, 10-11-96
MA 26677 (2pp)

Where the underlying felony was committed prior to the May 1, 1994 effective date of amendments to the Habitual Offender Act, defendant was entitled to a jury trial on the charge of being a fourth felony offender, and reversal was required for failure to afford this right.
CONFESSIONS -- Custodial Interrogation
CONFESSIONS -- Voluntariness -- Totality of Circumstances

People v Stawarz
#179010, 10-11-96
MA 26646 (5pp)

Defendant's statement, after interrogation had begun, that "I'm not answering any more questions," was an unequivocal invocation of his right to silence. Where the interrogating officer responded that defendant did not have to answer any more questions now but would have to later, and interrogation resumed about an hour later after defendant had been transported to headquarters, the resulting statement should have been suppressed. On remand, the trial court must review the totality of circumstances as to a second statement taken the following day and determine its voluntariness, rather than simply finding that the delay in arraignment did not render it involuntary.
DEFENSES -- Insanity -- Notice of Defense

People v Reynolds
#177731, 10-18-96
MA 26735 (8pp)

The trial court had no discretion under MCL 768.20a(2); MSA 28.1043(1)(2) to deny defendant's motion for a criminal responsibility examination, and the record contained no clear waiver or withdrawal of the request. On remand, defendant is to receive the requested examination, with the decision to grant or deny a motion for independent examination in the discretion of the trial court; if a triable issue as to defendant's sanity is presented, a new trial must be held.
GRAND JURY PROCEEDINGS
DEFENSES -- Jurisdiction, Lack Of

People v Hayes
#165794, 10-18-96
MA 26729 (9pp)

A one-person grand jury authorized to investigate a conspiracy by defendant and others to violate gambling laws had no authority to indict defendant for tax evasion, and the resulting conviction and sentence must be vacated. MCL 767.3; MSA 28.943 does not authorize general searches for criminal activity, but rather confines a grand jury to the matter authorized. Tax evasion was not within the scope of the gambling order, and was not sufficiently related.
DEFENSES -- Insanity
ASSAULT WITH INTENT TO MURDER -- Sufficiency of Evidence

People v Gray
#180801, 10-15-96
MA 26704 (8pp)

Where both prosecution and defense psychiatrists agreed that defendant was experiencing an acute psychotic episode at the time of the offense, and lay witnesses testified to defendant's bizarre behavior immediately preceding and following the assault, the prosecution did not meet its burden of proof as to defendant's sanity by presenting police testimony that defendant displayed no unusual behavior while being transported to and from his arraignment. The panel reversed the "guilty but mentally ill" verdict and remanded for entry of an acquittal by reason of insanity and an order committing defendant for psychiatric treatment.
DEFENSES -- Jurisdiction, Lack Of
STATUTORY INTERPRETATION
INDIAN LAW

People v Bowen
#185415 and #189441, 10-11-96
MA 26666 (3pp)

Construing 18 USC §1153 broadly to favor Native Americans, the panel concluded that defendant, who had one-half Ottawa Indian blood and who had lived on the reservation, attended reservation schools and been involved in social and cultural activities with his adoptive father's tribe, was an Indian under federal law. Michigan thus lacked jurisdiction to prosecute him for the instant sexual assault.
MOTION FOR DIRECTED VERDICT

People v Jenkins
#184100, 10-18-96
MA 26748 (2pp)

The trial court erred in reserving its decision on defendant's motion for directed verdict until after the conclusion of the proofs, contrary to MCR 6.419(A), and in granting the motion at that time. The prosecution's appeal led to reinstatement of the breaking and entering verdict.
SELF-INCRIMINATION
WITNESSES -- Exercising Fifth Amendment
PROSECUTOR -- Improper Questioning of Witness

People v Thomas
#171264, 11-1-96
MA 26904 (15pp)

The trial court erred reversibly by allowing the prosecution to call a witness who had previously stated that he would refuse to testify, although the refusal was apparently not based on Fifth Amendment privilege. The jury was still likely to draw adverse inferences from the exchange.
JURY -- Rereading Testimony
APPEALS -- Failure to Object Below

People v Street
#185110, 10-4-96
MA 26526 (2pp)

Despite defendant's failure to object at the time, the trial court's complete foreclosure of the rereading of any testimony required reversal of his murder and assault convictions and retrial, to prevent manifest injustice.
SENTENCING AND PUNISHMENT -- Resentencing

People v Courtney (On Rehearing)
#155158 and #157603, 8-2-96
MA 25666 (2pp)

On rehearing, the panel agreed with defendant that the reversal of a contemporaneous CSC conviction might affect the sentence on a conviction of assault with intent to commit CSC, although the Guidelines range for the assault was not altered. Resentencing on the assault was deemed appropriate.
SENTENCING AND PUNISHMENT -- Victim Impact Statements
SENTENCING AND PUNISHMENT -- Presentence Reports -- Excepted Material

People v McGraw
#172419, 8-9-96
MA 25769 (3pp)

Where the trial court considered an undisclosed victim impact statement in imposing sentence, defendant is entitled to remand for the trial court to comply with MCR 6.425(B), and must receive the opportunity to respond to the statement.
FELONY MURDER
ARSON
DOUBLE JEOPARDY -- Multiple Punishments

People v Peterson
#182872, 9-20-96
MA 26358 (3pp)

Convictions for both felony murder and the underlying felony of arson subjected defendant to impermissible double jeopardy, and vacation of the arson conviction and sentence was therefore required.
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring

People v Fick
#183097, 9-18-96
MA 26300 (2pp)

The sentencing court erred in scoring 15 points on Offense Variable 7 [exploitation of victim vulnerability] based on the "incestuous" nature of the offense against defendant's 28-year-old daughter, where defendant disputed paternity and had not met the victim until she was 24.
CONTROLLED SUBSTANCES, DELIVERY -- Sufficiency of Evidence
CONTROLLED SUBSTANCES, POSSESSION -- Sufficiency of Evidence

People v Cole
#179732, 9-17-96
MA 26292 (3pp)

Evidence of defendant's actual or constructive possession of cocaine was insufficient to convict him of possession with intent to deliver, where police executing a warrant found seven people in defendant's apartment, and no evidence linked the cocaine found in a jacket draped over a dining room chair to defendant, rather than to any of the others.
SENTENCING AND PUNISHMENT -- Indeterminate Sentencing
SENTENCING AND PUNISHMENT -- Trial Court's Mistake of Law

People v Chandler
#178600, 9-20-96
MA 26345 (8pp)

Remand for resentencing was necessitated by the trial court's mistaken belief that a life sentence would leave defendant eligible for parole sooner than a minimum sentence within the Guidelines range of 10 to 25 years.
MOTION FOR NEW TRIAL -- Newly Discovered Evidence
CONFRONTATION -- Right Of
DISCOVERY
WITNESSES -- Privileged Communications -- Social Worker/Client

People v Fink
#167536, 9-20-96
MA 26323 (4pp)

Material documents favorable to defendant's position that the complainant and a corroborating witness were not credible, revealed during post-conviction in camera review, should have been disclosed to the defense. They presented strong evidence that the complainant habitually lied, threatened abuse charges as a means of extortion, and sexually propositioned staff members at St. Vincent's Home for Children. Defendant, a staff member, was entitled to the documents despite assertion of the statutory social worker/client privilege; his motion for new trial should have been granted.
MOTION FOR NEW TRIAL -- Great Weight of the Evidence
EMBEZZLEMENT

People v Cornelius
#179507, 9-20-96
MA 26350 (3pp)

Where the great weight of the evidence supported defendant's contention that she was entitled to keep certain fees that she collected in the course of her employment as a probation officer, it did not appear that defendant had the requisite intent for embezzlement, and reversal for entry of a judgment of acquittal was ordered. The fees were generated by an "in-house alcohol assessment program," and it appeared that defendant bore the costs of the program and obtained permission from the chief judge to keep the fees.
COUNSEL -- Ineffectiveness Of

People v Bennett
#181200, 10-1-96
CDRC * (1p)
* Available to attorneys from CDRC

Where the record showed that defense counsel led defendant to believe he would be eligible for probation if he pled to first-degree criminal sexual conduct, defendant was entitled to remand for an opportunity to withdraw his pleas.
DOUBLE JEOPARDY -- Multiple Punishments
SENTENCING AND PUNISHMENT -- Trial Court Finding of Guilt of Uncharged Offense
SENTENCING AND PUNISHMENT -- Credit for Time Served
COUNSEL -- Ineffectiveness Of -- At Sentencing

People v Jones
#174915, 10-1-96
MA 26486 (4pp)

Conviction of two counts of first-degree criminal sexual conduct for a single penetration concededly exposed defendant to impermissible double jeopardy, and one count was ordered vacated. Defendant was entitled to be resentenced on an unarmed robbery conviction where the trial court imposed sentence for armed robbery, and to credit for time served prior to sentencing notwithstanding his habitual offender status. Finally, counsel was ineffective at sentencing for failing to correct the trial court's belief that defendant was being sentenced for armed rather than unarmed robbery and for two counts of CSC rather than one, and for failing to challenge the prosecutor's claim that defendant was not entitled to jail credit because he was a habitual offender. Reilly concurred in result only.
COUNSEL -- Ineffectiveness Of -- Trial Tactics and Strategy
SELF-INCRIMINATION -- Violation of the Privilege

People v Linsey Smith
#156491, 10-1-96
MA 26485 (4pp)

Defense counsel was ineffective for eliciting defendant's assertion of his right to remain silent until he talked with an attorney, thereby seriously undermining the defense of accident which was defendant's only defense, for no apparent strategic benefit. Together with repeated prosecutorial questioning on defendant's silence, this performance denied defendant a fair trial. O'Connell, dissenting, would not find counsel's strategy of showing that defendant was cooperative and a "nice person" inconsistent with the accident defense, and would affirm.
WEAPONS, RECEIVING OR CONCEALING
STOLEN -- Sufficiency of Evidence
MOTION FOR DIRECTED VERDICT
WEAPONS, DISCHARGE FROM VEHICLE -- Sufficiency of Evidence
FELONY FIREARM

People v Harvey
#172058, 10-11-96
MA 26637 (3pp)

Absent proof of defendant's knowledge that the gun or ammunition was stolen, the trial court erred in denying a defense motion for directed verdict on receiving or concealing a stolen firearm, MCL 750.535b; MSA 28.803(2). The facts that the gun was stolen some two years before the offense, that defendant had no license for the gun, and that he threw it out the car window did not establish guilty knowledge. Defendant was also entitled to a directed verdict on a count of discharging a firearm from a motor vehicle, MCL 750.234a; MSA 28.431(1), where there was no evidence who fired the gun, whether it was inside or outside the vehicle when it was fired, or whether it was fired in a direction or manner which would endanger anyone's safety. Finally, reversal of defendant's felony firearm conviction was also required, as defendant's only remaining conviction [carrying a pistol in a motor vehicle] could not serve as the predicate offense for felony firearm.
JURY -- Bias or Prejudice of Individual Juror
JURY -- Challenges -- For Cause

People v Korotney
#168475, 10-15-96
MA 26691 (2pp)

Denial of defendant's motion for new trial was an abuse of discretion, where the trial court excused one of two jurors who could not disregard a volunteered reference to defendant's prison record, but failed to excuse the other.
PROSECUTOR -- Intimidation of Witness EVIDENCE -- Prior Testimony

People v Hardy
#168869, 10-11-96
MA 26633 (3pp)

If, on remand, the trial court finds that the prosecutor threatened a witness with perjury charges and life imprisonment if she changed her testimony at trial, and that this caused the witness's unavailability and allowed the preliminary exam testimony to be read into the trial record, reversal of defendant's murder and conspiracy convictions is required.
SENTENCING AND PUNISHMENT -- Consecutive Sentencing

People v Cruz
#172434, 9-10-96
MA 26169 (3pp)

Sentences for offenses defendant committed while on parole in 1993, prior to the prospective holding in People v Young, 206 Mich App 144 (1994), should not be made to run consecutively to the maximum sentences for the crimes for which defendant was on parole. The parole panel remanded for modification of the sentence.
DOUBLE JEOPARDY -- Multiple Punishment

People v Goodwin
#176486, 9-17-96
MA 26277 (5pp)

Vacation of defendant's felony murder conviction was required, where defendant had also been convicted of first- degree murder and armed robbery in connection with the same homicide. Youngblood, writing separately, concurred as to this issue, but dissented in part on other grounds.
SENTENCING AND PUNISHMENT -- Duty to Respond to Claim of Inaccuracy
SENTENCING AND PUNISHMENT -- Resentencing

People v Lewis
#169008, 10-18-96
MA 26732 (3pp)

The trial court's failure to respond to several defense challenges to inaccurate information in the presentence report entitled defendant to resentencing here, as the sentencing judge was no longer on the bench and could not clarify whether the disputed information influenced the sentence.
CONFRONTATION -- Right To
IMPEACHMENT -- Criminal Acts
EVIDENCE -- Accomplice's Charge or Conviction
INSTRUCTIONS -- Accomplice Testimony
COUNSEL -- Ineffectiveness Of
PROSECUTOR -- Comments -- Defendant's Pretrial Silence

People v Jowske
#164624, 10-18-96
MA 26728 (4pp)

The trial court abused its discretion and violated defendant's right to confrontation by; (1) precluding impeachment of a prosecution witness with pending criminal charges which were highly relevant to the witness's interest in testifying favorably to the prosecution, (2) allowing the prosecution to inform the jury that the witness had been acquitted of killing the victim, (3) failing to give sua sponte a cautionary instruction on accomplice's testimony where defendant's guilt was closely drawn, and (4) admitting evidence that defendant asserted his rights to silence and to counsel during custodial interrogation. Counsel was also ineffective for failing to request an accomplice-testimony instruction, as well as for failing to object to testimony that defendant had exercised his Fifth Amendment rights and that the accomplice's court- appointed attorney had told the accomplice to testify truthfully. Hoekstra, concurring separately, would find reversal required only as to the references to the accomplice's acquittal and the comments about the accomplice's discussions with court-appointed counsel.
Training Calendar
 Complete details on the training events listed below appear eariler in this month's newsletter.

December 13 - 15 Advanced Cross-Examination NCDC - Atlanta, GA
January 26 - February 2 Ski Seminar NACDL - Aspen, CO
February 12 - 15 Cutting Edge Defenses NACDL - New Orleans, LA
February 16 - 18 Ski Conference SBM/CLS - Bellaire, MI
March 24 - 25 Legislative Fly-In NACDL - Washington, DC

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

Criminal Defense Online
http://www.sado.org/

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

Copyright ©1996 State Appellate Defender Office