Criminal Defense Newsletter

Volume 20, Number 12	September, 1997
Volume 21, Number 1	October, 1997

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Contents

Co-Conspirator Hearsay Exception
A Note on the State Co-Conspirator Rule
Discovery Rule Amended
Cost Effectiveness of Mandatory Minimums
Mandatory Drug Sentences & Human Rights
Prison-Based Education
From Our Readers: Investigative Subpoenas
Legislative Update
Newsletter Renewal
Criminal Defense Attorneys Honored
Remarks of Terry Moore
Prisons & Corrections Section
In a Manner of Speaking
Practice Note: Comments on Defendant's Presence
New & Interesting in the Online Brief Bank
From Other States
Criminal Defense Online
Training Events
Certiorari Granted in the United States Supreme Court
United States District Court Opinion
Michigan Supreme Court Order
Leave Granted in the Michigan Supreme Court
Michigan Supreme Court Opinions
Selected Court of Appeals Opinions
Unpublished (but persuasive)
Training Calendar

Defending Against the Co-Conspirator Hearsay Exception

It has been said that the hearsay rule more resembles an exception than a governing principle. If it is a rule, then indeed it must rank as one of the most porous of our jurisprudence; the menu of exceptions is long, and growing longer. Certainly to the criminal defense practitioner, the co-conspirator hearsay exception represents a formidable prosecutorial weapon. Federal Rule of Evidence 801(d)(2)(E), the subject of this article, sweeps broadly on many fronts. It allows introduction of the admissions of a confederate as if they were the defendant's own; it permits the use of statements made before the defendant even joins the conspiracy; and, at times, it authorizes the introduction of statements made after the target offense has been completed. These and other features of the hearsay exception require defense counsel to know all its limitations and intricacies.

Under the foundational requirements of Rule 104(a) of the Federal Rules of Evidence, the government must prove: 1) that a conspiracy existed and that the defendant participated in it; 2) that an identified hearsay declarant[1] and the defendant were involved in the same conspiracy; 3) that the statement was made in the course of the conspiracy; and (4) and that the statement was made in furtherance of the conspiracy.[2] At one time the rule required additional foundational requirements. In two recent cases, however, the Supreme Court eliminated two of those requirements and relaxed another.

The first case, United States v Inadi,[3] did away with the unavailability of the declarant requirement. Then, in Bourjaily v United States,[4] the Supreme Court said that the government may satisfy the foundational requirements of the exception by meeting the preponderance of the evidence standard.[5] Bourjaily also held that the government need not prove the existence of the conspiracy through extrinsic evidence alone, but may use the co-conspirator statement itself (so-called "bootstrapping").[6] The Bourjaily Court, however, did not pass on whether the government may rely entirely upon the hearsay declaration to satisfy this proof requirement.[7] Fortunately, the circuit courts that have addressed this issue have uniformly held that some extrinsic evidence, apart from the statement itself, must be offered.[8]

In light of the unfavorable development of the co- conspirator hearsay exception, it would seem that the admission of co-conspirator statements is a foregone conclusion. Yet, in many instances, it is not. Defense counsel should be unwilling to concede the admissibility of such declarations; rather, he or she should be on the lookout for seemingly proper, but actually erroneous, uses of this hearsay exception.

This article offers a tour of co-conspirator hearsay jurisprudence, pointing out some potentially fruitful areas to challenge the government's hearsay evidence.

Threshold Showing of Participation

It is well established that "[o]nce a conspiracy is shown, the prosecution need only present slight evidence connecting the defendant to the conspiracy."[9] Nonetheless, "mere association with conspirators [or the defendant's knowledge or approval of a conspiracy] is not enough to establish participation in a conspiracy, and mere presence at the scene of a criminal act does not make the defendant guilty.[10]

As mentioned, under Bourjaily v United States,[12] the government may satisfy its evidentiary burden, at least in part, by relying upon the co-conspirator statement itself. But though admissible to prove this foundational requirement, co-conspirator declarations are presumptively unreliable. Thus, by this same logic, the more the prosecution relies upon the declaration to satisfy its burden of proof, the more tenuous its claim becomes. In perhaps one of the most well-reasoned cases on this point, the Ninth Circuit, in United States v Silverman,[13] set forth an insightful analysis, emphasizing the importance of corroboration by independent incriminating evidence:

* * *

Because of this presumptive unreliability, a co- conspirator's statement [that] implicates the defendant in the alleged conspiracy must be corroborated by fairly incriminating evidence. Evidence of wholly innocuous conduct or statements by the defendant will rarely be sufficiently corroborative of the co-conspirator's statement to constitute proof, by a preponderance of the evidence, that the defendant knew of and participated in the conspiracy. Evidence of innocent conduct does little, if anything, to enhance the reliability of the co-conspirator's statement. A co-conspirator's statement which is presumptively unreliable hence inadmissible standing alone, is not more reliable when coupled with evidence of conduct that is completely consistent with defendant's awareness of the conspiracy. [emphasis added]

What this means is that two or more hearsay statements, which mutually corroborate each other, do not necessarily pull each other up by their "bootstraps." As explained by the Silverman Court: "one presumptively unreliable statement cannot be invoked to corroborate another, particularly when each was allegedly uttered by the same declarant."[14] As with presumptively unreliable hearsay statements, vague discussions of past drug deals, in conjunction with the hearsay declaration, do not provide sufficient evidence of the drug conspiracy in question.[15] Nor does a defendant's presence with alleged co-conspirators during pedestrian encounters constitute sufficient independent evidence of the defendant's participation in a conspiracy.[16]

The Silverman case well illustrates these points. There, the testimony of the government's principal witness, David Willard, claimed he purchased cocaine from an individual named Pearl, and resold it to Robert Zeitziff. On three separate occasions, Zeitziff provided a plane in which he, Willar, and Zeitziff flew from Nevada to California to obtain cocaine. Willard testified that during the first visit, Pearl told him that she was going to call her brother (Pearl had two brothers, Frank and David Silverman, the defendant.) Pearl then left in a cab, returning approximately three hours later with a package containing six ounces of cocaine. During the second trip, Pearl allegedly contacted her brother again, left for about an hour, and returned with another package containing six ounces of cocaine. On the final trip, Pearl purportedly went through the same routine, telephoning her brother, driving away for several hours, but this time returning in a car driven by a man looking like the defendant. Willard, however, had never actually seen the defendant, but made this identification based upon a previously viewed photograph of him.

Willard was arrested shortly after the third visit, and agreed to cooperate with the government. As part of the cooperation agreement, Willard agreed to record his conversations with Pearl and her husband, David Phoenix. The prosecution introduced a tape recording of a discussion between Willard and Pearl. During the discussion, Willard asked Pearl whether her brother could be trusted. Pearl responded that he could. Defense counsel objected to the admission of the several hearsay utterances of Pearl, but the district court received them under the co-conspirator hearsay exception. The defendant was convicted of several drug-related offenses.

Applying the standard set forth in Bourjaily, the court of appeals reversed. The court observed that there was very little independent corrobative evidence, apart from the several hearsay declarations, to support a finding of the defendant's participation in the conspiracy:

In the Course of the Conspiracy

The requirement that the statement be made "in the course of the conspiracy" is a temporal limitation to the exception. Obviously enough, a declaration made before the formation of the charged conspiracy is simply not made in the course of it.[18] However, it is not necessary for the government to prove that the defendant participated in the conspiracy at the time of the declaration: if the declarant is a confederate at the time the statement is made, and his statement is made in furtherance of the conspiracy, the defendant will then be deemed to have adopted the declaration even though he was not a member of the conspiracy at the time the statement was made.[19] "As long as it is shown that a party, having joined a conspiracy, is aware of the conspiracy's features and general aims, statements pertaining to the details of the plans to further the conspiracy can be admitted against the party even if the party does not have specific knowledge of the acts spoken of."[20]

The more complicated question is when does a conspiracy end -- or -- more importantly, when does it end for a particular defendant? As a general rule, a conspiracy terminates upon the completion of the last overt act,[21] or when the primary purpose of the conspiracy has been accomplished.[22] Typically, the indictment sets forth the length of a given conspiracy. But dates alleged in the indictment are approximations; ultimately the proof offered at trial controls the question of the duration of the conspiracy.[23] Nevertheless, while the indictment need not allege the precise dates or acts of the charged conspiracy to permit the introduction of statements under Federal Rule of Evidence 801(d)(2)(E), at a minimum, due process requires that the indictment put the defendant on sufficient notice of the conspiratorial offense in question. Thus, under this hearsay rule, the evidence offered at trial to satisfy the elements of the co-conspirator exception must have some factual relationship to the allegations of the indictment.[24]

In deciding the cut-off point for a conspiracy, the courts must often draw a fine line. In this regard, many battles are fought over whether statements made concerning concealment of the evidence or avoidance from detection are considered a part of the conspiracy. The rule of Krulewitch v United States,[25] and Grunewald v United States,[26] holds that, generally, an agreement to conceal evidence of a completed crime or an agreement to avoid detection does not extend the life of the conspiracy.

In Krulewitch, the defendant was charged under the Mann Act with the substantive offense of taking a woman on a one-time trip across state lines to engage in prostitution, and with conspiring with this woman to commit this offense. The hearsay testimony in Krulewitch involved a conversation implicating the defendant in the conspiracy, but occurring more than a month and a half after the woman was transported across state lines. Since the central purpose of the purported conspiracy was to transport the woman across state lines for prostitution, any declarations made after the completion of the crime could not be admitted under the co-conspirator hearsay exception. In so deciding, the Court rejected the concept that every conspiracy implies a subsidiary agreement to conceal evidence.

Keep in mind that neither Krulewitch nor Grunewald rules out the possibility that an express agreement to conceal evidence or avoid detection can be formed prior to the demise of the principal conspiracy. If such an agreement is reached before the end of the original conspiracy, then this subsidiary agreement merges into the overall conspiracy.[27] The timing of the subsidiary agreement is crucial, and the government bears the burden of proving it was formed during the principal conspiracy.[28]

In some cases, an understanding among the conspirators to conceal evidence will not be treated as a subsidiary agreement, but as part of the overarching conspiratorial objective. The courts focus upon the essence of the conspiracy itself to determine its principal objective.[29] The principal objective of a given conspiracy (and whether it necessarily includes an agreement to conceal evidence) is generally determined by the nature of the crime, and by the particular facts of the case.[30] For instance, drug or fraud conspiracies typically by nature require concealment of evidence and often do not end before the apprehension of the confederates.[31] But this is not always the case. In United States v DeVaugn,[32] for example, the Second Circuit held that, following the distribution of heroin, there was no evidence of a continuing enterprise. Thus, statements made by a co-conspirator subsequent to the distribution were inadmissible under Federal Rule of Evidence 801(d)(2)(E).

Always remember that it is not necessary to establish that the conspiracy itself has terminated to effectively challenge the admission of co-conspirator statements. If a defendant has "withdrawn" from all involvement in the conspiracy at the time of the declaration, the co- conspirator's statement cannot come in against him or her. "To withdraw effectively, [however,] the defendant must demonstrate `that he took affirmative action to defeat or disavow the purpose of the conspiracy.' * * * The [m]ere cessation of the activity in furtherance of the conspiracy does not constitute withdrawal." [33] Such a withdrawal can sometimes be inferred from circumstantial evidence. For example, in United States v Nerlinger,[34] the principal objective of the conspiracy, as charged in the indictment, was to defraud customers of a certain corporation by assigning profitable trades to salesmen's accounts. The defendant's role in the company was to open and maintain an account at the corporation so that direct trades could be made with its customers. Prior to the time of the challenged declaration, the defendant had resigned from the corporation and had closed his only account there. On these facts, the court of appeals held that the defendant's actions effectively communicated his withdrawal from the conspiracy:

A similar question concerns whether a co-conspirator's post-arrest statements may be received into evidence against the defendant. The general rule is that a confederate's post- arrest statements are not made in the course of the conspiracy.[37] However, statements made by an arrested conspirator still at liberty can come within the co- conspirator exception.[38] As explained by the Sixth Circuit, "where . . . the unarrested co-conspirators are still capable of perpetuating the ongoing conspiracy, the statements made by them to the arrested coconspirator are admissible for Rule 8801(d)(2)(E) purposes, even when the arrested conspirator was acting `under the direction and surveillance of government agents to obtain evidence against the coconspirators.' "[39]

In Furtherance of the Conspiracy

Even assuming that the confederate's statement was made within the temporal course of the conspiracy, defense counsel may still argue that it was not intended to further the conspiracy's goals. "To be admissible, the statement must somehow [intend to][40] advance the objectives of the conspiracy, not merely inform that listener of the declarant's activities."[41] If the disclosure is not intended to induce others to join, to allay their fears or, in some other way, to preserve or promote the conspiracy, it does not come within the operation of the exception.[42] Thus, a casual aside, an indifferent remark, or an historical narrative, which touches upon but does not further the conspiracy may not be admitted under the co-conspirator exception.[43]

In United States v Urbanik,[44] for instance, the defendant was indicted for conspiracy to distribute heroin. The prosecution's main witness testified about conversations she had overheard between the conspirators and her co-conspirator husband, as well as about what her husband related to her concerning the conspiracy. As to her husband's statements about his discussions with other confederates, the court of appeals held that these statements merely informed his wife of his activities and did not advance the conspiracy.

Likewise, in United States v Johnson,[45] the Seventh Circuit determined that the prosecution had failed to meet it burden of proof under Rule 801 (d)(2)(E). There, the government claimed that the alleged co-conspirator's statement was intended to allay a confederate's fears or to induce him to join the scheme. Disagreeing with the government's characterization, the court found that, given the context in which the declaration was made, no reasonable inference could be drawn that the co-conspirator had threatened to expose the scheme. Therefore, the hearsay statement was merely an idle remark.

Counsel should be especially wary of the prosecution's use of co-conspirator hearsay statements in multiple conspiracy cases. The government may not introduce a hearsay declaration involving one conspiracy to prove the existence of another unrelated conspiracy. Stated differently, a declaration may have been made to advance an earlier conspiracy, but it should not be presumed that the same declaration is made in furtherance of the later conspiracy in question.[46

Correct Order of Proof: James Hearing

In United States v James,[47] the Fifth Circuit set forth the preferred order of proof in establishing the foundational requirements of the co-conspirator hearsay exception. The court found that, in most cases, the government should first be required to prove the requisite elements in a pre-trial hearing -- the so-called James hearing -- before being allowed to introduce any hearsay declaration at trial. The court noted that such a procedure was to be preferred to allowing the government "to connect up" its evidence later at trial. The decision as to the order of proof is generally committed to the sound discretion of the district court.[48] Therefore, defense counsel should be prepared to explain to the trial court the advantages of a James hearing. On this topic, one jurist has noted:

Corrobative Evidence

As formidable a tool as the co-conspirator hearsay exception is for the prosecution, it nonetheless has its limitations. Counsel should always ask for a James hearing, putting the government to the task of proving, by a preponderance of the evidence, each of the foundational requirements of the exception. While Bourjaily permits the use of the hearsay statement to satisfy these proof requirements, the government nonetheless must come forward with independent incriminating corrobative evidence. Counsel should be ever conscious of the purpose and temporal scope of the alleged conspiracy. Having a clear understanding of the government's conspiratorial theory of the case, counsel will be ready to argue the close evidentiary issues more effectively and persuasively.

By Mark Lippman

Mr. Lippman is a sole practitioner in LaJolla, California, concentrating on federal appeals. He has briefed two cases and argued one before the United States Supreme Court, and is a member of the White-Collar Crime Committee of the National Association of Criminal Defense Lawyers. This article appeared in The Champion, and is reprinted here with NACDL permission.

Endnotes

United States v Christopher, 923 F2d 1545, 1553 (11th Cir. 1991) [government must at least establish the identity of the declarant].
Bourjaily v United States, 483 US 171, 175 (1987).
United States v Inadi, 475 US 387 (1985).
Bourjaily, supra, note 2.
Id. at 176.
Id. at 181.
Id. at 181.
United States v Sepulveda, 15 F3d 1161, 1181-82 (CA 1 1993); United States v Garbett, 867 F2d 1132, 1134 (CA 8 1989); United States v Silverman, 861 F2d 571, 577 (9th Cir. 1988); United States v Zambrana, 841 F2d 1320, 1344-45 (7th Cir. 1988).
United States v Crespo, 830 F2d 1532, 1543 (9th Cir. 1987).
United States v Stanley, 765 F2d 1224, 1243 (CA 5 1985); United States v Schumpert, 958 F2d 770, 773 (CA 7 1992); compare United States v Gambino, 926 F2d 1355, 1362 (CA 3 1991) [repeated presence at crucial conspiratorial meetings may give rise to inference of defendant's participation].
United States v Torres, 908 F2d 1417, 1425 (9th Cir. 1990).
Bourjaily, supra, note 2.
861 F2d 571, 578 (9th Cir. 1988).
Id at 579.
United States v Fernandez, 797 F2d 943, 946-47 (11th Cir. 1986).
United States v Castaneda, 16 F3d 1504, 1508-09 (9th Cir. 1994); United States v Silverman, supra, 863 F2d at 579-80.
Silverman, supra, 861 F2d at 579. See also United States v Whalen, 844 F2d 529, 532-34 (8th Cir. 1988) [evidence insufficient to establish conspiracy to conceal evidence and to assist the defendant in avoiding consequences of arrest and trial]; United States v Beckham, 968 F2d 47, 50-51 (D.C. Cir. 1992) [physical proximity to the conspiracy and friendship with a conspirator are not sufficient independent corroborative evidence to prove defendant's participation in the alleged conspiracy, and evidence of aiding and abetting drug sales between two alleged conspirators does not establish conspiracy between the two]; United States v Williamson, 792 FSupp. 805, 809- 10 (M.D. Ga. 1992) [insufficient independent corrobative evidence]; Headley v Tilgham, 860 FSupp. 956, 965-66 (D. Conn. 1994) [habeas]; United States v Caldwell, 771 F2d 1485, 1489 (11th Cir. 1985) [independent evidence of solicitation by each defendant, without more, does not establish existence of conspiracy]; United States v Arvantis, 902 F2d 489, 500 (7th Cir. 1990) [defendant's mere solicitation of services of conspiracy does not prove his participation in the conspiracy itself].
United States v Gee, 695 F2d 1165, 1169 (9th Cir. 1983).
United States v Adamo, 882 F2d 1218, 1230-1231 (7th Cir. 1989).
United States v Angiulo, 847 F2d 956, 969 (1st Cir. 1988).
Fiswick v United States, 329 US 211, 216-17 (1946).
Krulewitch v United States, 336 US 440, 442-43 (1949).
United States v Lyon, 959 F2d 701, 705 (8th Cir. 1992); United States v Lewis, 759 F2d 1316, 1347 (8th Cir. 1985)["The relevant overt acts need not be alleged in the indictment, however, so long as the indictment gives proper notice of the conspiracy charge. Not only is it not necessary that the indictment enumerate all the underlying overt acts that are adduced at trial, but the indictment need not even contain a conspiracy count for evidence to be admitted under Rule 801(d)(2)(E)."]
United States v Lyles, 593 F2d 182, 194 (2nd Cir. 1979).
Krulewitch, supra, 336 US 440, 442-44 (1949).
Grunewald v United States, 353 US 391, 405 (1957).
Id. at 405.
United States v Serrano, 870 F2d 1, 9 (1st Cir. 1989) ["when the acts of concealments are done after the central objectives have been attained, for the purpose only of covering up after the crime, they are inadmissible"].
United States v Vowiell, 869 F2d 1264, 1267-68 (9th Cir. 1989) [the charge of conspiracy to assist an escape is distinguishable from conspiracy to harbor an escaped prisoner; in the case of the former, the conspiracy ends when the escapee reaches a place of temporary safety].
United States v Varella, 692 F2d 1352, 1362 (11th Cir. 1982).
United States v Varella, supra, 692 F2d at 1362; United States v Garate-Vergara, 942 F2d 1543, 1553 (11th Cir. 1991) ["Avoiding detection is a primary objective of drug smuggling, and a defendant's statements made during purported escape constitutes statements made during the course of and in furtherance of a conspiracy."] See also Forman v United States, 361 US 416 [ongoing nature of tax evasion]; United States v Del Valle, 587 F2d 699 (5th Cir. 1979) [continuing insurance fraud]; United States v Diez, 515 F2d 892 (5th Cir. 1975) [ongoing tax fraud scheme involving real estate].
579 F2d 225 (2nd Cir. 1978).
United States v Lewis, 759 F2d 1316, 1347 (8th Cir. 1985).
862 F2d 967 (2nd Cir. 1988)
336 F2d 376 (2nd Cir. 1964).
Nerlinger, 862 F2d at 974. See also United States v Patel, 879 F2d 292, 293-295 (CA 7 1989) [to withdraw from conspiracy the defendant must make a clean breast to the government, or unequivocally communicate to members his abandonment of the scheme, or show some other demonstrable and affirmative act of abandonment.]
United States v Palow, 777 F2d 52, 57 (1st Cir. 1985); United States v Ascarrunz, 838 F2d 759, 762 (5th Cir. 1988).
United States v Taylor, 802 F2d 1108, 1117 (9th Cir. 1986).
United States v Hamilton, 689 F2d 1262, 1269 (6th Cir. 1982).
Id at 1270. [It is enough that the declarant intended to further the conspiracy by his statement, not that he actually did.]
United States v Snider, 720 F2d 985, 992 (8th Cir. 1983).
United States v Posner, 764 F2d 1535, 1538 (11th Cir. 1985); United States v Blakely, 960 F2d 996, 998 (11th Cir. 1992) ["Statements which simply implicate on co- conspirator in an attempt to shift the blame from another, however, cannot be characterized as having been made to advance any objective of the conspiracy. On the contrary, statements that implicate a coconspirator, like statements that `spill the beans' concerning the conspiracy, are not admissible under Rule 801(d)(2)(E).]
United States v Urbanik, 801 F2d 692, 698 (4th Cir. 1986); United States v Urbanik, 591 F2d 513, 520 (9th Cir. 1979); United States v Nazemian, 948 F2d 522, 529 (9th Cir. 1991); United States v Pallais, 921 F2d 684, 688 (7th Cir. 1990) ["Mere chitchat, casual admission of culpability, and other noise and static in the information stream are not admissible."]
United States v Urbanik, 591 F2d 513 (9th Cir. 1979).
927 F2d 999 (7th Cir. 1991).
United States v Fielding, 645 F2d 719, 727 (9th Cir. 1981)["General statements made by Flores to Wagner concerning his business relationship with Fielding in no way advanced that conspiracy."]
569 F2d 575 (5th Cir. 1979)(en banc).
See Bourjaily v United States, supra, 483 US at 176, n.1; United States v Hernandez, 829 F2d 988, 994 (10th Cir. 1987) ["A determination as to the order of proof to be followed in a case such as this is left to the discretion of the trial judge, but absent some substantial reason not to do so, the preferred order of proof should be adhered."]
United States v Howard, 706 F2d 267, 370 (8th Cir. 1983) [McMillan, J., concurring].

A Note on the State Co-Conspirator Hearsay Rule
MRE 801(d)(2)(E)

Defense attorneys objecting to admission of a co- conspirator's statement in Michigan courts will find much of value in this month's lead article, which focuses on the federal rule. Several key points must be remembered, however, about the state rule, MRE 801(d)(2)(E).

State Rule Requires
Independent Proof of the Conspiracy

Unlike FRE 801(d)(2)(E), the Michigan rule specifically adds the requirement that the proponent show "independent proof of the conspiracy." The co-conspirator's statement alone thus may not establish the conspiracy, eliminating the "bootstrapping" problem which has been litigated under the federal rule. Bourjaily v United States, 483 US 171 (1987), held that the government need not prove the existence of the conspiracy through extrinsic evidence alone, but may use the co-conspirator's statement itself. The Supreme Court did not reach the question of whether "bootstrapping" alone is sufficient, that is, whether the prosecution may rely on only the statement to satisfy the requirement. In Michigan, more than the statement is required.

A Conspiracy Need Not Be Charged

As long as the defendants acted in concert and the statements were made while the common scheme or plan was still in effect, the co-conspirator's statements are admissible regardless of whether a conspiracy was actually charged. People v Stewart, 397 Mich 1 (1976); People v Champion, 97 Mich App 25 (1980), rev'd on other grds 411 Mich 468 (1981).

Burden of Proof and Course of Conspiracy

Like the federal rule, as interpreted recently in Bourjaily, supra, the Michigan rule requires the proponent to meet a "preponderance of the evidence" standard. People v Vega, 413 Mich 773 (1982); People v Rockwell, 188 Mich App 405 (1991).

A proper foundation must include proof that the statement was made "in the course of the conspiracy," under MRE 801(d)(2)(E). A statement made during an effort to cover up the crime may not qualify. People v Ayoub, 150 Mich App 150 (1985); People v Cadle, 204 Mich App 646, remanded on other grds 447 Mich 958 (1994).

Statement May Qualify Under Another Exception

A good example of alternative grounds for admission of hearsay is provided in the recent case of People v Brownridge, ___ Mich App ___ (#183507, 9-2-97). Reversing on other grounds but addressing the issue for retrial purposes, the panel ruled a statement inadmissible under the co-conspirator exception, as independent evidence of a conspiracy was not provided. However, the statement qualified as a present sense impression of its declarant, admissible to show that the declarant acted in accordance with his stated intention. MRE 803(3).

Discovery Rule Amended

The Michigan Supreme Court recently released an amendment to the criminal discovery rule, adding the following paragraph:

MCR 6.201 DISCOVERY

(A) - (G) [unchanged.]

(H) Continuing Duty to Disclose. If at any time a party discovers additional information or material subject to disclosure under this rule, the party, without further request, must promptly notify the other party. (I) and (J) [relettered, but unchanged.]

This amendment was suggested by the Michigan Judges Association, and was published for comment before adoption. It takes effect on January 1, 1998.

Study Finds Mandatory Minimum Sentences
Less Cost-Effective in Fighting Cocaine Crime

A new study by the Drug Policy Research Center of the Rand Corporation determines that mandatory minimum sentences given to defendants convicted of cocaine-related offenses are not as cost-effective as standard arrest, prosecution and sentencing practices, nor are they as cost-effective as treating addicted offenders. Using mathematical models, "Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money?" measures the cost effectiveness of achieving national drug and crime control goals by utilizing mandatory minimum sentences for cocaine offenders. The authors conclude that mandatory minimum sentences "are not justifiable on the basis of cost-effectiveness at reducing cocaine consumption, cocaine expenditures or drug-related crime."

The detailed report analyzes the likely changes in total cocaine consumption over time when an additional one million dollars is invested to deal with a representative sample of drug dealers in one of three ways: enforcing longer sentences by extending to federal mandatory minimum lengths the sentences of convicted dealers; utilizing conventional enforcement (arrest, confiscate the assets of, prosecute and incarcerate more dealers for discretionary prison terms); or treating heavy cocaine users. The authors focused on cocaine because they consider it the most problematic drug in the United States.

Researchers concluded that an additional $1 million spent on longer sentences for convicted drug dealers would reduce the nation's total annual consumption of cocaine - estimated to be between 276 and 321 tons - by less than 29 pounds a year. The same $1 million spent on conventional enforcement would reduce annual cocaine consumption by nearly 60 pounds. Investment of an additional $1 million in treating heavy cocaine users would reduce consumption by as much as 220 pounds.

The report reasons that the potential for higher prison sentences makes drug dealing a riskier business. To compensate for their increased risk, drug dealers increase the price of cocaine, thereby driving down consumption. However, the study found that mandatory minimums reduce cocaine consumption less per million taxpayer dollars spent than does spending the same amount on enforcement under the old, discretionary sentencing practices. A principal reason for this finding is the high cost of incarceration.

The cost to imprison a convicted felon runs between $20,000 and $30,000 a year. The Rand report estimates that a mix of residential and outpatient treatment would cost as little as $1,740 a year per person while residential treatment would cost between $8,000 and $16,000 a year.

The report acknowledges the intuitive appeal of longer sentences for serious crimes but it questions mandatory minimum sentences' effect on the desired diminution of crime related to cocaine use. It points out that removing a drug dealer from the street doesn't necessarily assure that further crimes will not occur, as a jailed dealer is often replaced by another dealer if demand continues.

The full text of the report is available from Rand at www.rand.org, or by calling (310) 451-7002. The report's summary was prepared by The Spangenberg Group [(617) 969-3820], and is reprinted with its permission. Please also see the related legislative update on page 11 of this month's newsletter.

Mandatory Drug Sentences Disproportionate,
Violate International Human Rights

Human Rights Watch recently released a report concluding that New York's mandatory drug sentences are disproportionate to the offense and therefore violate international human rights laws, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The disproportionality results from penalties equating drug offenses with much more serious murder and rape offenses, effectively transferring sentencing discretion from judges to prosecutors. The report is available from the Human Rights Watch Publications Department, 485 Fifth Ave., New York, NY 10017-6104, (212) 972-8400.

Prison-Based Education Very Effective at Crime Prevention

A new national study outlines overwhelming evidence linking prison-based education programs to dramatically reduced recidivism rates and crime prevention, finding such programs among the most effective of all crime prevention programs nationwide. Titled "Education as Crime Prevention: Providing Education to Prisoners," the study says that prison education programs also lead to substantial savings, higher productivity and employment levels for released inmates, and improved security within prisons. According to the study's author, the Center on Crime, Communities & Culture, education can be far more effective than such "alternative" prevention programs as boot camps and "shock incarceration."

Among the many results cited in the study are:

New York, Massachusetts, Maryland and other states all report significantly lower recidivism for inmates involved in prison-based education programs, rates ranging from 15.5% to as low as 1%;
Inmates with at least two years of college education have only a 10% re-arrest rate, compared to a national rate of 60%;
Despite a near 80% re-arrest rate for juvenile offenders, that rate is reduced by 20% or more when juveniles are involved in quality reading instruction programs;
93% of all prison wardens surveyed by Congress in 1993 strongly supported educational and vocational programming in correctional facilities.

The Center on Crime, Communities & Culture recommends the following:

reinstatement of Pell grants and financial support from a variety of public/private sources;
quality education for juvenile offenders with an emphasis on special education and transition to the community;
post-release support programs; and
evaluations of program effectiveness.

The full report is available from the Center at (202) 887- 0116 or by e-mail at cccc@sorosny.org.

From Our Readers: Prosecutor Investigative Subpoenas

The criminal defense community is gathering experience with the new tool handed to prosecutors in 1995: investigative subpoenas allow prosecutors to petition a district or circuit court judge for authority to issue one or more subpoenas to investigate the commission of a felony. Created by 1995 PA 148 (eff. 10-1-95), the subpoenas and any evidence obtained in an investigation are confidential, and prosecutors may file a motion for an order compelling compliance or granting immunity. A person may object to an investigative subpoena or file reasons for noncompliance, and may have legal counsel present during an inquiry.

Two readers are looking for input from other criminal defense attorneys. Ken Mogill writes commentary for Gillespies on the subject of investigative subpoenas (among other subjects), and would appreciate hearing from other attorneys on their use. Rosemary Gordon, a former prosecutor now in private practice, is briefing numerous challenges to use of the subpoenas in a Kalamazoo case. Working with a record well-preserved by the trial attorney, Ms. Gordon discovered subpoena use to compel the defendant to give testimony after he had terminated police interrogation by asking for a lawyer, among other practices. This case is likely to be the first producing an appellate decision, and may go to the Michigan Supreme Court. Any attorney who has experienced or briefed "abuses" of the subpoena power are encouraged to contact Ms. Gordon [(313) 640-9205], as well as Mr. Mogill [(313) 962-7210].

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

Legislative Update

Death Penalty. On October 7, 1997 the House Judiciary Committee held hearings on HJR M, a resolution which would place on the ballot a proposal to remove the constitutional ban against the death penalty in cases involving the murder of corrections officials. The joint resolution was supported by the Michigan Corrections Officers Association. Testimony in opposition was overwhelming and effective. The Committee refused to report the resolution. Special thanks to Jim Neuhard, testifying on behalf of the State Appellate Defender Office, Jim Krogsrud and Jeanice Dagher-Margosian for CDAM, and Andrea Lyon, a clinical professor at University of Michigan Law School who has extensive experience defending death cases in Illinois, for their successful efforts.

"Date-Rape" and Mandatory Minimums in Drug Cases. The House Judiciary Committee, also on October 7, reported HB 4065 which adds flunitrazepam (rohypnol) and methaqualone (aka the “date-rape” drugs) to schedule 1 of the controlled substances act. In a surprise move the Committee passed an amendment removing the mandatory non-parolable life sentence in over 650 cases, and reported the bill to the House floor.

The Senate Judiciary Committee, also on October 7, reported Senate Bills 280 and 281. These proposals would allow parole eligibility after 15 years for over 650 offenders but only if the prosecutor certifies that they have cooperated with law enforcement. The individual must also have been free of assault or drug convictions for ten years preceding the “certification” and cannot have ever been involved with any organization that dealt with five or more kilograms of a controlled substance.

For under 650 offenders, these bills remove the court’s ability to depart from the mandatory minimum sentences unless the defendant meets the conditions noted above. However, the bills now reduce the mandatory minimums to 10 years for 225-650 (formerly 20) and 5 years for 50-225 (formerly 10). The mandatory one-year mandatory minimum for under 50 grams is eliminated.

Finally, the Senate Judiciary Committee delayed action on Senate Bills 278 and 279, previously linked with 280 and 281, which immediately implement truth in sentencing and “bad time,” and substantially expand their reach.

Wiretap. Senate Bill 633, recently reported by the Senate Judiciary Committee and debated on the Senate floor on October 8, provides wiretap authority for state law enforcement agencies. The bill is likely to pass the Senate. Interested defense attorneys should consider testifying on this bill in House Committee, likely House Judiciary, when and if it is scheduled for hearing.

Predator Commitment. The House Mental Health Committee will hold hearings on HB 4963 and HB 5247. These bills would implement procedures by which violent and sexual “predators” could be committed involuntarily to a mental health facility after they have served their prison sentences. A similar Kansas scheme was recently upheld by the United States Supreme Court. Kansas v Hendricks, ___ US ___; 117 SCt 2072; 113 LEd2d 501 (1997). Testimony by criminal defense practitioners who have interest, knowledge or experience in this area is needed.

Stalking. Also on the move is HB 4264, which would expand the felony of aggravated stalking to include activity by persons with a prior record of domestic violence, or persons who make malicious phone calls. The bill is an apparent response to a Warren case, and was reported out of the House Corrections Committee on October 9, 1997.

The State Appellate Defender Lansing Office and SADO’s Criminal Defense Resource Center will attempt to relay legislative information on a more timely basis through the SADO web site and the SADO Forum. Defense attorneys interested in participating in the legislative process with regard to any of the bills discussed in this or future updates should contact Marty Tieber, Deputy Defender, at SADO’s Lansing Office. Marty can be reached by phone, (517) 334- 6069, fax, (517) 334-6987 or e-mail, marty @sado.org. It is critical that we get more defense involvement!

Renew Your Newsletter Subscription Now

This issue marks the beginning of a new subscription year, so please make sure that your subscription is current. A renewal form is inserted this month. If you are unsure about your subscription status, please call Maria Sanchez at (313) 256-9833, or send her an e-mail at maria@sado.org.

Subscription rates remain at last year's level, making the Criminal Defense Newsletter a real bargain. We are planning many enhancements this year, including speedier delivery, so please be sure to stay on our list. Thanks for over twenty years of support!

Criminal Defense Attorneys Honored by State Bar

Four of seven Michigan attorneys recently honored by the State Bar of Michigan as "Champions of Justice" are criminal defense attorneys. Appearing to receive their awards at a September 17th luncheon were Myzell Sowell, Stuart D. Hubbell, J. Bruce Donaldson and Raymond J. MacNeil. The awards were a prominent feature of the Bar's Annual Meeting in Detroit. The State Bar's Board of Commissioners select recipients for their extraordinary professional accomplishments and dedication to their nation, state and local communities.

Myzell Sowell, well-known in Detroit for his commitment to providing legal services to the poor, graduated from the Detroit College of Law in 1952. He has served the profession through many professional and civic organizations including the National Bar Association, National Lawyers Guild, National Legal Aid and Defender Association and Federal Bar Association.

The other three "Champions" were recognized as a team for their work on the highly-publicized JerryTobias murder case in Gaylord. Hubbell, Donaldson and MacNeil battled for over six years to free their clients, Terry Moore and Mark Canter. During the appeal process, they developed evidence that the original convictions were based on perjured testimony involving the star witness and police officers, also demonstrating that the prosecution withheld information that would have contributed to the defendant's defense. The fascinating facts of the case appear at 197 Mich App 550 (1992), the appeal of Mark Canter which led to remand for an evidentiary hearing. The three attorneys were either court-appointed or working pro bono, reaping scant financial remuneration. Michigan Attorney General Frank Kelley appeared at the luncheon and supported the award's recipients, noting that they "demonstrated the highest principles of the legal profession." Luncheon remarks of one client, Terry Moore, accompany this item.

Congratulations to these great representatives of the criminal defense community!

Remarks of Terry Moore: Champion of Justice Award

Good afternoon Ladies and Gentlemen.

My name is Terry Moore and with me is Mark Canter. We want to tell you how glad we are to be here. As a matter of fact, after what we have been through we're glad to be anywhere. We all know to err is human, but when you are the object of this error in the justice system, it can be a personal catastrophe.

We not only lost our freedom, I lost my business, my good name, my friends and 8 and one-half years of growing up with my 3 children.

When I met Stuart Hubbell, I was depressed, desperate and broke. The good news is that because of my lack of funds, Stuart was appointed as my appellate counsel. Stuart took my case as a favor to my trial judge in June of 1989 after many attorneys within a 80-mile radius of Gaylord turned it down.

When Stuart was appointed, I wrote to him from prison to tell him, at great length, what I thought had gone wrong at the trial and how I was feeling. After reading a portion of his reply I became even more depressed.

What he said basically was, "Sorry about your situation, but I don't have the time to be your therapist."

But, little did I know . . . I had "Superman" on my side.

The Attorney General's Office spent over 8 months investigating this case which led to these three men joining together as a team in 1993, making a joint effort to make this wrong - right. When that happened I no longer had "Supermen" on my side, but we had a team of "Supermen:" Ray, Bruce and Stuart. Ray brought to the team a high sense of fairness and justice. Bruce brought experience and his dynamic courtroom presence and Stuart brought his bulldog tenacity.

We are so glad that the State Bar of Michigan recognizes these 8 and one-half years of hard work on our behalf. Because there is no award that we can give these gentlemen. It is our great pleasure to be here to present our Heroes with the State Bar of Michigan's Champion of Justice Award and be assured, along with it is our life-long gratitude.

Prisons and Corrections Section Selects Council,
Conducts First Program

The Prisons and Corrections Section of the State Bar held its first meeting on September 13, 1997, during the Bar's annual meeting in Detroit. A well-attended program included a panel discussion on parole, moderated by Eaton Circuit Judge Thomas Eveland. In addition to detailed information about the parole process, several important themes emerged. Former Parole Board Chairperson Gary Gabry emphasized that the members of the current "citizen" parole board, established in 1992, have no civil services protection and little criminal justice experience. A substantial increase in the rate of prisoners being denied parole at their first eligibility date is directly attributable to the politicization of the board. Moreover, the Board is not even charged with making parole policy. Policy decisions, such as the weighing of the parole guidelines, is done by the DOC. Board members simply process files as quickly as possible, and avoid taking risks that might discredit them.

Defense attorney Stuart Friedman emphasized that defense lawyers and judges have historically believed that the minimum sentence is an accurate predictor of when a client who behaves reasonably will be released. If the parole board simply treats the minimum as the point at which it decides if the sentence is long enough, the assumptions underlying both plea bargaining and judicial sentencing practices are drastically skewed. Release on the minimum is further complicated if the board (or the prosecution) insists that the defendant receive treatment that the DOC does not have available. Mr. Friedman also noted that making parole decisions in response to a few high profile cases ignores the majority of parolees who quietly go on to lead productive lives.

Attendees also elected the Section's first council members. They are:

Prof. Justin Brooks, Cooley Law School

Stuart Friedman, Private Practice, Ann Arbor

Sandra Girard, Prison Legal Services

Stephen Gobbo, DOC

Christine Grand, State Defender Office, Detroit

Carol Koenig, Cain Monitor

Barbara Levine, MAACS

Daniel Levy, Attorney General's Office

Tracie Palmer, Private Practice, Detroit

Arvid Perrin, DOC

Suzanne Schuelke, Private Practice, Livonia

Marjorie Van Ochten, DOC

The elected members in turn selected three non- attorney associate members:

Chief Kenneth Madejczyk, Grandville Police Department

George Miller, Oakland County Community Corrections

Penny Rider, American Friends Service Committee

The council will hold its first meeting on October 25th and will elect officers at that time. More information about the Section's goals and how to join appear in the insert enclosed in this Newsletter.

In a Manner of Speaking . . .

We couldn't help but wonder if Chippewa County Probation is onto something, given this submission by Chief Public Defender Jay S. Finch.

From a Presentence Report in a Drunk Driving Case:

Criminal History
[dating back to 1965, four OUIL convictions, plus miscellaneous convictions for assault, larceny, escape, reckless driving and burglary]

Screening and Plan
[defendant continues to use alcohol, has completed several treatment programs and participated in Alcoholics Anonymous]

Recommendations [among others]: "That his [defendant's] life be suspended for 2 years."

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

Practice Note: Comments on Defendant's Presence During Trial

Dave Moran, an Assistant Defender at SADO, provides this month's suggestion to preserve issues which may lose under state law, but yet prevail under federal.

Not long ago, in People v Buckey, 424 Mich 1 (1985), the Michigan Supreme Court upheld as proper commentary on a defendant's credibility the prosecutor's argument that defendant had an opportunity to fabricate his testimony because he had watched all of the other witnesses. In July of this year, the Second Circuit Court of Appeals specifically rejected the Buckey analysis and found federal constitutional violations which required federal habeas relief. Agard v Portuondo, 117 F3d 696, 707-715 (CA2, 1997). Such argument violates the Sixth Amendment Confrontation Clause, a defendant's right to testify on his or her own behalf, and the due process right to a fair trial. The Second Circuit appears to be the first federal court of appeal to reach the issue, but the opinion cites decisions from six states holding such prosecutorial argument unconstitutional. Apparently, two states in addition to Michigan have ruled such argument permissible.

Attorneys are encouraged to preserve the issue for federal review, and to brief it as a federal constitutional issue on appeal. Thanks to Dave for the tip.

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.

Anonymous Jurors

The trial court violated the defendant's due process rights by empaneling an anonymous jury referred to only by badge number. BB 8141.

Multiple Sentence Enhancement

The sentencing court abused its discretion in determining to order consecutive sentencing where the sentence had already been twice distinctly enhanced on the basis of the same facts which gave rise to the potential of consecutive sentencing. BB 8137.

Cost of Prosecution

The portion of the judgment of sentence requiring defendant to pay $2,000 in costs must be vacated because the record fails to reflect that the costs levied were reasonably related to the expense of the prosecution. BB 8134.

Factual Basis for Guilty Plea

The defendant was denied his state and federal due process rights to notice, disclosure, and a fair and accurate sentencing hearing where the court relied on the co- defendant's plea admissions and pre-sentencing statements, admissions and statements that were not made a part of the record in the defendant's case, in support of the conclusion that both defendants acted with premeditation and deliberation. BB 8054.

Forfeiture

The trial court violated defendant's due process rights by allowing the prosecutor to question appellant about appellant's failure to contest a civil drug forfeiture case arising out of the same incident. BB 8163.

From Other States

Illinois: GBMI Statute Unconstitutional

Despite the existence of several decisions rejecting the claim, a due process violation was established to the satisfaction of a majority of the Illinois Appellate Court, Second District, which recently ruled that state's Guilty But Mentally Ill (GBMI) statute unconstitutional. Illinois v Robles, 288 Ill App 3d 935, 682 NE2d 194 (1997). The statute's language suggests that a GBMI verdict finds a defendant less culpable than one who is merely "guilty," and that he or she will receive a less onerous punishment. In fact, the GBMI verdict carries no legal consequences different from those of a regular guilty verdict, according to the majority. By misleading jurors, the statute unconstitutionally encourages compromise verdicts. The majority also found a due process defect in the imposition of conflicting burdens on the defendant when the insanity defense is raised and the state obtains a GBMI instruction. For insanity purposes, the defendant must prove he did not know what he was doing; simultaneously, the GBMI instruction requires him to prove he did know what he was doing. [Editor's note: It may be time to challenge the Michigan statute once again, given the Illinois support, even though the first due process argument failed in People v Ramsey, 422 Mich 500 (1985). Attorneys may wish to consider collecting data on the verdicts, and preserving the issue for federal constitutional review. A 1995 appellate brief on the issue is available to attorneys from the Legal Resources Project.]

Nevada: "No Merit" Appeals

The Nevada Supreme Court announced a new procedure for appeals in which attorneys question the merit of potential issues, disapproving of the "Anders" procedure previously in place. Relying on Anders v California, 386 US 738, 87 SCt 1396, 18 LEd2d 493 (1967) as authority, the Court used to allow appellate attorneys to file a "no merit affidavit" indicating no meritorious issues in an appeal. Now, in Ramos v State, ___ Nev ___, ___ P2d ___, 1997 WL 533631 (#30305, 8-28-97), the Court deems such procedure "schizophrenic" and a "quagmire" which expends more court resources than a normal appeal. Cautioning attorneys to avoid misleading arguments, the Nevada Supreme Court directed appellate attorneys to file briefs choosing the defendant's best arguments even if, on occasion, those arguments are frivolous. An exception to the rules of professional conduct, allowing the pursuit of a frivolous appeal, was simultaneously created. [Editor's note: despite the fact that the Anders procedure has never been approved in Michigan, we continue to receive inquiries from attorneys who wish to file pleadings which acknowledge lack of merit in their clients' cases. Attorneys should review the minimum standards for Indigent Criminal Appellate Defense Services approved by the Michigan Supreme Court in 1982, found at 412 Mich lxv.]

Criminal Defense Online

New Web Sites

State government is inching its way to a fuller Web presence, as the State Legislature now has a site with more than directory information. The Michigan Legislative Information Web Server, found at www.michiganlegislature.org, contains searchable bill status information on pending legislation, as well as daily journals and calendars. Users must use an Adobe plug-in to read most of the documents.

New Training Dates

We've filled in our fall training calendar for training criminal defense attorneys on use of the Internet, adding events on November 5 (Bay City), November 7 (Traverse City), November 14 (Bloomfield Hills), and November 18 and 19 (Mt. Clemens). John Powell will cover how to navigate the Web, perform legal research and use that research in document preparation. The half-day events fill rapidly, so call John now [(313) 256-9833] to register.

Training Events

The Criminal Defense Resource Center of the State Appellate Defender Office (SADO) will continue its popular "Criminal Defense Attorneys and the Internet," a statewide training project, with sessions planned for October 30 (Macomb County Bar Association), October 31 (Oakland County Bar Association), November 5 (Bay County Defender Office), November 7 (Traverse City CDAM Conference), November 14 (Oakland County Bar Association), November 18 and 19 (Macomb County Bar Association). Each half-day event covers how to access and navigate the Internet, perform legal research in the many available sites, and use the retreived materials in word processing. Training groups are small, with many opportunities for one-on-one feedback. Limited seats are available, so please don't delay in contacting John Powell at (313) 256-9833.

The Criminal Advocacy Program (CAP) of Wayne Circuit and Recorder's Court will present once again its annual series of seminars for court-appointed criminal defense attorneys, including sessions on the "Nuts and Bolts" of practice (October 31, 1997), Michigan Law Update (November 7, 1997), and an Update on U.S. Supreme Court decisions (December 5, 1997). All sessions will be held in the 13th Floor Auditorium of Detroit's City- County Building, and will begin at 1:30.

The National Association of Criminal Defense Lawyers (NACDL) will present its Fall Meeting and Seminar on October 29 to November 1, 1997, in New York City. Titled "Galaxy of Stars: Winning Trial Techniques," the Seminar will feature well-known lecturers as well as a group of judges who previously practiced criminal defense. The judges will describe winning trial tactics, as well as mistakes to avoid, speaking from their new perspectives. Meeting fees range from $150 to $450, depending on years of practice and events chosen. More information is available from NACDL by calling Kyra Grundeman at (202) 872-8600, ext. 236.

The Criminal Defense Attorneys of Michigan (CDAM) will present its fall conference, titled "Pretrial Strategy & New Issues," on November 7-8, 1997, in Traverse City, Michigan. Speakers will address syndrome and other "pseudo-science" testimony, expert witnesses, pre- trial motion strategy, MRE 404(b) and character evidence for the defense, theory of the case, new issues, polygraph issues, sentencing and sex registration issues. The Legal Resources Project will also present a training session on criminal defense attorneys' use of the Internet for research and writing. The nonrefundable conference fee is $40, and early registration is recommended. Contact Mary Sawnick at (313) 256-9833 for more information.

The Wisconsin Public Defender (WPD) invites Michigan attorneys to attend its 1997 Annual Fall Criminal Defense Conference on November 13-14, 1997, in Milwaukee, Wisconsin. Using three tracks, advanced, basic and appellate, the conference will offer a mixed lecture/workshop presentation of topics such as negotiation tactics, dealing with juvenile or developmentally disabled clients and cross-examination of eyewitnesses and police officers. Tuition for the conference is $279, and more information is available by calling Gary Ace at (608) 267- 0581.

The State Bar of Michigan's Appellate Practice Section will present "Final Orders in the Court of Appeals," on Friday, November 14, 1997, from 2:30 to 4:30 p.m., at the Doubletree Hotel in Detroit, Michigan. The event will feature a panel composed of Court of Appeals judges and staff, who will discuss the "top ten final order mistakes." Seating is limited, and registration is free for Appellate Practice Section members, and $15 for non- Section members. For more information or to register, contact Sue Zitterman at (313) 965-7905.

The Michigan Council on Crime and Delinquency (MCCD) will host its 41st Annual Conference on November 19, 1997, in East Lansing, Michigan. The conference, titled "Local Prevention Initiatives in Michigan," will examine development of a comprehensive strategy for serious, violent, and chronic juvenile offenders. Contact MCCD at (517) 482-4161

The National Organization for the Reform of Marijuana Laws (NORML) will host its annual Criminal Defense Seminar on December 4-6, 1997, in Key West, Florida. Presenters will address a wide variety of topics, including immigration consequences, ethics, trials involving multiple defendants, medical issues, closing arguments, and use of medical experts. Registration fees range in amount from $175 to $475, and more information is available from NORML at (202) 483-5500.

The National Legal Aid & Defender Association (NLADA) will host "Justice at the Crossroads: Visions for the Future," its 75th Annual Conference, on December 10- 13, 1997, in St. Louis, Missouri. In addition to business meetings, the conference will include more than 50 workshops providing substantive training. Watch this space for details, as they become available.

The National Association of Criminal Defense Lawyers (NACDL) will host a Ski Seminar on Criminal Law on January 18-23, 1998, in Aspen, Colorado. NACDL advises that the seminar is known for attracting exceptionally talented lawyers and judges, and for a spirit of camaraderie among participants that "greatly enriches the total educational and social experience." Seminar registration is $500, and more information is available from NACDL's Kyra Grundeman at (202) 872-8600, ext. 236.

The National Association of Criminal Defense Lawyers will host "Hot Topics in Criminal Defense," in Puerto Rico, on February 4-7, 1998. Current and controversial criminal cases will be discussed by attorneys who handled them, with focus on such issues as "voodoo science," defending an accused attorney, media and trial coverage, the art of securing bail, downward sentence departures and "cutting edge" arguments, and defending the "fringe." Details, including registration costs, are available from NACDL at (202) 872-8600.

The Center for Legal Studies of Wayne State University will present a luncheon lecture by Political Science Professor Susan Fino on "Crackpot Science in Legislatures and Courts," at 12:00 p.m. on March 16, 1998, in Detroit, Michigan. The lecture takes place in the McGregor Memorial Conference Center on Wayne's campus, and is free. For more information, contact the Center at (313) 577-3947.

Certiorari Granted in the United States Supreme Court

JURY -- Exclusion of Juror by Race, Gender, Age
JURY -- Selection
GRAND JURY PROCEEDINGS
Campbell v Louisiana
#96-1584, 9-29-97
62 CrL 3001

Granting review to the defendant, the Court agreed to review whether: (1) a white defendant has standing to object to race-based exclusion of a grand jury foreman on Equal Protection grounds even if the defendant is not of the same race; (2) that defendant has standing to raise a due process claim that former and current foremen of his grand jury had been selected in a pattern demonstrating racial discrimination against blacks, in violation of his Fifth and Fourteenth Amendment rights; and (3) standing exists to raise a fair cross-section claim that former and current foremen had been selected in a pattern demonstrating racial discrimination against blacks in violation of his Fifth, Sixth and Fourteenth Amendment rights. Case below: 661 So2d 1321 (La SupCt 1995).

RETROACTIVITY
INSTRUCTIONS--Included Offenses
Hopkins v Reeves
#96-1693
9-29-97
62 CrL 3001

At issue in this capital punishment case is whether the trial court properly applied a state rule prohibiting instruction on other forms of homicide as lesser included offenses of felony murder, where Beck v Alabama, 447 US 625 (1980), forbids "death or nothing" instructions. The Court has agreed to consider: (1) whether the ruling in this case creates a conflict with Greenwalt v Ricketts, 943 F2d 1020 (CA9 1991) which requires resolution; (2) whether a federal court may impose the Beck requirement on a state court applying state substantive law; and (3) whether the lower court's decision amounted to a new rule under Teague v Lane, 489 US 288 (1989). Case below: 102 F3d 977 (CA8 1996).

RETROACTIVITY
18 USC 924(c)
Bousley v Brooks
#96-8516, 9-29-97
62 CrL 3001

The questions presented in the case are: (1) whether Bailey v United States, 516 US 137 (1995) ap-plies retroactively so that the defendant who pled guilty to using a firearm in violation of 18 USC 924(c) is entitled to collateral relief upon proof that he was not told that the facts of his case do not amount to "use" under 924(c); and (2) whether a guilty plea waives the defendant's right to attack his conviction when subsequent changes in the law make the facts on which the plea was based non-criminal. Case below: 97 F3d 284 (CA8, 1996).

United States District Court Opinion

HABEAS CORPUS – Federal
APPEALS – Motion for Relief From Judgment
Gonzalez v Elo
#95-40187
August 6, 1997

Petitioner in pro per.

District Judge Paul V. Gadola of the Eastern District of Michigan, Southern Division, agreed with the magistrate in this case that an evidentiary hearing was needed on habeas petitioner Gonzalez's claim of ineffective assistance of trial counsel. Mr. Gonzalez returned to the trial court with a 6.500 motion for relief from judgment, alleging that his trial attorney failed to inform him of his right to testify. Without holding a hearing on the claim, and relying only on petitioner's affidavit, the trial court denied the motion. Following an unsuccessful appeal through the state system, the federal district court found the state court's findings were not entitled to a presumption of correctness under 28 USC 2254. Such a presumption is only recognized if a habeas petitioner received a "full, fair and adequate hearing" in the state court proceeding. Relying only on the affidavit, the state court found that petitioner must have understood he had an unconditional right to testify because he stated in his affidavit that he told his attorney that he wanted to testify. Judge Gadola did not feel that this established that petitioner recognized that he had an absolute right to testify. The "paper hearing" which took place was not adequate, so a full hearing was ordered. Case below: unpublished orders (January 9, 1990, February 28, 1991 & October 29, 1991).

The opinion is available to attorneys upon request.

Michigan Supreme Court Order

SENTENCING AND PUNISHMENT -- Juvenile
People v Galloway
456 Mich 866 (1997)

Granting the defendant's motion for reconsideration, the Court vacated its prior order and remanded the case for resentencing. Defendant argued and the Court agreed that the sentencing judge improperly sentenced him as an adult without first considering the six-factor test of MCL 769.1(3); MSA 28.1072(3). In support of his claim of prejudice, defendant noted that the sentencing guidelines were exceeded and every witness and report recommended sentencing as a juvenile. Case below: unpublished opinion (#176525, 8-2-96).

Leave Granted in the Michigan Supreme Court

RETROACTIVITY
CONFESSIONS -- Absence of Counsel
CONFESSIONS -- Waiver of Miranda Rights
People v Clifton Davis;
People v Corey Edward Sexton;
People v Bryce W. Young
#108749; 108195; 109143
August 13, 1997

Carolyn Blanchard for defendant-appellee Davis; Mitchell Ribitwer for defendant-appellee Sexton; F. Michael Schuck for defendant-appellee Young.

At issue in these three cases, separately tried and consolidated in the Supreme Court, is whether the decision of People v Bender, 452 Mich 594 (1996), should be retroactively applied. The defendants each won reversal in the Court of Appeals, which ruled in each case that statements to police were erroneously admitted. While the Court of Appeals reversed by order in Davis, opinions in the other cases revealed that police failed to advise the defendants that retained attorneys were available. Interrogation continued in each case, producing a statement, before the attorneys were permitted to speak with their clients. The prosecution's application for leave in Davis argues that Bender established a new rule of law, inconsistent with federal law and the law of other jurisdictions. Terming Bender's rule "prophylactic," the prosecution argues that Bender cannot be applied retroactively to these cases. Cases below: unpublished order in Davis (#171338, 2-12-97); unpublished opinion in Sexton (#177061, 12-20-96); 222 Mich App 498 (1997) in Young.

DEFENSES -- Insanity
DEFENSES -- Right to Present
DUE PROCESS VIOLATION -- Right to Present Defense
DUE PROCESS VIOLATION -- Failure to Give Notice and Opportunity to be Heard
MCL 330.2050 [Civil Commitment]
People v Webb
#104587, September 9, 1997

Paul Bennett, State Appellate Defender Office, for defendant-appellant.

Granting leave to the defendant, the Court limited review to whether: "(1) the defendant's conviction should be reversed because the trial court limited the defense expert's testimony to only the information in his written report; and (2) whether the trial court erred by not referring the defendant to the Center for Forensic Psychiatry pursuant to MCL 330.2050; MSA 14.800 (1050)." Defendant's guilty but mentally ill verdict on second-degree murder was affirmed by the Court of Appeals, which agreed that the trial court appropriately limited the defense psychiatric expert's testimony to the "four corners" of his report. The court sustained prosecution objections when the expert started to testify about observing defendant in court and relying on the reports of others in drawing his own conclusions, even though those reports were listed in the psychiatrist's own report. Citing the goals of preventing surprise to opposing counsel and protecting the integrity of insanity evidence, the Court of Appeals denied relief.

The second issue relates to the fact that while found GBMI as to one killing, the defendant was not guilty by reason of insanity as to another. He argued that he was entitled to commitment for evaluation of his then-present mental condition, before commitment to the Department of Corrections. The Court of Appeals observed that some evaluation is required of those GBMI defendants committed to the Corrections Department, but could not discern whether the evaluation had yet taken place. It ordered remand to the trial court, directing compliance with the NGRI commitment statute "unless otherwise moot." Case below: unpublished opinion (#154722, 10-3-95).

WITNESSES --Due Diligence in Production Of
EVIDENCE -- Prior Testimony
People v Kimani Bean
#105414, 10-6-97

Elizabeth Jacobs for defendant-appellant.

Granting leave to the defendant, the Court limited review to "whether the trial court committed reversible error in finding that plaintiff exercised due diligence in attempting to locate witnesses Pryor and Anderson." The Court of Appeals summarily rejected defendant's claim, finding that the trial court's determination of due diligence was not clearly erroneous and was adequately supported by the record. The panel also found no abuse of discretion in admission of the missing res gestae witnesses' preliminary examination testimony, and upheld the trial court's refusal to use CJI2d 5.12. Defendant argued in his application that virtually none of the customary attempts to locate a missing witness were employed, despite the fact that police were on notice that these witnesses would be difficult to track down. Case below: unpublished opinion (#167029, 1-9-96).

COUNSEL -- Ineffectiveness Of -- Trial Strategy
COUNSEL -- Ineffectiveness Of -- Failure to Investigate
People v Beard
#104162, 10-10-97

Martin J. Beres for defendant-appellant.

Granting leave to the defendant, the Court limited review to "whether defendant was denied effective assistance of counsel." Following remand from the Supreme Court, the Court of Appeals remanded for anevidentiary hearing on the ineffective assistance claim. Reviewing the transcript of that hearing, at which trial counsel testified, the panel concluded that decisions were a matter of trial strategy and that defendant was not prejudiced. Trial counsel failed to interview before trial one Blackwell, a person who was not called as a witness despite that fact that one witness testified that Blackwell shot the decedent. Blackwell testified at a post-trial hearing that he had killed the decedent. At the more recent evidentiary hearing, counsel explained that he did not think Blackwell would be believable; namely, that his confession would appear "concocted," particularly in light of the fact that Blackwell had come forward late. Applying the standard of People v Pickens, 446 Mich 298 (1994), the Court of Appeals panel did not feel that defendant met the burden of showing counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. By not calling Blackwell, defense counsel deprived the prosecution of a chance to cross-examine him. The defense theory was otherwise presented through another witness's testimony, and Blackwell's testimony conflicted with other evidence on location and time of the shooting. The panel felt it unlikely that the jury would have found Blackwell to be a credible witness. Case below: unpublished opinion (#180010, 8-15-95).

Michigan Supreme Court Opinions

APPEALS -- Harmless Error
JURY -- Prejudicial Publicity
JURY -- Improper Conduct
JURY -- Requirement of Impartiality
People v Budzyn
People v Nevers
#102654, #102655
July 31, 1997
CAROLE STANYAR
and NEIL FINK

On leave granted to the defendants, the Court reversed defendant Budzyn's jury-tried conviction of second-degree murder and remanded for a new trial, and affirmed defendant Nevers' jury-tried conviction of second-degree murder. Case below: unpublished opinion (#170477, #170478, 3-22-95).

Defendants, Detroit police officers, were charged with "killing a suspected drug user [Malice Green] while attempting to arrest him while the suspect was holding contraband," and were tried jointly before separate juries. Justice Riley, with Justices Brickley, Cavanagh, and Weaver, concluded that both defendants demonstrated that jurors were exposed to extraneous influences, which created "a real and substantial possibility that they could have affected the jury's verdict." The error, however, was harmless as to defendant Nevers. Jurors were shown the film "Malcolm X" near the end of the trial, were made aware during deliberation of contingency plans made by the city in case of a not-guilty verdict, and considered defendants' alleged participation in STRESS, a police unit notorious for violence against black males. Parallels between "Malcolm X," which contains footage of the Rodney King beating and an explicit reference to the City of Detroit, and the circumstances of the instant case, were "unmistakable." Although the movie contained no extrajudicial facts, its "forceful words and images" fed into jurors' knowledge of the contingency plans, and defendants established a direct connection between jurors' discussion of defendants' alleged participation in STRESS and the adverse verdicts. Nonetheless, the prosecutor showed that the errors were harmless as to defendant Nevers, as three Emergency Medical Technicians testified that they watched Nevers continue striking Malice Green in the head after Green appeared to lose consciousness. The errors were not harmless as to defendant Budzyn, however. Three civilian witnesses did not see his flashlight make contact with Green's head (though Budzyn was straddling Green in the front seat of a car and the witnesses heard such contact), and they testified that he struck Green because Green wouldn't release the suspected contraband. Moreover, these witnesses had been drinking or using cocaine, were Green's friends, and knew and "had reason to dislike these officers."

Justice Boyle, concurring in part and dissenting in part, criticized both the majority and the dissent for defining the movie as an extraneous influence and for exploring jurors' subjective response to the film. She would find that exposure to the contingency plans wouldn't require reversal because the information was immaterial to guilt, but agreed that jurors' discussion of defendant Budzyn's alleged participation in STRESS required reversal of his conviction.

Chief Justice Mallett, concurring in part and dissenting in part, would conclude that both defendants failed to make a sufficient showing of the requisite level of potential prejudice. He stated that the jurors, mostly black, could distinguish between pictures and the facts of the instant case, and the exposure did not occur during deliberations, which would have heightened potential prejudice. There was a lack of proof of the degree of juror exposure to the contingency plans, and juror discussion of police brutality and the alleged brutality of the STRESS unit was inevitable since police brutality was essentially the subject of the trial. Assuming that defendants did establish the requisite level of potential prejudice, the errors were harmless beyond a reasonable doubt as to both defendants. The credibility of the civilian witnesses was for the jury to determine, in his opinion.

SENTENCING AND PUNISHMENT -- Restitution
CRIME VICTIMS RIGHTS ACT
CONSPIRACY
People v Grant
#103165
July 15, 1997
BRIAN SULLIVAN

On leave granted to the prosecutor, the Court, reversing the Court of Appeals, reinstated the trial court's order for restitution of $175,000 in connection with the defendant's plea-based conviction of conspiracy to commit uttering and publishing. Case below: 210 Mich App 467 (1995).

The trial court did not err in failing to hold a hearing or make express findings on the amount of the loss and defendant's ability to pay the restitution ordered, where pursuant to a plea bargain defendant agreed that the trial court would set the amount of restitution, and where defendant did not contest the amount ordered or his ability to pay but asserted his limited participation in the conspiracy. In a unanimous opinion by Justice Boyle, the Court stated that absent a challenge by the defendant, the trial court may rely on information in the presentence report regarding the amount of the victims' losses. Although defendant only gave others rides to stores or banks, a co-conspirator is criminally responsible for acts of other conspirators in furtherance of the conspiracy. The plea agreement in this case created a presumption of defendant's ability to pay, and because defendant did not contest the issue and no evidence showed defendant's inability to pay, the court could implicitly consider the factors enumerated in the statute. Note that this case was decided under provisions of the Crime Victims Rights Act prior to 1994 amendments that eliminated the trial court's need to consider defendant's ability to pay restitution.

GUILTY PLEA -- Refusal to Accept
GUILTY PLEA -- Sentencing Aspect
GUILTY PLEA -- Plea Negotiation
JUDGE -- Abuse of Discretion
MCR 6.302(C)(3)
MCR 6.001(D)
MCR 2.401(B)(1)(b)
JUDGE -- Duty to Grant Mistrial
JURY -- Prejudice of Individual Jurors
SENTENCING AND PUNISHMENT -- Presentence Reports -- Contents
APPEALS -- Standard of Review -- Abuse of Discretion
People v Grove
People v Austin
#103004, #103521
July 29, 1997
SADO - VALERIE NEWMAN

In Grove, on leave granted to the prosecutor, the Court reversed the Court of Appeals and reinstated the defendant's jury-tried conviction of second-degree criminal sexual conduct. In Austin, on leave granted to defendant, the Court, affirming the Court of Appeals, let stand the defendant's jury-tried convictions of two counts of first-degree criminal sexual conduct, his plea-based conviction of fourth-degree criminal sexual conduct, and his sentence as a habitual offender, second offense, but remanded for correction of defendant's presentence report. Cases below: 208 Mich App 574 (1995) (Grove), 209 Mich App 564 (1995) (Austin).

In Grove, Justice Boyle, with Chief Justice Mallett and Justices Brickley, Riley, and Weaver, held that the trial court had the discretion under MCR 6.302(C)(3) and People v Killebrew, 416 Mich 189 (1982), to reject defendant's plea underlying a plea agreement containing a prosecutorial sentence recommendation, where defendant was charged with first and second-degree criminal sexual conduct, but where the prosecutor and defendant agreed that defendant would plead guilty to fourth-degree criminal sexual conduct with a sentence cap of one year. Although the prosecutor entered the agreement in part because the victim, defendant's minor daughter, had previously recanted, the judge rejected defendant's plea because he thought prison time would be appropriate in the event of a conviction. Compelling a judge to accept such a plea would effectively transfer the court's sentencing discretion in cases where a substantial reduction in the sentence range would result, and would erode public confidence in the judiciary. Moreover, MCL 767.29; MSA 28.969, which requires a prosecutor to state reasons on the record and obtain leave of court to abandon a prosecution, also supports the Court's conclusion that the trial court may reject the underlying plea itself.

In Austin, the Court held that the trial court did not abuse its discretion by rejecting defendant's guilty plea, where the plea was tendered on the day before trial, after the cutoff date for plea agreements contained in the trial court's scheduling order, but where the prosecutor did not offer the plea bargain until that time. Trial courts' ability to control their dockets and efficiently use jurors and witnesses outweigh the parties' interests in such cases. Also, MCR 6.001(D), which allows application of rules of civil procedure in criminal cases, and MCR 2.401(B)(1)(b), which allows the trial judge to set time limits for pretrial actions, implicitly authorize the trial court's action in this case.

Defendant Austin was not prejudiced by alleged juror misconduct, where a juror learned from his wife during trial that defendant had other criminal sexual conduct charges pending. The juror said during the hearing on defendant's mistrial motion that he had already made up his mind at the time, and that the information confirmed his conclusion. However, the Supreme Court concluded that the trial court did not abuse its discretion in denying defendant's mistrial motion, as the juror also stated that he didn't discuss the information with other jurors or consider it while deliberating.

Remand was necessary to allow the trial court to delete two letters from defendant Austin's presentence report. Although, when sentencing defendant, the trial court did not consider the letters, which contained unsubstantiated allegations by an investigating officer, the letters were not stricken prior to transmission of the PSIR to the Department of Corrections.

Justice Kelly, joined by Justice Cavanagh, dissenting, would find in Grove that the trial judge acted as a "superprosecutor" by rejecting defendant's plea, contrary to Genesee Prosecutor v Genesee Circuit Judge I and II, 386 Mich 672 (1972), 391 Mich 115 (1974). Because consent to a guilty plea is no longer required under the court rules, the trial court has authority only to accept or reject the prosecutor's sentence recommendation. Thus, remand for further proceedings pursuant to Killebrew would be necessary. In Austin, the dissenters found no explicit authority in the court rules for the trial court's rejection of defendant's proffered plea, and, as in Grove, the trial court's action usurped prosecutorial authority. Although resolution of the other issues rendered the issue moot, the dissent concluded that defendant was denied a fair trial by the juror's exposure to extraneous information, and agreed that remand was necessary to correct defendant's presentence report.

JURY -- Prejudicial Publicity
JURY -- Challenges -- For Cause
JURY -- Requirement of Impartiality
PRETRIAL PROCEEDINGS AND MOTIONS -- Change of Venue
APPEALS -- Standard of Review -- Abuse of Discretion
People v Jendrzejewski
#103374
July 29, 1997
SADO - CORI YATES

On leave granted to the prosecutor, the Court vacated the Court of Appeals' reversal of the defendant's jury-tried convictions of first-degree murder and remanded for consideration of other issues raised by defendant on appeal. Case below: unpublished opinion (#168041, 4-6-95).

The trial court did not abuse its discretion in denying defendant's motion for a change of venue, and defendant was not denied a fair trial by juror exposure to pretrial publicity. Justice Boyle, joined by Chief Justice Mallett and Justices Riley and Kelly, found the pretrial publicity in this case neither excessive nor prejudicial. Prior to defendant's trial in Gogebic County in the western Upper Peninsula, 20 newspaper articles appeared on 17 days spread over 7 months, in addition to radio and television coverage of events. The trial court used both group and sequestered voir dire to discover individual juror bias, and the large number of challenges for cause granted did not create a presumption that pervasive community bias made selection of an impartial jury impossible. Of potential jurors, 70% were excused for cause, but, according to the prosecutor, 25% were excused for admitted prejudice against defendant.

Justice Weaver concurred in the result only.

Justice Brickley, joined by Justice Cavanagh, would find that the trial court abused its discretion in denying defendant's motion for change of venue because the pretrial publicity and jurors' previous relationships with decedents denied defendant a fair trial. Of the prospective jurors, 52% were dismissed for cause either for admitted bias or presumed bias, because of relationships with the victims, defendant, or their families.

MURDER, FIRST-DEGREE -- Sufficiency of Evidence
MOTION FOR A DIRECTED VERDICT
DOUBLE JEOPARDY -- Multiple Prosecutions (Procedural)
JUDGE -- Comments on Evidence
People v Vincent
#105808
July 15, 1997
SADO - RANDY DAVIDSON

On leave granted to the prosecutor, the Court, reversing the Court of Appeals, reinstated the defendant's jury-tried convictions of first-degree murder and felony firearm. Case below: 215 Mich App 458 (1996).

In response to a motion for a directed verdict by defendant and two co-defendants with respect to firstdegree murder charges, the trial court, while commenting on the evidence presented, stated that premeditation or planning had not been shown, and "I think that Second Degree Murder is the appropriate charge as to the defendants." However, when the trial court subsequently reserved its ruling on the motions and defendant objected, the trial court stated, "I granted a motion but I have not directed a verdict." Chief Justice Mallett, joined by Justices Boyle, Riley, and Weaver, concluded that double-jeopardy prohibitions were not violated by presenting the first-degree murder charge to the jury. The trial court did not direct a verdict in defendant's favor, as the court did not evaluate all of the evidence, and there was neither a statement of sufficient finality to constitute an order nor a signed judgment. Although the trial court reserved its ruling in violation of MCR 6.419(A), since defendant had not presented any proofs at the time, any error was harmless.

Justice Cavanagh, joined by Justices Brickley and Kelly, dissenting, would find a double jeopardy violation, as the trial court's statements constituted a resolution, correct or not, of some or all factual elements of the charged offense. People v Nix, 453 Mich 619 (1996), mandated reversal, and the trial court's comments clearly expressed an opinion as to what a rational juror could conclude, no new evidence was presented by the prosecutor following the motion, and the trial court's distinction between granting a motion and directing a verdict showed an erroneous belief that the jury had to be instructed regarding the directed verdict. Moreover, as a constitutional right was implicated, the majority's harmless error analysis was erroneous.

Selected Court of Appeals Opinions

EVIDENCE -- Proof of Other Crimes (Similar Acts) -- To Show Motive, Intent, etc.
ASSAULT WITH INTENT TO MURDER -- Sufficiency of Evidence
KIDNAPPING -- Sufficiency of Evidence
People v Claude Theodore Hoffman
#191445
August 19, 1997
Taylor, GRIFFIN, Saad
SADO - JOE BOOKER

Affirmed jury-tried convictions of assault with intent to murder and kidnapping.

The trial court did not err in admitting, under MRE 404(b), testimony from two women whom defendant had allegedly assaulted that defendant had expressed a general hatred of women. Relying on New Jersey v Crumb, 277 NJ Super 311 (App Div, 1994), which sustained use of evidence tending to show the defendant's hatred of African-Americans, the Court of Appeals held that the evidence in this case was admissible to show motive. Absent the evidence, jurors may have disbelieved the complainant's testimony describing defendant's depraved and inexplicable actions, and its probative value was not substantially outweighed by its prejudicial effect. The testimony also countered defendant's self-serving testimony that the complainant provoked the attack by stealing defendant's money.

The prosecutor presented sufficient evidence to support defendant's conviction of assault with intent to murder, where the complainant testified that defendant knocked her down, repeatedly knocked her head against a sidewalk, threw her against the side of his house, pulled her inside the house by the hair, punched her in the eye, hit her on the head and shoulder with a baseball bat, and allowed his dog to repeatedly bite her legs while she was incapacitated.

The prosecutor also presented sufficient evidence of "secret confinement" to support defendant's kidnapping conviction, where after forcing the complainant inside his house, defendant stripped complainant naked, placed a sock in her mouth, and taped her mouth shut. Although defendant later released the gag, the evidence was sufficient to support a reasonable factfinder's conclusion that defendant confined complainant and intended to keep the confinement secret. People v Jaffray, 445 Mich 287, 300-301 (1994).

MOTION FOR A DIRECTED VERDICT
MCL 750.136b(2) [First-degree Child Abuse]
CONFESSIONS -- Voluntariness -- Totality of Circumstances
EVIDENCE -- Character and Reputation
APPEALS -- Harmless Error
SENTENCING AND PUNISHMENT -- Trial Court's Assumption of Guilt Without Conviction
SENTENCING AND PUNISHMENT -- Review of Sentence Length -- Disproportionate
People v Larry Gould
#184342, August 15, 1997
KELLY, Saad, Beach
SADO - PETER VAN HOEK

Affirmed jury-tried conviction of second-degree child abuse and sentence of 30-48 months' imprisonment.

Where the trial court erroneously instructed the jury that first-degree child abuse was a general intent crime, but where defendant, a trained emergency medical technician, admitted at trial to twice shaking the two-month-old victim, who suffered severe brain injuries, the trial court did not err in denying defendant's motion for a directed verdict on the charge of first-degree child abuse. In an issue of first impression, the Court of Appeals held that first-degree child abuse is a specific intent crime, as it requires the defendant to knowingly or intentionally cause severe physical or mental harm. In this case, although the jury returned a guilty verdict on the alternative count of second-degree child abuse, the Court concluded that sufficient evidence was presented to support a conviction of first-degree child abuse.

The trial court did not err in failing to suppress as involuntary defendant's statements to police. Defendant told police that he had shaken the victim approximately two weeks prior to the victim's seizure.

Because defendant never placed his character in issue, the trial court abused its discretion in admitting rebuttal testimony describing an incident during which defendant threw a garden-hose nozzle at his ten-year-old son. However, in light of the overwhelming evidence of defendant's guilt, the error was harmless.

In sentencing defendant, the trial court properly relied on testimony by medical experts that the victim's injuries were caused by multiple incidents of shaking. The trial court did not make an independent finding of guilt.

Defendant's sentence of 30-48 months was not disproportionate to the offender and offense.

MCL 750.350 [Kidnapping Child Under 14]
KIDNAPPING -- Instructions on Elements
KIDNAPPING -- Included Offense
COUNSEL -- Ineffectiveness Of
INSTRUCTIONS -- Failure to Request or Object
People v Kenneth Frederick Kuchar
#190073, August 15, 1997
PC: Corrigan, Kelly, Hoekstra
SADO - F. MARTIN TIEBER

Affirmed jury-tried conviction of kidnapping a child under the age of 14.

Sufficient evidence was presented to support defendant's conviction, and the trial court did not err in refusing to instruct the jury that asportation was an element of the offense, where defendant was charged with kidnapping a child under the age of 14, a specific intent crime. The specific intent element obviated the need to show asportation, which, under the general kidnapping statute, is required to deter prosecutors from overcharging lesser crimes involving the intentional confinement of the victim.

The trial court did not err in failing to instruct the jury on the lesser offense of assault and battery, where defendant did not request the instruction. As with the general kidnapping statute, there is no "inherent relationship" between the instant offense and assault and battery. People v Rollins, 207 Mich App 465, 468-69 (1994).

Where defendant did not object to the instruction, no manifest injustice would result from the failure to review the trial court's reasonable-doubt instruction. The instructions in their entirety adequately presented the concept of reasonable doubt to the jury.

POST-CONVICTION PROCEEDINGS -- Expunging Criminal Record
RETROACTIVITY
MCL 780.621 [Expungement]
CRIMINAL SEXUAL CONDUCT
People v Daniel James Link
#191991, August 26, 1997
SAAD, Neff, Jansen
THOMAS A. BECK

Affirmed denial of the defendant's motion to expunge the record of his 1989 plea-based conviction of third-degree criminal sexual conduct.

The Court of Appeals held that the April 1997 amendment to the expungement statute, MCL 780.621; MSA 28.1274(101), which prohibited expunction of third-degree criminal sexual conduct convictions, applied retroactively. Defendant's conviction and application both occurred before the amendment, but the circuit court found the application defective for several reasons, including defendant's conviction of another offense. The Court of Appeals concluded that the expungement statute is remedial in nature and did not create or destroy existing rights, thus allowing its retroactive application. Permitting expungement of second and third-degree criminal sexual conduct convictions that occurred prior to the amendment would also endanger children.

JURY, RIGHT TO -- Waiver
MCL 763.3(1) [Waiver of Jury Trial by Defendant]
People v Patrick Richard St. Andre
#197587, August 22, 1997
Corrigan, Markey, MARKMAN
PHILIP H. SEYMOUR

On leave granted to the prosecutor, reversed the circuit court's order granting defendant's motion for a bench trial.

In response to defendant's motion, the prosecutor stated that he wanted to preserve the people's right to a jury trial and would file a written demand as required by the circuit court. No demand was filed, however, and the prosecutor later filed a proposed order granting defendant's request "over the People's objection." The circuit court granted the order. The Court of Appeals held that the prosecutor need not preserve in writing the people's right to a jury trial, despite the language of MCL 763.3(1); MSA 28.856(1), and MCR 6.401, which require a written request for waiver by the defendant and the prosecutor's consent. The record presented insufficient evidence of implied consent, as the prosecutor initially orally preserved the right and indicated that the filing of the demand would be done only to satisfy the trial court's policy.

DOUBLE JEOPARDY -- Multiple Punishments
MURDER, FIRST-DEGREE -- Sufficiency of Evidence
FELONY MURDER -- Sufficiency of Evidence
ACCESSORY -- Sufficiency of Evidence
EVIDENCE -- Photographs
APPEALS -- Standard of Review -- Abuse of Discretion
People v Robert Jeffrey Bigelow
#188900
September 2, 1997
Taylor, GRIFFIN, Saad
SADO - RICHARD GINSBERG

Vacated the defendant's jury-tried conviction of felony murder, and affirmed the defendant's jury-tried convictions of first-degree premeditated murder and breaking and entering an occupied dwelling with intent to commit larceny.

Defendant's convictions and sentences for first-degree premeditated murder and felony murder for a single killing violated double jeopardy. However, were the Court of Appeals not constrained by Administrative Order 1996-4 and People v Passeno, 195 Mich App 91, 95 (1992), it would follow People v Zeitler, 183 Mich App 68 (1990). In Zeitler, the Court held that the appropriate remedy in such cases is to modify the judgments of conviction and sentence to specify one count of first-degree murder supported by two theories. The Legislature authorized two mental states as alternative means of proving first-degree murder, and the prosecutor may list alternative theories in support of a single count. Also, the proffered remedy prevents vacating a first-degree murder conviction altogether if the defendant's conviction of premeditated murder is subsequently vacated.

The prosecutor presented sufficient evidence to support defendant's conviction of premeditated murder as an aider and abettor, where defendant procured a letter opener at the scene, which his accomplice used to stab the victim, defendant was covered with the victim's blood the morning after the killing, and defendant told his sister that he and his accomplice killed the victim, whose cause of death was strangulation.

The prosecutor also presented sufficient evidence to support defendant's felony murder conviction, where defendant and his accomplice entered the victim's house through a rear window and stole money from the victim's purse. The requisite state of mind to support the murder conviction was established by the same facts as were used to establish the premeditated-murder conviction.

The trial court did not abuse its discretion in admitting graphic photographs of the victim and murder scene. Evidence that numerous stab wounds were inflicted prior to strangulation was relevant to the elements of premeditation and deliberation and probative of the issue of whether more than one person was involved. Photos depicting the amount of blood at the scene countered defendant's claim that he wasn't involved in the killing by showing that defendant could not have been covered in blood the following morning without participating in the killing. No reasonable likelihood existed that the photos so inflamed jurors that they lost focus of the issues to be tried. Thus, the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice.

EVIDENCE -- Character and Reputation
APPEALS -- Standard of Review -- Abuse of Discretion
PROSECUTOR -- Withholding Evidence
APPEALS -- Mootness
PROSECUTOR -- Comments -- Defendant's Failure to Testify
EVIDENCE -- Prior Consistent Statements
EVIDENCE -- Rebuttal
EVIDENCE -- Hearsay Evidence -- Statements Against Interest
EVIDENCE -- Hearsay Evidence -- Co-Conspirator's Declarations
EVIDENCE -- Hearsay Evidence -- State of Mind
WITNESSES -- Privileged Communications -- Husband-Wife
PRELIMINARY EXAMINATION -- Insufficient Evidence to Bind Over (Generally)
DOUBLE JEOPARDY -- Multiple Punishments
CONSPIRACY
INDICTMENT AND INFORMATION -- Amendment Of
APPEALS -- Preservation of Issue
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
People v Glen Dale Brownridge
#183507, September 2, 1997
NEFF, Smolenski, Roberson
FRANK D. EAMAN

Reversed the defendant's jury-tried convictions of conspiracy to commit arson and arson, and remanded for a new trial.

The trial court abused its discretion by refusing to allow defendant to present evidence of the investigating officer's credibility under MRE 608, where the investigating officer testified on cross-examination that he had a reputation for truthfulness, and where defendant sought to question the officer and present testimony concerning his alleged falsification of an affidavit in another case. Defendant offered testimony of a fellow officer to rebut the investigating officer's reputation testimony, to describe the circumstances surrounding the alleged falsification of the affidavit, and to criticize the officer's investigative methods in this case. The prosecutor theorized that defendant induced Turner to set fire to a house defendant was purchasing on land contract. Turner was found drowned in a nearby river two days after the fire. Turner's wife and brother, Scott, both gave statements to the investigating officer implicating defendant; Scott testified in exchange for a reduction of his sentence for arson as a habitual offender from 30 years to 2 years' probation, and felony welfare fraud charges against Turner's wife were reduced after defendant's sentencing. The Court of Appeals concluded that MRE 608 expressly allowed the proffered opinion, reputation, and specific-act evidence, which was relevant under MRE 403 to the investigating officer's method of gathering evidence in this case.

The prosecutor's alleged violation of a disclosure order was rendered moot by the Court of Appeals' decision on the above issue. Defendant alleged that Turner's wife was induced to testify against him by the prosecutor's handling of her felony welfare fraud case. An arrest warrant was authorized for Turner's wife prior to defendant's first trial, which ended in a mistrial, but the warrant wasn't served until after defendant's sentencing. The charges against Turner's wife were reduced to misdemeanors, and she was sentenced to probation. On retrial, defendant may inquire into the circumstances surrounding the case.

The prosecutor's comment during closing argument concerning defendant's failure to testify was improper.

The trial court did not err in admitting prior consistent statements of Turner's wife during rebuttal, where Turner's wife testified on direct examination that she told her father the facts surrounding Turner's disappearance before she spoke with the investigating officer, and where defendant cross-examined Turner's wife on the investigating officer's alleged inducement of her to testify against defendant. Turner's wife's stepmother testified to the contents of her stepdaughter's statements to the father. This testimony was admissible under MRE 801(d)(1)(b): it was consistent with Turner's wife's trial testimony, was offered to rebut the charge of bias, and the statement occurred prior to the alleged improper influence. Admission of the prior consistent statements through a third party was appropriate.

Because the stepmother's testimony was not beyond the proper scope of rebuttal, the trial court did not abuse its discretion in allowing it. The testimony was responsive to the theory of improper influence of Turner's wife.

The trial court erred by admitting, under MRE 804(b)(3) (statements against penal interest), testimony by Turner's wife and brother concerning Turner's statements implicating defendant in the offenses, where the statements were made before the alleged offenses were committed.

Moreover, the statements were also inadmissible as statements by a co-conspirator, as no independent evidence of the alleged conspiracy existed. Because of the leniency Scott received and the fact that the statements were made during police interrogation, Scott's statements lacked sufficient indicia of trustworthiness to be admissible under either exception to the hearsay rule.

However, the testimony was admissible under MRE 803(3), as Turner's statements qualified as present sense impressions. The statements declared Turner's intent to commit arson in the near future and were relevant to defendant's conduct as well.

Turner's wife's testimony regarding Turner's statements was not barred by the spousal communication privilege, as that privilege was waived by the wife's testimony, and Turner himself was unable to object. Benson v Morgan, 50 Mich 77, 79 (1883).

The district court did not abuse its discretion in binding over defendant on the conspiracy charge. The Court of Appeals rejected defendant's argument that bindover was improper because no independent evidence of a conspiracy existed. A deficiency of evidence at the preliminary examination does not require reversal "where defendant received a fair trial and was not otherwise prejudiced by the error."

Defendant's convictions and punishments for conspiracy to commit arson and arson did not violate double jeopardy, as conspiracy is distinct from the goal offense and its prohibition protects against the dangers inherent in group action. Nor did defendant's conviction of conspiracy violate Wharton's Rule, as arson may be accomplished by a single individual.

In its cross-appeal, the prosecutor failed to preserve the issue of whether amendment of the information to add a charge of felony firearm should be allowed. The prosecutor's motion was denied before defendant's first trial, and the prosecutor never sought leave to appeal that decision and did not raise the issue prior to defendant's second trial. The new count would have been based upon a handgun discovered on Turner's body.

The prosecutor's challenge to the trial court's scoring of Offense Variables 18 and 19 was moot and, regardless, precluded by People v Mitchell, 454 Mich 145, 176 (1997).

Judge Smolenski concurred in part and dissented in part.

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.

DOUBLE JEOPARDY -- Multiple Punishment

People v Abraham Driver, Jr.
#189336, 3-7-97
MA 28519 (2pp)

Defendant's convictions and sentences for the underlying assault with intent to rob while armed and felony murder violated the double jeopardy prohibition of multiple punishments for the same offense. The Court vacated the assault conviction and sentence.

GUILTY PLEA -- Specific Performance of Bargain
People v James Alan Engelmann
#191952, 3-21-97
MA 28678 (2pp)

Reversal of defendant's plea-based conviction of breaking and entering a building and his habitualoffender sentence was required, where pursuant to a plea bargain in an unrelated case, the prosecutor agreed not to prosecute the instant case. Despite defendant's acquiescence in the prosecution, the proper remedy was specific performance of the prosecutor's bargain.

SENTENCING AND PUNISHMENT -- Guidelines -- Departure Reasons
MCR 6.425(D)(1) [Sentencing Information Report]
People v Benny James Floyd
#185233, 2-28-97
MA 28377 (3pp)

The Court of Appeals remanded for the limited purpose of preparing a Departure Form, despite the trial court's adequate articulation of reasons for its five-fold departure from the minimum recommended sentence.

SENTENCING AND PUNISHMENT -- Invalid Sentence
People v Mark Dwayne Gilford