Criminal Defense Newsletter

CRIMINAL DEFENSE NEWSLETTER

Volume 21, Number 2

November, 1997

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

Contents

Attacks on the Character of the Accused
From Our Readers: On Polygraphs
ABA Reports Crime Down, Spending Up
Practice Note: Guides to Investigating Child Sexual Abuse
1997 Books Moving Quickly
Legislative Update
From Other States
Sentencing Guidelines Go to Legislature
New & Interesting in the Online Brief Bank
Criminal Defense Online
In a Manner of Speaking
Circuit Court Opinion of the Month: Violation of Driving Statutes Not Always Negligence
Training Events
Certiorari Granted in the U.S. Supreme Court
United States Supreme Court Opinion
Michigan Supreme Court Order
Selected Court of Appeals Opinions
Unpublished (but persuasive)
Training Calendar

Attacks on the Character of the Accused:
Rule 404(b)

The following article was the subject of a presentation by David Lawson at the November Conference of the Criminal Defense Attorneys of Michigan (CDAM). It appears here with the permission of CDAM and Mr. Lawson.

The Editor.

I. Text and Elements of MRE 404(b)

A. Mich. R Evid. 404(b) states:

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. (Emphasis necessary.)

(2) The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(l) for admitting the evidence. If necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant's privilege against self-incrimination.

B. Traditional jurisprudence

This rule permits evidence of other acts against an accused to prove specific propositions in a case: e.g., the defendant's motive; the defendant's intent or absence of mistake, etc. Before 1993, the controlling authority was exemplified by People v Golochowicz, 413 Mich 298 (1982), cert den 501 US 1250 (1991). [1] In that case the Supreme Court also stated that, based upon the first sentence in this rule, evidence of other conduct is not admissible to prove a defendant's general bad character. However, rebutting this "impermissible" purpose of evidence of this nature is generally the defendant's greatest task at a trial.

C. People v VanderVliet

In September, 1993 the Michigan Supreme Court decided People v VanderVliet, 444 Mich 52 (1993), opinion amended 445 Mich 1205 (1994), and revised several years of evidence jurisprudence construing bad acts evidence. The four-part test of Golochowicz was severely limited to cases in which bad act evidence is offered to prove identity. The new (novel) concepts which now apply to evaluation of "similar act" evidence elements include:

(2) the old 4-part test is replaced with a new one: "first, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury," VanderVliet, 444 Mich at 55;

(3) emphasis is shifted to reasons why the evidence should be admitted rather than excluded, encouraging creative invention of a non-propensity rationale for the probandum;

(4) resort to federal decisions interpreting the rule is appropriate;

(5) the criterion for determining when a fact is "in issue" is changed;

(6) any special standard of proof for the uncharged conduct is condemned;

(7) evidence is inadmissible if its sole purpose is to prove propensity; but

(8) balancing the permissible purpose against the impermissible purpose of the evidence via Rule 403 remains an essential part of the admissibility decision.

II. Recent post-VanderVliet Cases

A. Propensity vs motive

In People v Hoffman, 225 Mich App 97 (1997), prior bad acts evidence was introduced in this assault with intent to murder trial in which the defendant beat up his girlfriend. The trial court admitted testimony of two women that the defendant had assaulted and battered them and expressed a general hatred toward women. The attack in this case was seemingly unprovoked, violent and bizarre. The Hoffman court held that the similar act testimony in that case was admissible to prove motive:

"In mid-afternoon, on the outskirts of a rural Michigan village, an African-American man is savagely assaulted and battered by a white assailant. The assailant neither demands nor takes any money or property. The assailant is a total stranger to the victim. The defendant is later apprehended and charged with the attack. After the arrest, the prosecutor discovers that the defendant had been involved in several other violent episodes in the past, including bar fights, an assault on a police officer, and a violent confrontation with a former neighbor."

Absent a proper purpose (such as to prove a common plan, scheme, or other exception), this other-acts evidence would be inadmissible because its only relevance is to establish the defendant's violent character or propensity toward violence. See, generally, 1 McCormick, Evidence (Practitioners Treaties Series, 4th ed) 壯181, 190, pp 792-793, 797-812. However, if we were to add to this hypothetical the fact that all of the defendant's prior victims were African-American and that defendant had previously expressed his hatred toward blacks, then the evidence of defendant's prior assaults would be admissible to prove defendant's motive for his conduct. By establishing that the defendant harbors a strong animus against people of the victim's race, the other-acts evidence goes beyond establishing a propensity toward violence and tends to show why the defendant perpetrated a seemingly random and inexplicable attack. Hoffman, 225 Mich at 101-102.

B. "Rule of inclusion" theory questioned

Despite the first sentence of Rule 403, the Supreme Court in VanderVliet stated that the purpose of Rule 403 is to include, rather than exclude, evidence. It has long been accepted that the law of evidence consists primarily of rules of exclusion rather than rules of admission. "And chiefly, [the law of evidence] determines, as among probative matters . . . what classes of things shall not be received. This excluding function is the characteristic one in our law of evidence." Thayer, A Preliminary Treatise on Evidence at the Common Law, 264 (1898).

In People v Mitchell, 223 Mich App 395 (1997), the Court of Appeals reversed a robbery conviction because the trial court failed to give a limiting instruction as to the use of bad act evidence. Although citing VanderVliet, the court's analysis focused on the limiting nature of Rule 404(b), not the "inclusionary" nature of the rule. The court even cited People v DeMartzex, 390 Mich 410 (1973), a pre- MRE decision, in support of its reasoning. "As a general rule, evidence tending to show the commission of other criminal offenses by a defendant is inadmissible with regard to the issue of the defendant's guilt or innocence of the offense charged * * * Thus, MRE 404(b) creates an exception to the general rule by permitting an adverse party to present evidence concerning prior bad acts under certain circumstances" (emphasis added). Mitchell, 223 Mich App at 397-398.

In People v Sholl, 453 Mich 730 (1996), the defendant was prosecuted for third degree CSC, with a defense of consent, and evidence was introduced that at the time of the sexual acts the defendant had been using marijuana. The Supreme Court cited VanderVliet for the proposition that "there are substantial limits on the admissibility of evidence concerning other bad acts." 453 Mich at 741. However, the court found that the marijuana evidence was admissible because "it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place." 453 Mich at 741. In other words, the majority found, "[t]he more the jurors knew about the full transaction, the better equipped they were to perform their sworn duty." 453 Mich at 742.

C. Due process concerns

Although VanderVliet greatly liberalized the standards for admission of uncharged criminal conduct against a criminal defendant, the Court of Appeals in People v Starr, 217 Mich App 646 (1996), lv grt'd 454 Mich 877 (1997), demonstrated that some limits still apply. The defendant was convicted of two counts of criminal sexual conduct, the victim being his seven-year-old step-daughter. Upon motion of the prosecutor, the trial court admitted testimony of the defendant's half-sister that the defendant had engaged in repeated and chronic sexual abuse of her from the time she was three years old to her adulthood. The majority concluded that the evidence was "so horrendously prejudicial" as to require a new trial. The court based its decision not only on the principle that the evidence was more unfairly prejudicial than probative, but also found that the effect of introducing this evidence was to try the defendant for uncharged criminal acts "without the bother of due process." In describing the trial, the court stated: "This was not a skunk in the jury box. It was a pig farm." 217 Mich App at 648.

However, Judge Markey, in dissent, stated that she would find that the admission of the evidence was proper. She observed that the evidence was not offered "solely" to show that the defendant had a criminal propensity with which he acted in conformity, because the evidence tended to establish a plan or scheme of "sexually abusing young females in his family who lived with him and for whom he was an authority figure." The prosecutor argued that it was entitled to prove the defendant's plan or scheme because his general denial placed all of the elements of the offense, including mens rea, at issue. The dissent illustrates that only a modicum of creativity is required to invent a "proper" purpose for the admission of so-called similar acts evidence, and that great vigilance is required to prevent the uncharged conduct from moving from the side show to the main event.

D. Resort to pre-VanderVliet authority

Although the Supreme Court in VanderVliet jettisoned several years of Michigan jurisprudence construing MRE 404(b) based upon the novel concept that this rule of evidence "is inclusionary rather than exclusionary," the court of appeals continues to draw guidance from pre-VanderVliet decisions in determining the admissibility of prior bad acts. In People v Gibson, 219 Mich App 530 (1996), a first-degree criminal sexual conduct prosecution, the prosecutor served notice that it would seek to introduce rebuttal evidence that the defendant had previously been charged with raping a woman but successfully interposed the defense that the victim consented to sex in exchange for drugs. The trial court granted the prosecutor's motion, ruling that the evidence could be offered if the defendant claimed that the victim in the present case consented to sex in exchange for drugs. The defendant indeed interposed such a defense, the evidence was introduced, and the defendant was convicted.

The Court of Appeals began its analysis with an acknowledgment that evidence of other crimes is not admissible to prove the character of a person to show action in conformity with that character. Although such evidence may be admissible to show a motive, scheme or plan, the court stated that proof of the scheme or plan must be relevant, and the probative value of the evidence must not be substantially outweighed by unfair prejudice. The court then relied upon People v Oliphant, 399 Mich 472 (1976), a pre-VanderVliet decision, to validate the admission of the similar acts evidence in this case. In Oliphant, the defendant had orchestrated the events surrounding the rape to make it difficult for the complainant to show non-consent. Similarly, the court held, it was permissible for the prosecutor to show Gibson's unique scheme in selecting a victim who used illicit drugs, thereby enabling him to claim a sex-for-drugs swap if he was prosecuted for sexual assault. The court also observed that the unfair prejudicial effect of the evidence was diminished by the trial court's limiting instruction on the use of the evidence, and because the jury was informed that the prior prosecution resulted in an acquittal.

E. Relevant federal authority

In United States v Jobson, 102 F3d 214 (CA6, 1996), the defendant was convicted of felon in possession of a firearm. He was arrested as a result of a multi-agency gang task force investigation because of his ties to a known gang. At trial the prosecutor offered evidence of the agency affiliation of the officers and explained their involvement through testimony that the defendant was a member of the gang. Several objections were made before and during trial to the gang affiliation evidence. The court also admitted a statement made by the defendant during his arrest that the gang had more "fire power" than the police. The prosecutor justified admission of the evidence as proving knowledge, intent and opportunity. The Court of Appeals rejected the argument in part. Intent was not an issue because gun possession did not require proof of specific intent. The evidence may prove opportunity by showing that the defendant had access to guns through the gang. The court reversed, however, because the trial judge did not give a limiting instruction to inform the jury of the proper purpose for which the gang evidence could be considered. Nor did the court expressly state the precise purpose for the other acts evidence, rebutting the assumption that the court engaged in any balancing consideration under Rule 403. "We must assume, then, that the jury improperly considered the gang evidence on the direct issue of defendant's guilt, which is a clear violation of Rule 404(b)." 102 F3d at 222.

In United States v Merriweather, 78 F3d 1070 (CA6, 1996), the court reversed the defendant's conviction for conspiracy to distribute cocaine. The government introduced evidence of a tape-recorded conversation between the defendant and persons involved in another, uncharged conspiracy. The prosecutor asserted that the conversation was admissible to prove "intent, plan, knowledge, identity and absence of mistake." The Court of Appeals found that none of these purposes were justified under the circumstances of this case. The court set forth some guidelines: (l) "upon objection by the defendant, the proponent of the evidence, usually the government, should be required to identify the specific purpose or purposes for which the government offers the evidence of 'other crimes, wrongs or acts," 78 F3d at 1076; (2) the court must determine whether the fact is "in issue" (a matter is in issue if the defendant's theory makes it so, or it is one of the statutory elements which the government is obligated to prove); and (3) in balancing the evidence, the court must (a) take into account the availability of other means of proof, and (b) the similarity of the acts on the issue of prejudice.

The evidence may only then be admitted subject to the balancing required by Rule 403. "Another consideration, to use Justice Cardozo's expression applied in another context, is whether the 'reverberating clang' of the evidence that Merriweather committed the same or similar crime on another occasion will 'drown [the] weaker sound[]' of the Jones tapes; proof of Merriweather's identity, leaving the jury to hear only the inference that if the defendant did it before, he probably did it again." 78 F3d at 1077. The court concluded that "[t]he government's legitimate need to introduce the Jones conversations was slight, while the evidence carried a serious danger of unfair prejudice." 78 F3d at 1079.

III. Procedural Requirements

A. Case-in-chief vs rebuttal

Although there was a pre-VanderVliet trend to limit bad act evidence to the prosecutor's rebuttal case, i.e. after it was apparent that the matter was "in issue," VanderVliet does not require this limitation. Other cases have modified the rules pertaining to rebuttal evidence generally. In People v Figgures, 451 Mich 390 (1996), the Michigan Supreme Court departed from its prior, clear rule which had been reaffirmed in People v Losey, 413 Mich 346 (1982), that evidence that could have been introduced by a prosecutor during her case-in-chief may not be admitted as rebuttal evidence. In that case, the supreme court held that rebuttal evidence is properly admitted at the behest of a prosecutor where it is responsive to a theory introduced or developed by the defense, "even if it overlaps evidence admitted in the prosecutor's case-in-chief." 451 Mich at 399.

B. The limiting instruction

In People v Mitchell, 223 Mich App 395 (1997), the defendant was convicted of robbery of a convenience store clerk. The defense theory was that the defendant regularly sold marijuana to the cashier, the marijuana was delivered on other occasions, and the defendant regularly collected the money from the cashier at a later time. Defendant claimed that at the time of this encounter at the convenience store, he was not robbing the clerk but merely collecting his money. When the defendant offered evidence of prior drug transactions with the convenience stork clerk, he requested that the court instruct the jury of the limited purpose for which they could consider the evidence. The trial court refused, and the Court of Appeals reversed. "We conclude that whether the evidence of prior bad acts is introduced by the prosecution or the defense is irrelevant to the purpose for which a limiting instruction is intended, i.e., to advise the jury that the evidence is inadmissible with regard to the issue of the defendant's guilt." 223 Mich App at 398.

A limiting instruction must be requested. There are two standard instructions, CJI2d 4.11, which is the general limiting instruction, [2] and CJI2d 20.28, which is used in CSC cases. [3]

C. The notice requirement

Rule 404(b)(2) requires the prosecutor to give notice of an intent to offer bad acts evidence. The rule contains a "good cause shown" safety valve, but occasionally it will preclude undisclosed evidence. The similar act evidence in People v Ullah, 216 Mich App 669 (1996), was fraught with problems and resulted in reversal. Along the way, the court noted the prosecutor's failure to give notice as a factor in the decision.

D. The disclosure requirement

Rule 404(b)(2) also contains a disclosure requirement which applies to the defense. By its terms it is triggered only after the prosecutor gives notice and the defendant objects to the bad acts evidence. Even then, disclosure of the defense theory is required only when necessary to "determine[] the admissibility of the evidence under this rule." This limitation may be moot under MCR 6.201.

IV. Helpful Strategies

A. "Forewarned is forearmed"

Compel disclosure of 404(b) evidence from the prosecutor. Although Rule 404(b)(2) imposes a notice requirement on the prosecutor, it is dangerous to remain blissfully silent in the absence of a notice. The rule contemplates mid-trial notice "for good cause shown," so expect that practice.

Make disclosure of "other crimes" evidence a routine part of your discovery demands under MCR 6.201. In cases when disclosure of such evidence is ordered pursuant to a discovery motion, the failure to disclose may result in preclusion of the evidence.

Read People v Leo, 188 Mich App 417 (1991). In this second-degree CSC prosecution, the court granted the defendant's discovery motion and ordered the prosecutor to "advise defense counsel of any evidence of similar acts of wrongdoing and of 'bad act' testimony or witnesses under MRE 404(b)." 188 Mich App at 420. The prosecutor disclosed none, and the defendant filed a motion in limine precluding 404(b) evidence. When the prosecutor stated there would be no such evidence in his case-in-chief, the trial court stated that it would not rule on the motion until rebuttal. The defendant testified, and the prosecutor elicited from the defendant a denial concerning other improprieties. The prosecutor then introduced the testimony of two similar act witnesses on rebuttal, arguing that the preclusion resulting from the discovery order was limited to the case in chief. The Court of Appeals reversed, noting: "[c]ross-examination cannot be used to revive a right to introduce evidence that could have been, but was not, introduced in the prosecutor's case in chief." 188 Mich App at 422. Admitting the prosecution's 404(b) evidence in rebuttal was improper because "[t]he result was that the prosecutor was able to introduce evidence in rebuttal which arguably was inadmissible in the case in chief because of the violation of the discovery order." 188 Mich App at 428.

B. "The Balancing Act:" How to Tip the Scales in Your Favor
(1) Make the prosecutor articulate the purpose for which the evidence is being offered.

Is the evidence being used to prove that the defendant actually engaged in the prohibited conduct? "When the proof of other acts is offered to show that the person engaged in the disputed conduct, the weak probative value of the evidence of other crimes, wrongs, or acts is swamped by the countervailing considerations of fairness and efficiency. Therefore, the general rule is, as stated in Rule 404(b), that other acts evidenced may not be used to prove the conduct of the actor." 22 Wright & Graham, Federal Practice & Procedure �5239, p. 438.

(2) Don't show yours until the prosecutor shows you his/hers.

Disclosure is not required until notice is given.

(3) Lighten the probative value of the evidence.

People v Cooper, 220 Mich App 368 (1997)

(b) When did the other act occur? Was it remote in time? See United States v Ismail, 756 F2d 1253, 1259 (CA6, 1985) [the evidence "must be substantially similar to, and near in time to, the offense charged in the indictment]."

People v Sabin, 223 Mich App 530 (1997)

The prosecutor also offered evidence that the defendant had been absent from the family for 10 years and that he returned to the home in contravention of a "agency order" prohibiting physical contact with his children. The implication was that the defendant was on parole and had been in prison. The prosecutor said that the evidence, coupled with the defendant's statement that the victim should not tell of the sexual content because the defendant could get in trouble if the "agency" found out he had contact with his family, was probative to explain a two week delay in reporting the incident. The Court of Appeals rejected that argument and distinguished VanderVliet's pronouncement that a general denial places all of the elements of the crime presumptively at issue. The court noted "the prejudicial evidence was relevant, if at all, to a collateral matter. It was not probative with regard to any general issue of material fact." 223 Mich App at 538.

(ii) Can you take the matter "out of issue" by using a "preemptive stipulation?"

In Old Chief v United States, ___ US ___; 117 SCt 644; 136 LEd3d 574 (1997), the defendant was charged with felon in possession of a firearm, and moved for an order prohibiting the introduction of the name and nature of his prior felony conviction, in exchange for his willingness to stipulate that he was a felonconvict and that that element of the government's case was satisfied. The court reversed the conviction because the stipulation was refused in the lower court. Because this alternative means of proof was available, the unfairly prejudicial aspect of the evidence outweighed its probative value. However, the court placed limits on the ability to "stipulate away" the government's case. Although acknowledging that less prejudicial, alternative means of proof will "discount" the probative value of the challenged evidence, the court also stated: "[t]he 'fair and legitimate weight' of conventional evidence showing individual thoughts and acts amounting to a crime reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness." 117 SCt at 653. Further, sometimes evidence must be offered to satisfy a jury's legitimate expectation "about what proper proof should be." It is where the evidence is "likely to support conviction on some improper ground" that the court can discount it in favor of less harmful means. See also People v Swint, ___ Mich App ___ (##191493, 191572, 9-12-97).

(d) Are there other means of proving the fact? See, United States v Merriweather, 78 F3d 1070 (CA6, 1996).

(4) Increase the weight of the unfair prejudice.

(b) Describe the reasons that propensity evidence is condemned.

(ii) The fact-finder cannot separate the proper purpose from the improper one. United States v Merriweather, 78 F3d 1070 (CA6, 1996) ["reverberating clang" that defendant transgressed in the past will "drown [the] weaker sound" of the non-propensity theory.]

(iii) Jurors might think the effect of an erroneous conviction would not be as devastating on someone who already has been convicted. 1 McCormick on Evidence �185, p 780 (4th ed 1992); Old Chief v United States, supra.

(iv) The jurors might engage in preventive detention. Old Chief v United States, ___ US ___;117 SCt 644, 650 (1997) [another danger of this kind of evidence is "generalizing a defendant's bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should be innocent momentarily)]."

(v) Permits jury to convict only because defendant is an "unsavory" character. People v Ullah, 216 Mich App 669 (1996).

C. Note on the Standard of Review

(1) Michigan standard

The standard for reviewing the admission of Rule 404(b) evidence in Michigan courts has been abuse of discretion. "This Court finds an abuse of discretion only when an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling." People v Taylor, 195 Mich App 57, 60 (1992).

(2) Federal standard: 3-level analysis

In federal court, Rule 404(b) evidence is evaluated on three levels. "[W]e first review for clear error the district court's factual determination that the 'other acts' occurred. Second, we examine de novo the district court's legal determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court's determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect." United States v Merriweather, 78 F3d 1070, 1074 (CA6, 1996).

D. Fighting back

(2) Can the accused offer evidence of good character to show that he did act in conformity therewith on a particular occasion, that is, that he did not commit the crime?

MRE 404(a) says "yes:"

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same . . . .

In Michelson v United States, 335 US 469; 69 SCt 213; 92 LEd 168 (1948), the Supreme Court held that the defendant has a right to introduce evidence of his/her good character:

[The] line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of guilt. He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt. Footnote omitted. 335 US at 476.

The defendant may offer the following pertinent character traits:

honesty in a theft case;
peacefulness in an assault/homicide case;
abstinence in an intoxication case;
absence of sexual deviance in a child CSC case.

See cases collected at Lori J. Henkel, annotation, Admissibility of evidence of pertinent trait under rule 404(A) of the Uniform Rules of Evidence, 56 ALR4th 402-450 (1988).

(3) Methods of proving character.

(b) On March 1, 1991, MRE 405(a) was changed to provide:

Rule 405. Methods of Proving Character

(a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form an opinion. On crossexamination, inquiry is allowable into reports of relevant specific instances of conduct.

(c) Courts in other states have held that opinion testimony is admissible to establish a pertinent character trait which is inconsistent with the crime charged:

In People v Stoll, 49 Cal3d 1136; 783 P2d 698 (1989), the California Supreme Court held that the defendant should have been permitted to call a psychologist as an expert witness to provide an opinion, based on interviews and interpretation of standardized personality tests, that the defendant showed no signs of "deviance" or "abnormality," in this prosecution for committing lewd and lascivious acts upon a child; and
In People v McAlpin, 53 Cal3d 1289; 812 P2d 563 (1991), the California Supreme Court held that lay opinion testimony that the CSC defendant was not a "sexual deviant" should have been admitted to the extent that the testimony was based on the witness's personal observation of the defendant.

(4) Caveat - are you opening the door to damaging rebuttal evidence?

(b) Hypothetical questions. Although hypothetical questions may be posed to experts, the federal courts have held that if the hypothetical asks the expert to assume the guilt of the defendant as a basis for the opinion, the question will be improper. See United States v Oshatz, 912 F2d 534 (CA2, 1990), cert den 500 US 910 (1991); United States v McGuire, 744 F2d 1197 (CA6, 1984), cert den 471 US 1004 (1985).

by David M. Lawson

ENDNOTES

Up to that point, the key decisions interpreting the rule included: People v Oliphant, 399 Mich 472 (1976); People v Major, 407 Mich 394 (1979); People v Golochowicz, 413 Mich 298 (1982); People v Hernandez, 423 Mich 340 (1985); and People v Engleman, 434 Mich 204 (1990).
CJI2d 4.11 -- Evidence of Other Offenses -- Relevance Limited to Particular Issue
(3) You must not consider this evidence for any other purpose. For example, you must not decide that it shows that the defendant is a bad person or that [he/she] is likely to commit crimes. You must not convict the defendant here because you think [he/she] is guilty of other bad conduct. All the evidence must convince you beyond a reasonable doubt that the defendant committed the alleged crime, or you must find [him/her] not guilty.
CJI2d 20.28 -- Uncharged Acts in Child Criminal Sexual Conduct Cases

From Our Readers: On Polygraphs

We thank alert reader Ken Mogill for this one.

Polygraphs do sometimes result in unexpected admissions, including a comment by government counsel during oral argument in United States v Scheffer, United States Supreme Court No. 96-1133, argued November 3, 1997. Scheffer is the case challenging military law's per se ban on the use of polygraph evidence. Following up on a defense point from its brief, that the government uses polygraph results in its everyday operations, Justice Souter asked government counsel about the ways in which the government uses polygraph tests. The revealing answer:

" . . . the predominant use of polygraph testing is in connection with personnel screening. He also said that polygraphs are sometimes used in criminal investigations as a tool to obtain a confession [emphasis added]."

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.

ABA Reports Crime Down, Spending Up

An interesting juxtaposition of trends appears in the American Bar Association's fourth published study on "The State of Criminal Justice." In a report released on October 26, 1997, the ABA reported that serious reported crime is decreasing, while the criminal justice system's response to crime is growing as measured by numbers of police, arrests and prisons, as well as prison populations and spending. The study compared data available for the years 1991 and 1995. [Editor's note: Governor Engler recently announced the need to build five new prisons in Michigan, with over- crowding likely yet this year. The October, 1997, newsletter of the State Bar's Criminal Law Section reports a Michigan Department of Corrections announcement that since 1992, the inmate populationhas grown only 4% per year, compared to 12% prior to 1992].

Without speculating on the causes for the decrease in reported crime, the study's authors noted a ten percent drop in property crime and twelve percent for violent crime. They found drug use among the adult population to be stable, and measures of victimization generally to be declining. On the response side, the authors noted that the number of correctional facilities increased seventeen percent between 1991 and 1995.

Copies of the study are available from the ABA Service Center, (800) 825-2221, for $16 a copy.

Practice Note: Guides to Investigating Child Sexual Abuse

Surfing the Internet for useful legal material and sites produced an interesting collection of material recently. The Web site maintained by the United States Department of Justice's Office of Justice Programs continues to be a treasure trove of materials used widely by police agencies. In this instance, the collection related to investigation of child abuse; its discovery was even more fortuitous in light of recent high-profile challenges to the methods used by some therapists and police officers in Michigan.

The documents located at www.ncjrs.org/new include a number of guides, including:

Sexually-Transmitted Diseases and Child Sexual Abuse [10-17-97]

Battered Child Syndrome: Investigating Physical Abuse and Homicide [10-17-97], a guide containing practical information on the circumstances that point to the wilful, rather than accidental, injury or death of a child; and

Understanding and Investigating Child Sexual Exploitation [11-11-97], a guide including legal and professional definitions of key terms, descriptions of the dynamics of child sex rings, characteristics of preferential sex offenders and investigative techniques.

The guides provide much of value to criminal defense attorneys who need background information on investigative techniques in child abuse cases. Those listed above are but a few of several posted recently at the NCJRS site.

1997 Defense Books Moving Quickly;
Now Also Available to Inmates

The 1997 editions of the Defender Trial and Plea, Sentencing & Post-Conviction Books are moving out of SADO at a brisk clip, as are the diskette versions of both volumes. If you haven't already done so, be sure to get a copy of this very useful set, reasonably priced at $35. Call Maria Sanchez for an order form, at (313) 256-9833.

A limited number of sets also have been set aside for inmates, at a reduced charge of $25. The inmate edition is released without looseleaf binders or diskettes. Inmates wishing a set should send a check or money order, payable to the "State of Michigan," to the Criminal Defense Resource Center, 3300 Penobscot Building, 645 Griswold, Detroit, MI 48226.

Legislative Update

Bills and Resolutions to Watch

Death Penalty
HJR M, is 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. On October 7, 1997, the House Judiciary Committee refused to report the resolution after hearing lengthy testimony in opposition. Thanks to Jim Neuhard who testified on behalf of the State Appellate Defender Office, Jim Krogsrud and Jeanice Dagher-Margosian who testified on behalf of CDAM, and to Andrea Lyon, a clinical professor at the University of Michigan Law School with extensive experience defending death penalty cases.

Controlled Substances
HB 4065, adds flunitrazepam (rohypnol) and methaqualone (the "date-rape" drugs) to schedule 1 of the Controlled Substances Act. On October 7, 1997, the House Judiciary Committee reported the bill to the house floor with an amendment removing the mandatory non-parolable life sentence in over 650 cases.

SBs 280 and 281 passed the Senate on October 30, 1997, and add a provision allowing 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 and must never have "organized or maintained an illegal drug enterprise of 2 or more persons." While the legislation permits the process to be initiated by the prosecutor within one year of sentencing, the sentencing court has veto power. Additional floor amendments returned the tie-bar with SBs 279 and 280 which add truth in sentencing and "bad time" for many more offenders than would be affected by implementation of these provisions through legislative sentencing guidelines. Several parole restrictions were also added on the Senate floor. There is much activity on these important bills. For up-to-the-minute information on these bills or information on how you can get involved, contact Laura Sager at FAMM (Families against Mandatory Minimums) at (517) 482-4982.

HBs 4267 - 4269, would create the Drug Nuisance Abatement Act and the Expedited Eviction of Drug Traffickers Act. Norris Thomas has testified at hearings involving these bills.

SB 3, has been reported out of the House Judiciary Committee and sent for its second reading and would provide for drug-free park zones similar to the drug-free school zones created by recent amendments.

Wiretapping
SB 633, provides wiretap authority for state law enforcement agencies. This bill passed the Senate on October 14, 1997. Interested defense attorneys should consider testifying on this bill in House Committee. Contact Susan Walsh at the Criminal Defense Resource Center for the hearing date.

Attempt
SB 694, passed by the Senate on October 29, 1997, increases attempt penalties to 15 years for life offenses (up from 5 years) and one-half of the allowable sentence for offenses punishable by 5 years up to life (again, up from 5 years). Offenses punishable by less than 5 years would also be one- half of the allowable sentence, up from a two-year misdemeanor.

Sexual Predator Commitment
HBs 4963 and 5247, provide 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 in Kansas v Hendricks, __ US __; 117 SCt 2072; 113 LEd2d 501 (1997). The major problem with this bill is its scope. As introduced, these procedures could apply to anyone convicted of any criminal sexual conduct offense or any felony that was committed with a "sexual motive." Jeanice Dagher-Margosian testified at a recent hearing on these bills and Marty Tieber plans to testify at a hearing yet to be scheduled. Testimony from interested criminal defense practitioners with knowledge or experience in this area is needed.

Felony Murder
HB 4802, would allow pre-November 25, 1980, felony murder convictions to be reviewed for assessment of the intent element. Marty Tieber and Norris Thomas testified in support of this bill in front of the House Judiciary Committee on October 28, 1997.

Fees in the Court of Appeals
SB 566 has been reported out of the House Judiciary Committee and sent for second reading and would increase certain fees in the Michigan Court of Appeals.

Crimes in School
SB 755 advanced to its third reading on October 21, 1997, and passed the Senate on October 22, 1997. This bill would provide for sentence enhancement for crimes against a teacher, school employee or student.

Trademark Counterfeiting
HBs 4728 - 4729 passed the Senate on October 29, 1997, and would amend trademark counterfeiting laws and provide for forfeiture.

Seatbelts
HB 4280 passed the House and would permit primary enforcement of seat belt violations.

Local Ordinance Violations
HBs 4964-4968 would allow for imprisonment for up to 93 days for some local ordinance violations. The package of bills was reported to the floor with substitutions by the House Local Government Committee and some were referred for their second reading on October 28, 1997.

Stalking
HB 4264 passed the Senate on October 30, 1997, and would provide that a prior conviction for domestic assault or malicious telephone calls would elevate stalking to aggravated stalking.

Sentencing Guidelines
See separate article.

By Marty Tieber and Susan Walsh

Mr. Tieber may be contacted at (517) 334-6069 or marty@sado.org. Ms. Walsh may be contacted at (313) 256- 9833 or suew@sado.org.

From Other States

Washington: Don't Admit Evidence that Prosecution Expert Was First Retained by Defense

Even though the defense offered jurors an explanation, it was an abuse of judicial discretion to admit testimony that a psychiatric expert was first retained by the defense, before being called by the prosecution. Ruling in Washington v Hamlet, 944 P2d 1026 (1997) (en banc), the Washington Supreme Court found the testimony unduly prejudicial and excludable under Wash. Ev. R. 403. Jurors may have inferred that the defense tried to keep relevant information from them, and was only able to support its mental status claim after "shopping" for the favorable expert which it actually called. The defendant should not have been placed in the position of having to explain that it retained the second expert when it learned of his expertise in post traumatic stress disorder. Seeing no reasonable probability that this nonconstitutional error affected the verdict, however, the Court found it harmless. Other related defense claims were rejected: where the expert was retained to perform an insanity evaluation, his reports and opinions were discoverable and he could be called by the prosecution.

Texas: Showing of Need for Expert Should be Ex Parte

Picking up on what it deemed dicta in Ake v Oklahoma, 470 US 68 (1985), the Texas Court of Criminal Appeals recently ruled that an indigent defendant who moves for appointment of an expert should be allowed to make the required showing on an ex parte basis. Williams v State, ___ SW2d ___ (#72244, 10-15-97) (en banc). Anything less would be inconsistent with the due process underpinnings of the Ake ruling, which entitled defendants to appointed experts upon a preliminary showing that the issue for the expert will be "a significant factor at trial." Requiring the defendant to share the details of the showing with the prosecution compels an unacceptable choice: the defendant must disclose defense theories and work product at the cost of obtaining one of the "basic tools of an adequate defense." This is contrary to Ake's concern that an indigent defendant who is entitled to expert assistance have "meaningful access to justice," the Williams majority held. In the context of this capital case, however, the error was harmless on the guilt phase, but required remand on the sentencing phase.

Sentencing Guidelines Go To Legislature

A two-year effort by the legislatively-created Sentencing Commission has culminated in the release on October 22, 1997, of a guidelines package which must now go to the Michigan Legislature for adoption. The package, which passed the Commission by a vote of 12 to 3, must be acted upon within 90 days. The Legislature may reject the package in its entirety, according to enabling statutes. MCL 769.31 et seq; MSA 28.1097(3.1) et seq.

In the meantime, sentencing guidelines established by the Michigan Supreme Court's Guidelines Commission remain in effect. The guidelines, based in theory on the actual sentencing practices of Michigan judges, were the subject of the recent decision in People v Mitchell, 454 Mich 145 (1997). There, the Supreme Court ruled that an appellate claim that the guidelines are misscored is cognizable only where: (1) a factual predicate for the challenged scoring is wholly unsupported or (2) a factual predicate is materially false, and (3) the sentence is disproportionate.

Sheila Robertson Deming, a SADO attorney and dissenting member of the Guidelines Commission, has highlighted several features of the guidelines legislation itself. They include:

expunged convictions and adjudications are scorable;
distinct habitual offender grids are required;
departure is allowed for "a" substantial and compelling reason, limited only in that a departure cannot be based on an offense or prior record characteristic unless the characteristic has been given inadequate or disproportionate weight;
where there is a departure, advice of appellate rights must include specific advice that the defendant may appeal the sentence on the basis that it is a departure; and
if the minimum sentence is within the guidelines range, the Court of Appeals must affirm absent an error in scoring or inaccurate information.

The proposed guidelines reflect a number of policy determinations by the Commission, as well. They include that: (1) crime group classifications are fewer and more inclusive than current guidelines groups; (2) crime class designations are not controlled by statutory maximums; (3) cell ranges are narrow [25%]; (4) the Tanner two-thirds rule remains in effect; (5) habitual offender potential increases the maximum of a cell, but not the minimum; and (6) the Commission will not attempt to catalog permissible departure reasons. Stay tuned.

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, Detroit, during normal business hours.

Jury Trial Spectators

The trial court erred reversibly by permitting spectators in the courtroom to wear pins bearing pictures of the decedent, or shirts with the name of the victim's bar, throughout the trial. BB 8168 (pins), BB 8197 (shirts).

"No Contest" Presentence Report

The defendant is entitled to a resentencing where the probation department improperly solicited an "Offender's Version of the Offense" from him, where he pled "no contest" to the charge. BB 8169.

Witness Asserting Fifth Amendment

The defendant was denied a fair trial when a witness was allowed to claim the Fifth Amendment privilege without a determination that the privilege was valid and related to the issues in the case, and where defendant was not allowed to introduce evidence that this witness had been a suspect. BB 8197.

Witness Granted Immunity

The defendant is entitled to a new trial where the pro secution failed to disclose a grant of immunity made to its star witness, thus violating the discovery order and violating defendant's right to a fair trial. BB 8096.

Witness Coached on Testimony

The trial court abused its discretion in denying the defendant's motion for a new trial and/or an evidentiary hearing on the issue of improper prosecutorial conduct of coaching of a key witness during trial. BB 8096.

CSC Complainant's Prior Accusations, Psychological History

The trial court committed reversible error by excluding evidence that the complainant made prior false accusations of sexual assault, as well as other criminal acts. It also erred by preventing the defense from cross-examining the complainant on her medical records and from otherwise admitting evidence of her psychological history, both of which tended to negate her claim. BB 7984.

Rape Trauma Testimony

The trial court violated the defendant's right to a fair trial by permitting the prosecution to elicit a non-expert's opinion about the credibility of trauma victims immediately after an assault. BB 7984.

Parole Investigation

The appellant was improperly denied parole because a fair investigation was not conducted to determine his eligibility for parole in accordance with Michigan Constitution Article I, Section 17. BB 8195.

Parole Consideration of Prior Record

The appellant was improperly denied parole based on his "prior criminal record variables," as used in the parole guideline "prior variables," where the sentencing court had already considered that information; double jeopardy principles were violated. BB 8195.

Criminal Defense Online:
Major Web Site Review Underway;
Help with Database Expansion Requested

As the SADO Web site heads into its second year of operation, Web planners are performing a major review of site organization and contents. With feedback from attorney users, we will continue our commitment to user- friendliness and depth of content. Please take a look at http://www.sado.org/ and give us your thoughts.

A major attraction of the site is its very comprehensive database of legal materials. We currently maintain a searchable database with numerous "libraries," including appellate briefs, summaries of appellate decisions, full text of selected unpublished Michigan Court of Appeals decisions, full text of the Defender Trial and Sentencing Books, newsletters, and resumes of selected expert witnesses. In the next months we will add several new libraries:

local fee schedules for court-appointed counsel;
trial-level motions, including those seeking attorney fees;
pleadings which defend against grievance or malpractice claims;
pleadings which defend against contempt citations;
samples of jury voir dire;
samples of non-standard criminal jury instructions;
resumes and testimony by prosecution expert witnesses; and
reports and treatises on issues of criminal law and procedure.

Please help us by contributing materials in any of the above categories, preferably in electronic format. For information about the database, or how to obtain access to it, please contact John Powell at (313) 256-9833 or john@sado.org.

In a Manner of Speaking . . .

This just in from the deposition of a defense expert in a prisoners' rights case. Remember, the truth is out there . . .

PLAINTIFF'S COUNSEL:

ASSISTANT ATTORNEY GENERAL: Objection, it's improper. Judge X has already ruled that's an improper question. That type of question is what he prohibited the use of in inmate depositions in the trial. If you fully understand the implications of what she's asking you, you can answer it, otherwise, don't answer it.

WITNESS: Will you repeat it?

PLAINTIFFS' COUNSEL: Sure. Did you understand all of my questions?

WITNESS: I think so.

PLAINTIFFS' COUNSEL: Did you answer them all truthfully and completely?

ASSISTANT AG: Objection, same objection. That's what Judge X has already ruled during the inmate - during depositions, that those were improper questions, have no effect.

PLAINTIFFS' COUNSEL: I think we wouldn't agree with that characterization, but the objection is noted and the witness may answer.

WITNESS: Should I go ahead and answer?

ASSISTANT AG: Well, I mean if you fully understand the implications, if you can remember each possible interpretation of everything you've said and every question they have asked and I don't know how you can possibly understand the interpretation of each question they've asked.

WITNESS: I have tried to be, what - -

PLAINTIFFS' COUNSEL: Truthful and complete?

WITNESS: Yes, I have tried to be truthful and complete.

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.

Circuit Court Opinion of the Month:
Violation of Driving Statues Not Always Negligence

A truck driver's reliance on appearances that were ultimately deceiving, and violation of several driving statutes as he passed a logging truck on a hilly two-lane highway, were not enough to make out the negligence element of negligent homicide in a case arising from a head-on collision with an oncoming vehicle. In People v Sieffert, No. 97- 02283-FH, 7-18-97, Kent County Circuit Judge Dennis C. Kolenda dismissed the charge and released an opinion which debunked the "lingering popular belief" that statutory violations establish negligence as a matter of law.

The defendant was driving a truck just before dawn one wintery morning, on a partly snow-covered highway with which he was not familiar. The road was marked with a double line, and a "Do Not Pass" sign was posted about one-half mile from where the collision occurred. The road was relatively flat, and defendant could see other taillights as he moved out to pass the logging truck. Unfortunately, he moved out on the crest of a hill which was being ascended by an oncoming truck; as the defendant swerved left to avoid collision, the oncoming truck swerved in the same direction and its driver was killed.

Judge Kolenda easily concluded that the requirements of People v Tims, 449 Mich 83 (1995) were met as to the causation element of negligent homicide, as Defendant Sieffert's conduct was a proximate cause of the death. However, he did not find the degree of negligence required to support the conviction. The defendant unquestionably violated several statutes (driving too close to an oncoming vehicle and passing in a no-passing zone, for example), but "contrary to a lingering popular belief, violations of a statute do not establish negligence as a matter of law." Citing Zeni v Anderson, 397 Mich 117 (1976), Judge Kolenda found that such violations may support an inference of negligence, but the evidence may establish an "adequate" or "acceptable" excuse for not following the statutes. In such cases, the appropriate standard of care becomes that established by the common law, namely, "what would a reasonably prudent individual do under all the same circumstances?"

In this case, the defendant neither knew of or should have known of the "occasion for compliance." The double line was obscured by snow, the road sign was far back, and nothing about the terrain suggested the need for a no- passing zone, as the road was flat and appeared to continue that way into the distance. It looked safe to pass the logging truck, and the fact that appearances were deceiving was not enough to elevate the conduct to negligence. Defendant acted as would a reasonably prudent individual confronted with the circumstances.

The defendant was represented by Grand Rapids attorney Kenneth Hoogeboom, who advises that the decision has not been appealed. The opinion is available to attorneys upon request.

Training Events

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 Criminal Advocacy Program (CAP) of Wayne Circuit and Recorder's Court will finish its annual series of seminars for court-appointed criminal defense attorneys with 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 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. Registration fees range from $135 to $355; more information and registration are available from NLADA at (202) 452-0620.

The Law Education Institute, Inc. and BNA Book, Inc., will present a "1998 National CLE Conference" on January 5-10, 1998 in Vail, Colorado. The conference will cover a wide variety of topics, including challenges to non- scientific evidence, jury voir dire, media issues, mental health defenses, sentencing, cross-examination, persuading the jury, and a mix of white-collar issues. The registration fee is $549, and further information is available from LEI at (800) 926-5895.

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 (NACDL) 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 State Bar of Michigan's Criminal Law Section is planning its 21st Annual Ski Conference, set for February 15 - 17, 1998, at Shanty Creek Resort in Bellaire, Michigan. Details will appear here as they become available.

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.

The Appellate Bench Bar Conference Foundation will host the Second Biennial Appellate Bench Bar Conference on April 23-24, 1998 in Detroit, Michigan. This large conference will focus on Court of Appeals opinions, the Supreme Court's rule-making powers and aspects of the appellate court rules, applications for leave to appeal, advocacy skills, and criminal and family law. Many appellate judges will participate, and the format includes lectures and small-group workshops. More information will appear here as it becomes available.

Certiorari Granted in the United States Supreme Court

HABEAS CORPUS -- Federal
28 USC 2244(b) [Antiterrorism and Effective Death Penalty Act]

Stewart v Martinez-Villareal
#97-300
10-14-97
62 CrL 3033

Granting review to the government in this capital case, the Court agreed to consider: (1) whether Congress intended the limitations of the 1996 Antiterrorism and Effective Death Penalty Act on second or successive habeas corpus petitions to apply to all claims and in every court, including competency-for-execution claims and applications for original Supreme Court habeas writs; (2) whether applying the Act to prevent consideration of a claim of incompetency, raised in a second or successive petition, violates the federal constitution's Suspension Clause; and (3) whether there is some other means by which the Court can review the issues. Case below: 118 F3d 628 (CA9, 1997).

SENTENCING AND PUNISHMENT -- Standards for Imposing Sentence
JURY -- Verdict -- Failure to Indicate Basis for Verdict
Edwards v United States
#96-8732
10-20-97
62 CrL 3045

At issue in the case is whether a general jury verdict convicting the defendant of conspiracy involving multiple drugs requires the judge to sentence as if only the drug carrying the lowest penalty was involved, or whether the verdict allows the judge to determine what particular drug was involved and to set the punishment accordingly. Case below: 105 F3d 1179 (CA7, 1997).

APPEALS -- Right To
APPEALS -- Scope of Appellate Review
Hohn v United States
#96-8986
10-31-97
62 CrL 3057

Review was granted to consider whether the Supreme Court has jurisdiction to grant certiorari, vacate and remand the case (at the suggestion of the Solicitor General), in light of the Court of Appeals' denial of petitioner's request for a certificate of appealability. The lower court did not allow the appeal to lie, finding that a statutory, rather than constitutional, claim was made by the assertion that jury instructions on use of a firearm during a drug offense violated 18 USC 924(c)(1) and did not conform to Bailey v United States, 516 US 137 (1995). Case below: 99 F3d 892 (CA8, 1996).

United States Supreme Court Opinion

STATUTORY INTERPRETATION
20 USC 1097(a) [Willful Misapplication of Federally Guaranteed Student Loan Funds]

Bates v United States
#96-7185, November 4, 1997
62 CrL 2005

Affirmed Seventh Circuit Court's decision vacating the District Court's dismissal of the indictment and reinstating the prosecution. Case below: 96 F3d 964 (CA 7, 1996).

Specific intent to injure or defraud someone, whether the United States or another, is not an element of the federal statute 20 USC 1097(a), which prohibits the knowing and willful misapplication of federally-guaranteed student loan funds. The defendant was the chief financial officer of a technical school (Acme) which received student loan money through the Title IV federal Guaranteed Student Loan (GSL) program. If a student withdrew from the school, defendant was required to return a portion of the loan proceeds to the lending institution. The federal government was liable for the full amount of the loan if the school failed to refund the amount the student owed. Defendant failed to make the required refunds, transferring the money instead to Acme's owners. TheDistrict Court dismissed the indictment and the Seventh Circuit reversed and reinstated the prosecution. The Supreme Court granted certiorari to resolve the conflict between the Eleventh Circuit's opinion in United States v Kramer, 1 F3d 1161 (CA 11, 1993) and the Seventh Circuit's opinion in this case.

The text of Section 1097(a) is silent on an intent-to- defraud element, and words or elements should not be read into the statute. Another subsection of the statute, 1097(d), which was passed at the same time, does contain an express intent-to-defraud element, so that the omission of this element from Section 1097(a) was presumed to be intentional. Defendant's reliance on decisions interpreting the statute proscribing willful misapplication of bank funds, 18 USC 656, was misplaced. Congress inadvertently deleted the intent language from Section 656 during a technical revision, but Section 1097(a) never contained an intent-to- defraud requirement. Nor was it necessary to read an intent-to-defraud element into the statute to prevent it from setting a trap for the unwary. Innocent misapplication does not fit within the construction of the statute. The 1992 amendment to Section 1097(a) did not change the law, but was added merely as a clarification. The rule of lenity did not come into play because nothing in the text, structure, or history of the statute warranted the inclusion of fraudulent intent as an element.

Michigan Supreme Court Order

SENTENCING AND PUNISHMENT--Guidelines
SENTENCING AND PUNISHMENT--Review of Sentence Length--Disproportionate
People v Brenda L. Pearson
#109802
10-21-97

Reviewing the prosecution's application for leave, the Court peremptorily reversed the Court of Appeals' judgment and reinstated the defendant's sentences for delivery of heroin. Justice Cavanagh would have granted leave to appeal. Brenda Pearson was a married, forty-two- year-old and employed mother of two who mailed 42 packages of heroin from her home in New York to a friend in Muskegon. Both women were addicted, and the defendant apparently believed that each package was for her friend's personal consumption. Defendant Pearson had no prior record, and was convicted on ten counts of delivering less than fifty grams of heroin, in exchange for dismissal of the remaining 32 counts. Guidelines recommended 18 to 60 months for each count, and the trial court imposed ten consecutive terms of 5 to 20 years. The majority of the Court of Appeals panel hearing defendant's appeal [Judges Markey and Monton] found the fifty-year effective minimum to be disproportionate, even though each term was within the guidelines' range. They agreed that the trial court considered only the general seriousness of the crime,and categorized defendant as a drug dealer despite the highly unusual and specific facts of the particular deliveries. Judge Murphy dissented, noting that the consecutive nature of the sentences has no legal effect on the proportionality determination; he did not feel that the circumstances were sufficiently "unusual" to justify upsetting the sentences. Case below: unpublished opinion (#189020, 5-30-97).

Selected Court of Appeals Opinions

FREEDOM OF INFORMATION ACT (FOIA)
Parnell Seaton v Wayne County Prosecutor
#191685
August 1, 1997
Taylor, GRIFFIN, Saad
Plaintiff-Appellant Seaton
IN PRO PER

Affirmed circuit court order dismissing plaintiff's complaint under the FOIA.

The trial court did not err in granting summary disposition in favor of defendant. Plaintiff, a prisoner, made an FOIA request for trial transcripts and court records, which had already been received by plaintiff's appointed appellate counsel. The FOIA does not apply to a prisoner's request for records of his own criminal trial. Jones v Wayne County Prosecutor, 165 Mich App 62 (1987). Such requests are governed exclusively by court rule, MCR 6.433, requiring courts to provide documents and transcripts to indigent defendants to pursue post-conviction remedies.

Dissenting, Judge Taylor would review the issue briefed by the parties but not decided by the majority, whether the amendment to the FOIA removing an incarcerated prisoner's standing to proceed under that statute was retroactive. Moreover, the scope of the court rule, MCR 6.433, does not necessarily include some of the documents requested by defendant, such as police reports, and does not include requests unrelated to the pursuit of post-conviction remedies.

Judge Taylor would also hold that the case relied upon by the majority, Jones, was overruled and was wrongly decided.

IDENTIFICATION PROCEDURES -- In-the-Field Identification
COUNSEL, RIGHT TO -- Identification Procedures
IDENTIFICATION PROCEDURES -- Prior Suggestive Identification
MOTION FOR NEW TRIAL -- Great Weight of Evidence
APPEALS -- Preservation of Issue
SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
People v Andre Winters
#184934, October 14, 1997
Doctoroff, YOUNG, Kelly
SADO - DESIREE FERGUSON

Affirmed jury convictions of assault with intent to commit murder, possession of a short-barreled shotgun, and felony firearm, and sentences of 25 to 50 years, 3 to 5 years, and the consecutive 2-year term.

The on-the-scene identification procedure did not violate the defendant's "right to counsel" as interpreted by People v Anderson, 389 Mich 155 (1973). The victim was approached by three men, one of whom shot him. He was able to drive a quarter mile from the scene, and the police were notified. The victim gave a description, police found three men matching the description, and quickly returned them to where the victim was awaiting an ambulance. The victim identified defendant as the shooter. Previous cases failed to provide a simple, practical standard consistent with Anderson for use by police officers in the field. Police cannot be expected to decide when they have "very strong evidence" that the person stopped is the culprit. Therefore, it is not improper and does not offend the Anderson requirements for the police to conduct an on-scene identification, so long as they act promptly. Such confrontations are indispensable police practices. Prompt confrontations will promote fairness by assuring greater reliability.

Anderson is not a statement of Sixth Amendment law. Although it remains the law in Michigan, the federal rule should be adopted that the right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings.

There was no record on which to review the claim that the identification was unduly suggestive, so it was not preserved for appellate review.

The issue that the verdict was against the great weight of the evidence was not preserved for review because defendant did not timely move for a new trial below.

Defendant would not be entitled to resentencing even if the trial court misinterpreted the instructions regarding how the guidelines should be scored because the guidelines do not have the force of law. People v Mitchell, 454 Mich 145 (1997). Defendant did not claim that the guidelines scores were based on inaccurate information or that the sentence was disproportionate.

Defendant did not preserve the issue that the guidelines range was inaccurately stated in the report because he did not object at sentencing.

DISCOVERY -- Prosecutor's Case File
PRETRIAL PROCEEDINGS AND MOTIONS -- Motion to Quash or Dismiss
People v Charles Davie and
Reginald Obispo, After Remand
#181537, October 3, 1997
Murphy, KELLY, Gribbs
SADO - GAIL RODWAN

Affirmed order dismissing the charge of delivery of less than 50 grams of cocaine against Davie, and order dismissing the charges of delivery of less than 50 grams of cocaine, possession with intent to deliver less than 50 grams of cocaine, and felony firearm against Obispo.

The trial court dismissed both cases because the prosecution failed to provide the defendants with discovery, "so they were not ready to go on the date of trial." The Court of Appeals remanded for an evidentiary hearing. Both counsel had served discovery orders on the police. Discovery was not provided to Obispo's attorney until 2 days before trial. The police never provided discovery materials to Smith's attorney. Both attorneys testified that their clients were prejudiced. The trial court expressed dissatisfaction with the informal discovery procedure used in Recorder's Court, agreed that the defendants had been prejudiced, and entered an order dismissing both cases.

A trial court's decision regarding the remedy for noncompliance with a discovery order is reviewed for an abuse of discretion. The trial court's dismissal of the charges here was not unwarranted or unnecessarily harsh. Neither the police nor the prosecutor complied with discovery orders and the prosecutor's failure to take any action (leaving it entirely up to the police) was directly contrary to procedure set forth in Recorder's Court LCR 2.302. The trial court's finding of prejudice was supported by the record. The attorneys had no time to prepare a meaningful defense or to meet and discuss trial strategies for the joint trial. While the prosecutor and the public had an interest in proceeding to trial, the court had a greater interest in forcing compliance with Recorder's Court LCR 2.302.

However, the trial court's dismissal was found to be without prejudice. The trial court did not indicate on the orders whether it was with or without prejudice, but to insulate the defendants from potential conviction would place them in a better position than if the prosecutor had not violated the discovery orders, a "remedy . . . of dubious value."

SEARCH AND SEIZURE -- Invalid General Warrant
People v Mark David Barkley
#190146; #192430, September 26, 1997
BANDSTRA, Griffen, Fitzgerald
RONALD J. VARGA

Affirmed conditional guilty plea to breaking and entering an occupied dwelling and sentence of 2 - 10 years.

The Court rejected defendant's claim that the magistrate's failure to sign his copy of the search warrant, where the original and 2 other copies were signed, violated the search and seizure protections of the Michigan Constitution, Const 1963, art 1, sec 11. Relying on People v Mitchell, 428 Mich 364 (1987) and rejecting People v Locklear, 177 Mich App 331 (1989) the Court held that Mitchell's treatment of an unsigned affidavit is equally appropriate for an unsigned warrant, and that, while an unsigned warrant is presumptively invalid, this presumption can be rebutted. Evidence that three copies of the warrant were signed amply rebutted the presumption of invalidity, and demonstrated that the magistrate intended that the warrant should issue.

Fitzgerald concurred in result only.

FORFEITURE
DUE PROCESS VIOLATION -- Failure to Give Notice and Opportunity to be Heard
Earl Carl Hollins, Mattie Hollins and
Lamont Hollins
v City of Detroit Police Department
and Wayne County Prosecutor
#179377, September 12, 1997
Hoekstra, MARILYN KELLY, Sullivan
RALPH H. RICHARDSON

Affirmed trial court order returning $29,335 to Plaintiff Mattie Hollins on the ground that the money was not properly forfeited.

Detroit police executed a search warrant at the home of plaintiffs Earl and Mattie Hollins on information that their son, Curtis, possessed cocaine. Curtis admitted the possession when police arrived, and they seized two kilograms of cocaine from a bedroom. Plaintiff Mattie Hollins told the police she had money hidden in the basement, which the police confiscated. Notice of forfeiture was served on Curtis and not on Earl and Mattie Hollins. Curtis pled guilty and never contested the forfeiture. The money was administratively forfeited (no forfeiture proceeding conducted) to the Detroit Police Department. Plaintiffs filed a complaint asking the trial court to set aside the forfeiture; it ordered the money returned to Mattie Hollins because she had not been given notice after having asserted an ownership right in the money.

Reviewing de novo the order setting aside the administrative forfeiture, the Court rejected the defendant's claim that the trial court had no jurisdiction to order the money returned because it was automatically forfeited and plaintiffs did not file, as required by statute, a claim to contest the forfeiture. Derrick v City of Detroit, 168 Mich App 560 (1988) and In re Return of Forfeited Goods, 452 Mich 659 (1996) were distinguishable because in this case plaintiff Mattie Hollins was never given timely notice that the government was seeking forfeiture of the money, so she could not file a claim for the money. Where the government gives improper notice to the property's owner and property is administratively forfeited, the trial court has jurisdiction to order its return.

The trial court correctly determined that any forfeiture proceedings would have been untimely, that the police failed to provide an acceptable reason for their delay, and that there was prejudice to Mattie Hollins. Allowing the defendant to institute forfeiture proceedings now would serve as a disincentive to police departments to observe the due process right of potential claimants. The harmless error rule did not apply as Mattie Hollins received no notice and had no opportunity to be heard, unlike the claimant in In re Forfeiture of $109,901, 210 Mich App 20 (1995).

Dissenting Judge Hoekstra would calculate the time of the delay differently, found no bad faith on the part of the defendant, and saw no prejudice to the plaintiff. The paries should be put in a position to litigate their respective claims and the dissenting judge would remand to permit forfeiture proceedings to commence.

APPEALS -- Standard of Review -- De Novo
PRELIMINARY EXAM -- Insufficiency of Evidence to Bind over
PRETRIAL PROCEEDINGS AND MOTIONS -- Motion to Quash or Dismiss
MCL 399.5(2); MSA 15.1805(2) [Destruction of Official Records]
MCL 750.505; MSA 28.773 [Misconduct in Office]
People v Gerard Leo Carlin and
People v Gerard Leo Carlin
##186263 and 190563
September 23, 1997
Kelly, WAHLS, Gage
THOMAS J. KIZER

Affirmed circuit court's order granting defendant's motion to dismiss misconduct in office charges in #18623; affirmed circuit court's order affirming dismissal by district court in #190563.

The standard of review for a bind-over by district court is the same as for bind-over by circuit court: abuse of discretion. For the common law offense of misconduct in office, the defendant must be found to be a public officer. This defendant was a deputy sheriff of Oakland County. Whether he is a public officer was reviewed de novo. The offense applies to public officers as distinct from public employees. The conflict between People v Medlyn, 215 Mich App 338 (1996) [a deputy sheriff is a public official] and Schultz v Oakland Cty, 187 Mich App 96 (1991) [deputy sheriff is not a public official] was recognized. Since the panel had to follow Schultz, the circuit court did not err in finding that this defendant was not a public official. Furthermore, the opinion of the Supreme Court in People v Thomas, 438 Mich 448 (1991) was not authoritative on this issue, as the majority did not consider the precise question involved here. The prosecutor failed to brief the position that the defendant was the de facto police chief in Rochester Hills, so the argument was waived.

Whether comp time slips and tally sheets are "official records" for purposes of the statute prohibiting the destruction of official records was an issue of first impression. Giving effect to the legislative intent and giving the language its ordinary meaning, the slips and sheets were merely temporary notes and memos which commanders were not required to make or keep. As they were not official records, there was no abuse of discretion in dismissing the charges.

Dissenting in part, Judge Kelly would find that the defendant was a public officer acting under color of office when he misreported over-time hours and ordered two deputies to drive L. Brooks Patterson to various non-official activities. He would not extend to command officers the holding in Schultz that a deputy sheriff is not a public officer, and felt that the majority should have given the dicta in Thomas more deference. Kelly concurred in dismissal of destruction of official records counts.

GUILTY PLEAS - Withdrawal of
GUILTY PLEAS - Sentencing Aspect
SENTENCING AND PUNISHMENT - Bargains, Procedure, and Enforcement
FORFEITURE
DEFENSES - Statute of Limitations
DOUBLE JEOPARDY - Multiple Punishments
People v William C. Everard
#186497
September 16, 1997
WAHLS, Neff, Taylor
SADO - PETER VAN HOEK

Affirmed plea of guilty to operating a chop shop and sentence of one to five years.

Defendant had previously pled guilty to operating a chop shop and possession of stolen property, sentenced to two years' probation and restitution. The prosecutor began forfeiture proceedings and an order of forfeiture was entered. Defendant then withdrew his plea and the sale of the forfeited property was enjoined. Defendant entered a Cobbs plea [People v Cobbs 443 Mich 276 (1993)] to the chop shop charge and moved to withdraw his plea before sentencing. The motion was denied and a sentence of 1 to 5 years in prison was imposed. Defendant understood his potential sentence, as well as the Cobbs plea. Defendant merely changed his mind before sentencing and this was not a valid basis for plea withdrawal. There was no support for the claim that he expected to serve his sentence in the county jail rather than prison, and the sentence was clearly consistent with the trial court's preliminary evaluation. Thus, the trial court properly denied the request to withdraw the plea.

By failing to raise the issue below, Defendant waived the statue of limitations defense. Even if he had preserved the issue, it had no merit. The 14-day limit in the statute dealing with seizures [MCL 750.535a(9); MSA 28.803(1)(9)] does not apply to forfeitures. The statute of limitations [MCL 600.5809; MSA 27A.5809] deals with the recovery of a forfeiture, not the forfeiture itself, and was not applicable. Some limitation was needed, however, in order to protect a defendant's due process rights. The prosecutor must proceed without undue delay, and the following factors are to be applied: (1) lapse of time between seizure and filing of complaint; (2) reason for the delay; (3) prejudice to defendant; (4) nature of property seized. The relevant time period is between the conviction (not seizure) and commencement of the forfeiture. This defendant failed to show prejudice, as there was no undue delay.

The forfeiture order did not become void when defendant withdrew his plea. The factual determinations necessary to support the forfeiture were never set aside. The order enjoining the sale was lifted when the second plea was accepted.

Forfeiture of property used in a chop shop (a civil forfeiture) does not constitute punishment for purposes of the Double Jeopardy Clauses of the United States Constitution, United States v Usery, 518 US ___; 116 S Ct 2135, 2138; 135 L Ed 2d 549, 557 (1996), or the Michigan Constitution; there was no double jeopardy violation.

SENTENCING AND PUNISHMENT -- Guidelines -- Scoring
People v Corey Danisher Harris, On Remand
#204995, September 16, 1997
NEFF, Hood, Fitzgerald
EILEEN KAVANAGH

Affirmed conviction and sentence after remand by Supreme Court.

Defendant challenged the scoring of PRV 3 relating to prior juvenile probation violations. Resentencing was granted due to the scoring error, the prosecutor appealed, and the Supreme Court remanded for reconsideration in light of People v Mitchell, 454 Mich 145 (1997).

Mitchell held that appellate courts are not authorized to examine the scoring of the guidelines by the trial judge where the challenge is not directed to the factual basis of the sentence. This defendant made no challenge to the facts on which the PRV 3 score was based, so the Court of Appeals had no authority to rescore PRV 3. The sentence, which was both within the guidelines range and "clearly" proportionate to the offense and offender, was affirmed.

UTTERING AND PUBLISHING -- Sufficiency of Evidence
DEFENSES -- Unconstitutionality of statute or Ordinance
MCL 768.7a(2); MSA 28.1030(1)(2) [Re-offending Parolee]
People v Brenda J. Hogan,
a/k/a Tanya Dunn, a/k/a Tanya Harris
#193769, September 16, 1997
Jansen, YOUNG, and Cooper
DONALD R. COOK

Affirmed conviction by guilty plea of uttering and publishing (with agreement to drop habitual offender charge) and sentence of 1 1/2 to 14 years.

Defendant's claim that she was charged under an inapplicable statute was not waived by her guilty plea. The Court rejected her claim that only an altered, forged, or counterfeited instrument can support an uttering and publishing charge. Unlike most cases, this one does not involve forgery; defendant opened an account in a fictitious name, and published a check she knew to be worthless, signing a fictitious name. However, this does constitute the utterance and publishing of a "false instrument . . . knowing the same to be false." People v Hodgins, 85 Mich App 62 (1978) was distinguished as it focused on the forgery aspect to the exclusion of other provisions. Applying the rules of statutory construction (giving effect to every phrase, clause, and word), this defendant published an instrument she knew to be false, within the meaning of the statute.

The sentence of 1 1/2 to 14 years was not disproportionate. The minimum sentence was at the bottom of the sentencing guidelines range (18 - 60 months) and was presumptively proportionate. No unusual circumstances were present.

Defendant's claim that the re-offending parolee statute is unconstitutional was not reviewed. No constitutional challenge was brought below, and the factual predicate for the argument [the Court of Appeal's interpretation of the statute in People v Young, 206 Mich App 144 (1994)] has been reversed by the Supreme Court, Wayne Co Prosecutor v Dep't of Corrections, 451 Mich 569 (1996).

CONFESSIONS -- Custodial Interrogation
CONFESSIONS -- Failure to Give Miranda Warnings
APPEALS -- Standard of Review
People v Alberto Mendez
#192288, September 12, 1997
PC: Markman, Holbrook, O'Connell
JOHN F. EARLY, JR.

On prosecutor's interlocutory appeal, reversed trial court order granting defendant's pretrial motion to suppress his statement to the police.

Review of suppression hearing findings is for clear error as to historical fact, and de novo as to whether a person was "in custody" for purposes of Miranda warnings (a mixed question of fact and law).

Miranda warnings are required when a person is in custody or otherwise deprived of freedom of action in any significant manner. The reviewing court looks to the totality of circumstances, with the key being whether the defendant reasonably believed that he was not free to leave. This defendant picked the time of the interview, drove himself to the police station, was left alone and unrestrained for periods of time, and was allowed to leave after giving written answers to questions, which investigators told him they did not believe. Police claimed to have told defendant he was not under arrest. Defendant initially refused to make a statement (which indicates a lack of feeling coerced). This case is similar factually to Oregon v Mathiason, 429 US 492; 97 SCt 711; 50 LEd2d 714 (1977), where the Supreme Court held that Miranda warnings are not required for everyone the police question, or merely because the questioning takes place in the police station, or because the questioned person is a suspect: they are only required where there has been such a restriction on a person's freedom as to render him "in custody." Given the totality of the circumstances, this defendant was not "in custody" such that Miranda warnings were required.

HABITUAL CRIMINAL PROCEEDINGS -- Validity of Prior Convictions
People v Alfred Quintanilla, Jr.
#184181
September 23, 1997
PC: Smolenski, Fitzgerald, Gage
SADO - VALERIE NEWMAN

Remanded to allow the prosecutor to show that the prior Ohio offense was a felony, or to proceed under a different prior felony, where defendant was convicted of felonious assault and felony firearm, and subsequently convicted of being an second habitual offender.

Defendant was charged as a second offender based on an Ohio conviction for aggravated assault, which is a felony in Ohio, but a misdemeanor in Michigan. The facts of the out-of-state crime, rather than the words or the title of the out-of-state statute under which the conviction arose, were considered to be determinative. As there was no information in the record concerning the facts of the Ohio conviction, the case was remanded to the trial court for the prosecutor to show whether the facts would support a felony conviction in Michigan.

APPEALS -- Standard of Review -- De Novo
MCL 257.625(b)(7)(a); MSA 9.2325(2)(7)(a) [Restricted License]
OUIL/OWI -- Sentencing
People v Jennifer Ann Seeburger
#193635, September 12, 1997
PC: Saad, Neff, Reilly
PATRICIA T. MORRIS

Affirmed denial of restricted license.

The defendant was convicted of OUIL and her license was suspended for six months. She was granted a restricted license to drive to and from work. The district court granted her motion to allow her to drive to and from child care as within the course of an "occupation," but the circuit court reversed. The Court of Appeals granted leave to appeal, even though the suspension had expired, because the issue "generally tends to escape judicial review."

The statue delineates the conditions a person must meet to get a restricted license, and the circumstances under which a person may drive. Whether the statue allows driving to and from day care and school was reviewed de novo. The statute is restrictive and exhaustive and there is no specific, express provision to allow driving to and from day care. Using the Black's Law Dictionary definition of "occupation," the panel concluded that it does not encompass child rearing, which involves no renumeration. Iowa law was distinguished; the Michigan statute is more restrictive and does not encompass driving children to day care in order to maintain employment.

While professing sympathy for single parents, the panel left it up to the legislature to enact provisions to accommodate child care needs.

CONSTITUTIONAL RIGHTS -- Miscellaneous
DEFENSES -- Unconstitutionality of Statute or Ordinance
WEAPONS, POSSESSION BY A FELON OR
INMATE
EX POST FACTO LAW
APPEALS -- Standard of Review -- De Novo
INSTRUCTIONS -- Duty to Charge -- Essentials of Crime
PRE-TRIAL PROCEEDINGS AND MOTIONS -- Stipulations
People v Edward Swint
#191572, #192493, September 12, 1997
MARKEY, Bandstra, Hoekstra
SADO - RONALD STEINBERG

Affirmed felon in possession of a firearm/habitual offender conviction and probation violation.

In a case of first impression, this panel held that the felon in possession of a firearm statute does not violate Michigan's constitutional right to bear arms, Const 1963 Art I Sec 6. Federal cases interpreting the Second Amendment of the US Constitution were of no guidance as the Michigan provision differs significantly from the Second Amendment, which is not applicable to the states through the 14th Amendment. The Court looked to the constitutional provisions of other states, and followed the lead of the Connecticut Supreme Court in Benjamin v Bailey, 234 Conn 455; 662 A2d 1226 (1995). The limiting language of the provision, "for defense of himself and the state," demonstrates that the right to bear arms is not valued in and of itself, but only as a means to a particular end. It is not an absolute. The defendant in this case did not claim that he was being deprived of a right to defend himself or the state. This defendant held a gun and threatened to kill himself, and later made threats against others. Bearing arms for a purpose other than defense of self or the state is not constitutionally protected. The felon in possession statute does not foreclose the right to bear "non-firearm" weapons in defense of self, and the constitution does not guarantee a felon's right to possess a firearm. Therefore, the defendant could not successfully allege a constitutional infringement on his right to defend himself with arms.

Furthermore, the felon in possession statute is a reasonable regulation by the state to protect the safety, health and welfare of Michigan citizens (an issue of first impression which the Court reviewed de novo). In finding that the state can assert a legitimate interest in limiting certain individuals' access to firearms, the court considered the intent of the framers and the presumption of constitutionality of the statute. Following an exhaustive analysis of the issue in other jurisdictions, the court held that the right is not absolute, and that the state has police power to reasonably regulate the right. It is reasonable to limit the possession of firearms by persons (convicted felons) who have demonstrated a dangerous disregard for the law and who pose a threat to public safety, at least for the statutory period of 3 to 5 years (which is reasonable, compared to 10 years in other states).

The felon in possession of a firearm statute did not violate the ex post facto law even though the defendant's predicate felony offense was committed before the statute was enacted (1992), because the conduct being punished (possession of a firearm by a felon) occurred after the statute's enactment. See People v Tice, 220 Mich App 47 (1996). The purpose of the statute is not to further punish felons, but to protect the public.

The trial court's failure to define "possession" did not require reversal, despite the jury's questions regarding the meaning of the term. There was no objection and no manifest injustice. Any error was harmless because the defendant testified that he held the firearm and threw it out the door when the police came.

The trial court abused its discretion in denying the motion to exclude defendant's prior conviction of assault with a dangerous weapon in exchange for a stipulation that the defendant had been convicted of felonious assault and was ineligible to possess a firearm. Old Chief v United States, ___ US ___; 117 S Ct 644; 136 LEd2d 574 (1997). The name and nature of the prior conviction carries the risk of unfair prejudice (propensity to commit the crime charged, bad character, etc). However, this non- constitutional error was harmless under People v Mateo, 453 Mich 203 (1996); the defendant admitted that he picked up the gun, that is, possessed it. Also, the prejudicial effect was minimal. The stipulation was not that he merely committed a crime punishable by one year. This defendant's stipulation (that he had been convicted of felonious assault) would only have "slightly whitewashed" the prior felony.

SENTENCING - Trial Court's Reliance on Criminal Record
SENTENCING - Presentence Report - Contents
People v Gilbert J. Galvan, a/k/a Gilbert Galvin,
a/k/a John Moskal
#187042, October 24, 1997
Cavanaugh, Holbrook, JANSEN
RONALD D. AMBROSE

Affirmed conviction of attempted false pretenses and sentence of 3 to 5 years in prison.

The trial court properly considered, over objection, defendant's Canadian convictions when imposing sentence. The panel took judicial notice of the fact that Canada is a democratic society with a legal system based on English common law tradition; therefore, in the absence of any affirmative showing that defendant was denied his due process rights, defendant received due process in the Canadian system, and the convictions were relevant to sentencing.

ASSAULT, DOMESTIC -- Sufficiency of Evidence
MCL 750.81; MSA 28.276 (DOMESTIC VIOLENCE)
In Re Kathryn Marie Lovell, a Minor
People v Kathryn Marie Lovell
#194504, October 21, 1997
BANDSTRA, Griffin, Fitzgerald
MICHAEL D. CARPENTER

Reversed probate court's order affirming attorney- referee's refusal to issue a petition charging assault and battery.

The language of the assault and battery statute, as amended to provide increasing penalties for "domestic violence" or "domestic assault," is clear and unambiguous, precluding judicial interpretation. Therefore, the phrase "a resident. . . of his or her household" can encompass the parent-child relationship. Respondent was a sixteen-year- old minor who allegedly assaulted and battered her mother. The statute applies to "domestic" offenders broadly defined as including persons joined by marriage, common parenting, or common household residence with the victim.

Judge Fitzgerald, dissenting, would hold that, in light of the purpose of the statue and the common thread of romantic involvement uniting the first two classifications of offenders, offspring do not belong in that class. Appellee could have been charged under the subsection criminalizing assaults and batteries generally.

CONTEMPT
In Re Jane M. Thurston
(People v Robert Shier, Jr.)
#184811
October 31, 1997
PC: Corrigan, Taylor, D.A. Johnston III
KENNETH MOGILL

Found respondent guilty of two counts of contempt, sentenced her to a fine of $250 for each offense, and assessed $200 in costs.

Respondent had been ordered to show cause why she should not be held in contempt for making false statements at oral argument in the case of People v Robert Shier, Jr. (June 24, 1997), and the matter had been referred to the Attorney Grievance Administrator for investigation.

The motion to dismiss for failure to charge that respondent acted "willfully" was properly denied because "willfulness" is not an element of the charge and, even if it were, "willfulness" need not be alleged in the order to show cause.

The motion to waive fees was properly denied because respondent did not claim financial inability to pay, and the requirement of fees is a function of legislation, not a constitutional principle.

The positive evidence of wrongdoing overcame the undisputed proof of respondent's good character and truthfulness, according to the panel. The gravity of the offense was not eliminated merely because the "lie" was readily apparent from the original briefing; the court was in fact misled and was compelled to independently verify the truth at considerable expense. The falsehoods were not immaterial in light of the numerous grounds upon which the defendant Shier was granted appellate relief.

Respondent's statement at oral argument that defendant Shier "never had sex" was deemed a false statement of fact, and the claim of contextual misunderstanding was an unsupported, after-the-fact rationalization. Respondent's statement at oral argument that the complainant was laughing during the taped interview with the police also was deemed a false statement, and respondent's argument that laughter or some other equivalent sound was audible through the taped statements was not reasonable. Neither the members of the panel, a law clerk, nor a board-certified psychiatrist who listened to the recordings heard any laughter. Accepting the argument, that if respondent thought that what she saying was accurate then it cannot be contemptuous, would emasculate the Court's contempt power, leaving it hostage to "imaginings and hallucinations" of the contemnor.

Respondent was not singled out for "selective prosecution" by the Court. The misconduct committed by the prosecutor during the trial of Robert Shier was not demonstrably violative of any Rule of Professional Conduct. Past lack of enforcement in other cases where the prosecutor made gross misstatements of fact or law in the brief on appeal did not preclude the application of the law in this case. Different judges may exercise their discretion differently, and there was no proof of purposeful discrimination. There was no constitutionally suspect invidious criterion (such as race, religion, or gender) which is prerequisite to a finding of unconstitutional selective enforcement. The Court will not tolerate misconduct of any kind, without regard to the identity of the wrongdoer.

An incarcerative term was not warranted in light of respondent's past exemplary conduct. Costs were limited to the equivalent of the filing fee for a claim of appeal or application for leave to appeal, but the bar and public were notified that the Court has the inherent power to impose actual costs whenever wrongdoing or violation of the rules causes the Court or its staff needless additional work. The panel also directed the Clerk to forward its opinion to the Attorney Grievance Administrator.

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.

GUILTY PLEA -- Waiver Effects of -- When Error Affects State's Ability to Proceed
DEFENSES -- Entrapment
DEFENDANT -- Language/Hearing Problems

People v Felix Ernesto Sosa
#169934, August 15, 1997
MA 30373 (3pp)

Affirmed guilty plea to conspiracy to deliver over 650 grams of cocaine and sentence of non-parolable life in prison, but remanded for an entrapment hearing.

A claim of entrapment is not waived by a guilty plea, but