From Other States

Circuit Court Opinion of the Month: "Shy Bladder Syndrome"

In a Manner of Speaking

The National Organization for the Reform of Marijuana Laws will host its annual legal seminar on December 3 – 5, 1998, in Key West, Florida. Among the topics to be discussed are medical use of marijuana, the defense of cultivation, opening statements and closing arguments, tactics for dealing with informants, marijuana law reform, creative downward departures from sentencing guidelines, ethics, and review of recent appellate decisions. Registration fees range from $325 to $475, and more information is available from NORML at (202) 483-5500, or natlnorml@aol.com.

Granting review to the defendant, the Court agreed to consider whether defendant’s actual awareness of his right to appeal rendered harmless the trial court’s failure to advise him of his appellate rights, as required by Fed.R.Crim.P. 32(a)(2). Review should resolve a split among circuits on the legal standard to be applied to claims that the sentencing judge omitted advice of appellate rights. Case below: unpublished opinion (CA3, 2-27-98).

The issue to be reviewed is whether police may search the purse of an automobile passenger as to whom probable cause is lacking, as part of a warrantless search of the passenger compartment of an automobile lawfully stopped for traffic violations. Particularly, the focus is on whether there was a reason to believe someone had the opportunity to place the object of the search into the passenger’s belongings, just prior to the search. Case below: 956 P2d 363 (Wyo SupCt, 1998).

Granting review to state prosecutors sued under 42 USC 1983, the court agreed to consider whether they violated a defense attorney’s Fourteenth Amendment rights by executing a search of the attorney at the same time his client was testifying before a grand jury. The lower court found them not entitled to absolute immunity, as they were acting more as investigators than advocates, and concluded that no reasonable prosecutor would have believed it was lawful to orchestrate the search and the client’s grand jury appearance so as to prevent the attorney from consulting with his client during the grand jury appearance. It also found the attorney’s right to pursue his profession according to highest standards and without unreasonable governmental interference to be clearly established at the time of the search. Case below: 131 F3d 793 (CA9, 1997).

At issue in the case is whether the trial court erred reversibly in failing to instruct jurors that they must agree unanimously on which particular drug violations constituted the "series of violations" required for conviction on conducting a continuing criminal enterprise in violation of 21 USC 848. Case below: 130 F3d 765 (CA7, 1997).

At issue in this review of a denied habeas claim is: (1) whether the state violated Brady v Maryland, 373 US 83 (1963) by failing to disclose documents relating to police interview of a witness who testified at petitioner’s capital murder trial, (2) if so, whether the non-disclosure and the state’s representation that its open file contained all Brady materials establish the requisite "cause" for failing to raise a Brady claim in state proceedings, and (3) whether the petitioner was prejudiced by non-disclosure. Case below: unpublished opinion (CA4, 1998).

The issues to be reviewed by the Court are: (1) whether the trial court’s failure to instruct the jury on materiality was harmless error in a fraud case because materiality was not in dispute at trial, and (2) whether materiality is an element of crimes set forth in federal statutes prohibiting mail fraud, wire fraud, and bank fraud, 18 USC 1341, 1343, and 1344. Case below: 136 F3d 1459 (CA11, 1998).

Vacated convictions of multiple counts of conspiracy, aiding and abetting, and possession with intent to distribute cocaine, remanded for hearing. Case below: unpublished opinion (#96-00045, 2-18-97).

For reasons stated in the district court's opinion (not repeated), the district court properly admitted a co-conspirator's statements and the evidence was sufficient to support the verdicts.

The district court abused its discretion in denying defendant an opportunity to question a juror who sent a note during deliberations stating that he may have had prior business dealings with defendant, who owned a bar. Defendant made an offer of proof that he told the juror that his security system was over-priced and then asked the juror to leave the bar when the juror became intoxicated. This constituted an "extraneous" rather than an "internal" influence because it involved "specific knowledge about or a relationship with either the parties or their witnesses." The court must hold a hearing to allow the defendant, who has the burden of proof, a meaningful opportunity to demonstrate actual juror bias. The district court also abused its discretion in relying on the assurance of impartiality contained in the note, which was insufficient to ensure the juror's impartiality without further inquiry.

Vacated sentence of 60 months in prison for manufacturing marijuana, remanded for resentencing. Case below: unpublished opinion (# 94-20072, 3-1-96).

The trial court erred in relying on the incident report rather than the search warrant return when determining how many marijuana plants were seized during the search. The warrant return was more reliable than the incident report, which is not sworn or presented to a judicial official and is often crafted with an eye towards prosecution of the defendant. The purpose of the warrant return is to properly identify property taken by the police to both protect the owner and to insulate the police against false claims, giving the police incentive to make an accurate inventory.

The district court did not err in denying defendant’s request for an adjustment based upon acceptance of responsibility. The court's findings that defendant intimidated a witness and was untruthful were not clearly erroneous.

Defendant did not qualify for a downward departure based upon his deafness. Deafness, without more, does not qualify as an "extraordinary physical impairment."

Judge Norris, dissenting, would hold that the district court's reliance on the incident report, which contained considerably more detail than the warrant return, was not clearly erroneous, particularly where there was no evidence of bad faith on the part of the officers.

Reversed district court ruling, remanded for further proceedings. Case below: unpublished opinion (# 96-00328, 7-18-97).

The district court's ruling that an administrative hearing conducted by the prison hospital on the issue of forced medication satisfied due process was a collateral order immediately appealable under 29 USC 1291; the disputed question was conclusively determined, the order was separate from the criminal action, and it would be unreviewable on appeal after final judgment in the criminal trial.

Due process requires a judicial hearing to determine whether a non-dangerous pretrial detainee can be forcibly medicated in order to render him competent to stand trial. Although the government's interest in bringing defendant to trial was substantial, defendant's interests in avoiding forced medication were significant, including his Fifth Amendment Liberty interest in being free from bodily intrusion and his First Amendment interest in preventing interference with his ability to communicate ideas. A judicial hearing is necessary for the court to consider whether the medication will have a prejudicial effect on defendant's physical appearance at trial or will interfere with his ability to aid in the preparation of his defense. The administrative regulations do not provide sufficient procedural safeguards.

The government's request to forcibly medicate a non-dangerous pre-trial detainee must be reviewed under the strict-scrutiny standard; the procedure must be narrowly tailored to a compelling state interest. Factors to be considered are: 1) whether the pretrial detainee is dangerous to himself or others, 2) the seriousness of the crime, and 3) whether the detainee will be released from confinement if not made to stand trial. Defendant's condition and the effects of the medication must be analyzed. The risk of harm is so substantial as to require the government to prove its case by clear and convincing evidence.

The district court must determine on remand whether a guardian ad litem should be appointed to represent defendant's interests.

Reinstated order releasing petitioner on bond pending prosecutor's appeal of trial court order granting new trial. Case below: unpublished opinion (#202344, 6-4-97).

Petitioner's motion for relief from judgment was granted, the trial court ordered a new trial and released him on bond; the Court of Appeals sua sponte cancelled the bond, ordering petitioner's incarceration pending the prosecutor's appeal, and later affirmed the trial court; the prosecutor applied for leave in the Supreme Court and that Court denied petitioner's application for leave to appeal the order cancelling bond.

A defendant who has been granted a new trial by the trial court should be considered a pre-trial detainee because, absent a stay of judgment issued by the appellate court, the judgment of the trial court is self-executing (unlike a Court of Appeals' judgment), and no valid order of conviction is any longer in effect. Moreover, petitioner was being treated by the Michigan Department of Corrections as a pre-trial detainee.

Petitioner had a protected liberty interest created by the trial court's decisions that his conviction was a miscarriage of justice supported by the flimsiest of evidence, that there was a substantial possibility of his actual innocence, and that he was entitled to release on bond pursuant to the factors set forth in MCL 770.9a(2); MSA 28.1106(1).

The Court of Appeals arbitrarily denied petitioner's fundamental interest in liberty and violated his right to due process of law by cancelling his bond without any explanation. The Court of Appeals' disregard for the procedure prescribed in MCR 7.209 for review of a trial court's bond ruling supported the finding of an arbitrary due process violation.

Desiree Ferguson, State Appellate Defender Office, for defendant-appellee.

Granting leave to the prosecution, the Court will consider whether defendant was denied the effective assistance of trial counsel by a failure to investigate, and whether permission to enter is an element of, or an affirmative defense to, the statutory offense of "entering without breaking," MCL 750.111; MSA 28.306. The Court of Appeals panel’s majority reversed defendant’s entering without breaking conviction, finding counsel was ineffective for failing to discover that the complainant did not have a legal interest in the property in question. Counsel conducted a title search on the wrong address, and at the time of the incident, a State Treasurer Deed was issued against the subject property for nonpayment of taxes. If defendant had permission to be in the building, he could not have committed the crime. The complainant testified that defendant did not have permission, but the information that the complainant was not a person who could give such consent could have aided the defense. The majority found a reasonable probability that the outcome of the proceedings would have been different if counsel had adequately prepared. Judge Markman, dissenting, felt that lack of consent to enter is not an element of the offense. Since defendant did not raise the affirmative defense that he had permission to enter the building, counsel’s error did not affect the outcome of the proceedings. Case below: unpublished opinion (#182196, 3-24-98).

Counsel for pro per defendant-appellant not yet appointed.

Granting leave to the defendant, the Court limited review to: (1) whether the trial court erred in failing to instruct the jury on the elements of aiding and abetting felony murder and, if so, whether any error was reversible in the absence of an objection to the instructions as given; and (2) whether there was sufficient evidence to convict the defendant of armed robbery or to establish that the defendant possessed the mens rea for felony murder. The Court of Appeals found sufficient circumstantial evidence to support conclusions both that defendant aided and abetted the robbery and stabbing, and that he was the principal: he was found shortly afterwards with another identified man, who had the victim’s watch, he turned his jacket inside out after he fled the scene, blood was found on the outside of his right jacket sleeve, and medical evidence showed the stabber was likely right-handed. Although the trial court arguably erred in felony murder instructions by omitting the requirement that the defendant performed acts or "gave encouragement" that assisted in the crime, the sum of evidence made any error harmless. Case below: unpublished opinion (#182792, 4-25-97).

Peter Jon Van Hoek, State Appellate Defender Office, for defendant-appellee.

Granting leave to the prosecution, the Court will consider whether defendant was denied a fair trial by the prosecutor’s improper use of his post-arrest silence. Despite the lack of objection, the Court of Appeals reversed defendant’s delivery of 25-50 grams of cocaine conviction, where the prosecutor received a negative response when he asked defendant whether he confronted or asserted his innocence to a witness who testified against him as part of a plea bargain. The prosecutor then argued that defendant was guilty because he did not tell the witness he had nothing to do with the offense. As defendant’s silence did not occur during a custodial interrogation and was not in reliance on Miranda warnings, it was not constitutionally protected. However, the evidence was inadmissible as an adoptive admission under MRE 801(d)(2)(B) because defendant did not manifest his adoption or belief in the truth of the accusation. The error was not harmless as the evidence was purely circumstantial and hinged on the credibility of defendant. Case below: unpublished opinion (#195696, 2-24-98).

Robert Mueckenheim for defendant-appellee.

Granting leave to the prosecution, the Court will consider whether the trial court erred in denying defendant’s motion for a directed verdict on one charge of CSC I. The appellate panel found the evidence insufficient on the element of penetration, where the victim testified that defendant kissed his "private" with his lips. As kissing a penis constitutes sexual contact but not sexual penetration, the case was remanded to give the prosecutor the opportunity to try defendant on a charge of CSC II. Case below: unpublished opinion (#178560, 6-27-97).

Reversed judgment of Court of Appeals; reinstated judgment of circuit court. Case below: 222 Mich App 62 (1997).

The garnishment subchapter of the federal consumer Credit Protection Act does not limit the amount the state can take under the State Correctional Facility Reimbursement Act. The Credit Protection Act limits the amount that can be garnished from a person's earnings so that "predatory extensions of credit" will not drive debtors into bankruptcy. A prisoner required to compensate the citizenry for the cost of incarceration is not the victim of a debtor-creditor relationship gone bad, and the federal statute does not limit the public's right to recover those costs.

Justice Kelly took no part in the decision.

Affirmed conviction of three counts of engaging in sexual penetration without informing partner of HIV status.

The HIV notice statute is not unconstitutionally overbroad. Defendant failed to establish how the statute improperly includes both protected and unprotected conduct. More importantly, defendant's conduct is clearly encompassed by the statutory language, and a person to whom a statute may constitutionally be applied is not allowed to challenge that statute on the ground that it conceivably may be applied unconstitutionally in other situations.

The HIV notice statute is not unconstitutionally infirm on the basis that it lacks an explicit mens rea requirement. The Legislature intended to require a general intent to commit the wrongful act of engaging in sexual penetration with another while withholding one's positive AIDS or HIV status. The statute does not require strict liability because there is no liability if the other person knowingly consents, and the statute requires that the culpable mental state have a causal relationship to the harm that it seeks to prevent, that is, the spread of AIDS and HIV-related diseases.

The HIV notice statute does not violate the constitutional right of privacy. Defendant's right to privacy is not absolute and it is outweighed by the compelling state interest in protecting citizens from an incurable, sexually transmitted disease. The statute is narrowly defined so as to further that compelling interest. Moreover, the statute is only slightly intrusive since it neither forbids HIV-infected individuals from engaging in sexual penetration nor requires general public disclosure of the person's HIV status.

The HIV notice statute does not violate the right against compelled speech. The right of non-expression is a "negative First Amendment right" which does not deserve the strict scrutiny applied in other First Amendment cases. The state's overwhelming interest in controlling the spread of an incurable disease outweighs the defendant's individual interests in remaining silent.

Reversed trial court's ruling, remanded for hearing.

The trial court erred in finding that evidence of prior sexual abuse of the victims by another man must be excluded under the rape-shield statute, MCL 750.520j; MSA 28.788(10). Defendant claimed the prior acts were relevant to show that the minor complainant's age-inappropriate sexual knowledge was not learned from him, and to show a motive to make false charges. Application of the rape-shield statute must be done on a case-by-case basis, balancing the rights of the victim and the defendant. An in camera hearing must be conducted to determine whether the proffered evidence of prior abuse is relevant, whether the prior act clearly occurred, and whether the prior act closely resembles the charged conduct.

Vacated circuit court order dismissing application for leave to appeal Parole Board's decision denying parole, remanded for further proceedings.

The Parole Board failed to provide substantial and compelling reasons in writing for denying parole when the guidelines score demonstrated a high probability of parole. The Parole Board's reasons were conclusory statements which were inadequate to support the deviation from the statutory guidelines recommendation. The written explanation must contain sufficient detail to facilitate review of the Board's decision for abuse of discretion, and must communicate to the prisoner the rationale for the decision, so the prisoner may take steps to increase his/her chances for parole.

This conflict panel held that the section of the Adoption Code, MCL 710.51(6); MSA 27.3178(555.51)(6), that permits termination of parental rights of a divorced, non-custodial parent if that parent has not supported or contacted the child for 2 years immediately preceding the petition does not provide an exception for parents who are incarcerated. An incarcerated parent may still retain the ability to comply with the support and contact requirements. The probate court considers the parent's ability to pay in fashioning the support order. This respondent had the ability to pay $10 per week and, although the mother refused to give him his son's telephone number, he could have written.

The probate court erred in excluding evidence regarding the best interests of the child, but the error did not affect respondent's substantial rights and reversal was therefore not required.

Reversed convictions of second-degree murder and felony firearm in the notorious "Jenny Jones trial."

The trial court erred in refusing to allow the defendant to exercise a peremptory challenge against a juror he had previously passed. Although defendant exercised only five of his twelve peremptory challenges, the error was preserved because the trial court refused to allow defendant to challenge the one juror he wished to excuse, and because defense counsel did not express his satisfaction with the jury. According to the clear language of the court rule, if the composition of the panel is changed after a party passes a panel, the party is free to exercise further peremptory challenges to any member of the new panel. It was impossible to apply the harmless error test because prejudice from errors surrounding the selection of juries is virtually impossible to demonstrate.

The prosecutor was warned not to resort to civic duty arguments that appeal to the fears and prejudices of jurors. The prosecutor speculated about "where would it stop" if defendant got away with killing a person because he didn't want to be associated with a homosexual, and wondered whether a defendant would be allowed to kill someone because of his particular race or religious persuasion.

The probative value of the black and white photographs of the victim's shotgun wounds was not outweighed by any danger of unfair prejudice, and they were not inadmissible merely because defendant did not contest the nature of the wounds.

The plaster mannequin used by the medical examiner aided the jury in understanding testimony regarding the autopsy results and, ultimately, defendant's intent, and the probative value was not outweighed by any prejudice.

The trial court did not abuse its discretion in admitting the tape of the 911 call because, although cumulative, it was not unduly emotional.

Issues concerning denial of a motion to disqualify Judge O’Brien and the proportionality of the sentence were moot, but the court noted that defendant's challenge to the scoring of OV 3 is not a cognizable appellate issue.

Affirmed convictions of first-degree murder and two counts of assault with intent to murder.

The trial court did not abuse its discretion in admitting the testimony of two psychiatrists who examined defendant at the hospital the day after he stabbed his wife, two of his children and then himself. Defendant filed a notice of insanity and a stipulation and order was entered providing that all medical records would be released to the prosecutor. The prosecutor presented in rebuttal the two psychiatrists in question, who had not examined defendant for criminal responsibility but only to determine whether he was suicidal. Defendant waived his psychologist-patient privilege when he claimed insanity and authorized the release of all medical records regarding his mental health, and he could no longer claim an intent to preserve the sanctity of the privilege.

The trial court did not err by failing to give an instruction on voluntary manslaughter. The judge found that no reasonable jury could find that the provocation was adequate to cause a reasonable person to act out of passion, which is the correct standard. The fact that defendant may have had some mental disturbance is not relevant to the question of provocation. Furthermore, the failure to instruct on manslaughter was harmless because the jury rejected other lesser included offenses. In a footnote, the panel expressly disavowed that part of CJI2d 16.9(2) which permits the jury to consider the defendant's mental or emotional impairment.

Denied motion to withdraw without prejudice to file motion in circuit court, remanded to trial court.

The Court of Appeals lacked jurisdiction over the motion to withdraw by appointed counsel, based on an Anders claim of lack of merit, where defendant's appeal was by application for leave to appeal. Plenary jurisdiction attaches only after leave is granted.

Anders v California, 386 US 738 (1967) applies only to appeals by right. If Anders were to apply to an application for leave, the defendant would be in a worse position than if counsel filed a frivolous brief.

MCR 7.211(C)(5), which permits a motion to withdraw when counsel determines that the appeal is wholly frivolous, does not apply where leave to appeal has not been granted. Where counsel has been appointed to assist a defendant convicted by plea, a motion to withdraw is properly addressed to the trial court, which has discretion to rescind the order of appointment. The motion to withdraw process will be regarded as tolling the twelve-month period in which to seek leave to appeal.

Affirmed convictions of first-degree premeditated murder and armed robbery.

Defendant's warrantless arrest in his father's home was illegal because the police did not have probable cause. Defendant was arrested for questioning, a long-condemned illegal police practice. However, intervening circumstances, including the discovery of new evidence which established probable cause, broke the causal chain between the unlawful arrest and defendant's confession. The admission of a previous, exculpatory statement was harmless beyond a reasonable doubt.

No miscarriage of justice resulted from either the introduction of a reference by defendant in his first statement to a visit with his probation officer, nor a police officer's brief reference to a blood-stained paper containing conditions of parole, to which the prosecutor made no further reference and to which defendant failed to object. Although photographs depicting a nude black female were irrelevant, the photos were not shown to the jury and the officer's reference to them did not deny defendant a fair trial.

The conduct of the prosecutor in asking a witness whether he was afraid to come to court in order to elicit testimony that might explain his inability to identify defendant, was not improper. Defendant failed to properly present for appellate review a claim that the prosecutor asked questions calling for hearsay answers. The prosecutor's comments during closing argument, read in context, were proper arguments drawing reasonable inferences arising from the testimony.

There was sufficient circumstantial evidence of premeditation to support the conviction of first-degree murder. In between each method of assault (stabbing, blunt force injury, manual strangulation) the killer had the opportunity to reflect upon his actions.

Defendant was not denied his right of confrontation by the trial court’s ruling which precluded defense counsel from asking a prosecution witness if he was under the influence of crack. Defendant was not precluded from further questioning concerning the witness's ability to perceive, the witness's testimony was cumulative, and the prosecutor's case was strong; if there was error, it was harmless beyond a reasonable doubt.

The trial court's preliminary instructions did not deprive defendant of a fair trial by failing to inform the jury that it could find reasonable doubt based on the lack of evidence or the unsatisfactory nature of the evidence. A review of the record reveals no error.

Affirmed convictions for felony murder, conspiracy to commit armed robbery, and kidnapping, vacated convictions for armed robbery, ordered trial court to correct statutory citation for conspiracy convictions.

No manifest injustice resulted from the trial court giving instructions on presumption of innocence, burden of proof, and reasonable doubt before, instead of after, the presentation of evidence. Instructions are to be considered as a whole, both attorneys referred to reasonable doubt, and the trial court mentioned the standard of proof fifteen times while describing the elements of the offenses. In the absence of objection, failure to repeat other instructions at the end of the proceedings did not create manifest injustice, either.

Because there was neither an objection nor any discernible prejudice to defendant in failing to instruct on circumstantial evidence or defendant's decision not to testify, no manifest injustice resulted.

The trial court did not abuse its discretion in admitting evidence that defendants were involved in a prior home invasion and a prior armed robbery. There was a logical relationship between this evidence and the ultimate facts sought to be proved: for example, the gratuitous firing of a gun during the home invasion was probative of the intent element, that defendants acted with reckless indifference to the natural tendency of their actions. The possibility for prejudice was minimal as no one was hurt during the prior crimes. Furthermore, contrary to defendant's assertion, evidence of prior bad acts under MRE 404(b)(1) is not restricted to rebuttal of arguments placed in issue by the defense.

The trial court sufficiently advised the jury on the proper evaluation of the evidence of prior bad acts even though the instruction given was not identical to CJI2d 4.11.

There was sufficient evidence that defendant acted with the wanton and willful disregard for the likelihood of the natural tendency of his behavior to cause death or great bodily harm in aiding and abetting the robbery-murder: there was evidence that defendant knew his co-defendant intended to threaten the victim's life with a loaded handgun.

The trial court's ruling admitting the surreptitious tape-recording of defendants while alone in a patrol car was not clearly erroneous. There can be no expectation of privacy in the back seat of a police car. Nor did admission of the evidence violate the right against self-incrimination or the right to counsel. Although defendants were in custody, they were not interrogated; merely providing an opportunity to talk is not the same as eliciting incriminating information. The right to counsel had not attached as defendants had not yet been arraigned.

The trial court did not abuse its discretion in denying the motion for change of venue. Defendant offered no evidence beyond mere assertion that publicity had saturated the community and prejudiced the defense, and counsel did not use two available peremptory challenges.

To the extent that the prosecutor's remarks may have appealed to sympathy for the victim and to civic concerns for peace in the community, any improprieties could have been cured had there been an objection or request for a curative instruction. The remarks were not so inflammatory as to deny defendant a fair trial.

Counsel's failure to object to the instructions did not constitute ineffective assistance of counsel where the instructions were adequate, and the decision to forego the instruction on defendant's failure to testify may have been for strategic reasons. Moreover, there was overwhelming evidence of guilt and no likelihood of a different result.

The trial court did not err in admitting defendant's incriminating statement as there was no indication that the police withheld treatment for physical suffering, or that any deception or coercion prompted defendant to confess. Defendant presented no authority for the argument that a confession offered pursuant to bad legal advice must for that reason be considered involuntary.

The prosecutor presented sufficient evidence of kidnapping because movement of a victim incidental to and underlying a crime which involves murder is sufficient asportation to support a kidnapping conviction.

Where defendant was convicted of both felony murder and the predicate felony, armed robbery, the conviction for armed robbery must be vacated. The judgments of sentence gave an incorrect statutory citation for conspiracy to commit armed robbery and must be corrected.

Reversed circuit court order quashing information charging failure to stop at the scene of a serious personal injury accident.

The district court's decision to bind over was not "wholly unjustified." Competent evidence that both supports and negates an inference that the defendant committed the crime raises a factual question that must be left to the jury. There was substantial circumstantial evidence from which it was possible to identify defendant as the driver of the vehicle which struck and killed a pedestrian.

The district court did not abuse its discretion in relying on evidence from an unreliable witness. The credibility of a witness is a question for the factfinder to resolve at trial, and was irrelevant for purposes of this appeal.

Affirmed Lawrence Gadomski's conviction of one count of first-degree criminal sexual conduct as an habitual offender, fourth offense; affirmed Anthony Gadomski's convictions of two counts of first-degree criminal sexual conduct and one count of felonious assault as an habitual offender, second offense.

The trial court did not abuse its discretion in denying Lawrence Gadomski's motion for new trial on the ground that the verdict was against the great weight of the evidence. The Court of Appeals may not attempt to resolve credibility questions anew.

Defendant was not denied his right to a unanimous verdict by the trial court's instructions on the elements of CSC I, which did not require the jury to unanimously agree on the existence of at least one of three aggravating circumstances alleged by the prosecution. The aggravating circumstances are not separate and distinct CSC offenses, and it is not error to instruct the jury in the alternative.

Failure to request a separate unanimity instruction, to which defendant was not entitled, did not constitute ineffective assistance of counsel.

The trial court did not abuse its discretion in allowing the prosecution's late endorsement of a res gestae witness, the third individual who, according to the victim's preliminary examination testimony, accompanied the defendants to her home. The victim was unable to identify this person. After defense counsel predicted in opening statement that the evidence would show there was no third person, the police renewed their efforts and produced him. There is no requirement that the prosecution exercise due diligence to discover the names of witnesses. Thus, the prosecutor had no duty to list this witness before trial, and, with no request from the defense, no duty to pursue the matter. There was "good cause" for the late addition of the witness by the fact of his late discovery.

Reversed trial court order dismissing charges of first-degree murder, conspiracy to commit first-degree murder, and solicitation of first-degree murder.

The trial court abused its discretion in dismissing the charges based on pre-arrest delay. Defendants failed to demonstrate the requisite actual and substantial prejudice necessary to shift the burden to the prosecutor to show the reasonableness of the delay. It was mere speculation that unavailable witnesses would have provided relevant information beneficial to defendants. In fact, it was the prosecutor who may have been detrimentally affected as all the unavailable individuals were prosecution witnesses.

The delay was due to ongoing investigation and not undertaken solely to gain tactical advantage over the accused. Although one of the reasons for the delay was an anticipated change in the law making one defendant's statement admissible against the other, there were other investigative concerns, such as the key witness's failure to take a polygraph, an intervening grand jury investigation, and the "quality" of the evi