There are two exceptions to the twelve-month rule.

The first exception involves appeal following the denial of a timely-filed post-conviction motion. This exception is found in MCR 7.205(F)(4). This is considered the 21-day exception. You must file in the trial court, within the 12-month period, a motion for plea withdrawal, a motion for resentencing, or some other substantive post-conviction motion. When filing your trial court motion, the correct citation for jurisdiction would be MCR 6.311(A) (motion for plea withdrawal), MCR 6.429(B)(3) (motion for resentencing), or MCR 7.205(F)(4) (for some other substantive post-conviction issue).

Once the motion is decided, and going from the date of that order, you now have 21 days to file the application for leave to appeal in the Court of Appeals. [Note, if the motion was filed and decided well within the 12-month period, the appeal is technically timely well until the 12-month period expires. MCR 7.205(3). However, as a matter of practice, I always file within 21 days of the trial court order.] The court rule specifically provides that the general 12-month limitation does not apply "to an application for leave to appeal by a criminal defendant if the defendant files an application for leave to appeal within 21 days after the trial court decides a motion for a new trial, for judgment of acquittal, to withdraw a plea, or for resentencing, if the motion was filed within the 12-month period . . . ." MCR 7.205(F)(4). Please note that the 21-day rule is final, and you do not receive additional time for the filing of the transcript. Rather, counsel should order the motion transcript when the motion is denied, and then file the application in the Court of Appeals within 21 days of the trial court order. In the application, you should use blank transcript cites when referring to how the judge ruled [i.e. the trial judge held . . . (Motion Transcript __).] You would also indicate in the application that you have requested preparation of the motion transcript and you will forward the transcript when it is received. When you receive the transcript, you send five copies to the Court of Appeals, with proof of service, and ask the Court to consider this transcript with your previously-filed application for leave to appeal (or delayed application for leave to appeal).

The second exception to the 12-month rule is the 42-day rule. This rule applies when the client requests appointment of appellate counsel within 12 months of sentencing, and counsel is appointed close to or after the 12-month date. Assuming it is not possible to file the application for leave to appeal within the 12-month period, you are nevertheless given 42 days in which to file the application. The 42 days runs from the date the transcripts are filed, or the date you are appointed, whichever is later. MCR 7.205(F)(4)(a)-(c).

The 42-day rule applies either when you are appointed as appellate counsel very late in the ballgame, or if you are appointed as substitute appellate counsel late in the game and no appeal has been filed. If you are appointed as substitute appellate counsel and an appeal has been filed, you can still move to supplement the previously-filed application (if it is still pending), or you could move to withdraw the previously-filed application, and file your own application. However, the withdrawal process works only if there is still time to file an application. In this particular area, it is best to call the Court of Appeals for guidance.

The 42-day rule, on its face, would appear to offer no option of an initial trial court motion. This could be problematic if you want to proceed first in the trial court in order to preserve an issue. Nearly all plea withdrawal and most sentencing issues require initial decision by the trial judge (see MCR 6.311(c); MCL 769.34(10)).

In a 42-day case in which you wish to file a post-conviction motion in the trial court, there are nevertheless two options. First, in the situation where there may be a couple days left within the 12-month period, by all means, if possible, file in the trial court before the 12-months expire. Make sure the motion is actually received and filed in the trial court within the 12-month period. Be sure to get a date-stamped copy from busy clerk’s offices, like Detroit, where the clerk may not formally "file" the motion until days after it is received. If you are able to file within the 12-month period, you then fall under the 21-day rule and do not need to use the 42-day rule.

In most 42-day cases, you will be outside the 12-month period when you are appointed. This means that you cannot use the 21-day rule. The 21-day rule specifically requires a trial court motion "filed within the 12-month period." However, creative counsel can work around this problem. It may take some immediate action on your part, but a trial court motion can be filed. You will need to file your post-conviction motion in the trial court within the 42-day period. This will work under the court rules since the court rules only require that you file the post-conviction motion within the time for filing for leave to appeal. MCR 6.311 (A); MCR 6.429(B)(3).

If you can get the trial judge to make a decision within the 42-day period, then simply take that order and include it as an appendix when you file your application for leave to appeal within the 42-day period. I am referring to the original 42-day period; 42 days from the order of appointment or 42 days from the filing of the plea and sentence transcripts. You are not given 42 days from the filing of the post-conviction motion transcript.

If you cannot get a decision from the trial court within the 42-day period, it is nevertheless permissible to have a pending trial court motion when you file your application for leave to appeal. Jurisdiction does not transfer to the Court of Appeals until the Court grants leave to appeal. So simply file your application for leave to appeal and note that you have a pending trial court motion. When the trial court motion is decided, file a motion in the Court of Appeals to supplement the previously-filed application. Of course, you must do this within four to six weeks of the original filing date since you risk having the application decided (denied) within four to six weeks. In other words, make sure the trial court decides the motion as soon as possible (no later than four weeks from the date it was filed) and make sure you promptly move the Court of Appeals to supplement the previously-filed application.

Sheila Robertson Deming has handled two interesting cases arising under the 42-day rule. In one, SADO was appointed as substitute appellate counsel near the end of the 12-month period. She filed a motion to withdraw the plea, and she also filed the application for leave to appeal, both within the 42-day period. The trial judge granted plea withdrawal before the application was decided. The application was ultimately denied (although moot at this point). Note, if you have a favorable trial court decision, you can simply move to withdraw your previously-filed application for leave to appeal.

In another case, Sheila had a situation where the prosecutor filed an application for leave to appeal and SADO was appointed to file an answer. She filed a timely answer, and she also immediately filed a motion for resentencing in the trial court. The trial judge granted resentencing on a Friday. The Court of Appeals granted leave to the prosecutor on the following Monday. She moved to dismiss the appeal for lack of jurisdiction, arguing that the judgment of sentence had been vacated (meaning there was no longer a final order/judgment to appeal from). The motion was granted.

I handled a case, as well, where we were able to file the trial court motion within the 42-day period, and the trial judge decided the motion within the 42-day period. We filed the application for leave to appeal within the 42-day period and simply referenced what had happened below. Although I do not recall the result (we probably lost), I do know that we successfully preserved the issue in the trial court and we were able to file our application for leave to appeal in the Court of Appeals.

We also now have a case at SADO where the 12 months expire in October, but the court reporter has not filed the transcripts. If the court reporter does not file until October or later, it is unclear whether the Court of Appeals would allow us to file any time beyond the 12-month period. The best solution may be to immediately file a motion to show cause. Then, and if the court reporter still fails to file the transcripts until after the 12-month period, the Court of Appeals would hopefully give us 42 days from the date the transcripts are filed.

As for probation violation appeals, it is currently undecided whether a guilty or no contest plea to a probation violation, where the probation violation plea was entered on or after 12-27-94, but the underlying offense occurred before 12-27-94, results in an appeal by right or an appeal by leave. I have argued that the date of the underlying offense controls, since a probation violation is not a separate conviction, but rather a resentencing. The Court of Appeals has disagreed and dismissed several cases where the probation violation plea was entered after 12-27-94. The Supreme Court has denied leave to appeal in one case, but the same issue is currently pending in another case (People v Kaczmarek, SC#114580). The only formal Court of Appeals’ opinion on this issue, which is unpublished, does not resolve the debate since all of the criminal acts, including the acts violating probation, occurred before December of 1994. People v Anthony Noble, #196735, unpublished decision of 3-2-99.

In probation violation plea appeals, I would therefore continue to argue that the defendant has an appeal by right where the underlying offense occurred before 12-27-94, but the probation violation plea occurred after this date. To preserve this issue, I would first ask the trial court to file a claim of appeal (this request can be made by motion, stipulation, or perhaps letter or conference call). Or, if the trial court has already filed the claim, and the Court of Appeals dismisses the claim by order, I would raise the issue in a motion for rehearing. If the trial court will not file the claim, you can either appeal to the Court of Appeals from the order denying your motion to file a claim of appeal, or argue the issue in your application for leave to appeal.

New and Interesting in the Online Brief Bank

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

The defendant is hearing impaired and the denial of his right to an interpreter at his arraignment effectively denied him his due process right to an arraignment, making reversal of his convictions necessary. BB 8849

Where the affidavit in support of the search warrant did not contain probable cause that evidence was located in the place to be searched, and failed to describe with particularity the place to be searched and evidence to be seized, the search was unlawful as a matter of both state and federal law and constitutional principle, and the evidence seized must be suppressed. BB 8851.

The defendant was denied his due process right to a fair trial where the trial court admitted, over objection, other acts evidence of alleged narcotics paraphernalia seized from the defendant’s mother’s house for which, contrary to MRE 404(B), there was no notice given, there was a lack of foundational nexus, no logical relevance, and it was more prejudicial than probative. BB 8851.

The defendant is entitled to on-the-record compliance with the procedures required by the Supreme Court where the court determined not to follow the Cobbs evaluation but did not advise her of the exact sentence the court was instead going to impose or offer her the specific opportunity to withdraw her plea. BB 8853.

The defendant’s convictions must be vacated or reduced where there was evidence that he suffered from pre-existing brain damage and there was overwhelming evidence that as a result of drinking large amounts of alcohol and ingesting several hits of LSD, he was incapable of forming the specific intent to murder. BB 8856.

The trial court reversibly erred in granting the prosecution’s pre-trial motion in limine, barring the defense from presenting any evidence of the defendant’s prior history of alcoholism and suicide attempts, as that testimony was relevant to the question of whether the defendant was in fact provoked to kill the decedent. BB 8844.

The trial court was without statutory or other authority to impose no-contact restrictions with the complainant and other minors as terms of prison incarceration and parole, because the sentencing court does not retain jurisdiction over a defendant once he is lawfully sentenced to prison and the authority to set the terms and conditions of parole is reserved, with exceptions not applicable, to the parole board. BB 8858.

The trial court violated the appellant’s due process rights by refusing to suppress involuntary statements made to fire investigators from appellant’s hospital bed where appellant was mentally ill and being treated for a gunshot wound, burns, and smoke inhalation. BB 8778.

The trial court violated appellant’s due process right against compulsory self-incrimination by refusing to suppress appellant’s statements to the police which were induced by a promise that appellant would get mental health counseling. BB 8782.

The court violated defendant’s due process rights by unfairly restricting voir dire of a juror whose wife was molested as a child, where defendant was being tried for similar charges. BB 8784.

SADO Receives Major Justice Department Grant for Defense Community

The Criminal Defense Resources Center (formerly Legal Resources Project) is pleased to announce that it has received a $150,000 grant from the U.S. Justice Department’s Bureau of Justice Assistance. One of just 22 grants nationwide, the CDRC project will directly support criminal defense attorneys practicing in Wayne Circuit Court, and will serve as a model for such support in other locations in Michigan.

The following press release was issued by the Justice Department on September 7, 2000:

The Criminal Defense Resource Center* of Michigan’s State Appellate Defender Office provides the tools you must have to practice competently in a difficult environment. Whether you are a trial or appellate attorney, appointed or retained, the CDRC offers a wealth of services, available 24/7 throughout Michigan and beyond.

* previously the Legal Resources Project

Services offered by the Criminal Defense Resource Center

On the Web at www.sado.org . . .

Reports and Studies

The American Bar Association’s House of Delegates unanimously approved a resolution from the ABA’s Criminal Justice Section calling for preservation of "all biological evidence" in criminal cases, during the ABA’s Annual Meeting in July. The resolution contained four principles:

The ABA intends to remain involved in legislative on biological evidence nationwide, including the recently introduced Innocence Protection Act of 2000 (S. 2073), pending in Congress. According to one ABA delegate, Neal R. Sonnett, more than 65 criminal convictions have been reversed due to evaluation of DNA evidence. Information on the Innocence Project operated at Cardozo Law School is available at www.cardozo.yu.edu/innocenceproject/index.html. More detailed standards for preservation of evidence also are under consideration in the ABA’s Criminal Justice Section, to become part of the ABA Standards for Criminal Justice.

Employment Opportunities

As a new feature in the Criminal Defense Newsletter, we offer information about employment in the criminal defense practice area. New postings should be submitted to Maria Sanchez at maria@sado.org, or call (313) 256-9833.

Prison Legal Services has a staff attorney position available to work on the trial of state prisoners’ rights class actions in the Michigan Court of Claims. Trial experience is helpful, but not essential; must be able to work independently and with a team. Applicants should have good research, writing and communi-cation skills, maturity and a sense of humor. Ability to speak Spanish is an asset. PLSM has an excellent computer system, in-house library and fringe benefits, and its office is located in a separate building inside the SPSM prison in Jackson, Michigan. Salary depends on experience. Resumes should be faxed to PLSM at (517) 780-5887; more information is available by calling (517) 780-6639.

Criminal Defense Online

The newly-named Criminal Defense Resource Center (formerly the Legal Resources Project) has announced a new method for providing its online services to Michigan’s criminal defense community. Beginning on October 1, 2000, the start of the subscription year, the CDRC will offer more publications via the Web: subscribers to the "Whole Web Toolbox" may download searchable versions of the Defender Trial, Motions and Sentencing Books, and may receive e-mailed copies of the Criminal Defense Newsletter and appellate decision summaries. For more information about these, and other, services, see pages 6-7 of this month’s newsletter.

The Michigan Court of Appeals has dramatically expanded the content available on its web site, www.courtofappeals.state.mi.us. The site now contains information about judges, internal operating procedures, the appellate settlement process, and a pro per manual for persons representing themselves on appeal. Also listed are cases ripe for submission to judges each month, the text of the Court’s annual reports, press releases and employment opportunities. Promised for future access is the collection of published and unpublished opinions, and the Court’s digest of opinions.

From Other States

A defendant convicted of a non-capital offense has the right to have his sentencing jury informed that he is ineligible for parole, according to the Virginia Supreme Court. The Virginia State Legislature enacted a statute abolishing parole for felonies committed after 1-1-95. The jury is entitled to this information so that it will not speculate or act upon the misconception that their sentencing decisions will be subjected to extensive reductions by executive action. The Virginia Court also held that the jury should be informed of defendant's ineligibility for geriatric release, but the state is not entitled to an instruction that the defendant may be released early by operation of good-time credits or executive clemency. The former is a certainty, while the latter is speculative and depends on future events. Fishback v Commonwealth , 67 CrL 425 (#991615, 6-9-00); http://pub.bna.com/cl/991615.htm.

The Fifth Circuit overruled the trial court's ruling that defendant's statements, as translated by a government-provided interpreter, were voluntary, and found that the lower court erred by determining the admissibility of defendant's statements without hearing the testimony of the translator and allowing defendant cross-examination. Applying the factors set forth by the Ninth Circuit in United States v Nazemian, 948 F2d 522 (CA 9, 1991), the Fifth Circuit concluded that the translation of defendant's purported confession was not reliable where the government supplied the interpreter, the district court was unable to determine the translator's qualifications since he was absent from the hearing, and defendant refused to sign the con-fession. United States v Martinez-Gayton, 213 F3d 890 (CA5, 2000); http://pub.bna.com/cl/9950599.htm.

Recognizing that a pretextual traffic stop can be valid if supported by probable cause as to the traffic violation, the Maryland Court of Special Appeals held that the Fourth Amendment was violated when a Maryland state trooper failed to diligently pursue his investigation of a traffic violation. The court rejected a bright-line time limit for such stops, stating that the reasonableness of each detention must be assessed on a case-by case basis. Because the officer illegally extended the duration of the stop for "following too closely," the protracted detention was unconstitutional, the defendant's consent to the pat down search, which led to the discovery of marijuana, was tainted, and the cocaine found in the subsequent search of his car was the fruit of the initial, unlawful search. Charity v State, 67 CrL 456 (#1949-1999, 6-8-00); http://pub.bna.com/cl/1949.htm.

Although the Texas statute governing juvenile disposition hearings does not expressly so state, the Texas Court of Appeals held that a juvenile's Fifth Amendment privilege against self-incrimination continues at his dispositional hearing. The Court noted that the juvenile's privilege has assumed increased significance as a result of the trend toward punishment, rather than rehabilitation. The juvenile in this case was entitled to a new disposition hearing because of the probation officer's failure to warn him of his rights and obtain a waiver. In Re J.S.S., 67 CrL 431 (#08-99-00121-CV, 6-8-00); http://pub.bna.com/cl/0899.htm.

The Virginia Supreme Court found that a defendant was illegally seized in violation of the Fourth Amendment when the officer who made the traffic stop asked the defendant three times for permission to search his vehicle without reasonable suspicion of criminal activity on the part of the defendant. The court rejected the state's argument that the defendant consented to the search by exiting the vehicle, finding that the defendant's belief that he was not free to leave was reasonable considering the facts that the stop occurred at night, the officers positioned themselves on either side of the vehicle, and the officer repeated the request to search twice. Rettinger v Commonwealth, 67 CrL 457 (#991417, 6-9-00); http://pub.bna.com/cl/991417.htm.

The Eighth Circuit found coercive tactics by a paid informant amounted to entrapment as a matter of law. In response to an offer by a state drug agent to pay the informant every time he set up a drug buy, the informant supplied defendant with heroin and then asked him to give some back for a customer who was suffering from withdrawal. When defendant refused, twice, the informant threatened to cut off defendant's supply of heroin. The informer contacted the drug agent who participated in the buy-back. The Court found the government responsible for the informer's actions, and found an improper level of governmental involvement and inducement. United States v Brooks, 215 F3d 842 (CA 8, 2000); http://pub.bna.com/cl/993446.htm.

State and federal due process require that a con-victed sex offender receive notice and an opportunity to be heard before the determination of his "risk level" under the Sex Offender Registration Act (SORA), according to a recent ruling of the New York Court of Appeals. The guidelines for implementing the SORA were found inadequate where the probation depart-ment determined the risk level, the internal review procedures provided no way for the probationer to voice his objections, and the defendant bore the burden of proof. Due process requires that the state bear the burden of proving that the defendant deserved the assigned classification. People v David W., 95 NY2d 130 (2000); http://pub.bna.com/cl/77.htm.

Where the police know a defendant is represented by an attorney, the defendant need not further invoke his Sixth Amendment right to counsel in the face of interrogation, and any waiver obtained in counsel’s absence is invalid, according to the Wisconsin Supreme Court. Detectives sought to interrogate the defendant when they arrested him in Florida, knowing that his attorney had sent a letter stating that the defendant should not be questioned. The Wisconsin court found that an accused person who has an attorney for the crime charged is not required to affirmatively invoke his right to counsel. Because the defendant had counsel, the police were absolutely barred from approaching him to obtain a waiver. Dissenting justices argued that the defendant was required to affirmatively invoke his Sixth Amendment right. State v Dagnall (Wis. # 98-2746-CR, 7-6-00); full text at http://pub.bna.com/cl/982746cr.htm.

The Seventh Circuit Court of Appeals found that the state court’s rejection of defendant’s claim of ineffective assistance of counsel was unreasonable under the Antiterrorism and Effective Death Penalty Act (AEDPA), as interpreted by the U.S. Supreme Court. The federal habeas court must determine that the state-court decision was both incorrect and unreasonable. The Seventh Circuit found unreasonable the state court’s application of Strickland v Washington, 466 US 668 (1984), to trial counsel’s failure to contact alibi witnesses, or to subpoena a witness who did not appear for trial. The federal court agreed with the state court’s finding that counsel’s failure to read a police report which named a potential defense witness fell below the Strickland standard, but found its application of the prejudice factor unreasonable. Witnesses who did not testify at trial would have supported the alibi defense, and the witness revealed in the police report would have given exculpatory testimony, even though another witness could have given contradictory testimony. The failure of the state court to consider the effect of all of the missing witnesses in the aggregate was an unreasonable application of Strickland. Washington v Smith, 219 F3d 620 (CA 7, 2000); full text at http://pub.bna.com/cl/99283.htm.

The prosecutor’s attempt to edit the defendant’s statement to comply with Bruton v United States, 391 US 123 (1968), caused more problems than it fixed. The Alabama Supreme Court reversed the defendant’s conviction, finding undue prejudice in the introduction of his confession, which was edited to eliminate any references to the jointly-tried codefendant and therefore portrayed defendant as the central figure in the crime. The edited confession was "irreconciliably inconsistent" with the defendant’s theory of defense. Other evidence did not overcome the distorted statement’s contradiction of defendant’s claim of lack of intent. The redaction also violated the rule of completeness as it distorted the statement’s meaning, and the alteration effectively compelled defendant’s testimony as to matters to which he did not agree when he gave his statement, violating his Fifth Amendment privilege against compelled self-incrimination. The defendant’s rights were sacrificed in order to serve the state’s interest in having a joint trial, concluded the majority. The dissenters would find any error harmless. Ex parte Sneed (Ala. #1981660, 6-30-00); full text at http://pub.bna.com/cl/1981660.htm.

Police officers acting without a warrant who peeked through the defendant’s uncovered window from the side yard of his home violated the Fourth Amendment, according to the California Supreme Court. The majority held that the defendant had a reasonable expectation of privacy, that people would not intrude onto his private property at 11:00 p.m. and look into his windows. The officers were not on a public thoroughfare and were not legally entitled to be in defendant’s side yard. A warrantless search cannot be justified by police observations made from a position to which the officer has not been expressly or implicitly invited. The Court further held that the officer’s motives, investigating a noise complaint, were not significant when evaluating defendant’s expectation of privacy. The dissenters disagreed, and would find that the officer’s brief entry onto the side yard to identify the location of the noise was reasonable. People v Camacho (Cal. # S075720, 7-27-00); full text at http://pub.bna.com/cl/s075720.htm.

A federal court order for a wiretap is invalid if it is issued before authorization by the attorney general, according to the Ninth Circuit Court of Appeals. The procedural requisite that authorization from a high-level justice department official must be obtained before a judge approves a wiretap application is not a matter of mere etiquette, but implements the congressional intent to limit the use of such procedures to those situations clearly calling for the employment of "this extraordinary investigative device." United States v Reyna 218 F3d 1108 (CA 9, 2000); full text at http://pub.bna.com/cl/9910333.htm.

The South Carolina Supreme Court held that when the trial court allows child sex-abuse complainants to testify via closed-circuit television, it must make specific findings that the complainant would be traumatized by testifying face-to face with the defendant. The trial court failed to specifically find that the complainant feared the defendant, and the court’s language was too ambiguous to satisfy the requirement of case-specific findings. The majority found it necessary to reverse the conviction and grant a new trial, while a dissenting justice criticized the majority’s decision as being based on a "mere technicality." State v Bray (S.C. #25176, 7-31-00); full text at http://pub.bna.com/cl/25176.htm.

The Sixth Circuit Court of Appeals found an important difference between the robbery of a business engaged in interstate commerce and the robbery of a private individual. In the latter situation, the connection to interstate commerce is much more attenuated. When the government seeks to use the Hobbs Act, it must show a substantial connection to a business engaged in interstate commerce, not one that is speculative. The government’s failure to make such a showing caused the Sixth Circuit to reverse the defendant’s conviction. The concurring judge would focus on the nature of the victim’s activity, not the character of the crime, but agreed that the government failed in its burden of proof. United States v Wang, ___F3d___, No. 98-6490 (CA 6, 8-3-00); full text at http://pub.bna.com/cl/986490.htm.

The Minnesota Supreme Court found that the state’s failure to disclose that a psychologist had determined that the state’s chief witness was incompetent to stand trial in his own prosecution violated Brady v Maryland, 373 US 83 (1963). The finding of incompetency made the witness’s testimony "highly suspect," and the psychologist’s report was clearly impeaching testimony. The fact that the witness was found competent soon after defendant’s trial did not make the failure to disclose the initial report harmless. Even if the witness had been found competent at the time of defendant’s trial, the undisclosed report would have given counsel grounds for cross-examination regarding his mental stability and, possibly, his ability to mislead. The state’s case rested almost entirely on the witness’s testimony, and the Minnesota Court found reversal warranted. State v Hunt, Minn., No. C5-99-72 (8-3-00); full text at http://pub.bna.com/cl/c59972.htm.

The warrantless search of the defendant’s home was not justified by the defendant’s prior agreement to submit to searches "at any time, with or without a warrant," as a condition of probation, where the search was not for probation purposes but as part of a separate criminal investigation, held the Ninth Circuit Court of Appeals. A probationer’s consent to search condition is limited to searches that advance the rehabilitative goals of probation, and must stop short of investigation searches. The detective in this case was "not a bit interested" in defendant’s rehabilitation, and was using the probation term as a subterfuge to enable him to search without a warrant. The Ninth Circuit distinguished the decision in Whren v United States, 517 US 806 (1996), because in this case there was no basis for the warrantless search, aside from the invalid consent. United States v Knights, 219 F3d 1138 (CA 9, 2000); full text at http://pub.bna.com/cl/9910538.htm.

The First Circuit Court of Appeals held that the Sixth Amendment does not allow the prosecution to use a defendant’s uncounseled statements about other crimes that indirectly incriminate him. The defendant was interviewed while incarcerated on a gun charge, for which he had counsel, concerning reports that he intended to kidnap and murder government witnesses in that case. Defendant made statements incriminating him not only as to future crimes but also as to the pending charges. The statements violated the Sixth Amendment, even though the defendant was not questioned and made no direct statements about the pending charge, because they were deliberately elicited post-indictment and were obtained in the absence of counsel. United States v Bender, 221 F3d 265 (CA 1, 2000); full text at http://pub.bna.com/cl/992190.htm.

The media requested the police to take the plaintiff on a "perp walk" so that he could be filmed for a news story. A detective drove the plaintiff around the block, then walked him back into the precinct, handcuffed, in front of the TV cameras. The Second Circuit found that the staged "perp walk" violated the Fourth Amendment, which ensures reasonableness in the manner and scope of searches and seizures. Broadcasting images of plaintiff in a humiliating situation infringed on his Fourth Amendment privacy rights. The Second Circuit further found that the legitimate interest in accurate reporting of police activity is not well served by a fictional dramatization of an event which happened hours earlier. However, the Court decided that the right violated by the detective was not "clearly established" and he therefore retained qualified immunity. Lauro v Charles, 219 F3d 202 (CA2, 2000); full text at http://pub.bna.com/cl/997239.htm.

The Washington Court of Appeals refused to adopt a "surveillance location privilege" to excuse the state’s duty to disclose the vantage point from which a police officer observed the defendant exchanging cocaine for cash. Federal cases recognizing the privilege were distinguishable, and the state provided no specific evidence in support of nondisclosure. Recognition of such a privilege would be inconsistent with confrontation rights guaranteed by the Sixth Amendment. Because the officer’s testimony about his ability to clearly observe the alleged transaction was critical to the state’s case, the Court of Appeals held that the trial court committed reversible error by excluding evidence of the officer‘s location. State v Reed, Wash. Ct. App. (No. 44867, 8-7-00); full text at http://pub.bna.com/cl/448676.htm.

The Connecticut Supreme Court found the prosecutor’s graphic description of the sex act in a child sex-abuse case, her assertions that a child could not imagine such a thing and that children do not make false accusations, and her description of defendant and the victim as "David and Goliath," denied the defendant a fair trial. These comments were improper as expressions of the prosecutor’s personal opinion, as vouching for the complainant’s credibility, as comments on facts not in evidence, and because they inappropriately appealed to the emotions of the jury. The state’s case rested on the credibility of the complainant, and the pervasive prosecutorial misconduct denied the defendant due process. State v Alexander (#16031, 8-15-00); full text at http://pub.bna.com/cl/16031.htm.

The Eighth Circuit held that military drug convictions obtained by courts-martial do not constitute "serious drug offenses" for purposes of sentence enhancement under the Armed Career Criminal Act. The Uniform Code of Military Justice is not included in the list of federal provisions under which a serious drug offense can be obtained. The Eighth Circuit found good reason to exclude military drug convictions as the maximum penalties for drug offenses in courts-martial are much greater than what a civilian might receive for the same conduct. United States v Stuckey, 220 F3d 976 (CA 8, 2000); full text at http://pub.bna.com/cl/001300.htm.

DNA Update

As details of the problems in the FBI lab emerge (see related item), a major hearing is taking place in Michigan on the DNA test most commonly used by Michigan State Police. Three judges are taking evidence in Grand Rapids on the PE Biosystems test, used on evidence to be proferred in three high-profile prosecutions. The problem, according to defense attorneys Helen Nieuwenhuis and Ryan Glanville, surrounds PE Biosystems’ refusal to disclose how its test actually works. Citing trade secrets, the company has done no more than reveal some chemical ingredients. Lack of more information, particularly validation tests of the method, makes test results suspect under Michigan’s Frye-Davis test for admissibility, according to defense attorneys. According to media reports, results of PE Biosystems testing have been thrown out by judges in Colorado, Vermont, and California. See "Experts, lawyers differ on DNA test’s reliability," Grand Rapids Press, September 6, 2000.

The three out-of-state rulings are also featured in a report titled "Setback for Automated STR Testing?," appearing at www.scientific.org/news-notes/news.html.

A settlement was reached on July 6, 2000 in the FOIA suit filed by the National Association of Criminal Defense Lawyers (NACDL) to obtain the Justice Department’s investigative report on conduct in the FBI crime lab. Over 53,000 pages of information are now subject to disclosure, with the DOJ agreeing to both pay $355,000 in attorney fees, and provide a web site pointer for inquiries. Investigation of conduct at the lab was prompted by allegations made by a former lab employee, Dr. Frederic Whitehurst, who blew the whistle after unsuccessful efforts to correct deficiencies.

What was known before the settlement appeared in an Inspector General’s report which exposed widespread problems in the lab’s Explosives and Materials and Analysis Units. Sloppy work and erroneous results, as well as false testimony, were discovered during the investigation. Now, supporting documents will be available for review by the public, making it possible for some defendants to pursue post-conviction relief.

NACDL will provide the full set of documents in CD-ROM form, at nominal charge. For more information, contact NACDL at (202) 872-8600 or see www.criminaljustice.org.

In a Manner of Speaking . . .

This gem from a murder trial is submitted by Troy attorney Robin M. Lerg. Think about what it would mean if the news arrived before:

Training Events

The Institute for Continuing Legal Education (ICLE) will present its "2000 Drunk Driving Defense Update in video presentations on October 19, 2000 (Ann Arbor), October 24, 2000 (Lansing), October 25, 2000 (Traverse City), and October 26, 2000 (Kalamazoo, Marquette and Saginaw).. Moderated by Michael V. Morgan, editor of ICLE’s Michigan Drunk Driving Law and Practice, the half-day sessions will cover the many legislative changes made effective in 2000, discussion of challenges to scientific evidence, and a demonstration of the Datamaster. General registration for the event is $125, with a reduction available under ICLE’s new Partnership arrangement. Contact ICLE at (877) 229-4350 or register online at www.icle.org.

The Criminal Advocacy Program (CAP) of Wayne Circuit Court will present once again its annual series of seminars for court-appointed criminal defense attorneys, with participation required for those wishing to qualify for assignments. The series includes "Contempt Proceedings and Attorney Grievance Issues" on October 6, 2000, "Internet Resources for Criminal Defense Attorneys" on October 20, 2000, "CSC Cases Involving Children: Policies, Protocols & Practice Tips" on October 27, 2000, "The Difficult Witness" on November 3, 2000, "Michigan Criminal Law Update" on November 17, 2000, "U.S. Supreme Court Update" on December 1, 2000, and "Mental Health and the Cross-Addicted Client" on December 8, 2000. All sessions will be held in the 13^th Floor Auditorium of Detroit’s City-County Building, and will begin at 1:30.

The Trial Lawyer’s College, a long-running project of attorney Gerry Spence, will host its second two-week session on October 10-27, 2000, conducted at Spence’s ranch near Dubois, Wyoming. Small groups work with well-known trial attorneys to develop not only basic skills, but each trainee’s "own magic." This non-profit training group accepts only four dozen attorneys for each session, selected on the basis of a written application explaining the applicant’s experience and goals. Tuition is $2,900, which includes lodging and meals; some scholarships are available. More information is available by calling (307) 739-1870, or by checking the College’s web site at www.tlcwyo.com.

The National Criminal Defense College (NCDC) will present "Advanced Cross-Examination 2000" on October 13-15, 2000, in Atlanta, Georgia. Lectures and demonstrations will supplement small group workshops, as participants learn the "why and how" of cross-examination. Tuition is $475, and more information is available from the NCDC at (912) 746-4151.

The National Association of Criminal Defense Lawyers (NACDL) will host "The Masters: Advanced Trial Techniques," on November 1-4, 2000, in New York City. Leading criminal defense attorneys will share their thoughts, insights and winning trial techniques, focusing on such issues as eyewitness identification, impeachment, closing arguments, and effective use of demonstrative evidence. Registration fees range from $250 to $595; some scholarships are available. Contact NACDL at (202) 872-8600 for more information.

The Criminal Defense Attorneys of Michigan (CDAM) will present its fall conference, titled "Impeachment, Approaching Criminalistics, & Difficult Judges," on November 2-4, 2000, in Traverse City, Michigan. Nationally known speakers will address the highlighted topics, with the addition of sessions on accident reconstruction, sex offender registration, sentencing guidelines, legislative developments, and Automated Research and Writing (see item below). Some small group workshops (federal practice, trial practice) will take place on Thursday, November 2, 2000. Registration is $50; more information is available by calling (313) 256-9833.

The Legal Resources Project of the State Appellate Defender Office (SADO) will continue its series of popular Internet training event sessions November 2 and 3, 2000 in Traverse City, Michigan. Titled "Automated Research and Writing for Criminal Defense Attorneys," the sessions focus on the skills and knowledge needed to successfully navigate the Internet’s growing legal collections. With special emphasis on the databases maintained by SADO, Trainer John Powell provides valuable information for both new and experienced users; sessions are very highly rated by attendees. Contact John at john@sado.org, or (313) 256-9833, to register.

The Institute for Continuing Legal Education (ICLE) will present "Criminal Motion Practice – Winning Before Trial," a half-day seminar, on November 28, 2000 at the MSU Management Education Center in Troy, Michigan. The seminar will feature presentations on Fourth Amendment motion practice (Wayne Circuit Judge Timothy M. Kenny), self-incrimination and due process (David A. Moran), motions to suppress identification (Elizabeth L. Jacobs), other crimes evidence and changes of venue (Ralph C. Simpson), and creative use of motions in limine (Gerald K. Evelyn). General registration for the event is $125, with a reduction available under ICLE’s new Partnership arrangement. Contact ICLE at (877) 229-4350 or register online at www.icle.org.

The Institute for Continuing Legal Education (ICLE) will present "Criminal Investigations: The Key to Success in Defense Practice," a half-day seminar, on December 14, 2000, at the MSU Management Education Center in Troy, Michigan. The seminar will feature presentations on the importance of investigation (Barbara A. Klimaszewski), assessment of investigation needs and petitioning for funds (Andrea D. Lyon), and services a professional investigator can provide in a criminal case (Warren Hanson). General registration for the event is $125, with a reduction available under ICLE’s new Partnership arrangement. Contact ICLE at (877) 229-4350 or register online at www.icle.org.

The National Association of Criminal Defense Lawyers (NACDL) will host "Recent Case Developments & Theory" on January 28, 2001 – February 2, 2001, in Aspen, Colorado. In its 19^th year, the seminar focuses on evolving social, judicial and political trends, as well as recent legal developments. Using interactive sessions, the seminar brings together top defense lawyers, prosecutors, judges and others, all in a top resort setting. More information is available from NACDL at (202) 872-8600.

U.S. Supreme Court: Selected Certiorari Granted Summaries

The Court will consider whether the Fourth Amendment limits the circumstances under which a traffic violator, punishable only by a fine, may be arrested without a warrant. The plaintiff was arrested for a misdemeanor violation of the seat-belt law. Case below: 195 F3d 242, en banc, (CA5, 1999).

At issue in Bartnicki v Vopper is whether the federal and Pennsylvania wiretap statutes violate the First Amendment by prohibiting the disclosure of the contents of an unlawfully intercepted electronic communication by a person who was not involved in the interception, but who had reason to know that the communication was unlawfully intercepted. The question in United States v Vopper is whether the imposition of civil liability under the federal statute for such conduct violates the First Amendment. Case below: 200 F3d 109 (CA3, 1999).

The Court will consider whether an accused's waiver of counsel during interrogation was invalid under Michigan v Jackson, 475 US 625 (1986), where the accused had "asserted" his Sixth Amendment right by merely accepting appointment of counsel following indictment on a different, but related crime. The Court will also address whether the right to counsel attached, under Maine v Moulton, 474 US 159 (1985), to questioning about the murder charge following indictment on the burglary charge where the burglary was not the predicate felony for the murder charge. Case below: ___ Tex Crim App ___, 2000 WL 275644 (#72,807, 3-15-00).

The Court will decide whether the additional six to 21 months in prison faced by the habeas petitioner because of his counsel's error relating to the sentencing guidelines satisfies the "prejudice" prong of the Strickland v Washington, 466 US 668 (1985) test for ineffectiveness of counsel, and whether the Seventh Circuit Court of Appeals erred in finding that the two-level error was per se insufficient to constitute prejudice. Case below: unpublished opinion 182 F3d 921 (CA7, 1999).

Review was granted to consider whether a municipal licensing scheme which acts as a "prior restraint" on the licensee's First Amendment rights by providing time for the licensor to decide whether to grant an adult business license and allowing time for administrative review and appeal, during which time the status quo is maintained, is required to contain explicit language that prevents injury to the speaker's rights from lack of a prompt judicial decision. Case below: 231 Wis2d 93; 604 NW2d 870 (1999).

U.S. Supreme Court: Selected Opinion Summaries

Reversed judgment of Seventh Circuit Court of Appeals finding section 3626(e)(2) of the Prison Litigation Reform Act (PLRA) unconstitutional. Case below: 178 F3d 437 (CA7, 1999).

The PLRA, which requires that prospective relief granted by the district court, in the form of an injunction to correct unconstitutional prison conditions, be stayed automatically pending a motion for termination, is mandatory, but it does not violate separation of powers principles because it does not involve the direct review of a judicial decision by officials of the Legislative or Executive branches. It does not divest the court of authority to decide the merits of the termination motion, but merely provides a new legal standard and encourages the courts to apply that standard promptly.

Justice Souter, joined by Justice Ginsburg, concurring in part and dissenting in part, wrote that the application of the statute raises a serious question whether Congress has in practical terms assumed the judicial function. They would remand for proceedings to determine whether the district court had adequate time to make the requisite findings.

Justice Breyer, joined by Justice Stevens, dissenting, would find that the PLRA, when read in light of its purpose and history, would allow a court to modify or suspend the automatic stay when a party has demonstrated a need for an exception. As the court is not deprived of its traditional equitable powers, there is no constitutional problem.

Reversed judgment of Fourth Circuit Court of Appeals reversing suppression order. Case below: 166 F3d 667 (CA 4, 1999).

The holding in Miranda v Arizona, 384 US 436 (1966), was based on the Fifth Amendment privilege against self-incrimination as applied to the states through the Fourteenth Amendment and, as a constitutional decision, it may not be overruled by an Act of Congress. The federal statute, 18 USC 3501, that makes the voluntariness of custodial statements the touchstone of their admissibility and allows the admission of statements made in the absence of Miranda warnings, is unconstitutional. The Miranda decision has consistently been applied to prosecutions arising in state courts. The legislative alternative to Miranda, the "totality of the circumstances" test, is not adequate to prevent coerced confessions and is more difficult for law enforcement officers to follow and for the courts to apply. The principles of stare decisis, as well as the ease of its application, favor continuing to apply Miranda.

Justice Scalia, joined by Justice Thomas, dissenting, felt that the majority acted in plain violation of the Constitution when it denied effect to the federal statute, which excludes from trial precisely what the Constitution excludes from trial; namely, compelled confessions. A violation of Miranda is not a violation of the Constitution. Miranda has repeatedly been interpreted as having announced "prophylactic" rules; these rules go beyond the Constitutional right against compelled self-incrimination and may not be imposed on Congress and the states.

Reversed judgment of New Jersey Supreme Court affirming sentence of 12 years for possession of a firearm for an unlawful purpose. Case below: 159 NJ 7; 731 A2d 485 (1999).

The Sixth Amendment right to a jury trial and the Due Process Clause of the Fourteenth Amendment require that a factual determination, other than the existence of a prior conviction, authorizing an increase in the maximum prison sentence, must be submitted to a jury and proven beyond a reasonable doubt. The Court found unconstitutional the New Jersey statute, which allows a judge to impose additional punishment based on his/her finding, by a preponderance of the evidence, that the defendant's purpose for possessing the weapon was to intimidate the victim based on a particular characteristic of the victim. Purpose, or intent in committing a crime, is a core criminal offense element which cannot be a sentence-enhancer. There is a vast difference between accepting the validity of a prior conviction to enhance a sentence and allowing the judge to find a disputed element under a lesser standard of proof.

Justice Scalia, concurring, wrote that the guarantee of the right to trial by jury has no content unless it means that all the facts which must exist in order to subject the defendant to a prescribed punishment must be found by the jury.

Justice Thomas, joined by Justice Scalia, concurring, agreed that the New Jersey statute was unconstitutional and wrote separately to explain his view that the Constitution requires a broader rule that the Court adopts. Every aggravating fact is an element of the aggravated crime (including the fact of a prior conviction) and must be proven beyond a reasonable doubt.

Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer, dissenting, asserted that there was no constitutional or common law authority to impose the majority's bright-line rule limiting the power of Congress. The dissenters worried that the Court's opinion will have the effect of invalidating significant sentencing reform, including federal and state sentencing guidelines, and will cause a lengthy period of considerable confusion.

Justice Breyer, joined by Justice Rehnquist, wrote separately that there are far too many potentially relevant sentencing factors to permit submission of all them to a jury. A sentencing system in which judges have discretion to find sentencing-related factors is a workable system which is consistent with the Constitution.

Affirmed judgment of Colorado Supreme Court finding statute regulating speech-related conduct within 100 feet of the entrance to any health care facility constitutional. Case below: 973 P2d 1246 (1999).

The Colorado statute, which prohibits any person from knowingly approaching within 8 feet of another person, without that person's consent, for the purpose of leafleting, displaying a sign, or speaking with that person, is a content neutral time, place, and manner regulation. The statute's restrictions apply equally to all demonstrators, not just to those opposing abortion, and the state's interests in protecting access and privacy are unrelated to the content of he demonstrator's speech. The statute is narrowly tailored to serve the governmental interests and it leaves open alternative means for communication. The First Amendment freedom to communicate is outweighed by the right of every person to "be let alone."

The statute is not unconstitutionally overbroad or vague. The comprehensiveness of the statute is evidence against there being a discriminatory motive. The ordinance has a scienter element, it is clear what is prohibited, and the degree of police judgment in enforcing it is acceptable. Neither do the restrictions constitute an unlawful prior restraint as speech is not completely banned.

Justice Souter, joined by Justice O'Connor, Justice Ginsburg, and Justice Breyer, concurring, agreed that the facts overwhelmingly demonstrate the validity of the ordinance as a content-neutral regulation imposed solely to regulate the manner in which speakers may conduct themselves within 100 feet of the entrance of a health care facility.

Justice Scalia, joined by Justice Thomas, dissenting, would hold that the statute is obviously and undeniably content-based. Whether a speaker must obtain consent before approaching another, and whether he will be sent to prison for failing to do so, depends entirely on what he intends to say. Protecting people from unwelcome communications is not a compelling state interest, and, in fact, was repudiated as such by the state of Colorado. There is no "right to be let alone," except in one's home, and there is an insufficient nexus between the assurance of access and forbidding unconsented communications within 8 feet.

Justice Kennedy, dissenting, wrote that the Court's holding contradicts more than 50 years of well-established First Amendment principles, for the first time approving a law which bars a private citizen from passing a message in a peaceful manner and on a profound moral issue to a fellow citizen on a public sidewalk. The Court takes away from protesters the guarantees of the First Amendment when they most need it, in the face of one of life's gravest moral crises.

Affirmed Eighth Circuit Court of Appeals finding that Nebraska's partial birth abortion statute is unconstitutional. Case below: 192 F3d 1142 (CA8, 1999).

Nebraska's statute, which makes criminal the performance of a partial birth abortion (D&X abortion), violates the Federal Constitution because it lacks any exception for the preservation of the health of the mother and it imposes an "undue burden" on a woman's ability to choose another, common method of abortion (D&E abortion). In light of evidence that in some circumstances a D&X abortion, which involves delivering the fetus feet first, stabbing the head while still in the uterus and sucking out the brains, might be somewhat safer than other methods, a statute that altogether forbids D&X creates a significant health risk. Also, the statute can be read to include the D&E procedure, which involves dismemberment of the fetus by pulling a "substantial portion," usually an arm or leg, into the birth canal and tearing it off.

Justice Stevens, joined by Justice Ginsburg, concurring, opined that the notion that either of these two "equally gruesome" procedures is more akin to infanticide than the other is irrational.

Justice O'Connor, concurring, agreed that the lack of a health exception necessarily renders the statute unconstitutional, and that the medical evidence establishes that the D&E procedure is included in the definition of the banned procedure. She offered her opinion that a ban that only proscribed the D&X method and included a health exception would be constitutional.

Justice Ginsberg, joined by Justice Stevens, concurring, wrote to express the opinion that the statute, which prohibits only one method of performing abortion, was enacted because the state legislators seek to "chip away" at the private choice shielded by Roe v Wade, 410 US 113 (1973).

Justice Scalia, dissenting, recognized that the "undue burden" test set forth in Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992), is a value judgment, and urged the Court to overrule Casey and return this matter to the people, where the Constitution, by its silence, left it.

Justice Kennedy, joined by Chief Justice Rehnquist, dissenting, found that the statute places no undue burden upon the right to choose an abortion and that the states have a legitimate interest in preserving the life of the unborn or the partially born, preserving the integrity of the medical profession, and erecting a barrier to infanticide. Critical moral differences exist between the D&E and D&X procedures because the latter appropriates the natural birth process and blurs the ethical line between infanticide and abortion. Moreover, the D&X procedure is not part of standard medical practice and there are no circumstances under which D&X would be the only option to preserve the health of the woman. Finally, the text of the law demonstrates that it applies only to the D&X procedure.

Justice Thomas, joined by Chief Justice Rehnquist, dissenting, wrote that the majority opinion is irreconcilable with Casey, which promised that regulations that do no more than express profound respect for the life of the unborn are permitted if they are not a substantial obstacle to the right to choose an abortion. The Nebraska law cannot be applied to the D&E procedure since the statute refers to partial delivery of a fetus, and no one understands the act of pulling off a part of a fetus to be a "delivery." There is no significant health risk from the partial birth abortion ban since there are no medical conditions that require its use.

Affirmed Court of Appeals judgment reversing district court grant of petition for writ of habeas corpus; affirmed death sentence. Case below: 187 F3d 396 (CA4, 1999).

The Virginia Supreme Court's decision that due process did not entitle petitioner to an instruction that he would not be eligible for parole if given a life sentence, to counter the prosecutor's argument concerning future dangerousness, was not contrary to the rule announced in Simmons v South Carolina, 512 US 154 (1994). Petitioner was not technically parole-ineligible under the "three strikes" law at the time of the sentencing hearing, since the trial court in one of the prior cases had not yet entered a judgment of conviction. Although the jury had found petitioner guilty in that case, the opportunity to file post-trial motions still remained. A judgment, not a verdict, is the usual measure for finality in the trial court; the possibility of post-verdict relief renders the jury verdict uncertain until judgment is entered.

Justice O'Connor, concurring in the judgment, wrote that the entry of judgment following a criminal conviction in Virginia is not a purely ministerial act, petitioner was therefore not parole ineligible, and Simmons did not entitle the defendant to inform the jury that he was.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissenting, found it acutely unfair to permit the state to rely on a recent conviction to establish a defendant's future dangerousness while simultaneously denying that there was such a conviction, when the defendant attempts to argue that he is parole-ineligible and therefore not a future danger. A verdict of guilty is the point at which the defendant's Simmons right should attach. Petitioner has been denied his constitutional right to meet the state's case against him. The jury misunderstood what a "life" sentence meant, and it would have recommended life instead of death if it had known that petitioner was parole-ineligible.

Affirmed judgment of Third Circuit Court of Appeals affirming conviction of bank robbery. Case below: 185 F3d 863 (CA 3, 1999).

A defendant charged under the federal bank robbery statute is not entitled to instructions on the lesser offense of federal bank larceny because the latter requires three elements not required by the former: intent to steal, asportation, and value exceeding $1000. The federal bank robbery statute requires only a general intent, and the larceny statute requires a specific intent.

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissenting, would find that by enacting the federal statutes, Congress did not mean to change the common law meaning of robbery as an aggravated form of larceny. Robbery requires both intent to steal and asportation, and the matter of value does not prevent larceny from being a lesser included offense of robbery. The element-based comparison required by Schmuck v United States, 489 US 705 (1989), is not so rigid as to require that the compared statutes contain identical words.

U.S. Court of Appeals: Selected Sixth Circuit Opinion Summaries

Reversed dismissal without prejudice of indictment charging possession of cocaine with intent to distribute; ordered dismissal with prejudice. Case below: unpublished opinion (#97-20094, 7-20-97).

The dismissal for denial of the Speedy Trial Act should have been with prejudice where the offense was serious, 10 months of the delay were caused by the district court's neglect in failing to decide a motion to suppress, the defendant was prejudiced by remaining incarcerated for 2 years, and the administration of justice was adversely affected.

Judge Batchelder, concurring, agreed that the district court allowed defendant's motion to languish unanswered for many months, making dismissal with prejudice necessary.

Judge Gilman, concurring, wrote that there is no other adequate means of enforcing the Speedy Trial Act than dismissal with prejudice. The district court's delay was completely unacceptable and had no conceivable justification.

Vacated sentence of 27 months in prison for counterfeiting. Case below: unpublished opinion (#98-20080, 10-29-98).

The district court erred in finding that defendant used a "special skill" to commit the offense, thereby enhancing his sentence. Defendant used desktop publishing software to create counterfeit bills. His computer skills were not "particularly sophisticated" and were not acquired through months or years of training. The guidelines do not contemplate application of the "special skill" enhancement to crimes involving common and ordinary computer skills.

Reversed district court order denying motion to suppress; vacated conviction and sentence. Case below: unpublished opinion (#98-90022, 1-21-00).

The district court erred in denying the motion to suppress evidence seized from defendant where the scope and length of the stop exceeded the bounds permitted under Terry v Ohio, 392 US 1 (1968). After stopping the car in which defendant was a passenger, and upon determining that she was not armed or carrying contraband, the police unreasonably seized defendant by placing her in the police car and questioning her further, and by transporting her to the police station and questioning her there. Once defendant identified herself and the patdown revealed nothing suspicious, the officers were required to allow her to go free. The detention was well beyond the scope and duration necessary to check out the circumstances which led to the initial stop.

Defendant’s "consent" to sit in the patrol car and be transported to the police station was coerced and not unequivocally or voluntarily given. Moreover, once placed in the police car, she was unable to voluntarily leave, even if inclined to do so. Where the police demanded that defendant’s niece open defendant’s vehicle, into which the niece had placed defendant’s package, there is nothing to indicate that consent was voluntarily given by defendant or her niece.

Judge Merritt, dissenting, agreed with the district court in concluding that defendant tried to allay suspicion by being cooperative with the police, and would affirm the finding that defendant consented to the ride to the station and the interrogation. Judge Merritt would further find probable cause to search defendant’s vehicle, and that the automobile exception to the warrant requirement applied.

U.S. District Court: Selected Opinion Summaries

Granted petition for writ of habeas corpus; ordered new trial. Case below: People v Morse, 570 NW2d 660 (Mich 1997).

Petitioner's claims were not procedurally defaulted where the conclusory denials of leave to appeal by both the Michigan Supreme Court and the Michigan Court of Appeals were not "reasoned state court judgments," and the last state court (the trial court) to address petitioner's claims rejected them in a one-sentence statement lacking any analysis or reasoning. Under these circumstances, the federal district court conducts an independent review of petitioner's claims.

Where trial counsel was suffering from auditory and visual hallucinations, drunkenness, black outs, and paranoia while representing petitioner, and petitioner did not understand the charge to which he was pleading guilty, he was constructively denied the right to counsel. Petitioner suffered actual prejudice; had he understood the nature of the charge, he would not have pled guilty.

Appellate counsel rendered constitutionally ineffective assistance by raising in the appellate brief only a sentencing issue and failing to cite the proper standard of People v Milbourn, 435 Mich 630 (1990). When he finally filed a motion to remand, his brief was devoid of any supporting case law or facts. After the Court of Appeals denied the motion without prejudice to the right to present the issue in the trial court, counsel failed to do so. Petitioner was constructively denied the right to counsel on appeal and prejudice is presumed.

After appellate counsel's withdrawal prior to the decision by the Court of Appeals, substitute counsel was never appointed. The absence of counsel on appeal establishes a Sixth Amendment violation of the right to counsel.

Petitioner's guilty plea was not knowing and voluntary because he did not know he was pleading guilty to possessing over 50 grams of cocaine and because he did not have the aid of competent counsel. Under these extraordinary circumstances, it would be patently unfair to bind petitioner to his testimony during the plea hearing.

Petitioner's right to be free from double jeopardy was not violated by the seizure of his property and subsequent prison sentence; civil forfeitures do not constitute punishment for purposes of the double jeopardy clause.

Granted petition for writ of habeas corpus. Case Below: People v Staley unpublished opinion (#107330, 5-30-97).

Michigan's stalking statute violates the First Amendment because it is overbroad. The statute, which prohibits repeated "harassment" of another which causes terror, intimidation, etc., excludes "constitutionally protected activity" or "conduct that serves a legitimate purpose." The Michigan Court of Appeals has interpreted these phrases to include only labor picketing or other organized protests. These phrases render the statute overbroad by infringing upon numerous core First Amendment rights, including the rights of the press to investigate issues of public importance, the rights of commercial speech, and the rights of ordinary citizens to redress political or legal grievances. The statute chills the exercise of these First Amendment freedoms.

The statute is not unconstitutionally vague. In order to engage in harassment, one must engage in repeated unconsented contact causing a reasonable person to suffer emotional distress, which provides notice as to what is illegal, gives law enforcement adequate guidance, and does not infringe on constitutionally protected conduct. The meaning of "constitutionally protected activity" and "conduct that serves a legitimate purpose," as interpreted by the Court of Appeals, is clear and definite.

Harry Gurewitz for defendant-appellant.

No issue was specified in the order granting leave to appeal, but several were addressed by the Court of Appeals. The panel (Judges Neff, Hood and Murphy) decided that the trial court did not err by requiring the defendant to prove diminished capacity by a preponderance of evidence, as the recently amended statute on insanity [MCL 768.21a(3); MSA 28.1044(1)(3)] applies as well to that defense. Finding adequate expert and lay testimony, the panel rejected defendant’s claim that convictions for home invasion and assault suffered from insufficient evidence. There also was sufficient evidence that the defendant resisted and obstructed a police officer, as he closed a window on the officer’s hand. Finally, defendant’s conviction for felon-in-possession of a firearm did not violate the constitutional prohibition against ex post facto laws, or his constitutional right to keep and bear arms. Case below: ___ Mich App ___ (#204051, 6-25-99).

Jeffrey P. Kirchoff for defendant-appellee.

Granting leave to the prosecution, the Court agreed to consider whether the trial court erred in suppressing evidence seized under a federal search warrant deemed defective under Michigan law because no affidavit was attached to the warrant left at the scene, as required by MCL 780.654; MSA 28.1259(4). The panel’s majority (Judges Cavanagh and Hoekstra) applied the holding in People v Moten, 233 Mich 169 (1925), which requires that the warrant state the grounds for probable cause. Changes in the statute to allow the attachment of an affidavit did not impact the authority of Moten, and suppression was required. Judge Gage, dissenting, would find that failure to attach the required affidavit is a mere procedural defect which does not compel suppression. Case below: 238 Mich App 495 (1999).

Fred E. Bell, State Appellate Defender Office, for defendant-appellant.

No issue was specified in the order granting leave to the defendant. The Court of Appeals denied defendant’s application for leave to appeal from his plea-based conviction for possession with intent to deliver 50 to 224 grams of cocaine. Defendant claimed in his application for leave that the trial court should have granted his motion to dismiss due to entrapment by police, where at least eight of twelve entrapment factors identified in People v Juillet, 439 Mich 34 (1991) appeared in his case. They included; an appeal to friendship by the police informant, who claimed to be "hard up" for money, repeated requests for help, no knowledge of any reputation for drug dealing, a major financial inducement to participate as a middle man in the deal, pressure on the informant to produce (in exchange for a deal in his own pending case), escalation of the drug amounts by the informant, absence of police control over the informant, and absence of any targeting of defendant for investigation. The trial court failed to apply the facts to the law, failed to articulate sufficient analysis, and clearly erred in applying the appropriate standard, defendant alleged on appeal, adding that a claim of entrapment raised prior to sentencing survives a plea of guilty, here to reduced charges. Case below: unpublished order (#219840, 7-19-99).

David Cripps for defendant-appellant.

Granting leave to the defendant, the Court limited review to "whether the defendant was denied the effective assistance of trial counsel." Convicted at a bench trial of first-degree criminal sexual conduct, the defendant claimed on appeal that his trial attorney should have called witnesses who would have testified at trial that he could not have escaped from the mental institution, where he was involuntarily confined, on the day he allegedly assaulted the complainant. The Court of Appeals panel (Judges Hood, Neff and Markey) found that defendant failed to overcome the presumption that counsel was effective, as Ginther hearing testimony from the new witnesses was largely cumulative of testimony offered at trial by a defense witness. They did not feel that the missing testimony would have substantially benefited defendant’s alibi defense. Case below: unpublished opinion (#198969, 1-22-99).

Michigan Supreme Court: Selected Order

David Moran for defendant-appellant.

After granting leave and hearing oral argument in the case, the Court vacated the earlier order and denied leave to appeal, being "no longer persuaded the questions presented should be reviewed by this Court." In the order granting leave to the defendant, the Court limited review to the issues of "whether the admission of an audiotape of a recorded conversation between the defendant and his spouse violated the marital communication privilege, and, if so, whether the error was harmless." According to the Court of Appeals, which affirmed defendant's first-degree murder conviction, the trial court properly ruled that the marital communications privilege is a narrow testimonial privilege that applies only to a spouse's testimony. It does not preclude the introduction of a marital communication through other means, including a tape recording. The panel (Judges Griffin, Neff and Bandstra) cited People v Fisher, 442 Mich 560 , 575 (1993), but noted its uncertainty that the high court envisioned a situation like the present one, when it decided Fisher. As an intermediate appellate court, the panel stated that it would decline defendant's request to "re-examine" Fisher. Case below: unpublished opinion (#204846, 12-11-98).

Michigan Supreme Court: Selected Opinion Summaries

Reversed judgment of Court of Appeals reversing convictions of first-degree murder, armed robbery, and felony firearm. Case below: unpublished opinion (#199979, 12-18-98).

The trial court's error in violating MCR 6.414(H), by foreclosing the possibility of the jury reviewing requested testimony, did not require reversal; defense counsel specifically approved the court's refusal of the request and therefore waived the defendant's rights under the court rule, precluding him from raising the issue on appeal. Waiver, which may be effected by action of counsel, extinguishes any error, in contrast to failure to object, which qualifies as forfeiture and can be reviewed for plain error.

Justice Kelly, dissenting, would find that the trial judge's refusal to allow the jury to review vital testimony was a violation of MCR 6.414(H) and constituted error requiring reversal. Unpreserved trial error can be corrected if a miscarriage of justice would result. The jury in this case was pressed to arrive at a verdict with serious unanswered questions concerning key evidence, resulting in an unreliable verdict. The conclusion of the majority contradicts several earlier opinions, as well as the plain language of MCL 769.26; MSA 28.1096, and improperly limits the Court's power to ensure justice is done.

Justice Cavanagh, dissenting, would also find error requiring reversal. The trial judge clearly breached her duty under the statute by twice unilaterally stating that she would not allow the jury to review testimony, even before a request was made. Counsel's acquiescence under these circumstances was questionable. Because the truth-seeking function of the jury was so tainted, Cavanagh would hold that the error is not waivable. Defendant was denied the right to have the jury base its verdict on a clear understanding of the facts, and the error compromised the fairness, integrity and truth-seeking function of a jury trial.

Because of the devastating result of defense counsel's acquiescence, defendant was denied his Sixth Amendment right to effective assistance of counsel.

Affirmed judgment of Court of Appeals finding Sections 45 and 46 of the Administrative Procedures Act (APA) unconstitutional and the Department of Corrections visitation rules valid and enforceable. Case below: 222 Mich App 385 (1997).

Sections 45 and 46 of the APA are unconstitutional as violative of the separation of powers and enactment and presentment provisions of the Michigan Constitution, but they may be severed from the remainder of the Act. The Legislature provided sufficient standards in its statutory grant of authority to the Department of Corrections (DOC) to promulgate administrative rules that the delegation passes constitutional muster. The visitation rules are valid and constitutional.

Justice Kelly, joined by Justices Corrigan and Young, finding the United States Supreme Court's reasoning in INS v Chadha, 462 US 919 (1982), applicable to the Michigan Constitution, stated that exercising the authority which Sections 45 and 46 give the Joint Committee on Administrative Rules (JCAR) to invalidate regulations proposed by the DOC is inherently legislative. Engaging in such legislative action without enacting legislation usurps the role of the Governor, violates the enactment and presentment requirements of the Michigan Constitution, and therefore violates the separation of powers provision. The Legislature cannot circumvent those constitutional requirements simply by labeling its action as something other than "legislation." The invalid portions of Sections 45 and 46 can be severed without adversely affecting the remainder of the APA.

The enabling act that gives the DOC the authority to promulgate rules is not an unconstitutionally broad delegation of legislative power; the rule-making powers are sufficiently limited by reasonably precise standards. The promulgated rules (limiting prisoners' visitation rights) are within the subject matter of the enabling act, they are consistent with the legislative intent, and they are not arbitrary and capricious.

Justice Weaver, writing separately, agreed that the sections 45 and 46 violate the enactment and presentment provisions and the separation of powers provisions of the Michigan constitution, but would save the question of the constitutionality of the delegation of rulemaking authority for another day.

Justice Markman, concurring in the result, did not agree with the lead opinion's reliance on Chadha and did not agree that the statute violates the enactment and presentment clauses. However, the involvement by the Legislature exceeds the limits of such involvement provided for by Const 1963, art 4, sec 37 (describing the limited role of the Legislature), and conflicts with the expressed will of the voters who rejected proposal A (which would have allowed the Legislature to approve or disapprove administrative rules) in 1984.

Justice Cavanagh, dissenting, stated that the lead opinion fails to recognize important distinctions between state and federal law and would find that Michigan law requires a different outcome than occurred in Chadha. Cavanagh would also find that a statutorily authorized legislative veto is not unconstitutional per se, that agency rulemaking does not constitute impermissible legislation and review of agency rules as part of the promulgation process is not legislation, and that the statute does not violate the enactment and presentment clauses.

Reversed judgment of Court of Appeals affirming trial court's reversal of convictions of first degree murder and felony firearm; remanded to Court of Appeals for consideration of unaddressed issues. Case below: unpublished opinion (#203029, 08-04-98).

Admission of rebuttal testimony regarding statements made by defendant to a forensic psychologist in contemplation of an insanity defense violated MCL 768.20a; MSA 28.1043(1), as there is no exception for impeachment, but the error was harmless. The trial court's decision was merely an erroneous evidentiary ruling and it was not constitutional error. Defendant was not forced to choose between his constitutional right to assert a defense or to give up his constitutional privilege against self-incrimination. The untainted evidence of guilt was overwhelming, and defendant's version of events would be unbelievable even if not contradicted by the inadmissible testimony.

Defendant, whose native language is Arabic, was not denied his right to effective assistance of counsel by his attorney's failure to clarify his testimony so that it was presented in a way that was more comprehensible to the jury. Defendant's clarified version, offered at the Ginther hearing, was so unbelievable that he was better off letting the jury speculate about what he was really trying to say.

Justice Kelly, joined by Justice Cavanagh, dissenting, would hold that defendant was denied effective assistance of counsel. His attorney's failure to clarify who defendant implicated in the shooting was not trial strategy. There is a reasonable probability of a different outcome; defendant's version at the Ginther hearing was coherent and internally consistent, the evidence of guilt was not overwhelming, and there was a complete failure of the adversarial process. Justice Kelly would find that the errors of defense counsel violated defendant's Fifth Amendment right to testify and his Fourteenth Amendment right to due process, as well as his Sixth Amendment right to counsel. The improper translation and failure to clarify his testimony prevented Defendant from putting on an intelligible defense.

Where the trial court allows a forensic examiner to impeach the defendant on an issue other than his mental state, the defendant's constitutional right to due process of law is violated, according to the dissenters. The defendant must either forfeit his constitutional right to assert the insanity defense, since he is required to cooperate fully with the examiner, or forfeit his constitutional right not to incriminate himself. The government broke its promise that the evidence produced during the forensic interview would be admitted only for a limited purpose, violating defendant's Fifth Amendment privilege. The error was preserved, nonstructural constitutional error and the prosecution did not demonstrate that it was harmless beyond a reasonable doubt. The examiner's testimony would have been highly destructive of defendant's credibility, and defendant's testimony alone contradicted the prosecution's case. Moreover, the jury's two and one-half days of deliberation leads to the reasonable conclusion that the jury was reluctant to convict. To allow defendant's convictions to stand makes a mockery of the law's concern for a fair trial and damages public respect for the judicial process, according to the dissenters.

Reversed judgment of Court of Appeals reversing convictions of two counts of felony murder and one count of arson of a dwelling house; reinstated conviction of felony murder. Case below: unpublished opinion (#196655, 10-9-98).

The evidence of arson, the felony underlying defendant's murder convictions, was legally sufficient. Arson in the felony murder statute, prior to the 1996 amendment, refers to the common-law crime of arson, defined as the malicious and voluntary or willful burning of a dwelling house of another. The trial court instructed on the statutory offense, which requires intent to set a fire. Even under this elevated standard, the evidence supported a reasonable inference that defendant intentionally released gas in his apartment and ignited it, causing an explosion and fire, resulting in the death of two people in adjoining apartments.

The Court of Appeals erred in assuming that common law arson is a specific intent crime. Common-law arson is a general intent crime. The prosecution must prove one of the following: 1) that the defendant intended to start a fire or do an act that results in the starting of a fire (intentional arson); or 2) that the defendant intentionally committed an act that created a very high risk of burning a dwelling house and that defendant knew of the risk and disregarded it (wanton arson).

Justice Cavanagh, joined by Justice Kelly, concurring, agreed that arson is a general intent crime, but disagreed with the majority's conclusion that there was sufficient evidence that defendant intended to ignite the fumes in his apartment. Cavanagh would hold that defendant's intentional act of releasing the fumes created a very high risk of harm of burning a dwelling house. Because he committed the underlying arson even if he did not act intentionally, it was unnecessary to speculate whether the flames were intentionally ignited.

Affirmed judgment of Court of Appeals affirming convictions of felony murder, first-degree criminal sexual conduct, assault and battery, kidnapping, and UDAA. Case below: 228 Mich App 336 (1998).

The personal wrong exception to the spousal privilege does not limit spousal testimony to those crimes of which the spouse was the direct victim. A victim-spouse is allowed to testify about a persecuting spouse's criminal acts where: 1) the underlying goal or purpose of the persecuting spouse is to cause the victim-spouse to suffer personal wrong or injury, 2) the earlier criminal acts are committed in furtherance of that goal, and 3) the personal wrong or injury against the spouse is ultimately completed.

The Court of Appeals' justification for permitting defendant's spouse to testify against him concerning the crimes against her mother, that they were admissible as evidence of other bad acts, was erroneous. Defendant's underlying purpose throughout the entire criminal transaction was to commit a personal wrong against his wife, he achieved this objective, all the crimes that he perpetrated grew out of it, and his wife's testimony was admissible under the personal wrong exception to the spousal privilege.

Justice Cavanagh, concurring, disagreed with the majority's interpretation of the spousal privilege, but found the error harmless. According to Cavanagh, the crime charged must have been committed against the witness-spouse to come within the exception. The felony murder and UDAA in this case were perpetrated against the victim's mother and did not grow out of a personal wrong done to the victim-spouse. However, in light of the strength of the other evidence, it is not more probable than not that the error was outcome-determinative.

Vacated order of Court of Appeals remanding case to trial court; reinstated trial court order denying motion for appointment of appellate counsel. Case below: unpublished order (#209031, 07-21-98).

Neither the state nor the federal constitution requires the appointment of counsel for an indigent defendant when applying for leave to appeal a plea-based conviction. The state constitution only requires assistance of counsel when it is "provided by law," which means by legislative action, and the right to appellate counsel for an indigent applying for leave to appeal was not provided by law at any relevant time in this case (before the enactment of MCL 770.3a; MSA 28.1100a). Reliance on MCR 6.425(F)(1)(c) is misplaced since the Supreme Court lacked the authority to adopt this court rule: the right to counsel may be provided by legislative action only.

The right to appeal a plea of guilty is not a fundamental right, and meaningful access does not require the appointment of counsel for defendants who seek discretionary leave to appeal from guilty pleas. Michigan’s current arrangement for inmate access to the courts, including law libraries and paralegal assistance, provides defendants with an adequate opportunity to present their claims fairly. Moreover, guilty pleas are simpler than trials and a concession of guilt limits the issues that can be raised. Appointed trial counsel is responsible for filing post-conviction motions, and claims of ineffective assistance of counsel that have merit will be apparent on the record. Defendant has failed to show that the state intended to discriminate against criminal defendants on the basis of indigence, and the Fourteenth Amendment does not require "absolute equality."

Justice Cavanagh, joined by Justice Kelly, dissenting, would find that, as a matter of federal constitutional law, an indigent defendant is entitled to the appointment of counsel in his first appeal by leave. A state may not grant appellate review in a way that discriminates because of poverty or financial status. Denial of counsel for discretionary review would leave the indigent defendant with a meaningless ritual, while a moneyed defendant would have a meaningful appeal. The Court of Appeals will have no brief or even an identification of issues by counsel for the defendant, while the People will be free to muster all the resources of the prosecutor’s office to oppose the application, and the Court will be free to refuse to consider unpreserved errors. In cases where the Supreme Court has held that counsel is not constitutionally required, like Ross v Moffit, 417 US 600 (1974), the defendant had the benefit of counsel in an initial appeal. The presence of counsel at that intermediary step is the reason the Court has denied counsel in later steps.

According to the dissenters more than half of indigent defendants are functionally illiterate, and guilty plea appeals are not so simple that counsel will never be necessary. Many constitutional claims which deal with a "correct adjudication of guilt" are not waived by a guilty plea, and errors in scoring the new legislative guidelines are reviewable on appeal. Many issues need not be preserved by a trial court motion, and trial counsel need only file such motions as "the lawyer deems appropriate." Moreover, trial counsel might easily overlook possible issues. The Court of Appeals will have nothing in the way of an opinion below on any substantive matters. Indigent Proposal B defendants will have nothing comparable to the tools the defendant had in Ross, and are left with a meaningless ritual. Indigent appeals should not be used as a convenient valve for reducing the pressures of work on the appellate courts. By denying counsel to indigent defendants, the majority commits structural error, which presumptively results in prejudice.

Reversed judgment of Court of Appeals affirming trial court's decision to suppress defendant's confession. Case below: unpublished order (#215615, 1-11-99).

The trial court applied an erroneous legal standard in finding that defendant did not "knowingly and "intelligently" waive his Miranda rights. The standard for determining whether Miranda rights are validly waived is an objective one. While determining whether a defendant's waiver is knowing and intelligent involves an inquiry into the suspect's level of understanding, this can be done only be examining objective circumstances. To knowingly waive Miranda rights, a suspect need not understand the consequences of his or her waiver, nor does he need a wise basis for waiving his rights. The only inquiry is whether the defendant understood that he did not have to speak, that he had the right to counsel, and that the state could use what he said in a later trial against him. The trial court erred as a matter of law in focusing on why defendant was confessing rather than whether he could in fact understand and waive his Miranda rights.

Defendant's delusional belief that God would set him free if he confessed to the murder of his mother did not prevent him from knowingly and intelligently waiving his Miranda rights. Defendant stated that he understood his rights. The fact that his delusions prevented him from applying those rights to his own situation, or appreciating the consequences of his actions, did not render the waiver invalid.

Justice Cavanagh, joined by Justice Kelly, dissenting, would hold that the trial court did not clearly err in determining that defendant was delusional and that his waiver was not knowing and intelligent, and would affirm the suppression of the confession because the prosecution did not sustain its burden of proving a valid waiver. The majority's decision is incomplete in that it fails to explore the burden of proof that must be borne by the prosecution, and it fails to distinguish the factual issues from the legal issues, according to the dissenters. The U.S. Supreme Court has never expressly declared that a preponderance of the evidence standard should be applied in knowing and intelligent waiver cases. The prosecutor's burden of proof on a Miranda waiver is "great" and "heavy," and the states are free to adopt a standard higher than the preponderance of the evidence.

The majority fails to apply the "clear error" standard for reviewing the trial court's findings of fact, which are entitled to deference, and conducts its own independent review of the facts. Cavanagh would hold that the trial court's findings were not clearly erroneous. There is no authority for the majority's conclusion that only a literal understanding of Miranda is required. Mental illness may be a factor indicating that a suspect cannot understand the rights he is waiving or the consequences of speaking freely to the police, making his Miranda waiver invalid. Defendant's delusions and inability to understand how the Miranda warnings would apply to his own circumstances caused him to confess, and no amount of information or wisdom would have altered his delusional perception of reality. Defendant did not knowingly and intelligently waive his rights.

Reversed judgment of Court of Appeals reversing convictions of second-degree murder and felony firearm; remanded for consideration of unreviewed issues. Case below: unpublished opinion (#172558, 5-7-99).

Defendant was not denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. The United States Supreme Court has not specified the preferred method for measuring whether representation of a distinctive group is fair and reasonable. The majority adopted a case-by-case approach, in which the courts should consider all three methods used by the federal courts; namely, the absolute disparity test, the comparative disparity test, and the standard deviation test. Defendant failed to establish a legally significant disparity under any of these tests.

Moreover, assuming underrepresentation, defendant failed to show systematic exclusion of black jurors from the Kent County Circuit Court jury pool. Defendant did not show how the siphoning of black jurors to district courts affected the circuit court jury pool, and the influence of social and economic factors on juror participation does not demonstrate systematic exclusion. Finally, even if defendant could rely exclusively on statistics, the disparities over time fell far short of those in Duren v Missouri, 439 US 357 (1979).

Justice Cavanagh, joined by Justice Kelly, concurring, would also hold that defendant was not denied his right to an impartial jury from a fair cross section of the community because he did not show systematic exclusion. No individual method should be used exclusive of the others to measure whether representation was fair and reasonable; a case-by-case approach should be used. Under the "absolute disparity" test, the disparity in this case was only 1.28, and courts have held that absolute disparities less than 11.5 per cent do not constitute unfair or unreasonable underrepresentation. However, this test is flawed since a complete exclusion of blacks would result in only a 7.28 disparity.

Using the "comparative disparity" method, the 18 per cent fewer black prospective jurors than could have been expected does not show underrepresentation; comparative disparities of 40 per cent have been held to be borderline. However, where, as here, the distinctive group’s population is small, a small change in the jury pool distorts the proportional representation. Applying the standard deviation test, the representation here was neither unfair nor unreasonable. However, no court has accepted this analysis alone as a determination in Sixth Amendment challenges to jury selection systems. Under the fourth approach taken in People v Hubbard, 217 Mich App 459 (1996), which considers whether the system contains "non-benign" factors, defendant should be given the benefit of the doubt on underrepresentation.

According to Justices Cavanagh and Kelly, the defendant failed to show systematic exclusion. No evidence has shown that district court juries in Kent County contained more, fewer, or an equal number of minority jurors as in the circuit court. The problems of undeliverable and unreturned juror questionnaires, and excusals for lack of childcare or transportation, are not inherent in the particular selection process used in Kent County, but are due to outside forces. The county does not have a constitutional obligation to counteract "private sector influences." Even if defendant could rely on statistics alone, although there was some underrepresentation in five of the six periods surveyed, the disparities were nowhere near as large as those in Duren, and were not "overwhelmingly convincing."

Vacated judgment of Court of Appeals reversing conviction of first-degree criminal sexual conduct; remanded for consideration of remaining issues. Case below: unpublished opinion (#199557, 3-5-99).

The Court of Appeals erred in reversing defendant’s conviction on the basis of a discovery violation. The defense did not sustain its burden to provide factual support for the conclusion that the prosecutor failed to make the evidence, a "wet swab" sample and laboratory report indicating the presence of sperm, available to defendant immediately after the doctor’s disclosure to the prosecutor on the first day of trial. The doctor’s personal, unwritten observations were outside the scope of discovery and were not otherwise discoverable because the evidence was not "exculpatory" under MCR 6.201(B)(1). Moreover, defendant did not argue a violation of the discovery rule at trial or on appeal; he argued only that the evidence should be suppressed based on surprise.

The trial court did not have the duty to sua sponte grant a continuance in response to the newly discovered evidence. Defense counsel elected not to seek a continuance, and, in the absence of a request, the trial court should assume that a party does not desire a continuance. This rule acknowledges the fact that the parties may have strategic reasons for wishing to proceed, and a contrary rule would place trial courts in the difficult position of having to order unrequested delays as a prophylactic measure against reversal.

Any error would have been harmless. A prosecutorial violation of MCR 6.201(A) based on failure to disclose the report would have been nonconstitutional, as would failure to grant a continuance. There was overwhelming evidence of defendant’s guilt apart from the evidence of sperm.

Justice Kelly, joined by Justice Cavanagh, concurring in part and dissenting in part, disagreed with the majority’s conclusion that there was no discovery violation. Once becoming aware of the laboratory report on the morning before the first day of trial, the prosecutor should have turned it over to defendant, as required by MCR 6.201(A)(3). A second violation occurred when the prosecutor failed to turn over the physical sample taken from the victim.

Whether a consitutional due process violation can occur when a prosecutor fails to disclose inculpatory evidence has never been addressed in a definitive manner. Here, the prosecutor’s failure to turn over the sample prejudiced defendant’s opportunity to test the sample and verify the presence of sperm fragments, and its failure to turn over the report denied defendant the opportunity to compare the report with the doctor’s testimony and search for inconsistencies. Justice Kelly would conclude that the error was preserved, constitutional error. However, even under the higher standard, the error was harmless.

Reversed in part, affirmed in part judgment of Court of Appeals; remanded for new trial on charge of prisoner in possession of contraband. Case below: 226 Mich App 681 (1997).

Because defendant, a prison inmate, was advised at a disciplinary hearing, as required by People v Carr, 149 Mich App 653 (1986), that his statements would not be admissible against him at a subsequent criminal trial, and those statements were later used against him, due process requires that his conviction for marijuana possession be reversed. Due process does not require that all authorized government agreements be specifically enforced; due process requires only that the defendant's detrimental reliance be cured. Defendant's statements must be excluded, except for purposes of impeachment or rebuttal, in order to cure his detrimental reliance on the prison officials' promise.

Although defendant failed to object to the use of his statements at trial, plain error occurred which caused prejudice and affected the fairness, integrity, and public reputation of the proceedings.

Although the issue of the validity of the holding in People v Carr, supra, was no longer before the Court, the majority felt obliged to address it since the court might not get another opportunity. The Court of Appeals held in Carr that the Fifth Amendment was violated by forcing inmates to chose between incriminating themselves at a disciplinary hearing and forgoing the right to offer exculpatory or mitigating statements. While a state may not impose substantial penalties because a witness exercises his Fifth Amendment rights, Michigan's prison disciplinary process does not place any direct penalty on an inmate's decision to remain silent. The tactical decision that an inmate must make, while difficult, does not constitute "compulsion" under the Fifth Amendment. Carr is overruled.

Justice Cavanagh, joined by Justice Kelly, dissenting in part, would not reach the issues presented in Carr because those issues were not before the court. The majority's holding leaves no constitutional protections for inmates, who face the significant penalty of being forced to forgo a valuable defense at the disciplinary hearing and face the penalties for prison misconduct. The majority had the obligation to decide whether the protections of Miranda apply in a prison disciplinary hearing, but chose to consider only the portions of Carr that led to its desired result.

The dissenters agreed that because defendant was advised that his testimony at the hearing would not be admissible at trial, elementary notions of due process require that his conviction be reversed, independent of any Fifth Amendment concerns.

Reversed decision of Court of Appeals reversing conviction of first-degree criminal sexual conduct; remanded to Court of Appeals for consideration of remaining arguments. Case below: 236 Mich App 1 (1999).

The trial court did not abuse its discretion in admitting evidence pursuant to MRE 404(b) that defendant sexually assaulted his stepdaughter and his daughters several years previously. The trial court’s initial determination in deciding whether to admit other acts evidence is one of relevance, which is evidence that is material and has probative force. To be material, evidence need not be directed at an element of a crime or an applicable defense; it need only be within the range of "litigated matters in controversy."

Although the prosecutor did not offer them as such, defendant’s other acts were relevant to show defendant’s plan, scheme or system. Logical relevance under this theory is not limited to circumstances in which the charged and uncharged acts are part of a single continuing conception or plot. The necessary degree of similarity is greater than that needed to prove intent, but less than that needed to prove identity. Although the charged and uncharged acts in this case were dissimilar in many respects, they contained common features beyond mere commission of acts of sexual abuse. The victims were similar in age and defendant took advantage of the parent-child relationship.

The evidence was not admissible to prove motive because it was not logically relevant under a theory that it proved defendant’s intent. Criminal sexual conduct is a general intent crime, and accident was not an issue. Neither was the evidence relevant under a theory of absence of mistake since defendant’s theory of defense was not that the complainant mistakenly perceived his actions, but that the entire incident did not take place.

The evidence was not admissible to bolster the complainant’s credibility. Evidence of sexual acts between a defendant and persons other than the complainant is not relevant to bolster the complainant’s credibility because the acts are not part of the principal transaction.

The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The defense contended that the complainant fabricated the entire incident to remove defendant from her life, and the evidence was therefore probative of a disputed element of the offense.

The trial court did not abuse its discretion in admitting evidence of the existence of an agency order prohibiting defendant from having contact with children under the age of seventeen. This evidence was relevant to explain the complainant’s testimony regarding the threat used by defendant in an effort to secure her silence, it explained defendant’s reference to breaking up the family again and the complainant’s delay in reporting the assault, and its probative value was not outweighed by the danger of unfair prejudice.

Justice Cavanagh, joined by Justice Kelly, dissenting, would affirm the decision of the Court of Appeals that the other acts evidence was inadmissible. Defendant’s scheme, plan, or system was not a purpose offered by the prosecutor or ruled on by the trial court, as required by People v Vandervliet, 444 Mich 52 (1993), and subsequent cases. The prosecutor has the burden of articulating a nonpropensity ground for admission, and it is insufficient for the prosecutor, on appeal, to recite purposes that were articulable at trial. It is unfair to the defendant, who is denied the opportunity provided by MRE 404(b)(2) to respond to the prosecutor’s rationale for admission. Vandervliet is rendered a nullity by the majority’s decision, which allows the appellate court, in hindsight, to search for proper purposes.

The majority’s decision that the other acts were admissible to show a plan or scheme is erroneous because there is no proper intermediate inference established by the other acts evidence that is probative of whether the crime occurred. The similarities between the charged and uncharged crimes prove only that defendant acted in conformity with his character to commit similar acts. The evidence does not indicate the existence of a plan, but only a series of similar spontaneous acts which were remote in time. The majority has created a rule that any similarities among successive crimes proves a plan and thus proves that the charged offense was committed.

Michigan Court of Appeals: Selected Published Opinion Summaries

Affirmed convictions of two counts of first-degree criminal sexual conduct and one count of second degree CSC; vacated sentences of life imprisonment and 10 to 15 years in prison.

The trial judge did not abuse her discretion in denying defendant's motion to disqualify her and to have his case assigned to a Wayne Circuit Court Judge pursuant to Administrative Order No. 1995-5. That order was not retroactive to defendant's case (he was arraigned in 1993), Order 1986-1 (which allowed either the Wayne County Circuit Court or Recorder's Court to hear the case) controlled defendant's case, and defendant failed to ask for a circuit court judge at the time of arraignment.

The life sentence was disproportionate and an abuse of discretion. The trial court failed to adequately state reasons for the gross deviation from the sentencing guidelines, and the "draconian" departure was unjustifiable. Defendant, who had no prior criminal history, was not in the most serious class of offenders and his crime was not the most serious with respect to various acts of criminal sexual conduct.

Affirmed convictions on twelve counts of first-degree criminal sexual conduct and one count of kidnapping and sentences of 15 to 30 years in prison; remanded for amendment of judgment of sentence.

The Michigan court system was not the proper forum for defendant to challenge any rights he might have under the Treaty of Extradition between the United States and Canada. Defendant transported his victim into Canada, was convicted there of sexual assault, unlawful confinement, and other offenses, and was extradited to Michigan after he served his prison sentence. The language of the Treaty implies that it is the "requested" country rather than the "requesting country" upon which the Treaty imposes limits. Moreover, a determination of whether extradition was sought for the same offenses for which the Ontario court convicted defendant was a matter of Canadian law.

Defendant's prosecution in Michigan did not violate the double jeopardy prohibition of the Michigan Constitution. The Oakland County charges corresponded to the events that occurred in Michigan exclusively, with the possible exception of the kidnapping. Although the kidnapping charge was presumed to be the same offense as the unlawful confinement charge, the interests of Michigan and Canada were substantially different: the kidnapping conviction required both malicious intent and asportation, neither of which are necessary under Canada's unlawful confinement statute, and the statutes provide widely disparate maximum penalties.

The evidence was sufficient to satisfy the personal injury and mental anguish elements of criminal sexual conduct. Defendant tied the victim's hands, struck her, strangled her, threatened to turn her over to the Mafia, derived amusement from overpowering her, caused her to suffer humiliation, trapped her in a sauna, and conditioned her freedom on performing sexual acts.

Convicting defendant twice, under two alternative theories, for each act of CSC violated double jeopardy. Six of the 12 sentences for CSC I must be vacated.

The prosecution did not deny defendant his constitutional right to a speedy trial by not securing defendant's extradition until after he served his sentence in Canada. The interests of justice do not militate in favor of requiring Michigan to take steps to truncate or interfere with the Canadian court's execution of its own criminal sentence. Moreover, defendant did not claim prejudice or the deprivation of any civil liberties.

The 180-day rule, MCL 780.131; MSA 28.969(1), applies only to persons incarcerated in a "state prison" or a "local facility" and has no application to a prisoner serving a sentence in a foreign country.

Affirmed conviction of assault with intent to commit murder and sentence of 12 to 20 years in prison.

Admission of information contained in an anonymous tip was improper because it was not limited to its proper scope as required by MRE 105. However, the prejudicial effect did not far outweigh its probative value, and its erroneous admission was not outcome-determinative.

The trial court did not abuse its discretion in denying defendant's motion for a lineup where a lineup would not have resolved any "mistaken identification;" one witness, who sat next to defendant, clearly identified him as the assailant.

The photographic lineup was impermissibly suggestive in that the victim was only shown one photograph of defendant, but there was an independent basis for the witness's identification and the trial court's decision to admit the identification was not clearly erroneous.

Defendant was not denied a fair trial by the prosecutor's comments; the prosecutor did not equate defendant to an obviously guilty person, but merely questioned prospective jurors regarding their knowledge of the presumption of innocence and right to trial.

The alleged inaccuracy in the presentence report regarding defendant's employment had no impact on the sentence imposed and any failure to respond was harmless error. A remand would be a waste of judicial resources.

Defendant was not denied due process by the trial court's failure to disclose letters addressed to the court by the victim and his family members. Their content was cumulative to evidence presented at trial. Moreover, trial judges are able to separate the evidence at trial from the subjective requests of victims or their family members.

Judge Whitbeck, concurring, wrote to express the belief that the trial court erred in withholding the letters as the defendant must be given an adequate opportunity to rebut or explain facts introduced for the purpose of sentencing; however, he felt that defendant failed to show that the error was prejudicial.

Affirmed convictions of four counts of felonious assault, and felonious driving.

MCR 6.005(F), which mandates separate counsel for jointly-charged indigent defendants but not for defendants with retained counsel, does not violate equal protection. A defendant who can afford to retain counsel has a constitutional right to the attorney of his choice, unlike an indigent defendant, who has no right to choose and must be protected from conflicts of interest. Thus, the Supreme Court had a rational basis for treating these classes of defendants differently.

Defendant was not denied effective assistance of counsel where he voluntarily agreed to joint representation, his attorney stated the reasons for believing that joint representation would not cause a conflict of interest, and the record does not support defendant's claim that an actual conflict adversely affected his lawyer's performance.

Affirmed trial court order denying prosecutor's motion for instruction on verdict of guilty by mentally ill (GBMI).

The GBMI statute and jury instructions, which place the burden to prove mental illness on the prosecutor, are inconsistent with the amended insanity statute and instructions, which require the defendant to prove legal insanity. Although these statutes relate to the same subject matter and share a common purpose and therefore should be read together in pari materia, there is a glaring, unavoidable, and unresolvable conflict between the two statutes. The doctrine of separation of powers precludes invading the province of the Legislature by inferring that the GBMI statute has been implicitly amended or partially repealed. It is up to the Legislature to resolve the problems caused by the discrepancy between the two statutes.

Affirmed conviction of two counts of delivery of methadone in an amount less than 50 grams and one count of delivery of less than 50 grams of heroin.

The trial court did not err by sustaining the prosecutor's challenge for cause where the venireperson unequivocally stated that he would not be able to find defendant guilty based on a paid informant's testimony. The trial court had the ability to assess from the venireperson's demeanor whether he would be impartial.

The record does not support the conclusion that an "anonymous jury" was impaneled; the jurors were merely referred to by number rather than name and there was no indication that any information about potential jurors was withheld from the parties. Defendant admitted that he had access to the jurors' biographical information in the questionnaires.

Defendant's due process rights were not violated by using juror numbers instead of names at trial. There was no suggestion that defendant's trial was being handled in a special way which might imply that he was dangerous or guilty as charged.

Defendant failed to satisfy the Duren/Hubbard test to determine whether a violation of the fair cross-section requirement occurred in selecting his Kalamazoo County jury. Merely showing one case of alleged underrepresentation does not rise to a general underrepresentation, and defendant failed to demonstrate a problem inherent within the selection process that resulted in systematic exclusion. Defendant also failed to make out a prima facie case under the Fourteenth Amendment either that the system for selecting venirepersons was subject to abuse, or that his racial group was underrepresented over a significant period of time.

Remanded for entrapment hearing, on election fraud charges.

Defendant is entitled to an evidentiary hearing on his claim of entrapment by estoppel, that he is not criminally culpable for election fraud because he relied on another elected official's representation that the charged conduct was legal. Deciding an issue of first impression, this panel held that the procedure for determining a claim of ordinary entrapment applies to a claim of entrapment by estoppel. The defendant must establish by a preponderance of the evidence the following elements: (1) a government official (2) told the defendant that certain criminal conduct was legal, (3) the defendant actually relied on the government official's statements, (4) the defendant's reliance was in good faith and reasonable in light of the identity of the government official, the point of law represented, and the substance of the official's statement, and (5) given the defendant's reliance, the prosecution would be unfair.

Affirmed suppression of evidence and dismissal of charges of delivery of 5 to 45 kilograms of marijuana, maintaining premises for use or sale of marijuana, and conspiracy.

The trial courts erred in finding that the patdown search of defendant was invalid. The officer’s conclusion that his safety was at risk and his decision to conduct the search of defendant for drugs or weapons was properly based on his objective observations of the situation and his extensive experience as a police officer. The officers were responding to a complaint of possible trespass and the driver of the car in which defendant was a passenger was in possession of marijuana.

Although the officer had probable cause to believe that the objects (photographs) he felt in defendant’s pocket were blotter acid, and the plain feel exception authorized their removal, the officer’s further inspection of the photographs (which depicted large quantities of marijuana and led to the search of defendant’s house) was unrelated to the initial justification of the warrantless search. Inspection constituted an unlawful invasion of defendant’s privacy that was unjustified by exigent circumstances or any other lawful basis for the search. All evidence obtained during the search of defendant’s residence was properly suppressed as "fruits of the poisonous tree."

Affirmed conviction of armed robbery.

The evidence was sufficient to support the conviction. Defendant's argument that reliable identification was impossible was abandoned as he cited no authority for this claim. Even if the identification was suggestive and even if defendant had preserved the issue, there was an independent basis for the identification; one witness was a trained police officer, and the other witness observed defendant face-to-face for five minutes and saw him subsequently on three occasions. Any discrepancy between the initial description and defendant's actual appearance went to weight, not admissibility.

Affirmed conviction of failure to stop at a serious injury accident and sentence of 3 to 5 years in prison.

The evidence was sufficient to support the conviction of leaving the scene of a serious injury accident. Defendant was "involved in" the accident because the evidence that he was pushing another vehicle, causing the driver of that vehicle to lose control and collide with the victim’s car, demonstrated that he was connected with the accident in a logical or substantial manner. Defendant’s acquittal of involuntary manslaughter and negligent homicide charges is not inconsistent with the finding that he was involved in the accident. Defendant need not have caused the accident to be involved in it.

Defendant’s sentence of 3 to 5 years in prison was proportionate to the circumstances of the offense and the offender. The trial court considered defendant’s irresponsible conduct and his extensive criminal record, including numerous driving offenses. The new sentencing guidelines had no bearing on defendant’s sentence.

Affirmed convictions of second-degree murder and unauthorized practice of medicine, and sentence of 6 to 20 years in prison.

The evidence was sufficient to support the convictions. Although the experts disagreed, there was sufficient evidence to support the conclusion that the victim died of mixed drug intoxication. Evidence that defendant prescribed huge quantities of medicine, unrelated to any rational medical treatment, that had the risk of interacting with other drugs and which defendant had reason to know would result in an overdose, coupled with defendant’s suspicious behavior, was sufficient to show a wanton and willful disregard of the likelihood that the natural tendency of his behavior was to cause death or great bodily harm. People v Kevorkian, 447 Mich 436 (1994) is distinguishable because defendant was not helping the victim commit suicide, but was providing drugs that the victim apparently believed would improve her health.

The evidence was sufficient to support the conviction for unauthorized practice of medicine. Defendant did not have a valid medical license in Michigan. Although he did have a license in Indiana, the statutory exception allowing out-of-state health professionals to treat Michigan patients from across the border did not apply since he treated Michigan patients who had no connection to an Indiana medical office, and treated patients at his Michigan home.

The trial court did not err in denying defendant’s motion for a new trial based on the great weight of the evidence. Although several witnesses testified that the drugs found in the victim’s body were subject to "postmortem redistribution" (which would cause the drug level in her blood at the autopsy to be much higher than actually present in her blood before death), one expert testified that, based on the absence of any other cause of death, the victim likely died as a result of the drugs. The prosecutor need not prove cause of death with absolute certainty; a medical likelihood suffices. Defendant exhibited a wanton and willful disregard of the likelihood that the natural tendency of his behavior was to cause death or great bodily harm.

The trial court did not err in allowing the prosecutor’s expert to testify concerning the cause of death. There was nothing novel, suspect, or unreliable about the expert’s testimony as to the level of drugs in the victim’s blood. The evidence of possible postmortem redistribution went to the weight, not the admissibility, of the expert’s testimony.

The sentence of 8 to 20 years, which was below the guidelines minimum sentence range of 10 to 25 years, was not based on local sentencing policy and was not an abuse of discretion. In using the guidelines for manslaughter as opposed to murder, the court was determining that this case was not as serious as other second-degree murder cases. The sentence was individualized and the departure properly reflected the circumstances of the case.

Reversed trial court order denying request for statutory interest; remanded for further proceedings.

The trial court erred in finding that claimant was not entitled to receive statutory interest on a judgment ordering plaintiff to return the balance of funds seized 12-years ago under the controlled substance forfeiture statute. The judgment qualifies as a "money judgment" for purposes of the statute as it calls for the payment of money rather than the doing of an act, such as the return of a specific item of personal property. The statute nowhere requires that the recipient be the plaintiff in the underlying action. The purpose of the statute is served by requiring the government to pay interest since the claimant was deprived of the use of funds and had to expend his own resources to oppose the forfeiture.

A remand was necessary to determine how much of the delay in resolving the proceedings may properly be attributed to the appellee, and to calculate the interest accordingly

Reversed circuit court opinion finding MDOC policy Directive 06.05.104 unconstitutional, setting aside defendant‘s 12-month parole violation "sentence," and remanding to the Parole Board for "resentencing."

The circuit court lacked the authority to modify the Parole Board’s decision to reconsider defendant for parole after he served 12 months as a result of his plea of no contest to parole violation. Absent an error which renders the sentence invalid, a circuit court has no authority to modify a sentence which a defendant has begun to serve.

The prosecutor lacked standing to appeal the Parole Board’s decision . The prosecutor’s sole remedy is to appeal the Board’s decision to grant parole under MCL 791.234(7); MSA 28.2304(7); the statute does not extend the prosecutor’s right to appeal to revocation proceedings or to the Board’s decision to reconsider the prisoner’s eligibility for parole again in twelve months.

The trial court erred in finding MDOC policy directive 06.05.104, which states that prisoners denied parole will be re-considered at 12, 18, or 24 months, as determined by the Board, to be an unconstitutional restriction on the Parole Board’s discretion, in violation of the separation of powers clause. It is within the power of the MDOC to implement policy directives for the Parole Board. Because both are part of the executive branch, a separation of powers argument is inapplicable.

Affirmed convictions of three counts of first-degree criminal sexual conduct and two counts of second-degree CSC, for crimes committed in 1985; affirmed sentences of life imprisonment, 40 to 75 years, and 25 to 40 years in prison.

The trial court did not err in finding that the statute of limitations was tolled after defendant moved to Florida in 1987, even though he was living openly in Florida and could have been extradited back to Michigan at any time. The statute, applied as written, does not limit application of the tolling provision only to where a suspect absconded or was not amendable to process.

The tolling provision in MCL 767.24(1); MSA 28.964(1) did not impermissibly infringe on defendant’s constitutional right to travel because it applies only when residency is established in another state, and because it advances a compelling state interest in permitting later prosecutions where the accused no longer lives in the state.

The delay in bringing the charges did not deny defendant due process. Defendant failed to identify any specific prejudice which meaningfully impaired his ability to defend against the charges, other than alleging that witnesses had difficulty recalling certain details. Imperfections of a witness’ memory are insufficient to establish actual and substantial prejudice. Furthermore, there was no evidence that the prosecutor intentionally delayed bringing charges to gain a tactical advantage.

Defendant was not entitled to a new trial because a juror failed to reveal during voir dire that she was present when the prosecutor spoke to her college class and mentioned this case. She did not recall any details and asserted her ability to be fair and impartial. The record did not establish that the juror was excusable for cause or that defendant was actually prejudiced.

Although the trial court erred in concluding that the privileged counseling records of a similar-act witness could have been obtained by defendant with a subpoena, defendant failed to demonstrate a good faith belief that the records contained material information necessary to his defense which would have justified an in camera review of the records. Therefore, any error in relation to the production of the records, or in refusing to strike the testimony of the witness, was harmless beyond a reasonable doubt.

The trial court did not abuse its discretion in admitting similar acts testimony of several witnesses. There was sufficient similarity between the prior acts to establish a plan or scheme by defendant, the testimony was offered for a proper purpose under MRE 404(b), it was relevant to an issue of consequence, and the probative value was not substantially outweighed by unfair prejudice.

Defendant’s sentences do not violate the principle of proportionality. The trial court provided sufficient and valid reasons for departure: defendant abused his position as a teacher to sexually abuse numerous vulnerable teenage students over a course of years, and the victim in this case experienced extreme emotional harm.

Affirmed circuit court order reversing district court’s dismissal of CSC III charge.

The evidence that defendant disguised himself and took advantage of the complainant’s misidentification of him as her fiance to induce her to submit to his sexual advances was sufficient to establish the "coercion by concealment or surprise" element of CSC III. Therefore, the circuit court did not err in reversing the district court’s refusal to bind defendant over on the CSC III charge, and the district court did not abuse its discretion in binding defendant over on CSC IV based on the same evidence of coercion.

Reversed conviction of unarmed robbery; remanded for entry of conviction of larceny in a building.

The prosecutor failed to present sufficient evidence of unarmed robbery. Defendant walked out of a store without paying for merchandise, and used force against a security guard in an attempt to get away; however, his escape attempt was unsuccessful. The evidence did not support a conviction of unarmed robbery because defendant never completed the larcenous transaction. Because larceny in a building is a cognate lesser offense, and defendant admitted taking property from the store, there was sufficient evidence of larceny in a building.

Defendant failed to show that his trial counsel acted unreasonably in failing to challenge an allegedly biased juror.

The trial court properly considered defendant’s age in terms of his extensive record and admitted drug abuse in sentencing defendant to 5 to 15 years in prison. The presentence report should be corrected to reflect 2, rather than 4, prior misdemeanor convictions.

Reversed trial court order reducing conviction of first-degree felony murder to second-degree murder; reinstated felony murder conviction.

As a matter of first impression, assault with intent to rob while unarmed (AWIRU) is a predicate felony under the felony murder statute. The fact that AWIRU is found in the penal code in the chapter on assaults (which are necessarily merged into the homicide itself) is not dispositive; the essence of the offense is an intent to commit robbery, and robbery, while an assaultive offense, is a predicate offense of felony murder. In order to convict defendant of AWIRU, the jury necessarily found that defendant intended to commit a robbery. Moreover, the Legislature could not have intended that the crime of attempted unarmed robbery, but not AWIRU, the more dangerous crime, serve as the basis for felony murder.

Affirmed convictions of felony murder, armed robbery, and felony firearm.

Even if defense counsel was ineffective in failing to object to a witness’s reference to a book of photographs which he looked through at the police station, defendant cannot show that the error prejudiced him. The witness never referred to a "mug shot" or "booking photograph," or any other language intimating that the pictures were taken in a previous criminal investigation. The testimony did not inform the jury of any "prior bad acts."

The trial court did not err in allowing a codefendant to testify in exchange for a plea bargain. An offer of leniency is not a ‘fee" prohibited by MCL 775.7; MSA 28.12444. The text of the statute refers only to monetary payments and not to intangible benefits that a witness might receive from testifying. Even if the plea bargain was a fee," the statute does not contemplate suppression of the witness’s testimony as a remedy. Allowing testimony in exchange for a plea bargain or sentence agreement is a common practice long sanctioned by the courts. The prosecutor disclosed the plea bargain, and the defense had the opportunity to cross-examine the witness. Moreover, there was other circumstantial evidence of guilt.

Defendant’s convictions of both armed robbery and felony murder during the course of an armed robbery did not violate double jeopardy where there were two robbery victims. The trial court could have made the instructions clearer, but fairness, not perfection, is the standard for jury instructions.

Affirmed order granting summary disposition in favor of defendant.

The statute giving the parole board the authority to discharge paroled prisoners does not unconstitutionally infringe on the Governor’s power to pardon prisoners or commute sentences. The Legislature and the Governor share commutation power under the state constitution. Const 1963, art 4, § 45, authorizes the Legislature to provide for the release of prisoners detained under indeterminate sentences.

The trial court did not err in ruling that "release" from detention is indistinguishable from "discharge" of a sentence. If the framers of the constitution meant only the period of incarceration to be indeterminate, they would not have expressly authorized the Legislature to impose indeterminate sentences.

The statute authorizes discharge of a sentence even where a prisoner violated the conditions of a previous parole. The Legislature intended that a prisoner’s compliance with the terms of each parole order be considered independently, and the statute only requires that the parolee perform all the conditions of parole for the period of time fixed in the parole order.

Michigan Court of Appeals: Selected Unpublished Opinion Summaries

Affirmed circuit court order granting motion to quash.

The circuit court did not clearly err in finding that defendant's due process rights were violated where the prosecutor subjected defendant to repeated preliminary examinations in order to engage in impermissible judge-shopping. The prosecutor dismissed the charges when the first magistrate overruled his objection to defendant's cross-examination of the arresting officer, did not present any additional evidence at the second preliminary examination (held before a different magistrate), and did not cite any legal authority for his argument to limit cross-examination.

Vacated conviction of felonious assault; affirmed convictions of armed robbery and felony firearm.

Punishment under both the armed robbery and felonious assault statutes for an assault arising out of the same episode violates the federal double jeopardy protection against multiple punishments for the same offense because felonious assault is a necessarily included lesser offense of armed robbery.

Multiple punishments under both statutes for the same criminal act violate the state constitutional double jeopardy guarantee. Both statutes are aimed at similar conduct, violence against persons, and the armed robbery statute builds on the felonious assault statute, providing additional punishment for the aggravating circumstance present in armed robbery, thus indicating that the Legislature did not intend multiple punishments.

Reversed conviction of second-degree criminal sexual conduct; remanded for new trial.

The trial court abused its discretion in excluding alibi testimony. Although defendant failed to comply with the notice requirement, the appropriate factors, considered as a whole, militate in favor of introduction of the evidence. First, the people were not prejudiced by the lack of notice where the prosecutor was aware of the witnesses 6 months before trial, and anticipated that defendant would raise an alibi defense. Second, defendant's reason for failing to give notice (his belief that the witnesses were not alibi but res gestae witnesses) was reasonable, and there was no attempt to manufacture a late-hour defense to gain a tactical advantage. Third, the prejudice could have been mitigated by allowing the prosecutor extra time to investigate, and by effective cross-examination. Fourth, the case presented a credibility contest. And fifth, the excluded witnesses would have offered more than mere alibi testimony.

Defendant was prejudiced by the denial of his right to present witnesses in his defense. He was precluded from presenting evidence with respect to the time-line to corroborate his theory that it would have been impossible for him to be at the site of the attack when it took place.

The error resulted in a miscarriage of justice. The excluded testimony would have raised at least a reasonable doubt with respect to whether defendant could have been at the site of the assault when it took place; therefore, it is more probable than not that the jury would have reached a different conclusion if it had heard the testimony, especially where the eyewitness identifications were unreliable and there were numerous inconsistencies in the testimony.

Judge Meter, dissenting, would find that the error did not result in a miscarriage of justice in light of the fact that defendant could have committed the assault even under the proffered witnesses' time frame, the strong identification testimony by 3 witnesses, and defendant's behavior after the assault.

Affirmed convictions of voluntary manslaughter and felony firearm; remanded for resentencing.

The trial court was precluded from sentencing defendant as an habitual offender because the notice of enhancement was not timely. Counsel did not waive the issue by raising it at sentencing but indicating that he would leave the question "for the court of appeals."

Affirmed trial court's dismissal of charges of CCW and OUIL.

The officer did not have the authority to arrest defendant outside his jurisdiction. The statute allowing prosecution in either county if the offense is committed within one mile of the border between them, MCL 762.3(1); MSA 28.845(1), does not apply to police authority to stop, search, or arrest. The officer was not engaged in a "joint law enforcement" effort and therefore acted in violation of MCL 764.2a; MSA 28.861(1). Where defendant was stopped for an "equipment violation," the officer did not have probable cause to believe that a felony had occurred in his presence, and therefore did not have the authority to arrest defendant under MCL 764.16; MSA 28.875.

The trial court's application of the exclusionary rule was proper because, where probable cause did not exist to arrest defendant for the commission of a felony, the arrest was constitutionally invalid.

Reversed plea-based conviction of two counts of attempted third degree CSC; remanded to allow defendant to withdraw plea.

The trial court abused its discretion in denying defendant's motion to withdraw his plea of no contest. Although his claimed ignorance of deportation consequences by itself was not sufficient, other factors, including his claim of innocence and the fact that he pled no contest instead of guilty, constitute fair and just reasons for withdrawal; although the delay might cause difficulty in obtaining witnesses, the prosecutor did not establish substantial prejudice.

Affirmed conviction of possession with intent to deliver marijuana; remanded for preparation of sentencing information report.

Although defendant lacks standing to challenge the trial court's failure to prepare an SIR, and it will have no effect on his sentence, a remand was necessary for the "administrative task" of preparing an SIR.

Affirmed conviction of first-degree home invasion and second-degree CSC; remanded for resentencing.

Defendant's 10 to 20-year sentence for home invasion was not proportionate to the seriousness of the offense and the offender. Although the trial court relied on defendant's 25-year history of abusing alcohol and minimal potential for rehabilitation, defendant has no history of violent or criminal behavior, and it does not appear that he presents a danger to the community.

Judge O'Connell, dissenting, would find the sentence proportionate.

Affirmed order granting motion to quash charge of making a false bomb report.

The circuit court did not err in dismissing the charge. The statute concerns false reports related to a bombing or threat to bomb, and defendant's conduct was a threat itself, not a false report of a threat. There is doubt regarding whether defendant's act was covered, and any doubt must be resolved in favor of the defendant.

Affirmed convictions of first-degree criminal sexual conduct, second-degree CSC, and assault with intent to commit CSC involving penetration; remanded for resolution of challenges to presentence report.

The trial court failed to resolve defendant's challenges to comments in the PSIR regarding his "dark and predatory" personality, it cannot be said that this error was harmless, and remand for clarification was necessary. If the disputed information affected the sentences, defendant must be resentenced.

Vacated conviction of escape from jail through violence; affirmed remaining convictions, including conviction for jail escape.

The confusion created by the prosecutor's argument and the trial court's instructions based on a different section of the statute (escape using violence) than alleged in the information (assaulting a jail employee), while defense counsel argued on the charged section, raised double jeopardy concerns and mandated dismissal of the escape through violence conviction.

Affirmed order quashing conspiracy to possess with intent to deliver 225-650 grams of cocaine.

The evidence at the preliminary examination was insufficient to show an agreement between defendants to possess with intent to deliver the requisite quantity of cocaine. The conversation between them regarding whether to give consent to search the trunk of their vehicle did not raise a reasonable inference of an agreement to commit the offense. It is impermissible to pile one inference on top of another, based on identical evidence.