Lawrence Katz, attorney for Defendant-appellant.

The Court granted leave to appeal to the defendant and ordered the parties to brief the following issues: whether the victim's identifications of defendant were testimonial, whether, if the statements were testimonial, they constituted dying declarations, and whether the Sixth Amendment incorporates an exception for testimonial dying declarations. The Court invited amicus briefs. The Court of Appeals held that the victim's statements identifying defendant, made while he was clearly dying of multiple gunshot wounds, were non-testimonial and, alternatively, that, as dying declarations, the statements posed no conflict with the Sixth Amendment. The Court of Appeals relied on the reasoning of the California Supreme Court in finding that, under Crawford, “dying declarations are admissible as an historical exception to the Confrontation Clause." Case below: ___ Mich App ___ (#265778, 04-05-07).

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David Dodge, attorney for Defendant-Appellant.

The Court granted leave to the defendant on issues involving the rape-shield statute, MCL 750.520j. Issues to be briefed are as follows:

• whether the rape-shield statute bars the admission of evidence of past sexual assault;
• whether the statute bars the admission of evidence of imaginary sexual activity;
• whether the statute bars the admission of unsubstantiated allegations of prior sexual assault;
• what standards a trial court should use to determine whether the statute applies to otherwise admissible evidence involving unsubstantiated allegations of sexual assault or evidence of imaginary sexual activity;
• which party has the burden of proof;
• whether barring the admission of evidence of actual past sexual assault in this case would constitute a denial of the constitutional right to confrontation or right to present a defense; and
• whether the trial court erred in barring the admission of evidence regarding a questionnaire filled out by the complainant.

Neil C. Sabo, attorney for defendant-appellant.

Leave was granted to the defendant limited to issues involving the scope of “predatory conduct” defined in Offense Variable 10 of the sentencing guidelines. The parties were directed to address whether predatory conduct is limited to exploitation of a “vulnerable victim,” and, if so, what factors may be considered in determining whether a victim is vulnerable. The Court of Appeals held that the trial court did not clearly err in scoring 15 points under OV 10 because defendant's acts satisfied the criteria for predatory conduct: defendant and his co-conspirators selected a time, place, and manner in which to commit a robbery “to maximize the vulnerability of the victims and minimize their chances of getting caught.” Case below: unpublished opinion (#259532, 7-25-06).

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Robin Lerg, attorney for defendant-appellee.

The Michigan Supreme Court granted leave to the prosecutor and ordered the parties to include among the issues to be briefed: 1) whether trial counsel's failure to respond to the prosecutor's interlocutory application for leave to appeal should be viewed as structural error under United States v Cronic, 466 US 648 (1984), or whether it should be reviewed for prejudice under Strickland v Washington, 466 US 668 (1984); and 2) whether, under either standard, the appropriate remedy is reversal, or appellate review of the interlocutory motion with adequate legal representation. The Court of Appeals held that trial counsel was ineffective in failing to oppose the prosecution's application for leave to appeal the trial court order suppressing evidence. The Court further held that an interlocutory appeal constitutes a critical stage of the criminal proceedings, and that counsel's failure to file a responsive brief amounted to a complete denial of counsel during a critical stage, requiring automatic reversal. Case below: published opinion (#258397, 7-26-06).

The Supreme Court also directed the Court of Appeals, in all cases involving preconviction appeals by the prosecution, to inform defense counsel in writing that they must file a timely response to the application.

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Leave was granted to the prosecutor, and the parties were directed to include among the issues whether the police conduct constituted a constructive entry into the defendant’s home. The Court of Appeals held that the trial court did not err in finding that the police coerced defendant into leaving his apartment, thus exposing himself to a warrantless arrest. Defendant was on tether and told the officers he did not want to leave the apartment, but they persisted in telling him to come out and defendant felt threatened. The Court of Appeals found that this conduct could reasonably be taken to constitute actual coercion and upheld the suppression of evidence seized as the result of the arrest. Case below: unpublished opinion (#259122, 04-4-06).

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The defendant's application for leave to appeal was granted, and the Court ordered the parties to include briefing of the following sentencing issues: 1) whether an intermediate sanction constitutes a statutory maximum sentence under Blakely v Washington, 524 US 296 (2004), making it necessary for the facts supporting a departure to be decided by a jury or admitted by the defendant; 2) whether a defendant's failure to challenge the accuracy of the facts in the presentence report constitutes an admission of those facts; 3) whether the defendant in this case either admitted the facts or waived the claim that he did not admit the facts for purposes of sentencing when both he and his attorney stated that they were not contesting anything in the presentence report. Case below: court of appeals order (#268031, 2-24-06).

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The Court granted leave to appeal to the defendant and directed the parties to brief the issue of whether an intermediate sanction constitutes a statutory maximum sentence under Blakely v Washington, 524 US 296 (2004), making it necessary for the facts supporting a departure to be decided by a jury or admitted by the defendant where the defendant is being sentenced for a violation of probation. Case below: court of appeals order (#270886, 7-18-06).

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The Court granted leave to the prosecutor and directed the parties to brief the following issues: 1) whether the exclusionary rule applies to fruits of a confession where retained counsel had abandoned the defendant during the interrogation in violation of United States v Cronic, 466 US 648 (1984), and 2) whether the inevitable discovery doctrine applies and, if so, 3) whether the exclusionary rule should be applied narrowly when the information derived from the confession is the identity of witnesses. Defendant's attorney had advised him to talk to the police to negotiate a plea, but did not accompany Defendant during the interview. At his first trial, his statements were admitted against him, and the witnesses were allowed to testify. The Michigan courts affirmed his conviction and the United States District Court reversed, finding that Defendant's statements were elicited in violation of his right to counsel. On remand, the trial court ruled the statements admissible for impeachment purposes, but prohibited the testimony of two witnesses whose identity was procured during the interrogation unless the prosecution showed that these witnesses were, in fact, discovered from an independent source. The Court of Appeals affirmed the ruling suppressing the statements as substantive evidence but allowing them for impeachment, but held that the prosecution need only show that the witnesses would have been inevitably discovered through alternate means. Case below: 270 Mich App 172; 715 NW2d 341 (2006).

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John F. Royal attorney for Defendant-Appellant.

The Court granted the defendant's application for leave to appeal, limited to two issues: (1) whether the sentencing guidelines provisions which require that offense variables be scored the same for all offenders in multiple offender cases apply to the scoring of codefendants for different offenses; and (2) whether points scored for one offense should be scored for all offenses in a criminal transaction. The defendant was tried with two codefendants for armed robbery charges, but he was convicted of larceny from a person and conspiracy to commit larceny. The Court of Appeals affirmed the defendant’s sentences, stating that “The plain language of the statutory guidelines controls sentence guidelines scoring of multiple offenders even when they are convicted of different offenses. Morson [People v Morson, 471 Mich 248; 685 NW2d 203 (2004)], supra at 259-260, n 11.” The Court of Appeals also rejected Johnston’s argument that he should not have been given points under OV 9 because he did not intend there be two or more victims. Case below: unpublished opinion (#254284, 10-27-05).

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Karri Mitchell, attorney for Claimant-Appellant.

Leave to appeal was granted to the Claimant on the issues of: 1) whether to apply the exclusionary rule in a forfeiture proceeding in which the property has been illegally seized, and 2) whether In re Forfeiture of United States Currency, 166 Mich App 81; 420 NW2d 131 (1988), was correctly decided. The Court of Appeals followed the decision in the cited case that even when property is illegally seized, it may still be forfeited as long as probable cause for its seizure can be supported with untainted evidence and any illegally seized property is excluded from the forfeiture proceeding. The Court of Appeals in In re Forfeiture of $180,975.00 found probable cause where the claimant had a large amount of cash in her rental car as she traveled west on I-94, a “pipeline” for narcotic sales. Case below: unpublished opinion (#249699, 12-28-04).

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Patrick Ehlmann for Defendant-Appellee.

The Court granted leave to the prosecutor, limiting the issues to whether a defendant must keep or maintain a vehicle used for selling a controlled substance “continuously for an appreciable period of time,” as required by People v Griffin, 235 Mich App 27, 32-33 (1999), and whether the evidence was sufficient to sustain the conviction. The Court of Appeals held that the evidence was insufficient, and relied on Griffin in holding that, in order to find the defendant guilty of maintaining a drug vehicle, the prosecutor had to establish that the defendant made his van available for selling or keeping drugs for an appreciable period of time. The prosecution argued, in its application for leave, that the Court of Appeals clearly erred in following Griffin, and that there is nothing in the plain reading of the statute to suggest the Legislature intended to incorporate an “appreciable period of time” as an element of proof for a conviction. The Supreme Court ordered that this case be argued with People v Wright, unpublished opinion (#130295, 11-29-05). Case below: unpublished opinion (#258336, 2-23-06).

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Patrick Ehlmann for Defendant-Appellee.

The Court granted leave to the prosecutor, limiting the issues to whether a defendant must keep or maintain a vehicle used for selling a controlled substance “continuously for an appreciable period of time,” as required by People v Griffin, 235 Mich App 27, 32-33 (1999), and whether the evidence was sufficient to sustain the conviction. The Court of Appeals held that, although the defendant possessed drugs and a scale in a car on one occasion, the evidence did not show that the defendant controlled the car for the purpose of keeping or selling drugs continuously for an appreciable period of time. In its application for leave to appeal, the prosecution argued that Griffin represents a rule that is “too rigid and should be examined by this Court and subsequently overruled.” The Supreme Court ordered that this case be argued with People v Thompson, unpublished opinion (#130295, 11-29-05).

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Michael J. McCarthy, attorney for Defendant-Appellee.

The Court granted the prosecutor's application for leave to appeal and directed the parties to include among the issues to be briefed: 1) whether Blockburger v Unites States, 284 US 299; 52 SCt 180; 76 LEd 306 (1932), or People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), sets forth the proper test to determine when multiple punishments are barred on double jeopardy grounds, and 2) whether the defendant's convictions of armed robbery and felony murder based on a predicate felony of larceny violated double jeopardy under either Blockburger or Robideau. The Court of Appeals panel (Whitbeck, Talbot, Murray) rejected the prosecutor's argument that it was unnecessary to vacate defendant's armed robbery convictions because the predicate felony was larceny. The Court also stated, in a footnote, that it agreed with Justice Corrigan's dissent in People v Curvan, 473 Mich 896; 703 NW2d 440 (2005), that felony-murder is a distinct category of murder and not an enhanced form of robbery. Case below: unpublished opinion (#257353, 12-27-05).

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Leave was granted to the prosecutor. The Supreme Court did not state the issue[s] to be addressed. The Court of Appeals held that the trial court erred in convicting defendant, who was charged with first-degree CSC, of the uncharged offense of CSC II, finding that CSC II was a cognate, not a necessarily included, lesser offense of CSC I (it is possible to commit CSC I without first having committed CSC II). The Court of Appeals rejected the prosecutor's argument that the holding of Cornell [People v Cornell, 466 Mich 335 (2002)] does not apply to crimes specifically divided into degrees. Case below: unpublished opinion (#248094, 1-13-05).

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The Supreme Court granted the prosecutor's application for leave to appeal, but directed the parties to include among the issues whether the prosecution is an “aggrieved party” within the meaning of MCR 7.203(A) in light of the fact that the Court of Appeals affirmed the defendant's conviction. The defendant was charged with CSC I. The Court of Appeals held that the trial court did not err by allowing the prosecution to amend the felony information to include a charge of CSC III, and by instructing on the jury on that offense, because all the elements of CSC III were proved at the preliminary examination and trial without objection. Judge O'Connell, concurring, urged the Supreme Court to reevaluate its decision in People v Cornell, 466 Mich 335 (2002). Case below: 264 Mich App 321 (2004).

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The Court granted leave to the prosecutor and did not direct the parties to include any specific issue(s). However, the Court ordered that the case be submitted and argued with People v Derror, #129269.

In Derror, the Court granted leave to the prosecution to decide whether carboxy THC is a schedule 1 controlled substance within the meaning of MCL 257.625 (8), and whether, in a prosecution under MCL 257.625 (4)(5) and (8), the prosecutor must prove beyond a reasonable doubt that the defendant knew the ingestion of the controlled substance may cause intoxication. The Court of Appeals held that carboxy THC, a metabolite of a schedule 1 controlled substance, marijuana, is not itself a schedule 1 controlled substance. It has a similar chemical structure to THC, but is created during the body's metabolism of that substance and is therefore a natural, rather than a synthetic, byproduct of THC. Carboxy THC is not part of the actual marijuana plant, nor is it a compound or mixture of it. The Court of Appeals also held that the trial court in Kurts erroneously found that a jury could not find beyond a reasonable doubt that defendant had THC present in his body at the time of the traffic stop. The Court stated that, according to the testimony at trial, the presence of carboxy THC in a person's blood conclusively establishes the prior ingestion of THC. Case below: People v Delores Marie Derror; People v Dennis Wayne Kurts (On Reconsideration) 268 Mich App 67 (2005).

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The Court granted leave to the prosecution to decide whether carboxy THC is a schedule 1 controlled substance within the meaning of MCL 257.625(8), and whether, in a prosecution under MCL 257.625(4)(5) and (8), the prosecutor must prove beyond a reasonable doubt that the defendant knew the ingestion of the controlled substance may cause intoxication. The Court of Appeals held that carboxy THC, a metabolite of a schedule 1 controlled substance, marijuana, is not itself a schedule 1 controlled substance. It has a similar chemical structure to THC, but is created during the body's metabolism of that substance and is therefore a natural, rather than a synthetic, byproduct of THC. Carboxy THC is not part of the actual marijuana plant, nor is it a compound or mixture of it. Case below: People v Delores Marie Derror; People v Dennis Wayne Kurts (On Reconsideration) ___ Mich App ___ (#258346; 259315, 9-6-2005).

Defendant's application for leave to appeal as cross-appellant was denied. The case was ordered to be submitted with the case of People v Kurts (#129364, 10-19-05).

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Leave was granted to the prosecutor, and the parties were directed to brief the following issues: (1) whether dismissal is the proper remedy for the denial of an independent chemical test in violation of MCL 257.625a(6)(d); and (2) whether the Court's decision in People v Koval, 371 Mich 453 (1963), was correctly decided. The Court of Appeals affirmed the trial court order dismissing charges of OUIL or operating a motor vehicle with an unlawful bodily alcohol level, second offense. The Court of Appeals found that the police failed to accommodate defendant's reasonable request for transportation to a local facility of his choice, that the defendant was not required to accept transportation to an independent facility of the officer's choice, and that dismissal was the proper remedy. The Court rejected the prosecutor's argument, based on People v Dicks, 190 Mich App 694 (1991), that the remedy should be suppression of the police-administered test results, not dismissal of the charges, finding Dicks to be distinguishable. The Court of Appeals did not address People v Koval, supra, in its opinion. [In Koval, the Supreme Court held that the failure of the police to inform a motorist of his right to take a blood test was improper, and required reversal of his conviction.] Case below: unpublished opinion (#255416, 2-8-05).

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Leave to appeal was granted to the prosecution and the parties were directed to brief the following issues: (1) whether each of the victim's three hearsay statements were “testimonial” and inadmissible under Crawford v Washington, 541 US 36 (2004); (2) if so, whether Crawford should be applied retroactively; (3) if not, whether any of the statements were admissible as excited utterances; and (4) if there was error under Crawford, whether it was harmless beyond a reasonable doubt. The Court ordered that this case be submitted together with People v Walker (#128515).

The Court of Appeals found that Crawford applied retrospectively to all cases pending on direct review or not yet final. The Court held that the victim's first statement, to her neighbor, was not testimonial and was properly admitted as an excited utterance. However, the subsequent statements, one to a police officer and the other to a forensic nurse, were testimonial, and the prosecution did not establish that the errors were harmless beyond a reasonable doubt, according to the Court of Appeals. Case below: unpublished opinion (#248038, 11-4-04).

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Leave to appeal was granted to the defendant and the parties were directed to brief the following issues: (1) whether each of the victim's hearsay statements were “testimonial” and inadmissible under Crawford v Washington, 541 US 36 (2004); (2) if so, whether Crawford should be applied retroactively; (3) if not, whether any of the statements were admissible as excited utterances; and (4) if there was error under Crawford, whether it was harmless beyond a reasonable doubt. The Court ordered that this case be submitted together with People v Mileski (#127457, 6-17-05).

The Court of Appeals held that the trial court did not err in admitting the assault victim's statements to her neighbor and to the police as excited utterances. The victim was still under the stress of the event; she escaped within two hours of the last of several beatings and was crying and hysterical when she asked her neighbor to call 911 and when the police officers arrived. There was nothing to suggest that she had time for "reflective fabrication" according to the Court of Appeals.

The Court of Appeals further held that the victim's statements were not inadmissible under Crawford v Washington, 541 US 36 (2004), because they were not testimonial statements. The Court concluded that the victim's statements to her neighbor and the repetition of her statements to responding police officers were spontaneous pleas for help, not statements made for the investigation of a crime. The Court rejected the definition of testimonial hearsay made by the Sixth Circuit in United States v Cromer, 389 F3d 662 (CA 6, 2004), as too expansive, and declared that it would not rely on Cromer to "rewrite the rules of evidence" and extend Crawford to excited utterances. Case below: 265 Mich App 530 (2005).

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Neil Leithauser for Defendant-Appellee.

The prosecutor's application for leave to appeal was granted. The parties were directed to include among the issues: (1) the elements of accomplice liability under MCL 767.39; (2) whether intent to cause great bodily harm is sufficient to support a conviction for aiding and abetting second-degree murder. The Court referred the parties to People v Langworthy, 416 Mich 630 (1982) and People v Kelly, 423 Mich 261 (1985) (cited by the Court of Appeals). Case below: unpublished opinion (#237036, 4-29-04).

The Court of Appeals reversed the defendant's conviction of second-degree murder and remanded for entry of a conviction of assault with intent to cause great bodily harm less than murder. The Court held that defendant could not be properly convicted of second-degree murder as an aider and abettor on the factual findings made by the judge, sitting as finder of fact. The judge found that defendant possessed only the intent to inflict great bodily harm by beating the victim. However, the cause of death was not injuries inflicted during the assault, but by a gunshot wound inflicted by the codefendant after defendant had fled the scene. The judge also found that shooting the victim was beyond the scope of what defendant agreed or intended to have happen. Thus, the judge did not find a necessary element of aider and abettor liability: that the acts committed by defendant, pursuant to the plan to inflict great bodily harm, were committed with the intent to aid the other person in killing the victim. The Court of Appeals found that the trial judge's finding of guilt under the great bodily harm prong of second-degree murder constituted an implicit rejection of intent to kill or wanton and willful conduct, and amounted, as a matter of law, to acquittal of aiding and abetting an intentional killing.

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Leave was granted to the defendant, following oral argument on the application for leave to appeal, and the parties were directed to include among the issues: (1) whether admission of a witness's statements to the police was error in light of Crawford v Washington, 541 US 36 (2004) and, if so, whether Crawford should be applied retroactively; (2) whether the trial court erred when it applied the rape-shield statute to prevent defendant from presenting testimony concerning the complainant's prior false allegations of sexual abuse against another; (3) whether the prior false allegations constituted “specific instances of the victim's sexual conduct;” (4) what procedural and evidentiary requirements must be met to prove that the allegations were false; and (5) whether any evidentiary or constitutional errors were harmless. The Court of Appeals issued its decision before Crawford was decided and held that the unavailable witness's statement to the police six hours after he observed his 9-year old son engaged in a sex act with defendant was admissible as an excited utterance. The court found that the witness was still under the stress of the startling event; he was crying and his statement was not made as a result of questioning by the police officer. The Court of Appeals also held that the statement was admissible under the catch-all exception to the hearsay rule. With regard to the prior false allegations, the Court of Appeals found that the trial court erred in excluding the evidence under the rape shield statute, but that the defendant failed to offer any concrete evidence to establish that the victim made prior false allegations. The Supreme Court invited amicus briefs from the Criminal Defense Attorneys of Michigan, the Prosecuting Attorneys Association of Michigan, and any other interested parties. Case below: unpublished opinion (#242050, 10-21-03).

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The Court granted leave to appeal, limited to the issue of whether Blakely v Washington, ___ US___;124 SCt 2531; 159 LEd2d 403 (2004) and United States v Booker, ___ US___; 125 SCt 738; 160 LEd2d 621 (2005), apply to Michigan's sentencing scheme. Case below: 264 Mich App 77 (2004). In a footnote, the Court of Appeals cited as binding the footnote in People v Claypool, 470 Mich 715 (2004), stating that Blakely does not affect Michigan's sentencing system. Case below: 264 Mich App 77.

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Timothy K. Morris for Defendant-Appellant.

The Supreme Court granted leave to the prosecutor and directed the parties to include the following issues: (1) whether the plain language of the murder statute, MCL 750.316, permits a conviction for felony murder in the perpetration of a home invasion where the homicide occurs several miles away from the dwelling and several minutes after the defendant has left the dwelling; and (2) whether, under the separation of powers doctrine, the Court of Appeals had the authority to direct the circuit court to limit the charges on retrial to those found proper by the Court of Appeals. The defendant was fleeing from the police when he collided with the victims’ vehicle, some 20 minutes after the home invasion. The Court of Appeals found that their deaths were not a part of the "continuous transaction of or immediately connected to the home invasion." Rather, the Court of Appeals concluded, their deaths were immediately connected with the defendant’s act of fleeing and eluding, which is not an enumerated felony upon which a conviction for felony murder may be based. The Court of Appeals remanded for trial on the charges of fleeing and eluding and second-degree murder. Judge Meter dissented dissent from the majority’s conclusions with respect to the felony murder issue. Case below: unpublished opinion (# 245012, 8-17-04).

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The Court granted leave to appeal in this case and in People v Schaefer, to reconsider the opinion in People v Lardie, 452 Mich 231 (1996), and directed the parties to include among the issues: (1) whether the “substantial cause” language in Lardie is consistent with the statute, MCL 257.625(4); (2) whether the statute's requirement that the prosecutor establish that defendant's operation of the motor vehicle causes the death of another person requires the prosecutor to establish that the defendant's operation of the vehicle was affected by his intoxicated state; (3) whether the statute obligates the prosecutor to show that the defendant's driving was a proximate cause of another person's death; (4) whether it is sufficient that the prosecutor establish only that the defendant decided to drive while intoxicated and that a death resulted; and if so, (5) whether the statute violates the equal protection clause. The Court of Appeals held that the evidence was insufficient to bind defendant over on either involuntary manslaughter or OUIL causing death. There was no evidence that defendant could have avoided striking the victim with his automobile by using ordinary care and diligence; had defendant been sober and driving the speed limit, he could not have avoided the accident, the court said. Similarly, the prosecutor failed to present sufficient evidence that defendant's intoxicated driving was a substantial cause of the victim's death, as required by People v Lardie, 452 Mich 231 (1996), held the Court of Appeals. Case below: unpublished opinion (#253261, 8-10-04).

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The Court granted leave to appeal in this case and in People v Large, to reconsider the opinion in People v Lardie, 452 Mich 231 (1996), and directed the parties to include among the issues: (1) whether the “substantial cause” language in Lardie is consistent with the statute, MCL 257.625(4); (2) whether the statute's requirement that the prosecutor establish that defendant's operation of that motor vehicle causes the death of another person” requires the prosecutor to establish that the defendant's operation of the vehicle was affected by his intoxicated state; (3) whether the statute obligates the prosecutor to show that the defendant's driving was a proximate cause of another person's death; (4) whether it is sufficient that the prosecutor establish only that the defendant decided to drive while intoxicated and that a death resulted; and if so, (5) whether the statute violates the equal protection clause. The Court of Appeals held that the trial court failed to instruct the jury that, in order to find defendant guilty of OUIL causing death, it had to find that defendant's driving under the influence was a substantial cause of the victim's death. The instruction that defendant had to have caused the death by operating the vehicle was not sufficient; it failed to cover the causation element as set forth in People v Lardie, 452 Mich 231 (1996), concluded the Court of Appeals. Case below: unpublished opinion (# 245175, 3-25-04).

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The Court granted leave to the prosecutor and directed the parties to include the issue of whether MCL 771.4, which addresses sentences imposed following the revocation of probation, permits a trial court to find that the conduct giving rise to the probation violation constitutes a substantial and compelling reason for departure. MCL 771.4 states that "the court may sentence the probationer in the same manner and to the same penalty as . . . if the probation order had never been made." The Court of Appeals held that the legislative guidelines apply to all enumerated felonies committed on or after January 1, 1999, regardless of whether the sentence is imposed after a probation violation, and granted a resentencing. The Court further held that, since neither PRV 6 nor PRV 7 address the conduct leading to the probation violation, that the trial court may consider the seriousness and severity of the circumstances surrounding the probation violation in determining whether there are substantial and compelling reasons for departure. Case below: 261 Mich App 673 (2004).

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The Court issued an order holding these applications in abeyance pending the decision in the case of People v Hendrick, above, where the Court granted leave on the issue of whether MCL 771.4, which addresses sentences imposed following the revocation of probation, permits a trial court to find that the conduct giving rise to the probation violation constitutes a substantial and compelling reason for departure. The Court of Appeals had denied leave to appeal to the defendant on the issues of whether the trial court erred in imposing a 6-year minimum sentence, ignoring the statutory guidelines which required an intermediate sanction, and whether the Court of Appeals erred in dismissing the claim of appeal because it was an appeal from a probation violation hearing. Case below: unpublished order (#239677, 3-22-02).

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The defendant's application for leave to appeal was granted, and the parties were directed to include the following issues: 1) whether larceny from a person is a "specified felony" for the purpose of the felon in possession statute, MCL 750.224f(6)(i); and 2) whether the lack of restoration of the right to possess a firearm is an element of the offense or an exemption or exception to which MCL 776.20 applies. The parties were further directed to consider the significance of the fact that the controlled substances statute in issue in People v Pegenau, 447 Mich 278 (1994), expressly places the burden of proving an exception on the defendant.

The Court of Appeals held that the prosecutor must prove that the defendant's right to possess a firearm has not been restored only if the defendant produces some evidence that his right has been restored. The felon in possession statute provides a longer, and potentially indefinite, prohibition against possessing a firearm when a person has been convicted of a "specified felony." The Court of Appeals decided that larceny from a person is a specified felony: "[b]ecause a person whose property is stolen from his presence may take steps to retain possession, and the offender may react violently, we conclude that the offense of larceny from a person, 'by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.'" Defendant argued that if violence is used to fend off the efforts of the owner to retain possession, the offense will be a robbery; that larceny from a person is meant to cover only situations where no use of force or threat of force occurs. Case below: unpublished opinion (#243412, 6-8-04).

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The prosecution's application for leave was granted and the defendant's application for leave to appeal as cross-defendant was denied. The Court of Appeals held that the defendant's sentences for both felony murder and the underlying armed robbery violated double jeopardy. The prosecutor argued that the federal test enunciated in Blockburger v United States, 284 US 299 (1032), adopted by the Supreme Court to eliminate the "same transaction test" in People v Nutt, 469 Mich 565 (2004), controls and that both convictions and sentences should stand. The defendant argued that Nutt applied Blockburrger only in the context of multiple prosecutions, and that the majority distinguished (in a footnote) double jeopardy allegations involving multiple punishments. Furthermore, first-degree felony murder cannot be committed without an armed robbery (in this case), so the Blockburger test is not satisfied here, according to the defense. Case below: unpublished opinion (#242376, 6-29-04).

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The Court granted leave to the defendant, limited to two issues: 1) whether OV 3 was properly scored; and 2) whether a sentence of life falls within the statutory sentencing guidelines for second-degree murder for a defendant who is an habitual offender. The Court of Appeals assumed, without deciding, that the trial court erred in scoring OV 3 at 25 points rather than zero points because the sentencing offense was a homicide, not the result of the operation of a vehicle while under the influence or while impaired. However, the Court of Appeals concluded that resentencing was not warranted because the life sentence was still within the appropriate guidelines range, even though the correct range was 162-337 months (not 162-337 months or life). The Court construed the habitual offender statute as permitting a sentence of life whenever the top of the recommended guidelines range is 300 months or greater. The defendant argued that the Court of Appeals improperly construed silence in an unambiguous statute, contrary to the rules of statutory construction. Case below: unpublished opinion (#245889, 4-1-04).

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Peter Van Hoek attorney for Defendant-Appellant.

Leave to appeal was granted to the prosecution on the following issues: (1) whether the Court of Appeals properly construed the intent required for a conviction under MCL 750.145c(3), and (2) whether there was sufficient evidence of intent. The Court of Appeals reversed defendant’s conviction of distribution or promotion of child sexually abusive material, finding that the term “distributes” in the statute, MCL 750.145c(3), is ambiguous, requiring judicial interpretation. In order to give effect to the legislature’s intention to prevent the dissemination of child sexually related material, the Court of Appeals interpreted the statute to require an intent to disseminate such material to others, and found the evidence insufficient because the prosecution failed to present evidence that defendant intended for anyone to see or receive child sexually abusive material when returning the computer to his employer. Case below: ___ Mich App ___ (#236858, 12-30-03).

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Leonard Lamont Stewart in Pro Per.

The Court granted leave on the issue of what constitutes "cooperation" for purposes of MCL 791.234 (10), which provides the possibility of early parole for a prisoner convicted under MCL 7401(2)(a)(i) and sentenced to life imprisonment if the sentencing judge determines that the prisoner has cooperated with law enforcement. The parties were directed to address the following issues: (1) what constitutes cooperation for purposes of the statute, (2) does the statute contain a temporal limitation on when cooperation must occur or (3) on when a court may make a determination that cooperation occured, (4) was People v Matelic, 249 Mich App 1 (2001) properly decided, and (5) should this case be remanded for hearing on whether defendant cooperated within the meaning of MCL 791.234(10).

The Court of Appeals in Matelic interpreted the statute and concluded that, according to the "plain legislative intent," a law enforcement or judicial characterization of a defendant's information as insignificant or unworthy cannot weigh against a finding that the defendant nonetheless cooperated. The Court concluded that the trial court improperly interpreted MCL 791.234(10) to preclude the possibility of defendant's cooperation on the basis of its staleness or tardiness. The statute does not define "cooperation with law enforcement," so the Court in Matelic held that where a defendant provides "some information potentially pertinent to law enforcement duties," cooperation has occurred for purposes of MCL 791.234(10), but that an unsubstantiated general expression of intent to cooperate, without more, is insufficient. Finally, the Court in Matelic ordered a hearing "to determine whether defendant could provide law enforcement any specific information potentially germane to the execution of law enforcement duties." Case below: unpublished order (#243562, 5-21-03).

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Robert German, attorney for defendant-appellee.

The Court granted leave to appeal to the prosecutor to decide whether corroboration is an element of perjury, whether retrial is barred by double jeopardy, and whether People v Nix, 453 Mich 619 (1996), should be overruled. The trial court dismissed the perjury charge at the conclusion of the prosecution's case because the police officer’s testimony concerning the alleged perjury was not corroborated. The Court of Appeals issued an order dismissing the prosecutor’s claim of appeal for lack of jurisdiction. Because the dismissal constituted an acquittal on the merits, double jeopardy would bar further proceedings against defendant, according to the Court of Appeals, citing Nix.

The Supreme Court in Nix held that a directed verdict granted on the basis of an error of law is nevertheless an acquittal for purposes of double jeopardy. The prosecutor points out that only one justice of the majority in Nix is left, and that Justice Corrigan wrote a concurring opinion in People v Limmer, 461 Mich 974 (2000), stating that she would grant leave to revisit the holding in Nix. The prosecutor further argues that the “two witness rule” of corroboration for perjury is not required by either statute or case law, it is based on misapplied precedent, and it is “archaic,” “illogical” and “encourages perjury.” Case below: unpublished order (#252755, 1-6-04).

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Valerie Newman, for defendant-appellant.

Responding to the defendant's motion for reconsideration of the Court's June 3rd order granting leave to appeal, the Court modified its order. Originally, leave was granted to consider whether People v McCoy, 392 Mich 231 (1974) should be overruled; specifically, whether the "closely drawn" rule of McCoy is inconsistent with MCL 768.29 and MCR 2.516(C). On reconsideration, the Court limited review to: (1) whether Michael Martin or Eugene Lawrence were accomplices; (2) whether the facts of the case establish a "closely drawn" issue of credibility; and (3) whether the "closely drawn" rule announced by this Court in People v McCoy, 392 Mich 231, 240 (1974), is inconsistent with MCL 768.29 and MCR 2.516(C). The defendant argued that the trial court should have sua sponte given a cautionary instruction regarding the credibility of accomplice testimony. The Court of Appeals recognized the holding in McCoy that, "if the issue is closely drawn, it may be reversible error to fail to give [the accomplice instruction] even in the absence of a request to charge." However, the Court of Appeals concluded that the issue was not closely drawn. The prosecution's case did not depend solely on the uncorroborated testimony of one accomplice, and it was doubtful whether either witness actually qualified as an accomplice. The Court of Appeals did not address any inconsistency with MCL 768.29 and MCR 2.516(C). Case below: unpublished opinion (#240832, 9-25-03).

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Douglas Baker, State Appellant Defendant Office for Defendant-Appellee.

Leave was granted to the prosecutor. No issue was specified in the order, but there was only one issue raised below: whether reversal was required by the trial court’s denial of defendant’s peremptory challenges without following the three-step Batson [Batson v Kentucky, 476 US 79 (1986)] analysis. The Court of Appeals, after initially affirming, reversed the convictions on the ground that the trial judge, in precluding defense counsel from excusing two jurors peremptorily, failed to follow the procedure mandated by the U.S. Supreme Court. The panel found that the error was not subject to harmless error review based on People v Miller, 411 Mich 321 (1981), but two members of the panel invited the Supreme Court to grant leave to appeal in order to reconsider Miller, and indicated that were it not for Miller, they would have affirmed. The prosecutor argued that the error was not of constitutional dimension and that a showing of prejudice should be required. Defendant argued that “a trial court’s arbitrary denial of peremptory challenges on spurious reverse-Batson grounds violates the federal constitution,” and that applying a harmless error rule would be unworkable. It could never be ascertained whether the juror who replaced the unsuccessfully challenged juror would have “probably changed the outcome” of the deliberations, he argued. Case below: 259 Mich App 583 (2004).

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Gerald Lorence for Defendant-Appellants.

The Supreme Court granted leave to the defendants in these two cases on a Batson issue. The defendants were tried together and the Court of Appeals affirmed their convictions on remand from the Supreme Court. The issues are limited to: 1) whether the prosecutor’s race-neutral reasons for dismissing two jurors were sufficient to avoid a finding of purposeful discrimination; 2) whether the trial court correctly found that jury selection did not violate Batson v Kentucky, 476 US 79 (1986), because the same number of unchallenged black jurors remained on the jury; and 3) whether the trial judge correctly continued the trial with the existing jury panel after having expressed dissatisfaction with the prosecutor’s reasons for excusing the two jurors, who could not be recalled (because they had left the building). In both cases, the Court of Appeals noted that the trial judge had made no specific finding of a Batson violation, but assuming she had, the Court found race-neutral reasons for the peremptory challenges: one juror had a first cousin who was arrested and convicted on a drug charge, and the other juror “hoped” she would not compare the victim to her own daughter, who was about the same age. Defendant argued that the error was structural and reversal was required, and that the mere fact that some minority jurors were ultimately seated on the jury in no way mitigated the harm. Case below: unpublished opinions (##s 225865, 231845, 10-07-03).

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Neil Szabo for Defendant-Appellee.

The Court granted leave to the prosecutor, to consider the viability and application of People v Cooper, 398 Mich 450 (1976). The trial court dismissed charges of UDAA and receiving and concealing stolen property on double jeopardy grounds, citing Cooper. The defendant had already been convicted of attempted theft by unlawful taking in Kentucky, stemming from the same event that led to the Michigan charges. The prosecutor invited the Court of Appeals to follow People v Mezy, 453 Mich 269 (1996), in which three justices voted to overrule Cooper. The Court of Appeals implied that Cooper was wrongly decided or no longer viable, but affirmed the dismissal because Cooper is still the law. Case below: unpublished opinion (#242207, 11-25-03).

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Leave was granted and the parties were directed to include the following issues: (1) whether the conviction offense of assault with intent to commit criminal sexual conduct involving sexual penetration is included within the charged offense of first-degree criminal sexual conduct involving personal injury and the use of coercion to accomplish sexual penetration, and (2) whether the instruction given in this case, if error, was harmless error. Relying on People v Cornell, 466 Mich 335 (2002), the Court of Appeals held that the trial court erroneously instructed the jury on the “cognate” lesser offenses of assault with intent to commit CSC involving penetration and aggravated assault. According to the Court of Appeals, it was “undisputed” that neither assault with intent to commit CSC nor aggravated assault are necessarily included offenses of first-degree CSC. The Court also held that the error was not harmless because defendant was acquitted of the charged offense and convicted of assault with intent to commit CSC involving penetration. Judge Meter, dissenting, was of the opinion that the error was harmless since the defendant had fair notice that he might have to defend against the lesser included offenses, given the close kinship between the offenses, and because the evidence of guilt was overwhelming. Case below: unpublished opinion (#237794, 4-24-03).

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Gary Rogers, State Appellate Defender Office, for defendant-appellee.

Granting leave to the prosecution, the Court directed the parties to include among the issues to be briefed: "(1) how subsection 1 of MCL 777.31 (OV 1), requiring that the "highest number of points" be assigned, should be applied in light of subsection 2(b), requiring that "all offenders" in multiple offender cases be assessed the same number of points; (2) similarly, how subsection 1 of MCL 777.33 (OV 3), requiring that the "highest number of points" be assigned, should be applied in light of subsection 2(a), requiring that "all offenders" in multiple offender cases be assessed the same number of points; (3) whether MCL 777.31(2)(b) and 777.33(2)(a) apply where all "offenders" have not been charged with identical crimes; (4) whether under MCL 777.31(2)(b) and 777.33(2)(a) the trial court is bound by a previously-imposed sentence upon a codefendant where that sentence is based upon an erroneous offense variable score; (5) whether under MCL 777.39 (OV 9) the number of persons placed in danger includes only those persons who are placed in danger during the particular crime for which defendant is being scored (here, armed robbery), or whether that number includes all persons placed in danger at any point during the criminal episode; and (6) whether the due process clauses of the state and federal constitutions require that the prosecution prove the elements of a crime that someone else committed before a court can base a defendant's sentence on the actions of the other person. See Harris v United States, 536 US 545; 122 SCt 2406; 153 LEd2d 524 (2002); Apprendi v New Jersey, 530 US 466; 120 SCt 2348; 147 LEd2d 435 (2000); and Washington v Blakely, 111 Wash App 851; 47 P3d 149 (2002), cert gtd sub nom Blakely v Washington, 2003 US LEXIS 7709 (U.S., 10/20/03, Docket No. 02-1632)."

The Court of Appeals (Judges White, Donofrio and Chief Judge Whitbeck) reversed defendant's sentences for conspiracy to commit armed robbery, armed robber, and felony firearm, remanding for resentencing. They concluded that because the codefendant received zero points under OV 3 (physical injury to victim), and because multiple offenders are to receive the same score, the defendant should not have received 25 points, but instead zero. Receiving 10 points for OV 9 also was erroneous, where only one victim was placed in danger during the robbers; the other victim was not in the immediate vicinity during the robbery, which was complete by the time he intervened. The panel felt that since the guidelines instructions do not direct the court to consider the "entire criminal transaction," the score should have been zero. Resentencing was ordered because, had the guidelines been correctly scored, defendant's minimum sentence range would have been 51 to 85 months, and her eight-year minimum sentence exceeded the guidelines. Case below: unpublished opinion (#238750, 5-29-03).

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Anne Yantus, State Appellate Defender Office, for defendant-appellant.

After holding the application in abeyance for a few months pending decision in People v Deline, lv grt'd ___ Mich ___ (#123079, 7-3-03), the Court swapped positions of the cases, granting leave in this one and ordering that Deline be held in abeyance pending its decision. In Barbee, the defendant objected at sentencing to the scoring of OV 19 (on factual grounds), and also addressed the issue in a post-conviction motion for resentencing (on legal grounds). Defendant Barbee gave his brother's name to police officers at the time of arrest, an act which may have interfered with officers' efforts to arrest and identify him, but did not amount to interference with the criminal process, he argued. Barbee's application for leave was denied by the Court of Appeals, which found a "lack of merit in the grounds presented." In Deline, The Court of Appeals panel (Judges Bandstra, Murphy and Griffin) found that by switching seats with the passenger and refusing a breath test in an attempt to evade criminal charges altogether, the defendant was not engaging in conduct aimed at undermining the judicial process by which the charges against him would be determined. If evasive and uncooperative behavior justified points under OV 19, the Deline panel found, that variable would apply in almost every criminal case. Interference with justice is the equivalent of obstruction of justice, it added, involving an effort to undermine or prohibit the judicial process by which a criminal charge is processed. Case below: unpublished order (#243912, 2-27-03).

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Earl Spuhler, for defendant-appellee.

The Court granted the prosecutor’s application for leave to appeal without specifying issues. The issues decided in the Court of Appeals involved whether materiality is an element of perjury, and whether the trial court erred in failing to instruct on an essential element of the crime. The defendant was convicted of perjury, “knowingly making a false statement under oath concerning a material issue." The trial court found as a matter of law that defendant’s statements concerned a material matter and did not instruct the jury on materiality. The Court of Appeals found error in the omission, that it was not structural, but that it was not harmless beyond a reasonable doubt and reversal was necessary. It also held that the district court did not err in binding defendant over for trial, and that the trial did not err in denying defendant’s motion to quash, as there was probable cause and a question for the trier of fact to resolve at trial. Case below: 254 Mich App 249 (2002).

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Mark S. Bosler, attorney for defendant-appellee.

The Court granted the prosecutor’s application for leave to appeal to consider "whether ‘sentencing manipulation’ or ‘escalation’ is a substantial and compelling reason justifying a downward departure from a statutorily imposed mandatory minimum sentence, and whether a trial court may consider the legislative sentencing guidelines recommendation when determining the degree of a departure, which has already been determined to be supported by substantial and compelling reasons.” The defendant was sentenced to 8 to 20 years in prison for delivery of 50 to 225 grams of cocaine, a two-year downward departure from the mandatory minimum. The departure was based on the defendant’s age, minimal prior criminal record, history of employment as a taxi driver, and the government’s manipulation of his sentence by arranging drug deals in order to escalate his sentence. The Court of Appeals held that the sentence escalation was objective and verified in the presentence report, and that the trial court properly considered this factor as justification for a downward departure pursuant to People v Schinholster, 196 Mich App 531 (1992). The Court mentioned in a footnote that in People v Fields, 448 Mich 58 (1995), three of the four justices in the majority agreed that this was a permissible factor, but the fourth justice stated that “[t]he question of whether defendant's successive criminal acts not involving police entrapment can amount to a mitigating circumstance is far too significant to be resolved in the context of a record that does not present that question.” The Court of Appeals in Claypool also held, citing People v Izarraras-Placante, 246 Mich App 490 (2001), that, while the sentencing guidelines’ recommended minimum sentence range cannot be used as a substantial and compelling reason to depart, the trial court can consider the guidelines in determining the extent of the departure. Case below: unpublished opinion, (#238984, 10-18-02).

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Elbert Hatchett, for defendant-appellee.

Leave to appeal was granted on the issue of whether first-degree child abuse is a general or specific intent crime; specifically, “whether it is sufficient to instruct the jury using the statutory language regarding intent (“. . . knowingly or intentionally causes serious physical or serious mental harm to a child”), MCL 750.136b(2), or whether it also is necessary to instruct the jury regarding “specific intent.” The defendant raised the issue of insufficiency of the evidence to bind her over on the charge of first-degree child abuse for leaving her children in a hot car for over three hours while she had her hair done. The Court of Appeals held that, although first-degree child abuse is a specific intent crime, there was sufficient evidence to support the bindover. The majority affirmed the finding in People v Gould, 225 Mich App 79 (1997), that the offense requires a specific intent, which the Supreme Court called dictum (460 Mich 955), and adopted the analysis in Gould. According to the plain meaning of the words used in the statute, a person is guilty of this offense if he/she “knowingly or intentionally” causes serious physical or mental harm to a child. “Knowingly” is defined as intentionally, and a crime that is required to be committed knowingly has repeatedly been held to be a specific intent crime. Hence, concluded the majority, first-degree child abuse requires specific intent. Second-degree child abuse, which occurs if a person “knowingly or intentionally commits an act likely to cause serious . . . harm,” is a general intent crime. According to the Court of Appeals, the Legislature intended this to cover the situation where a person intended an act but not necessarily the consequences of the act, while first-degree child abuse punishes the person who has the intent to cause serious harm to the child. Judge Whitbeck wrote a concurring opinion in Maynor, finding that first-degree child abuse is a general intent crime, and disagreeing that the presence or absence of words such as “knowingly” or “intentionally” signals legislative intent on the question. Case below: 256 Mich App 238 (2003).

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Earl Spuhler, for defendant-appellee.

The Court granted the prosecutor’s application for leave to appeal without specifying issues. The issues decided in the Court of Appeals involved whether materiality is an element of perjury, and whether the trial court erred in failing to instruct on an essential element of the crime. The defendant was convicted of perjury, “knowingly making a false statement under oath concerning a material issue." The trial court found as a matter of law that defendant’s statements concerned a material matter and did not instruct the jury on materiality. The Court of Appeals found error in the omission, that it was not structural, but that it was not harmless beyond a reasonable doubt and reversal was necessary. It also held that the district court did not err in binding defendant over for trial, and that the trial did not err in denying defendant’s motion to quash, as there was probable cause and a question for the trier of fact to resolve at trial. Case below: 254 Mich App 249 (2002).

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Gerald Surowiec for defendant-appellee.

Directing submission with People v Russell, Docket No. 122998, the Court granted the plaintiff-appellant’s delayed application for leave to appeal. Leave was granted in Russell on the issues of: (1) whether the trial court erred in denying defendant's request to appoint substitute counsel, and (2) whether the trial court complied with rules requiring knowing, intelligent and voluntary waiver of counsel before allowing the defendant to represent himself at trial. The Court in this case did not specify the issue to be resolved, but the prosecutor applied for leave on only one issue: whether the defendant’s waiver of his right to counsel was adequate. The Court of Appeals held that defendant’s waiver of counsel was not unequivocal, knowing, intelligent and voluntary where the trial court pressured defendant to make a quick decision, and denied defendant’s request to review the preliminary examination transcript before making his decision (because of his concern that trial counsel failed to effectively impeach a witness), thereby preventing defendant from being fully informed before making his decision. In his application, the prosecutor argued that the trial court sufficiently questioned defendant in substantial compliance with the statutory and court rule requirements, and that defendant’s waiver was knowing and voluntary. The prosecutor alleged that, in the situation where a defendant waives counsel during trial, defendants “use the competing constitutional rights [right to counsel and right to self-representation] to create an appellate parachute,” making “a mockery of the criminal justice system.” (Application, p. 6). Case below: unpublished opinion (#232827, 2-28-03).

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Jonathan D. Hickman, in pro per.

The Court granted leave to appeal, limited to the issue of “whether counsel is required before an on-the-scene identification can be admitted at trial.” The defendant applied for leave in pro per. The Court of Appeals, relying on People v Winters, 225 Mich App 718 (1997), held that a prompt on-the-scene identification does not violate the right to counsel. The defendant argued that the identification was not prompt, but the Court of Appeals found that it occurred 16 minutes after the robbery and that the trial court did not err in denying the motion for suppression. Case below: unpublished opinion (#232041, 9-17-03).

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Benjamin A. Phillips, in pro per.

The Court granted the defendant’s delayed application for leave to appeal, filed in pro per, limiting the issues to the following: (1) the retroactivity of People v Cornell, 466 Mich 335 (2002); (2) whether MCL 767.76 allows the trial court to amend the information after the close of proofs to charge a cognate offense; (3) whether such an amendment is constitutional in light of Schmuck v United States, 489 US 705 (1989); and (4) if such an amendment is unconstitutional, whether the error could have been and was harmless. Defendant was bench-tried on two counts of first-degree criminal sexual conduct, but the trial court found him guilty of assault with intent to cause great bodily harm less than murder. The Court of Appeals held that it was permissible to amend the information to add a new charge at the end of the proofs, relying on People v Forston, 202 Mich App 13 (1993), which, in turn, relied on People v Hunt, 442, Mich 359 (1993), in which the Supreme Court peremptorily reversed a refusal to allow an amendment at the end of the preliminary examination that would have added a new charge. The Court of Appeals did not address Schmuck v United States, supra. The U.S. Supreme Court in Schmuck held that the “elements test,” which provides that the defendant may be found guilty of an offense necessarily included in the offense charged, must be used in determining when a lesser included offense instruction is appropriate under Federal Rule 31(c). The Schmuck Court cited the constitutional principles that a defendant cannot be held to answer a charge not contained in the indictment brought against him, and that the defendant has the right to notice of the charge brought against him. The Supreme Court warned that if the determination of whether the offenses are sufficiently related to permit an instruction is delayed until all the evidence is developed at trial, “the defendant may not have constitutionally sufficient notice to support a lesser included offense instruction requested by the prosecutor if the elements of that lesser offense are not part of the indictment.” As for harmlessness, the Court of Appeals said that defendant was not prejudiced because the crimes were similar and his defense would not have been any different. This case was decided by the Court of Appeals before the decisional date of People v Cornell, supra. Case below: unpublished opinion (#230897, 5-28-02).

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Jacqueline McCann, State Appellate Defender Office, for defendant-appellant.

Directing the submission of this case with another, People v Williams, #123537, the Court agreed to consider: (1) whether the trial court erred in denying defendant's request to appoint substitute counsel, and (2) whether the trial court complied with rules requiring knowing, intelligent and voluntary waiver of counsel before allowing the defendant to represent himself at trial. Affirming the defendant's jury-tried convictions on drug charges, the Court of Appeals (Judges Fitzgerald, Holbrook, Jr., and Cavanagh) noted that defendant "continually complained" about his court-appointed attorneys. The trial court found that "personality differences" had developed, but would not substitute a new attorney for one he considered both good and experienced. The appellate panel agreed that good cause was not demonstrated by defendant's allegations that counsel "did not see things [his] way," and that granting the substitution would have disrupted the process without necessarily resolving defendant's complaints. On the waiver issue, the panel acknowledged that the trial court did not comply with MCR 6.005(D)(1), on advice to the defendant; however, materials provided to the defendant during a recess were considered a sufficient substitute. While the record did not contain an explicit waiver of counsel, the panel found it implicit in defendant's conduct, which included assertions that he did not want the appointed attorney to participate. Case below: 254 Mich App 11 (2002).

The Supreme Court also invited interested persons or groups to file as amici curiae in the case.

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Jacqueline McCann, State Appellate Defender Office, for defendant-appellee.

Granting leave to the prosecution, the Court will consider whether the trial court erred in scoring 10 points under OV 19 for interference with the administration of justice. The Court of Appeals panel (Judges Bandstra, Murphy and Griffin) found that by switching seats with the passenger and refusing a breath test in an attempt to evade criminal charges altogether, the defendant was not engaging in conduct aimed at undermining the judicial process by which the charges against him would be determined. If evasive and uncooperative behavior justified points under OV 19, the panel found, that variable would apply in almost every criminal case. Interference with justice is the equivalent of obstruction of justice, it added, involving an effort to undermine or prohibit the judicial process by which a criminal charge is processed. The "slight" error in scoring in this case was, however, harmless in light of the court's justified reasons for departing upward from the guidelines recommendation. Case below: 254 Mich App 595 (2002).

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David Cripps for defendant-appellee Holtschlag, Richard Ginsberg for Cole, Gary Rogers (SADO) for Brayman, Mark S. Procida for Limmer.

Granting leave to the prosecution, the Court will consider whether evidence was sufficient to convict defendants of involuntary manslaughter or accessory after the fact to involuntary manslaughter. The young defendants in this high-profile case were convicted on evidence that they picked up three young women, took them to Limmer's apartment, and mixed the "date rape" drug GHB in their drinks, causing the death of one of them. The Court of Appeals panel (Judges Cooper, Bandstra and Talbot) affirmed convictions of mixing a harmful substance in a drink, delivery of marijuana and possession of GHB. On the manslaughter charge, however, it found that because mingling a harmful substance in a person's drink is an unlawful act, the defendants could not be convicted of involuntary manslaughter under a gross negligence theory. Nor would it be possible to apply a misdemeanor-manslaughter theory, the panel added, since the defendants were convicted of felonies. Case below: unpublished opinion (#226715, 227942, 241661, 3-27-03).

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Gary Rogers, State Appellate Defender Office, for defendant-appellant.

Granting leave to the defendant, the Court directed the parties to brief issues of: "(1) whether defendant's statements to Officer Heintzelman constituted the interaction of custody and official interrogation, as discussed in Illinois v Perkins, 496 US 292; 110 SCt 2394; 110 LEd2d 243 (1990), and (2) whether Officer Heintzelman was a state actor at the time defendant made the statements to him." The Court also invited amicus input from the Attorney General, the Prosecuting Attorney's Association, and the Criminal Defense Attorneys of Michigan. The Court of Appeals panel (Judges Talbot, Hood and Gage) found that the trial court properly admitted a statement defendant made to a reserve police officer who was a former neighbor, while he was in jail on the instant first-degree murder case, and represented by counsel. Although Officer Heintzelman was in uniform when he went into the jail, the panel found that he was not there as a police officer, on police duty; rather, he appeared as a friend, at the request of the defendant (who had told another of his desire to see Heintzelman). The panel was influenced by the absence from the record of any showing that the position of reserve officer carried any investigatory responsibilities, as well as any evidence that Heintzelman used his friendship to elicit an incriminating statement. The record did show a social aspect to the visit, as they discussed families, and was devoid of any suggestion of police coercion. A prior remand by the Supreme Court included the determination that any error was not harmless; reviewing the issue for the second time, the panel determined that there was no error. Case below: unpublished opinion (#217052, 1-12-01); remanded 465 Mich 874 (2001); unpublished opinion on remand (#217052, 2-12-02).

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Craig Daly for defendant-appellee.

Granting leave to the prosecution, the Court limited review to issues of: “(1) whether the preservation requirement of MCL 769.34(10) applies to the claim relating to Offense Variable 16; (2) if applicable, would the statute preclude an appellate court from considering the claim of error even under a plain error standard; and (3) if so, whether such a provision is within the power of the Legislature. McDougall v Schanz, 461 Mich 15 (1999).” The Court of Appeals (Judges Cooper, Griffin and Saad) remanded for resentencing on defendant’s second-degree murder conviction, finding that the trial court committed plain legal error by assigning five points for OV 16. Neither the trial court, defense counsel, nor the prosecutor realized that OV 16 does not apply to this offense because second-degree murder is in the “crimes against a person” category. The guidelines statute directs sentencing courts to score only those offense variables that apply. Defendant’s failure to assert this argument before the trial court did not preclude appellate review, according to the panel’s majority, which noted that clear prejudice was demonstrated by the 60-month increase in defendant’s sentence. Judge Griffin, dissenting, would hold the error forfeited and would not apply the plain error doctrine in this case. Case below: 252 Mich App 269 (2002).

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Carolyn Blanchard for defendant-appellee.

Responding to the Wayne County Prosecutor’s application, the Court granted leave on the issue of “whether this Court should adopt and apply in this case a ‘good faith’ exception to the exclusionary rule.” Although the Goldston order makes no reference to it, the case of People v Scherf, lv grt’d ___ M ___ (7-30-02, #121698), which was argued just days before the grant of leave in this case, also involves this question. The Goldston order also invited amicus input from interested groups or individuals.

Goldston involves an interlocutory appeal of the trial court’s decision to suppress evidence seized from defendant’s residence, and dismissal of related charges. A district court judge issued both arrest and search warrants in September, 2001, when police found the defendant collecting “relief fund” donations on a street corner; although the defendant wore a shirt stating ”FIREMAN,” and held a fireman’s boot, he lacked fire department identification and admitted that he wasn’t a fireman. The search of his residence turned up fire fighter’s paraphernalia, a firearm, and some marijuana. In response to the defendant’s suppression motion, the trial court found two errors in the search warrant: the affidavit did not state the date on which defendant had been found soliciting funds for 9-11 victims, and the affidavit failed to say that the residence to be searched was the defendant’s residence. The gun was suppressed, and the felon-in-possession, felony firearm, and marijuana charges were dismissed, while a misdemeanor count of larceny by false pretenses was remanded. In its application for leave, following the Court of Appeals denial of leave, the prosecution argued that the mere “drafting error,” should not undo the search results. Noting that the police did what the law prefers by seeking a warrant, the application contended that the “rigid and unthinking” application of the exclusionary rule in this case “inflicted gratuitous harm on the public, and thwart[ed] the primary function of the trial as a search for truth.” As in Scherf, the prosecution argued for adoption of a good faith exception for such “drafting” defects as these, urging the Court to apply the same standard for both federal and state constitutional purposes. Case below: unpublished order (#241605, 8-29-02).

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Paul Louisell for defendant-appellant.

While no issues were identified in the order granting leave to the defendant, defendant’s application indicated that the question is “whether the procedural rules adopted in People v Finley [431 Mich 506 (1988)] apply to appeals based on claims of error involving comment on a defendant’s assertion of his Fifth Amendment right against self-incrimination.” Reviewing that and other issues, the Court of Appeals panel (Judges Owens, Jansen and Burns) affirmed defendant’s jury-tried conviction of second-degree criminal sexual conduct, and ten to fifteen-year sentence. Responding to the defendant’s pre-trial motion, the trial court refused to suppress the portion of defendant’s statement to police indicating “I am taking the fifth on that one,” and held the entire statement admissible. Defendant did not testify, and the evidence was not admitted. He claimed on appeal that the ruling affected his decision not to testify, and the panel invoked Finley, apparently for its ruling that the issue is unpreserved if the defendant does not testify (Finley involved admissibility of prior convictions). Defendant’s claim in his application was that there is no instance in which an invocation of Fifth Amendment rights is admissible, so the content of testimony is irrelevant. The Court of Appeals panel also noted the “overwhelming evidence of defendant’s guilt,” making any error harmless beyond a reasonable doubt. Case below: unpublished opinion (#214097, 9-15-00).

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Carolyn A. Blanchard for defendant-appellee.

The issue in the case is whether the trial court properly dismissed a state prosecution for possession with intent to deliver 225 to 650 grams of cocaine, and felony firearm, where the incident was also the basis for a federal conviction for conspiracy to possess with intent to deliver between 100 grams and 5 kilos of cocaine. The charged acts occurred within the same time frame as the events forming the basis of the federal conspiracy charge. The appellate panel (Judges Gage, Cavanagh and Wilder) found that the practice of federal prosecutors to prove conspiracies with evidence of overt acts of the underlying substantive crime effectively rendered the state substantive crime a functional element of the federal conspiracy crime. A state statute barring such prosecution, MCL 333.7409, therefore applied, according to the panel, which would not revisit the decision in People v Avila (On Remand), 229 Mich App 247 (1998). Case below: unpublished opinion (#234130, 7-30-02).

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Neil Leithauser for defendant-appellant-appellee.

In a case held in abeyance pending decision in People v Lett, 466 Mich 206 (2002), the Court now granted leave to consider: (1) whether the trial court’s declaration of a mistrial was based on manifest necessity; (2) whether the alleged error of recalling the jury and reinstating the guilty verdict is subject to harmless error analysis and, if so, whether the alleged error was harmless; and (3) whether the constitutional protection against double jeopardy is implicated in this case and, if so, whether a harmless error analysis is applicable. The Court of Appeals panel (Judges Doctoroff, Holbrook, Jr., and Hoekstra) reversed defendant’s convictions for delivery of less than 50 grams of cocaine, delivery of an imitation controlled substance, and delivery of 50 to 225 grams of cocaine. It found an abuse of discretion in the trial court’s sua sponte declaration of mistrial because the excused thirteenth juror was present, but did not participate in deliberations. There was no evidence that defendant or his counsel consented to the mistrial, and defendant’s silence could not be construed as consent. The mere presence of the alternate juror was not a compelling circumstance that would deprive defendant of a fair trial, there was no specific showing of prejudice, and the court failed to conduct a hearing or to find that no reasonable alternative existed.

The panel found that the trial court properly exercised its discretion to correct the error when it vacated its declaration of mistrial, and because no judgment had been entered in the case, the trial court was within its discretion to rescind the erroneous ruling. Although Michigan courts have not previously determined whether a trial court can revoke a declaration of mistrial, the panel added, other jurisdictions have held that the trial court retains that authority. Once the court dismissed the jury, it was without discretion or authority to recall it to complete the polling process; this extinguished the jury’s sworn duty in the case and precluded revisiting its verdict. Reinstating the verdict was error because there was no final, valid verdict to reinstate, as the polling process was not completed or assented to by the jury. The improper repelling of the jury did not operate to finalize or validate the verdict. Finally, the panel found retrial permissible because, although defendant did not consent to the mistrial and the presence of the thirteenth juror did not create manifest necessity, the court’s subsequent attempts to correct the declaration of mistrial by repelling the jury and reinstating the verdict did amount to manifest necessity. Case below: 247 Mich App 325 (2001).

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Kevin Ernst for defendant-appellee.

In granting leave to appeal, the Court limited review to the issues of: (1) whether the circuit court’s discovery order violated section 4 of the LEIN Policy Council Act, MCL 28.214, and if so, (2) whether defendant’s constitutional rights would have been abridged had his request for such an order been denied. The Court also invited amicus input from the Criminal Defense Attorneys of Michigan and the National Association of Criminal Defense Lawyers. Defendant was charged with murder and filed a pretrial motion requesting criminal histories of all of the prosecution witnesses, including res gestae witnesses that might be called by the defense. The prosecution and intervening City of Ann Arbor responded that it would be unduly burdensome, as well as prohibited by the state statute, to comply with the defense request. The Court of Appeals (panel of Judges Fitzgerald, Hood and Sawyer) held that LEIN information may be provided to a criminal defendant pursuant to a court order. Although criminal history information may not be used for personal reasons, according to the panel’s majority, it may be released for a valid criminal justice purpose. The LEIN Act does not prohibit the court from ordering that LEIN information be given to the prosecutor and ordering that the prosecutor provide any exculpatory or impeachment information to the defendant. Further, the trial court did not err, according to the majority, in determining that witnesses would be precluded from testifying if the prosecutor and the City did not comply with the discovery order. Judge Sawyer, dissenting, would find that LEIN information may not be given to a private person for any purpose, and that doing so is a criminal offense under MCL 28.214. Judge Sawyer also commented that the prosecution is under no obligation to engage in discovery for a defendant. Case below: 251 Mich App 417 (2002).

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Daniel Van Norman for defendant-appellant.

Granting leave to the defendant, the Court limited review to:

. . . whether the defendant’s constitutional right not to be twice put in jeopardy was violated by the filing of the charges in Oakland County. The parties shall include among the issues to be briefed whether People v White, 390 Mich 245 (1973), sets forth the proper test to determine when a prosecution for the “same offense” is barred on double jeopardy grounds under Mich Const 1963, Art I, Sec. 15, and whether our constitution provides greater protection than does US Const Amend V. See United States v Dixon, 509 US 688; 113 SCt 2849; 125 LEd2d 556, 568 (1993).

The Court also invited interested groups or person to seek permission to file briefs amicus curiae.

The Court of Appeals panel reversed dismissal of the charge of concealing stolen firearms, releasing separate opinions of the three panelists. Defendant and others broke into numerous Lapeer County residences, stealing shotguns from one of them. During a search pursuant to warrant of defendant’s Oakland County rental cabin several days later, executed by both Lapeer and Oakland County police officers, the guns were seized. Defendant pled guilty to second-degree home invasion in Lapeer Circuit Court; the instant appeal springs from an Oakland County charge of receiving and concealing the stolen firearms. Judge Meter, writing for the panel’s majority, found dismissal of the Oakland County charge improper on authority of People v Flowers, 186 Mich App 652 (1990), where a panel construed a similar fact pattern to support two separate prosecutions. He observed that there is no requirement that a defendant “wait some period” before concealing the stolen property, or that the concealment be completely unrelated to the theft. Judge Hoekstra, concurring, felt that the evidence revealed a “continuous time sequence,” but not a “single intent and goal.” Judge Whitbeck, dissenting, agreed with the trial court that the second prosecution was constitutionally barred. He wrote that the acts of stealing, transporting and then concealing the firearms for four days (before the search) were logically part of the same criminal episode, and did not agree with the prosecution’s argument that a crime “is only committed at the time the police discover it [emphasis in original].” Case below: unpublished opinion (#225887, 11-9-01).

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Randy Davidson, State Appellate Defender Office, for defendant-appellant.

At issue in the case is whether the the Court of Appeals violated the defendant’s right under Michigan law to an appeal of right from a prison sentence imposed following a contested probation violation hearing. Defendant had pled no contest to an offense occurring after the adoption of Proposal B and received a sentence of probation. The prosecutor subsequently charged him with probation violation and he had a contested hearing. The Court of Appeals dismissed defendant’s appeal of right, based on the initial no contest plea. Defendant argued in his application that when the voters passed Proposal B, they did not intend a no contest or guilty plea to lock out the right to appeal from a subsequent probation revocation hearing. The Court of Appeals issued an order dismissing defendant’s claim of appeal from the probation violation, noting that the appeal must be by leave. It cited People v Kaczmarek, 464 Mich 478 (2001) for the position that probation violation is not a crime and that revocation does not present a conviction. The panel ruled:

MCL 600.308(2)(d), the implementing legislation for Proposal B, provides that appeals from final judgments based on a defendant’s plea shall be by leave. If a determination of probation violation is not the conviction of a crime, then a judgment imposed after such a determination must be based on the underlying crime. Since the judgment is based on the plea to the underlying crime, the appeal must be by leave.

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Susan Meinberg, State Appellate Defender Office, for defendant-appellant.

Granting leave to the defendant without specifying leave issues, the Court invited amicus input from the Prosecuting Attorneys Association of Michigan, the Criminal Defense Attorneys of Michigan, and other interested groups or individuals. The issues raised in the defendant’s application include: (1) whether the evidence was sufficient to support defendant’s first-degree premeditated murder conviction; (2) whether the trial court erred reversibly by failing to sua sponte caution jurors on the unreliability of accomplice testimony, where the issue of credibility was “closely drawn;” and (3) whether counsel’s failure to request the cautionary instruction amounted to ineffective assistance. The Court of Appeals panel (Judges Gage, Cavanagh and Wilder) affirmed the murder conviction on evidence that defendant strangled, raped, beat, and tied the victim, and then set fires in her apartment. In his application, defendant alleged that the acts suggested an unbalanced mental state, and rage rather than premeditation. On the second issue, the panel noted the strength of evidence that defendant was the assailant (DNA matches of fluids), despite his denial, and found no error in omission of the cautionary charge “under these circumstances.” In his application, defendant emphasized evidence that the accomplice was involved in the offense, and urged application of the rule established in People v McCoy, 392 Mich 231 (1974). On counsel’s failure to request the instruction, the panel found no error where it appeared that the defense theory was to deny the offense entirely, a theory that would have been undermined by requesting the charge. Case below: unpublished opinion (#220715, 6-19-01).

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Michael Woodworth for defendant-appellees Silagy and Gottschalk.

After granting leave to appeal and hearing oral argument, the Court decided to vacate leave because it was "no longer persuaded the questions presented should be reviewed by this Court." The Court granted leave to the prosecution last October in this Iosco Circuit case in which the trial court denied defendants' motion to quash charges of conspiracy and obstruction of justice, and the Court of Appeals reversed. Defendants, both DNR employees, allegedly knew that a particular area did not qualify as a jurisdictional wetland, yet Silagy filed a complaint alleging that one Freund filled or caused a wetland to be filled without the appropriate permit. Freund filed a complaint alleging perjury by Silagy.