Mr. Tieber dedicates substantial time to preparing and presenting legal materials at seminars in Michigan and Arizona. As part of this practice, Mr. Tieber compiles a comprehensive review of recent United States Supreme Court and Michigan criminal law decisions, along with legislative and court rule developments. These materials can be accessed below, and are meant to be a useful tool to all visitors of this web site.

The material presented is the work product of F. Martin Tieber, and consists of summaries and excerpts. This work is not to be considered exhaustive. Legal concepts are summarized informally, and reflect the general understanding of Mr. Tieber. They are not necessarily the official positions of any court, litigating party, government, or other body. And while Mr. Tieber is continually updating this information, changes can occur quickly, and it is possible that at any given time some of this information might be out of date. Thorough review of the original material and updating research should be done before utilizing this information in court or in legal pleadings.

ORGANIZATION:

I. CASE LAW

1. 4^TH AMENDMENT
2. OTHER PRETRIAL MATTERS (DISCOVERY, JOINDER AND SEVERANCE, DOUBLE JEOPARDY, SPEEDY TRIAL, ETC.)
3. CONFRONTATION, COUNSEL AND OTHER TRIAL ISSUES (DEFENSES, GENERALLY, EVIDENCE, INSTRUCTIONS, PROSECUTORIAL MISCONDUCT, ETC.)
4. CRIMES AND OFFENSES, SUFFICIENCY
5. SENTENCING
6. MISCELLANEOUS
7. SCOTUS PREVIEW

II. LEGISLATION

III. COURT RULES

I.                  Case Law

A.                 Fourth Amendment.

Anticipatory Warrants. United States v Grubbs, 547 US 90; 126 S Ct 1494 (2006)(march'06). Anticipatory search warrants do not violate the Fourth amendment if the magistrate determines (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. The triggering condition of an anticipatory search warrant places a condition other than the mere passage of time upon the warrant's execution. In this case the triggering condition was the delivery of a package, which established probable cause for the search.

Consent, Extent of, Automobile. People v Dagwan, 269 Mich App 338 (2005)(dec'05). Defendant was under arrest for a possible sexual-offender registration offense, and granted a broad consent to search his vehicle, the form he signed stating that he granted consent to the police to "conduct a complete search of the motor vehicle owned by me and/or under my care, custody, and control, including the interior, trunk, engine compartment, and all containers therein." Defendant unlocked his auto for the police, and in their search they found a laptop computer. An officer asked defendant about the laptop because he had indicated earlier that he was living in his car, and in her experience people who live in their cars "usually do not own laptops." The defendant never revoked or restricted his consent to search, but the officer acknowledged that she did not specifically ask him whether she could look at the contents of the computer. An officer with special training in computer data recovery ran a cursory image search using a compact disc containing a computer software program designed for that purpose, discovering what appeared to be child pornography. He then turned the computer off and got a search warrant. The trial court suppressed alleged child sexually abusive material the police found on the laptop computer on the ground that even in "a search supported by consent" there must be probable cause that the item, that "is being looked for will be found in a specific place." Citing Florida v Jimeno, 500 US 248, 249; 111 S Ct 1801; 114 L Ed 2d 297 (1991) to the effect that "[t]he scope of a search is generally defined by its expressed object" the court of appeals reversed. The court found that it was objectively reasonable for the police to believe defendant's consent included examining data stored within the laptop computer found in defendant's car. "First, the object of the police search was broad: to look for anything illegal, including stolen property. We conclude that a reasonable person would know that computers may be used to commit crimes. ....Further, we conclude that a reasonable person would know that computers can contain illegal child sexually abusive material in the form of stored electronic images. .... Second, the written consent to search that defendant signed was broad and all encompassing." It was thus objectively reasonable to conclude that defendant's consent to search included an examination of data stored on the laptop computer.

Consent, Search Incident to Arrest, Traffic Stop. People v LaBelle, 273 Mich App 214 (2006)(dec'06). Police stopped a vehicle in which defendant was a passenger for failure to heed a nonexistent stop sign. The district court dismissed, the circuit court affirmed and the court of appeals denied the prosecutor's delayed app. The supreme court sent the case back to the court of appeals for consideration as on leave granted, directing the parties to brief the issue whether defendant had standing to object to the traffic stop. The court of appeals pointedly ignored that issue, finding no exception to the warrant requirement for a search of defendant's backpack which turned up several bags of marijuana. Citing Knowles v Iowa, 525 US 113 (1998), the court rejected the "incident to arrest" rationale since SCOTUS made it clear that this doctrine does not apply to a traffic stop that does not result in arrest, even if the officer would have been justified in making an arrest. As for consent the court determined that the driver's consent, while possibly allowing a search of the vehicle, could not authorize a search of defendant passenger's backpack. Look for an MSC leave grant on this one.

Consent, Authorization to Give. Georgia v Randolph, 547 US 103; 126 S Ct 1515 (2006)(march'06). When two occupants of a dwelling are both present, the unequivocal refusal of one occupant to consent to the search of the dwelling invalidates the consent of the other present occupant. This is distinguished from United States v Matlock, 415 US 164, - one occupant can give consent if the other occupant is not physically present at the time of the search.

Consent, Authorization to Give. People v Lapworth, 273 Mich App 424 (2006)(dec'06). Police knew from a scene video that defendant and his roommate were in the vicinity at the time of an arson they were investigating. When police visited their home, the roommate implicated defendant, who requested an attorney after being advised of his rights, was arrested, and placed in a squad car. The roommate then consented to police entry, at which point shoes matching a tread pattern at the scene were noted in plain view. Citing Georgia v Randolph, the court held that, in defendant's absence, consent of the roommate to enter the premises was sufficient. There was no need to ask defendant if he consented, even though he was in police control near the premises. Nor did defendant's request for counsel after being given Miranda rights constitute a refusal of consent. The court concluded that the trial court erred when it granted defendant's motion to suppress.

Consent, Scope of Search. People v Wilkens, 267 Mich App 728 (2005)(nov'05). A police officer shining his flashlight into a hole in the shower while conducting a consent search is not unreasonable. The detective was lawfully searching the shower, the device was in plain view, was suspicious, and the detective knew that female tenants used the shower.

Consent, Reasonable Suspicion, Drug Dog. People v Williams, 472 Mich 308 (2005)(may'05). When a traffic stop and the following questions are reasonable, the defendant's consent to search is valid. The defendant was stopped for speeding, and gave inconsistent answers to the officer. The officer called for a drug dog, which indicated drugs in the car. The defendant gave his consent to search the car, then withdrew his consent, at which time the officer obtained a warrant. Cocaine and marijuana were found in the vehicle. A traffic stop for a violation (here, speeding) is more akin to a Terry stop than an arrest; a stop is reasonable as long as the driver is detained only for a reasonable time for the purpose of allowing an officer to ask reasonable questions concerning the law violation and its context; it is proper for the officer to ask questions relating to the reason for the stop, including the driver's destination and travel plans, and follow-up questions when the initial answers were suspicious and contradicted by passengers; where defendant gave implausible answers, officer was entitled to follow up with questions; five to eight minute encounter did not exceed permissible scope of a traffic stop, and consent to search was validly obtained, not the product of an unlawful detention beyond the proper scope of the traffic stop.  

Constructive Entry v Consensual Encounter.  People v Gillam, 479 Mich 253 (2007)(july '07).  Gillam argued that police coerced him out of his apartment by repeatedly asking him to come outside, which amounted to constructive entry into his home for Fourth Amendment purposes, and therefore invalidated his arrest without a warrant and rendered subsequently obtained evidence inadmissible. Investigating alleged drug transactions, three police officers approached Gillam's home and asked him to step outside several times, at which point they arrested him.  Gillam objected at first because he was on a tether from past charges and was scared to step outside, but there was no proof of the police officers using force or threatening language.   The court reversed the court of appeals judgment, and held that Gillam failed to establish that the police constructively entered his home.  It relied on the Sixth Circuit's decision in United States v Thomas, 430 F3d 274, 276 (CA 6, 2005).  In Thomas, the Sixth Circuit stated that, "consensual encounters between the police and citizens were permitted, and they did not become nonconsensual merely because they took place at the entrance of someone's home," and reasoned that the difference between a consensual encounter and a constructive entry is the show of force by police.  The court found that because Gillam failed to show coercive force, there was no improper entry, therefore he was arrested legally, and the trial court erred in suppressing evidence obtained from his home after the arrest.  Justices Kelly and Cavanagh dissented.

Custodial Arrest When State Law Prohibits.  Virginia v Moore, __ US __; __ S Ct __ (No. 06-1082, decided April 23, 2008, 2008 WL 1805745)(april'08).  In this the question before the Court was whether a custodial arrest for a state offense violates the Fourth Amendment when state law does not permit an officer to perform a custodial arrest for that offense.  Moore committed the misdemeanor offense of driving while his license was suspended.  Rather than issue the summons required by Virginia law, police arrested Moore.  A search pursuant to the arrest led to drug charges when crack cocaine was found. Moore was convicted after the trial court denied a suppression motion based on the Fourth Amendment.  The Virginia Supreme Court reversed, holding that because the arresting officers were required to issue a citation under state law, the arrest and resulting search violated the Fourth Amendment. A unanimous United States Supreme Court (Justice Ginsberg filed an opinion concurring in the judgment) determined otherwise, and held that even if the arrest is unlawful because state law doesn't allow the police to arrest for that offense, the arrest does not violate the Fourth Amendment and, therefore, the search incident to the arrest is permissible.

Emergency Aid, Warrantless Entry. Brigham City, Utah v. Stuart, __ US __; 126 S Ct 1943 (2006)(may'06). The Supreme Court held that law enforcement may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury, without violating the 4^th Amendment. In this case, written by new CJ Roberts, police responded to a call concerning a loud party at 3 a.m. and heard shouting. Two juveniles were seen in the back yard drinking beer. Police entered the yard and saw a fight through a screen door and windows (adults restraining juvenile, someone hit). Police entered and occupants charged with contributing to delinquency and disorderly conduct. The Utah courts rejected entry without a warrant on both emergency aid and exigent circumstances grounds.

The U.S. Supreme Court granted cert to even out the differing standards in state and federal courts for warrantless entries in emergencies. Courts have used these tests: 1) straight objective standard, 2) look to circumstances as considered objectively by a prudent and trained police officer, 3) entry cannot be primarily motivated by intent to arrest or seize evidence and 4) primary subjective motivation must be to provide emergency aid. After stating that entry of a home without a warrant is presumptively unconstitutional, the Court said the hallmark is reasonableness and rejected Respondents' invitation to examine the subjective intent of the officers. An Entry is reasonable as long as the circumstances, viewed objectively, justify it. Here, there was an objectively reasonable basis. Unlike a hockey referee, police don't have to stand by until someone is seriously hurt or an altercation becomes too one-sided. This ruling is consistent with the Court's recent elimination of the pretext stop doctrine in auto stop cases. Justice Stevens, concurring, noted that the Utah courts had complained that Respondents failed to raise or brief a state constitutional challenge. The prosecution need not worry about this in Michigan.

Expecation of Privacy, Enclosed Porch; Warrantless Entry, Emergency Aid. People v Tierney, 266 Mich App 687 (2005)(aug'05). In this Marquette case, state troopers learned that defendant was a suspect in the murders of two of his co-workers at a Michigan Department of Corrections prison facility. They went to his parents' home and saw his truck in the driveway. The saw a light in the home and heard loud music coming from inside. They knocked on the door to an enclosed porch, and when no one answered, went through the unlocked porch door, across the porch, and knocked on the inner door. Looking through a window in the inner door as he knocked on it, a trooper saw defendant sitting at the kitchen table with his back to the door, slumped over the table, a rifle and ammunition visible on the table next to his right hand. When defendant did not respond to loud knocking on the inner door, the trooper opened the unlocked door and went in. The officers roused defendant by calling his name, and he lifted his head up and stated, "Just shoot me. I can't spend the rest of my life in prison. Let me kill myself." The court held that entry through the enclosed porch to the inner door of the house in order to make inquiry violated no reasonable expectation of privacy. Though the porch was enclosed, with windows on the outer walls, and they were partially covered with blinds, there was no doorbell or knocker outside the outer door. The inner wall had windows into the house with lace curtains on them, and the inner door to the home was made of wood, with a window in it. A wooden welcome sign was hanging next to the inner house door. The porch appeared to be a storage area, rather than a living area or a place to spend time. There was no doorbell or knocker outside the outer door of the porch. The porch was in fact used for storage, as it contained no heat vents. The court also found entry through the inner door justified by the emergency circumstances doctrine. Under the circumstances observed, the troopers believed that defendant may have shot himself and might be injured. This allowed their entry.

Exclusionary Rule, Use of Evidence in Later, Unrelated Proceeding. People v McGhee, 268 Mich App 600 (2005)(nov'05). Where the violation was deliberate (false statements in a search warrant affidavit), and the officers who participated in the first search also participated, years later, in the search resulting in the instant charges, the second search was within their "zone of primary interest" and the exclusionary rule applies. In this case, however, the court ruled the error harmless on the facts (nonconstitutional error). The case references federal case law on factors to be considered in assessing whether evidence should be suppressed in unrelated proceedings.

Failure to Signal Lane Change = Lawful Traffic Stop.  People v Hrlic, 277 Mich App 260 (2007)(nov'07).  A Central Michigan University police officer watched defendant properly use her turn signal to move onto the street from a parking lot, but when she changed lanes without signaling, she was pulled over and eventually charged with OWI.  The defendant moved to dismiss.  The motion was denied by the district court but granted by the circuit court, which held that language requiring a driver to signal before "turning from a direct line" was vague.  Using dictionary definitions and previous case discussion, judges Talbot, Fitzgerald and Kelly held that moving from one lane to another, while heading in the same direction, constitutes "turning from a direct line," and therefore the traffic stop was justified.  Be careful out there!  

Investigative Subpoena, "Pending Investigation." People v Gadomski, 274 Mich App 174 (2007)(‘feb'07).  The court reversed the trial court's suppression of evidence come at through investigative subpoenas issued improperly, without naming charges or defendants. In reversing, the court relied on the suggestion that there were no state or federal constitutional protections violated, and the congressional ban on such activity (Right to Financial Privacy Act, RFPA) applied only to federal employees. It was also noted that only the recipients of the subpoenas, and not the defendant, had standing to challenge them.

Investigative Subpoena, HIPAA Does Not Restrict. In re Petition of Attorney General for Investigative Subpoenas, 274 Mich.App. 696, 736 N.W.2d 594 (2007) (march'07). The attorney general, acting on behalf of the Michigan Department of Community Health, which was investigating respondent dentist for insurance fraud, sought patient records. The court held that the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits disclosure of protected health information to health oversight agencies for authorized activities. Nor did the dentist-patient privilege statute give solace to respondent dentist who was trying to keep his patient records out of the hands of the AG. That statute contains an exception for disclosures permitted or required under HIPAA. Due process principles are not implicated, and the patient records must be turned over.

Knock and Announce, Exclusionary Rule. Cert grant in Michigan v Hudson, 545 U.S. 1138; 125 S Ct 2964 (2005); re-argument ordered, 547 U.S. 1096; 126 S Ct 1836. Re-argument in this case was held on May 18, 2006. At issue was Michigan's practice of denying application of the exclusionary rule to knock and announce violations. See People v Stevens, 460 Mich 626 (2000). Less than a month after re-argument, the Court held that a no knock violation does not require suppression of evidence found in the search. Hudson v Michigan, 546 U.S. 586; 126 S Ct 2159 (2006)(june'06).

Parolee, Suspicionless Search. Samson v California, 547 U.S. 843; 126 S.Ct. 2193 (2006)(june'06). The court held that a state law that requires parolees to submit to warrantless, suspicionless searches by law enforcement officers at any time does not violate the fourth amendment. The court emphasized that parolees are akin to prisoners in many important respects, and it says that their considerably diminished expectation of privacy against searches without cause does not outweigh the public's strong interest in supervising parolees.

Seizure, Reasonableness - 1983 Action.  Scott v Harris, __ US __; 127 S Ct 1769 (2007)(april'07).  In this excessive force 1983 action the Court held that, in considering the deputy's motion for summary judgment, it was necessary to view the facts in the light depicted by videotape capturing events underlying claim.  Here, police reasonably seized a fleeing motorist by bumping him off the road where the motorist's driving imperils the lives of innocent civilians. 

Search of Car Pursuant to Passenger Arrest.  People v Mungo, 277 Mich App 577(2008)(jan'08).  The Washtenaw County Sheriff's Department made a lawful traffic stop and requested the license of defendant driver and his passenger.  The deputy ran a LEIN check and found the passenger had outstanding warrants.  After arresting the passenger and securing him in a patrol car, the deputy ordered defendant out of the car, conducted a pat-down, and searched the interior of defendant's car, finding a gun and ammunition.  The circuit court suppressed the evidence but the court of appeals reversed, holding that New York v Belton allowed the search.  Defendant cited a Missouri case which held, on nearly identical facts, that a search of a car was unlawful where the passenger was safely arrested and there existed no reasonable suspicion that the driver possessed unlawful items.  After reviewing case law, the Michigan court of appeals determined that the importance of preventing an arrestee from accessing weapons or contraband justifies a bright line rule which applies even where there is little likelihood that this will happen.    

Seizure, Reasonableness in Executing Warrant.  Los Angeles County v Rettele, __ US __; 127 S Ct 1989 (2007)(may'07).  In this case police were executing a valid warrant and were supposedly unaware that the suspects had moved out of the residence three months earlier.  The suspects were black.  Nonetheless, police were justified in ordering a white couple to stand naked for several minutes.  The deputies had authority to secure the residence for their protection, the suspects could have been in the residence despite the fact that the actual detainees did not match their description, firearms could have been concealed in the bedding, and the detention was not longer than necessary.

Seizure, Passenger in Traffic Stop.  Brendlin v California, __ US __; 127 S Ct 2400 (2007)(june'07).  A unanimous Supreme Court reversed the California Supreme Court which had held that a passenger in a car stopped by police did not have standing to challenge a subsequent search and seizure.  An unintended person may be the object of detention by a police officer, for purposes of the Fourth Amendment, so long as the detention is willful and not merely the consequence of an unknowing act.  A passenger in a vehicle stopped by police is seized within the meaning of the Fourth Amendment and thus has standing to challenge the validity of the stop.   

Warrant, Unsupported Anonymous Tip. People v Keller, 270 Mich App 446 (2006)(june'06). Police received an anonymous tip of drug activity in a home, which they attempted to support through surveillance and a "trash pull." They netted only a "roach" and "possible residue." The court held this was insufficient to obtain a search warrant. On December 15, 2006, the MSC directed the clerk of the court to schedule oral argument on whether to grant leave to appeal to the prosecutor. 577 Mich 968 (2006)(dec'06).

B.                Other Pretrial Matters.

180 Day Rule.  People v Darnell Walker, 276 Mich App 528 (2007)(sep'07).  The court held that the 180 day rule applies even when the pending charge subjects defendant to mandatory consecutive sentencing, per People v Williams, 475 Mich 245, 252 (2006).  However, actual notice must be sent by MDOC to trigger the 180 day clock, irrespective of the prosecutor's actual knowledge of defendant's incarceration.  Remanded to determine if notice was sent and if 180 days can be said to be attributable to prosecutor following this notice.  There is no "good faith" exception.  Defendant's claims that delay after arrest (speedy trial) and pre-arrest delay required reversal were rejected.  The supreme court, on February 6, 2008, vacated portions of the opinion as dicta, including the discussion of the "good faith" exception.  2008 WL 314831.

Discovery.  People v Cox, 268 Mich App 440 (2005)(oct'05).  Defendant was convicted of CSC 1 on the theory that the complainant was not capable of consenting to the act.  However, it was not disclosed to the defense that the complainant had pled guilty to larceny.  Defendant asserted that if complainant was competent to plead she could consent to sex.  The court held defendant failed to pursue proper channels for obtaining the information when he failed to move for a discovery order.  Error held harmless in any event.

Discovery in OUIL Case.  People v Greenfield, 271 Mich App 442 (2006)(june'06).  In this case, Judge Henry Saad writing for the court, the court of appeals reversed the circuit court's order affirming district court discovery sanctions against the prosecutor.  The court held that a booking room videotape does not come within the class of discoverable material specifically provided by rule (MCR 6.201), and therefore defendant was required to establish good cause for discovery of this material under 6.201(I), which he failed to do.  Therefore the district court erred as a matter of law in ordering discovery.  The tape was destroyed after discovery was ordered, and a footnote leaves open the question of whether a different result might ensue if prosecution/police were seen to be engaging in "gamesmanship" with respect to the loss of evidence.  As to good cause, defendant failed to show or even argue that 1) the booking video was exculpatory, 2) anything on the tape would be favorable to him or 3) the officer improperly prepared for or administered the datamaster tests.  Practice tip:  Show good cause for discovery of anything not specifically listed in the court rule!

Guilty Plea; Sentencing Consequences, Knowing and Intelligent.  People v Boatman, 273 Mich App 405 (2006)(dec'06).  The court first determined that habitual offender sentencing consequences were not covered by the plea advice court rule (MCR 6.302).  Therefore the rule was satisfied by advice that the offense at issue carried a two-year maximum despite the fact that defendant was sentenced to 3-15 years as a fourth offender.  The court urged the supreme court to fix the rule.  However, the court went on to find an unintelligent plea where confusion over which set of guidelines would be used constituted a "procedural flaw."  Servitto, J., concurring, would have found a court rule violation. 

Joinder and Severance.  People v Girard, 269 Mich App 15 (2005)(sep'05).  Joinder, over defendant's objection, of a CSC I charge and a charge of possession of child sexually abusive material was not error. The crimes were related under MCR 6.120(B): complainant and the defendant's wife testified that defendant viewed the sexual images of children on his computer while engaging in sexual acts with them; and the joinder was not unduly prejudicial under MCR 6.120(C).

Double Jeopardy. People v Smith, 478 Mich 292 (2007)(june '07). Smith was convicted of two counts of first-degree felony murder with larceny as the predicate felony, two counts of armed robbery, and four counts of possession of a firearm during the commission of a felony. Smith asserted that his convictions for both first-degree felony murder and armed robbery violated the Double Jeopardy Clause of the Michigan Constitution.
The Court of Appeals found that there was no evidence that Smith had committed the separate offenses of robbery and larceny, and found that defendant's armed robbery convictions violated double jeopardy. The Court of Appeals vacated defendant's two convictions and sentences for armed robbery and the accompanying convictions for felony-firearm. The Michigan Supreme Court found that the Court of Appeals erred in its double jeopardy analysis by comparing the felony-murder convictions to the non-predicate felonies of armed robbery. Because armed robbery was not the predicate felony involved in the instant felony-murder convictions, reversal is not required pursuant to People v Wilder, 411 Mich 328 (1981). The court held that Blockburger sets forth the proper test to determine when multiple punishments are barred on double jeopardy grounds, overruling People v Robideau, 419 Mich 458, 355 NW2d 592 (1984). The court reasoned that each of the crimes for which Smith was convicted, first-degree felony murder and armed robbery, have an element that the other does not, therefore they are not the "same offense," and because of this Smith's convictions of first-degree felony murder and the non-predicate armed robbery withstood constitutional scrutiny under the same-elements test. The court reversed the part of the judgment of the Court of Appeals that vacated the armed robbery convictions and sentences and two of the felony-firearm convictions and sentences. Justices Kelly and Cavanagh dissented.

Double Jeopardy, Dual Sovereignty Doctrine.  People v Davis, 472 Mich 156 (2005)(april'05).  The majority adopts the United States Supreme Court's "dual sovereignty" doctrine. The Double Jeopardy Clause under the state constitution does not bar successive prosecutions by two States for the same conduct. Noting, " ...we overrule precedent with caution," the Court overrules People v Cooper, 398 Mich 450; 247 NW2d 866 (1976).

Double Jeopardy, FA and RA Convictions.  People v Chambers, 277 Mich App 1 (2007)(oct'07).  Defendant was alleged to have come up behind a woman while she was accessing her ATM, assaulted and robbed her. The court held there was no double jeopardy violation for convictions of both armed robbery and felonious assault.  Using the Blockburger test, the court found that these two crimes each require proof of an element that the other does not.  Armed Robbery requires actions in the course of committing larceny, and Felonious Assault requires actual use of a dangerous weapon.

Double Jeopardy, Two Meth Lab Prosecutions.  People v Meshell, 265 Mich App 616 (2005)(april'05).  Convictions and sentences for both operating or maintaining a methamphetamine laboratory and operating or maintaining a methamphetamine laboratory within five hundred feet of a residence, arising out of the operation of a single methamphetamine laboratory, violate a defendant's double jeopardy protections against multiple punishments.

Double Jeopardy, Felony Murder and Underlying Felony.  People v Joezell Williams, 475 Mich 101 (2006)(may'06).  Resisting the exhortation of Justices Weaver and Corrigan to allow multiple convictions (in this case premeditated murder, felony murder and larceny from a person, the underlying felony), the majority, in a short Memorandum opinion, maintained the traditional means of avoiding double jeopardy implications by imposing one first degree murder conviction supported by two theories and vacating the additional murder conviction and the larceny conviction.

Exclusion of Confession and Witness Testimony in Habeas Case.  People v Frazier, 478 Mich. 231, 733 N.W.2d 713 (2007) (june ‘07). Defendant was convicted of two counts of felony-murder, one count of armed robbery, and two counts of possession of a firearm during the commission of a felony. Frazier filed petition for writ of habeas corpus.  The United States District Court for the Eastern District of Michigan, conditionally granted petition when it determined that retained counsel had abandoned Frazier during interrogation, and ruled that, in event of retrial, his confession and testimony of street sweeper witnesses be excluded as, "fruit of poisonous tree." The case was set for retrial, and the Circuit Court ruled that exclusionary rule applied to Frazier's confession, but that street sweepers' testimony would be allowed if prosecution could show that identity of witnesses would have been discovered anyway. The state appealed and the Court of Appeals, affirmed in part based on determination that exclusionary rule applied to street sweepers' testimony, and remanded for application of inevitable discovery doctrine.
            The Supreme Court found that a claim of ineffective assistance of counsel as grounds for barring defendant's confession to felony murder and related crimes was governed by the Strickland test, not United States v. Cronic.  Under the Strickland test, "counsel is presumed effective, and the defendant has the burden to show both that counsel's performance fell below objective standards of reasonableness, and that it is reasonably probably that the results of the proceeding would have been different had it not been for counsel's error."  The court also found that the exclusionary rule did not apply to bar testimony of street sweeper witnesses based on a violation of right to counsel.  It further stated that even if the identity of witnesses was obtained as result of misconduct, any connection between a possible Sixth Amendment violation and defendant's identification of those witnesses was too weak to support the argument that the testimony should be barred by the exclusionary rule.  Justices Cavanagh and Kelly dissented. 

Expert Assistance for Indigent Defendants.  People v Carnicom, 272 Mich App 614 (2006)(oct'06).  Defendant was convicted of possession of methamphetamine after levels of the drug were discovered in his blood.  He tried to obtain appointment of an expert and made an offer of proof that the expert in question would be able to test to determine whether his use of prescription drugs could have caused a "false positive" for meth in his blood.  The court of appeals affirmed the trial court's refusal to appoint an expert, stating that "Defendant did not state whether the expert's testimony would be in his favor."  Judge Cooper concurred, feeling that she was bound by the decision in People v Jacobsen, 448 Mich 639, 641 (1005).  However she urged the supreme court to reconsider Jacobsen as its reasoning was "so circular as to render meaningless the right to the appointment of an expert witness."      

Guilty Plea - Withdrawal.  People v Parker, 275 Mich.App. 213, 738 N.W.2d 257 (2007) (april'07).  Post-sentencing plea withdrawal rejected as plea was voluntary - the trial court "strictly complied with MCR 6.302 (B) - (E)."

IAD, Delay Caused by Defense Not Counted.  People v Stone, 269 Mich App 240 (2005)(dec'05).  The Interstate Agreement on Detainers requires that a defendant be tried within 120 days of his return to the state less any delay "for good cause shown in open court." This court holds that delay necessary to accommodate the defendant fits good cause requirement. The defendant's trial took place 149 days after his return. The trial court did not err in deducting 35 days from the total delay. The defense requested a 22-day adjournment to research defenses and a delay of 13 more days was necessary due to defense counsel's withdrawal from the case.

Indictment, Sufficiency.  United States v Resendiz-Ponce, __ US __; 127 S Ct 782 (2007)(jan'07).  In a federal prosecution for a violation of 8 USC 1326(a) (unlawful attempt re-entry of the country), the indictment was deemed sufficient when it alleged that defendant attempted re-entry at or near San Louis, Arizona on or about June 1, 2003.  While an overt act is necessary for conviction, it need not be stated in the indictment.

Jury Trial - Waiver.  People v Williams, 275 Mich.App. 194, 737 N.W.2d 797 (2007)(april'07).  The trial court did not coerce a waiver of the right to trial by jury by telling defendant, who wanted to "go home," that it would be "possible to handle this matter a lot sooner" if defendant accepted a bench trial. 

Pretrial Publicity, Change of Venue.  People v Cline, 276 Mich App 634 (2007)(sep'07).  Defendant was convicted of kidnapping and 17 counts of first degree vulnerable adult abuse after his blind, diabetic wife found photos "of her hogtied, nude and lying face down."  In some of the photos defendant's wife had a bag over her head and she appeared to be struggling to breathe.  Despite pretrial publicity, some of which related to passage of torture legislation prompted by this case, counsel was not ineffective for not requesting a change of venue.  The percentage of the venire recused for bias (36) was "not so high as to engender the presumption of a widespread community hostility toward defendant."  The totality of circumstances did not overcome the seated jurors' assurances of impartiality.  Since a motion for change of venue would have been denied, counsel was not ineffective for not making it. Randy Davidson of SADO filed a leave app in the MSC on 11/5/07.

Prosecutor and Investigator - Bad Combination?   People v Tesen, 276 Mich.App. 134, 739 N.W.2d 689 (2007)(june '07).  This case dealt with a question of first impression.  The state appealed a circuit court ruling that a prosecutor should be disqualified from trying a felony child sexual abuse case because he took a lead role in the criminal investigation by conducting the first forensic interview of the complainant.  The court of appeals upheld the circuit court's disqualification of the prosecutor reasoning that although others were present when he interviewed the complainant, the prosecutor was the only one who could testify about certain necessary aspects of the interview, therefore he was a necessary witness.

Speedy Trial, 180 Day Rule.  People v Cleveland Williams, 475 Mich 245 (2006)(june'06).  The court overruled the decision in People v Smith, 438 Mich 715 (1991) and held that the 180 day rule does apply when the pending charge provides for mandatory consecutive sentencing.

Speedy Trial, Continuance, Waiver.  Zedner v United States, 547 US 489; 126 S Ct 1976 (2006)(june'06).  A defendant may not prospectively waive application of the Speedy Trial Act.  The act does not exclude delay periods prospectively waived by a defendant.  Although complete waivers are permitted, there is no indication Congress intended to allow prospective waivers, and such waivers would be contrary to the public interest in prompt trial proceedings.  The failure to make findings in support of a continuance can never be harmless error.  Defendant was not estopped from raising the issue. 

State Jurisdiction Over Crime on an Indian Reservation.  Scott William Moses v Department of Corrections and People of the State of Michigan, 274 Mich App 481 (2007)(march '07).  Moses was convicted of CSC III. He contended that because he was an enrolled member of the Saginaw Chippewa Tribe, and because the offense occurred within the Isabella Indian Reservation, jurisdiction over him was exclusively federal or tribal.  Moses filed an original complaint for habeas relief. The Court of Appeals held that habeas corpus was an available remedy for Moses to assert a radical defect in the trial court's jurisdiction.  It also found that Moses did not waive his right to raise a jurisdictional challenge, and that the trial court had jurisdiction to preside over a case stemming from an offense that occurred on swampland that had been patented to Michigan prior to reservation treaties.  The court further held that the state was permitted to make defensive use of collateral estoppel to preclude a habeas claim and dismissed Moses' complaint.

Untimely Retrial Permitted after Federal Habeas Win.  People v Scott, 275 Mich App 521(2007)(march ‘07).  Defendant was convicted of murder in the second degree, and possession of a firearm during the commission of a felony.  Scott asserted that the state lost jurisdiction to retry him when it did not comply with a US district court order conditionally granting a writ of habeas corpus.  The federal district court's conditional habeas writ vacated his prior convictions of murder I and felony firearm, and ordered that Scott be released if he was not retried within 90 days.  Proceedings to retry Scott did not occur within 90 days, however, on appeal, he failed to cite any authority to support his claim that the state lost jurisdiction to retry him.  The court also found that Scott failed to show that the delay of trial proceedings negatively affected his ability to mount a defense. 

C.                Confrontation, Counsel and Other Trial Issues.

Confrontation, What is Testimonial? In Crawford v Washington, 541 US 36 (2004) the Supreme Court flatly prohibited introduction of testimonial statements from a non-testifying declarant. The issue of the day is what constitutes testimonial. The Crawford court established the floor: prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and answers to police interrogations. A broader, defense favored view has been adopted by the Sixth Circuit: pretrial statements that declarants would reasonably expect to be used in a criminal prosecution. Michigan courts have gravitated toward the narrow definition. In April, 2005 (People v Nicholas Jackson, 472 Mich 884 (2005)) and in June, 2005 (People v Alvin C. Walker and People v Mileski, 472 Mich 928 (2005)) the Michigan Supreme Court granted leave in three cases to, among other things, assess this issue.

On February 9, 2007, the Michigan Supreme Court decided People v Jackson, 477 Mich 1019 (2007)(feb'07) by order, holding that "the father's hearsay statement made to the police about the event in controversy should not be admitted because it constituted error in light of Crawford [citation omitted]." In People v Alvin C. Walker, 273 Mich App 56 (2006)(nov'06), after the MSC sent the case back to the court of appeals for reconsideration in light of Davis and Hammon (see below), the court of appeals ruled, consistent with the holdings of Davis and Hammon, that statements of a purported domestic assault victim to a 911 operator were admissible, but that admission of complainant's written statement recorded by a neighbor and her statements to police at the scene (no evidence of continuing danger) constituted reversible error. In Mileski, again after remand from the MSC for reconsideration in light of Davis/Hammon, the court of appeals issued an unpublished decision, People v Mileski, unpublished per curiam decision of the court of appeals, entered January 4, 2007 (Docket No. 248038), 2007 WL 28288 (jan'07), holding that defendant's conviction must be reversed because two of three statements were inadmissible under a confrontation argument. In a CSC 1 case, the complainant's statements to a neighbor seeking help were admissible, but later statements to a police officer and an investigating nurse were meant to build a case against the defendant, not to deal with an emergent situation, and should not have been admitted in the complainant's absence under Crawford/Davis/Hammon.

On June 19, 2006, the Supreme Court decided Davis v Washington and Hammon v Indiana, 547 US 813; 126 S Ct 2266 (2006)(june'06). In Davis the complainant's statements to a 911 operator were made as defendant was allegedly assaulting her. These were deemed not testimonial and admissible. In Hammon, the Court held that statements to police and an affidavit they took after they arrived at the scene in the wake of a late night report of a domestic disturbance, were testimonial and could not be admitted without confrontation and cross examination. The Court distinguished these cases by noting that the complainant in Davis was not describing past events and was in fact facing an ongoing emergency. Her statements were necessary to resolve the emergency rather than directed to describing what happened in the past, and they lacked the formality of the excluded statements in Hammon and Crawford. The Court held that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 2273-2274. Early reviews, and remands (GVR's) and cert denials by the United States Supreme Court in the wake of the Davis/Hammon decisions, suggest that the direction of the Court is toward extended support of the right. See O'Toole and Easterley, Davis v. Washington: Confrontation Wins the Day, NACDL Champion (March, 2007) at 20.

Confrontation, Nontestimonial Emergency Statement.  People v Jordan, 275 Mich App 659 (2007)(april ‘07).  Defendant was convicted of CSC I, first-degree home invasion, and unarmed robbery after he broke into the apartment of a 73-year-old woman, raped and robbed her, and then fled. DNA evidence later identified defendant as the perpetrator.  Jordan argued that the complainant's statements made immediately following the assault to a gas station owner and the complainant's own landlord were testimonial, and under Crawford should be barred by the Confrontation Clause. Under Davis v. Washington, 547 U.S. 813; 126 S Ct 2266, "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."  The court of appeals upheld the trial court's decision and concluded that the complainant's statements were nontestmonial because they were made in an attempt to obtain emergency care, and necessary to resolve the ongoing emergency.  The court stated, "The 73-year-old victim, clothed in her nightgown, was outside in the early morning hours yelling for help because she had just been raped and robbed...Under the circumstances, any reasonable listener would recognize that [the victim] was facing an ongoing emergency."

Confrontation vs. Rape-Shield Exclusion.  People v Dabb, unpublished opinion per curiam of the Court of Appeals, issued December 4, 2007 (Docket No. 271566)(dec'07).  Defendant was convicted of four counts of CSC 2, victim under 13.  The trial court excluded evidence that a male complainant was caught with his pants down sexually abusing a three-year-old.  Because the male complainant's allegations against defendant arose after he was caught, the complainant's sexual misconduct is indicative of bias and goes to show an ulterior motive for making a false charge against defendant.  Therefore it was error to exclude this evidence pursuant to the rape-shield statute.

Confrontation vs. Rape-Shield Exclusion.  People v Piscopo, 480 Mich 966 (2007)(dec'07).  Defendant was a pastor convicted of CSC 2 for a touching during a religious ceremony.  There were 100 people present and no one would corroborate the complainant's testimony.  Defendant sought to admit evidence that the complainant had made prior false allegations of sexual abuse against another pastor, and claimed to have been raped by a demon.  None of this was allowed, primarily due to the rape-shield statute.  The court of appeals affirmed and the supreme court granted leave. In their December 2007 order the supreme court vacated their earlier leave grant and denied leave to appeal.  Justice Markman wrote a lengthy dissent explaining the severity, on these facts, of the Sixth Amendment violation in this case.  He was joined by Justice Cavanagh.    

Crawford and Dying Declarations. People v Taylor, 275 Mich App 177 (2007)(april'07). Police forcibly entered a house after neighbors said they heard gunshots. The shooting victim was in his bedroom, bleeding profusely. Police repeatedly told him he might not make it and asked him to identify his assailant. The trial court and the court of appeals both first suggested that the statements identifying the killer as "booger" were not testimonial as they were taken in the "hectic minutes" immediately following the shooting. This reasoning is highly suspect as police were clearly attempting to develop a historical record for purposes of prosecution as opposed to obtaining information to deal with an ongoing emergency. Any claim that other people in the house could prove to be a danger until/unless information from the victim as to the shooter was supplied is tenuous. Any such danger could certainly have been dealt with alternatively. Alternatively, both the trial court and the court of appeals relied on dicta from Crawford suggesting that dying declarations may have survived the sweeping change of direction in treating confrontation clause issues. Because they were admissible at common law, it was suggested that the testimonial-nontestimonial distinction is not applicable to dying declarations. "No one would have the hardihood at this day to question their admissibility." Mattox v United States, 156 US 237 (1895).

Confrontation, Dying Declarations.  People v Geracer Taylor, 480 Mich 946 (2007)(nov'07).  The supreme court has granted leave to determine whether identification testimony was testimonial, whether it was a dying declaration, and whether, after Crawford, the Sixth Amendment right to confrontation can be trumped by a dying declaration.    

Other Michigan Confrontation Cases. In People v Lonsby, 268 Mich App 375 (2005)(oct'05), defendant was convicted of CSC I and II for molesting his twelve-year-old granddaughter. At trial, the prosecution presented a state police serologist who, without objection, testified about results obtained by a different serologist regarding a stain found on the defendant's swimsuit. The testimony was inadmissible hearsay and violated the defendant's right of confrontation under Crawford. The trial court's denial of defendant's motion for new trial on this issue was an abuse of discretion. The error was not harmless as the prosecutor not only relied on this inadmissible evidence but also mischaracterized it to defendant's disadvantage. Only one judge signed the opinion. The other two concurred in result only. In People v Bauder, 269 Mich App 174 (2005)(dec'05) and People v Jones, 270 Mich App 208 (2006)(march'06), the court dealt with the doctrine of forfeiture (of the confrontation right) by wrongdoing. While the doctrine requires that the defendant's act(s) causing the declarant's unavailability be for the specific intent of avoiding the testimony at trial, the Bauder court applied the doctrine where it was alleged that defendant murdered the declarant. Since it is highly unlikely that someone would kill to avoid testimony from a declarant during a trial for the murder, the court's application here threatens to open up an exception for the alleged victim's previous statements, testimonial or not, in any murder case. Finally, in People v Shepherd, 472 Mich 343 (2005)(may'05), the court held Crawford error (introduction of a prior plea transcript) harmless.

Confrontation, Nontestifying Experts.  People v Horton, 480 Mich 987 (2007)(dec'07).  On August 28, 2007, Bandstra, Cavanagh and Jansen issued a per curiam unpublished opinion, holding that a serologist's testimony regarding the findings of nontestifying technicians related testimonial evidence.  The court of appeals' panel held that, under Crawford, reversal was required.  Not surprisingly, our supreme court has granted leave to determine how they will manage to reverse that decision. 

Confrontation, Not Introduced to Prove Truth.  People v Chambers, 277 Mich App 1 (2007)(oct'07).  This case involved an ATM robbery where the culprit's photo was taken by the machine.  During trial the lead detective testified that he got a phone call from an FBI agent who told him that the agent's informant had told the agent that the man in the photo was defendant Chambers.  The court held that Crawford does not apply, and the confrontation clause is not implicated, where the out-of-court statement is not introduced to prove its truth.  Here the prosecution claimed that the out of court, testimonial statement identifying Chambers was introduced solely to show why police set up surveillance on Chambers and later arrested him.  No indication of whether a limiting instruction was requested or given.

Crawford Not Retroactive. In Whorton v Bockting, __ US __; 127 S Ct 1173 (2007)(feb'07), the Supreme Court examined Crawford under Teague, finding that Crawford announced a new rule, procedural as opposed to substantive, and not a "watershed" rule as it did not implicate fundamental fairness since it was not essential to prevent an impermissibly large risk of an inaccurate conviction, nor did the new rule "alter [this Court's] understanding of the bedrock procedural elements essential to the fairness of a proceeding." Therefore Crawford, while "certainly important" was not retroactive because, unlike Gideon v Wainright, it did not institute "a profound and sweeping change."  On October 31, 2007, the United States Supreme Court heard arguments in Danforth v Minnesota, concerning whether Crawford can be applied retroactively by the states despite the decision in Whorton. 

Bruton Error Held Harmless. People v Pipes, 475 Mich 267 (2006)(june'06). Two defendants were convicted of murder in the first degree after a joint trial at which each of their statements to police were admitted. Neither defendant testified. The court agreed that Bruton v United States, 391 US 128 (1968) was violated. However, unpreserved constitutional errors are reviewed for plain error affecting substantial rights. Defendants could not show reversible prejudice, actual innocence or that the error seriously affected the fairness, integrity or public reputation of the trial. Thus the error was deemed harmless.

Confession; Miranda Rights, Deaf Mute. People v McBride, 273 Mich App 238 (2006)(dec'06). Defendant was arrested and charged with open murder after her boyfriend died of multiple stab wounds. After police learned that defendant was a deaf mute they brought in an interpreter from Sing Language Services of Michigan for the interrogation. At a suppression hearing a certified level-four interpreter, after reviewing videotape of the interrogation session, testified that the interpreter brought in by police was translating word-for-word and not relaying concepts of what the interrogating detective was saying. The expert concluded that the defendant did not understand the totality of the rights advice, she was "left to guess and assume a lot." The trial court suppressed the confession, concluding there was no knowing and intelligent waiver. The court of appeals, although holding that a defendant need not make a "specific statement of waiver," upheld the trial court's suppression using a totality of circumstances analysis, and concluding that on this record it is unclear whether defendant adequately understood her Miranda rights.

Confession, Miranda, "one form of speech over another." People v Williams, 275 Mich App 194 (2007)(april'07). In this case a police officer took defendant's oral statement after giving warnings, after which defendant refused to reduce the statement to writing. The first officer "scrupulously honored" the refusal as an assertion of Fifth Amendment rights. Hours later, a second officer re-approached defendant, again advised him of his Miranda rights, and took additional statements. The court, ruling on a claim that trial counsel was ineffective for failing to challenge the second interrogation session, held that while an assertion of the right to counsel will preclude additional interrogation sessions unless initiated by a defendant, the act of choosing one form of speech over another by refusing to provide a voluntary oral statement in writing does not preclude police from trying again.

Confession, Vienna Convention. Moises Sanchez-Llamas v Oregon, __ US __; 126 S Ct 2669 (2006)(june'06). Suppression of statements given to police is not an appropriate remedy when police fail to inform foreign nationals of their right to have their consulates notified of their arrests under the Vienna Convention on Consular Relations. Procedural default rules apply to Vienna rights violations.  

Counsel, of Choice. United States v Gonzalez-Lopez, 548 US 140; 126 S Ct 2557 (2006)(june'06). Defendant was denied his counsel of choice when the court refused to allow out of state counsel to represent him. This is structural error and no additional showing of ineffectiveness is required to make the violation "complete." Harmless error, a speculative inquiry in this context, does not apply. The decision does not qualify previous holdings that the right to counsel of choice does not extend to defendants who require appointed counsel.

Counsel, Right on Appeal. Halbert v Michigan, 545 US 605, 125 S Ct 2582 (2005)(june'05). After a decade long quest, Wayne State University Law School Associate Dean David A. Moran successfully overturned Michigan's attempt to deprive the poor of the assistance of counsel for their first appeal (which had been changed to an appeal by leave by referendum) in cases where the defendant had pled guilty or nolo contendere.

Counsel, Right on Appeal. People v James, 272 Mich App 182 ( 2006)(aug'06). In the wake of Halbert Judge Kolenda in Kent County was continuing to deny counsel, here on a waiver theory. The court of appeals, following pronouncements by the United States Supreme Court in Halbert, found that a defendant can't waive a right he did not have and did not know of. Judge Kolenda's order denying counsel was reversed. See also, Simmons v Kapture, 474 F3d 869 (CA6 2007)(jan'07) holding that Halbert did not announce a new rule and is therefore retroactive.

Counsel, Failure to Advise, Plea. People v Cagle, 472 Mich 884 (2005)(april'05). Where defendant alleged he was not advised of a statute of limitations defense when he pled no contest to CSC, the case was remanded to determine if the defendant was informed of the statute of limitations and whether he wanted to waive the defense; if he was not so informed, convictions would have to be vacated (an order case, significant because it indicates ineffective assistance can be found for failure to advise even for an otherwise voluntary guilty plea).

Counsel, Self-Representation, Waiver. People v Willing, 267 Mich App 208 (2005)(sep'05). Defense counsel stated, at pre-trial entrapment and Walker hearing, that the defendant wanted to represent himself, but the defendant only said that he wanted time to find new counsel. The court held under these circumstances there was no valid waiver of counsel; though the defendant's waiver of counsel and request to represent himself at trial was valid, the pre-trial waiver was invalid. The court held this was a critical stage of the proceedings, and thus a structural error occurred, requiring reversal without inquiry into harmless error.

Counsel, Confession, Fruit of the Poisonous Tree. People v Frazier, 270 Mich App 172 (2006)(march'06) (lv grtd to pros, 477 Mich 851 (2006))(sep'06). The defendant's pre-trial statements obtained in violation of his Sixth Amendment right to counsel can be used to impeach the defendant if he testifies at trial. However, the prosecutor is prohibited from calling two witnesses whose names defendant revealed during the illegal interrogation unless the prosecutor can establish that the witnesses would have been inevitably discovered independent of the defendant's confession. Note: the court applied the fruit of the poisonous tree doctrine to confessions obtained in violation of the Sixth Amendment, something the United States Supreme Court has not explicitly done.

Counsel, Interlocutory Appeal, IAC. People v Murphy, unpublished per curiam decision of the court of appeals, entered October 12, 2006 (Docket No. 258397), 2006 WL 2924751(oct'06)(lv grtd to pros, 477 Mich 1019 (2007))(feb'07). Defendant was denied his right to counsel when trial defense counsel failed to file a brief opposing the prosecutor's emergency interlocutory appeal of the trial court's suppression of a shotgun seized by police. Interlocutory appeal was deemed a critical stage on these facts. The supreme court granted leave to the prosecutor on February 9, 2007, 477 Mich 1019 (feb'07).

Counsel, Investigatory Effectiveness and Right to Present Defense.  People v Shahideh, 277 Mich App 111 (2007)(oct'07).  The court of appeals, 2-1, ruled that the trial court erred in not allowing a privately retained psychologist to evaluate defendant in jail.  Shahideh was charged with the bludgeoning death of his girlfriend and defense counsel sought an evaluation to determine whether an insanity defense would lie.  The prosecution insisted that the dictates of 768.20a be followed to the letter, which, according to the prosecutor, meant that a notice of insanity would have to be filed and the forensic center analysis performed before an independent review could be undertaken.  The trial court agreed and refused to permit access by the retained psychiatric expert.  No defense of insanity was raised and defendant was convicted.  The court of appeals reversed, holding that defendant's right to counsel and his right to present a defense were infringed.  Counsel had a right, even a duty, to do what he could to assess whether a notice of insanity should be filed and there was a right to present the defense if it was supported.  PRACTICE NOTE:  The logic of the majority should be used to argue that experts in various fields should be appointed for indigent defendants when their assistance is necessary to assess whether particular defenses, legally or factually, are available.  See Judge Cooper's dissent, on the circular reasoning of the majority, in People v Carnicom, 272 Mich App 614 (2006).

CSC - Other Acts Evidence - New Legislation.  People v Pattison, 276 Mich.App. 613, 741 N.W.2d 558 (2007)(sep'07).  This case involves a defense interlocutory appeal of the trial court's decision to admit other acts evidence under MRE 404(b) and MCL 768.27a in a CSC I case.  Defendant was charged with sexual abuse of his daughter when she was 13-14 years old.  The trial court allowed evidence of defendant's alleged sexual assaults of a former fiancé under 404(b).  Since MCL 768.27b now allows courts to admit any relevant evidence of other domestic assaults "to prove any issue, even the character of the accused," the court of appeals did not have to reach the 404(b) issue and the evidence was properly admitted.  However, evidence that defendant sexually harassed a co-worker, which was not a domestic assault, was too attenuated to be admissible under 404(b).  Evidence that defendant abused four other minors is permitted under recently revised MCL 768.27a which permits such evidence "for its bearing on any matter to which it is relevant."  Defendant's ex post facto challenge was rejected because the statutory change relaxing the rules of evidence did not change the quantum of proof necessary to convict.  The court also rejected a separation of powers challenge to revised MCL 768.27a.  

CSC - Other Acts Evidence - New Legislation.  People v Brook, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2007 (Docket No. 278193)(nov'07).  This is another case opening the floodgates on other act evidence in CSC cases involving children under recent revisions to MCL 768.27a.  Here, defendant was charged with taking photos of a minor female in 1996.  The trial court denied the prosecutor's request to admit evidence alleging that defendant fondled a different minor female while she slept in 2001 and 2002 (defendant had been charged with this but not convicted).  The trial court excluded the evidence on relevance grounds and did not reach the issue of whether it was too prejudicial.  The court of appeals found that the evidence was "at least minimally relevant" and not overly prejudicial.  This case is particularly disappointing because Judge Beckering was on this panel and did not dissent.

CSC - Other Acts Evidence - New Legislation.  People v Lincoln Watkins, 277 Mich App 358 (2007)(dec'07).  In line with Pattison, the court holds that revised MCL 768.27a, allowing any uncharged sexual offenses against minors to be introduced against a defendant if they have any relevance, must be given preeminence over MRE 404(b).  This panel pretty much held that this evidence is always relevant, and there is no longer any need to show similarity (the trial court had excluded allegations of defendant's misconduct with another minor because it was not similar to the acts being charged).  On April 23, 2008 the Michigan Supreme Court granted the defendant's application for leave to appeal. 

CSC - Other Acts Evidence.  People v Kahley, 277 Mich App 182 (2007)(nov'07). Evidence that defendant allegedly sexually abused his girlfriend's four-year-old son, in his trial for abuse of another four-year-old, was held admissible after a similarity analysis (common scheme, plan, system) citing Knox, Sabin and Hine.  Apparently this evidence was introduced prior to the statutory revisions discussed in Pattison. 

PRACTICE NOTE:     In Pattison, supra at 620-621, the court stated that "[a]lthough we find this information [allegations that a criminal defendant committed other sexual acts against minors] extraordinarily pertinent to a given defendant's behavior in a similar case, we caution trial courts to take seriously their responsibility to weigh the probative value of the evidence against its undue prejudicial effect in each case before admitting the evidence.  See MRE 403."  The Pattison court went on to hold that the trial court there did not abuse its discretion in admitting the evidence.  It appears that by "similar" Pattison is simply referring to any sex crime against a minor.  Unless someone can mount a successful federal due process challenge, it appears that the only way to keep this evidence out is to convince the trial court that the prejudicial effect outweighs the probative value.  There is very good material available in the SADO brief bank and elsewhere, particularly statements by Imwinkelreid, regarding the highly prejudicial nature of evidence that a defendant committed other criminal acts.  As Professor Imwinkelreid explains:

"Experienced trial attorneys know that the judge's ruling on the admission of uncharged misconduct can be the turning point in a trial. Uncharged misconduct evidence will usually sink the defense without [a] trace. Some veteran defense attorneys shape their entire trial strategy to avoid the admission of uncharged misconduct evidence.  The available research data confirms this belief....[T]he admission of a defendant's uncharged misconduct significantly increases the likelihood of a jury finding of liability or guilt....[A]s a practical matter, the presumption of innocence operates only for defendants without prior criminal records. Evidence of uncharged misconduct strips the defendant of the presumption of innocence." Uncharged Misconduct Evidence (3/99 rev), at § 1:02, p 6 (citations omitted) (emphasis added).       

Date and Time of Offense, Child CSC. People v Dobek, 274 Mich App 58 (2007)(jan'07). Despite specific dates on the Information, and despite an alibi for critical portions of that period, the court of appeals approved the trial court's instruction to the jury that "time was not an element of the crime." The court noted that the prosecution need only prove that the alleged acts were committed before the victim's 13^th birthday in this ten-year-delayed father-daughter CSC prosecution.

Defendant's Appearance. Deck v Missouri, 544 US 622 (2005)(May'05). A defendant may not be routinely placed in visible physical restraints during either the guilt or penalty phases of a capital proceeding. Shackling or visible physical restraints must be "justified by an essential state interest"-such as courtroom security-specific to the defendant on trial. The Court also held that the defendant does not need to show prejudice to make out a due process violation when shackling or visible physical restraints are routinely used.

Defense, Right to Present. Holmes v South Carolina, 547 US 319; 126 S Ct 1727 (2006)(may'06). The South Carolina courts excluded evidence of third party guilt in a murder case. A third party was seen near the scene of the murder and had later confessed to others. South Carolina said that since there was forensic evidence that, if believed, would support the defendant's guilt, the trial court was justified in suppressing evidence of guilt of another to avoid confusing the fact finder. The Supreme Court firmly held that it is not appropriate to look only at the state's evidence. The evidence of third party guilt was not so speculative or remote that the fact finder would be distracted from the issues in the case.

Defense, Insanity. Clark v Arizona, __ US __; 126 S Ct 2709 (2006)(june'06). Arizona's use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong does not violate due process. The state may restrict the consideration of defense evidence of mental illness or incapacity to its bearing on a claim of insanity. Prohibiting such evidence on the issue of mens rea - or prohibiting diminished capacity evidence - does not violate due process. Only opinion testimony as to mental defect or disease, and not "observation evidence" is restricted. Mental disease evidence is not excluded entirely, and the reasons for requiring it to be restricted are good enough to satisfy fundamental fairness.

Dying Declarations. People v Orr, 275 Mich App 587 (2007)(may '07).    Orr argued that the complainant's statements incriminating him after an earlier shooting should not be admissible as dying declarations.  The court concluded that the traditional requirement that the declarant actually die in order for a statement to be admissible as a dying declaration did not survive the adoption of MRE 804(b)(2), hence, the statement the complainant made identifying Orr to witnesses during the September shooting was admissible as a dying declaration.

Dying Declarations - Children. People v Stamper, 480 Mich 1 (2007)(dec'07).   In this case a four-year-old with multiple injuries implicated defendant after being admitted to the hospital.  He had previously told his mother that he could not open his eyes because he was dead.  He later died.  The trial court admitted the victim's statement implicating defendant under the dying declaration exception, MRE 804(b)(2).  In this unanimous memorandum opinion, the Michigan supreme court held that the four-year-old's statements to his mother that he was already dead, when considered with his injuries, clearly indicated his belief that his death was imminent.  A declarant's age alone does not preclude admission of a dying declaration.

Evidence, Expert Opinion.  People v Mark Steven Unger, __ Mich App __ (No. 272591, decided March 20, 2008)(mar'08).  The fact that the prosecutor's pathologist was "a cagey and evasive witness at the preliminary examination," did not perform the autopsy in this case, was unable to specifically identify any medical or scientific literature to support his conclusions, and disagreed with other experts in the case, does not render his opinions inadmissible.  "[T]he trial court's role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes." Citing Chapin v A&L Parts, Inc., 274 Mich App 122, 127 (2007).  The prosecution pathologist's testimony that Defendant's wife died as a result of drowning, and not from head injuries caused by an accidental fall, testimony central to the prosecution's circumstantial case, was admissible because, according to the court, the  pathologist "didn't use bizarre methods."

Evidence, Expert Opinion, Foundation, Hearsay.  People v Donna Alice Yost, __ Mich App __ (No. 270983, decided March 27, 2008)(mar'08).  See Facts at I.C. Evidence, Right to Present Defense, infra.  Statements of Defendant and test results upon which an expert bases an opinion are not generally excludable as hearsay, as they are not admitted to prove their truth.  It was thus error to prohibit expert testimony, based on the test results and statements of Defendant regarding her background, to show Defendant's limited intellectual abilities in order to explain prosecution evidence concerning Defendant's behavior and statements. 

Evidence, Expert Testimony on Characteristics of a Sex Offender. People v Dobek, 274 Mich App 58 (2007)(jan'07). The court upheld the exclusion of a prominent psychologist (Dr. Andrew Barclay), whose evidentiary hearing testimony indicated that his thorough analysis and testing indicated that defendant did not fit the profile of a sex offender. Under MRE 702, the court held that the evidence was not scientifically reliable. The court distinguished People v Ackerman, 257 Mich App 434 (2003), permitting similar testimony in support of the prosecution, indicating that the Ackerman court approved of an expert testifying to patterns and behaviors of other offenders in similar circumstances "as substantiated by scientifically collected data in order to help explain to the jury the actions in the case before the court." Practice Note: You should have your expert focus on specific behavior issues, i.e. lack of grooming activity, a claim that sexual activity took place while others were in vicinity, rather than on a generalized claim that a tested defendant did not fit a "sex offender profile."

Evidence, Fingerprint Cards, Authentication and Admissibility. People v Jambor, unpublished per curiam opinion of the court of appeals, issued January 4, 2007 (Docket No. 259014) 2007 WL 29698(jan'07). The evidentiary saga began in May of 2006 when the court of appeals issued a published opinion, People v Jambor, 271 Mich App 1 (2006), holding that the trial court, in a b & e case, properly excluded evidence of four print cards on the ground that the prosecution failed to lay a proper foundation. On September 14, 2006, the Michigan Supreme Court reversed by order, concluding that the print cards had in fact been sufficiently authenticated, 477 Mich 853. On remand for consideration of remaining issues, the court of appeals reversed the trial court's suppression and dismissal orders, holding that the print cards (the maker of the cards had died prior to litigation) were admissible as a hearsay exception (MRE 803(6), business records) and there was no confrontation clause violation on the ground that business or public records were not testimonial under Crawford. Judge Cooper concurred, but urged the supreme court to consider whether the exception to the public record exception in MRE 803(8), as to matters observed by police officers in criminal cases, should keep these cards out. Judge Cooper felt that allowing the cards under the business records exception (803(6)) was a stretch.

Evidence, Hearsay, Excited Utterance.  People v David Carl Barrett, __ Mich  __ (No. 133128, decided April 14, 2008)(April '08).  The Michigan Supreme Court granted leave to determine whether the excited utterance rule, MRE 803(2) demands that, as a prerequisite to admission of an out of court statement, a startling event be established independent of the statement.  Overruling People v Burton, 433 Mich 268 (1989), the majority held that a trial court can consider any evidence not subject to privilege in determining whether evidence sought to be admitted at trial is admissible.  Therefore it is proper to consider an excited utterance when determining whether a startling event or condition is established to the point where that same excited utterance can be admitted.  Justices Cavanagh and Kelly joined in a dissent.

Evidence, Impeachment. People v McGhee, 268 Mich App 600 (2005)(nov'05). The trial court abused its discretion in refusing to permit defendant to present evidence that a 1992 drug possession, which was introduced as a prior bad act under MRE 404(b), resulted in a dismissal of charges and that a civil suit by defendant resulting from that case was settled. The evidence was relevant to assess the credibility of the police witnesses. The court again found that the error was harmless.

Evidence, Investigative Subpoena Testimony, Right to Present a Defense. People v Farquharson, 274 Mich App 268 (2007)(feb'07). Genesee prosecutors, investigating a Flint homicide, brought in a witness under the investigative subpoena statute. The witness testified that someone other than the defendant shot the decedent in the case under investigation. Later the witness was shot and killed in another Flint shooting. The trial court granted the defense motion to admit the deceased witness's investigative subpoena testimony. The prosecutor appealed and the court remanded for further consideration by the trial court, setting out factors to be utilized in assessing whether the prosecution had a similar motive (as at trial) in developing the witness's testimony at the investigative subpoena hearing. The constitutional argument on the right to present a defense was not considered, as it was not properly raised by way of cross-appeal.

Evidence, MRE 702 and 703, Daubert Issue. Chapin v A & L Parts, Inc., 274 Mich App 122 (2007)(jan'07). The court discussed the "gatekeeper" role of the trial court after the recent revisions to MCR 702 and 703 with respect to introduction of expert witnesses. The court's role is not to "search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes" but rather to assure that expert opinions are rationally derived from a sound foundation. In this case the issue was whether the plaintiffs' expert, who presented evidence of a causal connection between mesothelioma and the inhalation of brake lining dust, should be able to testify in the face of a defense expert who opined that causation could only be established through controlled epidemiological studies. The plaintiff's expert, who was clearly well qualified, had used case studies to establish causation. The court of appeals affirmed the trial court, who had allowed the plaintiff's expert, essentially because this was a situation where two well qualified experts disagreed. A Daubert hearing under MCR 702 and MCL 600.2955 is a threshold inquiry to ensure the trier of fact is not being subjected to junk science, as opposed to a judicial search for the truth or a method of resolving scientific disputes.

Evidence, Defendant's Polygraph.  People v Kahley, 277 Mich App 182 (2007)(nov'07).  A police officer testified that defendant refused to take a polygraph.  Defendant "began to object" but never completed the objection.  The court nonetheless held this was plain error.  But under the facts here, the court held the error harmless, citing Carines.  The court mentioned the implication of defendant's right to remain silent when evidence that he has refused to take a polygraph is admitted.

Evidence, Prior Consistent Statement under 801(d)(1)(B).  People v Charles Eugene Walker, unpublished opinion per curiam of the Court of Appeals, issued November 27, 2007 (Docket No. 271740)(nov'07).  After being arrested on unrelated felony charges, Raymond Henry implicated defendant in the instant larceny charges.  The prosecutor, over objection, introduced Henry's prior consistent statements implicating defendant to a police detective.  Because Henry made the statement after he was arrested, and thus after a motive to falsify arose, the statement did not satisfy the fourth condition for admission under 801(d)(1)(B).  Under the facts of this case, the improper admission of the claimed consistent statement was not harmless error.    

Evidence, Prior False Allegations and Rape Shield; Confrontation Error. People v Jackson, 477 Mich 1019 (2007)(feb'07). The majority, by order, overturned defendant's CSC conviction because he had not been permitted to introduce, under MRE 404(b), evidence that the complainant's father had induced complainant to level false allegations against others. The majority held this evidence did not violate the rape shield statute, MCL 750.520j. The majority also noted that the father's hearsay statement to police about the event in controversy should not have been admitted under Crawford. Weaver and Young filed separate dissents, with Corrigan joining Young's dissent.

Evidence, 404(b) Other Acts.  People v Donna Alice Yost, __ Mich App __ (No. 270983, decided March 27, 2008)(mar'08).  See Facts at I.C. Evidence, Right to Present Defense, infra.   The trial court abused its discretion when it allowed the prosecution to elicit testimony concerning Defendant's alleged prior physical abuse of her children to prove malice.  Also, while the trial court properly admitted evidence that protective services had investigated allegations of abuse against the deceased child (as motive, since Defendant was aware of this), a probative versus prejudice analysis should have led to exclusion of specific allegations of abuse.

Evidence, 404(b) Other Acts, Exclusionary Rule. People v McGhee, 268 Mich App 600 (2005)(nov'05). The trial court abused its discretion under MRE 404(b) in admitting evidence of a prior bad act where that evidence was illegally seized. Defendant was on trial for a drug offense arising from a 1998 drug raid on his house. Over objection, the prosecutor was permitted to introduce evidence that police raided his house in 1992 and found very similar drugs. Because the 1992 evidence was seized in violation of the constitution, the court held the exclusionary rule still applies to the later use of the evidence under 404(b). The court found the error harmless in this case.

Evidence, 404(b) Other Acts. People v Dobek, 274 Mich App 58 (2007)(jan'07). In this ten-year-delayed father-daughter CSC prosecution, the court approved admission of claims that the defendant molested his sister-in-law and a babysitter, and numerous uncharged acts alleged by the complainant. The court held that the other acts evidence was not character or propensity evidence, but properly established a scheme, plan or system, "as well as intent."

Evidence, Right to Present Defense.  People v Donna Alice Yost, __ Mich App __ (No. 270983, decided March 27, 2008)(mar'08).  FACTS:  Defendant's seven-year-old daughter died in 1999 - Defendant was home with her daughter around 6 p.m. when the daughter could not be awakened.  The daughter suffered a seizure, stopped breathing, and subsequently died.  An autopsy could discern no cause of death, but later blood testing showed significant amounts of imipramine in the daughter's system - the drug had been prescribed for the daughter to control bedwetting and anxiety.  The medical examiner, and prosecution pathologist, testified that it would take more than 90 of the prescribed imipramine pills to arrive at the levels registered, and due to the lack of pill residue in the daughter's stomach, concluded that the pills had been dissolved in liquid.  Therefore this was a homicide.  The prosecutor's other main line of attack focused on Defendant's statements and actions after her daughter's death, and suggested that this evidence showed guilt and was inconsistent with the statements and actions of a typical grieving mother.  Due to the trial court's rulings the defense was unable to introduce substantial evidence showing the mother's reactions and statements were due to mental deficiencies and that much lower amounts of the drug were in the daughter's system, and there was no evidence that the drug had been liquefied. 

            The court held that the trial court erred when it prevented Defendant's daughter and her expert psychologist from testifying regarding Defendant's intellect, judgment, etc. as a means of shedding light on Ddefendant's behavior and statements.  The elimination of the "diminished capacity defense in People v Carpenter, 464 Mich 223 (2001) does not mean a legally sane defendant can never present evidence of mental disorder or limited mental capacity where such evidence is relevant to case issues.      

Evidence, Right to Present Defense, Basis for Pathologist's Testimony under MRE 703. People v Donna Alice Yost, __ Mich App __ (No. 270983, decided March 27, 2008)(mar'08).  See Facts at I.C. Evidence, Right to Present Defense, supra. Addressing the issue sua sponte, the court held that restrictions placed on a defense pathologist's testimony denied Defendant her right to a fair trial and to present a defense.  The trial court erred in barring the pathologist's testimony because he relied on medical texts for certain information regarding the drug imipramine and other matters.  MRE 703 does not bar use of this information as hearsay because it did not deal with "facts or data in the particular case" under the rule. 

Evidence, Silence in the Wake of Miranda Warnings.  People v Shafier, 277 Mich App 137 (2007)(oct'07).  The prosecutor introduced defendant's silence after warnings during exam of a police officer and on cross-examination of defendant, and claimed during closing argument that the silence was evidence of guilt.  The defendant was charged with CSC, there was no physical evidence, and the jury initially deadlocked.  Nonetheless, the majority found the Bobo-Doyle issue harmless, noting that, despite repeated objections by the defense, the closing argument use of the evidence was not objected to.  Judge Alton Davis, in dissent, excoriated the majority for this "anomalous conclusion." A pro se MSC application has been filed. 

Hearsay Statements Regarding the Sale of Property Admissible As Evidence?  People v Caban, 275 Mich App 419 (2007)(may '07).  Caban was charged with larceny by false pretenses over $20,000, for fraudulent sale of property. When the complainant was asked at the preliminary examination whether she had been told by the property owner that the defendant had permission to sell the house, defendant objected and the trial court upheld the objection. The property owner was not available to testify and the district court would not adjourn the preliminary examination for more than two days, so the charges were dismissed without prejudice. The prosecutor then appealed to the circuit court, which affirmed. The Court of Appeals initially denied leave to appeal, but the Supreme Court remanded the matter for consideration as on leave granted.  The question presented in this case was whether a hearsay statement regarding the defendant's authority to sell a parcel of real estate is admissible at a preliminary examination under MRE 1101(b)(8).  The court reversed the circuit court's judgment and concluded that the statement is admissible because it concerned who had an ownership interest in the property.  The court found that the term "ownership" is undefined in the rule of evidence, and that the definition of "ownership" includes the right to convey property to others.  Therefore, any statement regarding whether Caban was a joint owner of the property, or if the property owner solely owned the property himself, would be a statement regarding ownership. Accordingly, the property owner's statement was admissible under MRE 1101(b)(8).

Inferior v Cognate Lesser Offenses.  People v Nyx, 734 NW2d 548 (2007)(july '07).  Nyx was the dean of a Detroit area school.  He was charged with three counts of CSC I for assaulting a female student between the ages of 13-16.  The trial court convicted Nyx of two counts of CSC II. On appeal he asserted that the trial court was without authority to consider the cognate lesser offense of CSC II.  The Court of Appeals agreed with Nyx, and held that the ban in People v Cornell, 466 Mich 335 (2002) against considering cognate lesser offenses had been violated by the trial court.  The supreme court granted the prosecutor's application for leave to appeal.  Relying on Cornell, the supreme court held that MCL 768.32(1), permitting conviction of a degree of a charged offense inferior to that of the charged offense, precludes a judge or a jury from convicting a defendant of a cognate lesser offense.  The court further held that CSC II was not inferior to CSC I because CSC II contains elements that are not within CSC I.  The court also ruled that the trial court's consideration of CSC II as an inferior offense of CSC I amounted to plain error that was not harmless, requiring vacation of the conviction.  Justice Markman concurred with a separate opinion.  Justice Cavanagh concurred in result only, with an opinion that Justice Kelly joined.  Justice Young concurred in part, and dissented in part with an opinion that Justice Weaver joined.  Justice Corrigan dissented.

Jury-Anonymous, People v Hanks, 276 Mich.App. 91, 740 N.W.2d 530 (2007)(june '07).  Defendant was convicted of CSC II and sentenced to 50 months to 15 years in prison.  Hanks contended that the trial court's policy of identifying jurors by numbers violated his right to due process - this issue was not objected to at trial and thus not preserved.  The court of appeals reviews unpreserved issues for clear error.  The court, in People v Williams, defined an "anonymous jury" as "one in which certain information is withheld from the parties, presumably for the safety of the jurors or to prevent harassment by the public." 241 Mich App 519, 522; 616 NW2d 710 (2000).  The court in Williams elaborated that, "A challenge of an ‘anonymous jury' will only succeed where the record reflects that withholding information precluded meaningful voir dire or that the defendant's presumption of innocence was compromised."  Relying on Williams, the court of appeals upheld the trial court ruling and stated, "the record demonstrates that the juror questionnaires containing biographical information were provided to the parties, and that both parties conducted extensive voir dire...Hanks failed to demonstrate that the use of numbers prevented him from conducting meaningful voir dire or that his presumption of innocence was compromised." 

Jury, Batson Violations. The prohibition of discriminatory use of peremptory challenges, prohibited by the United States Supreme Court in Batson, was underscored in a pair of recent decisions. In Johnson v California, 125 S Ct 2410 (2005)(june'05), the Court held that permissible inferences of discrimination are sufficient to establish a prima facie case of discrimination. The burden is on the party exercising the peremptory challenge (here the prosecutor) to adequately show a race-neutral justification. California's requirement that a party making a Batson challenge demonstrate that it is more likely than not that the opponent's challenge of jurors was based on group bias, is inconsistent with Batson. In Miller-El v Dretke, 125 S Ct 2317 (2005)(june'05) the prosecutor's use of peremptory challenges on 91% of the eligible blacks in the jury panel created an inference of discrimination. Since the non-racial reasons offered by the prosecutor for those challenges were not credible, and since the evidence showed other efforts by the prosecutor to keep blacks off the jury, the defendant was entitled to habeas relief. In Michigan, Batson challenges by the defense have not fared as well. In People v Knight, 473 Mich 324 (2005)(july'05), defense counsel raised a Batson challenge to the prosecution's dismissal of three African-American women. The prosecutor responded that she had also excluded four Caucasian venire members and offered race-neutral reasons for excluding the African-American venire members. The supreme court found no Batson violation. Even if the jury pool is predominately Caucasian, a Batson violation does not occur when a majority of the African-American members are dismissed if there are race-neutral reasons for the dismissals. On the other hand, our supreme court has found a defense violation in People v Bell, 473 Mich 275 (2005)(july'05), reversing 259 Mich App 583 (2003). In that case defense counsel attempted to peremptorily dismiss three Caucasian males in a row. The trial court sua sponte raised a Batson issue. Defense argued that because the majority of the remaining jurors were Caucasian, there was no violation. The supreme court held that a trial court may raise a Batson issue sua sponte. In addition, because defense counsel did not offer a race neutral reason for the dismissals, counsel violated Batson.

In Rice v Collins, 546 US 333 (2006)(jan'06), the United States Supreme Court found that a state prosecutor's race-neutral rationale for dismissing a black juror (she was young and "rolled her eyes" in response to a question from the judge) passed muster under the narrow review standard in the AEDPA. In a habeas case, under 28 USC 2254(d)(2), the state court's conclusion that a permissible race-neutral reason existed must be unreasonable if relief is to be granted. The Court found that it was not here and reversed the Ninth Circuit.

Jury Instructions, Coercive Deadlocked Jury Instruction. People v Rouse, 272 Mich App 665 (2006)(nov'06). In a 2-1 opinion the court reversed defendant's CSC 2 convictions after the trial court told the jury, who had declared an impasse during the second day of deliberations, that a mistrial declaration would "result in everybody coming back, the victim and the defendant included, and going through this entire process again with another jury. That is a difficult situation." The jury was also told that justice would be compromised if they could not reach a verdict. The majority found these instructions coercive and a substantial departure from the approved deadlocked jury instructions. On March 28, 2007, the MSC reversed in an order for reasons stated in the dissent. People v Rouse, __ Mich __ (No. 132820, decided March 28, 2007)(march'07).

Jury Instructions, Failure to Instruct on Key Defense. People v Hawthorne, 474 Mich 174 (2006)(april'06). In a PC opinion, over the dissent of Justices Cavanagh and Kelly, the court reinstated a murder 2 conviction after the court of appeals had reversed because the trial court refused to instruct on the defense of accident where accident was the central issue in the case. The court held that failure to instruct on a key defense is automatic reversal only where defendant satisfies the Lukity standard (460 Mich 484 (1999)).

Defendant was involved in a fight with a gun, the gun went off, and several seconds later defendant was heard to say "I'm sorry, ...I didn't shoot you," after which defendant told a witness he shot the victim by accident, worked to get aid to victim, and told the witness to call 911. There was allegedly money missing from the victim's jacket. The trial court did not give the accident instruction, citing two court of appeals cases (Hess and Morin) because defendant engaged in another unlawful act - an assault - by pointing the gun and threatening. Even if the shooting was truly accidental, defendant did not have "clean hands" and could therefore not benefit from the instruction on accident as a defense. The court of appeals held Morrin and Hess did not preclude an accident instruction as to murder, which includes intent as an element, even if defendant was criminally negligent. Although the Michigan Supreme Court agreed with this, the majority, overruling Lester II and Ora Jones to the extent they are inconsistent, held that preserved nonconstitutional error requires reversal only if it is outcome determinative (more probable than not) or results in a miscarriage of justice. In other words the failure to instruct must undermine the reliability of the verdict in the eyes of the reviewing court. Here the majority, despite the implication of denial of federal constitutional rights to trial by jury and to present a defense, held that the error was not outcome determinative as the jury instructions explaining the intent element of murder made it clear that a finding of accident would be inconsistent with a finding that defendant possessed the intent required for murder.

Jury Instructions - Lesser Offenses; Statutory Involuntary Manslaughter v Second Degree Murder.  People v Randy R. Smith, 478 Mich 64 (2007)(may '07).  Defendant was convicted of murder in the second degree and possession of a firearm during commission of a felony. The court held that statutory involuntary manslaughter under MCL 750.329 is not an inferior offense of second-degree murder, because statutory involuntary manslaughter contains elements that are not included in second degree murder.  Accordingly, statutory involuntary manslaughter is not a necessarily included lesser offense.  The court also followed Cornell and further held that a jury instruction of statutory involuntary manslaughter was not necessary. People v Cornell, 466 Mich 335 (2002)  Justices Cavanagh and Kelly dissented.    

Jury Instructions, Lesser Offenses. People v Otterbridge, 477 Mich 875 (2006)(Sep'06). By order, with Justices Corrigan and Weaver dissenting, the court peremptorily reversed a felonious assault conviction. The circuit court erred by convicting under Cornell, 466 Mich 355, as FA is a cognate, not a lesser included, of assault with intent to murder, of which defendant was acquitted. The majority disagreed with the court of appeals on whether defendant satisfied his burden under Carines, 460 Mich 750, finding that he did as he could not lawfully be convicted of FA under the circumstances of this case.

Jury Instructions, Lesser Offenses. People v Gillis, 474 Mich 105 (2006)(april'06). The court held that manslaughter is a necessarily lesser included offense of murder and must be instructed upon if supported by a rational view of the evidence. Here, however, where defendant drove the wrong way on an interstate for several minutes in order to avoid police pursuit, the evidence in the resulting crash death could not support a finding of gross negligence or an intent to injure without malice. Instead, defendant knowingly created a very high risk of death or great bodily harm and the trial court did not err by failing to give an involuntary manslaughter instruction.

Jury Instructions - Lesser Offenses.  People v Keith Burnell Davis & Gilberto Estrada Perez, 277 Mich App 676 (2008)(jan'08).   Where an assault with intent to rob armed was thwarted by a storeowner and her fiancé, there was no error in refusing a charge on the lesser offense of attempted assault with intent to rob.  There was no showing that the efforts of defendant were "peremptorily thwarted...by a locked door or a debilitating fall from the back stairs."  Where, as here, the defense was that under all the circumstances (finger-gun pointed pocket; general incompetence of robbers) there was no real assault, the trial court sufficiently instructed the jury by giving an instruction on the lesser offense of attempted robbery.   

Jury Instructions, Lesser Offenses - Notice. People v Martin, 271 Mich App 280 (2006)(june'06). Keeping a house of prostitution (MCL 750.452) is not a necessarily lesser included offense of racketeering (MCL 750.159f(c) and .159g(ee)). As a result, and based on notice principles, it was error to instruct on this uncharged offense as a lesser included offense and the conviction for keeping a house of prostitution is vacated.

Jury Instructions - Lesser Offenses; statutory involuntary manslaughter v second degree murder.  People v Randy R. Smith, 478 Mich 64 (2007)(may '07).  Defendant was convicted of murder in the second degree and possession of a firearm during commission of a felony. The court held that statutory involuntary manslaughter under MCL 750.329 is not an inferior offense of second-degree murder, because statutory involuntary manslaughter contains elements that are not included in second degree murder.  Accordingly, statutory involuntary manslaughter is not a necessarily included lesser offense.  The court also followed Cornell and further held that a jury instruction of statutory involuntary manslaughter was not necessary. People v Cornell, 466 Mich 335 (2002)  Justices Cavanagh and Kelly dissented.    

Jury Selection.  Snyder v Louisiana, __ US __; 128 S Ct 1203 (2008). (mar '08) In a fact-based opinion dealing with a death case, the Court held that the trial judge erred in turning aside a Batson challenge where the only "race-neutral" explanation that was not clearly pretextual, that the struck juror was "nervous," was not supportable on the record and was proffered by the prosecution without explanation.  The Court side-stepped a determination of whether, once a discriminatory intent is shown to be a factor, the burden shifts to the prosecution to show such intent was not determinative.  "It is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution." 

Prosecutorial Misconduct. People v Dobek, 274 Mich App 58 (2007)(jan'07). The court (Murphy, J.) presented a tutorial on the many and diverse ways to rule against the defense on serial and egregious prosecutorial misconduct in this ten-year-delayed father-daughter CSC prosecution. For example, improper closing argument issues were waived because, for the most part, those problems objected to were not raised on appeal, and those issues raised on appeal were not specifically objected to at trial. There was an extended discussion on the issue of prosecutorial questioning on religious beliefs.

Similar Act Evidence from a Previous Crime. People v Orr, 275 Mich App 587 (2007)(may '07).  Orr was convicted of first-degree murder and possession of a firearm during the commission of a felony.  Orr was first charged with shooting his sister's boyfriend, on September 8, 2003, in Detroit, but police could not locate Orr at the time. The complainant recovered from his injuries, but was shot and killed on February 3, 2004, at a Citgo gas station in Detroit.  Orr argued that the prosecution should not have been able to present the September shooting at trial.  He asserted that the similar act evidence was not relevant to the charged crime and its prejudicial effect outweighed its probative value.  The prosecution argued that evidence of the prior shooting of the same person who was killed in the case at hand was logically relevant to show motive, premeditated intent, and absence of mistake.  The court found that the trial court sufficiently identified the specific purposes for which the prosecutor sought to admit the evidence.  The court reasoned that the prosecutor used the prior shooting of the complainant to establish motive, and if a prior act tends to show why a perpetrator committed a "seemingly random and inexplicable attack," then the prior act is relevant for purposes other than the impermissible purpose of showing a defendant has a propensity for violence. 

Witnesses, Prosecution Failure to Call Res Gestae Witness. People v Cook, 266 Mich App 290 (2005)(july'05). Due to the amendments to MCL 767.40(a), People v Pearson, 404 Mich 698 (1979), requiring a post-conviction hearing when the prosecutor fails to produce a res gestae witness, is no longer good law. Because the prosecutor now only has a duty to disclose known witnesses and provide reasonable assistance to the defense to produce witnesses, an evidentiary hearing is not required simply because the prosecution failed to produce a res gestae witness. The court did observe that a diligence hearing may be required if the defense contested the assistance provided upon request.

Witnesses, Necessary Expert, Late Endorsement.  People v Donna Alice Yost, __ Mich App __ (No. 270983, decided March 27, 2008)(mar'08).  See Facts at I.C. Evidence, Right to Present Defense, supra.  Defendant was denied her right to present a defense when the trial court refused to allow late endorsement of a critical witness (toxicologist) who could support Defendant's assertion that she was not responsible for the death of her daughter.  Under the unique circumstances of this case the refusal was an abuse of discretion.  The prosecutor's refusal to provide a necessary release after having briefly contacted the toxicologist years earlier was "manifestly unreasonable."

Witness Sequestration - Crime Victim.  People v Meconi, 277 Mich App 651(2008)(jan'08).  Defendant was charged with an assault on a woman visiting his mother's home.  The district court judge, conducting a bench trial, ordered sequestration.  After opening arguments, the alleged victim was called, and the judge noticed that she had remained in the courtroom.  When questioned, the alleged victim told the court that the crime victim advocate had told her to remain.  Ultimately both the district court and the circuit court ruled to exclude the testimony of this witness due to violation of the sequestration order.  The prosecutor argued that under the crime victim amendment to the state constitution, victims have an absolute right to be present and cannot be sequestered.  The two-judge majority opinion ruled in the prosecutor's favor on an alternate ground (abuse of discretion under these facts to disqualify the witness), while hinting that they agreed with the constitutional argument.  Judge Sawyer, concurring, held that Const 1963 art 1, § 24(1) entitles the victim to be present for the entire trial, including those portions of trial that occur before the victim testifies.  

D.                Crimes and Offenses, Sufficiency

Accessory After Fact, Corpus Delicti, Venue. People v King, 271 Mich App 235 (2006)(june'06). The corpus delicti of accessory after the fact is the same as that of the underlying crime. Once the underlying crime is established, no evidence independent of defendant's confession concerning assistance after the fact need be shown. Venue is proper in the county in which the underlying crime occurred, even if assistance was rendered outside that county.

Aid and Abet. People v Robinson, 475 Mich 1 (2006)(may'06). In this case an aggravated assault was committed by defendant and a co-defendant. Defendant and co-defendant went to "fuck up" the victim. At one point in the beating defendant told co-defendant "that's enough" and left. After leaving defendant heard a gun shot. The co-defendant was convicted of murder 1. Defendant was convicted of murder 2 under an aiding and abetting theory. The court of appeals reversed, holding that defendant did not share in or know of the co-defendant's intent to kill.

The supreme court reversed and reinstated the murder 2 conviction holding that, under Michigan law, a defendant who intends to aid and abet a crime is responsible for that crime and its natural and probable consequences. The court affirmed that aid and abet liability can be based on the traditional mens rea of 1) specific intent to commit the crime or 2) knowledge of accomplice intent. However, this is not the only means to a conviction. When the legislature abolished the distinction between principals and accessories it intended all offenders should be convicted of the intended offense (here, aggravated assault) as well as its natural and probable consequences (here, death). In the judgment of the court a natural and probable consequence of a plan to assault someone is that one of the actors may well escalate the assault into murder. This was unlike the situation in Knapp (26 Mich 112 (1872)) where defendant and others had sex (prostitution) with a woman and after defendant left the others threw the woman out of a 2d story window. In that case the court vacated the defendant's manslaughter conviction. This was like Chapman (62 Mich 280 (1886)), where a defendant's request to have a co-defendant seduce his wife so he could divorce her escalated to a rape of the wife by the co-defendant. Defendant's rape conviction was held to be proper. Cavanagh and Kelly dissented.

Armed Robbery. People v Passage, 277 Mich App 175 (2007)(nov'07).  Defendant was convicted of armed robbery after taking a car stereo from a Meijer's store.  Defendant was involved in a physical altercation with store employees, outside the store, after he was confronted with the theft.  The court held that since the armed robbery statute, MCL 750.530, requires force or violence "in the course of," and since that phrase has been defined to include acts that occur "in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of proerty" it was not error to deny defendant's motion for directed verdict based on a claim that any force occurred after the theft.  The court also held that exerting strength to free oneself from another's grasp equals force under the statute.

Assault with Intent to Rob While Armed.   People v Keith Burnell Davis & Gilberto Estrada Perez, 277 Mich App 676 (2008)(jan'08).  Defendants Davis and Perez bungled a robbery, using a note threatening to kill and a "fin