Law Office of F. Martin Tieber
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I.                  Case Law

A.                 Fourth Amendment.

Administrative Search, Warrantless; Tobacco Products.  People v Beydoun,283 Mich App 314; 770 NW2d 54 (2009)(april’09).  State police conducted an “administrative” search of defendant’s place of business pursuant to regular inspection activity under the Tobacco Products Tax Act (TPTA, MCL 205.428(3)), and in this case due to an anonymous tip concerning illegal tobacco products.  Defendant moved to quash in the circuit court, arguing that the administrative search was a subterfuge and this was actually a warrantless criminal search.  The circuit court agreed and suppressed the seized tobacco products.  The court of appeals reversed, holding that the search came under the pervasively regulated industry exception to the warrant requirement, citing Tallman v Dep’t of Natural Resources, 421 Mich 585; 365 NW2d 724(2009).  A seven factor analysis was employed at some length to arrive at the conclusion that the state’s interest in performing warrantless searches under the TPTA outweighs the privacy expectations of those engaged in tobacco transactions.  A subsequent search of defendant’s home was authorized through consent.     

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.

Canine Sniff Not a Fourth Amendment Search.  People v Jeffrey Jones, 279 Mich App 86; 755 NW2d 224 (2008)(may'08).  An informant lead prompted police to bring a "trained narcotics dog" to Defendant's front door where "the dog gave a positive indication for narcotics."  Analogizing to the thermal imaging in Kyllo v United States, 533 US 27 (2001), which SCOTUS held required a warrant, the trial court determined that a canine sniff at the front door of Defendant's residence was a search that must be supported by probable cause and a warrant.  The trial court granted Defendant's motion to suppress.  Distinguishing Kyllo because, unlike a canine sniff which will only detect presence of drugs, the thermal imaging could reveal information regarding lawful activity, the court of appeals held that a canine sniff is not a Fourth Amendment search as long as the dog is lawfully at its vantage point when the sniff occurs.  Judge Borrello, dissenting, would focus on the historical protections afforded the sanctity of the home, and would not distinguish Kyllo on the basis of the illegality of the contraband identified through the search.  As of October 7, 2008, an appeal to the Michigan supreme court was pending.     

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 __; 128 S Ct 1598 (2008)(april'08).  In this case 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, 547 US 398; 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 4th 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!  

Inevitable Discovery.  People v Hyde, __ Mich App __; __ NW2d __ (No. 282782, September 1, 2009)(sep'09).  In this drunk driving case, the trial court and the court of appeals agreed that police had probable cause to obtain a warrant even though their error in advising Defendant, a diabetic, of his rights under the implied consent law, was erroneous.  However, the court of appeals refused to apply inevitable discovery in this circumstance, concluding that to do so would eliminate the warrant requirement whenever probable cause existed.  Using the test set out by some federal circuits ((1)police had high level of probable cause to obtain a warrant, (2) the police were in the process of obtaining a warrant, and (3) the same evidence would have been obtained through the warrant), the court concluded that while 1 and 3 were met, the police here were clearly not in the process of obtaining a warrant.  This preserved constitutional error was not harmless and Defendant's OWI conviction was vacated. 

Investigative Subpoena, Conflict with Psychologist-Patient Privilege.  In re Petition for Subpoenas, 282 Mich App 585; 766 NW2d 675 (2009)(march’09).  The attorney general, acting on behalf of the Michigan Department of Community Health, sought full disclosure of ten patient files in order to investigate “possible billing fraud” on the part of a licensed psychologist.  The trial court originally approved the subpoenas but later quashed them on motion of respondent psychologist.  Analyzing the psychologist-patient privilege statute (MCL 333.18237) in conjunction with the investigative subpoena provision (MCL 333.16235(1)), the court upheld the trial court’s quash of the subpoenas in this case.  The court concluded that there was no ambiguity in the psychologist-patient privilege statute, no exceptions applied here, and reading the provisions together, it is clear the legislature plainly intended to exempt a licensed psychologist’s disclosure of patient records from the investigative subpoena power.  

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.

Investigatory Stop.  People v Horton, 283 Mich App 105; 767 NW2d 672 (2009)(mar’09).  Police received a “man with a gun”tip from an unidentified citizen face to face.  Following up on information provided (make and color of carbeing driven by man waving gun plus location) police effectuated a stop, ordering defendant out of his car to check identification.  Police noticed a weapon on the car seat vacated by the defendant pursuant to their order.  The trial court suppressed and dismissed due to police failure to obtain identifying information from the tipster.  Citing People v Tooks, 403 Mich 568;271 NW2d 503 (1978), and distinguishing Florida v J L, 529 US 266; 120 S Ct1375; 146 L Ed 2d 254 (2000) on the basis that a tip received face to face from a citizen is qualitatively different from an anonymous phone tip, the court of appeals found sufficient indicia of reliability under a three-prong test to justify the investigatory stop here.      

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.

PBT Testing of Minors, Warrantless, Special Needs Exception.  People of the City of Troy v Chowdhury, __ Mich App __; __ NW2d __ (No. 288696, September 10, 2009)(sep'09).  First, the court held that police action requiring those under 21 years of age to take a preliminary breath test is a search.  And while the special needs, or regulatory, exception to the warrant requirement dispenses with the need to show probable cause, unlike other exceptions to the warrant requirement, the government cannot show special needs in this circumstance.  A statute or ordinance that allows searches and seizures in order to ferret out crime, absent the condition of a warrant or an excuse for proceeding without one, is unconstitutional on its face.  The court also negated the city's arguments that consent or exigent circumstances could save the search here.      

Search and Seizure, Good Faith. Herring v United States, __ US__; 129 S Ct 695 (2009)(jan‘09).   The exclusionary rule does not require the suppression of evidence obtained as a result of a search that was conducted on a good faith mistake that the defendant had an outstanding warrant for his arrest - even when the police themselves are the ones to make the mistake.  When the mistakes made by the state that lead to an unlawful search are the result of one instance of negligence, rather than reckless disregard for constitutional requirements or continuous error, the evidence resulting from that search is admissible.

Seizure, Reasonableness - 1983 Action.  Scott v Harris, 550 US 372; 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 ArrestPeople 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.  On May 27, 2008 the Michigan Supreme Court (No. 136017) held the Appellant's leave application in abeyance pending decision of the SCOTUS in Arizona v Gant, 128 S Ct 1443 (2008), which was argued on October 7, 2008.     

Search and Seizure, Vehicular Search Incident to Arrest.  Arizona v Gant, __ US__; 129 S Ct 1710 (2009)(april'09).  The Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety, or a need to preserve evidence related to the crime, in order to justify a warrantless vehicular search under Belton, incident to arrest, conducted after the vehicle's recent occupants have been arrested and secured. Here, unlike in Belton, where one police officer was faced with four unsecured arrestees, five officers handcuffed the defendant and the two other suspects in separate patrol cars before the search began.  Defendant clearly could not have accessed his car at the time of the search, and an evidentiary basis for the search was also lacking.  The search in this case does not fall under any exceptions, and was unreasonable.

Search Incident to Arrest; Good Faith.  People v Richard Reese, 281 Mich App 290; 761 NW2d 405 (2009)(oct’08).  The court of appeals reversed the trial court’s grant of a defense motion to suppress.  Police were patrolling an apartment complex known for narcotics trafficking.  A clearly illegal arrest of defendant on loitering charges led to obtaining defendant’s identification, which in turn led to discovery of a pre-existing warrant.  120 grams of cocaine were found during an inventory search pursuant to arrest on the warrant.  The trial court’s suppression of the cocaine was reversed by the court of appeals based on the warrant, which the court concluded was an intervening, untainted justification for the search of Reese’s car.  The fact that the LEIN information disclosing the warrant was inaccurate did not help defendant Reese’s cause – the officers were protected by the “good faith” exception.  Although the time between an illegal arrest and discovery of an underlying warrant is one of three factors to consider, it is not controlling and the other two factors are key:  1) Whether initial illegality (stop and arrest here) was manifestation of flagrant police misconduct and; 2) Presence of intervening circumstances; or otherwise stated, what evidence was obtained prior to discovery of the outstanding arrest warrant.  If, as here, the only thing police discovered was defendant’s name, and there was no flagrant misconduct, items seized at arrest on outstanding warrant will not be suppressed.

Seizure, Reasonableness in Executing Warrant.  Los Angeles County v Rettele, 550 US 609; 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, 551 US 249; 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.   

Search and Seizure, Terry Searches.  Arizona v Johnson, __ US__; 129 S Ct 781 (2009)(jan‘09).  An officer can pat down a passenger in a vehicle stopped for a minor traffic infraction based on reasonable suspicion that the passenger is armed and dangerous, even when lacking reasonable suspicion that the passenger is committing or has committed any offenses.  Defendant was a passenger in a vehicle, which was stopped for an infraction warranting a citation in an area with high gang activity.  The police officer, after observing Defendant's suspicious behavior and learning Defendant had been in prison, ordered him out of the car so she could question him about his gang affiliation away from the driver.  For her safety, she proceeded to pat him down and felt the butt of a gun.  In Muehler v Mena, 544 US 93, the Court held that a lawful roadside stop begins when a vehicle is pulled over for a traffic violation. The seizure of everyone in the vehicle continues for the duration of the stop. The stop ends when the police, no longer needing to control the scene, allow the driver and passengers to leave.  An officer's questions regarding matters not related to the traffic stop does not remove the encounter from the realm of a lawful seizure, so long as the inquiries do not measurably extend the stop's duration.  Here, the officer, after observing suspicious behavior, asked the defendant to exit the vehicle during a legal traffic stop so she could question him further. All of these actions were valid during this traffic stop, and therefore the officer had the right to pat the defendant down to protect herself without violating the Fourth Amendment.

Strip Searches, School Setting.  Unified School District #1 Et Al v Redding, __ US__; 129 S Ct 2633 (2009)(june'09).  Petitioner alleged that a strip search of her 13 year-old daughter by school personnel, during school hours, violated the girl's Fourth Amendment rights. The Court found that the search of the girl's underwear violated the Fourth Amendment, and that for school searches, "the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause," citing its decision in New Jersey v TLO, 469 US 325.  School searches, "will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."  Id. at 342. Here, the principal had sufficient cause to search the girl's backpack and outer clothing but not to extend the search to the point of making her pull out her underwear.  The content of the suspicion failed to match the degree of intrusion. The fact that the school personnel that searched her claimed to have seen nothing when she pulled out her underwear does not make it an acceptable search, but still a strip search, and its Fourth Amendment consequences are not defined by who was looking and how much was seen.

Third Party Consent to Search Computer.  People v Craig Gordon Brown, 279 Mich App 116; 755 NW2d 664 (2008)(may'08).  Defendant was permitted to use another's computer and set up password protected e-mail files.  The owner of the computer gave police consent to search.  Using En Case, police were able to view the entire hard drive, including the password protected files.  The court of appeals claimed police had no obligation to ascertain whether defendant's files were password protected before taking them pursuant to the consent of the owner of the computer. 

Warrant, Sufficiency of Affidavit.  People v Mullen, 282 Mich App 14; 762 NW2d 170 (2008)(dec’08).  Even though the circuit court did not clearly err in striking a number of items from a police officer’s affidavit in support of a warrant for a blood draw in a drunk driving case based on“reckless disregard for the truth,” including results of an improperly performed horizontal gaze nystagmus test, the non-stricken items adequately supported the warrant.  Therefore, the circuit court erred in suppressing the BAC results.         

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.

Confessions, Counsel, Invocation of.  Montejo v Louisiana, __ US__; __ S Ct __; 129 S Ct 2079 (2009)(may'09). Michigan v Jackson, 475 US 625, which forbids police to initiate interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding, is no longer good law. Jackson is unnecessary because without it defendants would still be thoroughly protected from their coerced admissions being admitted at trial because the Court has taken substantial other measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present.  Under Edwards, interrogation must cease once such a defendant invokes his rights, and under Minnick v Mississippi, 498 US 146, no further interrogation may take place until counsel is present.  Applying Jackson's rule also has the negative effect of allowing crimes to go unsolved and criminals unpunished when un-coerced confessions are excluded, and when officers are deterred from even trying to obtain confessions. Because of other case law, the protection Jackson offers defendants is no longer necessary, and not worth the negative effects it can have on crime solving.

Confessions, Counsel Violation, Use of Statement for Impeachment.   Kansas v Ventris, __ US__; 129 S Ct 1841 (2009)(april'09). A statement obtained from a represented defendant, without a waiver in violation of the Sixth Amendment right to counsel, is admissible as impeachment evidence.   The interests safeguarded by excluding tainted evidence for impeachment purposes are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Also see Stone v Powell, 428 US 465 and Harris v New York, 401 US 222. 

Confessions, McNabb-Mallory Rule.  Corley v United States, __ US__; 129 S Ct 1558 (2009)(april'09).  When the police failed to promptly present an arrested defendant before a magistrate, and instead obtained an incriminating but voluntary statement from the defendant, the statement must be suppressed in federal court because of the McNabb-Mallory rule.  Without this rule, the government would be free to question suspects for unlimited amounts of time before bringing them out in the open, which isolates and pressures the individual, inducing false confessions.

Defenses, Statue of Limitations.  People v Seals, __ Mich App __; __ NW2d __ (Nos. 282215 & 282216, July 14, 2009)(july'09).  Defendant was charged with felony murder after the statute of limitations had run on the underlying felonies.  Stating that there is no statute of limitations on murder, the court rejected defendant's argument that the necessity of a "conviction" on the underlying felony prohibits felony murder charges under these circumstances. 

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!

Disqualification of Prosecutor Who Acted as Forensic Interviewer.  People v Petri, 279 Mich App 407; 760 NW2d 882 (2008)(june'08).  The court of appeals upheld the trial court's refusal to disqualify the prosecutor, distinguishing People v Tesen, 276 Mich App 134, 141 (2007), based primarily on grounds of timeliness of motion (lack thereof prejudiced prosecutor), and availability of other witnesses to testify to necessary facts.  The court, in a footnote, approved the need to examine the forensic interviewer regarding the nature and quality of the interview. 

Disqualification of Prosecutor Who Previously Represented Defendant.  People v Davenport, 280 Mich App 464; 760 NW2d 743 (2008)(aug'08).  This case involves a Presque Isle County CSC conviction.  Defendant was represented at exam by an attorney who, after exam and prior to trial, joined the county prosecutor's office as one of two prosecuting attorneys in that office.  Defendant challenged his replacement trial counsel as ineffective for failing to move to disqualify the prosecutor's office on conflict grounds.  A hearing was ordered, and, after hearing from Jim Samuels, testifying as an expert on the standard of care for legal practice, among others, the trial court found that Defendant had established the first prong of Strickland as trial defense counsel's performance fell below an objective standard of reasonableness.  However, the trial court ruled that Defendant failed on Strickland's prejudice prong. The court of appeals sua sponte ordered a second remand hearing on the issue of whether the Presque Isle County Prosecutor's Office employed appropriate safeguards to ensure that the conflicted attorney did not share information about Defendant's case with the trial prosecutor.  The prosecutor bears the burden of proof on this issue and must show that "it implemented measures to prevent improper communications and that it consistently followed through with these measures."  Failing that, a new trial must be provided.     

Double Jeopardy, Carjacking and Assault with Intent to Rob Armed.  People v McGee, 280 Mich App 680; 761 NW2d 743 (2008)(sep'08).  Applying the Blockburger same elements test and citing People v Parker, 230 Mich App 337 (1998) with approval, the court allowed conviction for Carjacking and Assault with Intent to Rob Armed.  While there is overlap, the two offenses have different elements.

Double Jeopardy, Felony Murder and Underlying Felony. People v Ream, 481 Mich 223; 750 NW2d 536 (2008)(june'08).  Defendant was convicted in Oakland County Circuit Court of first-degree felony murder and first-degree criminal sexual conduct. Defendant appealed. The court of appeals affirmed defendant's first-degree felony murder conviction and sentence, but vacated defendant's first-degree criminal sexual conduct conviction and sentence on double-jeopardy grounds.  The supreme court, Markman writing for the majority, applied the Blockburger "same elements" test, and held that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony does not violate double jeopardy if each offense has an element that the other does not, overruling People v Wilder, 411 Mich 328, 308 NW2d 112, and abrogating People v Harding, 443 Mich 693, 506 NW2d 482.  The fact that each of the offenses for which Defendant was convicted contained an element that the other did not defined them as different offenses within the meaning of the Double Jeopardy Clause, and therefore Defendant could be punished for both.  Justices Cavanagh and Kelly filed separate dissents, both decrying the dismantling of longstanding precedent.

Double Jeopardy, Defining Mental Retardation under AtkinsBobby v Bies, __ US__; 129 S Ct 2145 (2009)(june'09).  Defendant was convicted in Ohio of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy.  Instructed at the sentencing stage to weigh mitigating circumstances (including evidence of his mild to borderline mental retardation) against aggravating factors, the jury recommended a death sentence, which the trial court imposed.  The state court of appeals and supreme court both affirmed the conviction and the defendant petitioned for relief, asserting that the Eight Amendment prohibits execution of a mentally retarded defendant.  Soon after that Atkins v Virginia, 536 US 304, which held that the Eight Amendment does bar the execution of mentally retarded offenders, was decided.  Atkins leaves the task of finding appropriate ways to determine when an offender claiming mental retardation would be removed from the veil of execution to the states.  The District Court then stayed defendant's federal habeas proceedings so that he could present an Atkins claim to the state postconviction court. The state court denied his motion for summary judgment and ordered a full hearing on the Atkins claim - deciding not to go ahead with that hearing, the defendant returned to federal court with the argument that the Double Jeopardy Clause barred the state from relitigating the mental retardation issue. 

The Supreme Court held that the Double Jeopardy Clause does not bar the Ohio courts from conducting a full hearing on defendant's mental capacity. The jury voted to impose the death penalty and the issue here is whether that sentence should be vacated or not - it is not an effort by the state to retry him or increase his punishment. At the time of his sentencing and direct appeal, Atkins was not the guiding decision, and the issue was whether the mitigating factors were outweighed by the aggravating circumstances beyond a reasonable doubt.  The Sixth Circuit erred in relying on Ashe v Swenson here because this case does not involve the kind of "ultimate fact" addressed in Ashe.  There, the state was precluded from trying Ashe for robbing a poker player because he had already been acquitted of robbing a different player in the same game based on a determination that he was not a participant in the poker game robbery.  Here, the defendant was not acquitted, and determinations of his mental capacity were not necessary to the ultimate imposition of the death penalty. The Court also stated that the federal courts' intervention in this case derailed the state court proceeding, and that recourse first to Ohio's courts is what should have occurred under the idea that the issue of applying Atkins is the states' responsibility.

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, Re-trial after Prosecutorial Misconduct.  People v Aceval, 282 Mich App 379; 764 NW2d 285 (2009)(feb’09).  In this drug case both the trial court and the prosecutor allowed perjury without notice to the defense in relation to the CI, and were themselves later charged.  A new trial was granted to the defendant, who subsequently pled guilty prior to new trial proceedings.  Defendant argued on appeal that retrial should have been barred under a due process theory due to the seriousness of the prosecutor’s and trial court’s misconduct, which the court agreed was “disgraceful.” Noting that it is the “misconduct’s effect on the trial, not the blame-worthiness of the prosecutor” that is critical, the court held that the remedy of retrial was sufficient, and a bar to further proceedings was not required by due process.  In a footnote, the court left open the possibility that prosecutorial misconduct designed to avoid or prevent an acquittal might bar a retrial. 

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; Failure to Place Defendant under Oath.  People v Plumaj, __ Mich App __; __ NW2d __ (2009)(june'09).  Defendant pled to various offenses in two cases, including second degree murder.  Several months after he was sentenced to 25 ½ years to 38 ¼ years on the murder charge, Defendant moved to withdraw his plea on several grounds, including ineffective assistance of counsel and various failures in the plea taking process.  The trial court granted withdrawal solely on the basis that Defendant had not been placed under oath during the plea procedure as required by MCR 6.302(A).  After noting that automatic rules of reversal are to be discouraged, the court of appeals sent the matter back to the trial court for a determination of whether the plea was accurate, understanding, and voluntary.  

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. 

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, 549 US 102; 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.

Joinder and Severance.  People v Williams, 483 Mich 226; 769 NW2d 605 (2009)(july'09).  Holding that MCR 6.120(A) and (B) permit joinder in a greater range of circumstances than did the decision in People v Tobey, 401 Mich 141 (1977), the court overruled Tobey, and allowed joinder of two separate sets of drug charges arising out of warrants executed at a motel room registered to Defendant and at a residence where Defendant was present.  The execution of these warrants was separated by several months.  The majority found the offenses could be joined for trial because they were "related."  Justices Cavanagh and Hathaway joined Justice Kelly's dissent. 

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).

Jury Trial - WaiverPeople 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. 

Jury Voir Dire, Consent to Process.  Gonzales v United States, __ US __; 128 S Ct 1765 (2008)(may'08).  Express consent by counsel is all that is needed to allow a federal magistrate judge to conduct jury voir dire in a felony trial.  Defendant's consent is not necessary. 

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, 180 Day Rule.  People v Davis, 283 Mich App 737; 769 NW2d 278 (2009)(may’09).  Pursuant to MCL 780.131 and 780.133, the prosecution must merely “commence the action,” and need not begin trial, within 180 days of receiving the required notice from the MDOC.  The trial court thus erred in dismissing charges against defendant due to violation of the 180 day rule.

Speedy Trial, Defense Delays.  Vermont v Brillon, __ US__; 129 S Ct 1283 (2009)(march'09).  Delays requested by assigned defense counsel, over the objection of a jailed defendant, do not count against the government for purposes of deciding whether the defendant received a speedy trial, even if those delays were arguably attributable to a "breakdown" in the public defense system. Here, the state supreme court incorrectly labeled assigned counsel essentially as state actors in the criminal justice system.  Assigned counsel should be treated the same way as retained counsel, and delays sought by counsel are ordinarily attributable to the defendants they represent.

Speedy Trial, IAD, Failure to Notify.  People v Patton, __ Mich App __; __ NW2d __ (No. 283921, July 30, 2009)(july'09).  Failure to notify Defendant that a detainer was entered against him, a violation of Article III(C) of the Interstate Agreement on Detainers, does not entitle Defendant to vacation and dismissal.  Although dismissal is required if "trial does not occur within the required 180 days" after a prisoner "has made the required request," there is apparently no remedy if prison authorities never tell a prisoner that a detainer was lodged against him.  

Speedy Trial, IAD.  People v Swafford, 483 Mich 1; 762 NW2d 902 (2009)(mar’09).  The Wayne County prosecutor lodged a detainer against a prisoner on a murder charge while the prisoner was serving federal time.  Subsequently the prisoner sent a written request for final disposition under the IAD to the prosecutor.  The prosecutor’s failure to initiate trial within 180 days of the prisoner’s request was fatal.  After noting that it was improper to try and convict the defendant on the murder charge after the court of appeals had reversed the trial court’s IAD dismissal of charges, because a supreme court application was pending, the court unanimously reversed defendant’s conviction and sentence.  The supreme court disagreed with the court of appeals’ rationale for reversing the trial court’s dismissal of charges – that the detainer was lodged before defendant began serving a term of imprisonment (between arrest and conviction on the federal charge).  Because the detainer continues and because defendant filed his request for final disposition of the Wayne County murder charge while he was serving a term of imprisonment, the IAD applies. Neither did the fact that the Wayne prosecutor filed the detainer with the U.S. Marshal rather than the federal Bureau of Prisons defeat defendant’s IAD claim.    

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.

Territorial Jurisdiction, Offense near State Line.  People v Gayheart, __ Mich App __; __ NW2d __ (No. 282690, July 30, 2009)(july'09).  The body of the deceased, a Michigan resident, was found 100 feet into Indiana.  Defendant argued Michigan did not have territorial jurisdiction to try him for murder.  Stating that MCL 762.2, passed by the Michigan legislature in 2002, expanded common law territorial jurisdiction, the court of appeals disagreed with Defendant and affirmed his conviction.  Michigan now has jurisdiction over "any crime where any act constituting an element of the crime is committed within Michigan" irrespective of whether Defendant intended to cause "detrimental effects" in this state.  Jurisdiction may be proved by circumstantial evidence.

Untimely Retrial Permitted after Federal Habeas WinPeople 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; Statements to SANE.  People v Spangler, __ Mich App __; __ NW2d __ (No. 288632, July 21, 2009)(july'09).  The trial court, in this Ingham County case, granted a defense motion in limine to exclude the four-year-old complainant's statements to a Sexual Assault Nurse Examiner (SANE) implicating Defendant in a sexual assault.  The trial court found the statements to be a classic example of testimonial statements under Crawford.  The court of appeals vacated the trial court's order, and sent the case back for an expanded hearing, finding that insufficient evidence was present on this record to establish whether "the circumstances would lead an objective witness to reasonably believe that the statements would be available for use in a later prosecution or objectively indicated that the primary purpose of [the SANE questioning] was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency."  The court reviewed cases around the country on this point, and set out 13 factors that various courts have looked to in making this determination.       

Confrontation, Two-Way Interactive Video Technology.  People v Buie, __ Mich App __; __ NW2d __ (No. 278732, August 25, 2009)(aug'09).  In this CSC case, DNA and medical experts were permitted to testify via two-way interactive video technology.  Defendant failed to object so the matter was reviewed, as an unpreserved, nonstructural constitutional claim, for plain error.  After reviewing case law on two-way interactive technology, the court concluded that the technology is not yet sufficient to conclude that confrontation rights, which include the truth-finding effect of a face-to-face appearance, are adequately protected through this process.  The matter was remanded for a determination by the trial court as to whether, in this particular case, the procedure was "necessary to further a public policy or state interest important enough to outweigh defendant's confrontation rights."

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, Interrogation of Victim by Police, Testimonial.  People v Bryant, 483 Mich 132; 768 NW2d 65 (2009)(jun'09). As the victim in a shooting lay dying, police questioned him about what had occurred.  His statement implicated Defendant, and Defendant was later convicted of murder.  The court of appeals affirmed, holding that the victim's statements constituted admissible non-testimonial hearsay (excited utterance exception).  The supreme court, in a 4-3 decision (Corrigan, Young and Weaver dissenting), reversed, holding that under Crawford, Davis, and Hammon the interrogation elicited statements whose primary purpose was to prove past events potentially relevant to later criminal prosecution, as opposed to meeting an ongoing emergency.  Because the statements at issue were testimonial, it was not relevant that they might have met the excited utterance exception to the hearsay rule in light of Crawford's sweeping revision of Confrontation Clause jurisprudence.  Although Crawford left the door open for dying declarations, the prosecution in this case abandoned that issue by failing to attempt to lay a foundation below. 

Confrontation, Limitation on Cross Examination.  People v Hill, 282 Mich App 538; 766 NW2d 17 (2009)(march’09).  In this carjacking case defendant was cut short on cross examination of the complainant (as to her general drug use) and a police witness (as to the defense theory that the complainant traded the jacked car to someone else for drugs).  The court turned aside Confrontation Clause challenges to both restrictions, stating that there is no right to confront a witness on general credibility issues, and the defense theory regard to trading the car for drugs was too remote and speculative.  The court held that“the Confrontation Clause does not confer a right to impeach the general credibility of a witness.  Boggs v Collins, 226 F3d 728, 737-738(CA 6, 2000).”  But see Vasquez v Jones, 486 F3d 135, 144-146(CA 6, 2007), discrediting Boggs on this point, which our court of appeals failed to acknowledge. 

Confrontation, Nontestifying Experts, Forensic Examiner's Report.  Melendez-Diaz v Massachusetts, __ US__; 129 S Ct 2527 (2009)(june'09).  A Massachusetts state court allowed the admission of certificates stating that material seized by police was a certain amount of cocaine.  The certificates were of state laboratory analysis confirming the substance and amount of cocaine, and were accepted as prima facie evidence of what they asserted.  Defendant argued that the admission of the certificates without the analyst's in-person testimony violated his Sixth Amendment rights within the meaning of Crawford v Washington.  The Court found for the defendant reasoning that, applying Crawford, the certificates, which were affidavits, fall within the core class of testimonial statements covered by the Confrontation Clause. Not only were the certificates made, as Crawford required for testimonial statements, "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," id. at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance's composition, quality, and net weight.  Petitioner was entitled to "be confronted with" the persons giving this testimony at trial.  The Court rejected the claim that because the witnesses were not accusatory, they were not subject to confrontation, pointing out that the absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. 

Confrontation, Nontestifying Experts.  People v Payne, __ Mich App __; __ NW2d __ (No. 280260, July 28, 2009)(july'09).  Citing People v McDaniel, 469 Mich 409; 670 NW2d 659 (2003), the court held that lab reports prepared by nontestifying analysts constitute inadmissible hearsay and were not harmless as to two of four CSC counts.  But see the MSC leave grant in People v Horton, 480 Mich 987 (2007).  The leave grant was subsequently vacated by the supreme court in light of Melendez-Diaz on September 23, 2009, 772 NW2d 46.  The court of appeals also ruled that admission of these reports denied Confrontation Clause rights under the recent decision in Melendez-Diaz v Massachusetts, 557 US __; 129 S Ct 2527; __ L Ed 2d __ (2009).    

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.    

Confrontation; Right to at Probation Revocation Hearing.  People v Breeding, 284 Mich App 471; __ NW2d __ (2009)(june'09).  Defendant was violated after the trial court found he was in the company of children under 16, a violation of a probation condition after a CSC 2 conviction.  The primary evidence against him was in the form of out of court statements by nontestifying witnesses.  After invitation from the supreme court, the court of appeals held that the right to confrontation does not apply to probation revocation hearings.  Probation revocation proceedings are not a stage of a criminal prosecution to which the full panoply of rights need be applied.  Defendant's due process challenge to being revoked and sent to prison on the basis of unconfronted evidence was turned back because his attorney failed to request cross examination and failed to object to the unconfronted evidence.

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.       

Confrontation, Forfeiture by Wrongdoing.  Giles v California, __ US __; 128 S Ct 2678 (2008)(june'08).  The forfeiture by wrongdoing doctrine, in the confrontation context, holds that a defendant should not benefit by excluding testimony using the Confrontation Clause if he is responsible for the absence of the witness from trial.  The Supreme Court restricted its application by holding that, in murder cases, the doctrine does not apply unless the defendant killed the decedent with the intent to prevent him or her from testifying.  

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, 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, 549 US 406; 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, 548 US 331; 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, 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, Effective Assistance.  People v Payne, __ Mich App __; __ NW2d __ (No. 280260, July 28, 2009)(july'09).  In this Kent County case, trial defense counsel failed to meet with his client between exam and trial, waived arraignment and had no hearings between exam and trial, thereby shutting Defendant off from any appearance in court prior to his entry at trial unkempt and in shackles, failed to object to Defendant's inability to groom himself, and to his appearance, for no reason, in shackles, failed to retain experts to review the prosecution DNA evidence, waived opening statement, and improperly cross-examined two of the complainants.  After noting that Defendant's request for a Ginther hearing was denied, the court of appeals nonetheless rejected several of Defendant's arguments claiming Defendant failed to prove prejudice.  The rest of the failures were deemed acceptable strategy.  The court did not indicate whether trial defense counsel made any investigatory effort to explore presentation of expert witnesses.   

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, Federal Counsel Appointment for State Proceedings.  Harbison v Bell, __ US__; 129 S Ct 1481 (2009)(april'09).  A certificate of appealability pursuant to 28 U. S. C. 2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under 18 USC §3599 because §2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding's merits. §3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings, and entitles them to compensation for that representation. The government's argument that Congress meant for §3599 to apply only to federal defendants contradicts legislative history.

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 to Counsel of Choice.  People v Aceval, 282 Mich App 379; 764 NW2d 285 (2009)(feb’09).  In this drug case both the trial court and the prosecutor allowed perjury without notice to the defense in relation to the CI,and were themselves later charged. A new trial was granted to the defendant, who subsequently pled guilty.  Before pleading, however,the new trial judge, Vera Massey Jones, denied original trial counsel’s request to withdraw, and would not allow another attorney permission to participate in the case.  The Court first held that, despite the denials, failure to plead conditionally left the issue unpreserved, but went on to review the counsel issue pursuant to supreme court order.  Analyzing the U.S. Supreme Court’s relatively recent decision in United States v Gonzalez-Lopez, 548 US 140 (2006), the court held that docket efficiency considerations, and the failure of defendant to object to continuation by the original “counsel of his choice,” doomed the issue.

Counsel, Effective Assistance.  People v Chapo, 283 Mich App 360; 770 NW2d 68 (2009)(april’09).  Initially the court noted that it was limiting review to the record, despite defendant’s unsuccessful attempt to conduct a Ginther hearing, as defendant failed to “demonstrate[d] any issue for which further factual development would advance his claim.”  Trial counsel was not ineffective for failing to challenge lawfulness of a police officer’s conduct during a traffic stop as the court had previously determined the conduct was appropriate.  Nor was trial counsel ineffective for failure to object to prosecution comments during closing argument, or for failure to develop, and request jury instructions on, a duress defense. 

Counsel, Ineffective Assistance.  People v Dendel, 481 Mich 114; 748 NW2d 859 (2008)(june'08).  Defendant was convicted at a bench trial of second-degree murder. The court of appeals remanded for a Ginther hearing to determine if Defendant was denied effective assistance of counsel for failure to investigate and present an expert (pathologist) to testify to the lack of evidence that the decedent died of an insulin overdose that the prosecution claimed was administered by Defendant.  The Jackson County trial judge ruled that Defendant received effective assistance. The court of appeals reversed, and the state appealed to the Michigan supreme court.  The supreme court ruled that defense counsel's failure to produce an expert at trial to rebut testimony that the victim died from an insulin overdose did not prejudice Defendant and thus Strickland's second prong was not met.  It further found that trial court's implicit finding at the Ginther hearing that Defendant's expert was not more credible than the prosecution's experts was not clearly erroneous.  For these reasons there was no ineffective assistance argument to be made.  Corrigan, who wrote the majority opinion, also authored a concurring opinion insisting that trial defense counsel's performance was not deficient, and thus Strickland's first prong was also not met, because counsel reasonably relied on his client's statements and wishes, and anticipated the prosecution's experts, in putting forward the defense that the decedent had taken his own life by injecting himself with insulin.  Justices Kelly and Cavanagh dissented.

Counsel, Ineffective Assistance, Multiple Challenges.  People v Petri, 279 Mich App 407; 760 NW2d 882 (2008)(june'08).  Defendant was convicted of CSC, under 13.  The court spent a good deal of time discussing various errors of trial counsel, primarily failures to object on various matters, including a detective's testimony regarding "grooming behavior," and concluded that objections would have been meritless or that the failure to object was not prejudicial.

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).

Counsel, Right to, Point of Attachment.  Rothgery v Gillespie County, Texas, __ US __; 128 S Ct 2578 (2008)(june'08).  Rothgery, who was indigent, was arrested and arraigned on erroneous information that he had a previous felony conviction (felon in possession charge) and, despite repeated requests, was not provided counsel until he was later indicted and jailed.  He brought a 1983 action against the county claiming that the routine practice of denying counsel to indigent defendants on bond until an indictment was entered violated his Sixth Amendment right to counsel.  Only Justice Thomas dissented from the Court's determination that the right to counsel attaches at an initial appearance before a magistrate for reading of charges and setting of bail, despite the fact that the prosecution plays no part in the proceeding. 

Counsel, Right to Self Representation, Mental Illness.  Indiana v Edwards, __ US __; 128 S Ct 2379 (2008)(june'08).  The Court premised its decision in this case on the notion that there is a difference between competence to stand trial or plead guilty and competence to represent oneself at trial.  Because of this distinction it is permissible for courts to refuse to permit self representation when a defendant suffers from mental illness.

Counsel, Self Representation.  People v Hill, 282 Mich App 538; 766 NW2d 17 (2009)(march’09).  Judge Jansen, in dissent, decried the trial court’s summary denial of defendant’s request to represent himself “without ever inquiring into his reasons or attempting to establish whether his expressed desire for self-representation was unequivocal, knowing, intelligent, and voluntary.”  The majority affirmed despite this failure, claiming that the request for self-representation was made “solely through counsel.”  The majority also argued that the record did not provide a basis for concluding that the request was knowing and intelligent, the very reason the dissent insisted reversal was required.  

Counsel, Right to on Appeal after Plea, Waiver as Plea Condition.  People v Billings, 283 Mich App 538; 770 NW2d 893 (2009)(april’09).  Defendants pled in Saginaw County after the United States Supreme Court’s decision in Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552(2005), which required appointment of counsel for the poor after a felony conviction by plea.  The court here held that Saginaw County’s practice of requiring a waiver of the right to appointed counsel on appeal as part of the plea bargain was unconstitutional.    

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, 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.

CSC – Other Acts Evidence.  People v Smith, 282 Mich App 191;__ NW2d __ (2009)(jan’09).  Defendant was convicted of two counts of CSC 1 and one count of CSC 2 for sexual assaults (intercourse and touching) of his then ten or eleven-year-old daughter.  The court held that testimony of the victim’s stepsister, that defendant exposed himself to her three times when she was between the ages of eleven and fifteen, was admissible under 404(b) as a“similar act.”  Per direction ofthe supreme court, the court of appeals analyzed the admissibility of the three acts of indecent exposure under recent revisions to MCL 768.27a, which substantially expanded the prosecutor’s ability to introduce prior acts.  The court of appeals, after a confusing discussion of the statutory language dealing with indecent exposure and listed offenses, determined that two of the three prior acts were not admissible under 768.27a.  However, the court held that 768.27a was not a rule of exclusion and, since 404(b) allowed all three prior acts, defendant’s conviction was affirmed.  

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 Wilcox, 280 Mich App 53; 761 NW2d 466 (2008)(july'08).  In accord with People v Pattison, 276 Mich App 613 (2007) and People v Watkins, 277 Mich App 358 (2007), the court held that the legislature did not violate the Ex Post Facto clause of the U.S. Constitution when it enacted MCL 768.27a to permit prior conduct evidence in CSC cases involving minors when that evidence would not have been admissible under a 404(b) analysis.  

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 - 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.  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 13th 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.

Defendant's Appearance, Shackling, Grooming.  People v Payne, __ Mich App __; __ NW2d __ (No. 280260, July 28, 2009)(july'09).  Although the trial court had no cause to shackle Defendant at trial in this Kent County CSC case, the defense table was skirted with paper, and Defendant did not come or go when the jury was present.  As a result, the court of appeals found no prejudice.  The failure to allow Defendant to shave for eight months did not require a new trial as the trial court ordered grooming supplies after an objection was made on the second day of trial.  

Defendant's Appearance, Restraints, Shackling.  People v Horn, 279 Mich App 31; 756 NW2d 212 (2008)(may'08).  Absent proof that jurors saw Defendant in leg restraints, court concludes that Defendant suffered no prejudice.   

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, 548 US 735; 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.

Defenses, Momentary Innocent Possession, Felon in Possession.  People v Dupree, 283 Mich App 89, 771 NW2d 470 (2009)(May'09).  Mr. Dupree was acquitted of several assaultive offense charges after witnesses gave varying descriptions of a fight, ending in gunshots, between Dupree and the complainant.  Dupree's defense to the charge of felon in possession, of which he was convicted, was momentary innocent possession, an offshoot of self defense and duress on these facts.  He claimed that he was forced to disarm the complainant, who had started the altercation and was armed.  The trial court, over defense objection, gave an instruction, which required that Dupree intended to turn the gun over to police.  The court of appeals ruled that, to constitute a valid defense, the innocent possession must be both temporary and immediately necessary to protect against death or serious physical harm, and the defendant must not be negligent or reckless in placing himself in danger.  However, there is no requirement that an intent to turn the weapon over to police must be shown.  It is enough to show that defendant terminated possession at the earliest opportunity once the danger passed.  Under these facts the unwarranted instruction requiring that Dupree show an intent to turn the gun over to police was in effect a directed verdict for the prosecution on the gun charge, and cannot be considered harmless.  In separate opinions, Judge Gleicher concurred and Judge Murray dissented.   

Defenses, Self Defense, Statutory Construction.  People v Conyer, 281 Mich App 526; 762 NW2d 198 (2008)(nov’08).  Defendant was convicted of assault with intent to do great bodily harm and felony firearm for injuring a person attending a party when his group was attacked by the complainant and others.  The issue was whether the self defense act (SDA), MCL 780.971, effective 10/1/06, applied retroactively to cover the shooting in this case, which occurred on 1/29/06.  The SDA revised the duty to retreat doctrine, allowing someone who is not committing a crime and is in a location where they have a legal right to be, to stand their ground and use deadly force if they honestly and reasonably believe it is necessary to prevent death or great bodily harm to themselves or others.  This change “affects substantial rights” and therefore, under settled rules of statutory construction, the SDA is not retroactive.  Therefore, the trial court did not err in refusing to instruct the jury consistent with the SDA. 

Domestic Violence, Other Acts Evidence, New Legislation.  People v Schultz, 278 Mich App 776; 754 NW2d 925 (2008)(may'08).  In accord with People v Pattison, 276 Mich App 613 (2007), turning back these arguments with respect to a "sister statute" (MCL 768.27a, allowing prior acts of CSC with a minor) the court quickly disposed of Defendant's ex post facto and separation of powers arguments.  Changes to MCL 78.27b, allowing other acts of domestic violence "for any purpose for which it is relevant" were deemed constitutional.      

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, 803A, Corroborative Statement in Child Sex Cases.  People v George, 481 Mich 867; 748 NW2d 568 (2008)(may'08).  The supreme court, by order, adopted the dissenting opinion of Judge Gleicher in People v George, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2007 (Docket No. 271892), and reversed Defendant's conviction.  Judge Gleicher, afer noting that MRE 803A permitted introduction "of a single corroborative hearsay statement" to bolster a child witness, indicated that the two statements here both failed foundational requirement fulfillment and the resulting prejudice required a new trial.  The first statement, to the complainant's sister, was not made spontaneously and the delay in making it was not "excusable as having been caused by fear or other equally effective circumstance."  Contrary to the opinion of the court of appeals majority, the second corroborating statement, purported to have been made to the complainant's mother, was not impeachment but instead was improper substantive, extrinsic evidence of the sexual assault.  

Evidence, Hearsay, 804(b)(3).  People v Taylor, 482 Mich 368; 759 NW2d 361 (2008)(dec’08).  A codefendant (Scarber) made statements to a friend (Ervin) implicating himself and others (Taylor and King) in a murder/kidnap.  The trial court allowed the statements under 804(b)(3), statements against penal interest. After announcing that People v Poole, 444 Mich 151; 506 NW2d 505 (1993), which interpreted Ohio v Roberts, 448 US 56; 100 S Ct2531; 65 L Ed 2d 597 (1980), which in turn was overturned, as to the Confrontation Clause, by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004) and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224(2006), was no longer good law, the majority conducted a Poole analysis and affirmed the decision of the trial court and the court of appeals that the statements of Scarber, introduced through Ervin, were admissible as statements against penal interest.  The majority held that the Confrontation Clause did not cover the statements, as they were not testimonial.  The dissenting justices, Cavanagh and Kelly, noted that the Poole determination that non self inculpatory statements, which in fact inculpated someone else, were admissible as long as they were part of a broader narrative that could be considered to be “as a whole against the declarant’s penal interest,” and the commentary to the federal rules on which it was based, were discredited by the decision in Williamson v United States, 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476(1994).  The dissent excoriated the majority for dismissing Williamson’s destruction of Poole’s foundation in a footnote, and urged the grant of leave to take up the issue.       

Evidence, Expert Opinion, Foundation, Hearsay.  People v Donna Alice Yost, 278 Mich App 341; 749 NW2d 753 (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 Opinion, Foundation, Hearsay.  People v Donna Alice Yost, 278 Mich App 341; 749 NW2d 753 (2008)(march'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 Opinion.  People v Mark Steven Unger, 278 Mich App 210; 749 NW2d 272 (2008)(march'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 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, 480 Mich 125; 747 NW2d 797 (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, Hearsay, 803(3); Statement of Identification, 801(d)(1); Bad Acts, 404(b); Flight.  People v Smelley, __ Mich App __; __ NW2d __ (No. 274033, published August 13, 2009, issued May 26, 2009)(aug'09).  A series of erroneous evidentiary rulings, causing prejudice where scant remaining evidence implicated Defendant, led the court to reverse Defendant's second-degree murder conviction.  The trial court first erred in admitting substantial hearsay in the form of alleged statements of the deceased expressing fear of Defendant and describing altercations between the two.  Criticizing People v Fisher, 449 Mich 441; 537 NW2d 577 (1995) and People v Ortiz, 249 Mich App 297; 642 NW2d 417 (2001) for their failure to set forth relevant background facts in conducting the complex MRE 803(3) analysis, the panel pointed to the lack of critical relevance with respect to the deceased's state of mind, as there was no defense of accident, suicide, or self defense here.  In addition, the prosecutor improperly introduced highly prejudicial "identification" testimony, claiming it was not hearsay under 801(d)(1), when the declarant later testified he did not see the shooting.  The prosecutor further prejudiced Defendant by improperly introducing a series of irrelevant "bad acts" weapons offenses.  Finally, the trial court erroneously admitted evidence that defendant was arrested by a DEA agent in Georgia two weeks after the homicide as evidence of flight.  

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, Other Acts, 404(b).  People v Steele, 283 Mich App 472; 769 NW2d 256 (2009)(april'09).  Defendant was convicted of multiple CSC 1 and 2 counts for alleged sexual activity with the then under thirteen year old grandchildren of his common law wife or girlfriend.  The prosecutor admitted, over objection, other acts evidence relating to the three complainants, and their mother, and her sister. The court held that the "other acts evidence had a concurrence of common features so that the charged acts and the other acts are logically seen as part of a general plan, scheme, or design."  A high degree of similarity or distinctive or unusual features are not required. 

Evidence, Other Acts, 404(b).  People v Donna Alice Yost, 278 Mich App 341; 749 NW2d 753 (2008)(april'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, 404(b) and 403.  People v Murphy (on Remand), 282 Mich App 571, 766 NW2d 303 (2009)(march’09).  In this procedurally complex case (a new trial had been originally granted by the court of appeals due to lack of counsel for defendant during prosecution initiated interlocutory appellate proceedings related to the evidence at issue; the new trial relief was later vacated by the supreme court in favor of a new appeal), the defense argued that circumstantial evidence of defendant’s connection to a sawed off shotgun was barred by 404(b) and 403.  Citing People v Hall, 433 Mich 573; 447 NW2d580 (1989), the court found no error in the admission of tangentially connected other acts evidence.  There is good language for the defense when offering remotely relevant evidence, including a quote from People v McKinney, 410Mich 413; 301 NW2d 824 (1982) to the effect that “legal technicalities” should not control over logic and common sense when determining what evidence to admit.  The court also turned back defendant’s 403 argument, stating that “[a]lthough the carjacking-related evidence involved a serious and entirely separate crime, the risk of unfair prejudice did not substantially outweigh the probative force of the evidence, which connected defendant to the Dodge Ram and the shotgun.” 

Evidence, Recanting Affidavits.  People v Blackston, 481 Mich 451; 751 NW2d 408 (2008)(june'08).  Defendant was convicted of first degree murder in Van Buren County. At Defendant's first trial two codefendants testified against him, as did his former girlfriend.  Before Defendant's second trial, one of the codefendant's and the girlfriend recanted through statements, one of which was notarized.  After both witnesses were declared unavailable, defense counsel moved to admit the affidavits.  The trial court ruled the statements inadmissible under MRE 613 because they were not made before the testimony of the witnesses at the first trial, and because the prosecutor could not confront and cross examine the witnesses.  The court of appeals reversed, holding that the statements should have been admitted under MRE 806.  The supreme court majority refused to resolve a dispute over which standard of review applied, claiming that the error was harmless under any of the possible standards.  The court held that admission of inconsistent statements to impeach under MRE 403 is within the discretion of the trial court, considering "presentation, credibility, and effect of the testimony."  Justice Markman, joined by Justices Cavanagh and Kelly, dissenting from the majority opinion authored by Justice Corrigan, agreed with the court of appeals that the trial court erred in excluding the recanting statements of the unavailable witnesses.  Putting a completely different slant on the factual picture, the dissent concluded that the recanting statements, because they impeached two critical prosecution witnesses, cannot possibly be considered "marginally probative evidence" and thus were not unfairly prejudicial. 

Evidence, Right to Present Defense, Collateral Matter.  People v Steele, 283 Mich App 472; 769 NW2d 256 (2009)(april'09).  The court rejected the prosecutor's argument that the disallowed evidence of defendant's sister, to the effect that the mother of the complainants in this CSC case was motivated to foment false testimony by her children because the complainants' grandmother was squandering her estate on the defendant, was collateral.  However, the court held the error was harmless, even if considered a constitutional denial, because there was "strong evidence" that defendant repeatedly raped the victims.     

Evidence, Right to Present Defense.  People v Donna Alice Yost, 278 Mich App 341; 749 NW2d 753 (2008)(april'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 Defendant'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, 278 Mich App 341; 749 NW2d 753 (2008)(april'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, Right to Present Defense, Psychological Expert in Sex Case.  People v Steele, 283 Mich App 472; 769 NW2d 256 (2009)(april'09).  Defendant was rebuffed by the trial court when he tried to present Dr. Andrew Barclay who "would have testified that he tested defendant and that defendant did not fit the profile, or display the characteristics, of having a personality consistent with pedophilia or being a sexual predator."  Citing People v Dobek, 274 Mich App 58; 732 NW2d 546 (2007), where the court rejected the testimony of Dr. Barclay for lack of scientific reliability under Daubert, the court found that the same result is required here. 

Evidence, Right to State's for DNA Testing.  District Attorney's Office for the Third Judicial District Et Al v Osborne, __ US__; 129 S Ct 2308 (2009)(june'09).  Defendant was convicted of sexual assault and other crimes in state court.  Years later, he filed this suit under 42 U. S. C. §1983, arguing he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense. The Federal District Court dismissed his claim, holding that he must proceed in habeas because he sought to set the stage for an attack on his conviction.  The Ninth Circuit reversed, stating that §1983 was the proper vehicle for the claims.  The district court then granted defendant summary judgment, concluding that he had a constitutional right to the new testing, and the Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under Brady v. Maryland.

The Supreme Court held that defendant has no constitutional right to post conviction access to the state's evidence for DNA testing, assuming that his claims can be pursued using §1983, stressing that "[t]he availability of new DNA testing technologies, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.  The task of establishing rules to harness DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature." See Washington v Glucksberg, 521 US 702, 719. The Court also disagreed with the Ninth's Circuit's Brady argument, pointing out that Brady is a pretrial right and should not be extended to postconviction.  Federal courts may upset a state's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.  Here, there is nothing inadequate about Alaska's postconviction relief procedures, or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The Court rejected defendant's invitation to recognize a substantive due process right to DNA evidence, stating that the Court is "reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended."  Collins v Harker Heights, 503 US 115, 125. 

Evidence, Silence in the Wake of Miranda WarningsPeople 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. 

Evidence, Silence in the Wake of Miranda Warnings.  People v Borgne, 483 Mich 178; 768 NW2d 290 (2009) & People v Shafier, 483 Mich 205; __ NW2d __ (2009)(july'09).  These two separately reported cases, both authored by Justice Cavanagh, and both generally unanimous decisions, focus on Bobo-Doyle error. The court agreed that in both cases constitutional error was present when the prosecutor focused on the Defendants' post-arrest, post-warnings silence to argue their guilt.  In both cases, however, the claims of error were unpreserved, and were reviewed for plain error under Carines.  In the Borgne case, unpublished, the court of appeals, over a dissent, reversed the Defendant's convictions.  The supreme court reversed the court of appeals and reinstated Defendant's convictions, holding that the prejudice prong of the plain error test, which places the burden on the defendant to prove prejudice, was not met.  In People v Shafier, 277 Mich App 137 (2007), the court of appeals, again over a dissent, affirmed Defendant's convictions.  The supreme court again reversed the court of appeals and ordered a new trial, holding that the prejudice prong of Carines had been met in that case.  The assessment in both cases focused on the extent of the prosecutorial Bobo-Doyle misconduct and the strength of the untainted convicting evidence.  In both cases, though agreeing that Carines is good law in Michigan for now, Justices Kelly and Cavanagh expressed their continuing opinion that this type of constitutional error should be assessed under the harmless error standard, which places the burden of proving lack of harm on the prosecution.     

Evidence, Spousal Privilege, Unavailability, Confrontation.  People v Garrett, unpublished opinion per curiam of the Court of Appeals, issued August 25, 2009 (Docket No. 279546)(aug'09).  Defendant was not married to the witness at the time of trial.  Therefore the witness was not unavailable due to the spousal privilege.  Use of the witness's preliminary exam testimony, without a finding of a good faith effort on the part of the prosecution to obtain her presence, requires reversal.

Evidence, Voice Identification.  People v Murphy (on Remand), 282 Mich App 571, 766 NW2d 303 (2009)(march’09).  In permitting a voice identification where the complainant heard defendant only once in the course of an alleged armed robbery, the court signals that there are virtually no restrictions to such evidence. 

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.

Judge, Disqualification for Bias.  People v Wade, 283 Mich App 462; 771 NW2d 447 (2009)(april'09).  Employing the eight point assessment in MCR 2.003(B), and citing to Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001), the court held that the trial court's derogatory comments regarding security guards did not sufficiently show bias to allow disqualification in this case where a security guard was on trial for murder in relation to a shooting that occurred while he was on duty.  Generalized hostility or bias does not demand disqualification.  

Juror, Disqualification for Felony Conviction.  People v Miller, 482 Mich 540; 759 NW2d 850 (2008)(dec'08).  Defendant, convicted of a sex charge, discovered that one of his jurors had been twice convicted of sex felonies and had lied about it during voir dire.  The trial judge denied a motion for new trial, stating that he had "fairly equal confidence" that a defense attorney would have wanted a felon convicted of the same type of crime as defendant on the jury.  The court of appeals reversed and ordered a new trial.  The supreme court, with Justices Kelly and Cavanagh dissenting, reversed the court of appeals and reinstated defendant's conviction, overruling precedent. 

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, 477 Mich 1063; 728 NW2d 457 (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, Felony Murder, Intent.  People v Garrett, unpublished opinion per curiam of the Court of Appeals, issued August 25, 2009 (Docket No. 279546)(aug'09).  The trial court erred in instructing the jury that intent [to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm...] was not a necessary element of felony murder.  Defense counsel was ineffective for failing to object. 

Jury Instructions, Lesser Offenses; Involuntary Manslaughter.  People v McMullan, 284 Mich App 149; 771 NW2d 810 (2009)(june'09).  The majority opinion (Saad) and the dissent (Bandstra) agreed that involuntary manslaughter is a necessarily included lesser offense of murder, and where, as here, a defendant is charged with murder, the trial court should instruct on common law involuntary manslaughter if a rational view of the evidence supports it.  However, there was disagreement on the facts.  The majority held that no rational jury could conclude that McMullan acted without malice where he cocked the gun and shot the decedent at close range.  Judge Bandstra pointed to the long association between McMullan and the decedent, and McMullan's drug usage on the day of the shooting, to conclude that McMullan's claim that the gun "just went off," and he had no malicious intent, was sufficiently supported by the facts to require the requested instruction.

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 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 Instructions, Verdict Form.  People v Wade, 283 Mich App 462; 771 NW2d 447 (2009)(april'09).  Defendant was convicted of involuntary manslaughter and felony firearm after shooting a retreating thief while acting as a security guard at a Detroit Police Department impound lot.  Defendant repeatedly objected to the trial court's verdict form, which set out a verdict of not guilty as to the primary count of premeditated murder, but did not allow for a general verdict of not guilty.  The court cited an unpublished opinion, People v Garcia, unpublished opinion per curiam of the Court of Appeals, issued October 19, 1988 (Docket No. 94233) and noted endorsement of this decision in People v Garcia, 448 Mich 442; 531 NW2d 683 (1995).  

Jury Instructions, RICO "Enterprise." Boyle v United States, __ US__; 129 S Ct 2237 (2009)(june'09).  During defendant's RICO prosecution the district court denied his request for a jury instruction requiring the government to prove that the enterprise had "an ascertainable structural hierarchy distinct from the charged predicate acts." Instead the court instructed the jury that to establish a RICO "enterprise," the government must prove an ongoing organization with a framework, and that association members functioned as a continuing unit to achieve a common purpose.  The Second Circuit affirmed the district court's holding. The Supreme Court found that an association-in-fact enterprise under RICO must have a "structure," but the pertinent jury instruction need not be framed in the precise language the defendant proposed.  By explicitly telling jurors they could not convict on the RICO charges unless they found that the government had proved the existence of an enterprise, the instructions made clear that this was a separate element from the pattern of racketeering activity.  The jurors also were adequately told that the enterprise needed the structural attributes that may be inferred from the statutory language.  See United States v Turkette, 452 US 576.

Jury Selection.  Rivera v Illinois, __ US__; 129 S Ct 1446 (2009)(march'09). A trial court's erroneous decision upholding a "reverse-Batson" challenge to a defendant's attempt to exercise a peremptory strike is harmless error so long as any reasonable juror would have found the defendant guilty. Further, the Due Process Clause does not require automatic reversal of a conviction because of the trial court's good-faith error in denying the defendant's peremptory challenge to a juror. A good-faith misapplication of Batson does not violate due process, and to hold that it does would discourage trial courts and prosecutors from policing a defendant's discriminatory use of peremptory challenges. If there are no federal constitutional violations, states are free to decide, as a matter of state law, if a trial court's improper denial of a peremptory challenge is reversible error.  

Jury Selection.  Snyder v Louisiana, 552 US 472; 128 S Ct 1203 (2008)(march'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."   

Jury Trial, Waiver.  People v Cook, __ Mich App __; __ NW2d __ (No. 280600, August 27, 2009)(aug'09).  Defendant did not sign a jury waiver (it was signed by defense counsel), and when the trial court announced the waiver before conducting a bench trial, Defendant objected on the record.  The court of appeals held that under these facts Defendant was denied his right to jury trial, a structural error not reviewable for harmless error. 

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.

Prosecutorial Misconduct, Acquiescence in Perjury, Bar to Re-trial.  People v Aceval, 282 Mich App 379; 764 NW2d 285 (2009)(feb’09).  In this drug case both the trial court and the prosecutor allowed perjury without notice to the defense in relation to the CI, and were themselves later charged.  A new trial was granted to the defendant, who subsequently pled guilty prior to new trial proceedings.  Defendant argued on appeal that retrial should have been barred under a due process theory due to the seriousness of the prosecutor’s and trial court’s misconduct, which the court agreed was “disgraceful.”  Noting that it is the “misconduct’s effect on the trial, not the blame-worthiness of the prosecutor” that is critical, the court held that the remedy of retrial was sufficient, and a bar to further proceedings was not required by due process.  In a footnote, the court left open the possibility that prosecutorial misconduct designed to avoid or prevent an acquittal might bar a retrial.   

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. 

Statements by Defendant Pursuant to Investigative Subpoena, Use at Trial.  People v Seals, __ Mich App __; __ NW2d __ (Nos. 282215 & 282216, July 14, 2009)(july'09).  Defendant was convicted of first degree felony murder.  At trial Defendant's investigative subpoena testimony was used to impeach him, despite the fact that he failed to testify at trial.  The court held that it was proper for the prosecutor to "offer as circumstantial evidence of guilt evidence that exculpatory statements are false."  Defendant's arguments that his right to due process and to be free from compulsory self-incrimination were violated by the investigative subpoena procedure were turned back based on the court's determination that Defendant could have challenged the prosecutor's request for a statement under MCL 767A.6 or could have exercised his Fifth Amendment right not to incriminate himself.  The court held that accomplice and police testimony rendered Defendant's investigative subpoena testimony "inconsequential to the ultimate resolution of the case," and any error was therefore harmless.       

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, 278 Mich App 341; 749 NW2d 753 (2008)(april'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

ACCA, Failing to Report is not a "Violent Crime." Chambers v United States, __ US__; 129 S Ct 687 (2009)(jan'09). The Armed Career Criminal Act imposes a fifteen-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or a violent felony.  The crime of failure to report for penal confinement falls outside the scope of ACCA's "violent felony" definition.  Failure to report for confinement is different from escaping a penal institution and results from different underlying behavior, therefore, it does not fall in the "violent felony" category even though escaping does.

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.

Animal Cruelty, Torture, Sufficiency of Evidence to Bind Over.  People v Henderson and Mercier, 282 Mich App 307; 765 NW2d 619 (2009)(feb’09).  Defendant Henderson owned a ranch and most of the 69 horses which were all found in deplorable condition.  Defendant Mercier was the primary caretaker of the horses.  Interpreting People v Fennell, 260 Mich App 261 (2004),the court held that it was error for the trial court to quash felony counts against Henderson based on an “innocent owner” theory.  Bindover on the torture charge requires only that defendant acted with conscious disregard of known risks and that was sufficiently established on this record.  The defense argument that bindover required proof that defendant intended to harm the animals was rejected.   

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 "finger-gun pointed pocket."  Defendant Perez was hit with a flashlight (by the female storeowner) and a shovel (by the storeowner's fiancé), captured and arrested.  The court of appeals held that, despite this incompetence, there was sufficient evidence of assault presented by the note and the "pocket gun."  There is no requirement that the prosecutor must prove actual fear on the part of the purported victim. 

CCW, Momentary Possession. People v Hernandez-Garcia, 266 Mich App 416 (2005)(july'06). The defendant was convicted of carrying a concealed weapon. People v Coffey, 153 Mich App 311 (1986), which allowed brief possession of a weapon if it was taken from a wrongful possessor, is no longer good law.

CCW, Momentary Innocent Possession. People v Hernandez-Garcia, 477 Mich 1039 (2007)(march'07).   By way of a 4-3 order, the majority overruled People v Coffey, 153 Mich App 311 (1986) and adopted the holding of the court of appeals that the trial court correctly instructed the jury that momentary innocent possession of a concealed weapon is not a defense to a charge of unlawfully carrying a concealed weapon.

Child Sexually Abusive Material, Burning Images to CD ROM. People v Hill, 269 Mich App 505 (2006)(jan'06). MCL 750.145c(2) makes it illegal to arrange for, produce, make, or finance child sexually abusive material; downloading images onto a CD constitutes the making of child sexually abusive material; it does not matter that the images were originally created by someone else, since by the plain language of the statute copying such material is encompassed; nor does the statute require that the making of the material be for purposes of later distribution.

Child Sexually Abusive Material, Distribution. People v Tombs, 472 Mich 446 (2005)(june'05). Defendant Tombs worked for Comcast and was leaving his employment. He had downloaded images of child pornography onto his employer-issued laptop computer. When he turned it in on leaving his employment, he expected that Comcast would "wipe" the hard drive, their standard practice. Instead, Comcast discovered the images. The court here held that defendant could not be convicted on these facts of "distribution" of child sexually abusive material without the "intent" to distribute; that is, that he or she intend that the recipient of the material receive it for what it is (child sexually abusive material). Because the defendant did not intend for anyone to learn of the images, he had not distributed them.

Child Sexually Abusive Activity, Sufficiency, Plea Withdrawal. People v Adkins, 272 Mich App 37 (2006)(aug'06). Defendant pled to attempting or preparing to commit child sexually abusive activity under MCL 750.145c(2). Using a broad interpretation of this statute, the court of appeals will allow the conviction (of this 20 year felony that the defendant argued was clearly aimed at production of child pornography) of anyone "preparing to arrange for" sex with a minor. In this instance defendant engaged in an on-line chat with a police officer posing as a fourteen-year-old. They discussed getting together to have sex. Because a valid factual basis existed, the trial court did not abuse it's discretion in denying defendant's motion to withdraw his plea of guilt.

Controlled Substances, Delivery, Sufficiency of Evidence.  People v Plunkett, 281 Mich App 721; 760 NW2d 850 (2008)(nov’08).  Defendant was consorting with a former prostitute (Corson) and funding her crack cocaine and heroin habit.  After Corson had introduced a friend (Gregory) to heroin, Gregory used heroin defendant and Corson had purchased using defendant’s money.  In part because she had consumed a substantial amount of alcohol before using heroin with Corson, Gregory died. Defendant was charged with delivery causing death (MCL 750.317a), and delivery of heroin under 50 (MCL 333.7401(2)(a)(iv)).  The district court rejected defendant’s sufficiency argument and bound over on both charges, but the circuit court found no evidence of delivery and granted defendant’s motion to quash as to both (the court allowed bindover on one count of delivery of less than 50 grams of cocaine (MCL333.7401(2)(a)(iv)), and maintaining a drug house (MCL 333.7405(1)(d)).  The court of appeals agreed with the circuit court, finding that since defendant did not actually or constructively deliver heroin to Corson, the charges could not be brought.  Nor could defendant be charged under an aiding or abetting theory as he did nothing to assist the drug dealer.  Schuette, J., in dissent, would support a charge on the aiding and abetting theory.  

Controlled Substances, Steroids, Vagueness Challenge.  People v Craig Gordon Brown, 279 Mich App 116; 755 NW2d 664 (2008)(may'08).  The court was called on to determine the constitutionality of  1999 AC, R 338.3122(2), a Michigan Board of Pharmacy Rule.  Defendant argued that because a section of the rule exempted Trenbolone, the specific steroid at issue here, as an "anabolic steroid which is expressly intended for cattle...," the application of the rule to bring felony charges against him under the controlled substances act was void for vagueness.  Here the statute makes clear how to determine whether the drug is intended for non-human consumption; therefore its illegality in this case is not vague. 

Counterfeit; Improper Use of Computer.  People v Harrison, 283 Mich App 374; 768 NW2d 98 (2009)(april’09).  Defendant used a computer, scanner and printer to produce counterfeit U.S. currency.  He first argued the evidence was insufficient to convict because MCL 750.255, prohibiting use of tools to produce counterfeit currency, could not apply to use of a computer. The court held that the 1846 statute’s use of the terms “tools, instruments or implements” covered the modern use of computer technology to forge currency.  The evidence was also sufficient to convict under MCL 750.254 as the prosecutor adequately proved that defendant intended to utter, pass, or render forged bills he knowingly possessed.      

Criminal Contempt - Substantive and Procedural Issues.  DeGeorge v Warheit, 276 Mich App 587 (2007)(sep'07).  The attorney (Rohl) for defendant Warheit was ordered not to transfer assets after the court ruled that a civil lawsuit brought by Rohl was frivolous, and ordered payment of over $200,000 in attorney fees.  Rohl was later found in criminal contempt for violation of this order and was sentenced to 30 days in jail.  The court rejected Rohl's due process challenges, finding he had adequate notice and an opportunity to present witnesses at his contempt hearing.  The court ruled that evidence of contempt was sufficient, and the trial court's findings of fact were adequate, after noting that Rohl had abandoned these issues by not fully developing them.  The court further held that the contempt action was not improperly brought to force payment of a debit, and it was permissibly initiated by a private attorney, as opposed to the county prosecutor, as this is a "quasi-crime."

CSC, Consent. People v Starks, 473 Mich 227 (2005)(july'05). Defendant was charged with assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520(g)(1). The victim, being only 13-years old, could not give consent, because the charge carries strict liability. Therefore, the conclusion of People v Worrell, 417 Mich 316 (1983), that consent is always a defense to the crime of assault with intent to commit criminal sexual conduct involving penetration, is no longer good law.

CSC, Consent. People v Wilkens, 267 Mich App 728 (2005)(aug'05). Defendant was charged with CSC-1, for sexual penetration with a minor; first degree charge was based on defendant's filming of the incident, constituting the production of child sexually abusive activity, MCL 750.145c(2); that the child consented to the activity and the filming is irrelevant, since consent is not a defense to either crime (court also noted that defendant could be convicted as an aider and abettor for the sexual penetration of the 14-year-old by an underage male, also filmed in the act of engaging in sexual acts with the minor female).

CSC, Consent; Penetration Involving Another Felony, Nexus. People v Waltonen, 272 Mich App 678 (2006)(nov'06). Defendant was bound over on CSC I, involving the commission of another felony under MCL 750.520b(1)(c). The prosecution alleged that he delivered oxycontin to the consenting adult complainant, and then bartered sex for more drugs after the complainant became dependent. The court held that the underlying felony, delivery of controlled substances, was sufficiently connected to the sexual penetration to allow a charge of CSC I, involving the commission of another felony. And since consent could not be a defense to the underlying felony here, it was not a defense to the CSC I charge at issue.

CSC, Family Relationship. People v Russell, 266 Mich App 307 (2005)(may'05). The defendant, the victim's uncle by marriage, fondled his ‘of age' niece. That they were unrelated by blood does not matter under MCL 750.520(e)(1)(d), CSC IV. They were related by affinity as stated in the statute.

Controlled Substances, Constructive Possession. People v Williams, 268 Mich App 416 (2005)(oct'05). While defendant was one of many people in the house, his admission that he had pooled his money to get marijuana found in an attic justified a finding of possession, even if the defendant didn't know the marijuana had been placed in the attic; possession can be constructive and joint; division of marijuana into smaller plastic bags and finding of additional bags nearby supported a finding of intent to deliver.

Controlled Substances, Keeping or Maintaining a Drug Vehicle. In People v Thompson, 477 Mich 146 (2007)(may'07), the Michigan Supreme Court held that a conviction of knowingly "keeping or maintaining" a vehicle used for keeping or selling controlled substances required a showing of "some degree of continuity." The majority, however, rejected the construction of a panel of the Michigan Court of Appeals in People v Griffin, 235 Mich App 27, 32 (1999) requiring that a defendant's actions in keeping or maintaining occur "continuously for an appreciable period."

The Thompson Court utilized standard methods of statutory construction, consulting lay dictionary definitions of "keep" and "maintain," to derive legislative intent. A definitive review of similar statutes in other jurisdictions by the Alaska Court of Appeals was also referenced. In Thompson the majority remanded the matter to the court of appeals for reconsideration of the sufficiency argument in light of the test laid out in the opinion. Since the majority looked to some "continuity" as a bench mark, and since the facts in Thompson suggest an isolated drug transaction, it would be surprising if the decision of the court of appeals reversing the "maintaining a drug vehicle" conviction for insufficiency will change. Indeed it did not. See People v Thompson, unpublished per curiam decision of the court of appeals, entered July 17, 2007 (Docket No. 258336), 2007 WL 2051977(july'07).

The dissent, by Justice Corrigan, joined by Justice Young, would have allowed conviction for "keeping or maintaining" for a single incident, arguing that the conjunctive "or" requires that "keep" and "maintain" be assigned different meanings. Because the dissent was able to locate some dictionary definitions of "keep" that arguably did not suggest a continuity requirement, these two justices would allow conviction for keeping or maintaining a drug vehicle for a single transaction.

Justice Markman offers the most interesting observation. In his brief concurrence, Justice Markman notes the majority's reflection on several statutory sections which suggest that legislative enactments be construed to be uniform and consistent with federal law and the law of other states. Admitting that "few judicial bodies have been more deferential toward legislative judgments than this Court," Justice Markman would hold the line here, arguing that it is not appropriate for the legislature to tell the court how to interpret statutes. He would view the sections at issue as a "trespass upon the authority of the judiciary."

The opinion is not substantially significant. Generally recognized rules of statutory construction are utilized. Of course, there are a lot of dictionaries, and one can generally find a definition to support either side of a given argument. The dissent's claim that this will allow drug dealers a "free pass," and that law enforcement will sit idly by watching drug deals occur while they wait to build a case for continuity, is absurd. The section at issue, clearly designed to deal with the "drug house" blight, provides a 2 year misdemeanor penalty, while the penalties for delivering and possessing the drugs in question are almost always more serious felonies, punishable by extensive prison terms. See Griffin v Berghuis, 298 F Supp 2d 663 (ED Mich 2004). Moreover, logic absolutely supports the majority's assessment that the "keep or maintain" proscription, applying to a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, demands some proof, beyond a single sale occurring in or near one of these objects, that the place or thing at issue has been knowingly set up for use as a place of business for drug transactions. While the majority's conclusion that the statutory language does not require continuity "for an appreciable period," as suggested in Griffin, is clearly correct, logic and accepted statutory construction rules support the majority's determination that some degree of continuity is implicit in "keep or maintain."

CSA §843(b), Misdemeanor Drug Buyer is not "Facilitating."  Abuelhawa v United States, __ US__; 129 S Ct 2102 (2009)(may'09).  Using a telephone to make a misdemeanor drug purchase does not facilitate felony drug distribution in violation of §843(b) of the CSA, which makes it a felony "to use any communication facility in . . . facilitating" felony distribution and other drug crimes.  Likening "facilitate" to "aid, abet, and assist" the Court pointed out, "that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature's punishment calibration."

Drunk Driving, Prior OUIL Convictions Used to Enhance, Ex Post Facto Challenge.  People v Perkins & Lesage, 280 Mich App 244; 760 NW2d 669 (2008)(aug'08).  In January of 2007, the Michigan legislature amended the OUIL statute to allow previous convictions occurring at any time to upgrade the charge from a misdemeanor to a felony for a third OUIL offense (Heidi's Law).  Previously, only convictions going back ten years could be used to enhance.  The trial court agreed with Defendants that this was an ex post facto violation when convictions prior to January 3, 1997 were used to enhance the charges, as these older convictions had already been "neutralized" when the new law went into effect.  The court of appeals reversed, finding that the legislature properly attached greater legal consequences only to a defendant's future conduct.  The court did not speak to the due process challenge to Heidi's Law.   

Drunk Driving, Prior OUIL Convictions Used to Enhance, Ex Post Facto, Equal Protection and Due Process Challenges.  People v Sadows & Gale, 283 Mich App 65; 768 NW2d 93 (2009)(mar’09).  In January of 2007, the Michigan legislature amended the OUIL statute to allow previous convictions occurring at any time to upgrade the charge from a misdemeanor to a felony for a third OUIL offense (Heidi’s Law).  Previously, only convictions going back ten years could be used to enhance.  Citing People v Perkins, 280 Mich App 244; 760 NW2d 669 (2008) the court of appeals again turned back an ex post facto challenge to Heidi’s Law.  The court also rejected equal protection and due process challenges, noting that the amendment, by targeting repeat OUIL offenders, is rationally related to a legitimate governmental interest and defendants had constructive notice that their prior OUIL convictions would subject them to felony prosecution for a new violation.     

Embezzlement Over $20,000.00; Uniform Transfer to Minors Act (UTMA).  People v James Couzens III, 480 Mich 240; 747 NW2d 849 (2008)(april'08).  Defendant received 2 years probation when he took funds out of a UTMA account he had previously opened and funded for his son and returned the funds to his personal account.  The Michigan supreme court, adopting the unpublished opinion of the court of appeals, agreed that transfers to a UTMA account are irrevocable and custodial property placed in such an account belongs to the minor. 

Explosives, Carrying During Commission of Felony.  United States v Ressam, __ US __; 128 S Ct 1858 (2008)(may'08).  Defendant was convicted of carrying explosives during commission of a felony, contrary to 18 USC § 844(h)(2), after explosives were found in his car when he committed the crime of making a false statement to a customs official.   Reversing the 9th Circuit, the Court found (8-1) that there need be no relationship between the explosives and the felony committed while carrying them under 844(h)(2).  Breyer's dissent decries the possibility that lawful possession of "an explosive" during commission of any federal crime will now add 10 years to an offender's sentence. 

Failure to Pay Child Support. People v Monaco, 474 Mich 48 (2006)(feb'06). In this case a statute of limitations question was decided by the Michigan Supreme Court, overruling a prior holding by the court of appeals. The court agreed that a failure to pay child support charge is governed by the six-year "catch-all" statute of limitations, but held that the offense is not a "continuing offense," overruling, People v Westman, 262 Mich App 184 (2004).

False Pretenses and Larceny. People v Dewald, 267 Mich App 365 (2005)(may'05). Defendant was convicted of false pretenses, $1000 or more but less than $20,000, false pretenses less than $200, common law fraud, and larceny by conversion, $20,000 or more, in connection with his operation of two political action committees during the 2000 election campaign. Because the Federal Election Campaign Act does not conflict with, or expressly preempt, state law, his convictions were upheld.

Federal Armed Career Criminal Act, Violent Felony Enhancer, Drunk Driving.  Begay v United States, __ US __; 128 S Ct 1581 (2008)(april'08).  The Federal Armed Career Criminal Act allows a special mandatory 15-year term for someone who possesses a firearm and has prior specified drug or "violent felony" convictions.  The question in this case was whether any of Begay's twelve New Mexico DUI convictions satisfied the "violent felony" requirement for this enhancement.  The Court, by a 5-4 vote, answered in the negative.  Drunk driving, even though it does present a serious potential risk of injury to another, falls outside the scope of the violent felony clause in the CCA because it is too far removed from the examples given in the statute to suggest that Congress intended the provision to cover it. 

Federal Use of Firearm in Drug Offense Provision.  Watson v United States, 552 US 74; 128 S Ct 579 (2007)(dec'07).  In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to....[a] drug trafficking crime" within the meaning of 18 U.S.C. § 924(c)(1)(A).  In order to receive the mandatory minimum sentence for violation of this section, a defendant must actively employ a firearm in conjunction with the predicate offense.  Even possession of a firearm near the scene of a drug transaction is insufficient.     

Federal Wire Fraud. Pasquantino v United States, 544 US 349 (2005)(april'05). Defendants were convicted of violating the federal wire fraud statute which prohibits the use of interstate wires to effect "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pre­tenses." Although their act of smuggling liquor into Canada was intended to defraud another country of tax revenue, these acts were within the statute. Prosecution of defendants under this statute does not violate the common law revenue rule (prohibiting the enforcement of tax liabilities of one sovereign in the courts of another sovereign).

Felony Firearm, Discharge Enhancement.  Dean v United States, __ US__; 129 S Ct 1849 (2009)(april'09). 18 USC §924(c)(1)(A)(ii), (iii) increases the mandatory minimum for using or carrying a firearm during any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, from 5 years to 7 years if the firearm is brandished and 10 years if it is discharged.  Defendant was sentenced to a 10 year mandatory minimum after being convicted of conspiring to commit bank robbery and discharging a firearm during an armed robbery.  He contended that the enhancement requires that the discharge of the firearm be intentional, and therefore he cannot be charged because his discharge was accidental.  The Court held that §924(c)(1)(A)(iii) requires no separate proof of intent, and that the 10 year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Felon in Possession, Specified Felony. People v Perkins, 473 Mich 626 (2005)(july'05). Larceny from a person is a "specified felony" within the meaning of MCL 750.224(f), felon in possession, because it involves a degree of force.

Felon in Possession, Specified Felony, Entrapment by Estoppel. People v Pierce, 272 Mich App 394 (2006)(oct'06). The court held that breaking and entering was clearly a specified felony under MCL 750.224f. Therefore, defendant's failure to obtain restoration of his firearm rights from his local concealed weapons board under MCL 28.424 allows prosecution for felon in possession to go forward. Remanded for consideration of entrapment by estoppel defense where the sheriff's department had granted the defendant a handgun purchase license and where he was determined eligible to purchase long guns from a federally licensed dealer.

Felon in Possession of Firearm. Small v United States, 544 US 385 (2005)(april'05). If a defendant is convicted in a foreign court, that conviction is not included under 18 U. S. C. §922(g)(1), which forbids "any person . . . convicted in any court . . . of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm." Foreign convictions are outside the scope of the statute.

Felon in Possession, Misdemeanor DV as Predicate Offense.  United States v Hayes, __ US__; 129 S Ct 1079 (2009)(feb'09).  The federal Gun Control Act prohibits possession of a firearm by convicted felons, which includes those convicted of a misdemeanor crime of domestic violence under 18 USC §922(g)(9).  Here, defendant appealed his possession charge, arguing that his misdemeanor conviction for domestic violence did not qualify as a predicate offense under §922(g)(9), because although he hit his then-wife, the generic battery law he was convicted under did not designate a domestic relationship between aggressor and the victim as one of its elements.  The Court found that a domestic relationship has to be established beyond a reasonable doubt in a §922(g)(9) possession prosecution, but does not have to be an element of the predicate offense. 

Felony Murder, "In the Perpetration Of." People v Gillis, 474 Mich 105 (2006)(april'06). In this case defendant drove the wrong way on an interstate highway while fleeing a home invasion and crashed, killing the victim. The homeowner had pursued and lost the defendant immediately after the home invasion, and police had later picked up the chase miles away, after which the crash occurred. The majority held that "perpetration" for purposes of the felony murder statute includes "acts by a defendant that occur outside the definitional elements of the predicate felony" as long as the acts are part of the res gestae of the underlying felony, here home invasion. In this case the majority found the crash sufficiently connected to the home invasion to allow a charge of first degree felony murder. Taylor and Cavanagh, in dissent, felt that after the homeowner lost the defendant he had reached a "place of safety" in traffic before police picked up pursuit, breaking the chain. While he could be prosecuted for second degree murder in the traffic death, felony murder was not chargeable under these facts.

Felony Nonsupport. People v Herrick, 277 Mich App 255 (2007)(nov'07).  The elements of felony nonsupport (MCL 750.165) include the notice requirement set out in section two of the statute.  Here, the trial court did not err in quashing the information where the prosecutor failed to present evidence that defendant received notice of the action in which the support order was entered.   

Felonious Driving - Meaning of "Operate." People v Yamat, 475 Mich 49 (2006)(may'06). In answering the question of what the word "operate" means in the context of the vehicle code, the court determined that the plain language of the statute required only "actual physical control, not exclusive control of a vehicle." In this case defendant was a passenger and his girlfriend was driving. During an argument defendant wrenched the steering wheel, causing the car to veer off the road and hit a jogger who sustained serious injury. Felonious driving, MCL 257.626C, a two year offense, was charged. The district court refused to bind over, the circuit court agreed and the court of appeals affirmed (265 Mich App 555 (2005)), all holding to the theory that defendant was not operating the vehicle and was therefore not in "control." In lieu of granting leave the supreme court reversed. In construing the statute, the court found that "operate" meant in physical control of the vehicle and agreed with the court of appeals that "control" was the power or authority to guide or manage. The supreme court held that the court of appeals improperly applied the common meaning of the terms to the facts and found that causing the vehicle to veer off the road met the statutory requirement of actual physical control. Cavanagh and Kelly filed separate dissents.

Financial Transaction Devices, Deviceholder. People v Anderson, 268 Mich App 410 (2005)(oct'05). The defendant used a company credit card to make several personal purchases. Because the company requested the card be issued with her name on it, she was a deviceholder. Therefore, she could not be in violation of MCL 750.157(n)(1), knowingly using a financial transaction device without the consent of the deviceholder, because she was the deviceholder.

Firearm Offenses, Operability. People v Peals, 476 Mich 636 (2006)(july'06). The issue was whether the weapon at issue constituted a "firearm" under MCL 750.222(d) and thus whether defendant was properly convicted of being a felon in possession, MCL 750.224f(1) and felony firearm, MCL 750.227b. Here, broken gun will support convictions as intent of legislature suggests statute "requires only that the weapon be of a type that is designed or intended to propel a dangerous projectile. Kelly, with Cavanagh concurring in result, dissents, focusing on the trial court's instructions which deprived defendant of a legitimate inoperability defense.

Fleeing and Eluding, First Degree - Causation.  People v Wood, 276 Mich App 669 (2007)(sep'07) lv den, 480 Mich 1033, 1/22/08.  Defendant was convicted of first degree fleeing and eluding (a 15 year felony) after a police vehicle spun out of control and hit a tree, killing an officer, while chasing defendant.  The court held that there was sufficient evidence that the defendant's violation resulted in the death of the officer.  By using the word "result" as opposed to "cause," the legislature directed that only factual causation need be established.  Proximate causation is not necessary.  Clearly factual causation was established where the officer's death would not have occurred absent defendant's fleeing and eluding.    

Fleeing and Eluding, Sufficiency.  People v Chapo, 283 Mich App 360; 770 NW2d 68 (2009)(april’09).  Defendant ran over a fire hose in use and a police officer, who knew defendant, attempted to ticket him.  Things got out of hand and defendant ended up driving off when the officer attempted to taser him.  Defendant was convicted of fourth degree fleeing and eluding, MCL 257.602a(2), and argued on appeal that the evidence was insufficient.  The court of appeals disagreed, holding that defendant received adequate notice of the charges against him, and that there was sufficient evidence the officer was acting in the lawful performance of his duties when defendant drove off.   

Harmful Chemical Substances, Unlawful Use, Sufficiency.  Peoplev Blunt, 282 Mich App 81; 761 NW2d 427 (2009)(jan’09).  Defendant heated cooking oil and threw it on his neighbor, causing severe burns.  Defendant was convicted of assault with intent to do great bodily harm, and sentenced to 6 ½ to 10 years on that charge.  He also conditionally pled to unlawful use of a harmful chemical substance, MCL 750.200i(1)(b), and received a sentence of 20-40 years on that charge.  Reasoning that the victim did not sustain injury through the chemical or physical properties of cooking oil, the court held that defendant’s conviction and sentence on that charge must be vacated.  The court also remanded for resentencing on the assault with intent to do great bodily harm charge as the circuit court improperly scored OV 1 (victim subjected to a harmful chemical substance) and OV 2 (offender used a harmful chemical substance).  

Home Invasion, Habitability.  People v Kelly Lee Powell, 278 Mich App 318; 750 NW2d 607 (2008)(march'08).  The fact that a home was temporarily uninhabitable due to fire damage does not mean it was not a "dwelling" as defined in the home invasion statute.  Therefore Defendant's challenge to the sufficiency of the evidence for a 2d degree home invasion conviction under MCL 750.110a(3) fails.  Also, circumstantial evidence supported the conclusion that Defendant entered the house with the intent to commit larceny.  

Identity Crime, Enhancement.  Flores-Figueroa v United States, __ US__; 129 S Ct 1886 (2009)(may'09).  A federal statute forbidding "aggravated identity theft" imposes a mandatory consecutive two year prison term on an individual convicted of certain predicate crimes if, during the commission of those other crimes, the offender, "knowingly . . . uses, without lawful authority, a means of identification of another person." 18 U. S. C. §1028A(a)(1). The statute requires that the government show the defendant knew that the means of identification at issue belonged to another person. 

Internet, Computer - Use of for Attempting Listed Sex Crimes. People v Cervi, 270 Mich App 603 (2006)(april'06). In this case the court dealt with constitutional challenges to the inexplicably increasingly common use of the internet to solicit underage sex. Here, the sex crime attempted through use of the computer (MCL 750.145d) was CSC III. Defendant thought he was communicating with a 14 year old girl, but was actually talking to a male Wayne County sheriff's deputy who was using the screen name Inozentangel. The deputy sent defendant pictures of a sheriff's department female undercover agent when she was 14.

First the court held that it was okay to charge a count for each use of the computer to communicate with a perceived minor with the specific intent to engage in sexual penetration with someone believed to be between 13 and 16 years of age. There was no need to show an act in furtherance as is required by the general attempt statute. In response to the first amendment challenge the court held that words alone can be overt acts in certain contexts as they are here where defendant said them to someone he believed was 14 with the intent that the fictional teenager would accept the invitation to have sex. Invitation or enticement was held to be distinguishable from pure speech. Bottom line: sexual exploitation of children enjoys no constitutional protection.

Medicaid False Claims.  People v Kanaan, DDS and Eight Mile Road Dental Clinic, 278 Mich App 594; 751 NW2d 57 (2008)(april'08).  Defendant dentist and clinc were convicted of 11 counts of filing false Medicaid claims under the Medicaid False Claim Act (MFCA), MCL 400.601 et seq.  Despite strong indications that minimal billing errors in a high volume practice could not have been intentional, the court of appeals, applying the "in favor of the prosecution" and "defer to the trial court" bromides, found sufficient convicting evidence in this bench trial.  The key point was the trial court's decision to accept the testimony of the prosecution dental expert as opposed to the defense dental expert based on the failure of the defense dental expert to conduct physical examinations.

MIOSHA Violation; Sufficiency and Corporate Responsibility. People v Lanzo Construction Company, 272 Mich App 470 (2006)(oct'06). Defendant corporation's employee was killed when a fifteen foot trench collapsed, partially burying him. After a bench trial the corporation was found guilty of violating the Michigan Occupational Safety and Health Act (MIOSHA) and sentenced to probation and a $10,000.00 fine. In response to defendant's sufficiency argument the court of appeals held that willfulness, which defines a MIOSHA violation under MCL 408.1011(a) and MCL 408.1035(5), requires only an intentional disregard of or a purposeful indifference to a MIOSHA requirement. Gross negligence is not necessary. Here, the corporation violated a general safe workplace regulation and the more specific demand that vertical-sided trenches over five feet in depth must be reinforced. On the corporate responsibility issue, the court of appeals, using a "supervisory responsibility over the subject matter of the offense" test, found that the offending employees at the scene were in charge of safety at that point, and were sufficiently high on the corporate ladder to criminally implicate the company.

Murder, Failure to Define.  People v Mesick, __ Mich App __; __ NW2d __ (No. 282088, September 10, 2009)(sep'09).  The failure of Michigan legislation to define "murder" does not render MCL 750.316 unconstitutional.  The court held that "[w]e find nothing vague about what conduct is prohibited by the statute."  The distinguishing element of murder, manslaughter, is adequately defined in case law and in the dictionary.     

Nursing Home Administrator Reporting Requirement.  People v Edenstrom, 280 Mich App 75; 760 NW2d 603 (2008)(aug'08).  The prosecution appealed from an order dismissing a complaint against a nursing home administrator for failure to report under MCL 333.21771(2).  A certified nursing assistant, while helping an oxygen-dependent patient smoke a cigarette (in a designated smoking area of the nursing home), did not realize that tubing retained oxygen after the tank was turned off, and caused an ignition, burning the patient.  The charged administrator considered it an accident, and did not report "physical, mental, or emotional abuse, mistreatment, or harmful neglect" under the statute.  Reviewing the issue de novo under a statutory interpretation analysis, the court of appeals agreed with the trial court that "harmful neglect" meant knowing or intentional neglect, therefore this accident was not reportable, and upheld the dismissal.  Zahra, concurring in part and dissenting in part, would reinstate the charges.     

Perjury - Fifth Amendment Protections Do Not Apply.  People v Bassage, 274 Mich App 321 (2007)(feb '07).  Bassage was convicted of perjury for his testimony as a witness in a murder case.  He argued that when he was called by the prosecution he had to choose between incriminating himself for filing a false police report and lying.  Bassage claimed that because he was never advised of his Fifth Amendment right not to incriminate himself, his testimony was obtained in violation of his Constitutional rights, and could not be used against him in his perjury trial.  The court found that the prosecutor was not required to advise Bassage of his Fifth Amendment right against self-incrimination for him to be later convicted of perjury. The court further held that even if his right against self-incrimination had been violated by the prosecutor's failure to advise, that violation would not result in suppression of allegedly perjured testimony or pretrial dismissal of a perjury charge.

Physical Mistreatment of Patient in Nursing Home, Abuse of Corpse.  People v Shakur, 280 Mich App 203; 760 NW2d 272 (2008)(aug'08).  Defendants were workers at a nursing home who took posed pictures with the corpse of a dead patient.  Terminated from employment, their licenses were spared.  However, the attorney general charged the employees with a misdemeanor violation of MCL 333.21771(1), physically mistreating a patient.  Defendants challenged the charge in district court through a motion to quash, arguing that a corpse was not a "patient."  The circuit court affirmed the district court's denial of the Defendant's motion.  The court of appeals reversed, employing statutory construction principles to conclude that, while the actions of the Defendants were reprehensible, the deceased was not receiving statutorily defined "care and services" when the charged actions occurred.  Therefore the deceased was not a "patient" under the statutory construct at the time of the alleged violation and the charges could not properly be brought.

Preventing Another from Reporting Crime - No Need to Show Crime was Committed.  People v Holley, 480 Mich 222; 747 NW2d 856 (2008)(april'08).  Under MCL 750.483a(1)(b), one cannot use physical force to prevent report of a crime.  In this case the court of appeals had held that, to obtain a conviction under this section, the prosecutor had to prove beyond a reasonable doubt that the crime sought to be reported (here, felonious assault), was in fact committed.  Reversing, by a vote of 4-3, the Michigan supreme court held that the statutory section at issue proscribes interference with the report of a crime, irrespective of whether the crime being reported was actually committed.   

Psychiatrist, Sex with Patient, Constitutionality.  People v Bayer, 279 Mich App 49; 756 NW2d 242 (2008)(may'08), vacated in part 482 Mich 1000; 756 NW2d 77 (2008)(sep'08).  Defendant psychiatrist was charged with CSC 3 under MCL 750.520d(1)(b), force or coercion, for having sex with a patient.  Defendant claimed, and the trial court found, that MCL  750.520b(1)(f)(iv) was unconstitutional as an improper delegation of legislative authority to the extent it criminalizes "unethical" or "unacceptable" medical practices.  The trial court found that by delegating the determination of criminal conduct to medical/psychiatric boards, the legislature violated the nondelegation provision (article 4, section 1) of the state constitution.  The court of appeals reversed, holding that it is appropriate for the legislature to incorporate medical or psychiatric standards as they have significance independent of the legislative enactment in which they function.  The court further held that the sexual contact here can be criminal under the force/coercion section, even if consensual, if the consent was obtained through Defendant's abuse of the treatment setting and manipulation of the patient.  On September 26, 2008, the Michigan supreme court vacated the portion of the judgment that states that medical testimony is required in all prosecutions under  MCL  750.520b(1)(f)(iv).   

Public Welfare Offense - No Mens Rea Required.  People v Schumacher, and Alternative Fuels, LC, 276 Mich.App. 165, 740 N.W.2d 534(2007)(june '07).  Schumacher was convicted of violating section 16902(1) as set forth in Part 169 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq; MCL 324.16902(1), for unlawfully disposing of scrap tires.  The parties disputed whether § 16902(1) imposed strict liability or required proof of mens rea.  Schumacher argued that he did not have the mens rea that the statute required, hence, he was wrongly convicted of the crime.  The court determined that § 16902(1) fits the description of a public welfare offense discussed by the Supreme Court in Morissette v US, which pointed out that increased technology and a growing society, "engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare." Morissette v United States, 342 US 246, 72 S Ct 240 (1952).  Relying on Morissette's definition of a public welfare offense, the court found that § 16902(1) contains no language from which it may be implied that guilty knowledge is a required element of the crime.  It concluded that the Legislature intended in § 16902(1) to establish a so-called public welfare offense - the only intent necessary to establish its violation is that the accused intended to perform the prohibited act, which Schumacher obviously intended to do given the evidence presented at trial.  The conviction was affirmed.

Open and Indecent Exposure, Televised Images. People v Huffman, 266 Mich App 354 (2005)(may'05). Defendant produced a program for Cable Access TV, with a 3 minute segment featuring a character named "Dick Smart." The character consisted of a close-up of defendant's penis and testicles. The court held he was properly convicted of indecent exposure; the "open or indecent exposure" language of MCL 750.335a applied to televising an image of a naked penis; the conduct was of a sort that the defendant should have expected, or did expect, someone to observe and be offended by; the statute is neither vague nor overbroad, and prohibition of this conduct did not violate defendant's First Amendment right to free speech.

Open and Indecent Exposure, Private Home. People v Neal, 266 Mich App 654 (2005)(june'05). The wording of Michigan's open and indecent exposure act should be read to mean indecent exposure or open exposure. Thus, the defendant's indecent exposure of himself in a private home would come under the meaning of indecent exposure, and need not also be open exposure.

Racketeering, MCL 750.159i. People v Lowery, 274 Mich App 684 (2007)(march'07). After the district court refused to bind over on multiple charges, and the circuit court affirmed this refusal, where defendant ran a pub where drug sales were being conducted, the court of appeals reversed and remanded for reinstatement of all charges against defendant. Witness testimony placed defendant in close proximity to drug sales at his establishment. Other testimony tended to prove that defendant allowed the pub office to operate as a drug storage facility. Thus, despite the fact that no one saw defendant make any drug sales, the testimony at exam "does give rise to reasonable inferences that defendant knowingly controlled the pub for use in enterprise operations." The cocaine sales fell within the definition of "racketeering" and the testimony developed the necessary pattern. The exam testimony established probable cause to believe that defendant committed each element of the racketeering charge and the case should have been bound over. The court also held that conspiracy and delivery charges (on an aiding and abetting theory) were sufficiently established for bindover.

Terrorism, Use of Computer, Constitutional Challenges. People v Osantowski, 274 Mich App 593 (2007)(march'07). Defendant was a high school student in Macomb County who sent e-mails to a chat room regarding his intent to kill. After the chat room messages were seen by the daughter of a Washington State University police officer, Michigan authorities were notified, defendant was arrested, and his school locker and home were searched. Though finding nothing in the school locker, police found weapons and other material that could be used to cause injury in an attic area in defendant's home. Defendant was sentenced to 30 months to 20 years in prison, after being convicted of making a false report or threat of terrorism, MCL 750.543m and using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(f), plus 2 for an FFA offense. The threat of terrorism charge was challenged on vagueness grounds. The court held that a "true threat" which intimidates is not protected speech. Nor was there a failure of fair notice, as the statute's meaning was readily ascertainable. The statute was upheld. The court also held that there was sufficient evidence to convict, and that the trial court did not err in admitting the cache of weapons and other potentially destructive material found in the attic in defendant's home.

Vehicle Code, OUIL Causing Death. People v Schaefer and Large, 473 Mich 418 (2005)(july'05). The court reconsidered what is required to show OUIL causing death (or impaired, or licensed suspended or revoked, or no license at all). Here the court held that the statute does not require any nexus between the manner of driving and the causing of death-it prohibits driving while intoxicated, not driving intoxicatedly. Ordinary principles of causation then apply; defendant is responsible for the death if his or her driving while intoxicated is the "but/for" cause of the death in a foreseeable manner (e.g. lightning did not strike the passenger), and no intervening cause occurs which amounts to a superseding cause. A superseding cause is an act of the victim or other third person which amounts to willful misconduct or gross negligence. The initial opinion in People v Derror was modified by the court of appeals to encompass this result (see below). Also, the opinion in People v Schut, 265 Mich App 446 (2005) held that one cannot be guilty of driving with license suspended causing death unless the defendant is the cause of the accident or collision that caused the death of the victim. This opinion was vacated by the supreme court in light of Schaefer. People v Schut, 474 Mich 865 (2005).

Vehicle Code, OWI Causing Death; Sufficiency; Proximate Cause. People v Rideout, 272 Mich App 602 (2006)(oct'06). While the intoxicated defendant's driving caused the first accident, the decedent had reached a position of safety before returning to a danger point where a second accident resulted in his death. Using a six-factor test set out in Dressler, Understanding Criminal Law (3d Ed.), the court found decedent's return to a position of danger a superseding, intervening cause of his death. Defendant's conviction of operating while intoxicated causing death was reversed as it was based on insufficient evidence and the court ordered retrial on a lesser offense. On March 28, 2007, the MSC granted leave to the prosecutor and, while upholding the grant of a new trial, noted that a "reasonable jury could find that the actions of the decedent were foreseeable based on an objective standard of reasonableness" and ordered retrial on the principal charge of OUIL causing death. People v Rideout, 477 Mich 1062 (2007) (march'07).

Vehicle Code, OUICS Causing Death. People v Derror, 268 Mich App 67 (2005)(sep'05), lv gtd, 474 Mich 886 (2005). The original decision in this case was modified after the supreme court's pronouncement in Schaefer, see above. MCL 257.625(4), OUIL causing death, and (5), OUICS causing death, contain identical language and are to be interpreted the same. MCL 257.625(8) provides for strict liability because it imposes sanctions for any amount of a controlled substance in the body. Because carboxy THC is evidence of THC, evidence of carboxy THC is enough to sustain a conviction of OUICS causing death. Leave was granted by the supreme court, limited to the issues whether carboxy THC is a schedule 1 controlled substance and whether the prosecutor must prove beyond a reasonable doubt that defendant knew the ingestion of the controlled substance may cause intoxication. In People v Derror, 475 Mich 316 (2006)(june'06), the court, over a vigorous dissent by Justice Cavanagh, who noted that carboxy THC can be present "months, and even years after marijuana was ingested," upheld strict liability and affirmed defendant's conviction. The court held that the prosecutor is not required to prove defendant knew that she might be intoxicated.

Vulnerable Adult Abuse - Sufficiency.  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.  It was alleged that defendant exploited his wife by manipulating her insulin so that she lost consciousness, allowing him to tie her up in various stages of undress and videotape her for his sexual pleasure.  The court held that defendant's wife met the statutory definition of a vulnerable adult as she was "suspected of being....abused, neglected, or exploited," and, because of physical disability, she lacked skills to live independently.  Randy Davidson of SADO filed a leave app in the MSC on 11/5/07.

E.                 Sentencing.

Apprendi/Blakely, Facts Allowing Consecutive Sentence.  Oregon v Ice, __ US__; 129 S Ct 711 (2009)(jan‘09).  The Sixth Amendment, as construed in Apprendi v New Jersey and Blakely v Washington, does not inhibit states from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses.  The Supreme Court believed that historical practice and respect for state sovereignty are strong reasons to not extend the Apprendi and Blakely line of decisions to the imposition of sentences for discrete crimes, but rather keep them within the offense-specific context that supplied the historic grounding for the decisions.

Blakely Issues.   In Blakely v Washington, 542 US 296 (2004), the Court held that judicial factfinding could not be used to enhance a guidelines sentence.  Such facts must be found beyond a reasonable doubt at trial.  Originally our supreme court found Blakely inapplicable to Michigan's indeterminate statutory guidelines sentencing system, People v Claypool, 470 Mich 715 (2004).  After much criticism based on the fact that this critical ruling was issued without briefing or argument of the issue, the court granted leave to fully assess the issue.  In People v Drohan, 475 Mich 140 (2006) and People v McCuller, 475 Mich 176 (2006)(june'06), the court held that under Michigan's indeterminate sentencing system the maximum sentence is not determined by the court but is set by law - Michigan's guidelines system merely creates a range within which the trial court sets the minimum.  (McCuller was later vacated and remand for reconsideration by the United States Supreme Court - see below).  Blakely and Booker found a violation where the jury verdict alone did not authorize the sentence imposed - the judge acquired authority to impose the given sentence in those cases only through a judicial finding of some additional fact.  The court held that in Michigan the jury verdict generally authorizes a sentence up to the statutory maximum. Justice Cavanagh concurred in the result in Drohan but in McCuller held that prosecutors should charge aggravating factors in the information and request a special jury verdict.  Intermediate Sanction Cell Issue.  Justice Kelly, dissenting in McCuller, would hold that when intermediate sanction cells are involved, the intermediate sanction is the "statutory maximum" for Blakely purposes.  She would invalidate Michigan's guidelines system.  The court granted leave in November, 2006 in two cases to assess Blakely in the intermediate sanction cell context and to determine whether a defendant can waive the issue by not objecting to the facts at issue (those facts that should be proved to a jury to justify departure per Blakely) when they appear in the presentence report.  People v Harper, 477 Mich 933 (2006)(nov'06) and People v Burns, 477 Mich 933 (2006)(nov'06).  See below.

In People v Uphaus, 275 Mich App 158 (2007)(april'07), the Michigan Court of Appeals issued a published decision jumping the gun on the supreme court's leave grants in Harper and Burns, and holding that Apprendi and Blakely do apply in Michigan to prohibit judicial fact finding to be used to justify an upward departure from the intermediate sanction cell limitations imposed by MCL 769.34(4)(a). The case was later held in abeyance by the supreme court (No. 133928, June 22, 2007, 733 NW2d 21) and then reversed, consistent with the decision in People v Harper, 479 Mich 599 (2007).  People v Uphaus, 480 Mich 939, November 21, 2007, No. 133928. 

In Washington v Recuenco, 548 US 212 (2006)(june'06), the Court held that failure to submit a sentencing factor to the jury, where required under Blakely, is not a structural error.  The failure to submit to a jury the issue of whether a firearm was a deadly weapon is a matter that is subject to harmless error analysis in this case. 

Cunningham v California, 549 US 270 (2007)(jan'07).  The Court, in a 6-3 decision, re-affirmed it's decisions in Apprendi v New Jersey, 530 US 466 (2000) and Blakely, invalidating judicial factfinding in sentencing under California's relatively new Determinate Sentencing Law (enacted in 1977).  Under the DSL, crimes are punishable by a low, middle, or upper term sentence (here, for "continuous sexual abuse of a child," those amounts were 6, 12, and 16 years respectively).  The court found that in Cunningham's case the jury verdict alone limited the permissible sentence to the middle number, 12 years.  Additional factfinding by the judge, including victim vulnerability and Cunningham's violent conduct, resulted in a 16 year sentence.  The imposition of a higher sentence after judicial factfinding was in violation of Cunningham's right to trial by jury under Apprendi and Blakely.    

Applying Blakely to Michigan's Sentencing Guidelines. People v Bernard George Harper, Jr. and Jesse Gene Burns, 479 Mich 599 (2007)(july '07). Harper was convicted of larceny and was sentenced to a prison term of 24 to 48 months, with credit for time served. In a separate proceeding, Harper was sentenced in the Allegan Circuit Court, to a term of 18 months to five years, following revocation of his probation. The court of appeals denied his application for leave to appeal, and he subsequently appealed by leave granted to the Michigan supreme court.  In July, 2002, Burns was convicted of attempted breaking and entering of a building. His recommended minimum sentence range under the guidelines was zero to 11 months, which placed him in an intermediate sanction cell. Burns was placed on probation for three years. In June 2005, Burns was charged with four counts of violating the terms of his probation.  The Michigan supreme court held that Michigan's indeterminate sentencing scheme did not offend the due process clause or Sixth Amendment jury trial guarantees, and that the legislature did not intend intermediate sanction to become a new statutory maximum, for the purposes of Blakely v Washington, 542 US 296, 124 S Ct 2531 (2004), when a defendant's minimum sentence range was in an intermediate sanction cell.

Michigan has a true indeterminate sentencing system in which the statutory maximum is prescribed by law and in which the sentencing guidelines are used only to determine a defendant's minimum sentence. An intermediate sanction does not constitute a maximum sentence under Blakely; it bears no relation to the maximum sentence authorized by the jury verdict or the guilty plea.

The court further found that substantial and compelling reasons warranted sentencing defendants to the jurisdiction of the Department of Corrections rather than to impose intermediate options, and even if sentencing courts violated Blakely, it was harmless beyond a reasonable doubt:

If any Blakely error is found to exist in either of these cases, the court was convinced that any such errors were harmless beyond a reasonable doubt, given that the facts used by the sentencing judges were uncontested and supported by overwhelming evidence, such that a jury would have reached the same result.

Justice Cavanagh concurred in part and dissented in part, and Justice Kelly dissented.

Applying Blakely to Michigan's Sentencing Guidelines. People v Raymond A. McCuller, 479 Mich 672 (2007)(july '07). McCuller was convicted of assault with intent to do great bodily harm less than murder. This is one of three companion cases involving the application of Blakely v Washington, 542 US 296, 124 S Ct 2531 (2004), to Michigan's sentencing scheme. After the case was heard by the Michigan court of appeals and supreme court, McCuller filed a petition for writ of certiorari. The United States Supreme Court vacated the judgment of the Michigan supreme court and remanded. On remand, the Michigan supreme court found that even if Michigan's intermediate sanction cells were characterized as setting maximum sentences for Blakely purposes, the sentencing court did not violate Blakely by scoring the offense variables (OVs) to calculate defendant's recommended minimum sentence range for his conviction and imposing a prison sentence within the guidelines. The court further held that even if the sentencing court violated Blakely, the error was harmless. Justices Kelly and Cavanagh dissented.

SCOTUS Action on Harper, Burns and McCullerOn December 20, 2007, the U.S. Supreme Court ordered Michigan to respond to cert petitions in Burns (No. 07-7291) and Harper (No. 07-7411) (defendants represented by SADO's Jeanice Dagher-Margosian) and the cert petition in McCuller was docketed recently (No. 07-8381) with response due on January 22, 2008 (defendant represented by SADO's Desiree Ferguson).  Burns was dismissed under Rule 46 on February 7, 2008.  The petitions in Harper and McCuller were denied, respectively, on February 25, 2008 and April 14, 2008.   

Controlled Substance Repeat Offenders, Doubling Minimum Sentence.  People v Lowe, 484 Mich 718; __ NW2d __ (2009)(aug'09).  Justice Hathaway again joined the conservative majority in a sentencing decision (see People v Idziak, below).  MCL 333.7413(2) allows a repeat controlled substance offender to be sentenced to a term "not more than twice the term otherwise authorized."  In this case Defendant's statutory maximum was ten years, and his computed guidelines range was 10 to 23 months.  The trial court doubled both, sentencing Defendant to 46 months to 20 years.  The five justice majority approved, using statutory interpretation.  Justices Cavanagh and Kelly dissented, stating that, absent a departure, the minimum sentence should not be altered, as the repeat enhancement provision applies only to the part of the sentence "within the controlled substances act" - the maximum.    

Corrections Department Notices to Court, Alteration of Sentence.  People v Holder, 483 Mich 168; 767 NW2d 423 (2009)(june'09).  In a rare unanimous ruling for the defense, the supreme court reversed a sentencing judge's compliance with a request by the MDOC to make previously imposed sentences consecutive to an underlying sentence on which Defendant had been discharged from parole prior to conviction on the crimes at issue.  The MDOC had belatedly "cancelled" Defendant's parole discharge by sending Defendant a notice to that effect, and the trial court complied with the MDOC request to change the sentence on the subsequent convictions without notice to the parties and without holding a hearing.  There is no statutory authority allowing the MDOC to revoke a discharge from parole once it is issued, and it cannot be recalled.  The MDOC has no inherent authority, and any authority to revoke a parole discharge once granted must be supplied by the legislature.  Lower courts were instructed that MDOC notices regarding sentencing "errors" are informational only, and any corrections or modifications to a judgment of sentence must comply with the relevant statutes and court rules.  This did not occur here as the trial court violated MCL 769.27 by altering the sentence without notice to the parties or a hearing upon objection.

Costs and Fines; Assessment of Ability to Pay.  People v Wallace, 284 Mich App 467; __ NW2d __ (2009)(june'09).  The trial court's imposition of court fees pursuant to MCL 769.1k(1), without assessing Mr. Wallace's ability to pay, was appropriate.  Noting the supreme court's grant of leave in People v Jackson, 483 Mich 884; 759 NW2d 401 (2009), to determine whether People v Dunbar, 264 Mich App 240; 690 NW2d 476 (2004), finding the imposition of reimbursement of attorney fees improper without assessment of the ability to repay, was correctly decided, the court separated that issue from the one at issue in the instant case.  Here, the only question was imposition of fines and costs, and the legislature neglected to require an assessment of the ability to pay them.  The court refused to read such a requirement into MCL 769.1k(1).  There was no discussion of the need to assess ability to pay before an indigent defendant can be incarcerated for failure to pay court fees.

Costs and Fines; Assessment for FFA Violation.  People v Lloyd, __ Mich App __; __ NW2d __ (No. 280373, July 9, 2009)(july'09).  Although there is no provision in the felony firearm statute covering imposition of costs, the legislature has expressly provided for imposition of costs in all cases after a finding of guilt in MCL 769.1k, effective January 1, 2006.  MCL 769.34(6), addressing the duties of the court at sentencing, also provides a general authority for imposition of costs.

Counsel - Right to Trial Counsel at Sentencing.   People v Keith Burnell Davis & Gilberto Estrada Perez, 277 Mich App 676 (2008)(jan'08). There is no absolute right to representation by the same attorney who handled the guilt determination phase at sentencing.  Where, as here, substitute counsel ably represented defendant, and there was no objection by defendant to the substitution, resentencing is not required.

Credit - Time Saved by Jail Overcrowding Act.  People v Grazhidani, 277 Mich App 592 (2008)(jan'08).  The court held that defendant could not receive credit for time not served due to the jail overcrowding act.  Defendant pled to CSC 3 and was sentenced to 5 years probation, with one year in the county jail.  After release from jail, defendant violated probation and was sentenced to 2-15 years in prison.  Defendant had served 268 days in jail, having been released early under the jail overcrowding act.  The trial court granted defendant credit for the full year and the prosecutor appealed.  The court of appeals, reversing and limiting credit to the 268 days actually served, distinguished good time, which had been granted under People v Resler, 210 Mich App 24 (1995), and concluded that since a defendant does nothing to earn overcrowding credit, he is not entitled to this time.  

Credit for Time Served While on Parole Hold.  People v Fillip, 278 Mich App 635; 754 NW2d 660 (2008)(march'08).  Defendant was arrested on new charges.  At the time of commission of these offenses Defendant was on parole and was also detained, at the time of his arrest, as a parolee subject to violation.  At issue was the trial court's grant of credit for over 100 days served between arrest and sentencing on the new offenses.  The court of appeals held Defendant was not entitled to credit because he was required to be held pursuant to the parole violation detainer and could not have been released on bond, which had been improperly set in relation to the new charges.   

Credit for Jail Time Served; Defendant on Parole.  People v Idziak, 484 Mich 549; __ NW2d __ (2009)(july'09).  After a complex analysis, which led to three different opinions in the case, the four justice majority ruled that a criminal defendant who commits a new crime while on parole is not entitled to credit for time served prior to being sentenced for the new offense.  This is so, according to the majority, because a defendant upon arrest for a new crime immediately begins serving time for the offense for which he had been paroled and is therefore not being denied liberty due to inability to post bond on the new offense.  Justice Markman, in dissent, complained that such a ruling will subject different defendants to disparate treatment based on factors such as the diligence of the prosecution or the schedule of the court.  Justices Kelly and Cavanagh, concurring and dissenting, would allow the time between arrest and sentencing on the new offense to be credited in the computation of a new minimum, to arrive at a new parole eligibility date, by the MDOC.    

Credit for Jail Time Served; Defendant on Parole.  People v Johnson, 283 Mich App 303; 769 NW2d 905 (2009)(april’09).  Defendant pled no contest to two property crimes, and sought credit for jail time served prior to sentencing.  The court held that since defendant was on parole when he committed the property crimes, credit could only be applied on “the prior sentence on the offense for which he enjoyed parole.” 

CS Sentences, Retroactivity of Ameliorative Changes and Departure from Presumptive Minimum.  People v Michielutti, 266 Mich App 223, rvd in part 474 Mich 889 (2005)(oct'05).  The defendant was sentenced to a mandatory ten years for possession with intent to distribute cocaine. Although the court rejected his argument that the amendments to the mandatory minimum provisions should be applied retroactively, the court still ordered resentencing. The trial court abused its discretion in refusing to find substantial and compelling reasons for departure where defendant had no prior criminal record, had a good work history and family support, and was willing to cooperate with the police.  Late in 2005 the supreme court ordered entry of the original sentence, finding that the court of appeals erred in holding that the 2003 amendments to the controlled substances act constitute a substantial and compelling reason to depart below the mandatory minimum sentences imposed by the former version of the act.  The court of appeals also erred in requiring a sentencing judge to respond on the record to every factor a defendant claims constitutes a substantial and compelling reason for departure. 

CS Sentences, Repeat Offender Provision.  People v Williams, 268 Mich App 416 (2005)(oct'05).  The repeat offender provision of the Controlled Substances Act that permits the court to impose a sentence "not more than twice the term otherwise authorized," allows the court to double both the maximum and the minimum. Thus, even though the guidelines minimum range was 5 to 23 months, the trial court did not exceed the guidelines in imposing a minimum sentence of 38 months. The repeat offender provision effectively doubles the guidelines range.

CSC Sentencing.  People v Wilcox, 280 Mich App 53; 761 NW2d 466 (2008)(july'08).  Defendant's sentence, 10-40 years for CSC 1 as a second offender, was "at least 5 years" and thus complied with the second or subsequent offense language in the criminal sexual conduct statute, MCL 750.520f.  The sentence also complied with 769.34(2)(b) as the minimum sentence did not exceed 2/3 of the maximum. 

Ex Post Facto, Parole, Life Means Life.  People v Hill, 267 Mich App 345 (2005)(july'05).  Defendant was convicted of armed robbery and was given a choice between serving a term of forty to sixty years or parolable life. Defendant chose the life sentence under advice from counsel that life did not mean life, and that he would be eligible for parole sooner than if he took the forty to sixty year sentence. There was no ex post facto violation because parole board testimony before the legislature was only offered to show that life did in fact mean life in Michigan, and not to signal a change in policy.

Federal Sentencing Guidelines, Crack-to-Powder Ratio.  Spears v United States, __ US__; 129 S Ct 840 (2009)(jan'09)(per curiam).  District courts are entitled to decline to follow the crack-cocaine Guidelines.  See Kimbrough v United States, 552 US ___ (2007), where the Supreme Court held that, under Booker, the cocaine guidelines, like all other guidelines, are advisory only. In this case, the district court's choice to lower the crack-to-powder ratio to 20:1 when determining defendant's sentence, rather than the recommended 100:1, was based upon two reliable decisions by other courts, and was appropriate.

Federal Sentencing, Enhancement Under the Armed Career Criminal Act, Use of State Offenses. United States v Rodriquez, __ US __; 128 S Ct 1783 (2008)(may'08).  Under the Armed Career Criminal Act, a state drug trafficking offense is "serious" and therefore supports enhanced federal sentencing, if it is punishable by 10 or more years incarceration.  Reversing the 9th Circuit in a 6-3 decision, the Court holds that state recidivist add-ons are appropriate to consider in determining whether a state offense meets the definition of "serious." 

Federal Sentencing, Felony Drug Offense under the CSA.  Burgess v United States, __ US __; 128 S Ct 1572 (2008)(april'08).  The federal Controlled Substances Act (CSA) allows for doubling of the mandatory minimum if defendant was previously convicted of a "felony drug offense."  Congress defined this as a state or federal drug offense punishable by more than one year.  Burgess had a prior state cocaine conviction in South Carolina, which was punishable by two years but was classified by the state as a misdemeanor.  The Supreme Court held that the time classification controls, and the South Carolina "misdemeanor" can be used to double Burgess's mandatory minimum under the CSA.  

Federal Sentencing Guidelines, Presumption of Reasonableness.  Nelson,aka Zikee v United States, __ US__; 129 S Ct 890 (2009)(jan'09) (per curiam).  Relying on Fourth Circuit precedent that "the guidelines are considered presumptively reasonable," the district court sentenced defendant to 360 months in prison for conspiracy to distribute and to possess with intent to distribute more than 50 grams of cocaine base - the bottom of the guideline range.  Defendant argued that the district court's reliance on that presumption was error, and that it incorrectly applied a presumption of reasonableness to his range. Citing Rita v United States, 551 US. 338 (2007), the Supreme Court agreed that its precedent does not allow a sentencing court to presume that a sentence within the applicable guidelines range is reasonable.  The Federal Sentencing Guidelines are not mandatory on sentencing courts, and they are also not to be presumed reasonable.

Guidelines, Departure.  People v Petri, 279 Mich App 407; 760 NW2d 882 (2008)(june'08).  The court affirmed an approximate 6 year departure (107 months was high end of guidelines and Defendant was sentenced to 178 months) despite the fact that the departure rationale reflected some of the characteristics considered in the OV and PRV calculations, and the trial court drew inferences from "objective behavior" which the Defendant argued violated the requirement that departures be based on objective and verifiable facts.

Guidelines, Departure Above Affirmed.  People v Uphaus, on remand, 278 Mich App 174; 748 NW2d 899 (2008)(march'08), lv app denied 9/22/08, 482 Mich 990.  The Michigan supreme court sent this one back after the court of appeals had the temerity to jump the gun on the Harper/Burns/McCuller line by holding that a move from an intermediate sanction cell via conduct not found by a jury or pled to violated Blakely/Apprendi.  On remand the court of appeals found that deparature in this marijuana case to 4-8 years on several counts plus two years for a felony firearm offense was justified because Defendant was a "serious threat to society" based on claimed threats against police officers.  The court of appeals also held the trial court properly allowed a PSI statement that Defendant was "paranoid."  Finally, the court held that confrontation rights do not apply at sentencing. 

Guidelines - Departure Below Reversed.  People v Raymond Young, 276 Mich.App. 446, 740 N.W.2d 347(2007)(august'07).  The trial court departed below guidelines in this armed robbery case and the prosecutor appealed.  Guidelines were 21-35 months, and the recommended sentence was 21-60 months.  Defendant was sentenced to 9 months in jail based on 1) the size of the knife used in the robbery; 2) lack of criminal history; 3) continuous work record; 4) defendant's youth; 5)defendant's cooperation with police.  The court of appeals determined that use of the knife did not affect defendant's OV level, as scored, and thus could not qualify as a departure reason on this record.  Defendant's lack of a prior record was taken into account in providing a PRV score of 0 and was thus not a proper departure reason.  While defendant's employment history could be used to depart, here it was not "particularly lengthy or noteworthy."  Defendant's age (22) does not "keenly or irresistibly grab one's attention" and fails as a departure rationale.  Defendant's cooperation with defense counsel and respect for the court could not justify departure as this factor was not objective and verifiable.  Remanded for resentencing, presumably to prison.    

Guidelines, Departure for Refusal to Admit Guilt Improper.  People v Jackson, 474 Mich 996 (2006)(jan'06).  The Michigan supreme court found the trial court's departure based on the defendant's "failure to step up to the plate...and admit....guilt" was improper.  The exercise of the right to trial cannot be punished at sentencing.  See also People v Conley, 270 Mich App 301 (2006)(march'06), holding that consideration by the court of defendant's refusal to admit guilt is constitutional error, and requires resentencing even in the absence of a guidelines scoring problem (despite MCL 769.34(10) which directs the court to affirm a sentence within the appropriate guidelines sentence range unless there is a scoring error or inaccurate information is relied upon).  But see People v Dobek, 274 Mich App 58 (2007)(jan'07), where the court, without acknowledging Conley, upheld a sentence within guidelines (judicial guidelines as the offense allegedly occurred in 1995), despite the trial court's harassment of defendant with the fact that he failed to provide the complainant closure by  admitting to the offense after a jury convicted him.  But see the MSC order in People v Hatchett, 478 Mich 874 (2007)(march'07).  

Guidelines - Departure Above Affirmed.  People v Kahley, 277 Mich App 182 (2007)(nov'07).  Pedophilia was determined to be a sufficient reason for a substantial departure above (defendant was sentenced to serve 25-75 years where the minimum guideline range was 9-15 years) citing People v Armstrong, 247 Mich App 423 (2001).    

Guidelines, Departure, Extent of.  People v Gary Smith, 482 Mich 292; 754 NW2d 284 (2008)(july'08).  Defendant was sentenced to three concurrent terms of 30-50 years for three CSC 1 convictions after the guidelines scoring range suggested a minimum sentence of between 9 and 15 years.  The court of appeals upheld the departure, concluding that the trial court's reasons for departing (Defendant's role as provider, lengthy period of abuse, Defendant's threats, gynecological exam experienced by victim) were substantial and compelling.  The supreme court majority opinion, authored by Justice Kelly, agreed that several of the departure reasons were justified, but held that the trial court failed to justify the extent of this particular departure.  The majority utilized a grid analysis to conclude that the 30-50 years imposed here was "off the charts" and remanded to the trial court to articulate why this level of departure was warranted or to resentence.  The majority provided a 7 point summary "to assist trial courts in fulfilling their statutory obligations."  Justices Weaver and Corrigan issued separate dissents.  

Guidelines, Departure, Future Dangerousness.  People v Horn, 279 Mich App 31; 756 NW2d 212 (2008)(may'08).  While speculation regarding future dangerousness may be insufficient to base an upward departure, a factually based determination that strongly suggests Defendant will continue to commit criminal acts will justify a departure.  Here, "repetitive acts of escalating violence against a specific victim is not adequately considered by the guidelines" and will sustain a departure. 

Guidelines Departure Okay in Vulnerable Adult Abuse Case. People v Cline, 276 Mich App 634 (2007)(sep'07).  The trial court properly departed above guidelines in a kidnapping and vulnerable adult abuse case where, despite using improper rationales such as defendant's age and future dangerousness, the court explained how the guidelines "did not adequately account for the circumstances of this case."   

Guidelines, Federal Guidelines Sentence Enhancement, Armed Career Criminal Act.  Logan v United States, 552 US 23; 128 S Ct 475 (2007)(dec'07).  The federal Armed Career Criminal Act contains an exemption for convictions for which offenders have had their civil rights restored.  Such convictions cannot be used for enhancement purposes under the act.  In this case Mr. Logan retained his civil rights at all times in relation to the prior offense in question.  Since nothing was "restored" the exemption does not apply.

Guidelines, Federal - Presumption of Reasonableness.  Rita  v United States, 551 US 338; 127 S Ct 2456 (2007)(june'07).  Resolving a circuit split the Court held that it was appropriate to presume the reasonableness of a within-Guidelines sentence.  Defendant Rita argued that his special circumstances (health, fear of retaliation as he was a long-time law enforcement officer, and military record) required a sentence below guidelines.  Approving the presumption, the Court held that it was not binding.  Even if the presumption of reasonableness increases the likelihood that the judge, not the jury, will find sentencing facts, it does not violate the Sixth Amendment.    

Guidelines, Foreign Convictions under PRV 1 and OV 13 5-year Rule.  People v Price, 477 Mich 1 (2006)(oct'06).  The trial court erred in scoring foreign convictions (here Canadian) under PRV 1 as the statutory language clearly restricts scoring to convictions in another state.  Foreign convictions can give rise to a substantial and compelling reason for departure if due process was afforded by the country in question.  The court also held that the guidelines were improperly scored when two convictions that fell just outside of the five year range prior to the commission of the sentencing offense were used to provide points under OV 13.     

Guidelines, Hendrick Applies Retroactively.  People v Parker, 267 Mich App 319 (2005)(july'05).  The defendant was convicted of several crimes in 2001. In 2002 he pled guilty to violating his probation and was sentenced to prison. The sentencing judge did not utilize the sentencing guidelines and imposed a sentence greater than that permitted under the guidelines. In 2004, the court of appeals in People v Hendrick held that the sentencing guidelines applied to sentences imposed after probation violations if the underlying crimes were committed after January 1, 1999. The panel held that Hendrick applies retroactively and remanded for resentencing.   

Guidelines, Interference with Administration of Justice, OV 19.  People v Michael Jaye Underwood II, 278 Mich App 334; 750 NW2d 612 (2008)(mar'08).  OV 19, interference with the administration of justice, can be scored at ten points in a perjury case.  In this case the prosecutor successfully appealed the trial court's conclusion that scoring OV 19 in a perjury case was not warranted, as interference is inherent in perjury and therefore already contemplated by the guidelines.

Guidelines,  Intermediate Sanction, Prison or Jail.  People v Muttscheler, 481 Mich 372; 750 NW2d 159 (2008)(june'08).  Defendant pled guilty under an agreement that he would be sentenced within the guidelines on his attempted possession of a weapon by a prisoner charge.  The Baraga County Circuit Court denied a motion to withdraw the plea. The court of appeals reversed and remanded for resentencing, noting that the guidelines scored out to an intermediate sanction cell (5-17 months) and it was thus improper to sentence Defendant to a prison term of 12-30 months without departing from the guidelines, something the trial court could not do without offering Defendant an opportunity to withdraw his plea. The supreme court unanimously agreed, and interpreted the intermediate sanction sentencing statute, MCL 769.34(4)(a).  The court ruled that absent a departure supported by substantial and compelling reasons, a trial court may not impose an indeterminate prison sentence on a defendant for whom the sentencing guidelines require an intermediate sanction because an "intermediate sanction does not include a prison sentence."  

Guidelines, Resentencing Needed Where Guidelines Incorrectly Scored.  In People v Francisco, 474 Mich 82 (2006) and People v Johnson, 474 Mich 96 (2006)(march'06), the Michigan Supreme Court, over the dissent of Justice Corrigan in both cases, held that resentencing is required when an error changes the guidelines range, even if the original sentence is within the corrected guidelines range.  Francisco dealt with an OV 13 scoring error where convictions outside the 5 year period were improperly used to add points, and Johnson was a case where OV 11 was wrongly scored because certain penetrations did not arise out of the sentencing offense.

Guidelines Scoring Issues under PRV 4, PRV6, OV 9, & OV 12.  People v Billings, 283 Mich App 538; 770 NW2d 893 (2009)(april’09).  Guidelines scoring issues are discussed in this case which deals primarily with Halbert counsel rights.  

Guidelines, Sentence Imposed after Probation Violation.  People v Hendrick, 472 Mich 555 (2005)(june'05).  Legislative sentencing guidelines apply to sentences for probation violation. Therefore, the defendant's acts that gave rise to the PV may constitute substantial and compelling reasons for sentencing guideline departures. The court of appeals' conclusion in this case that the factors used to justify the departure had already been considered by the guidelines variables was erroneous.

Guidelines, Unjustified Upward Departure.  People v Havens, 268 Mich App 15 (2005)(aug'05). The defendant pled guilty to four counts of delivery of less than 50 grams of heroin to a minor. The trial court sentenced her to 15 to 40 years, a departure from the guidelines recommended minimum range of 19 to 38 months. The trial court's reason for the departure, that the Legislature did not contemplate injection of heroin as delivering heroin, was clearly erroneous. Because injection may constitute delivery for purposes of conviction, it also constitutes delivery for purposes of sentencing. Therefore it was not a compelling and substantial reason to deviate from sentencing guidelines.

Guidelines, Waiver of Objection.  People v McKay, 474 Mich 967 (2005)(dec'05).  In denying leave the court found that defendant had waived his right to object to OV-13 by accepting a valid Cobbs agreement.

Habitual Offender Sentencing.  People v Gardner, 482 Mich 41; 753 NW2d 78 (2008)(july'08).  Defendant was convicted and sentenced as a 3d offense habitual offender, under MCL 769.11, where his two prior felonies, felonious assault and felony firearm, arose from the same criminal act.  Therefore, under People v Stoudemire, 429 Mich 262 (1987) and People v Preuss, 436 Mich 714 (1990), these convictions should have been counted as a single prior felony, limiting Defendant's exposure to sentencing as a second offender.  Justice Corrigan, writing for the majority, used a statutory construction analysis to overrule Stoudemire and Preuss, and held that Defendant was properly sentenced as a third offender.  Justices Cavanagh and Kelly issued separate dissents.   

Invalid Sentence, Okay to Impose Longer Minimum on Correction.  People v Parish, 282 Mich App 106; 761 NW2d 441 (2009)(jan’09).  Defendant was originally sentenced to 126 months to life, an invalid sentence under MCL 769.9(2).  Because the original sentence is wholly invalid, resentencing is de novo, allowing an increased minimum (defendant was later sentenced to 210 to 360 months).  The presumption of vindictiveness was also avoided because a different judge imposed the new sentence. 

Kimbrough and Gall (Booker and Guidelines).  In Kimbrough v United States, 552 US 85; 128 S Ct 558 (2007)(dec'07), the Court held that under Booker (543 US 220), the cocaine sentencing guidelines, like all other guidelines, are advisory only.  Thus the 4th Circuit erred in determining that a sentence out of range is per se unreasonable when based on the disparity for crack and powder cocaine offenses.  It is permissible for a judge to determine, under particular facts, that a within-guidelines sentence is "greater than necessary" to serve sentencing objectives.  In doing this the judge may consider the crack/powder disparity.  In Gall v United States, __ US __; 128 S Ct 586 (2007)(dec'07), the court reviewed the reasonableness of sentences imposed by district judges.  While the extent of the difference between a particular sentence and the recommended guidelines range is relevant, courts of appeals must review all sentences, whether inside, just outside, or significantly outside the range, under a deferential abuse of discretion standard.          

Presentence Report; Challenge to Accuracy.  People v Lloyd, __ Mich App __; __ NW2d __ (No. 280373, July 9, 2009)(july'09).  Noting the importance of accurate information in the report, the court remanded to the trial court for consideration of Defendant's challenge to an assertion in the report that charges were pending against him.  The trial court had declined to review the matter as no objection had been made at sentencing.  Noting that MCR 6.249(C) had been amended to allow a challenge to information relied upon in determining a sentence "at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals," the appellate panel found that Defendant's post-sentence motion to correct the presentence report was sufficient compliance to allow review of his claim.

Reimbursement of Attorney Fees.  People v Steven Carter, 480 Mich 938 (2007)(nov'07).  The supreme court ordered argument on the soundness of the constitutional underpinnings of People v Dunbar, 264 Mich App 240 (2004).  While the order does not indicate that the issue they are concerned with is Dunbar's holding that the requirement of repayment of attorney fees without an assessment of ability to pay is improper, that is the only issue defendant won on in Dunbar, and the case has been cited repeatedly on this point by the court of appeals, so there can be little doubt this holding is the target. In February of 2008 the Supreme Court denied leave, 480 Mich 1063, with a lengthy dissent by Justice Corrigan.

Reimbursement for Costs of Appointed Counsel.   People v Trapp, 280 Mich App 598; 760 NW2d 791 (2008)(sep'08).  The court of appeals, on remand from the supreme court, reaffirmed People v Dunbar, 264 Mich App 240, 251-255 (2004).  MCL 769.1k, effective 1/1/06, authorizing imposition of reimbursement for legal assistance costs, did not alter the Dunbar requirement that the trial court consider a defendant's ability to pay.  A hearing is not required - an updated presentence report will suffice.          

Restitution, Statutory Construction.  People v Gubachy, 272 Mich App 706 (2006)(nov'06).  Defendant, convicted of B & E and other offenses involving theft from his former employer, a plumbing company, contested over ten thousand in restitution ordered on two grounds.  The court upheld the restitution order, approving the trial court's accounting methods for determining the total value of lost goods and equipment and found that the statutes governing restitution permit the addition of labor costs (in this case the labor costs for taking inventory and re-equipping the company's trucks).    

Restitution in Criminal Cases. People v Bernice W. Bell and Willie B. Aldridge, 276 Mich App 342 (2007)(july '07). Aldridge pleaded nolo contendere to four counts of embezzlement and Bell pleaded nolo contendere to one count of embezzlement. Aldridge was the principal of Pontiac Central High School, and had fraudulently issued checks to Bell, her sister, from a student activities account. Before entering her plea, Aldridge had reached a settlement with the school district that provided that she would resign her position with the school district and dismiss her pending grievance and her action before the State Tenure Commission in exchange for a payment of $40,742. The agreement further provided that the school district release Aldridge from "any and all claims, demands, actions, causes of action, controversies, grievances, charges, and suits of every kind...." Bell did not sign any such agreement. The court initially ordered defendants to pay restitution to the school district in the amount of $7,223.92, subject to an evidentiary hearing on the matter. In the interim, the school district's insurer had paid $13,661.73 to the school district to compensate it for defendants' illegal activities. The insurer requested that a restitution order in this amount be entered in its favor as compensation for the payment. At the restitution hearing, the prosecutor argued that under the Crime Victims Rights Act (CVRA), restitution should be ordered regardless of the settlement that Aldridge had made with the school district. The prosecutor also asserted that because Bell had not signed the agreement, any release of claims against Aldridge did not apply to Bell. The trial court ruled that under the settlement, the school district, and, by extension, its insurer, gave up any claims it had against Aldridge. The court further reasoned that Bell, as an aider and abettor, could not be held liable for restitution if Aldridge, the principal in the crimes, could not be held liable. The prosecutor appealed, arguing that the trial court erred in denying restitution.  The court of appeals agreed with the prosecutor and reversed the trial court's judgment stating that Aldridge and Bell needed to pay the restitution:

"The pertinent language of the CVRA clearly states that a sentencing court shall order restitution to the victim of a crime or to an entity that has compensated the victim. MCL 780.766(2), (8). The use of the word "shall" indicates that the directive to order restitution is mandatory. Accordingly, restitution must be paid to the insurer that compensated the school district, regardless of the existence of the civil settlement."

The court further found that its ruling applied to Bell as well since she was also convicted of a crime and MCL 767.39 states:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."

Sentencing Credit, None for Disciplinary Credits Earned on Illegal Sentence.  People v Tyrpin, 268 Mich App 368 (2005)(oct'05).  The defendant was convicted by a jury of CSC III, and originally sentenced to one year in jail. That sentence was reversed by the court of appeals and defendant was resentenced to prison. Defendant sought credit for not only the actual days he spent in jail on the illegal sentence but also for the 61 days in good-time credit he had earned in jail. While the actual days spent must be credited to the new sentence, defendant is not entitled to the good time earned while serving the illegal sentence.

Sentencing Credit, No Credit for Time in Jail prior to Sentencing for Parolee.  People v Stead, 270 Mich App 550 (2006)(feb'06).  When a parolee is arrested for a new criminal offense, he is held on a parole detainer until convicted of the new offense.  Therefore, his incarceration is not the result of being denied bond, and therefore no credit is to be awarded.  The supreme court has been discussing, in orders, the need to deal with the arbitrariness of this situation to the extent it tends to punish defendants who go to trial and who therefore serve a much longer pretrial detention.

Sexually Delinquent Person, Probation is Proper (but only if downward departure reasons can be articulated).  People v Buehler, 268 Mich App 475 (2006)(jan'06).  The trial court convicted the defendant of indecent exposure by a sexually delinquent person. The court concluded that because the defendant could control himself when he was not drinking, and he was maintaining sobriety, a sentence of probation rather than prison was proper. Pursuant to the prosecutor's appeal of the probationary sentence, the panel held that a trial court is not required to sentence a defendant to an indeterminate prison term under MCL 750.335(a), and a sentence of probation is proper.  The decision was subsequently vacated by the supreme court, 474 Mich 1081 (2006).  On remand to the court of appeals that court again found probation to be a proper sentence, 271 Mich App 653 (2006 WL 2060429, decided July 25, 2006)(jan'06).  The supreme court againPeople v Buehler, 477 Mich 18 (2007)(feb'07).      granted leave to the prosecutor and issued a per curiam opinion holding that a probationary sentence is proper under these circumstances only when the trial court articulates substantial and compelling reasons for a downward departure, remanding to the trial court for articulation or resentencing. 

Youthful Trainee Act - Multiple Convictions.  People v Giovannini, 271 Mich App 409 (2006)(june'06).  The court interpreted the statute and concluded, as it did in People v Harns, 227 Mich App 573 (1998) vacated in part, 459 Mich 895 (1998), that YTA status can be granted to individuals convicted of more than one offense.

Other Guidelines Cases:

OV 1 - People v Novak, 474 Mich 883 (2005).

OV 1 - Exposure to Harmful Biological Substance.  People v Odom, 276 Mich.App. 407, 740 N.W.2d 557(2007)(august'07).  Defendant was sentenced to 5-15 years for assault (punch and spit) on a prison guard, habitual fourth.  The court held that OV 1 was properly scored at 20 points for exposure to a "harmful biological substance" where it was alleged that defendant spit HIV positive blood on a prison guard.  Claims of prosecutorial misconduct, ineffective assistance of counsel, and other alleged violations were rejected.    

OV 3 - People v Houston, 473 Mich 399 (2005).

OV 4, OV 9, OV 10, OV 11, OV 13 - People v Wilkens, 267 Mich App 728 (2005).

OV 7 - People v Kegler, 268 Mich App 187 (2005).

OV 7 - People v Mattoon, 271 Mich App 275 (2006).

OV 7, PRV 5 - People v James, 267 Mich App 675 (2005).

OV 8, OV 10, OV 11 - People v Cox, 268 Mich App 440 (2005).

OV’s 8, 10 and 19.  People v Steele, 283 Mich App 472; 769 NW2d 256 (2009)(april’09).  The court, in this CSC case, upheld scoring under OV 8 (asportation to a place of greater danger, OV 10 (exploitation of victim vulnerability, with predatory conduct), and OV 19 (interference with administration of justice – here, defendant allegedly telling his victims that they should not disclose his acts or he would go to jail).    

OV 9 - People v Melton, 269 Mich App 542 (2006), superseded by 271 Mich App 590 (2006). But see 2006 PA 548, effective 3/30/07, allowing OV9 to be scored on property crimes.

OV 9 - Number of Victims.  People v McGraw, 484 Mich 120; 771 NW2d 655 (2009)(july'09).  OV 9 allows ten points to be scored if a defendant places more than one person in danger during commission of the offense.  In People v Sargent, 481 Mich 346; 750 NW2d 161 (2008) the court recently ruled that OV 9 cannot be scored based on uncharged acts that did not occur during the "same criminal transaction" as the sentencing offense.  In McGraw, a 4-3 ruling, the court refused to score ten points for OV 9 for conduct that occurred after completion of the offense for which Defendant McGraw was being sentenced.  In this case, the court of appeals had ruled that because Defendant had placed several people in danger during his flight from the scene of a breaking and entering, it was permissible to score the ten points, which revised the guidelines upward.  The majority held that a defendant's conduct after the sentencing offense is completed does not relate back for scoring offense variables "unless a variable specifically instructs otherwise."  Justices Weaver and Young joined Justice Corrigan's dissent.

OV 9 - Guidelines - Number of Victims.  People v Gullett, 277 Mich App 214 (2007)(nov'07).  Defendant pled nolo to CSC 1, victim under 13, MCL 750.520b(1)(a), and was sentenced to 50-75 years in prison.  OV 9 requires 2-9 victims to score 10 points.  The court held that this scoring must be limited to those victims involved in the specific transaction that gave rise to the particular conviction for which defendant is being sentenced.  While at least one of the other alleged victims was involved in the course of conduct surrounding the offense, the particular offense at issue dealt with an alleged oral penetration in complainant's bedroom when no one else was present.  Therefore it was error to score OV 9, and since this error affected defendant's adjusted habitual offender guidelines range, resentencing was necessary. 

OV 9 - Guidelines.  People v Sargent, 480 Mich 869 (2007)(sep'07).  MSC order granting leave on the issue of whether the analysis of offense variable 6 scoring under former judicial sentencing guidelines, as set forth in People v Chesebro, 206 Mich App 468 (1994), should apply to OV 9 under the current statutory sentencing guidelines.

OV 9 - People v Juderjohn, 474 Mich 951 (2005).

Guidelines, OV 9, Number of Victims Defined.  People v Sargent, 481 Mich 346; 750 NW2d 161 (2008)(june'08).  Defendant was convicted in Allegan County Circuit Court of first-degree criminal sexual conduct and second-degree criminal sexual conduct.  The Defendant was convicted of CSC after he was alleged to have sexually abused a 13-year-old complainant. At trial, the complainant's older sister testified that defendant had also sexually abused her when she was 15 years old. The trial court assessed 10 points for Offense Variable 9 on the basis that there were two victims - the complainant and the complainant's sister - and the court of appeals affirmed. The supreme court, in a unanimous opinion, held that in scoring OV 9, number of victims, the trial court could not consider uncharged acts that did not occur during the same criminal transaction as the sentencing offense.  The court reasoned:

"If, as the prosecutor contends, we are not limited to conduct relating to the sentencing offense, every single person that the defendant had ever placed in danger of injury or loss of life would properly be considered for the purposes of OV 9. Instead, when scoring OV 9, only people placed in danger of injury or loss of life when the sentencing offense was committed (or, at the most, during the same criminal transaction) should be considered." Id. at 350.

The case was remanded to the trial court for resentencing.

OV 10 - Guidelines.  People v Keith Burnell Davis & Gilberto Estrada Perez, 277 Mich App 676 (2008)(jan'08).The court held it was appropriate to award 15 points for predatory conduct where defendants cased a store, determining that a lone woman storeowner was a suitable victim.  

Guidelines, OV 10, Predatory Conduct Defined.  People v Cannon, 481 Mich 152; 749 NW2d 257 (2008)(june'08).  Defendant was convicted following jury trial in Saginaw County Circuit Court of conspiracy to commit armed robbery, and was assessed 15 points for predatory conduct under offense variable ten (OV 10).  The prosecutor argued that the predatory conduct consisted of waiting in a truck at a neighboring business until no customers remained in the restaurant, then committing the robbery. According to the prosecutor, the three men had targeted the restaurant and planned their actions to victimize the restaurant employees. Defense counsel objected, arguing that these actions did not constitute predatory conduct under the statute. The trial court agreed to assess points for predatory conduct. It reasoned that Defendant's conduct was predatory because Defendant could have signaled his co-conspirators to stop the robbery. The Michigan court of appeals found that Defendant failed to show that the trial court committed clear error in scoring fifteen points against him on OV 10. The supreme court concluded that both courts missed the boat in their analysis and held:

"Points should be assessed under OV 10 only when it is readily apparent that a victim was "vulnerable," i.e., was susceptible to injury, physical restraint, persuasion, or temptation.  Factors to be considered in deciding whether a victim was vulnerable include (1) the victim's physical disability, (2) the victim's mental disability, (3) the victim's youth or agedness, (4) the existence of a domestic relationship, (5) whether the offender abused his or her authority status, (6) whether the offender exploited a victim by his or her difference in size or strength or both, (7) whether the victim was intoxicated or under the influence of drugs, or (8) whether the victim was asleep or unconscious. The mere existence of one of these factors does not automatically render the victim vulnerable." Id. at 159.

The court concluded that since both lower courts failed to apply the correct test in scoring OV 10, remand to the trial court was necessary to reconsider whether to assess 15 points for predatory conduct under OV 10, and to resentence Defendant if no points are assessed.

OV10 – Vulnerable Victim.  People v Russell (on remand), 281Mich App 610; 760 NW2d 841 (2008)(dec’08).  To score 15 points under OV 10, predatory conduct must be directed toward an actual victim. Under the Michigan Supreme Court decision in People v Cannon, 481 Mich 152 (2008), defendant’s subjective intent (here, defendant thought he was setting up a sexual encounter with a 14-year-old girl over the internet but was instead communicating with an adult male special agent) is irrelevant to OV 10 scoring even though it is sufficient to establish the elements of the crimes defendant was convicted of (child sexually abusive activity; use of internet).                 

OV 11 - People v Thompson, 474 Mich 861 (2005).

PRV 5, OV 3, OV 19 - People v Endres, 269 Mich App 414 (2006).

OV 19 - Guidelines- Interference with Administration of Justice. People v Passage, 277 Mich App 175 (2007)(nov'07).   Where defendant attempted to escape, using force, after being confronted by store employees outside a Meijer's store with a claim of shoplifting, the court determined this conduct was sufficient to score 15 points for interference with the administration of justice.

Guidelines, OV 19, Interference with Administration of Justice.  People v Michael Jaye Underwood II, 278 Mich App 334; 750 NW2d 612 (2008)(march'08), lv app denied 7/29/08, 482 Mich 898.  OV 19, interference with the administration of justice, can be scored at ten points in a perjury case.  In this case the prosecutor successfully appealed the trial court's conclusion that scoring OV 19 in a perjury case was not warranted, as interference is inherent in perjury and therefore already contemplated by the guidelines.

OV 20 Guidelines, Terrorism.  People v Osantowski, 481 Mich 103; 748 NW2d 799 (2008)(may'08).  Defendant was convicted of making a terrorist threat under MCL 750.543m when he sent e-mails to a teenager living in Washington state claiming he intended to commit mass murder at his Clinton Township high school.  The trial court refused to assess 100 points under OV 20 as the threats themselves did not constitute a "terrorist act."  The court of appeals disagreed and ordered resentencing at a higher guidelines level.  The Michigan supreme court, by a 5-2 vote, agreed with the trial court after interpreting the relevant statutes. 

F.                 Miscellaneous

Arrest Records, Destruction after Deferral.  People v Benjamin, 283 Mich App 526; 769 NW2d 748 (2009)(april’09).  Defendant successfully completed a drug deferral program under MCL 333.7411(1) and requested destruction of arrest and fingerprint records by the state police.  The trial court agreed.  Citing McElroy v Michigan State Police Criminal Justice Information Center, 274 Mich App 32; 731 NW2d 138 (2007), which interpreted a similar deferral program, the court held that the trial court erred in ordering destruction of the records.  The statutory deferral program demands that a non-public record be kept in order to ensure that the program is accessed only once by an individual, and deferral under the program is not a finding of “not guilty” required by MCL 28.243(8) for destruction of the arrest and fingerprint records.     

Bail Bond Forfeiture.  In re Forfeiture of Bail Bond, 276 Mich.App. 482, 740 N.W.2d 734(2007)(august'07).  This case involved four defendant's (Moore, Lineman, Velez, Jr., and Shepard).  The Kent County Circuit Court ordered bond forfeiture in each case when defendants failed to appear.  The prosecutor moved for and got a show cause against Bond Bonding Agency (BBA).  The agency argued no judgments should be entered against it as it was not given timely  notice of defendant's failure to appear.  The trial court, taking into account "the passage of time" entered partial judgments against BBA in various amounts ranging from $2,900 to $37,500 in the four cases.  The court of appeals held that notice was sufficient under former MCR 6.106.  Statutory notice requirements, past and present, were not violated.  The court was permitted to enter reduced judgments in each case.

CCW Licensing, Mental Illness. In Attorney General Opinion No. 7189, dated March 15, 2006(march'06), it was held that a county concealed weapon licensing board does not have authority to diagnose mental illness when reviewing a permit application. The board does have authority to investigate and resolve if the issue is raised.

Child Support - Double Jeopardy and Statute of Limitations Issues. People v Parker, 275 Mich App 213 (2007)(april'07). The court held that felony charges were brought before the six year statute of limitations had run even if the issue had not been waived. The court also ruled that despite the fact that some of the earlier contempt orders in the case were civil in nature, because they were entered in relation to a separate violation (failure to appear at FOC to provide contact and employment information as opposed to failure to pay child support), defendant's double jeopardy rights were not violated.

Counsel on Appeal, Guilty Pleas, Halbert Retroactivity.  People v Maxson, 482 Mich 385; 759 NW2d 817 (2008)(dec'08).  Defendant pled guilty in 2001 to two felonies and failed to request appointed counsel on appeal, as Michigan had unconstitutionally eliminated that right.  On June 23, 2005, the United States Supreme Court decided Halbert v Michigan, 545 US 605, clearly indicating Michigan had acted unconstitutionally in denying counsel to guilty pleaders in conjunction with their first, direct appeal, despite the fact that the appeal was discretionary.  The supreme court held that Halbert is not retroactive under either federal or state law.  Justice Cavanagh, joined by Justice Kelly, accused the majority of swerving and dodging the decisions of the United States Supreme Court to deny indigent defendants access to justice. 

Death Penalty, Non-Homicide Crimes.  Kennedy v Louisiana, __ US__; 129 S Ct 1 (2008)(oct'08).  Defendant was charged with aggravated rape of his 8 year-old stepdaughter.  He was convicted and sentenced to death under a Louisiana state statute authorizing capital punishment for the rape of a child under 12.  The state supreme court rejected defendant's reliance on Coker v Georgia, 433 US 584, which barred the use of the death penalty as punishment for the rape of an adult woman, declaring that children were in a special class, and that the rape of a child is a crime deserving of death. Coker left open the question of whether any other non-homicide crimes can be punished by death consistent with the Eighth Amendment.  The US Supreme Court elaborated on its earlier Coker decision, and determined that the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. 

Deportation, Felony Conviction. Lopez v Gonzales, 549 US 47; 127 S Ct 625 (2006)(dec'06). With Clarence Thomas the lone dissenter, the Court concluded that whether an offense is a felony or misdemeanor for deportation under the Immigration and Nationality Act (INA) is controlled by federal law, not state law. Here, North Dakota defined aiding and abetting drug possession as a felony, which the US Attorney General argued made it a trafficking offense for INA purposes, allowing deportation. The Supreme Court noted the illogic of such an argument, reversing the Eighth Circuit.

Deportation, Felony Conviction. Gonzales v Duenas-Alvarez, 549 US 183; 127 S Ct 815 (2007)(jan'07). Deportation can occur when an alien is convicted of a theft offense for which the term of imprisonment is at least one year under 8 USC 1101(a)(43)(G). Respondent was convicted of aiding and abetting a theft offense in California and the Ninth Circuit held up the deportation on the theory that aiding and abetting a theft is not itself a crime under the generic definition of theft. The Supreme Court disagreed and reversed the Ninth Circuit, allowing deportation.

Discovery of Evidence of Innocence Postconviction. Youngblood v West Virginia, 547 US 867; 126 S Ct 2188 (2006)(june'06). Withholding exculpatory evidence obtained after a prisoner's conviction constitutes a Brady violation. In a sexual assault case, eye-witness testimony of the victim and two other witnesses weighed heavily in favor of the prosecution. Defendant claimed the sex was consensual. After conviction, defense counsel found potentially exculpatory evidence in the form of a note written by the witnesses corroborating Youngblood's claim that the sex was consensual. Evidence indicated the note had been shown to police investigating the attack, who refused to take the note and advised the owner to destroy it.

Diversion, Return of Records. McElroy v Michigan State Police, 274 Mich App 32 (2007)(jan'07). A defendant who participates in a diversion program under MCL 769.4a is not entitled to have his fingerprint card, arrest card, and description destroyed under MCL 28.243(8),as a diversion dismissal does not constitute a finding of not guilty under that section.

DNA Testing Statute, Materiality.  People v Barrera, 278 Mich App 730; 752 NW2d 485 (2008)(may'08).  MCL 770.16(3)(a) requires that evidence to be tested must be material to the issue of a defendant's identity as the perpetrator.  The Ingham County prosecutor argued, in this CSC case where the physical evidence sought to be tested was actually used to convict Defendant using general blood type evidence, that this evidence was not material because they had introduced other circumstantial evidence, and because the alleged victim had identified Defendant.  Incomprehensibly, the Ingham circuit judge, a former deputy in the prosecutor's office, agreed with this argument and refused to allow a DNA test of material undoubtedly left by the perpetrator.  The court of appeals reversed and ordered testing, holding that the trial court "impermissibly engaged in a balancing test" when it weighed other convicting evidence to deny the DNA test.   

Driver Responsibility Fees; Double Jeopardy, Equal Protection Challenges. Dawson v Secretary of State, 274 Mich App 723 (2007)(march'07). A law effective October 1, 2003 (MCL 257.732a(1)) requires drivers to pay annual fees of $500.00 to $1,000.00 if they accumulate seven or more qualifying points or are convicted of specific felony or misdemeanor offenses. These fees, payable to the secretary of state, are in addition to any fines, fees or costs imposed in court. The court of appeals affirmed the trial court's grant of summary judgment in an action for class certification, holding that the fees do not constitute a double jeopardy or equal protection clause violation. 

Expungement, Statutory Construction.  People v Droog, 282 Mich App 68; 761 NW2d 822 (2008)(dec’08).  Defendant attempted to set aside a 2001 conviction for obtaining a controlled substance by fraud using the code of criminal procedure.  MCL 780.621. However, the offense was reportable to the secretary of state, MCL257.732(4)(i), and the vehicle code dictates that courts “shall not order expunction” of such violations. Looking at the two provisions, the court, employing statutory construction rules, including the need to avoid absurd results, held that the limiting provision of the vehicle code did not prohibit setting aside convictions under the code of criminal procedure and remanded, directing that a set aside order be entered.  

Federal Preemption under Medicaid False Claim Act (MFCA), MCL 400.601 et seq. People v Kanaan, DDS and Eight Mile Road Dental Clinic, 278 Mich App 594; 751 NW2d 57 (2008)(april'08).  Defendant dentist and clinic were convicted of 11 counts of filing false Medicaid claims under the Medicaid False Claim Act (MFCA), MCL 400.601 et seq.  Defendant argued that federal law preempts state law in this area, nullifying the convictions.  Finding this to be a legal question reviewable de novo, the court of appeals concluded, after an analysis of the statutory provisions and related authority, that there was no express conflict or field preemption, the latter finding based on the rationale that, "[b]ecause the Medicaid program in Michigan is funded in part by the state, it is financially essential that the state be able to prosecute persons who are fraudulently billing for services."    

Federal Sentencing, Felony Drug Offense under the CSA.  Burgess v United States, __ US __; 128 S Ct 1572 (2008)(april'08).  The federal Controlled Substances Act (CSA) allows for doubling of the mandatory minimum if defendant was previously convicted of a "felony drug offense."  Congress defined this as a state or federal drug offense punishable by more than one year.  Burgess had a prior state cocaine conviction in South Carolina, which was punishable by two years but was classified by the state as a misdemeanor.  The Supreme Court held that the time classification controls and the South Carolina "misdemeanor" can be used to double Burgess's mandatory minimum under the CSA.   

Fees for Court Appointed Counsel, Recoupment Procedures.  People v Jackson, 483 Mich 271; 769 NW2d 630 (2009)(july'09).  The court granted leave to examine the decision of the court of appeals in People v Dunbar, 264 Mich App 240; 690 NW2d 476 (2004), which required an examination of a defendant's ability to pay before a trial court could order reimbursement of attorney fees at sentencing.  After analyzing United States Supreme Court decisions in the area, the court held that the Dunbar requirement that the ability to pay be analyzed prior to the imposition of the obligation to repay attorney fees was not constitutionally mandated.  However, an assessment of ability to pay is in fact required at the time "imposition is enforced."  In other words, an indigent defendant cannot be punished for failure to reimburse attorney fees if his failure is due to his poverty.   

Felons in Possession of Firearms, Specified Felony. Tuggle v Michigan Department of State Police, 269 Mich App 657 (2005)(dec'05). In this case plaintiffs had been convicted in 1985 of Attempt Breaking and Entering, Unoccupied. They were appealing the application of the more restrictive requirements, including clearance through the local gun board, demanded when someone has been previously convicted of a "specified felony." The court held that the definition of "specified felony" in MCL 750.224f, which includes crimes with an element involving "threatened use of physical force against of another," includes Attempt Breaking and Entering, Unoccupied.

Forfeiture of Cash.  People v $180,975 in US Currency, Tamika Smith, and Todd Fletcher, 478 Mich 444 (2007)(july '07).  Smith was pulled over for speeding on I-94 in a rental car.  Fletcher had rented the car and was a passenger at the time of the stop.  The state sought drug-related civil forfeiture of $180,975 in cash seized from the trunk. The court affirmed the Court of Appeals judgment, and held that civil forfeiture of illegally-seized evidence is valid, as long as the order of forfeiture was established by a preponderance of evidence unmarred by the illegal search and seizure, and there was a preponderance of untainted evidence supporting civil forfeiture pursuant to MCL 333.7521(1)(f).  Justices Markman, Cavanagh, and Kelly dissented.

Fifth Amendment, Perjury. People v Bassage, 274 Mich App 321 (2007)(feb'07). The Fifth Amendment to the United States Constitution, along with Article I, Section 17 of the Michigan Constitution, protects only from incrimination for crimes already committed. Perjury is a "current" crime, and no self-incrimination protections are afforded. Thus even though defendant had to choose between admitting a false police report (he had claimed that the murder weapon he had loaned a friend had been stolen from his vehicle) or perjury at his friend's murder trial, there was no obligation on the part of the court or the prosecution to provide Fifth Amendment advice.

Habeas, Action under MCR 3.303. Moses v Department of Corrections, 274 Mich App 481 (2007)(march'07). The court rejected the prosecutor's contention that a habeas writ was not procedurally warranted. The prosecutor argued that plaintiff should have brought his challenge on direct appeal of his criminal conviction by no contest plea to third degree CSC. The issue raised in habeas was whether the state court had jurisdiction where the plaintiff claimed that he is an enrolled member of the Saginaw Chippewa Tribe and the offense occurred within the exterior boundaries of the Isabella Indian Reservation. Finding that the writ process under MCR 3.303 was appropriate to test the authority of the state to prosecute him in any state court (a jurisdictional challenge is not waived by a no contest plea), and that the MDOC was an appropriate party, the court went on to hold that the offense occurred on "swamp land" patented by the United States to the State of Michigan before the treaties of 1855 and 1864 and thus the site of the offense was not "Indian country."  

Habeas, Federal, Alternative Theories of Guilt Instruction, Structural Error and "Clearly Established."  Hedgpeth v Pulido, __ US__; 129 S Ct 530 (2008)(dec'08)(per curiam).  If the jury is instructed on two alternative theories of guilt, and may have relied on an invalid one, the error is not a structural one that would automatically reverse the defendant's conviction. A reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury's verdict." See Brecht v Abrahamson, 507 US 619.

Habeas, Federal - Time for Filing Strictly Construed.  Bowles v Russell, 551 US 205; 127 S Ct 2360 (2007)(June'07).  In a case which starkly depicts the conservative bent of the Court's majority in habeas matters, the Sixth Circuit was upheld in its dismissal of an appeal of the habeas denial of a murder defendant by a 5-4 vote.  The petitioner had missed his original notice of appeal date (30 days) after being denied in federal district court.  The district court properly granted a 14 day extension under the appropriate rule, but inexplicably ordered petitioner to file by a date certain, which was in fact a 17 day extension.  Despite the fact that the petitioner filed in compliance with the date ordered by the district court, the Sixth Circuit rejected his notice of appeal as untimely.  This action was deemed warranted by the five justice majority on the ground that filing dates in civil cases are mandatory and jurisdictional, and a federal court has no authority to create equitable exceptions to jurisdictional requirements.  

Habeas, Federal - No Need to Exhaust Cert Petition to SCOTUS Before Filing Federal Habeas Petition.  Roper v Weaver, 550 US 598; 127 S Ct 2022 (2007)(may'07).  In this case a habeas petitioner was treated differently than his two co-defendants with identical prosecutorial misconduct arguments, because the district court dismissed his habeas petition after he filed a cert petition in the US Supreme Court, forcing petitioner to file again after the effective date of the Anti-Terrorism and Effective Death Penalty Act, which in turn forced a stricter review of petitioner's claims.  Citing Lawrence v Florida, __ US __; 127 S Ct 1079 (2007) the court dismissed the cert grant awarded to the government in this case, holding that it was error to require exhaustion of the cert remedy before allowing petitioner to file his federal habeas action.  Remedies are sufficiently exhausted for this purpose when the state courts have completed direct and postconviction review.

Habeas, Federal, AEDPA Standards.  Knowles v Mirzayance, __ US__; 129 S Ct 1411 (2009)(march'09). The Ninth Circuit applied an improper standard of review, and did not defer sufficiently to the conclusions of the state court that trial counsel was not ineffective for failing to advance an insanity defense. The state court's decision correctly applied Strickland's standard for ineffective assistance claims, where a defendant must show both deficient performance by counsel and prejudice. The fact that the Ninth Circuit disagreed with the state court's decision does not make it erroneous if it was reasonable under the general standard required by Strickland. The question "is not whether a federal court believes the state court's determination" under Strickland "was incorrect but whether it was unreasonable-a substantially higher threshold."  Schriro v Landrigan, 550 US 465, 473.

Habeas, Federal, AEDPA Standards.  Washington v Sarausad, __ US__; 129 S Ct 823 (2009)(jan‘09).  A federal court must defer to a state court's conclusion that jury instructions were accurate, unambiguous, and did not reduce the prosecution's burden of proof as long as it was not unreasonable.  Here, because the state courts' conclusion that the jury instructions were proper was not objectively unreasonable, the Ninth Circuit should have ended its §2254(d)(1) inquiry. Furthermore, even if the instructions were ambiguous, the Ninth Circuit still erred in finding it so ambiguous as to cause a federal constitutional violation requiring reversal under AEDPA.  The state courts reasonably applied Supreme Court precedent when they determined that there was no rational way that the prosecutor's closing argument led the jury to apply the jury instructions in a manner where the state was relieved of its burden to prove every element of the crime beyond a reasonable doubt. 

Habeas, Federal - AEDPA SOL - Tolling for Cert Period Following State Postconviction.  Lawrence v Florida, 549 US 327; 127 S Ct 1079 (2007)(feb'07).  The one year statute of limitations for filing a federal habeas petition does not begin to run until 90 days after the end of direct review in the state courts - the period during which a cert petition could be filed in the US Supreme Court - even if no cert petition is ever filed.  The filing of a state postconviction action tolls the time for running of the AEDPA SOL.  However, tolling stops once the state courts finish postconviction review and does not continue through the 90 day cert period at this point.

Habeas, Federal - AEDPA SOL - No Tolling by Untimely State Postconviction Action.  Allen v Siebert, 552 US 3; 128 S Ct 2 (2007)(nov'07).  In a short per curiam opinion, with a two-justice dissent, the Court re-affirmed the ruling in Pace v Diguglielmo, 544 US 408 (2005), and held that an untimely state postconviction action will not toll the AEDPA statute of limitations, even where, as here, the state time limit is not jurisdictional and the state courts had discretion with respect to enforcement.

Habeas, Federal - Evidentiary Hearing and SOR.  Schriro v Landrigan, 550 US 465; 127 S Ct 1933 (2007)(May'07).  More inside baseball dealing with the AEDPA SOR (standard of review) which focuses not on the error itself but on the reasonableness of the state courts application of settled US Supreme Court precedent.  In this case the Court, reversing the 9th Circuit, held that the defendant was not entitled to an evidentiary hearing on his claim that his attorney was ineffective for failing to investigate mitigation evidence at his capital sentencing hearing.  Finding that the defendant had instructed counsel not to investigate, the Court held that the state courts did not unreasonably apply SCOTUS precedent as the Court had never decided a case where an attorney had been so instructed by a client.  The Court held that an evidentiary hearing could not be ordered where defendant did not allege facts which would entitle him to relief, a pre-requisite for obtaining a hearing on habeas.

Habeas, Federal - AEDPA SOR.  Wright v Van Patten, 552 US 120; 128 S Ct 743 (2008)(jan'08).  The Seventh Circuit granted habeas relief, holding that petitioner was denied his Sixth Amendment right to counsel where his attorney participated in a plea hearing by speaker phone.  The court below granted the writ citing Cronic, finding no need to assess prejudice given the gravity of the error.  The Supreme Court reversed, holding that the law was not at all clear that appearance by speaker phone constituted a "complete denial of counsel" and therefore, under the AEDPA Standard of Review, which requires a finding of unreasonable state court application of clear United States Supreme Court precedent, it was error to grant the writ.    

Habeas, Federal - Harmless Error Review.  Fry v Pliler, 551 US 112; 127 S Ct 2321 (2007)(june'07).  The Court ruled that the deferential standard of Brecht v Abrahamson, 507 US 619 (1993) applies on habeas corpus review as to harmlessness of constitutional error even if the state court unreasonably applied Chapman's harmless beyond a reasonable doubt standard on direct review.  

Habeas, Federal - Death Penalty Juror Cause Challenge.  Uttecht v Brown, 551 US 1; 127 S Ct 2218 (2007)(june'07).  Again reversing the grant of the writ by the 9th Circuit, the Court held that the Washington Supreme Court's decision upholding the removal of a juror who was substantially impaired in his ability to impose the death penalty was not an unreasonable application of governing US Supreme Court precedent under the strict AEDPA standard of review.  US Supreme Court precedent requires deference to the trial court in this instance as the trial court has the ability to observe the demeanor of the juror.

Habeas, Federal, Postconviction Relief, Procedural Default.  Cone v Bell, __ US__; 129 S Ct 1769 (2009)(april'09).  A constitutional claim is not procedurally defaulted, and therefore is reviewable on federal habeas, when a state court erroneously applied its rules in refusing to hear the merits of the claim.  Defendant's claim that the state of Tennessee had violated his rights under Brady v Maryland, 373 US 83 by suppressing documents, was rejected under the premise that the claim was decided by the state supreme court on direct review and that defendant had waived it by never properly raising it in state court.  Neither of these premises provides an independent and adequate state ground for denying defendant's federal claim.  Even though it is highly unlikely that the suppressed evidence would have affected the jury's verdict, there is a chance that the evidence may have influenced the jury's sentencing recommendation, and for that reason a full review of the evidence is necessary.

Immunity, Prosecutorial under 42 U. S. C. §1983.  Van De Kamp et Al v Goldstein, __ US__; 129 S Ct 855 (2009)(jan'09).  Defendant was released from prison after a successful federal habeas petition alleging that his murder conviction resulted from false testimony by a jailhouse informant, who had received reduced sentences for his testimony in past cases.  He alleged that prosecutors knew, yet failed to tell defendant's attorney, valuable impeachment information, which led to his mistaken conviction.  Defendant filed suit under 42 U. S. C. §1983, against the prosecution, declaring that they breached a constitutional duty to communicate this information, resulting from supervisory prosecutors' inability to train or supervise, or to establish an information system containing impeachment material about informants.  The petitioners claimed absolute immunity.  The Supreme Court found for petitioners, asserting that they are entitled to absolute immunity from liability in §1983 suits brought against prosecutorial actions that are "intimately associated with the judicial phase of the criminal process." See Imbler v Pachtman, 424 US 409.  Although defendant here challenged administrative procedures, they are still procedures that are directly linked with the trial's conduct and are therefore protected.

Immunity, Qualified, Saucier Analysis Not Mandatory.  Pearson v Callahan, __ US__; 129 S Ct 808 (2009)(jan‘09). The consent-once-removed doctrine permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view.  Here, when respondent's conviction of possession and distribution of drugs was vacated by state courts, he brought an action against petitioner police officers in federal court asserting that they violated the Fourth Amendment by unlawfully entering his house without a warrant.   Petitioners argued that they were entitled to qualified immunity because they, in good faith, believed their actions to fall under the consent-once-removed doctrine.  Ruling that the Saucier v Katz, 533 US 194, two prong analysis was not strictly required for every qualified immunity case, the US Supreme Court held that the officers are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional.  When the entry occurred, two state supreme courts and three federal courts of appeals had accepted the consent-once-removed doctrine.  The officers were entitled to rely on these cases, even though their own federal Circuit had not yet ruled on consent-once-removed entries.

Juvenile Diversion, Notice under CVRA.  In re Lee, 282 Mich App 90; 761 NW2d 432 (2009)(jan’09).  MCL780.786(b)(1) demands notice to prosecutor, who in turn must inform victim, who has right to appear and address court, before a juvenile charge alleging commission of a CVRA crime (punishable by more than one year or designated a felony if committed by an adult, MCL 780.781(1)(f)), can be “removed from the adjudicative process.”  While there were technical violations in two cases under consideration with respect to the family court’s compliance with these requirements, the court of appeals found the violations harmless in one case and found substantial compliance in the other.      

Juvenile Set-Aside (Expungement).  People v Hutchinson, 278 Mich App 108; 748 NW2d 604 (2008)(feb'08).  In this case the Oakland County prosecutor appealed a juvenile "set-aside," similar to an expungement.  Like adult expungement, only one offense can be set aside.  Hutchinson pled, in 1990 at age 17, to entering without breaking and UDAA.  Now 35, he convinced the trial court to grant the set-aside as both offenses were contained in a single order of adjudication.  The appellate court agreed with the prosecutor that MCL 712.18e does not permit set-aside of two offenses, even if they are contained in a single order of adjudication.   

Life Sentences, Parole, Ex Post Facto Violations.  Foster-Bey v Rubitschun, Not Reported in F.Supp.2d, 2008 WL 5159028 (E.D.Mich.) (No. 05-71318, decided October 23, 2007, Honorable Marianne O. Battani)(oct'07).  In a 1983 action brought by the U of M Law School clinical program, Judge Battani looked at the number and substance of legislative and policy changes over decades, and held that the plaintiffs had shown an ex post facto violation.  Expectations when defendants were sentenced to life have been fundamentally altered by laws and policies adopted since then.  A remedy is yet to be fashioned.      

New Evidence of Innocence, Habeas Corpus. House v Bell, 547 US 518; 126 S Ct 2064 (2006)(june'06). Petitioner met the gateway standard for procedurally defaulted claims on federal habeas review by demonstrating that, in light of new evidence of innocence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Semen on nightgown was not petitioner's and blood on petitioner's jeans came from autopsy samples, not the victim's body, and husband of victim had motive and opportunity to commit the murder. While not conclusively exonerating defendant, this evidence opens the gateway to allow the petitioner's defaulted federal constitutional claims to be heard.

Motion for Relief from Judgment under MCR 6.500. People v Clark, 274 Mich App 248 (2007)(feb'07). The trial court granted relief to defendant in a 1987 murder conviction on instructional grounds (ineffective second degree murder instruction in a felony-murder case). The court of appeals reversed, holding that under the 6.500 rules a defendant has to show good cause for failure to raise the issue in question on direct appeal and in previous 6.500 motions. Here, the defendant argued, and the court found, cause for failure to raise the issue on direct appeal (IACAC), but failed to find cause for defendant's own failure to raise the issue in pro per in two previous MRJ motions. Opining that to hold otherwise would allow defendants to "file unchecked an unlimited number of motions for relief from judgment," the court seems not to understand that since 1995 there has been a strict limit on successive 6.500 motions under MCR 6.502(G). The court went on to hold that in addition to the cause failure, the trial court's ruling on prejudice was erroneous as there was no instructional error.

OUIL, Independent Chemical Test. In a series of unpublished cases, the Michigan Court of Appeals has ordered dismissal of criminal prosecutions for OUIL where the right to an independent chemical test was restricted. People v Quada, unpublished opinion per curiam of the Court of Appeals, decided January 10, 2006 (Docket No. 256068) (2006 WL 51152); People v Piotrowski, unpublished opinion per curiam of the Court of Appeals, decided May 19, 2005 (Docket No. 251670) (2005 WL 1187043). Note that in Piotrowski Judge Griffin, in concurrence, urged the Michigan Supreme Court to reverse People v Koval, 371 Mich 453 (1963) and hold that the remedy is suppression of all breathalyzer and chemical test results, not dismissal of the prosecution. In People v Anstey, 476 Mich 436 (2006)(july'06), the court went even further, overruling Koval and holding that both dismissal and suppression are not appropriate where defendant was deprived of the right to an independent test. The court held that the appropriate remedy is a discretionary jury instruction.  

Parental Termination - Lack of Jurisdiction.  Department of Human Services v Michael Holm, 277 Mich App 662; 747 NW2d 547(2008)(jan'08).  Despite "heinous" conduct toward his three daughters which landed respondent in prison for 30-60 years, "the trial court proceedings were so replete with error that we are compelled to reverse and remand."  The primary problem was an attempt by the trial court to obtain jurisdiction over the three minor children, and then to direct termination of parental rights, without a trial, through a "plea" by the mother of the children.  This was improper where it was never alleged that the mother had done anything wrong, and where the court rule (MCR 3.971) was repeatedly violated, including by a failure to advise the mother of her rights or to get a waiver of those rights.

Parole, Discharge, Lack of Authority to Revoke.  People v Holder, 483 Mich 168; 767 NW2d 423 (2009)(june'09). In a rare unanimous ruling for the defense, the supreme court reversed a sentencing judge's compliance with a request by the MDOC to make previously imposed sentences consecutive to an underlying sentence on which Defendant had been discharged from parole prior to conviction on the crimes at issue.  The MDOC had belatedly "cancelled" Defendant's parole discharge by sending Defendant a notice to that effect, and the trial court complied with the MDOC request to change the sentence on the subsequent convictions without notice to the parties and without holding a hearing.  There is no statutory authority allowing the MDOC to revoke a discharge from parole once it is issued, and it cannot be recalled.  The MDOC has no inherent authority, and any authority to revoke a parole discharge once granted must be supplied by the legislature.  Lower courts were instructed that MDOC notices regarding sentencing "errors" are informational only, and any corrections or modifications to a judgment of sentence must comply with the relevant statutes and court rules.  This did not occur here as the trial court violated MCL 769.27 by altering the sentence without notice to the parties or a hearing upon objection. 

Plea Agreements, Breach of by Government.  Puckett v United States, __ US__; 129 S Ct 1423 (2009)(march'09).  In exchange for defendant's guilty plea the government agreed to request a three level reduction in his offense level, and a sentence at the low end of the guideline range.  After the guilty plea was accepted, but before his sentencing, defendant committed another crime, which caused the government to oppose any reduction in his offense level.  Defendant appealed, raising for the first time the argument that the government had broken the plea agreement.  The Fifth Circuit held that defendant had forfeited his claim by failing to raise it at the trial level, and applied FRCP 52(b)'s plain-error standard for unpreserved claims of error, to find that defendant had not shown that his ultimate sentence was affected by the error that occurred.  The Supreme Court agreed with the Fifth Circuit, finding that FRCP 52(b)'s plain-error test applied to defendant's forfeited claim, and applied in the usual fashion.  The government's breach of the plea agreement does not retroactively cause the defendant's guilty plea to have been unknowing or involuntary. 

Postconviction Review, Prosecutorial Misconduct, Constitutional Error.  People v Blackmon, 280 Mich App 253; 761 NW2d 172 (2008)(aug'08).  Defendant's murder and assault convictions, originating from a 1998 shooting, were affirmed by the state courts on direct review.  A federal district judge then granted a habeas writ based on prosecutorial misconduct (due process violation).  The Sixth Circuit reversed the grant of the writ, claiming the federal constitutional issue was not "fairly presented" to the state courts. Defendant proceeded to fairly present it through postconviction process (MCR 6.500).  The court of appeals originally affirmed his conviction but the case was sent back by the state supreme court to consider, among other issues, whether the prosecutorial misconduct was constitutional error.  The majority held it was not, citing SCOTUS precedent for the notion that, assuming the prosecutorial misconduct does not impact a specific constitutional safeguard, the misconduct, to constitute a due process violation, must rise to the level that it denied defendant a fair trial (the prosecutorial misconduct must have "so infected the trial with unfairness as to make the conviction a deprivation of liberty without due process of law").  The court found that here the misconduct did not rise this level, found any error nonconstitutional, and affirmed Defendant's conviction.  Judge Helene White, now sitting on the Sixth Circuit, issued a brief concurrence, asserting that the error did not redirect the jury's attention from the essential question of guilt based on properly admitted evidence.

Prisoner Litigation Reform Act. Jones v Bock, 549 US 199; 127 S Ct 910 (2007)(jan'07). In this Michigan case the United States Supreme Court told the Sixth Circuit that they were exceeding the proper limits of the judicial role by crafting gate-keeping requirements that made it more difficult for prisoners to sue prison officials in federal court. The Sixth Circuit had designed a "total exhaustion" rule which demanded that prisoners fully plead exhaustion in their initial complaint. While agreeing that exhaustion is mandatory under the PLRA, the Supreme Court found that it was more appropriate to view exhaustion as an affirmative defense, rather than a matter that must be pled in the original complaint. See also, Woodford v Ngo, 548 US 81; 126 S Ct 2378 (2006)(june'06), where the Supreme Court held that the PLRA requires a prisoner to exhaust any available administrative remedies before bringing federal court challenge to prison conditions and this demands compliance with applicable procedural rules, including time deadlines. Failure to comply with time deadlines precludes bringing action in federal court.

Prisoner's Rights.  Ali v Federal Bureau of Prisons, 552 US 214; 128 S Ct 831 (2008)(jan'08).  Petitioner claimed to have lost property during a prison transfer.  He filed suit under the Federal Tort Claims Act (FTCA).  Although the act waives immunity for claims arising out of torts by federal employees, there is an exemption from the waiver for claims arising out of the detention of property by a law enforcement officer. The court, 5-4, broadly construed the language of the exemption to hold that the prison officials were protected by government immunity in this instance.          

Release from Prison - MDOC Time Calculations Upheld.  Muskegon County Prosecutor v MDOC and Wayne Lee Stevens, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2007 (Docket No. 281321)(nov'07).  The court of appeals upheld MDOC's release (max-out) of Mr. Stevens.  The Muskegon prosecutor's challenge to the DOC method (front-loading) of awarding good-time credit was rebuffed in Oakland County Prosecutor v MDOC, 199 Mich App 681 (1993) and was not revisited.  Other technical statutory challenges based on Stevens' status as an escapee and parole violator were found to lack merit.  On February 8, 2008, the Michigan supreme court denied leave, Docket No. 135366.  Justice Markman concurred, noting that the Muskegon prosecutor raised "reasonable questions."  Look for proposed legislation from the prosecuor's association.

Retroactivity, Application of SCOTUS Decisions by the States.  Danforth v Minnesota, 552 US 264; 128 S Ct 1029 (2008)(feb'08).  In Whorton v Bockting, 549 US 406; 127 S Ct 1173 (2007), the Supreme Court held that federal law does not require state courts to apply the landmark confrontation clause holding in Crawford to cases that were final when it was decided.  In this case the Court, in an unusual 7-2 vote, held that neither Teague nor any other federal rule prohibits the states from giving broader application to federal constitutional rulings.  This is not likely to be of any help to criminal defendants in Michigan. 

Sex Offender Registration, Bestiality.  People v Haynes, 281 Mich App 27; 760 NW2d 283 (2008)(sep'08).  Defendant was convicted under MCL 750.158 for having sex with a sheep.   SORA registration under section 158 (proscribing sodomy and bestiality, which the court took paints to differentiate), demands that the victim be an "individual less than 18."  Employing the dictionary and statutory construction principles, the court was unable to conclude that the sheep was an individual, and reversed the order requiring SORA reporting.     

Sex Offender Registration, Termination.  People v Eric J. Hesch, 278 Mich App 188; 749 NW2d 267 (2008)(march'08).  Defendant pled to one count of CSC 2 in 1998.  The alleged offense occurred in 1997 when Defendant was eleven years old.  When Defendant was nineteen he petitioned for removal from the SOR, presenting an abundance of evidence indicating that he was not a sexual predator.  Defendant had no subsequent arrests or convictions and had successfully discharged from probation within two years of the original conviction.  The prosecutor urged denial of the petition, claiming Defendant's offense involved force or coercion evidenced by Defendant daring and enticing "the children."  (Apparently they were playing "truth or dare" when the alleged acts occurred; one of the complainant's was five years younger than Defendant at the time) and the trial court reluctantly agreed with the prosecutor.  The court of appeals upheld the ruling, though not nearly as reluctantly.

Sex Offender Registration, Catch-All Provision.   People v Althoff, 280 Mich App 524; 760 NW2d 764 (2008)(sep'08).  Prior to joining the army, Defendant became engaged in a domestic dispute, troopers responded, and Defendant's wife gave police several computer discs, claiming her husband was looking at child porn.  Defendant later pled to a charge of possession with intent to disseminate obscene material under MCL 752.365.  The court of appeals, responding to Defendant's challenge to a SORA reporting requirement (he was not convicted of a listed offense), remanded for a hearing on whether Defendant was convicted of a sexual offense against an individual who is less than 18 years of age under the catch-all provision of the SORA (MCL 28.722(e)(xi)).  The discs had been lost by that time, but a police officer testified that he had viewed them and in his opinion "one of the females appeared to be 13 or 14 years old, and another appeared to be 16 years old."  The trial court upheld the SORA reporting, the court of appeals denied leave, and the supreme court remanded, framing four issues for the court of appeals to consider.  The court of appeals resolved these issues against Defendant and detailed the requirements and procedures for determining whether an offense falls within the catch-all provision.  The court determined that the offense in this case was 1) a violation of a state law 2) that by its nature constituted a sexual offense 3) against an individual who is less than 18 years of age, and upheld the SORA reporting requirement.   

Sex Offender Registration, Catchall Provision, Aggravated Assault.  People v Anderson, 284 Mich App 11; __ NW2d __ (2009)(may'09).  Defendant was convicted of aggravated assault, and complained that the trial court erred in examining underlying facts of the offense to require him to register as a sex offender for this non-listed offense. The court of appeals disagreed, holding that because the conviction was a state law violation, the victim was under 18, and an examination of the underlying facts (Defendant touched the complainant "underneath her underwear on at least nine occasions") revealed that the offense "by its nature" constituted a sexual offense, it was appropriate to require Defendant to register as a sex offender.    

SORA; Registration for Inherently Sexual Offenses. People v Golba, 273 Mich App 603 (2007) 2007 WL 102508 (jan'07). Defendant was tried on one count of possession of child sexually abusive material (MCL 750.145c(4)) and one count of unauthorized access to computers (MCL 752.795). Despite the fact that defendant was convicted only on the second charge he was ordered to register under "catch-all" clause of the Sex Offender Registration Act (SORA) (MCL 28.721 et seq.). The court found the unauthorized access conviction to be "by its nature...a sexual offense," after reading past precedent to require an examination of the underlying facts in making that determination. Since the court determined that defendant's unauthorized access was sexual in nature, SORA registration was appropriate.

Sex Offender Registration Act, Validity of Modification Allowing Defendant to Reside in a Student Safety Zone.  People v Zujko, 282 Mich App 520; 765 NW2d 897 (2009)(feb’09).  Defendant pled to one count of use of a computer to commit a crime after being charged with 6 counts, including 3 of possession of child sexually abusive material.  At sentencing, defendant was required to register as a sex offender under MCL 28.735.  Later the trial court granted defendant’s request to modify terms of his probation and permitted him to remain in his residence, despite the fact that the residence was in a “student safety zone” as defined by the SORA.  The prosecutor appealed the modification and the court of appeals upheld it, holding that the plain language of the SORA exempts individuals who were living in a student safety zone prior to January 1, 2006, unless they subsequently initiate contact with a minor within that zone.     

Vehicle Registration - Statutory Exemption; Preservation of Issue for Appeal.  People v Metamora Water Service, Inc. 276 Mich.App. 376, 741 N.W.2d 61(2007)(august'07).  Defendant's water trucks were ticketed for failure to carry a valid Michigan registration under MCL 257.255.  The district court dismissed pursuant to a statutory exemption for special mobile equipment in MCL 257.62.  The circuit court affirmed on the basis that the prosecutor's appeal was faulty.  The court of appeals reversed, finding that the prosecutor's appeal was properly based and, relying on statutory construction principles, that the statutory exemption from vehicle registration requirements did not apply to defendant's vehicles as these vehicles were in fact "designed or used primarily for the transportation of persons or property."

Vienna Convention Not Binding on State Courts .  Medellin v Texas, 552 US 491; 128 S Ct 1346 (2008)(march'08).  A holding of the International Court of Justice that foreign nationals are entitled to have their convictions and sentences reviewed for violations of the Vienna Convention is not binding on the states.  Despite the issuance of a "President's memorandum," ICJ judgments were not meant to be enforceable in domestic courts.  Sanchez-Llamas v Oregon, 548 US 331 (2006).  None of the relevant treaty sources creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted by Congress.

(Courtesy of Professor David A. Moran)

A.    Miranda Violations

Maryland v. Shatzer (argued October 5, 2009)

If a defendant invokes his Miranda right to counsel, does Edwards v. Arizona prevent the police from initiating custodial interrogation even after a very long period of time (more than two years, in this case) has passed?

Florida v. Powell (to be argued December 2009)

Is a version of the Miranda warnings fatally defective if it fails to clearly state that the arrestee has the right to have counsel with him during questioning?

Berghuis v. Thompkins (to be argued December 2009)

Does Miranda allow an officer to continue attempts to interrogate a prisoner who has neither waived his Miranda rights nor invoked them but has simply maintained his silence (in this case, for nearly three hours)?


B.    Ex Post Facto

Carr v. United States (to be argued December 2009)

May a defendant be convicted for violating a sex offender registration act by failing to register and traveling in violation of the act when the failure to register and the travel both occurred before the law was enacted?


C.   Ineffective Assistance of Counsel

Padilla v. Kentucky (argued October 13, 2009)

Is counsel who fails to advise a non-citizen client that pleading guilty to a particular offense will trigger automatic deportation ineffective so that the client may set aside the guilty plea?


D.   Jury Selection

Berghuis v. Smith (to be argued December 2009)

Is it clearly established for habeas corpus purposes that a state court evaluating a Sixth Amendment fair cross-section claim must apply the comparative disparity test instead of the absolute disparity test?


E.    Confrontation Clause-Testimonial Statements and Forfeiture

Briscoe v. Virginia (to be argued December 2009)

Is the Confrontation Clause satisfied by a scheme that allows the prosecution to introduce the lab report from an analyst while the defendant retains the right to call the analyst as his own witness?


F.    Mandatory Minimums and the Sixth Amendment

United States v. O'Brien and Burgess (to be argued Dec 2009)

Does a "sentencing enhancement" statute that results in a 30-year mandatory minimum for use of a machine gun create sentencing factor that may be found by the judge by a preponderance or an element of the offense that must be proved to the jury beyond a reasonable doubt?


G.   Juvenile Sentencing and the Eighth Amendment

Graham v. Florida & Sullivan v. Florida (to be argued November 9, 2009)

Does the 8th Amendment bar the imposition of life sentences on juveniles for crimes other than murder?


H.   Civil Commitment

United States v. Comstock (to be argued December 2009)

May Congress constitutionally provide for the indefinite civil commitment of sexually dangerous federal prisoners after their federal correctional sentences expire?


I.      Procedural Default

Beard v. Kindler (argued November 2, 2009)

Is a state rule of procedural default (in this case, the fugitive forfeiture rule) not "firmly established" if the state courts have discretion as to whether to apply the rule to bar review on the merits?


J.     AEDPA Standards of Review

 McDaniel v. Brown (argued October 13, 2009)

What is the proper standard of review on federal habeas for an insufficiency of the evidence claim that was rejected by the state courts?


II.               Legislation

The following are brief summaries of key legislation as selected by the author.  For a comprehensive review of all pertinent legislation in the criminal area, go to and download Tom Robertson's excellent compilations.  Some of this legislation is extremely complex, and a full understanding demands that the public acts be read completely. Copies of the legislation can be obtained at


•A.                 New Crimes and Penalties


MCL 750.508; MCL 777.16x, effective 5/31/06.  Police Scanner

Convicted felons (conviction within past five years) are prohibited from possession of a police scanner, a new one year misdemeanor.  The act also prohibits possession of a police scanner during commission of a crime - a one year misdemeanor if the underlying violation is a misdemeanor and a two year felony if possessed during commission of a felony.

MCL 750.540; MCL 777.16z, effective 6/1/06.  Telephone/Telegraph Lines

A series of bills updates the law against maliciously cutting, disconnecting, or tapping telegraph or telephone lines to include forms of communication using the internet, computers, and computer networks.  Penalty increase from misdemeanor to two year felony.  Felony added (four years) if infraction resulted in injury or death.

MCL 750.211a; MCL 777.16k, effective 4/1/05.  Molotov Cocktail

This penal code addition makes it a four year felony to manufacture or possess a Molotov cocktail or any similar device designed to explode on impact.

MCL 722.676, effective 2/1/06.  Parent Display of Sex to Minor

A parent's display of sexually explicit material to a minor is now a two year felony

MCL 750.335a; MCL 28.722; MCL 777.16q, effective 2/1/06.  Indecent Exposure

Indecent exposure penalties enhanced (two year misdemeanor) if violator fondled himself or herself during course of the crime.

MCL 750.66 & 760.66a, effective 1/1/09.  Leaving Scene of Dog/Wolf-Dog Cross Bite Incident; Failing to Provide Information.  PA 204 & 205 of 2008.

The owner of an animal described in the title above must remain on the scene and provide information on vaccinations, along with the owner's name and address, if someone is bitten.  Violation is punishable by a 93 day misdemeanor. 

MCL 777.16y; MCL 750.552c, effective 4/15/06.  Trespass - Key Facilities

New section prohibits trespass at "key" facilities - part of the state's infrastructure, such as chemical plant, refinery, power plant, generating plant or water treatment plant.  Violation constitutes a four year felony.

MCL 750.85; MCL 777.16d, effective 3/1/06.  Torture

Act sets out new crime of "torture."  A person who inflicts great bodily injury or mental pain on someone within his or her custody with intent is guilty of torture, punishable by life or any term of years.  Proof that complainant suffered pain is not required.  Conviction of other crimes arising from same transaction is not prohibited.

MCL 750.316(1)(b), effective 12/1/06.  Felony Murder Additions

Adds torture and aggravated stalking to the felony murder statute.

MCL 777.11b; MCL 28.725 and 28.729, effective 1/1/06.  Student Safety Zone

The "student safety zone" violation is added as a class G felony (two years), and penalties are prescribed for a second, third, or subsequent offense of failure to comply with SORA's reporting requirements, up to ten years for willful, repeat violations.

MCL 777.16p, effective 1/6/06.  Controlled Substance Causing Death

A new life offense is added.  This section proscribes delivery of a schedule 1 or 2 controlled substance, other than marijuana, if the substance delivered is consumed and causes death. 

MCL 750.568, effective 4/1/05.  Damaging/Destroying Research Property

A new felony prohibits damaging or destroying another's research property.  Penalties, ranging from a 93 day misdemeanor to 15 years imprisonment, are dependent on the value of the research property involved. 

MCL 257.625, effective 1/3/07.  Repeat Drunk Driving (Heidi's Law)

(Heidi's Law).  Eliminates the 10 year limitation period on repeat alcohol offenders.  Enhanced penalties for a third or subsequent drunk driving offense are applied regardless of when the prior offenses occurred.  Relaxes methods by which a prior conviction may be established.

MCL 777.16i, 750.174(3)(c), effective 3/30/07.  Embezzlement Enhancement

Amends the penal code to increase the penalties for embezzlement from a nonprofit corporation or charitable organization.  It also allows the court to impose a term of imprisonment for felony embezzlement to be served consecutively to any term of imprisonment for any other criminal offense under certain circumstances.  

MCL 600.1715, effective 3/30/07.  Increase Contempt Penalties

Increases maximum penalties for contempt and allows the court to place a person on probation for criminal contempt.  Maximum penalties increased from $250 plus 30 days or both to $7,500 or 93 days or both.

MCL 750.197c, 777.16j, effective 12/29/06.  Increase Penalty for Assault on Prison Employee

Establishes a maximum penalty of five years and a maximum fine of $2500.00 for assault on a prison employee.

MCL 800.238a, 777.17g, effective 12/29/06.  Cell Phones to Prisoners

Establishes a five year felony for selling or providing a cell phone or other wireless communication device to a prisoner.

MCL 750.199(1) and (2), MCL 777.16j, effective 8/28/06.  Harboring Fugitive

Increases penalties for harboring a fugitive - up to four years if the fugitive is wanted on a felony.  Creates a class F offense under the guidelines. 

MCL 750.520(multiple sections), effective 8/28/06.  Sex Offense Enhancement

A package of bills severely alters the consequences and penalties for certain sex offenses involving minors.  The first degree CSC statute was amended to provide for a minimum sentence of 25 years with no departure provision for individuals committing first degree CSC involving a person under the age of 13 (offender must be 17 or older).  The amended statute now allows (but does not require) consecutive sentencing for "any other criminal offense arising from the same transaction."  Also, if defendant is 17 or older and is convicted of first degree CSC involving a minor under the age of 13, and the offender has a prior CSC conviction for either first, second, third or fourth degree CSC or assault with intent, and the prior conviction involved a minor under the age of 13, the penalty is life without parole.  The package also provides lifetime satellite tracking of certain sex offenders.

MCL 750.439(multiple sections), effective 8/24/06.  Kidnapping Revisions

Revises the crime of kidnapping and creates the crime of unlawful imprisonment. 

MCL 750.520b,c & d, 2007 PA 163, effective 7/1/08.  Expands CSC Amendments Involving Teachers to Include Volunteers and Others.  

The legislation expands the 2002 amendments covering teachers and administrators to include school volunteers and other employees, contractual service providers, and state, municipal or federal employees. 

MCL 750.552, 2007 PA 167, effective 3/20/08.  Amends Trespassing Statute. 

The bill amends the trespassing statute to eliminate the requirement that the offender "willfully" enter the property.  Also eliminated is the requirement that the owner request a trespasser to leave the premises.  The act also prohibits entering posted farm property without consent of the owner.  Fines are increased from $50.00 to $250.00. 

MCL 324.80114, effective 5/11/07.  Minor Boating Violations Downgraded to Civil Infractions.

Certain boating and recreation violations, such as speeding, failing to display a vesssel's certificate number, and towing a water skier after dark, are now civil infractions instead of criminal misdemeanors, punishable by a fine of up to $500.00. 

MCL 750.110; 750.111, effective 6/1/08.  PA 10 2008  

Amends the Michigan Penal Code to extend to shipping containers the Code's prohibitions against breaking and entering and entering without breaking.

MCL 722.111 - 722.128, effective 6/1/08. False Report Leading to DHS Investigation of Day Care Center.  PA 15 2008.

The legislature, responding to a Grand Rapids case, now requires day care centers to notify parents of children attending when DHS initiates a special, high risk investigation.  An addendum makes it a four year felony to make a false report leading to such an investigation and accompanying notification.     

•B.                Criminal Procedure


MCL 600.2922c, 768.21c, 600.2922b, effective 10/1/06.  Self Defense

Expands use of deadly force, self defense.  Creates the Self Defense Act and provides for standards, duties and presumptions in both civil and criminal cases.

MCL 600.8507, effective 4/8/08.  Expansion of District Court Magistrate Duties.  PA 95 of 2008.

The bill allows a district court magistrate to conduct arraignments for contempt violations or probation violations when either arose directly out of a case for which the magistrate currently may conduct an arraignment and involves the same defendant.

MCL 768.27c, effective 5/1/06.  DV Hearsay Allowed

The act permits admission of a domestic violence complainant's out of court statements to police officers.  However, see the discussion under caselaw update on confrontation issues and be sure to preserve the federal constitutional issue.

MCL 768.27b, effective 5/1/06.  Prior DV Acts Allowed

This added section allows prosecutors, with 15 days notice, to introduce prior acts of domestic violence in any case involving a domestic violence charge, "if not otherwise excluded under MRE 403."

MCL 768.27a, effective 1/1/06.  Prior Acts Allowed in Sex Offense Trials

Another statutory exception to the rule that a defendant's prior acts are not admissible allows evidence that a defendant on trial for a "listed" offense (one requiring SORA registration) had previously committed a listed offense against a minor (under 18).  The evidence can be considered for its bearing on any matter to which it is relevant.

 MCL 766.11b, 2007 PA 89, effective 12/29/07.  Drug Field Testing Admissible at Exam. 

The bill amends the code of criminal procedure to allow evidence of results of properly performed drug analysis field testing to be admitted at exam to establish that the substance tested was a controlled substance.    

•C.                Sentencing


MCL 765.6b(3) & 791.236(18), effective 7/10/08.  GPS Monitoring Devices in Domestic Violence and Stalking Cases.  PA's 191 & 192 of 2008.

The acts require GPS monitoring in aggravated stalking cases for parolees upon registry of victim with MDOC.  The court can order GPS monitoring of an individual charged with domestic violence as a condition of bail and must order that defendant not purchase or possess a firearm.

MCL 769.1k, effective 1/1/06.  Costs and Fines

As part of the sentence imposed the court "shall impose the minimum state costs" and "may" impose "[a]ny fine," "[a]ny cost in addition to the minimum state cost...," "[t]he expenses of providing legal assistance to the defendant," and "[a]ny assessment authorized by law."

MCL 769.10, 769.11, 769.12, effective 8/28/06.  Habitual Offender

 Maximum sentence for a 2d, 3d or 4th HO offense cannot be less than the maximum term for the predicate offense.

MCL 777.1, effective 1/3/07.  Delayed Sentence for Ordinance Violations

Amends the Code of Criminal Procedure to allow a sentence of probation and delayed sentence for ordinance violations.  Under the Code, except for very specific offenses, the court may delay sentencing for up to one year to give the defendant an opportunity to prove to the court that he or she is deserving of probation or other leniency.  Formerly, only delayed sentencing of ordinances that were substantially similar to provisions of state statute was recommended by the SCAO manual.  This PA allows for delayed sentencing for any ordinance violation.

MCL 777.39, effective 3/30/07.  OV9

Allows OV 9 to be scored on property crimes (# of victims). 

MCL 769.4a, effective 1/10/07.  Domestic Violence Deferrals

Precludes a domestic violence deferral under MCL 769.4a if the defendant has a prior conviction for an assaultive crime.

MCL 771.2a, effective 12/29/06.  Probation Extended for Misdemeanor Child Abuse. 

 Extends probation from two to five years.

MCL 750.50(4)(6)(8)&(9); MCL 777.16b.  PA 151 and 152 of 2007, effective 4/1/08.  Increase Sentence for Abuse of Animals. 

Increases penalties for animal cruelty, depending on the number of animals, and allows for consecutive sentencing under certain circumstances.  Modifies pertinent guidelines.


MCL 777.15g, effective 6/1/08.  Sentencing Guidelines for Crime of False Report Initiating Special Investigation.  PA 16 2008.

Establishes sentencing guidelines for making a false report which triggers notification to parents when DHS initiates a special, high risk investigation of a day care center, a new four-year felony under PA 15 of 2008, effective 6/1/08 (See Section A, supra). 

MCL 777.11b, effective 3/13/08.  Sentencing Guidelines for Fraid in Obtaining Drivers License or State ID.  PA 24 2008.

The bill amends the Code of Criminal Procedure to create new sentencing guidelines for the crime of "false certification or statement when applying for an enhanced driver license or enhanced official state personal identification card," a new felony punishable by up to 5 years in prison pursuant to HB 5535, PA 23 2008, effective 3/13/08.

MCL 777.13n, effective 3/17/08.  Sentencing Guidelines for Violations of revised Uniform Anatomical Gift Act.  PA 37 2008. 

The bill amends the Code of Criminal Procedure to add new guidelines for purchasing or selling a body part of a deceased individual for transplantation or therapy, and falsifying, concealing, or defacing a document of anatomical gift for financial gain, class E felonies with a five year maximum pursuant to HB 4940, PA 39 2008, effective 5/1/08, adding MCL 333.10116.

MCL 777.14h, effective 4/30/08.  Sentencing Guidelines for Violation of Mortgage Company Act or Secondary Mortgage Loan Act.  PA 65 2008. 

The bill removes guidelines categorizing a violation of the above noted acts as class H felonies with a three year maximum.  These violations become one-year misdemeanors (with up to $15,000.00 in financial penalties) under SB 833, PA 71 2008, effective 4/3/08, revising MCL 445.1679. 


MCL 791.234a, effective 6/5/08.  Special Alternative Incarceration Program, Revise Eligibility.  PA 158 of 2008. 

Prisoners who are serving a second prison sentence and those who previously failed boot camp are now eligible.  45 days notice must be given to judge and prosecutor in case of second term prisoners.  Graduates of boot camp must participate in the prisoner re-entry program.  The SAIP statute sunsets on 9/30/09.    


•D.                Miscellaneous


MCL 28.721 - 28.732, effective 1/1/06.  SORA Changes

The SORA is amended to add a provision that sex offenders required to be registered under the act cannot reside within a "student safety zone" - within 1,000 feet of school property.  MCL 771.2a demands a minimum of five years probation for listed sex offenses (with required condition relating to avoidance of "student safety zone").  MCL 28.721 prohibits registered offenders from working or loitering within a "student safety zone."

MCL 333.7401, effective 3/30/07.  Drug Free Zone - Library

Includes libraries within the 1,000 foot drug free zone. 

MCL 28.242a; MCL 28.214, effective 2/1/06.  ICHAT and LEIN

Extensive changes have been made with respect to information provided by and access to the Internet Criminal History Access Tool (ICHAT) database and the Law Enforcement Information Network (LEIN).  The publicly accessible ICHAT database will now include arrests, as long as the arrest did not result in an acquittal or dismissal of the charge.  The more restricted LEIN system is now governed by a Criminal Justice Information Policy Council, independent from but housed within the Michigan State Police.  Prosecutors and courts are now authorized to disclose a defendant's LEIN information to the defendant or defense counsel.  Detailed information about these changes are laid out in a two page article in the Criminal Defense Newsletter, January, 2006 edition, published by the State Appellate Defender Office.

MCL 791.40a, effective 7/20/06.  Parole Restrictions

Precludes release of a prisoner in custody for a parole violation until a hearing has been conducted and requires the MDOC director to be notified whenever a hearing has not been timely held.

MCL 600.1052(4), effective 1/2/07.  Drug Courts

Allows drug courts to accept participants from other jurisdictions.

MCL 750.228, 28.249, 28.425o(4)(d), effective 1/7/09.  Firearms Issues.  PA's 194-196 of 2008.

The acts eliminate post-purchase pistol safety inspection requirements and the penalties for failure to inspect.  Motor carrier officers and capitol security officers are added as peace officers.  Deletes prohibition on off-duty officers carrying in prohibited zones (i.e., schools and bars). 

MCL 791.240a, effective 12/29/06.  Counsel for Parolees

Amends the Corrections Code to provide for the appointment of an attorney for an indigent parolee at a fact-finding hearing on charges of a parole violation, cost to be borne by the MDOC.

MCL 791.240, effective 1/1/07.  Parolee Supervision. 

Home calls required within 45 days of parole placement.  Periodic LEIN checks of parolees convicted of violent felonies must be done.  Periodic testing of substance abusers.

MCL 760.1-777.69 (adding sec 15g), effective 12/9/06.  LEIN Checks for Parole on Arrest. 

Requires LEIN check on arrest or when a warrant is issues to determine if person is on parole and requires notification of MDOC.

MCL (Various), effective 6/19/07.  Housekeeping Changes. 

SB 344 corrects an inadvertent change to the MCL cite for R & C over $20,000, recodifies some sentencing guidelines designations, and changes "closed circuit television" to "interactive video technology" in certain acts.   

MCL 801.51 et al, 2007 PA 139 & 140, effective 11/30/07 & 2/11/08.

The bills provide for a jail population management plan and revise procedures under the jail overcrowding emergency powers act.       

Preliminary Exam Elimination.

For most of the last two year legislative term (2005-2006), the Michigan Judges Association, the Criminal Defense Attorneys of Michigan, and the ACLU had actively opposed an initiative by Michigan's Attorney General to virtually eliminate preliminary exams in felony cases.  A package of bills passed the House in December, 2005.  These bills were subjected to hearings in the Senate Judiciary Committee, then passed that committee in different form (the new plan would have allowed the exam to become a glorified "swear to" with the OIC parroting the testimony of witnesses in most cases).  In the end the House balked and nothing passed.  It remains to be seen what will happen with this during the 2007-2008 legislative term. As of February of 2008, nothing had been introduced, though interest has been indicated on the part of prominent Democratic leaders in the House.  On February 19, 2008 CDAM past presidents Ken Mogill and Marty Tieber met with the Democratic House member who has been designated as the point person in relation to this effort.  It is likely that a working group will be formed to determine whether all parties can agree on a reform measure.


          There is no doubt that, at least through February of 2008, the 2007-2008 session has produced a minimal amount of public acts in our zone.  One bill not reported on above is the elimination of penalties for selling non-vine-ripened tomatoes (2007 PA 10).  It would seem that the legislature finally got the message that continuing to pass whatever the prosecutors desire will continue to escalate Corrections spending.  However, as we move toward the conclusion of this two-year session, a number of bills appear to be on the move toward passage. 

As noted above, renewed interest in "reforming" preliminary exams has surfaced.  Gang legislation (SB's 291, 292, 660, 661) is active.  DNA testing on arrest is poised to pass (HB 4092).  "Super Drunk Driver" and ignition interlock provisions (HB's 4289, 4920-4921, SB 1134) are likely to pass.  Legislation including stun guns in CCW provisions is likely to gain passage (HB's 5754-5756).  Also look for legislation related to identity theft, trial procedure changes, CSC penalties and SORA issues, fines and cost increases and, on the positive side, parole guidelines and reform of juvenile sentencing, particularly sentencing of juveniles to life without parole.       

Added, October 2009.

2008 PA's 296-298 (HB's 4468-4469, 5351), eff. 10/8/08.  Causing Death or Injury to Person in Work Zone.  Eliminates requirement that death or injury be to a worker for enhanced penalties - can be any person in a work zone.  Eliminates need to post warning signs.

2008 PA 339 (HB 4552) eff. 1/1/09.  Increases penalties for animal cruelty.

2008 PA 340 (HB 4938) eff. 12/23/08.  Unauthorized practice of an occupation causing injury or death = class F felony (4 year max).

2008 PA 341 (HB 5160) eff. 1/1/09.  Enhances drunk driving penalties for out of state violations.

2008 PA's 466-467 (HB's 6629-6630) eff. 10/31/2010.  Provides for payment to state or local government for costs related to certain reckless driving convictions.

2008 PA's 475-476 (HB 6022, SB 1193) eff. 5/1/09.  Theft of catalytic converter = five year felony.

2008 PA 484 (HB 6625) eff. 1/12/09.  Derailing streetcar or endangering life of passenger or worker on streetcar = class A felony with life imprisonment possible.  

2008 PA's 411-412 (HB's 6092-6093) eff. 1/6/09.  False statement in petition for DNA testing = 5 year felony with consecutive sentence.  2008 PA 410 (HB 5089) eff. 1/6/09, extended the DNA testing statute through January 1, 2012.

2008 PA's 413-414 (HB's 5361-5362) eff. 3/1/09.  Stealing utility property = five year felony.

2008 PA's 430-431 (SB 1571, SB 1114) eff. 4/1/09.  Buying or selling stolen metal = five year felony.

2008 PA 508 (HB 4260) eff. 1/13/09.  Allows for removal of data from system after acquittal or other elimination of conviction.  

2008 PA 538 (HB 4612) eff. 3/1/09.  False statement on CCW application = four year felony.

2008 PA's 543, 547 (HB 5055, SB 1616) eff. 4/1/09.  Increases minimum costs for juvenile and adult criminal offenders.

2009 PA's 10-11 (HB 4096, SB 188) eff. 4/9/09.  Allows search warrants for a person who is the subject of an arrest or bench warrant.

2009 PA's 27-28 (SB's 145-156) eff. 7/1/09.  Allows recovery in restitution for replacement value if fair market value is difficult to determine.


Courtesy of Brian R. Laxton:

Public Acts 564 and 565 of 2008


MCL 750.411u and MCL 777.16t

If a person who was an associate or a member of a gang committed or attempted to commit a felony, and his or her association or membership in the gang provided the motive, means, or opportunity to commit the felony, the person would be guilty of a Class B felony punishable by imprisonment for up to 20 years.

A sentence imposed under the bill would be in addition to the sentence imposed for the conviction of the underlying felony, or the attempt to commit the underlying felony, and could be served consecutively to and preceding any term of imprisonment imposed for the underlying felony or attempt.
"Gang" would mean an ongoing organization, association, or group of at least five people, other than a nonprofit organization, that identifies itself by all of the following:

1. A unifying mark, manner, protocol, or method of expressing membership, including a common name, sign or symbol, means of recognition, geographical or territorial sites, or boundary or location.
2. An established leadership or command structure.
3. Defined membership criteria.

"Gang member" or "member of a gang" would mean a person who belongs to a gang.

Effective on April 1, 2009.

Public Acts 380, 533, 534 and 535 of 2008

Establishes DNA gathering before conviction upon being charged with certain crimes rather than after a conviction.

MCL 750.520m

Katie's Law

Effective July 1, 2009

Testimony given before the House Judiciary Committee illustrated how important collecting DNA samples from arrestees can be. Jayann Sepich from New Mexico told of how her daughter, Katie, was brutally raped, murdered, and set on fire in August of 2003.  DNA evidence was collected from under her fingernails.  Even though investigators ran the DNA profile through a law enforcement database weekly, no matches were made.  However, just three months after Katie was murdered, a man was arrested on aggravated burglary charges for breaking into the home of two women with, according to Ms. Sepich, intent to rape and murder them.  The women fled to a bathroom, locked the door, and called police on a cell phone.  Gabriel Avilla was arrested at the scene and in March of 2004, convicted of that crime.  He was released on bond prior to sentencing and, before a DNA sample was collected, fled to Mexico.  Mr. Avilla wasn't rearrested until August of 2005, two years after Katie's death.  When a DNA sample was finally taken, it matched the evidence collected in Katie's case. Mr. Avilla confessed to Katie's murder when confronted with the DNA evidence linking him to the crime.  He was formally charged with her murder on December 26, 2006, more than three years after Katie's death, on what would have been her 26th birthday. 

Katie's Law, which requires DNA for most felony arrests to be included in CODIS, the DNA database operated by the FBI (and in which states can elect to share DNA profiles), took effect in New Mexico in January 1, 2007.  Reportedly, states which have adopted similar laws have been able to solve more cold cases.  According to Katie's mother, within the first 11 months after the law went into effect in New Mexico, investigators were able to solve two homicides, two sexual assaults, and five property crimes by matching DNA profiles of arrestees with evidence collected at previous crime scenes.  Had such a law been in effect in New Mexico at the time Katie's murderer was arrested on the subsequent burglary charge, Gabriel Avilla would have been linked to Katie's murder much earlier and would not have been released on bond prior to sentencing on the burglary charge.  In addition, many law enforcement dollars spent on investigating the crime and bringing him to justice could have been saved.  Moreover, it is not known what crimes he may have committed while eluding authorities.

Recently, several other states have expanded their laws regarding DNA collection and retention to include certain arrestees. Citing a need for increased public safety, many believed that Michigan should adopt a similar law. 

Public Act 380

Amended the Michigan Penal Code (MCL 750.520m) to require an individual arrested for a violent felony, as defined in the Corrections Code, to provide samples for chemical testing for DNA identification profiling or a determination of the sample's genetic markers. Currently, the county sheriff or the investigating law enforcement agency is required to collect and transmit the samples as required under the DNA Identification Profiling System Act.  The bill adds that a sample taken from persons arrested for a violent felony may be transmitted to MSP upon collection.

"Violent felony" is defined in the Corrections Code to mean the following crimes:  felonious assault/armed; assault with intent to commit murder; assault with intent to do great bodily harm less than murder; assault with intent to maim; assault with intent to commit felony not otherwise specified; assault with intent to rob and steal (unarmed);  assault with intent to rob and steal (armed);  first degree murder; second degree murder;  manslaughter; kidnapping; prisoner taking a hostage; leading, taking away, enticing child under 14; mayhem (with intent to maim, disfigure, or cut out facial features, limb, or organ); criminal sexual conduct (CSC) 1st, 2nd, 3rd, and 4th degree; assault with intent to commit CSC 1st, 2nd, or 3rd degree; armed, aggravated assault; carjacking; use of force or violence to commit a larceny of money or property.

Public Act 553

Amended the DNA Identification Profiling System Act (MCL 28.173a).  Currently, if the investigating law enforcement agency or the Department of State Police already has a DNA sample from an individual, then another sample does not have to be collected upon conviction.  Under the act, if the DNA sample was inadequate for purposes of analysis, the individual will have to provide another DNA sample that is adequate for analysis.

Public Act 535

Unlawful conduct relating to DNA samples and information.  Dissemination of DNA profiles is restricted under the act to criminal justice purposes, court proceedings, and limited research purposes. The act prohibits an individual from disseminating, receiving, or otherwise using or attempting to use information in the DNA identification profile record knowing that such conduct is for a purpose not authorized by law.  Further, an individual could not willfully remove, destroy, tamper with, or attempt to tamper with a DNA sample, record, or other DNA information obtained or retained under the act without lawful authority.  A violation of either prohibition is a misdemeanor punishable by imprisonment for not more than one year and/or a fine of not more than $1,000.

Retention of DNA samples and profiles.  Currently, the law provides for permanent retention of a DNA identification profile by the Department of State Police of adults and juveniles who were convicted of, or found responsible for, a felony or specified misdemeanors. All other DNA identification profiles obtained by the department could only be retained as long as the profile is needed for a criminal investigation or criminal prosecution. 

In addition to the current requirements, the act requires the State Police Forensic Laboratory to dispose of a DNA sample or a DNA identification profile, or both, if (1) it receives a written request for disposal from the investigating police agency or prosecutor indicating that the sample or profile was no longer necessary for a criminal investigation or criminal prosecution; or (2) it receives a written request for disposal and a certified copy of a final court order establishing that the charge for which the sample had been obtained has been dismissed or resulted in an acquittal or that no charge was filed within the applicable limitations period. 

The above provision would not apply if the department determined that the individual from whom the sample had been taken had otherwise become obligated to submit a sample (e.g., the person was arrested for or convicted of a different crime for which DNA collection is authorized) or if subsection 16 of the bill applied.  Subsection 16 specifies that notwithstanding any other provision of the act, the department is not required to dispose of physical evidence or data obtained from a sample if evidence relating to an individual other than the person from whom the sample had been taken would be destroyed and the evidence or data relating to the other individual would otherwise be retained under Section 6.

Further, under the act, an identification, warrant, detention, probable cause to arrest, arrest, or conviction based upon a DNA match or DNA information is not invalidated if it is later determined that one or more of the following errors occurred in good faith:

A DNA sample was erroneously obtained; A DNA identification profile was erroneously retained; A DNA sample was not disposed of or there was a delay in disposing of the sample; A DNA identification profile was not disposed of or there was a delay in disposing of the profile.

Public Act 534

Added a new section to the same act (MCL 28.175a) to restrict the use of DNA profiles of lawfully obtained DNA samples by the Department of State Police to only one or more of the following purposes:

Law enforcement identification purposes.

Assisting in the recovery or identification of human remains or missing persons.

Academic, research, statistical analysis, or protocol development purposes only if personal identifiers were removed.

Further, DNA samples provided under the act could not be analyzed for identification of any medical or genetic disorder. 

Public Acts 461 and 462 of 2008
Super Drunk Driving - MCL 257.625k et seq.

These acts add a criminal penalty for operating a vehicle with a BAC of 0.17 or more.  In essence, it increases the penalties from a 93-day misdemeanor to a 180-day misdemeanor. It also mandates participation and successful completion of a treatment program for at least one year.

If the person has no prior convictions, the Secretary of State shall suspend the person's license for one year. After 45 days, the Secretary of State may issue the person a restricted license. The restricted license also requires that an ignition interlock device be placed in the offender's vehicle.

Additionally, if a hearing officer issues a restricted license requiring an ignition interlock device based upon multiple drunk driving convictions, the ignition interlock device must not be for less than one year.  The interlock device cannot be removed without the Secretary of State issuing an order for its removal. This law takes effect on October 31, 2010.

Public Acts 463, 468, 442, 446 and 465 of 2008
Establishes penalties for moving violations that seriously injure or kill another person as follows:

A moving violation that causes serious impairment of a body function of another person is a misdemeanor punishable by up to 93 days imprisonment, a fine of $500 or both.

A moving violation that causes the death of another person is a misdemeanor punishable by imprisonment of up to one year or a maximum fine of up to $2,000 or both.

Reckless driving that causes serious impairment of a body function of another person is a felony punishable by imprisonment for up to five years or a fine of between $1,000 and $5,000 or both, and vehicle immobilization.

Reckless driving that causes the death of another person is a felony punishable by imprisonment for up to 15 years or a fine of $2,500 to $10,000, or both and vehicle immobilization.

The law requires the Secretary of State to assign six points to a person's driving record for any of the above offenses, and four points for a moving violation resulting in an at-fault collision as well as revoke a drivers license for a conviction of a reckless driving causing either serious injury or death.  A moving violation that results in serious injury or death will result in a one year license suspension.  A person convicted of any of the above offenses is required to pay $1,000 driver responsibility fees each year for two consecutive years.

The law eliminates the offenses of felonious driving and negligent homicide.

The law takes effect on October 31, 2010.

PA 192 of 2008

GPS Tracking Domestic Violence Cases - MCL 765.6b

The Public Act allows a judge or district court magistrate to order a defendant charged with a crime involving domestic violence, to carry or wear a global positioning system (GPS) device as a condition of bond. If the judge or magistrate makes GPS monitor a condition of bond, the defendant is only allowed to be released if he or she agrees to pay the GPS costs or perform community service in lieu of payment.

It also allows the court, with the victim's informed consent, to order the defendant to give the victim a device to receive information from the defendant's GPS device. The victim may give the court a list of areas from which he or she wanted the defendant excluded and requires the court to consider the request. The victim may request that the court terminate his or her participation in the GPS monitoring of the defendant at any time.

It requires the court to instruct GPS monitoring system to notify the proper authorities if the defendant violates the bond conditions. It also requires that the court impose a condition of bond that the defendant not purchase or possess any firearm.

Effective July 10, 2008

Public Acts 519, 520, 521 and 577 of 2008

Child Abuse and Unattended Child in Car

MCL 750.136b; 777.16g and 750.135a

Took effect on April 1, 2009


Incidents in which children were left in a car on a hot day brought to light a problem with the application of Michigan's child abuse laws. First- and second-degree child abuse involve knowing or intentional acts, omissions, or reckless acts that cause or are likely to cause serious physical harm or, in some cases, serious mental harm to a child. Third-degree child abuse involves a person's knowingly or intentionally causing physical harm, and fourth-degree child abuse involves a person's omission or reckless act that causes physical harm. ("Physical harm", "serious physical harm", and "serious mental harm" are defined terms in the Michigan Penal Code.) The child abuse prohibitions do not address situations in which a person knowingly and intentionally places a child in a situation that is likely to cause physical harm to a child. As a result, such a person cannot be convicted of third- or fourth-degree child abuse unless the child suffered actual physical harm, and cannot be convicted of first- or second-degree child abuse unless the incident involved serious harm. If, for instance, a child is found in a car on a very hot or very cold day before he or she suffers physical harm, the person who exposed the child to the likely harm might not be held criminally liable for his or her actions. Some people suggested that child abuse prohibitions and penalties should apply in situations in which a person knowingly and intentionally does something that poses an unreasonable risk of harm or injury to a child, and that the Penal Code should include specific prohibitions and penalties for leaving young children unattended in a vehicle when that action poses an unreasonable risk of harm or injury to a child.
Public Act 577 amends the Michigan Penal Code to do all of the following:
-- Include in the factors that constitute third- and fourth-degree child abuse a person's knowing or intentional act that, under the circumstances, poses an unreasonable risk of harm or injury to a child.
-- Designate third-degree child abuse as a felony rather than a misdemeanor.
-- Include in the factors that constitute second-degree child abuse a person's reckless act that causes serious mental harm to a child.
-- Provide that conduct that is a reasonable response to domestic violence is an affirmative defense to a prosecution for child abuse.

Fourth-Degree Child Abuse
Currently, a person is guilty of fourth-degree child abuse, a misdemeanor punishable by up to one year's imprisonment, if his or her omission or reckless act causes physical harm to a child (an unemancipated person under 18 years old). Under the act, a person also is guilty of fourth-degree child abuse if he or she knowingly or intentionally commits an act that, under the circumstances, poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.
Third-Degree Child Abuse
Currently, a person is guilty of third-degree child abuse if he or she knowingly or intentionally causes physical harm to a child. Under the act, a person also is guilty of third-degree child abuse if he or she knowingly or intentionally commits an act that, under the circumstances, poses an unreasonable risk of harm or injury to a child, and the act results in physical harm to a child.

Third-degree child abuse previously was a high court misdemeanor punishable by up to two years' imprisonment. Under the act, the offense is a felony subject to the same penalty.

Second-Degree Child Abuse
Under the Penal Code, a person is guilty of second-degree child abuse, a felony punishable by up to four years' imprisonment, if any of the following apply:
-- The person's omission causes serious physical harm or serious mental harm to a child                              -- The person's reckless act causes serious physical harm to a child.
-- The person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child, regardless of whether harm results.
-- The person knowingly or intentionally commits an act that is cruel to a child, regardless of whether harm results.
Under the act, a person also is guilty of second-degree child abuse if his or her reckless act causes serious mental harm to a child.

"Physical harm" means an injury to a child's physical condition.

"Serious physical harm" means any physical injury to a child that seriously impairs the child's health or physical well-being, including brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.

"Serious mental harm" means an injury to a child's mental condition or welfare that is not necessarily permanent but results in visibly demonstrable manifestations of a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.

Affirmative Defense
The act specifies that it is an affirmative defense to a prosecution for child abuse that the defendant's conduct involving the child was a reasonable response to an act of domestic violence in light of all the facts and circumstances known to the defendant at that time. The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence. As used in this provision, "domestic violence" means that term as defined in the domestic violence prevention and treatment Act (MCL 400.1501), i.e., the occurrence of any of the following acts by a person that is not an act of self-defense:
-- Causing or attempting to cause physical or mental harm to a family or household member.
-- Placing a family or household member in fear of physical or mental harm.
-- Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.
-- Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Public Acts 519 and 521

These acts prohibit a person who is responsible for the care or welfare of a child under six years old from leaving that child unattended in a vehicle for a period of time that poses, or under circumstances that pose, an unreasonable risk of harm to the child. A violation is punishable as shown below:
Result of Violation   Offense Level Max. Imprisonment and/or Max. Fine

No physical harm Misdemeanor 93 days; $500

Physical harm other than serious physical harm Misdemeanor 1 year; $1,000

Serious physical harm D Class (Person) Felony 10 years; $5,000

Death B Class (Person) Felony 15 years; $10,000

The bill defines "unattended" as alone or without the supervision of an individual who is at least 13 and is not legally incapacitated.





III.           Court Rules

Guilty and Nolo Plea Changes.

            Effective 7/13/05 the court eliminated MCR 6.302(A)(3)(b), requiring advice of the right to be tried by the court without a jury, and added, at the end of MCR 6.302, a provision allowing satisfaction of the advice requirements of 6.302(B)(3) - (5) through a written form to be approved by the State Court Administrative Office.  The court also eliminated the sections advising denial of appointed appellate counsel to the poor who pled (MCR 6.302(B)(6)), and modified MCR 6.425, consistent with the decision of the United States Supreme Court in Halbert (see page 1-8, supra).

Criminal Rule Changes.

            After a committee proposed myriad changes to the criminal court rules, and after the court received written and oral input from the bench and bar, the following changes were made, effective January 1, 2006:

MCR 2.511.  Conviction of felony eliminated as grounds for cause challenge.

MCR 6.004.   Adds language stating that defendant is entitled to dismissal of charges with prejudice when speedy trial rights are violated.  The 180 day release on recognizance provision adds an exception if the court finds by clear and convincing evidence that defendant is a flight risk or poses a threat of harm to a person or the community.

MCR 6.004(D).  Requires delivery of notice by the DOC to the county prosecutor by certified mail to start the 180 day clock for untried charges against a state prisoner.

MCR 6.005.  With respect to assistance of counsel, adds, in section (E), that "[t]he court may refuse to adjourn a proceeding to appoint counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel."

MCR 6.006.  New provisions allow use of two-way interactive video technology for arraignments, pretrials, pleas, sentencing (misdemeanors), show cause hearings, extradition waivers, competency determination referrals and exam adjournments.  Telephone or videoconferencing for witness testimony is available on motion of either party in district court if defendant is present or has waived presence.  On good cause shown, district or circuit court can use video technology to examine witnesses at evidentiary hearings, competency hearings, sentencings, probation revocation hearings and youthful trainee revocation proceedings.  Witness testimony can be taken at trial in this manner with consent of both parties - party withholding consent need not state a reason.

MCR 6.106.  Allows pretrial release to be conditioned on non-contact order.  Hearings can be requested by the defense or the prosecutor under MCR 6.106(G).

MCR 6.110.  Confines prompt exam right to cases "where a preliminary examination is permitted by law."  If parties consent, court can now adjourn exam for a reasonable time.  Violation of the adjournment rule is now harmless unless defendant demonstrates actual prejudice.  The section (6.110(B)(2)) setting out the procedure for challenging denial of a timely exam was eliminated.

MCR 6.111.  Allows circuit court pleas/arraignments in district court with consent of parties, with transfer to circuit court for sentencing after plea.

MCR 6.113.  Adds section allowing for local order eliminating arraignment for defendant represented by counsel, as long as other arrangements are made to provide defendant with copy of the Information.

MCR 6.201.  Discovery rule amended to add mandatory disclosure of expert CV's, plus expert report or written description of proposed testimony and underlying basis of opinion.  All criminal convictions of any witness who might be called that are known to prosecution or defense must be disclosed pursuant to 6.201(A)(5).  6.201(B)(2) requires the prosecutor to disclose interrogation records as well as police reports.  Section setting out relief for violation allows court to permit inspection of materials, grant a continuance, suppress material not disclosed, or enter any other "just" order.

MCR 6.304.  The standard for accepting a plea of not guilty by reason of insanity was altered.  Previously, if the court found defendant committed the act(s) charged, she could accept the plea if there was reasonable doubt about defendant's legal sanity.  Now there must be a showing, by a preponderance of the evidence, that defendant was legally insane.

MCR 6.310.  The rule now allows, under 6.310(A)(2), plea withdrawal before sentencing if the court is unable to follow a prosecutor sentence recommendation or the court's sentence agreement.  General withdrawal before sentence was tightened and may be granted only in the interest of justice, and then only if it will not substantially prejudice the prosecutor due to reliance on the plea.

MCR 6.310(C) and (D).  These provisions were added, and allow a motion to withdraw to be filed within 6 months after sentence (previously allowed within time for filing an application for leave).  6.311, setting out additional rules for challenging a plea after sentence, was eliminated, and much of this rule was transferred to 6.310.

MCR 6.414.  Jury trial rules amended, requiring court to give appropriate pretrial instructions.  Jurors can now take notes into deliberations.  Jurors can ask questions of witnesses if questions are appropriate and parties have opportunity to object.  Communications with jury during a view must be recorded. 

MCR 6.419.  Added section allows defendant to move for directed verdict of acquittal during a bench trial after the prosecution rests.  Court may grant or decline to decide until close of all evidence.  Findings of fact must be made if motion granted.

MCR 6.427.  Part C added allowing court to query deadlocked jury where two or more counts are charged.  If jury has reached unanimity on any counts court may accept the verdict(s).

MCR 6.428.  Added section allows for restarting time for appeal of right in cases of attorney neglect.

MCR 6.429.  Motion to correct invalid sentence replaces motion for resentencing, and can be filed in the course of an appeal by right pursuant to 7.208(B), or through the remand process, or, if only leave to appeal is available, within 6 months of sentencing.

MCR 6.431.  Section C reduces time for filing motion for new trial to 6 months in cases where application for leave is only avenue of direct appeal remaining (note: the time for filing a delayed application for leave remains at 12 months, MCR 7.205(F)(3)).

MCR 6.610; MCR 6.620.  District court criminal rule changes.  Appointed counsel must be provided when the court determines a term of incarceration is possible, even if suspended.  Section (E)(6) of 6.610 adds plea advice rights (whether there were threats or promises beyond the agreement), and (E)(7) now allows for a plea in writing without support for a factual basis if guilt is acknowledged and court is satisfied that rights waiver is voluntary.  (F)(2), added to 6.610, notes that unless defendant is represented by counsel or there is a proper waiver, any conviction cannot later be used for enhancement purposes, and no later incarceration is possible for violation of probation or other conditions.  6.620 was changed to allow the prosecutor the same number of peremptory challenges as the total of defense challenges where there is more than one defendant.  A provision was added (6.620(B)(2)) allowing the court to increase peremptories for a party on good cause shown.  There is no need to equalize the number of additional challenges granted to the parties under this section.   

Michigan Uniform System of Citation.   On March 15, 2006, the Michigan Supreme Court issued Administrative Order No. 2006-3, effective May 1, 2006.  The order revises the MUSC, printed at the back of the West Michigan Rules of Court paperback.  A comprehensive delineation of the changes made would require the services of a nit-picky appellate practitioner, unavailable at the time these materials were prepared.  A cursory review suggests that underlining (as a substitute for italicization) of case names is no longer acceptable, parallel citations are required (renewed emphasis), and subsequent history citation (e.g., lv den) should not be provided unless "jurisprudentially significant."

Motion for Relief from Judgment (6.500) Changes.  Effective September 1, 2006, the Court amended the 6.500 series, requiring a copy of the motion to be served on the prosecutor by the defendant, setting out a 50 page limit (combined motion and brief), and exempting the prosecutor from participation in the appellate process unless the court of appeals grants leave.  Other minor, technical changes were made.  The recommended one year time limit was not promulgated (on a vote of 4-3).

No Discrimination in Jury Selection Process - new MCR 2.511(F).  Effective January 1, 2006, judges may not discriminate during voir dire for the purpose of achieving "what the court believes to be a balanced, proportionate, or representative jury."  The amendment was made on a 4-3 vote after overwhelming comment against the proposal.

Misdemeanor Counsel Rules.  Effective May 1, 2007, the court altered MCR 6.001 to make 6.005(B) and (C) applicable to misdemeanor cases.  These rules set out the factors to be used in determining whether a criminal defendant is indigent and, if defendant is able, allows the court to require a defendant to contribute to the cost of counsel.  MCR 6.610 ensures that defendants convicted in district court and sentenced to terms of incarceration, even if suspended, are aware of their counsel rights on appeal.  MCR 6.625 amendments further provide for provision of counsel on appeal from misdemeanor convictions. 

More Interactive Video.  Effective May 1, 2007, the court adopted new rules (MCR 3.904 and MCR 5.738a) to allow for use of two-way interactive video technology in delinquency and child-protective proceedings. 

Delay Reports Decreased.  Effective May 1, 2007, the court changed the monthly requirement for submission of reports on delay in criminal proceedings to a quarterly requirement, amending MCR 8.103.     

Time for Answering Motions in Court of Appeals.  Effective January 1, 2007, the time frames for answering certain motions under MCR 7.211(B) were extended from 7 to 14 days.  Answers to motions for immediate consideration are still subject to 7 days, if served by mail, or within such time as the court of appeals directs.  Time for submission of a motion to withdraw as court-appointed counsel is reduced from 56 to 28 days after appellant is served in parental rights termination cases.

Probation Revocation Pleas Must be Accurately Made.  Effective September 1, 2007, the court must, under MCR 6.445(F)(3), ascertain that a plea to a probation violation is "understandingly, voluntarily, and accurately [formerly knowingly] made."  The change was meant to provide consistency with the requirements for pleas of guilty and nolo contendere to criminal offenses.

Provision of Appointed Counsel in Misdemeanor Cases.  Effective May 1, 2007, the district court must advise a defendant who is convicted of a misdemeanor who is sentenced to incarceration, even if suspended, that a lawyer will be appointed to represent defendant on appeal if the request is made within 14 days under new MCR 6.610.(F)(3).  New MCR 6.625(B) sets out further procedures for the appointment of counsel and time for taking an appeal in misdemeanor cases.  

Changes to Pre-Trial Release Provisions.  Effective September 1, 2007, MCR 6.106 is revised to clarify that a surety (bail agent) is liable only for the full amount of the bond and not for any costs of court proceedings to revoke bond (see MCL 765.28).  Additional changes make clear that a surety is liable only for appearance and not for compliance with conditions of release.