One Court of Justice

A search of the defendant’s car after he was arrested and in police custody was unconstitutional under Arizona v. Gant, 129 S. Ct. 1710 (2009), decided on the day of the defendant’s suppression hearing.  In Gant, the Supreme Court ruled that police may search a vehicle incident to an arrest only “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”  129 S. Ct. at 1719.  In People v. Short, No. 292288 (published Aug. 26, 2010), the Michigan Court of Appeals explained that Gant applied retroactively, and the police search of the defendant’s car was unconstitutional.  But exclusion of evidence is not an automatic remedy for an unlawful search.  The exclusionary rule is designed to deter police misconduct, and therefore, courts have recognized a good-faith exception to the rule.  Addressing this issue of first impression, the Court of Appeals concluded that an officer’s reliance on valid case law which was later overturned may form the basis of an officer’s good faith and avoid exclusion of the disputed evidence at trial.  Because the search was lawful under well-established case law at the time of the arrest, the Court of Appeals upheld the trial court’s application of the good faith exception to the exclusionary rule.

Defendant Tion Terrell was convicted of assault with intent to murder and related crimes after a non-lethal shooting incident.  After his conviction, the defendant moved for a new trial and offered the testimony of his codefendant.  The codefendant, who had invoked his Fifth Amendment privilege against self-incrimination and was acquitted at trial, testified post-trial that the victim had been armed and that someone other than the defendant shot the victim.  The trial court granted a new trial based on newly discovered evidence.  In People v. Terrell, No. 286834 (published Aug. 26, 2010), the Court of Appeals reversed the order for new trial, holding that the testimony of the codefendant was not newly discovered evidence, and therefore a new trial was not warranted.  In this issue of first impression, Judge Borrello, joined by Judge Meter, adopted the approach of the majority of federal circuit courts:  a codefendant’s post-trial exculpatory testimony constitutes newly available evidence, but it is not newly discovered if the defendant knew or should have known of the evidence before or during trial.  The Court of Appeals stressed that the codefendant’s testimony was not new to the defendant, and the defendant did not seek available remedies to overcome the potential prejudice caused by his codefendant’s refusal to testify, such as severance of trial and limited immunity.  Judge Borrello’s opinion can be found here.  Judge Shapiro concurred in the result, but believed that the Court of Appeals should have applied the test articulated by the Court of Appeals for the First Circuit, which assesses such testimony on a case-by-case basis, rather than applying a bright-line rule.  You can find Judge Shapiro’s concurring opinion here.

Ronald Rose was convicted of four counts of criminal sexual conduct against an eight-year-old girl and of two counts of disseminating sexually explicit matter to minor (the girl and her ten-year-old brother).  In People v. Rose, No. 290936 (published Aug. 26, 2010), the Court of Appeals rejected his argument that allowing the girl to testify at trial from behind a screen violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and a Michigan statute.  This procedure did not violate the Confrontation Clause because the U.S. Supreme Court has held that there is a compelling state interest in protecting child witnesses, and the trial court here made specific findings that the screen was necessary to protect the girl because of her fear of Rose, of her age, and of a therapist’s testimony that there was a high likelihood that the girl would suffer psychological damage if required to testify face to face.  It also did not violate the Michigan statute, MCL § 600.2123a, because that statute does not address witness screens, and courts have inherent authority to control procedures that includes the authority to use witness screens.  The Court of Appeals also concluded (1) that the use of witness screens is not inherently prejudicial (like requiring a defendant to testify in prison garb is), (2) that it was not an abuse of discretion to deny Rose’s motion, filed one day before trial, to exclude the prosecution’s expert witness on child sexual abuse dynamics, and (3) that Rose’s counsel was not ineffective.  Accordingly, the Court of Appeals affirmed Rose’s conviction and sentence of 25 to 50 years in prison.

On Saturday, July 31, 2010, the Michigan Supreme Court issued its opinion in People v. Houthoofd, Case Nos. 138959 & 138969.  Justice Hathaway wrote for the five-member majority reversing the Court of Appeals in part and restating the defendant’s conviction for solicitation to commit murder.  The Court held that while venue was not proper in Saginaw County for defendant’s trial on the charges of solicitation to commit murder and witness intimidation, such error was harmless and did not warrant vacation of the defendant’s conviction.  The Court remanded the matter back to the Court of Appeals for consideration of whether the trial court failed to articulate substantial and compelling reasons for upwardly departing from the sentencing guidelines when imposing defendant’s sentences on both offenses.  Read more »

On July 27, 2010, the Michigan Supreme Court published its consolidated opinion in People v. Flick, Case No. 138258, and People v. Lazarus, Case No. 138261. Justice Corrigan wrote for the 4-member majority affirming the binding over of two criminal defendants for trial on the charge of knowing possession of child sexually abusive material, even though the materials in question were images that had been saved into the temporary internet files of the defendants’ computers.  The majority found that, coupled with evidence that the defendants had purchased and downloaded the images, they had taken affirmative action to exercise dominion or control over the images, meaning that the defendants had actual or constructive possession of the abusive images.  In a dissent authored by Justice Cavanagh, three members of the court found that the prosecution must establish not only power to exercise dominion and control over the material, but also the intent to exercise such control.  Thus, the minority reasons that simply purchasing and viewing such material on the internet is insufficient to support a charge of knowing possession without evidence that a defendant intended to do something (or did something) with the material, other than just view it on the internet, where the computer and not the user, created a temporary internet file.

A jury convicted Jason Gursky of four counts of first-degree criminal sexual conduct, based on testimony from his girlfriend’s daughter that he touched sexually abused her (the daughter) on two occasions, once when she was six and once when she was seven.  The girl testified at trial and was cross-examined by defense counsel, and a friend of the girl’s mother also testified to corroborate that the girl’s testimony at trial was consistent with what the girl had described shortly after the second incident. In People v. Gursky, No. 137251 (published July 22, 2010), the Michigan Supreme Court considered whether the testimony of the mother’s friend was admissible under Michigan Rule of Evidence 803A, which provides that spontaneous statements by a child under the age of ten about sexual abuse are an exception to the rule against hearsay.  All seven justices agreed the statements the girl made to the mother’s friend were not “spontaneous” because the friend brought up the subject of sexual abuse and specifically asked, after running through the names of several men, whether the defendant had abused her.  The Court clarified the rules for determining whether a statement is spontaneous under MRE 403A (see further discussion after the jump).  The majority, with Justice Young writing for the Court, also held that while it was error to admit the friend’s testimony, that error was harmless because (1) the prosecutor offered the testimony merely to corroborate the girl’s testimony, (2) the friend’s testimony was cumulative of the girl’s own testimony, and (3) the friend’s testimony of the girl’s emotional reaction to the questions (the girl responded by looking horrified, sucking her thumb, crying, and gasping for breath) was not hearsay because it was non-verbal conduct that was not intended to be an assertion. Justice Cavanagh, joined by Chief Justice Kelly, dissented on the harmless-error issue, arguing that because the girl’s credibility was the primary issue at trial, admitting the friend’s testimony made it “more probable than not” that excluding the evidence would have resulted in a different outcome at trial.

Read more »

In an extraordinary development, the Michigan Supreme Court dismissed the putative class action brought by indigent criminal defendants against the State’s public defender system.  In May, the Court issued a unanimous order holding that a decision on the defendants’ motion for summary disposition was premature.  On defendants’ motion for reconsideration, the Court adopted the dissent from the Court of Appeals and concluded that the plaintiffs’ claims are not justiciable. Chief Justice Kelly and Justices Cavanagh and Hathaway dissented. Read more »

The Court took substantive peremptory action in two cases, ordered oral argument on the application in two cases, and granted leave to appeal to address a criminal-sentencing issue.  All five cases are discussed below: 

Lawrence M. Clarke, Inc. v. Richco Construction, Inc.:  The Court ordered oral argument on the application.  The Court of Appeals affirmed the trial court’s refusal to set aside a default judgment where the plaintiff obtained leave from the court to effect service by alternate means and the defendants failed to present the necessary affidavits to show a meritorious defense.

In re W Minors:  The Court ordered oral argument on the application.  The Court of Appeals majority affirmed the decision of Michigan Children’s Institute’s superintendent denying consent to adopt and dismissing the adoption petitions filed by the Martins, the W minors’ former foster parents.  Judge Shapiro dissented, concluding that the Martins had been deprived of their ability to adopt the W minors because of an error by the Department of Human Services of Genesee County, and would have remanded the case to the trial court for rehearing. Read more »

The Michigan Supreme Court took substantive action in six cases:

In re P.M. (Department of Human Services v. Mullins), No. 140983:  The Court granted oral argument on the application.

Iron Mountain Information Management, Inc. v. Naftaly, Nos. 140817-140824:  The Court granted leave to appeal limited to the issue of whether the circuit courts have subject-matter jurisdiction over appeals from a decision of the state tax commission regarding property classification.  The Court ordered that the case be argued and submitted with Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814.

Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814:  The Court granted leave to appeal to address the same issue as Iron Mountain.

People v. McCauley, No. 140422:  The Court ordered oral argument on the application to address whether a defendant can raise a challenge to the effective assistance of his counsel during the plea-bargaining process where the defendant rejected the plea offer and subsequently received a fair trial, and if so, what remedies should be available to the defendant.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  Our post on the Court of Appeals’ decision conditionally vacating the defendant’s sentence is here.

People v. Breidenbach, No. 140153:  The Court ordered oral argument on the application to address three issues:  (1) whether the Court should reconsider the rule of People v. Helzer, 404 Mich. 410 (1978), that a determination of sexual delinquency is a separate, alternative form of sentencing rather than a penalty enhancement; (2) whether the defendant waived or forfeited the right to a second jury’s determination of his status as a sexual delinquent; and (3) whether any error was harmless or harmless beyond a reasonable doubt.  Again, the Court invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to submit amicus briefs.  

Friend v. Friend, No. 139165:  In lieu of granting leave to appeal after having heard argument on the application, the Court remanded the case to the Houghton County Circuit Court for clarification as to whether the alimony award was alimony in gross or periodic alimony.  The Court further ordered that as a precondition of the trial court clarifying the nature of its award, the plaintiff purge herself of any outstanding findings of contempt within 90 days.  The Court denied leave to appeal on all other issues, including whether the Court should adopt the fugitive-disentitlement doctrine.  Justices Corrigan, Markman, and Young dissented and would have applied the fugitive-disentitlement doctrine and condition consideration of the appeal on plaintiff’s compliance with trial court’s orders.

The Court also denied leave to appeal in six cases.

On Wednesday, June 23, 2010, the Michigan Supreme Court denied seventeen applications for leave to appeal and one motion for reconsideration.  In addition, the Court granted various procedural motions including several motions for leave to submit amicus curiae briefs.  The Court also took substantive action in four cases.  In Harrington v. Fatchett-Harrington, No. 140833, in lieu of granting leave to appeal, the Court vacated the order of the Court of Appeals which had dismissed plaintiff’s claim of appeal and remanded the case to the Court of Appeals for reinstatement of the appeal.  In Woodward Parking Co. v. City of Detroit, No. 140073, the Court vacated the Court of Appeals’ decision in light of the Court’s decision in Briggs Tax Service, LLC. v. Detroit Public Schools.  In People v. LaRose, No. 139699, the Court remanded the case to the Court of Appeals after determining that the defendant-appellant was deprived of a direct appeal as a result of ineffective assistance of counsel.  Finally, the Court granted leave to appeal in Hamed v. Wayne County, No. 139505 to clarify the application of Michigan’s Civil Rights Act to prisoners.  The Woodward Parking, LaRose, and Hamed cases are discussed further after the jump. Read more »

On June 22, 2010, the Court of Appeals released Judge Borrello’s opinion in People v. Bryant, No. 280073,involving a claim that a defendant’s Sixth Amendment right to an impartial jury, drawn from a fair cross-section of the community, was violated when his Kent County jury venire of 42 only had one African-American.  This argument had been made previously immediately after the defendant’s conviction, and the Court of Appeals had remanded the matter for an evidentiary hearing.  The trial court conducted such hearings, but found no Sixth Amendment violation and upheld the conviction.  The Court of Appeals disagreed, finding an unintentional computer error systematically caused underrepresentation of African-Americans on jury venires, and reversed and remanded the case for a new trial. 

Read more »

On Thursday, June 10, 2010, the Michigan Court of Appeals published its unanimous opinion in the matter of People v. Reid, Case No. 286784, holding that a circuit court does not have jurisdiction to try a defendant on a misdemeanor criminal charge, where the original accompanying felony charge was dismissed before trial.  Read more »

Yesterday, the Michigan Supreme Court granted the application for leave to appeal in Yvletel-Rivard v. Rivard, No. 140065, and directed the parties to address three questions:

1. Whether MCL § 600.5078(1) and (3) contemplate no more than two arbitration awards (the initial written award and any modified award following a motion to correct errors and omissions);
2. Whether MCL § 600.5078(3) does not permit the filing of more than one motion to correct errors and omission; and
3. Whether the defendant’s motion to vacate the award was untimely.

The Court also asked the parties in Brown v. Taubman Co., No. 140385, to address whether indicia of a potentially slippery condition are sufficient to make so-called “black ice” open and obvious.

The Court also peremptorily reversed three Court of Appeals decisions in lieu of granting the application for leave to appeal and denied 10 applications for leave to appeal.  The peremptory reversals are discussed after the jump.

Read more »

On May 25, 2010, the Michigan Court of Appeals published its opinion in People v. Kern, Case No. 289478, affirming the trial court’s denial of the state’s motion to amend the defendant’s sentence to require lifetime electronic monitoring.  The Court of Appeals concluded that MCL § 791.285 only provides for the implementation of lifetime electronic monitoring for defendants who are released from prison and/or parole. Read more »

The Michigan Supreme Court resolved three cases by peremptory orders reversing the Court of Appeals’ decisions and ordered oral argument on the application for two cases in its next term. 

The Michigan Supreme Court reversed the Court of Appeals’ decision in Kachudas v. Invaders Self Auto Wash, No. 139794.  In Kachudas, the plaintiff slipped and fell at an auto wash on a winter day and sued the company that operated the facility.  The Court of Appeals concluded that the open-and-obvious defense was not available to the defendant because the plaintiff’s claims sounded in general liability and not premises liability.  Four justices of the Michigan Supreme Court disagreed, explaining that the plaintiff alleged injury because of a condition of the land and thus the plaintiff’s claims were for premises liability.  The Court further found that a person of average intelligence would anticipate that spraying water on a day with average temperatures between 11 and 24 degrees would likely lead to the formation of ice.  Accordingly, the Court also concluded that the danger was open and obvious.  The Court peremptorily reversed the Court of Appeals’ decision, and reinstated the trial court’s grant of summary disposition to the defendant.  Chief Justice Kelly and Justices Cavanagh and Hathaway dissented.

The Court apparently decided to revisit the open-and-obvious doctine by ordering oral argument on the application in Ahola v. Genessee Christian School, No. 140447.  The Court of Appeals, in a divided opinion, concluded that faults to the defendant school’s steps that caused the plaintiff’s injury were not open and obvious despite the plaintiff’s navigation of those steps several hours earlier because the steps were unlit at the time of the injury.  Read more »

On May 13, 2010, the Michigan Court of Appeals issued its published opinion in People v. Glass, No. 290278.  The trial court found the defendant guilty of violating the terms of his probation and imposed a prison sentence, after the defendant’s probation period had expired.  The defendant argued that the trial court had no jurisdiction to do so.  The Court of Appeals agreed.  MCL § 771.4 states, “If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation.”  MCL § 771.4 (emphasis added).  The Court held that this language meant that the trial court could only revoke probation during the probation period. Accordingly, the Court vacated the defendant’s prison sentence and remanded the case so that the trial court could discharge the defendant from his probationary sentence.

In an opinion with consequences for both civil and criminal practitioners, the Michigan Supreme Court granted leave to appeal and reversed the Court of Appeals’ judgment in People v. Richmond, No. 136648.  The Court concluded that the prosecutor’s voluntary dismissal of criminal charges without prejudice rendered the prosecutor’s appeal of an earlier (erroneous) evidentiary ruling moot.  The 4-3 decision commanded an unusual majority of Chief Justice Kelly and Justices Cavanagh, Markman, and Hathaway.  Justice Cavanagh authored the opinion for the majority.  The opinion suggests a new basis for the Michigan Court of Appeals to reject claims of appeal by right from civil cases where the parties reached an agreement to dismiss claims without prejudice to permit appeal of a significant interlocutory order.

Read more »

On April 15, 2010, the Michigan Court of Appeals published its opinion in People v. Ericksen, No. 288496.  Ericksen appealed his conviction of assault with intent to murder under MCL § 750.83, arguing (1) insufficient evidence; (2) prosecutorial misconduct; (3) sentencing error; and (4) ineffective assistance of counsel.  The court affirmed Ericksen’s conviction, remanding to the trial court for a ministerial correction of the judgment to include time served.

Read more »

On April 13, 2010, the Court of Appeals published its unanimous opinion, authored by Justice Zahra, in People v. Mungo, No. 269250.  In this case, the Court of Appeals considered the application of the recent United States Supreme Court opinion in Arizona v. Gant.  In 2008, the Court of Appeals had reversed the trial court order to exclude certain evidence obtained in a vehicle search.  While this matter was on appeal to the Michigan Supreme Court, the United States Supreme Court refined the standards for the search of a vehicle incident to arrest in Gant.  The Michigan Supreme Court remanded the matter to the Court of Appeals for reconsideration in light of Gant.  In Gant, the United States Supreme Court held that a vehicle search incident to arrest is only constitutional if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if it is reasonable to believe that the vehicle contains evidence of the offense that led to the arrest.  Here, the arrestee/passenger was detained in a police vehicle at the time of the search, and the driver was outside of reaching distance of the passenger compartment.  Thus, the Court of Appeals concluded that the search was illegal under Gant.  Further, the Court of Appeals found that the “good faith” exception to the exclusionary rule did not apply because at the time of the search, Michigan law on the scope of a search incident to arrest was unsettled, and thus the search could not have been premised on good-faith reliance on case law.  Based on these findings, the Court of Appeals affirmed the exclusion of the evidence discovered in the vehicle search.

On Wednesday, March 31, 2010, the Michigan Supreme Court denied nine applications for leave to appeal and denied two motions for reconsideration.  The Court also held the cases of People v. Gagnier, Case No. 139735, and People v. Laidlaw, Case No. 139751, in abeyance pending a decision in People v. Smith, Case No. 140371.  Our post on the issues presented in Smith can be found below.  The Court also took substantive action in six criminal cases and one civil matter which are discussed after the jump. Read more »