One Court of Justice

The Michigan Supreme Court granted the application for leave to appeal in People v. Johnson.  The parties shall address:  (1) whether the amendment of the supplemental notice of intent to seek to enhance the defendant’s sentence was contrary to MCL 769.13, and if so, what remedy the defendant is entitled, if any; and (2) whether the trial had authority to sentence the defendant as a fourth habitual offender, if the original notice was defective and no order was entered allowing the notice to be amended.  The Court invited the Prosecuting Attorneys Association of Michigan, the Criminal Defense Attorneys Association of Michigan, and the Criminal Law Section of the State Bar of Michigan to file briefs amicus curiae.

In People v. Howell, the Court of Appeals held that the trial court’s amendment of the defendant’s sentences for crimes committed while on parole—to specify that the new sentences would run consecutively with his prior sentence—merely corrected an omission by the court and was therefore permissible under Michigan’s court rules.  The defendant was not entitled to notice or a hearing regarding the amendment because the court’s mistake was not substantive.  Additionally, the amendment was not inconsistent with the defendant’s plea agreement, which did not address the defendant’s parole. Read more »

In what promises to be an important decision for post-conviction relief petitions, our Supreme Court has granted an application to address the applicable standard for an innocence claim under MCR 6.508(D).  This particular armed robbery case — with an apparently long procedural history – originates from a 1995 Wayne County Circuit Court criminal file, People v William Craig Garrett.  Two currently sitting justices, Markman and Cavanagh, have previously voted to grant leave for this case on a prior trip up to our high court.  It appears that ineffective assistance of counsel at trial will also be an issue in this appeal.

Besides the threshold legal standard, the parties are asked to address: (1) whether this case meets the applicable standard; (2) whether any other rule under the 6.500 series offers relief for a “significant possibility” of actual innocence; and (3) whether, if MCR 6.508(D) does bar relief, if there’s any recourse for a person with “a significant possibility of actual innocence” under the Michigan or U.S. Constitutions.

Justice McCormack, who recently joined the bench after a long career bringing 6.500 petitions and similar actual innocence cases, concurred to suggest additional analysis of these issues: (1) whether MCR 6.508(D)(2) bars relief premised on issues previously decided on direct appeal; (2) whether that subsection bars relief for a claim of ineffective assistance of counsel premised on an issue decided against the defendant on direct appeal; (3) the scope of relief available under MCR 7.316(A)(7) (which allows the MSC to “enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require”) in light of MCR 6.508(D); and (4) when MCR 6.508(D) bars relief, if a court may then consider evidence and arguments presented at an earlier stage of review.  Justice Markman joined Justice McCormack’s concurrence.  In addition, the bench invited amici briefs from Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan.

The Supreme Court denied Mr. Garrett’s original application for leave to appeal in 1997.  456 Mich. 876 (Sept. 29, 1997).  The trial court later held an evidentiary hearing on Mr. Garrett’s motion for a new trial based on newly discovered alibi evidence (as well as new polygraph and other evidence), and granted a new trial in April 1999.  The Court of Appeals peremptorily reversed that order, but only addressed the alibi evidence issue, on July 28, 1999 (Docket No. 219803).  On leave granted, the Court of Appeals later took up the issue of the complainant’s mental condition, and its effect on her testimony, and whether the verdict was against the great weight of the evidence, but again denied relief.  No. 222304, 2001 WL 1388398 (Nov. 6, 2001).  In 2003, the Supreme Court denied Mr. Garrett’s application for leave again, although Justices Markman, Cavanagh and Kelly would have granted leave.  467 Mich. 936 (Jan. 3, 2003).

In People v Gratsch, the Court of Appeals held that the statute criminalizing possession of a weapon in jail was not unconstitutionally vague.  The statute prohibits a prisoner from possessing a “weapon or other item” that might injure another person or assist the prisoner in escaping from jail.  Because a person of ordinary intelligence could understand the meaning of the statute, it passes constitutional muster.  The Court also rejected several other challenges to Defendant Gratsch’s conviction relating to the jury instructions, Gratsch’s motion for a new trial, and his sentencing variables. Read more »

In People v. Lemons, the Court of Appeals reversed the trial court and held drug evidence seized by officers admissable.  The Court of Appeals held that the police officers’ warrantless search of the defendant’s condominium was justified under the emergency-aid exception to the warrant requirement.  Under the emergency-aid exception to the warrant requirement, officers may enter a residence without a warrant if they reasonably believe, based on specific facts, that a person within the residence is in need of immediate aid.  In this case, having been called to the scene by anonymous neighbor, the officers reasonably believed that there had been a home invasion based on the fact that the front door open was in the middle of the day in November.  Thus, the exception applied and the evidence obtained should have been admitted.  Moreover, the Court of Appeals noted that, even if the search did not fall within the emergency-aid exception, the exclusionary rule would be inappropriate because the officers acted in good faith and in the interest of protecting the public.

In People v. Gibbs and People v. Henderson, the Court of Appeals considered the sentencing and conviction of two participants in the armed robbery of store.  The two defendants appealed a variety of issues.  Gibbs first argued that the trial court’s closing of the courtroom after voir dire began violated his right to a public trial.  Reviewing for plain error, the Court held that because the parties engaged in a “vigorous” voir dire and the venire was present, assuming there was an error, it did not seriously affect the fairness of the proceedings.  Second, Gibbs asserted that the prosecutor violated his Fifth Amendment rights by commenting on the fact that Gibbs did not contact the police or tell his mother about the crime before he was arrested.  The Court disagreed, holding that commenting on pre-arrest silence did not violate Gibb’s rights.  Third, Gibbs appealed three sentencing errors, one successfully.  The Court held that the trial court erred in applying PRV 5, the prior misdemeanor variable, because at the time of sentencing Gibbs had pled guilty to a misdemeanor, but he had not yet been convicted.  However, this error did not affect Gibb’s PRV level, so no resentencing was required.  Henderson also appealed several sentencing issues, but none successfully.  Lastly, Henderson argued that his convictions for both assault with intent to rob while armed and armed robbery violated double jeopardy.  The Court agreed.  Because there is no substantive difference in the elements of these two crimes, the Court vacated Henderson’s assault conviction.

Among the actions of the Michigan Supreme Court on February 8, 2013, the Court ordered Wayne County Circuit Court Judge Wade H. McCree immediately suspended without pay pending outcome of sealed disciplinary proceedings.

The Court also granted an application for leave dealing with issues related to forfeiture of bail bonds.  In re Forfeiture of Bail Bond (People v. Gaston & You Walk Bail Bond Agency) presents the Court with the issues of: (1) whether a court’s failure to comply with the 7-day notice provision of MCL 765.28 bars forfeiture of bond posted by a surety; and (2) whether In re Forfeiture of Bail Bond, 276 Mich. App. 482 (2007), holding that the 7-day notice provision is discretionary rather than mandatory, was correctly decided.

On Friday, the Michigan Supreme Court denied applications for leave to appeal, denied 19 motions for reconsideration, denied one motion for bypass, and dismissed one case on stipulation of the parties.  The Court also remanded two matters to the Court of Appeals or trial court. 

In People v. Howze, the Supreme Court directed the Wayne County Prosecuting Attorney to respond to the application for leave within 21 days.  In its brief, the prosecutor was directed to address whether the defendant should be allowed to withdraw his guilty plea in light of People v. Cole, 491 Mich, 325 (2012). Read more »

In People v. Needham, the Michigan Court of Appeals held that a child pornography sentence may be enhanced pursuant to OV-10 for exploitation of a vulnerable victim even though the defendant never had contact with the victims.  The court reasoned that, because the images were of real children, the defendant exploited and manipulated these vulnerable victims by possessing pornographic images of them for a selfish or unethical purpose.  In so holding, the court relied on language in United States v. Norris, 159 F.3d 926, 929–30 (5th Cir. 1998), which noted that children’s victimization “does not end when the pornographer’s camera is put away” but that the consumer of such images causes suffering to continue.

In People v Allan, the jury convicted the defendant of conspiracy to commit extortion.  The trial court failed to swear in the jury before the trial.  The defendant did not object.  Thus, the Court of Appeals reviewed for plain error affecting substantial rights.  The Court of Appeals held that failing to swear in a jury was plain error requiring a new trial.  Failing to swear in the jury was a clear structural error that infected the entire proceeding, rendering the trial “fundamentally unfair and an unreliable vehicle for determining guilt or innocence.”  Accordingly, the Court remanded the matter for a new trial. Read more »