One Court of Justice

On August 26, 2010, the Michigan Supreme Court published its opinion in People v. Szalma, No. 140021.  The Court held that where the trial judge determined that a prosecutor failed to present sufficient evidence to convict the defendant, the double-jeopardy clauses of the United States Constitution and the Michigan Constitution prohibit retrial.

Read more »

On August 24, 2010, the Court of Appeals published Judge’s Saad’s opinion in People v. Dendel, No. 247391.  The defendant in this case had been convicted of second-degree murder for causing the death of her domestic partner by injecting him with a fatal dose of insulin.  This case had been remanded by the Michigan Supreme Court for examination of Confrontation Clause issues in light of the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).  Here, these Confrontation Clause issues related to the testimony of a toxicologist who had testified about the level of glucose found in the alleged victim’s system based upon the findings of forensic toxicology tests he did not perform compiled in a report he did not prepare.  The Court of Appeals concluded that, under the current standards, the report of a zero-glucose level in the body was a testimonial statement, and that the defendant’s constitutional right to confront his accusers was violated where the trial court allowed an expert witness to give hearsay testimony about those glucose levels.  The Court of Appeals, however, found that this was error was harmless beyond a reasonable doubt because of the wealth of other evidence, establishing the cause of death and supporting defendant’s conviction.

Read more »

In People v. Campbell, No. 29135 (published Aug. 26, 2010), the Court of Appeals held that the Medical Marihuana Act, MCL § 333.26421 et seq., does not apply retroactively.  The case began when Keith Campbell was arrested in December 2007 for various marijuana charges and for possessing a firearm during the commission of a felony.  A year later, while his charges where still pending, the Act passed and became effective.  The Court of Appeals explained that legislatives acts are presumed to apply only prospectively unless the legislature indicates an intent for a new law to apply retroactively, and the Medical Marihuana Act did not contain any such indication.  Nor was the legislation a remedial, because it created a new right—an affirmative defense that did not exist prior to the enactment of the Act.  Accordingly, the Court reversed the trial court’s dismissal of the criminal charges and remanded for further proceedings.

On July 31, 2010, the Michigan Supreme Court issued a 4-3 opinion in People v. Mardlin, No. 139146.  Justice Corrigan, joined by Justices Markman, Young, and Weaver, wrote the majority opinion, which reversed the Court of Appeals and affirmed the trial court’s admission of evidence of an unusual number of prior fires associated with property owned by the accused in this arson case.  The Court held the evidence was admissible under the “doctrine of chances””the more an unusual incident occurs, the less likely it is a mistake or accident.  Because it was offered for that purpose, and not to prove bad character or propensity, it did not violate MRE 404(b)(1). And the lack of direct evidence of culpability for the past fires actually weighed in favor of, and not against, admission under MRE 403 because it minimized impermissible negative inferences about his character.  Chief Justice Kelly, joined by Justices Cavanagh and Hathaway, authored a dissenting opinion, arguing that the doctrine of chances did not apply here, and even if it did, the evidence was inadmissible under MRE 403.

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.

On Tuesday, July 13, 2010, the Michigan Court of Appeals published its unanimous opinion in Joe Doe v. John Doe I, No. 285655.  In Doe, the Court concluded that an Emergency Medical Technician (“EMT”) was not liable for his failure to report suspected child abuse in accordance with MCL 722.623, where the perpetrator of the abuse was another EMT who was not related to the child, did not have substantial and regular contact with the child, had no close personal relationship with the child’s parents, and was not a person responsible for the child’s health or welfare.   Read more »

Kent Allen Lee, after being originally charged with second-degree criminal sexual conduct, pleaded no contest to third-degree child abuse as a second habitual offender.  At his sentencing, the judge reserved for a later date whether the defendant should be required to register as a sex offender.  One year later, the judge heard testimony on this issue and concluded that Lee would be required to register.  In a remand from the Michigan Supreme Court directing the Court of Appeals to consider Lee’s appeal of this requirement, the Court of Appeals affirmed, in People v. Lee, No. 283778 (published June 17, 2010), the decision to require him to register.  Registering as a sex offender is not punishment, the Court explained, but rather a remedial regulatory scheme in furtherance of a legitimate state interest, like a quarantine notice when the public is threatened by an infectious disease.  Because it was not punishment, the fact-finding the judge conducted did not violate due process, so long as the court still had jurisdiction over the defendant, which it did because Lee had been sentenced to five years of probation.  The Court of Appeals also rejected Lee’s contention that the trial court’s factual findings were insufficient to establish that his behavior “by its nature constitute[d] a sexual offense against a minor,” as Michigan’s Sex Offenders Registration Act requires.

The trial court granted Defendant’s successive motion for relief from judgment of her four convictions of first-degree criminal sexual conduct for engaging in fellatio with her adopted son.  On June 8, 2010, the Court of Appeals published its opinion in People v. Swain, No. 293350, reversing the trial court’s order.  On remand from the Michigan Supreme Court for consideration as on leave granted, the Court of Appeals held that Defendant’s successive motion was barred by MCR 6.502(G) and that Defendant’s constitutional rights are not implicated.  Defendant was convicted based on the victim’s testimony that Defendant sexually abused him every day before school while his brother waited outside for the school bus.  Defendant denied abusing the victim, and testified that she did not ever send the brother outside to wait for the school bus by himself and that a neighbor and the bus-stop driver could verify that.  As a general rule, MCR 6.502(G)(1) prohibits successive motions for relief from judgment.  MCR 6.502(G)(2) provides limited exceptions, for either newly discovered evidence or retroactive changes in the law.  However, the trial court stated that MCR 6.508 provides another limited exception when the defendant establishes ”good cause” for not previously raising an issue and “actual prejudice.”  The trial court set aside the convictions based on its determination that trial counsel and prior appellate counsel’s failures with regard to the two witnesses constituted ineffective assistance of counsel, and that but for counsel’s error, Defendant would have had a reasonably likely chance of acquittal.  The Court of Appeals held that MCR 6.508(D)(3)’s requirements of “good cause” and “actual prejudice” are not a third exception to the general rule, and are only relevant if the successive motion falls within one of the two exceptions of MCR 6.502(G)(2).  The Court of Appeals also held that Defendant could not show that her constitutional rights were violated because she could not establish a “gateway” showing of actual innocence.  The Court of Appeals further held that trial counsel’s failure to investigate the two witnesses and present them at trial did not constitute ineffective assistance of counsel.

On a dark and stormy night, the victim was walking with his back to oncoming traffic in the middle of the road instead of on a nearby sidewalk.  The victim was severely intoxicated with a blood alcohol content (BAC) of at least 0.268.  Around 2:00 a.m., Defendant hit the victim with his car, and the victim was killed.  Defendant initially left the scene of the accident, but later returned and was arrested.  At the time of the accident, Defendant’s BAC was an estimated 0.091 to 0.115.  Defendant’s blood also contained amounts of 11-carboxy-tetrahydrocannabinol (11-carboxy-THC), a byproduct the body produces as it metabolizes the main psychoactive substance found in marijuana.  After a jury trial, Defendant was convicted of failure to stop at the scene of an accident that resulted in death, MCL § 257.617(3), operating while intoxicated (OWI), second offense, MCL § 257.625(1), and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death, MCL § 257.625(4) and (8).  On June 8, 2010, the Michigan Supreme Court published its opinion in People v. Feezel, No. 138031, in which it reversed the judgment of the Court of Appeals, vacated Defendant’s convictions, and remanded the case to the trial court.  The Michigan Supreme Court concluded that under some circumstances, evidence of a victim’s intoxication may be relevant and admissible to show the victim’s gross negligence.  The Michigan Supreme Court held that here the trial court abused its discretion in suppressing evidence related to the victim’s intoxication because it was relevant to the element of causation in certain crimes Defendant was charged with.  The Michigan Supreme Court determined that the trial court’s error resulted in a miscarriage of justice and required reversal under MCL § 769.26.

In addition, a majority of the justices (Cavanagh, Kelly, Hathaway, and Weaver) determined that 11-carboxy-THC is not a schedule 1 controlled substance under MCL § 333.7212 of the Public Health Code and overruled People v. Derror, 475 Mich. 316 (2006), which held the opposite.  Under Derror, a person who operates a motor vehicle with the presence of any amount of 11-carboxy-THC in his or her system violates MCL § 257.625(8).  Justice Weaver concurred and joined in Justice Cavanagh’s opinion, with limited exceptions.  Justice Young, joined by Justices Corrigan and Markman, authored an opinion concurring in part and dissenting in part.  Justice Young dissented from the decision to overturn Derror under the doctrine of stare decisis because Derror was not wrongly decided and other relevant factors exist that caution against overruling Derror.  Justice Young opined that the conclusion that 11-carboxy-THC is not a derivative of marijuana under Michigan’s controlled-substance laws conflicts with legislative intent.  Moreover, Justice Young emphasized that there was no need to reach this conclusion because Defendant had trace amounts of actual tetrahydrocannabinol in his system.

On June 8, 2010, the Court of Appeals approved for publication its April 20, 2010 per curiam opinion in People v. Likine, No. 290218.  That case arose from the defendant’s failure to pay court-ordered child support.  Initial support payments were under $200/month, but based upon hearings that revealed the defendant’s purchase of a $500,000 home and new car, were raised to over $1,000/month.  Defendant failed to make the adjusted court-ordered payments and was eventually charged with felony failure to pay child support.  The trial court ordered that defendant would not be permitted to raise a defense of inability to pay, because the charge was a strict liability offense.  The defendant was convicted.  On appeal, she argues that the underlying statute was unconstitutional based on precedent that holds that the Legislature cannot impose the duty to perform an act upon a person, which is impossible for that person to perform, and then make such non-performance a crime.  The Court of Appeals found that the precedent did not apply in this case, noting that the defendant had a full opportunity for due process regarding the child-support amount and her ability to pay in the civil context.  In those proceedings, the civil court had determined that she did, in fact, have the ability to perform the ordered support obligations.  Additionally, she argued that the trial court’s decision preventing her from raising the inability-to-pay defense was a due-process violation.  Again, the Court of Appeals disagreed, finding that the right to present a defense is not an absolute right, and that the inability to pay was irrelevant to any fact at issue in the case.  Thus, the Court of Appeals affirmed the conviction.

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 »

In People v. Parker, No. 289357, the Court of Appeals overturned the defendant’s conviction and acquitted him of the charge of carrying a dangerous weapon with unlawful intent, MCL § 750.226.  Because this statute applies only to a person who both (1) carries “a pistol or other firearm or dagger, . . . or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon” and (2) carries the instrument “with intent to use the same unlawfully,” the Court concluded that a knife qualified as a dangerous weapon under this particular statute only if it has a blade of at least 3 inches.  Because the prosecution failed to prove the length of the knife, it failed to prove an element of the crime, and the Court ordered the defendant’s acquittal because the Double Jeopardy Clause would bar a retrial.

Interestingly, the Court explained that the outcome could be different under a related statute, MCL § 750.227, because the Michigan Supreme Court has interpreted the second statute (a concealed weapon statute) to forbid either (1) carrying an instrument that is a dangerous weapon per se or (2) carrying an “instrument used, or intended for use, as a weapon for bodily assault or defense.”  This means that under § 750.226 the prosecution must prove both intent to use a weapon unlawfully and that the knife is at least 3 inches, while under § 750.227 the prosecution could prove that a 2-and-1/2-inch knife was carried “for bodily assault or defense.”

On May 18, 2010, the Court of Appeals issued its per curiam opinion in People v. Fyda, No. 288421, affirming defendant’s jury conviction of solicitation of murder, and felony-firearm.  This case arose out of defendant’s expressed desire to kill his ex-wife.  A friend of the defendant contacted the police when he believed that the ex-wife was in danger, after she filed a motion seeking to recover damages related to mortgage payments.  The friend worked with the police to set up a meeting between defendant and an undercover officer posing as a killer for hire.  At the meeting, defendant asked the officer to “pop” his ex-wife, and gave him a handgun, pertinent information regarding his ex-wife, and a down payment of $200 on the total price of $700.

The jury convicted defendant under MCL § 750.157b(2), finding him guilty of solicitation to commit murder.  On appeal, defendant claimed ineffective assistance of counsel, due to his trial counsel’s failure to object to the trial court’s jury instructions, which included solicitation to inflict great bodily harm or act with a wanton and willful disregard of the likelihood that one’s behavior is to cause death or great bodily harm.  Relying on the same rationale as cases dealing with the crime of assault with intent to commit murder, the Court of Appeals held that a defendant cannot be found guilty of solicitation to commit murder without a finding of the necessary specific intent—an actual intent to kill.  Although the Court of Appeals concluded that trial counsel should have objected to this incorrect jury instruction, the Court of Appeals also concluded that this error did not affect the outcome of the case because there was consistent testimony that indicated premeditation. Read more »

After Lamar Evans was seen running away from a burning house while carrying a gasoline can, he was apprehended and charged with an arson offense.  The State charged him with the crime of “burning other real property,” but not with the crime of “burning a dwelling.”  (“Burning other real property” is a lesser-included offense for “burning a dwelling,” but Evans was charged only with the lesser crime.)  At his trial, Evans argued that the prosecution failed to prove an element of the crime, contending that to prove the “burning other real property” offense, the prosecution would need to prove that the burned building was not a dwelling.  The trial court agreed and directed the verdict in Evans’ favor, dismissing the case.  In People v. Evans, No. 290833, the Court of Appeals reversed and remanded for a new trial.  Judge O’Connell, writing for the Court, explained that the fact that the building was not a dwelling is not an element of the crime, and thus the prosecution’s failure to prove that non-element was irrelevant.  In fact, the standard jury instruction that Evans relied on contained a use note explaining that the prosecution needs to prove the building was not a dwelling only when a defendant is charged with “burning other real property” as a lesser-included offense to “burning a dwelling.”  Thus when a defendant is charged with “burning other real property” as a stand-alone offense, the prosecution need not prove the building was not a dwelling.  The Court also rejected Evans’ argument that granting the State a second trial would violate the Double Jeopardy Clause.  No double-jeopardy violation arose, the Court explained, because the only finding the trial court made was that the prosecution presented no evidence tending to show the building was not a dwelling, and that finding did not relate to an actual element of the crime, so no factual findings were made as to any real element of the crime.

On May 11, 2010, the Court of Appeals published its opinion in People v. Baker, No. 286769.  Through an opinion authored by Judge O’Connell, the Court of Appeals ordered that one of the defendant’s two home invasion convictions be vacated.  It was undisputed that the two separate convictions were based on a single, continuous home invasion.  The defendant argued that these multiple convictions violated constitutional protections against double jeopardy.  The prosecution argued that, because the defendant both intended/committed a sexual assault during the home invasion, and intended/committed larceny during the home invasion, the separate home invasion counts involved different essential elements and supported two separate convictions.  The Court of Appeals disagreed, finding that the essential element was the same: intent to commit, or commission of a felony.  The Court characterized the prosecution’s case as two different theories to establish that single necessary element.  However, two different theories did not support two separate convictions.  Therefore, the Court of Appeals ordered that one of the home invasion convictions be vacated.

On April 22, 2010, Justice Hathaway denied the defendant’s motion to disqualify her in People v. Aceval, No. 138577.  The defendant pled guilty to drug charges in Wayne County Circuit Court and now appeals that plea.  The defendant argued that Justice Hathaway could not be impartial because (1) she was a Wayne County Circuit Court judge at the time of the defendant’s conviction, (2) she was formerly married to a current Wayne County prosecutor, and (3) there is large-scale corruption among Wayne County judges and prosecutors.  Justice Hathaway rejected these arguments and defended the integrity of the Wayne County bench and bar.

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 »

A Michigan statute makes it a felony to steal certain items (“any wheel, tire, air bag, catalytic converter, radio, stereo, clock, telephone, computer, or other electronic device”) located “in or on” certain vehicles (“any motor vehicle, house trailer, trailer, or semitrailer”).  MCL § 750.356a (emphasis added).  Marvin Miller was charged under this statute for stealing a cell phone that was in a truck, and he asked the trial court to quash the charge on the theory that the statute applied only to telephones that were permanently attached to a vehicle.  The trial court accepted this argument.  In People v. Miller, No. 294566 (Apr. 15, 2010), the Court of Appeals reversed.  Noting that nothing in the statute required that the telephone be permanently attached to the vehicle, just that it be “in or on” the vehicle, the Court explained that the charged conduct fell squarely within the plain language of the statute.

In People v. Williams, No. 284585, published on April 8, 2010, the Michigan Court of Appeals examined whether a completed larceny is necessary to sustain a conviction for armed robbery.  The majority concluded, based on the language of the statute, that an attempted larceny can constitute an armed robbery if the other elements are proven.  The Court’s opinion was authored by Judge Talbot and joined by Judge Owens.  Judge Gleicher’s dissenting opinion can be found here. Read more »

On April 8, 2010, the Michigan Court of Appeals published its opinion in People v. Mann, No. 288329.  A jury convicted Mann of three counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.  The Court of Appeals held that (1) the trial court properly admitted evidence of Mann’s prior conviction of attempted first-degree criminal sexual conduct under MCL § 768.27a; and (2) the prosecutor’s brief statement regarding Mann’s failure to testify did not violate Mann’s due-process rights or right against self-incrimination.

Read more »