One Court of Justice

 In People v. Hartuniewicz, No. 298163, the Court of Appeals considered a defendant’s appeal from his conviction for possession of ketamine, a controlled substance under the Controlled Substances Act. The defendant based his appeal on the prosecution’s failure to establish as an element of the charged offense that the ketamine was not diluted, and the trial court’s failure to issue a jury instruction to that effect or to grant him a directed verdict on that ground. MCL 333.7227(1) provides that diluted substances that are “in a proportion or concentration to vitiate the potential for abuse” are excluded from prosecution. The Court of Appeals rejected the defendant’s argument, holding that the exclusion in MCL 7227(1) was not an element of the offense of possession, but rather an affirmative defense with the burden of proof resting on the defendant. Read more »

In People v. Mahone, No. 299056, the Court of Appeals declined to grant a new trial based on erroneous admission of hearsay evidence and affirmed the trial court’s decision to replace a distressed juror after deliberations began with an alternate who had been discharged.  The defendants were convicted of robbing and sexually assaulting the victim.  The court noted it was difficult to say any error was harmless when the case turned entirely on the relative credibility of the victim and the accused.  But while the Court agreed that two of three statements were inadmissible hearsay, it found that the errors were either cured by striking the testimony and instructing the jury to disregard it, or could have been cured if the defense counsel had moved to strike and requested a curative jury instruction.  As for the testimony of the nurse who treated the victim, the Court found her testimony to be admissible under MRE 803(4) because the victim’s statements to the nurse were made for the purpose of medical treatment and were reasonably necessary for diagnosis and treatment.  Finally, the Court confirmed that MCR 6.411 permits the trial court to recall an alternate juror to replace a juror after deliberations have begun, as long as the jury is instructed to begin deliberations anew.  The record revealed that the trial court had given that instruction.

In Judge Hoekstra’s opinion for a unanimous court in People v. Bylsma, No. 302762, the Court of Appeals upheld the trial court’s refusal to dismiss criminal charges under the Michigan Medical Marijuana Act.  In this case, the defendant was in possession of 88 marijuana plants.  He was the registered primary caregiver for two patients which, under the terms of the act, allowed the possession of 12 plants for each patient.  Defendant argued that he was maintaining the balance of the plants for other primary caregivers and patients, who testified in support of this account at an evidentiary hearing.  The Court of Appeals concluded that the terms of the Act only permitted either the primary caregiver or the patient to possess the 12-plant limit.  Thus, only one person was permitted to possession of the statutorily-allowed amount.  Here, as to the remaining 64 plants, defendant was a third party, and was neither the caregiver or patient.  Thus, defendant was not entitled to immunity under the Act or assert the affirmative defense of medical purpose allowed by the Act.

On Monday, September 26, 2011, the Michigan Supreme Court denied 93 applications for leave to appeal, denied 11 motions for reconsideration, and directed the Wayne County Prosecuting Attorney to respond to the defendant-appellant’s application for leave to appeal in People v. Bryant, Case No. 142933. 

The Court also ordered that the matter of People v. Anderson, Case No. 143339, would be held in abeyance pending a decision in People v. Kolanek, Case Nos. 142695 and 142712, and People v. King, Case No. 142850.  Kolanek concerns whether a defendant may assert the affirmative defense under the Michigan Medical Marihuana Act (“MMMA”) if he was found in possession of marihuana prior to obtaining the necessary physician authorization and receiving a registry identification card.  In King, the court will consider whether the defendant is entitled to assert the affirmative defense available under the MMMA where the defendant possessed a valid medical marihuana card, but kept his marihuana in a dog kennel comprised of a moveable six-foot tall chain-link fence with no top cover.  Under the MMMA, marihuana must be stored in an “enclosed locked facility”. Read more »

On September 23, 2011, the Michigan Supreme Court vacated a judgment of the Court of Appeals on the application, and remanded it for reconsideration where it held that the Court of Appeals misunderstood the parties’ arguments.  In Marsack v. Estate of Gabriel, No. 143328, the Supreme Court found that the Court of Appeals based its decision in No. 291153 on a holding that the Estate’s PR did not show that a savings clause applied to the claim.  But the Supreme Court determined that the PR had argued that the savings clause did not apply at all.

The Michigan Supreme Court is going to hear argument on an application for leave looking at whether no-fault personal protection insurance benefits cover handicap-accessible transportation.  In an Order dated September 23, 2011 in Kenneth Admire v. Auto-Owners Insurance Company, No. 142842, the Court said it would decide whether to grant the application or “take other action.”

On February 15, the Court of Appeals (No. 289080) affirmed a grant of summary disposition for the injured plaintiff.  Mr. Admire is wheelchair-bound after a 1987 auto accident.  He requires a modified vehicle.  Auto-Owners provided a modified van for a number of years, but when the van needed replacement in late 2006, Auto-Owners took the position that it wasn’t obligated to purchase a new van under the no-fault act or the parties’ transportation purchase agreement.  Auto-Owners paid for “medical modifications” to a new van, but the parties have been litigating over the remaining cost of a new van, which was $18,388.50.

The trial court granted summary disposition to plaintiff based on the terms of the parties’ contract, but the Court of Appeals declined to affirm on that basis, holding that there was an ambiguity in the language precluding judgment for either party.  Turning to the requirements of the no-fault act, the Court of Appeals affirmed.  It rejected Auto-Owners’ argument that Mr. Admire could have relied on public transportation, and that the van itself was not compensable because he would have had a vehicle of some kind regardless of his injuries.  The Court of Appeals held that a modified van was required by the transportation needs necessitated by Mr. Admire’s injuries, and that Auto-Owners’ responsibility was not limited to the incremental cost of making the modifications.

On September 23, 2011, the Supreme Court remanded People v. Michael William Mungo, No. 141160, to the Court of Appeals, for reconsideration in light of Davis v. United States, __ U.S. __, 131 S. Ct. 2419 (2011).

Davis is the case in which the U.S. Supreme Court held 7-2 that the exclusionary rule does not apply where police conduct a search in objectively reasonable reliance on binding appellate precedent.  In it, the Supreme Court, writing through Justice Alito, with Justice Sotomayor concurring, and Justices Breyer and Ginsburg dissenting, held that the “sole purpose” of the Fourth Amendment exclusionary rule is to deter violations of the people’s right to be free of unlawful search and seizure.  131 S. Ct. 2426.  Therefore, the Court held, if the police had an objectively reasonable belief that the search was legal based on binding appellate precedent, there is no bad behavior to deter and no grounds to apply the exclusion remedy.  Id. at 2427.  The binding appellate precedent relied on in that case was from the same Circuit.

In Mungo, the trial court originally excluded evidence from a search of the glove compartment in the vehicle in which Mungo was a passenger.  The Court of Appeals originally reversed this decision.  After Arizona v. Gant, which held that a search of a car cannot be “incident to arrest” if the occupant is already secured and cannot access the inside of the vehicle, the Michigan Supreme Court remanded the case for reconsideration in light of Gant.  The Court of Appeals then affirmed the trial court.  Now the Court of Appeals will have an opportunity one additional time to possibly reverse course again, unless it finds that the police’s search in Mungo was not “objectively reasonable” under its facts, or that Michigan law or the Michigan Constitution provides greater exclusionary rule protection than the U.S. Constitution does.

There have been no appearances by amici curiae in this matter to date.

The Michigan Supreme Court granted the application for leave to appeal in Spectrum Health Hospitals v. Farm Bureau Mutual Ins Co of Michigan, No. 142874.  The Court granted the motion of the Insurance Institute of Michigan to file a brief amicus curiae, and also invited the Michigan Association for Justice, the Michigan Insurance Federation, the Michigan Defense Trial Counsel, Inc., the Michigan Health and Hospital Association, and the Commissioner of Insurance to file briefs amicus curiae.

The Court granted the application for leave to appeal in People v Cole, No. 143046, and invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to file briefs amicus curiae.

The Court granted the application for leave to appeal in Progressive Marathon Ins Co v. DeYoung, No. 143330, and invited the Michigan Association for Justice, the Michigan Insurance Federation, the Michigan Defense Trial Counsel, Inc., the Michigan Health and Hospital Association, and the Commissioner of Insurance to file briefs amicus curiae.

The Court also granted the application for leave in Titan Ins Co v. McKinley Hyten, No. 142774.

Read more »

In People v. Benton, No. 296721, the Court of Appeals considered whether a 25-year mandatory minimum sentence for first-degree criminal sexual conduct constituted cruel or unusual punishment.  The defendant, an elementary school teacher convicted of engaging in sexual intercourse with a 12-year-old student, argued that the mandatory minimum sentence for a statutory rape conviction prevented the court from considering mitigating factors and other particular circumstances of the offense.  Most notably, the defendant wanted the court to be able to take into account her assertion that she never used force, violence, or coercion and her assertion that she did not physically or psychologically injure her victim.   The Court of Appeals rejected the defendant’s argument and concluded that Michigan’s public policy goal was to prevent adults from engaging in sexual activities with pre-teens.  Moreover, the Court of Appeals determined that the defendant’s assertion that she was less culpable than most other sex offenders was unpersuasive, noting that the defendant used her position of power and authority to insinuate herself into her victim’s life, isolate him in her home, and then engage in sexual activities with him.  The court also noted that other states had similar minimum sentences for an adult offender’s first offense against a pre-teen victim, regardless of any purported mitigating factors. Read more »

On September 22, 2011, the Michigan Supreme Court denied the prisoner-appellant’s motion to waive the filing fee in Meriweather v. Attorney Grievance Commission, No. 143217.