Criminal Law

Issues: Vehicle forfeiture; MCL 333.7521(1)(d); Waiver of a challenge to the sufficiency of evidence; Shaw v. Ecorse; Challenges to the sufficiency of evidence in civil cases; Badalamenti v. William Beaumont Hosp.-Troy; Questions of credibility; Allard v. State Farm Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Forfeiture of 2002 Lincoln

e-Journal Number: 58649

Judge(s): Per Curiam - O'Connell, Cavanagh, and Fort Hood

 

The court held that, viewed in the light most favorable to the plaintiff, sufficient evidence was presented for the trial court to find that the claimant's vehicle was subject to forfeiture under MCL 333.7521(1)(d). Claimant's vehicle was forfeited after he was seen driving it to a known drug trafficking house and then admitted to the police that he was there to purchase crack cocaine. On appeal, the court rejected his argument that there was insufficient evidence to seize his vehicle because nothing was found in the vehicle or on his person. It noted that the testimony at the forfeiture hearing established that he "parked the forfeited vehicle in front of a house known for trafficking" drugs, that he left a short while later, and a police officer stopped him "and asked him about the house he had just left. The officer testified that claimant told him that he went to the house to purchase crack cocaine on credit, but the drug dealers were not issuing credit at that time." At the hearing, he "admitted telling the officer that he went to the house asking for drugs." The court further noted that claimant admitted he had purchased drugs at the house on prior occasions, and that the trial court did not find his later testimony that he was being "a little facetious" in speaking with the officer to be credible. Affirmed.

 

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Issues: Claim that defendant was denied a fair trial because of the admission of the surveillance video footage; People v. Chelmicki; People v. Feezel; Relevant evidence; MRE 401 & MRE 403; People v. Kowalski; Claim that the testimony of a police forensic video analyst constituted improper opinion testimony and invaded the fact-finding province of the jury; MRE 701; People v. Fomby; MRE 701(a) & (b); Alleged defects in the chain of custody; People v. White; People v. Herndon; Whether the prosecution's exercise of its peremptory challenges to dismiss two black women from sitting on the jury denied defendant a fair trial under Batson v. Kentucky; People v. Armstrong; People v. Knight; People v. McDade; Prima facie case based on race; People v. Bell

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Flake

e-Journal Number: 58647

Judge(s): Per Curiam - O’Connell, Cavanagh, and Fort Hood

 

Defendant was not denied a fair trial because of the admission of the surveillance video footage. The prosecution asserted that defendant, who was seen at the home at issue on the night of the fire, perpetrated the murder and arson. Surveillance footage from a church across the street from the home was admitted at trial. It showed two individuals arriving at the home in a two-door vehicle before the fire and leaving the home after the fire was set. Defendant was convicted of arson of a dwelling. On appeal, he asserted that "the video was more prejudicial than probative, lacked the requisite chain of custody, and that testimony about the footage" provided by a forensic video analyst (Officer S) was improper. The court held that the video itself was relevant because it showed the crime occurring. MRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Evidence is "'unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury.'" However, in this case, the video could not be characterized as "marginally probative." It directly tended to prove that "two individuals committed arson, the time they arrived and left the scene, and details about the vehicle in which they were traveling." These facts were all essential here. The court also held that S's testimony "was based on his perception of the video and rationally related to it as he consistently referenced the film and the timestamps of the video." Further, it "helped provide a clearer understanding of the facts." As to defendant's chain of custody argument, "the prosecution properly demonstrated the video was what it claimed to be - surveillance footage capturing the crime. The prosecution was not required to submit a perfect chain of custody and any defects between the recovery of the files and their presentation in court go to the weight and not admissibility of the evidence." The court also rejected defendant's Batson claim. Affirmed.

 

Full Text Opinion

Issues: Whether the defendant established a due process violation on the basis of his claim under Brady v. Maryland; People v. Schumacher; MRE 609; People v. Chenault; MCR 6.201(A)(5); People v. Cross; People v. Elkhoja; Ineffective assistance of counsel; People v. Heft; People v. LeBlanc; People v. Grant; Sentencing; Departure from the guidelines; People v. Babcock; MCL 769.34(3)(b) & (4)(a); MCL 769.31(b); People v. Lucey; People v. Smith; People v. Anderson; Objections to the presentence investigation report (PSIR); People v. Spanke; MCR 6.425(A)(1)(b) & (E)(2); People v. Waclawski; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Henderson

e-Journal Number: 58646

Judge(s): Per Curiam – Borrello, Wilder, and Stephens

 

Although the court affirmed the defendant's convictions for AWIGBH and felony-firearm, it remanded for resentencing or for the trial court to articulate "substantial and compelling reasons" to justify a sentence departing from the statutory sentencing guidelines. The defendant failed to establish a due process violation based on his Brady claim because he did not establish that the prosecutor suppressed evidence of the victim's prior criminal record. There was no evidence that any government employee was aware of the record because the prior convictions were recorded under an alias, and the prosecutor had no duty to engage in such discovery. The defendant also failed to establish ineffective assistance of counsel because "[n]otwithstanding the admitted failure by defendant's trial counsel to request the criminal records of the prosecution's witnesses or conduct an investigation[,]" the defendant did not show that absent the error, the result would have been different. However, the court agreed with the defendant that the trial court erred by not providing a substantial and compelling reason when sentencing him to 17 months to 10 years for the AWIGBH conviction, when the recommended guidelines range was 0 to 17 months. "[T]he trial court was required to impose an intermediate sanction unless it stated on the record a substantial and compelling reason to sentence defendant to imprisonment." Although "the trial court did not abuse its discretion by determining that the psychological injury to the children constituted a substantial and compelling reason to depart," it "failed to offer justification for the extent of the departure." Thus, the court remanded the matter to the trial court for resentencing or for an explanation of why the sentence imposed for defendant's AWIGBH conviction "was more proportionate than a sentence within the guidelines recommendation would have been." Finally, the defendant did not show that the trial court inadequately responded to his challenge to the PSIR.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support defendant's convictions of assault with intent to commit murder (AWIM), felon in possession of a firearm, and felony-firearm (second offense); People v. Reese; People v. Carines; People v. Kanaan; People v. Wolfe; Elements of AWIM; People v. Hoffman;Intent; People v. Jackson; People v. McRunels; People v. Ray; Self-defense; People v. Heflin; People v. Dupree; Michigan's Self-Defense Act (MCL 780.971 et seq.); People v. Guajardo; MCL 780.972(1); Credibility; People v. Harrison; Sentencing; Claim that defendant's 23-year minimum sentence for his AWIM conviction was unconstitutionally "cruel or unusual"; People v. Hogan; "Plain error" review; People v. Kimble; MCL 769.34(10); People v. Powell; People v. Bowling; Presumption of proportionality; People v. St. John; MCL 750.227b(1); MCL 768.7a(2); Alleged "questionable reliability" of the conviction; Effect of defendant's age

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hobbs

e-Journal Number: 58656

Judge(s): Per Curiam – Borrello, Wilder, and Stephens

 

The court held that viewed in a light most favorable to the prosecution, the jury could reasonably infer from the testimony that defendant did not honestly and reasonably believe that the victim, H, was a threat to him. It also rejected his claims that his 23-year minimum sentence for his AWIM conviction was cruel or unusual. He was convicted of AWIM, felon in possession of a firearm, and felony-firearm (second offense). He was sentenced to concurrent prison terms of 23 to 40 years for the AWIM conviction and 6 to 10 years for the felon in possession conviction, to be served consecutive to a 5-year term of imprisonment for the felony-firearm conviction, and consecutive to a prior parole sentence for armed robbery. The convictions arose from the shooting assault of H. He admitted shooting H, but claimed that he acted in self-defense after H came after him with a knife. On appeal, he argued that the evidence was insufficient to support his convictions because the prosecution failed to prove that he did not act in self-defense beyond a reasonable doubt. The evidence that defendant shot H three times with a gun was sufficient to enable the jury to find beyond a reasonable doubt that he assaulted H with the intent to kill him, and to also find that he was guilty of the two weapons offenses. However, he argued that the evidence showed that he acted in self-defense, thereby legally excusing his conduct. His self-defense claim was "premised on his account of the circumstances surrounding the offense." He admitted he possessed a firearm, but claimed that he never produced it until after H came charging at him with an open knife, and that he fired the gun only to protect himself from the knife attack. "Although this testimony supported a self-defense claim, the jury was not required to credit defendant's testimony." Rather, the credibility of his account was up to the jury to decide. The court will not interfere with the fact-finder's role of determining the credibility of witnesses. Affirmed.

 

Full Text Opinion

Issues: Whether photographs from a prior case were properly admitted; MRE 404(b); People v. Starr; People v. Knox; People v. Sabin (After Remand); People v. Steele; "Relevance"; People v. Crawford; MRE 403; People v. Vasher; People v. Blackston; Admission of a journal and audio tape; People v. Goddard

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mood

e-Journal Number: 58631

Judge(s): Per Curiam – Riordan, Saad, and Talbot

 

Photographic evidence of the defendant allegedly engaging in pedophilia that was obtained from his previous child pornography conviction was properly admitted at this trial for "rape of a blood relative" to show a "plan or scheme . . . for molesting his young male relatives." The defendant claimed that the prosecutor offered "the photographs to show that he had a propensity to molest children, and that the photographs were more prejudicial than probative." However, the court disagreed, finding that this evidence showed "'something other' than defendant's character, namely, defendant's 'plan, scheme, or system' for molesting" his child relatives. The photographs were "highly relevant" and were not more prejudicial than probative. "In a surfeit of caution, the trial court ordered the photographs 'sanitized' to remove their depiction of a sexual act before they were shown to the jury. It is therefore not possible that the images had 'an undue tendency to move the [jury] to decide on an improper basis,' such as emotional distress at the perversions depicted in the photographs." Moreover, the trial court directed the jury to "limit its use of the photographs and explicitly prohibited it from using them to convict defendant simply because he is 'a bad person or that he is likely to commit crimes,' or because 'he is guilty of other bad conduct.'" MRE 404(b) was not a bar to the admission of a journal and audio tape because that rule "applies to 'evidence of other crimes, wrongs, or acts.' It does not apply to 'statement[s] of general intent,' such as defendant's audiotape and journal." The audiotape and journal entry were "'statement[s] of a party opponent,'" and were admissible because they were "highly relevant" and not more prejudicial than probative. Defendant's conviction was affirmed.

 

Full Text Opinion

Issues: Whether there was sufficient evidence to support the defendant's conviction of first-degree premeditated murder; People v. Strickland; People v. Hoffmeister; People v. DeLisle; Intent to kill; People v. Unger; People v. Anderson; People v. Mills

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Phouangphet

e-Journal Number: 58637

Judge(s): Per Curiam – M.J. Kelly, Beckering, and Shapiro

 

The court held that the prosecution presented sufficient evidence to allow a rational jury to conclude that the elements of first-degree murder were proven beyond a reasonable doubt. Defendant was convicted of first-degree premeditated murder for killing the victim by dousing her with lighter fluid and setting her on fire. On appeal, the court rejected his argument that the evidence was insufficient to support his conviction, noting that defendant made incriminating statements before and after the act, that witnesses testified he provided no aid to the victim as she was burning, that the police found fuel cans with the defendant's fingerprints on them, and that the fire expert's analysis was consistent with the victim's injuries. "This evidence, and the reasonable inferences drawn there from, was sufficient to allow the jury to conclude that the specific intent to kill and premeditation and deliberation elements of first-degree premeditated murder were proven beyond a reasonable doubt." Affirmed.

 

Full Text Opinion

Issues: "Other acts" of domestic violence; MCL 768.27b(1); Whether relevant evidence is unfairly prejudicial; MRE 403; People v. Cameron; People v. Railer; Credibility determinations; People v. Meissner; "Hearsay"; "Excited utterance" exception; MRE 803(2); Whether evidence is "cumulative"; People v. King; Sentencing; Scoring of OVs 3, 4, 10, and 12; People v. Armstrong; People v. Light; "Predatory conduct"; People v. Witherspoon; Whether resentencing was required; People v. Francisco; Whether the trial court engaged in improper judicial fact-finding during sentencing; Alleyne v. United States; People v. Herron; Personal Protection order (PPO)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Scarberry

e-Journal Number: 58640

Judge(s): Per Curiam – M.J. Kelly, Beckering, and Shapiro

 

The court held that the trial court did not abuse its discretion by admitting testimony as to a previous PPO obtained against the defendant by the victim, his ex-wife, or by admitting testimony as to her statements shortly after the incident. It also held that there were no errors in sentencing. On appeal, the court rejected his argument that the trial court erred in admitting his ex-wife's testimony that she had obtained a PPO against him approximately 9 to 10 months before the events giving rise to these charges, because "he slapped [her] and put [her] in a headlock." It noted that the testimony was relevant and assisted in assessing the ex-wife's credibility, and any prejudicial effect "did not substantially outweigh its probative value." Further, the testimony "was brief, and the trial court minimized the prejudicial effect of the evidence by instructing the jury that defendant was 'not on trial for what happened as alleged in the PPO or anything related to the PPO.'" The court also rejected his argument that the testimony of his ex-wife's brother and a police officer describing his ex-wife's statements shortly after the incident was improperly admitted, holding that "the evidence was not needlessly cumulative because it was probative of defendant's guilt, occurred close in time to the commission of the charged crimes, and was relevant to the jury's assessment of defendant's ex-wife's credibility." Finally, the court rejected his argument that the trial court erred in scoring OVs 3, 4, 10, and 12, by using inaccurate information, and by engaging in improper judicial-fact finding. It held that the trial court did not err in scoring the OVs, that he was not sentenced on the basis of inaccurate information, and that the trial court did not engage in improper judicial fact-finding. Affirmed.

 

Full Text Opinion

Issues: "Other acts" evidence; MRE 404(b)(1); People v. Knox; MRE 403; People v. Crawford; Effect of the trial court's limiting jury instruction; People v. Graves

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Seward

e-Journal Number: 58645

Judge(s): Per Curiam – K.F. Kelly, Sawyer, and Meter

 

Concluding that the challenged other acts evidence was relevant and highly probative in light of the defendant's defense, and that its probative value "was not substantially outweighed by unfair prejudice," the court held that the trial court did not abuse its discretion in admitting the evidence. Thus, the court affirmed defendant's convictions of obstructing a police officer and obstructing a police officer causing injury. His "theory was that he had fallen asleep in the grass and that, after the kick on his foot, he had simply been trying to sit up and otherwise reposition himself in order to make his knee more comfortable, because he had a preexisting knee injury. He denied having tried to put an officer in a headlock." He stated that he never tried to leave, "because of his painful knee and because he 'had been drinking.'" The prosecution offered evidence that on a prior occasion "defendant acted belligerently and with aggression" toward officers, to "show that defendant acted intentionally during the charged offenses and not as the result of a mistake or accident." The court concluded that the other acts evidence "tended to show that defendant's defiance was purposeful and not merely a matter of attempting to alleviate the pain in his knee." Further, the relevance of the evidence outweighed the danger of unfair prejudice, and "any prejudice was minimized by the trial court's instruction that the jury was to use the evidence only to consider whether it tended to show that defendant acted purposefully, and not whether defendant was a bad person who tended to commit crimes. A jury is presumed to follow its instructions."

 

Full Text Opinion

Issues: Ineffective assistance of counsel; Reference to the defendant's parole status; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; United States v. Cronic; People v. Swain; People v. DeBlauwe; Sufficient evidence of a "criminal enterprise"; People v. Martin; MCL 752.796(1); People v. Loper; "Uttering and publishing"; MCL 750.249; People v. Hawkins; Sufficient evidence of possession with intent to deliver marijuana; People v. Williams; Sentencing; Whether the trial court correctly scored OVs 9 & 12; MCL 777.39(1)(b); People v. Morson; MCL 777.42(2)(a) & (c); People v. Light; MCL 777.63; Whether defendant was entitled to resentencing; People v. Francisco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Tunstall

e-Journal Number: 58634

Judge(s): Per Curiam – M.J. Kelly, Beckering, and Shapiro

 

The court affirmed the defendant's convictions arising from a check-cashing scheme and marijuana possession but remanded for the trial court to further consider its scoring of OV 12 and to resentence him, if necessary. Even though defense counsel's "performance in mentioning defendant's status as a parolee fell below objective standards of reasonableness[,]" the defendant was unable to show that, "but for counsel's error, there [was] a reasonable probability that the outcome of the proceedings would have been different." There was "overwhelming" evidence that the defendant participated in a criminal enterprise, and there was also sufficient evidence of possession with intent to deliver marijuana. The court also held that the trial court did not err in scoring 25 points for OV 9. However, it concluded that there was merit to the defendant's claim that the trial court incorrectly scored OV 12 at 10 points based on speculation. "Although the trial court did not make definitive findings about when the other crimes it scored under OV 12 occurred, it accepted and adopted the prosecutor's argument that the crimes were 'concurrent,'" and were therefore within the mandated 24-hour period. "However, the record does not support, by a preponderance of the evidence, that [some of the] contemporaneous criminal acts 'ha[ve] not and will not result in a separate conviction.' On remand, the trial court must reconsider the scoring of OV 12 in light of this statutory requirement." Defendant's minimum sentencing guidelines range as calculated by the trial court was 99 to 320 months. "If, on remand, the trial court does not find that a preponderance of the evidence supports the scoring of OV 12 at 10 points, defendant's minimum guidelines range would be reduced to 87 to 290 months." He would be "entitled to resentencing on the basis of a scoring error if the error changes the recommended minimum sentence range under the legislative guidelines."

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's carrying a concealed weapon (CCW), felon in possession, and felony-firearm (second offense) convictions; People v. Tice; People v. Johnson; People v. Calloway; People v. Davenport; Conflicts in the evidence; People v. Perry; Credibility determinations; People v. Hardiman; Circumstantial evidence and reasonable inferences; People v. Carines; Limitations on cross-examination; People v. Bahoda; Harmless error; MCR 2.613(A); Cumulative question; People v. Gursky; Exclusion of testimony about why the police did not test the guns for DNA or fingerprint evidence; Waiver; People v. Carter; People v. Aldrich; The trial court's "broad discretion to impose reasonable limits on cross-examination"; People v. Adamski; People v. Canter

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Williams

e-Journal Number: 58633

Judge(s): Per Curiam – Borrello, Wilder, and Stephens

 

The court held that there was sufficient evidence to support the defendant's felon in possession, felony-firearm, and CCW convictions. Further, the trial court did not commit reversible error in limiting the cross-examination of a police officer. Officers N and B "both testified that they saw defendant holding a rifle, which he dropped as he walked away." They testified that he "removed a revolver that had been concealed under his shirt and coat and dropped it" on the ground also. The parties stipulated that defendant was ineligible to hold a license for the firearms because he was previously convicted of a felony. He argued that "the prosecution's theory of the case, based on the officers' testimony that they both pursued defendant, who they saw with a rifle, was simply less believable than that of the defense, based on testimony from defendant's girlfriend and neighbor, that defendant was unarmed, he only approached the group to settle the argument," and only one officer pursued him while the other stayed with the group. However, conflicts in the evidence are for the fact-finder to resolve, and "the jury was 'free to believe or disbelieve, in whole or in part, any of the evidence presented.'" The court will not "reassess credibility determinations or the inferences drawn therefrom on appeal." While defendant also derided "the lack of fingerprint evidence or a patrol car video showing that he was holding the weapons," such additional direct evidence linking him to the crime was unnecessary. "Circumstantial evidence along with the reasonable inferences drawn from that evidence can be sufficient proof of criminal liability." It was "within the jury's province to credit the officers' testimony over that of defendant's girlfriend and neighbor, with or without the benefit of video or forensic proof." The court also rejected his claim that the trial court committed reversible error by limiting the cross-examination of B about "whether he had any misgivings about turning his back on the group of men to walk after defendant." While the trial court excluded the question whether anybody in the group could have shot B in the back while the officers pursued defendant, this question was cumulative given defense counsel's next question about B's concern about what the group was doing and B's testimony that he and N separated and B believed he had a "line of sight" on both defendant and the group. Affirmed.

 

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