Criminal Law

Issues: Sufficiency of the evidence to support the defendant's convictions of second-degree home invasion & larceny in a building; People v. Meissner; People v. Reese; Whether the prosecution established that the house was a "dwelling" or that the occupant had a legal right to the home; Prosecutorial misconduct; Misstating the evidence in closing argument and rebuttal; "Plain error"; People v. Unger; Ineffective assistance of counsel; People v. Brown; People v. Trakhtenberg; Failure to attend court proceedings until 19 days before trial; Failure to object to an amendment to the felony information (and allegedly only informing him at trial of the amendment); Failure to investigate and failure to raise the issue of the occupant's ownership of the house; People v. McGhee; Failure to object to defendant's convictions for both second-degree home invasion and larceny in a building; Failure to raise a futile objection; People v. Ericksen; Failure to object to an officer's testimony; People v. Kevorkian; Double jeopardy; People v. Gibbs; Jury instructions; Preliminary examination (PE)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Davies

e-Journal Number: 57886

Judge(s): Per Curiam – Murphy, Whitbeck, and Talbot

 

The court held, among other things, that there was sufficient evidence to support the defendant-Davies' convictions of second-degree home invasion and larceny in a building. On appeal, he argued that "the evidence was insufficient to support his convictions because the prosecution did not establish that the house was a dwelling or that the occupant had a legal right to the home." As to his assertion that the prosecution did not establish that the house was a dwelling, "a dwelling is defined by law as 'a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.'" Although he argued on appeal that "the house had no utilities and the occupant no longer lived in the home," the occupant testified that "she lived in the home, but had been gone for four or five days." The evidence also established that the occupant had "possessions in the home, including furniture, an exercise bike, and a television." Thus, viewing the evidence in a light most favorable to the prosecution, "a trier of fact could find that it was established beyond a reasonable doubt that the house was a dwelling." Davies also contended that the occupant's testimony at the PE "established that she was a squatter with no rights to the home." He asserted that "because the occupant did not own the home or have a legal right to the home, he did not enter 'without permission.'" However, the court noted that "without permission" is defined as "without having obtained permission to enter from the owner or lessee of the dwelling or from any other person lawfully in possession or control of the dwelling." The occupant testified at trial that "she did not give Davies permission to enter the home and that she lived in the home and was not 'losing' the house." While the occupant's testimony from the PE as to her legal right to the house "may have called into question her legal right to control the home, viewing the trial evidence in a light most favorable to the prosecution, a trier of fact could find that it was established beyond a reasonable doubt that the occupant was lawfully in possession of the house and Davies entered without permission." Affirmed.

 

Full Text Opinion

Issues: Whether the victim's statements while hospitalized were "dying declarations"; People v. Dobek; People v. Stamper; People v. Gursky; Admission of defendant's second custodial statement to police; Whether the challenged statement was made voluntarily; People v. Akins; People v. Walker (On Rehearing)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Flynn

e-Journal Number: 57889

Judge(s): Per Curiam – Murphy, Whitbeck, and Talbot

 

The court held that the trial court did not abuse its discretion when it admitted the victim's (R) statements as dying declarations. Moreover, because other evidence was presented to support that defendant-Flynn was the shooter, the dying declarations made by R were cumulative, and any error in their admission was harmless. It also held that under the totality of the circumstances, the defendant's second custodial statement was made voluntarily, and its admission by the trial court did not warrant relief. Thus, it affirmed her convictions of second-degree murder and felony-firearm. Flynn was convicted of the shooting death of R. R died of a gunshot wound to the face. The shooting occurred in the early morning hours, at a home that R shared with Flynn, his wife C, and C's three children (two of whom R fathered. R and Flynn had an intimate relationship). On appeal, Flynn argued that the trial court erred when it admitted as dying declarations certain statements made by R while he was hospitalized. R was deceased at the time of trial and thus was unavailable. Also, close in time to when the statements in question were made, R told his stepdaughter that "he just got shot" and "he didn't think he was gonna make it." He also said, "I love you, take care of your sister, I gotta call my momma, bye." Thus, the evidence supported that the statements were made while R believed his "death was imminent." Finally, the statements concerned the cause or circumstances of his impending death. Just before making the challenged statements, he allegedly glared at Flynn, who was in his hospital room, and stated that it was "over; you know it's over," and to his wife he stated "[B]aby, I didn't do nothing, I swear I didn't do nothing." The court finds that under the circumstances of this case, the statements, while purportedly related to the fact that the relationship between R and Flynn was "over," also implicated Flynn as the shooter and supported that R was not the aggressor.

 

Full Text Opinion

Issues: Exclusion of evidence that a witness disliked the defendant and had a motive to frame him; People v. King; MRE 402; MRE 401; People v. Yost; Right to present a defense; Abandonment of issue; Prosecutorial misconduct; Elicitation of testimony as to defendant's sale and use of drugs at the home of the rebuttal witness; "Plain error"; People v. Carines; MRE 608(b); People v. Spanke; People v. Figgures; "Good-faith effort to admit evidence"; People v. Dobek

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hendrix

e-Journal Number: 57883

Judge(s): Per Curiam – M.J. Kelly, Sawyer, and Hoekstra

 

Holding that the trial court did not abuse its discretion in precluding testimony about encounters between defendant-Hendrix and prosecution witness-P that occurred after the drug buy that led to the charges in this case, the court rejected defendant's claim that the trial court improperly excluded evidence that P disliked him and thus, had a motive to frame him. It affirmed his conviction of possession with intent to deliver a controlled substance less than 50 grams, second offense. The conviction arose from a controlled drug purchase. At trial, defense counsel tried to establish that P disliked Hendrix because Hendrix had dated C (P's girlfriend) for a few weeks in 2010. He maintained that P wanted revenge and conspired with C to frame Hendrix in 4/12. Although the trial court allowed defense counsel some leeway in making this argument, it prevented him from eliciting testimony as to alleged encounters between Hendrix and P after 4/12, because that evidence did not establish that P had a motive to frame Hendrix before the purchase. On cross-examination, P stated that he had not had any confrontations with Hendrix before the controlled buy. He had "encounters with Hendrix since Hendrix's arrest because Hendrix was threatening him." He also stated that C's prior relationship with Hendrix did not "matter at this point" (by the time of trial, P and C had married) and, in any event, C told him that "she did not really date Hendrix - she just 'used him for money to get out of jail.'" There was also testimony that P and C approached the police because they were hoping to get the officers' help with P's own criminal charges and they mentioned Hendrix because he was the only person that P knew who had drugs to sell. "The trial court plainly allowed the defense to present evidence" that C and P "had a motive to frame Hendrix." There was testimony that C had had problems with drugs, that P had had problems with the law, that C had had a romantic relationship with Hendrix and had used him in the past and was apparently setting him up for arrest in order to help P with his own criminal trouble, and that P had actually received some consideration for his aid in the officers' drug investigation. Thus, the jury was well aware that C and P "were not the most credible witnesses." The trial court only limited defense counsel when he tried to elicit testimony that Hendrix had confrontations with P "after the controlled drug purchase" in an effort to prove that P "specifically wanted revenge against Hendrix prior to the controlled drug purchase. Because evidence of acrimonious encounters after the purchase - and after Hendrix's arrest - had little to no relevance" to P's state of mind or motives before the drug purchase, the court could not conclude that the trial court abused its discretion.

 

Full Text Opinion

Issues: Sentencing; Upward departure from the guidelines; MCL 769.34(3); "Substantial and compelling" reasons; People v. Smith; "Objective and verifiable"; People v. Anderson; Scoring of OVs 5 & 19; MCL 777.35(a); MCL 777.49(c); People v. Lockridge; People v. Hershey (On Remand); Whether the departure was proportionate to the defendant and the gravity of the offense; Whether the trial court punished defendant for exercising his right to trial; People v. Brown; People v. Godbold

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Milner

e-Journal Number: 57922

Judge(s): Per Curiam – Riordan, Donofrio, and Boonstra

 

Rejecting the defendant's claim that the guidelines adequately accounted for his five-year-old child's (JM) psychological injury and defendant's interference with the administration of justice, the court held that the trial court did not err in concluding that "the unique circumstances at hand supported an upward departure" from the guidelines. He was convicted of second-degree murder for the death of B, JM's mother. Defendant, B, and JM shared a bedroom in the same home. Defendant's brother (D) lived upstairs in the house. The recommended guidelines range was 162 to 270 months. The trial court sentenced defendant to 35 to 70 years. It assessed 15 points for OV 5 and 10 points for OV 19. "In departing from the sentencing guidelines, the trial court stated that the guidelines did not adequately account for JM's psychological injuries and defendant's fabrications to the police." Defendant beat B to death in front of JM. He punched B's face and head while she was lying down on her bed with JM. B "told defendant to stop, but he admittedly proceeded to hit her with a fan and the bedroom door." Defendant, JM, and D testified that while B "was motionless and on the floor, defendant left JM by himself in the room" with B, "left the home, and went to meet another woman. When the police arrived, JM was on the bed and leaning against" B's shoulder. B's eyes and mouth were open. The court concluded that similar to Lockridge, "the brutal beating and murder" of B, "the fact that the crime occurred in plain view of JM, and the fact that defendant left JM with" B's body, were "objective and verifiable factors that support the trial court's conclusion that OV 5" was given inadequate weight, and that the unique circumstances of the case supported an upward departure. As to OV 19, "the trial court referenced defendant's flight, his fabrications to the police," his claim that both D and JM were lying, "and his immediate attempt, following his crime, to establish an alibi" with the other woman. The court noted that he "attempted to perpetrate multiple deceptions on police, including the establishment of a false alibi" and trying to implicate D, "each of which individually would have supported a score of 10 points for OV 19." Thus, the trial court "did not err in holding that OV 19 was given inadequate weight" in this case. For many of the same reasons, the court also held that "the trial court's departure was proportionate to defendant and the gravity of the offense." It also rejected his claim that the trial court punished him for exercising his right to trial. Affirmed.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's convictions of possession with intent to deliver a controlled substance less than 50 grams and possession of marijuana; People v. Wolfe; People v. McGhee; "Constructive possession"; People v. Cohen; People v. Ray; People v. Hardiman; "Other acts" evidence that defendant had previously been involved with drugs; People v. Asevedo; People v. Waclawski; "Plain error"; People v. Carines; MRE 404(b)(1); MRE 402 & 403; Expert witnesses on illegal drug sales and defendant's knowledge & intent; People v. Kowalski; People v. Petri; Prosecutorial misconduct; Claim that the prosecution elicited irrelevant and prejudicial information; People v. Sholl; People v. Dobek; People v. Unger; Ineffective assistance of counsel for failure to make several objections at trial; People v. Heft; People v. Hoag

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Scott

e-Journal Number: 57880

Judge(s): Per Curiam – M.J. Kelly, Sawyer, and Hoekstra

 

The court held, among other things, that there was sufficient evidence to support the defendant's convictions of possession with intent to deliver a controlled substance less than 50 grams and possession of marijuana. He contended that there was insufficient evidence that he possessed the narcotics found in the car he was driving or that he had the intent to deliver the cocaine. There was circumstantial evidence that he both knew about and exercised control over the drugs found in the car. There was testimony that he sold cocaine to an informant shortly before he was stopped. There was also evidence that officers found more than 5 grams of crack cocaine in the same car shortly after the informant made the purchase. From this evidence, a reasonable jury could conclude that defendant sold a portion of the cocaine hidden in the car to the informant - that was, a reasonable jury could infer that he both knew about and had control over the cocaine in the car. He also admitted to "smoking marijuana in the car earlier that day and made statements that suggested he knew the types, amounts, and packaging of the drugs." Further, the evidence that the car did not belong to him did not preclude the jury from finding that he knowingly possessed the drugs. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence from which a reasonable jury could find that he knowingly possessed the drugs at issue. The same evidence supported an inference that he possessed the cocaine with the intent to deliver it. There was evidence that he "possessed a substantial amount of cocaine that would not normally be indicative of personal use." He also did "not have the paraphernalia normally associated with personal use." Moreover, the evidence showed that he "had recently sold cocaine and possessed cash that was consistent with prior sales." Viewing this evidence in the light most favorable to the prosecution, the evidence was sufficient to support a finding that he possessed the cocaine with the intent to deliver. Affirmed.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's conviction of second-degree murder; MCL 750.317; People v. Nowack; "Identity"; People v. Yost; People v. Kern; Circumstantial evidence; People v. Carines; People v. Allen; People v. Cutchall; Weight of the evidence; People v. Eisen; Whether the prosecution must negate every theory of innocence

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 57882

Judge(s): Per Curiam - Riordan, Donofrio, and Boonstra

 

The court held that there was sufficient evidence to support the defendant's conviction of second-degree murder. He was convicted for stabbing and killing the victim, and was sentenced, as a fourth-time habitual offender, to 50 to 75 years' imprisonment. On appeal, the court rejected his argument that there was insufficient evidence to establish his identity as the murderer, noting that defendant knew the victim, who had a relationship with his friend and roommate, and that defendant's DNA was found under her fingernails. "Given these facts, it was entirely reasonable for the jury to believe that instead of some unknown assailant with matching DNA murdering the victim and dumping her body behind the house where defendant was living, it was defendant who had murdered her." It also rejected his argument that the DNA results established the perpetrator more likely was Hispanic as opposed to African American, noting that even if the evidence established that "another race's population had a higher rate of inclusion, such a fact merely goes to the weight of the evidence, which the jury is free to consider." Finally, it rejected his argument that increased verbal aggressiveness after the victim's body was found was due to the crack cocaine problem of a woman who had been living with him at the residence instead of a reaction to killing the victim, noting that "it was up to the jury to draw the inferences from the evidence, and the prosecutor was not required to negate every theory of innocence." Affirmed.

 

Full Text Opinion

Issues: Whether the defendant's convictions of common-law obstruction of justice and filing a false police report under MCL 750.411a(1)(b) violated the constitutional prohibition against double jeopardy; People v. Gibbs; Blockburger v. United States; People v. Nutt; People v. Ford; People v. Lugo; People v. Lay; Sentencing; Claim that the trial judge unconstitutionally increased defendant's sentence by engaging in judicial fact-finding; People v. Herron

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Uyeda

e-Journal Number: 57916

Judge(s): Per Curiam – Saad, Owens, and K.F. Kelly

 

Holding that the offenses of obstruction of justice and filing a false police report were distinct, the court rejected the defendant's claim that her convictions for both crimes violated the prohibition against double jeopardy as multiple punishments for the same offense. Thus, it affirmed her convictions. In a 911 call after a visit by her ex-husband, "defendant hysterically claimed that he beat her, shoved her to the ground, and attempted to choke her with a headphone cord." The police arrested him, and he told "two officers that no such altercation had occurred - and that he merely dropped off the release document at defendant's boyfriend's house and left." Officers spoke with defendant at the hospital "about inconsistencies in her story. Defendant then told an officer that her ex-husband was innocent, and that she had actually tripped outside her home and hit her head. She memorialized this version of events in a signed statement." After the prosecution charged defendant with obstruction of justice under MCL 750.505 and three counts of filing a false police report under MCL 750.411a(1)(b), she changed her story again at trial, testifying that her ex-husband actually assaulted her, but she erroneously recanted at the hospital because she was nervous and confused. The court noted that each offense at issue "'requires proof of a fact that the other does not.'" To obstruct justice at common law, "a defendant must commit an act that interferes 'with the orderly administration of justice,' and specifically intend to interfere with the orderly administration of justice when he commits the act." To violate MCL 750.411a(1)(b), "a defendant must 'intentionally make[] a false report of the commission of a crime,' 'know[] the report is false,' and the falsely reported crime must be a felony." Further, as the prosecution noted, "a defendant does not need specific intent to violate MCL 750.411a(1)(b) - all that is required is the general intent to make a false report, not a specific intent to achieve a particular result." In a footnote, the court also rejected defendant's claim that the trial judge unconstitutionally increased her sentence by engaging in judicial fact-finding, noting that she acknowledged the court has "flatly rejected" the theory she used to challenge the constitutionality of her sentence.

 

Full Text Opinion

Issues: Whether the district court should have applied the "recidivist sentencing enhancement" to the defendant's sentence; 18 USC § 2252(b)(2); Whether the enhancement's reference to "involving a minor or ward" referred to all types of state crimes listed in the enhancement; Taylor v. United States; United States v. Lockhart (2nd Cir.); United States v. Spence (4th Cir.); United States v. Hubbard (5th Cir.); United States v. Rezin (7th Cir.); Statutory construction; United States v. Felts; United States v. Gardner; United States v. Parrett; The  grammatical "rule of the last antecedent"; Barnhart v. Thomas

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Mateen

e-Journal Number: 57943

Judge(s): En banc Per Curiam – Cole, Boggs, Batchelder, Moore, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, Kethledge, White, Stranch, and Donald; Concurrence – Clay

 

Holding that a prior state conviction triggers the sentencing enhancement under § 2252(b)(2) "if the offender was previously convicted of a state crime relating to (1) aggravated sexual abuse, (2) sexual abuse, or (3) abusive sexual conduct involving a minor or ward," the court concluded that the district court "misinterpreted the statute as triggering an enhancement only if the prior state conviction involved a minor victim[.]" Defendant-Mateen was convicted of possessing child pornography under § 2252(a)(4)(B). He was previously convicted in Ohio state court of "Gross Sexual Imposition." The district court concluded that Mateen's prior state conviction did not trigger § 2252(b)(2) and sentenced him to the statutory maximum 10-year term of imprisonment. At issue was "the sentencing-enhancement provision, which provides that an individual with a prior conviction 'under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward' will be subject to the enhancement." The court had to determine "whether the phrase 'involving a minor or ward' modifies only its direct antecedent, 'abusive sexual conduct,' or whether it modifies all three listed categories of conduct: 'aggravated sexual abuse,' 'sexual abuse,' and 'abusive sexual conduct.'" The court concluded that "the limiting phrase modifies only 'abusive sexual conduct' and, accordingly, only state crimes relating to abusive sexual conduct need involve a minor or ward in order to trigger enhancement under § 2252(b)(2)." The court found "no logical reason that Congress would have identified federal offenses not involving minor victims as qualifying predicates while excluding state offenses that criminalize identical conduct." Also, "the three categories of state predicate offenses parallel three federal crimes identified in the statute as predicate offenses." Because "[n]o court has yet considered whether Mateen's fourth-degree felony Gross Sexual Imposition conviction 'relat[es] to aggravated sexual abuse [or] sexual abuse' involving either an adult or a minor victim[,]" the court concluded that it was "appropriate to remand this case to the district court with instructions to determine whether Mateen's prior conviction relates to 'aggravated sexual abuse,' 'sexual abuse,' or 'abusive sexual conduct involving a minor or ward.'" Thus, the court vacated and remanded to the district court for resentencing and reconsideration of whether Mateen's Gross Sexual Imposition conviction triggers the statutory sentencing enhancement, as properly construed.

 

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