Criminal Law

Issues: The trial court's questioning of witnesses; People v. Davis; MRE 614(b); People v. Conyers; People v. Daoust; Effect of the trial court's jury instructions; People v. Unger; Ineffective assistance of counsel; Presumption that defense counsel's performance constituted trial strategy; People v. Carbin; Evidence of other acts of domestic violence; MCL 768.27b; People v. Cameron; MRE 403; People v. Watkins; People v. Meissner; Evidence of the defendant's anger management issues, liquor consumption, and unemployment; MRE 401; Medical evidence documenting that the child victim had rib fractures of different ages; Prosecutorial misconduct; People v. Noble; Aiding and abetting jury instruction; People v. Bartlett; People v. Rodriguez; People v. Knapp; MCL 767.39; People v. Robinson; People v. Moore; MCL 769.26; Whether defendant was entitled to a new trial on the basis of the great weight of the evidence; People v. Lemmon

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bassett

e-Journal Number: 58630

Judge(s): Per Curiam – Hoekstra, Wilder, and Fort Hood

 

Holding that the trial court's questioning of witnesses elicited "additional relevant details," and that it properly admitted evidence that the defendant "directed physical violence toward" the victim's mother (T) in the months before the victim's (B) death, the court affirmed his first-degree felony murder, first-degree child abuse, and second-degree child abuse convictions. The record showed that the questions asked of T by the prosecution and defense counsel "left unclear many details concerning the child's home life at the time she endured her injuries, which defendant denied having inflicted." T was the only witness to testify about B's home life around the time of her death. "The trial court's more limited questioning of several other witnesses also elicited relevant details." The court added that defendant could not "establish plain error affecting his substantial rights." Even without the trial court's questions, there was "ample properly admitted evidence of defendant's guilt, including the medical testimony describing the nature" of B's injuries, and T's testimony about his physical abuse of her and his sole care for B while T was working on the days before B "began exhibiting symptoms of brain death." The court also concluded that because the "charges against defendant involved domestic violence against his daughter, his past acts of domestic violence" against T qualified under MCL 768.27b(1) as admissible for any relevant purpose, subject to exclusion under MRE 403. The evidence of his assaults of T "was relevant to his propensity to have physically assaulted" B. It also had probative value toward (1) bolstering the credibility of T's denial that she ever assaulted B, (2) substantiating that B did not suffer her injuries accidentally, and (3) proving the circumstances of T's and defendant's relationship around the time of B's fatal injury. T testified that "defendant slapped her face, pulled her hair, pushed her, and once pushed her out of a chair onto the floor." The manner in which B was injured "involved vigorous shaking. Although the method of injury and age of the victims may not have been identical, defendant placed his hands on two female members of his household." His acts of violence toward T occurred in the days, weeks, and months before B suffered her fatal injuries, and thus, "occurred in close temporal proximity." Further, "few of the unfair prejudice factors delineated in Watkins" weighed against the admissibility of the evidence.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's kidnapping and CSC I convictions; The elements of a "forcible confinement" kidnapping under MCL 750.349 at the time of the offense; People v. Wesley; People v. Adams; People v. Barker; Alternate theories of CSC I under MCL 750.520b(1)(c) & MCL 750.520b(1)(e); People v. Lockett; People v. Proveaux; Conflicts in the evidence; People v. Williams; Sentencing; Scoring of OVs 3, 11 & 12; MCL 777.33(1)(d); "Bodily injury"; People v. McDonald; MCL 777.33(3); MCL 777.41; People v. Mack; People v. Johnson; MCL 777.42; People v. Light; MCL 777.42(1)(b); MCL 777.42(a)(ii); MCL 777.42(1)(d); Whether defendant was entitled to resentencing; People v. Francisco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brown

e-Journal Number: 58636

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

 

While the court held that the victim's testimony was sufficient to support the defendant's convictions of forcible confinement kidnapping and CSC I, it concluded that the trial court erred as a matter of law in scoring 25 points for OV 11 and 10 points for OV 12. Thus, it affirmed his convictions but vacated the judgment of sentence and remanded for resentencing. The victim's testimony that "defendant accosted her on the street, pointed a gun in her face, and moved her into an alley established that (1) defendant unlawfully and forcibly confined or imprisoned her," (2) his actions were done against her will, (3) he asported her "in a manner incidental to the kidnapping to a location that presented a greater danger or threat of greater danger to the victim because of its isolated location," and (4) he "acted maliciously, willfully, and without authority[.]" Her testimony was also sufficient to establish his guilt of CSC I under both MCL 750.520b(1)(c) and (e). As to subsection (c), the victim's testimony established that "(1) defendant penetrated her, and (2) the penetration occurred under circumstances in which defendant also kidnapped the victim, a felony that directly impacted the victim by placing her in the position where defendant sexually assaulted her." As to subsection (e), her testimony also established that (1) defendant penetrated her and "(2) at the commencement of the sexual assault, defendant possessed a handgun." The court held that the trial court did not err in assessing 10 points for OV 3 because it "did not clearly err by finding that a preponderance of the evidence established that the victim suffered a bodily injury necessitating medical treatment." However, as to OV 11, the victim's testimony "substantiated only one incident of sexual intercourse, and there was no record evidence of multiple or repeated penetrations by defendant's penis into her vagina." Points may not be scored for the one penetration that formed the basis for the conviction. As the sentencing offense, CSC I could not be considered in scoring OV 12, and "kidnapping could not be considered in scoring OV 12 because it resulted in a separate conviction." The "only contemporaneous felonious act that could be scored under OV 12" was felonious assault. Thus, only 5 points could be properly assessed under OV 12. Because the scoring errors affected the appropriate guidelines range, defendant was entitled to resentencing.

 

Full Text Opinion

Issues: Jury instruction on self-defense; People v. Guajardo; People v. Dupree; The Self-Defense Act (MCL 780.971 et seq.);MCL 780.972(1) & (2); People v. Hoskins; Constitutional right to present a defense; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Cooley

e-Journal Number: 58648

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

 

Concluding that there was no evidence supporting a finding that it was necessary for defendant to use a knife to defend himself against any of the victims at the time he stabbed them, the court held that the trial court correctly ruled that a self-defense instruction was unwarranted. It also rejected his claim that he was denied his constitutional right to present a defense. Thus, the court affirmed his AWIGBH, domestic violence, and assault and battery convictions. The case arose from an altercation between defendant and W that occurred at R's home. R, W, and W's son, C, each testified that after defendant and W were separated, "defendant left the room, went into the kitchen, and then returned to attack them." C said he saw defendant grab a knife while in the kitchen. According to R, "defendant swung at her twice, cutting her fingers and temple." W said that "defendant came after her and stabbed her multiple times in the back with a knife that she described as a butcher knife." C said he "retreated to a bedroom for safety, but that defendant broke the door open, pointed a knife at him, and hit him on the right side of the head." Defendant argued that he was entitled to a self-defense instruction because there was evidence that W "initiated the physical confrontation, prevented him from leaving the home, and was under the influence of alcohol and marijuana." However, the court concluded that even accepting those facts as true, there was "an absence of evidence supporting the assertion that defendant reasonably believed his use of force was necessary to protect himself from immediate harm. Notably, all three victims testified that after the initial physical altercation" between defendant and W ended, he left the room and walked into the kitchen before returning and attacking them. Thus, even if W initiated the physical altercation as R stated, "defendant removed himself from any threat of immediate harm by leaving the room, and there was no evidence supporting the conclusion" that he was "under duress or fear of bodily harm when he returned and attacked the victims." Also, "there was no evidence that defendant was prevented from leaving the home or tried to leave after the physical altercation ended" and no evidence to support the conclusion that his use of force was necessary. There was no evidence that W "had a weapon in her possession or that she threatened defendant with great physical harm."

 

Full Text Opinion

Issues: Sentencing; Claim that the judgment of sentence incorrectly indicated that defendant was sentenced as a fourth-offense habitual offender; "Plain error" review; People v. Carines; People v. Katt; People v. Jamison; People v. Uphaus

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Curry

e-Journal Number: 58686

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

 

Holding that the statement in the judgment of sentence that defendant was a fourth-offense habitual offender was plain error, the court remanded for the ministerial task of correcting the judgment of sentence and transmitting the corrected judgment to the DOC. He was convicted of carjacking, conspiracy to commit carjacking, receiving and concealing stolen property, and felony-firearm. On appeal, he only argued that his judgment of sentence incorrectly indicated that he was sentenced as a fourth-offense habitual offender. "Where a judgment of sentence contains a mistake, remand to allow the trial court to amend the judgment is appropriate." Here, the record did not show that defendant was sentenced as an habitual offender.

 

Full Text Opinion

Issues: Search and seizure; U.S. Const. amend. IV; Const. 1963, art. 1, § 11; People v. Bolduc; Exceptions to the warrant requirement; People v. Barbarich; People v. Champion; Investigative stop; Terry v. Ohio; "Reasonable suspicion" based on the totality of the circumstances; United States v. Sokolow; People v. Oliver; Exclusionary rule; People v. Short; People v. Corr; Whether the defendant was "seized"; People v. Lewis; California v. Hodari D

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Medina

e-Journal Number: 58658

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

 

The court held that the trial court erred by suppressing evidence of the defendant's gun because no unreasonable seizure occurred, and thus the exclusionary rule did not bar the admission of evidence of the gun at trial. Defendant was charged, as a second habitual offender, with three counts of felonious assault, and three counts of assaulting, obstructing, or resisting a police officer after pointing a gun at three police officers who were attempting to interact with him. He moved to suppress evidence of the gun, claiming the police officers did not have a reasonable suspicion to stop him because it is legal to openly carry a firearm in Michigan. The trial court agreed, and granted his motion. On appeal, the court agreed with the prosecution that the trial court erred in suppressing evidence of the gun. It found that the officers "had more than an inchoate or unparticularized hunch" when they saw defendant walking down the street at night, with a gun in his right hand. "Under the totality of the circumstances, a reasonable suspicion existed for the police officers to conduct an investigatory stop. Thus, the initial stop was legal." In addition, evidence of the gun was admissible "because defendant committed an independent crime directed at police officers after the initial stop." Further, defendant was never "detained" for purposes of conducting a Terry stop and "no unreasonable seizure occurred" because the officers "never had an opportunity to detain defendant for further investigation" because as soon as they told him to drop the weapon, he pointed it at them. Finally, because defendant "did not submit to the police officers' authority and physical force was not used at that time, no seizure occurred." Reversed and remanded.

 

Full Text Opinion

Issues: Search and seizure; People v. Dillon; A traffic violation as the basis of "reasonable suspicion" justifying a traffic stop; People v. Kazmierczak; The Michigan Motor Vehicle Code (MVC); MCL 257.20; MCL 257.59a; MCL 257.634; MCL 257.647; Carrying a concealed weapon (CCW)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Salters

e-Journal Number: 58651

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

 

Holding that defendant committed at least two civil infractions, and on this basis, the police officer who witnessed him committing the traffic violations had reasonable suspicion to perform a traffic stop, the court affirmed the trial court's order denying defendant's motion to suppress evidence. He was convicted of felony-firearm, felon in possession, CCW, and possession with intent to deliver marijuana. On appeal, he argued that the trial court erred in denying his motion to suppress the evidence found during the vehicle search. The court disagreed, concluding that he "committed a traffic violation when he drove on the shoulder of the roadway and, therefore, the officer had reasonable suspicion to justify the traffic stop." According to the MVC, "a highway or street spans the entire width between the boundary lines." The shoulder is "the portion of the highway 'contiguous to the roadway generally extending the contour of the roadway, not designed for vehicular travel but maintained for the temporary accommodation of disabled or stopped vehicles otherwise permitted on the roadway.'" Defendant "committed a traffic violation pursuant to MCL 257.634, which designates the proper positioning of a driver's vehicle in multi-lane roadways. MCL 257.634 states that drivers must drive in the lanes of the roadway. Pursuant to the definitions of highway and shoulder," the shoulder "is not a part of the roadway and therefore is not a part of the lane." He "committed a traffic violation pursuant to MCL 257.634 because he did not remain in the lane of the roadway before making his turn. Defendant also violated MCL 257.647, which regulates vehicle positions for turning. Pursuant to MCL 257.647(1)(d), 'both the approach for a left turn and a left turn shall be made as close as practicable to the left-hand curb or edge of the roadway.'" His approach for the left-hand turn "was not made 'as close as practicable to the . . . edge of the roadway.' It was instead made on the shoulder, beyond the boundaries of the roadway."

 

Full Text Opinion

Issues: Sufficiency of the evidence to support defendant's conviction of embezzlement; People v. Hawkins; People v. Johnson; People v. Kanaan; People v. Harrison; People v. Lueth; MCL 750.174(1); Admission of the prosecution's exhibits of bank statements; People v. McDaniel; People v. Waclawski; People v. Whittaker; "Hearsay" defined; MRE 801(c) "Statement" defined; MRE 801(a); MRE 802; MRE 803(6); The "business records exception"; People v. Fackelman; People v. Vargo; United States v. Johnson (10th Cir.); United States v. Pelullo (3rd Cir.); Harmless error; People v. Hill; Motion for a new trial on the ground that defendant's conviction was against the great weight of the evidence; People v. Unger

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. White

e-Journal Number: 58607

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

 

Holding that there were no errors warranting relief, the court affirmed defendant's conviction of embezzling between $50,000 and $100,000. Defendant, a former City Clerk, challenged the sufficiency of the evidence as to whether she dishonestly disposed of or converted revenue from the city's beach and boat launch to her own use, "or secreted the money and whether at the time of any conversion she intended to defraud or cheat the city." The court held that there was "adequate circumstantial evidence, and reasonable inferences arising from the evidence, to support these two elements." Defendant's position with the city "afforded her the opportunity to take the money; specifically, she reconciled receipts and ticket stubs with cash and prepared a spreadsheet showing revenue. She prepared deposit slips reflecting, and deposited, less money than collected. The evidence confirmed that the shortages occurred" when she was responsible for the money. From the evidence, she "had to have been aware of the fact that cash went missing somewhere in the process because she reconciled the receipts and deposited less money than collected; yet, she never reported large sums of money missing." She also instructed other city employees not to handle the revenue from the beach and boat launch in her absence, and when the system for reconciling the revenue changed, and she was "no longer involved with the funds, the amount of revenue for the parks increased significantly. "The court noted that none of this evidence relied on the bank statements. Viewing the evidence in the light most favorable to the prosecution, a jury could find that the prosecution proved, beyond a reasonable doubt, that defendant "dishonestly disposed of or converted revenue from the beach and boat launch to her own use, and that at the time of conversion she intended to defraud or cheat the city."

 

Full Text Opinion

Issues: Whether the evidence was sufficient to prove that defendant was in "constructive possession" of the drugs found in his vehicle and guilty of three counts of possession of a controlled substance/analogue (MCL 333.7403(2)(b)(ii)); People v. Ericksen; People v. Kanaan; People v. Chapo; People v. Gould; People v. Wolfe; People v. Cohen

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wilcox

e-Journal Number: 58677

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

 

Viewed in the light most favorable to the prosecution, and deferring to the jury's credibility determinations, the court held that the evidence was sufficient to prove that defendant was in constructive possession of the drugs found in his vehicle, and thus was guilty of three counts of possession of a controlled substance/analogue. He argued that the evidence presented at trial did not show that he controlled or had the right to control the drugs found in the car and, thus, did not support a finding of possession beyond a reasonable doubt. He claimed that the totality of the circumstances did not show a nexus between himself and the controlled substances sufficient for a reasonable trier of fact to find constructive possession. He argued that the evidence at trial pointed more to R, the driver, as being in possession of the drugs. Defendant admitted that Officer M's testimony may have shown that he briefly touched and hid the pill bottle under the passenger seat of the car, but insisted that this did not rise to the level of dominion or control over the drugs. The evidence showed that the tin and the pill bottle were found under defendant's seat. Further, M saw him leaning down toward the floorboard as M pulled the vehicle over. Defendant admitted hiding the pill bottle, which he believed contained drugs, in a chip bag on the passenger floorboard. Testimony from the forensic scientist who analyzed the drugs established that the pill bottle contained "hydrocodone, amphetamine, and clonazepam pills. The straw from the tin tested positive for amphetamine." R testified that neither the tin nor the pill bottle had been in the car when he had used it the day before the trip at issue. Affirmed.

 

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