Criminal Law

Issues: Motion to be removed from the Sex Offender Registration Act (SORA)(MCL 28.721 et seq.); Effect of adjudication under the Holmes Youthful Trainee Act (HYTA)(MCL 762.11 et seq.); MCL 762.14(3); The interplay between the SORA and the HYTA; Doe v. Michigan Dep't of State Police; The Ex Post Facto Clauses of the U.S. & Michigan Constitutions; People v. Earl; The Michigan Constitution's prohibition on "cruel or unusual punishment"; Const. 1963, art. 1, § 16; The U.S. Constitution's prohibition on "cruel and unusual punishment"; U.S. Const. amend. VIII; People v. Benton; Whether the SORA imposes "punishment"; People v. Pennington; People v. Golba; In re Ayres; People v. Dipiazza; In re TD; The "consent exception" for certain offenders who can prove they engaged in a consensual sexual act; MCL 28.728c(3) & (14); The Legislature's intent in enacting the SORA; MCL 28.721a; "Purpose and effects"; Kennedy v. Mendoza-Martinez; Smith v. Doe; Whether the SORA imposes an affirmative disability or restraint; Doe v. Kelley (WD MI); Whether the SORA promotes the traditional aims of punishment; Rational connection to a non-punitive purpose; Whether the SORA is excessive as to its non-punitive purpose of protecting the safety and welfare of the general public.

Court: Michigan Court of Appeals (Published)

Case Name: People v. Temelkoski

e-Journal Number: 58332

Judge(s): Per Curiam – Borrello, Whitbeck, and K.F. Kelly

 

Concluding that Dipiazza was not controlling, the court held that the relevant Mendoza-Martinez factors indicated that the SORA does not impose punishment as applied to the defendant and thus, it did not violate the Ex Post Facto Clauses of the U.S. and Michigan Constitutions or constitute cruel or unusual punishment. The court reversed the trial court's order granting defendant's motion to be removed from the sex offender registry under the SORA. In 1994, defendant, then age 19, was charged with CSC II. "The charge arose from an incident where defendant kissed and groped a 12-year-old female." The facts and circumstances of the incident were disputed. He pleaded guilty to CSC II, was adjudicated under the HYTA, and sentenced to 3 years' probation. Upon successful completion of probation, the trial court dismissed the case and defendant did not have a conviction on his record. However, he was required to register as a sex offender pursuant to the SORA, which took effect after he pleaded guilty. As he pleaded guilty to a "Tier-III offense" for purposes of the SORA, and he did not qualify for any of the exceptions, defendant was required to register as a sex offender for life. He argued that the SORA as applied to him constituted cruel or unusual punishment and violated the Ex Post Facto Clauses. The threshold inquiry was whether the SORA imposes punishment. Defendant argued that Dipiazza was controlling. The court disagreed, noting that the facts of this case were distinguishable. Defendant was 19 when he committed the offense and the victim was only 12 years old. "This was not an ongoing 'Romeo and Juliet' relationship" condoned by the victim's parents. Also, "the Dipiazza Court analyzed whether the SORA constituted punishment before the Legislature amended the SORA in 2011 and added the 'consent exception'" that addressed a primary concern the Dipiazza Court had with the SORA. Since the Dipiazza Court "did not have the opportunity to consider if the 2011 amendment had any impact on whether the SORA constitutes punishment, its constitutional analysis is outdated." Noting that the "SORA has not been regarded in our history and traditions as punishment," the court concluded that "the SORA does not impose affirmative disabilities or restraints, it does not promote the traditional aims of punishment, and the SORA has a 'rational connection to a nonpunitive purpose' and is not excessive with respect to this purpose." Thus, defendant "failed to show 'by the clearest proof' that the SORA is 'so punitive either in purpose or effect' that it negates the Legislature's intent to deem it civil."

 

Full Text Opinion

Issues: Dismissal of a charge of bribing, intimidating, or interfering with a witness in a criminal case (MCL 750.122); Motion to quash a bindover; People v. Crippen; "Probable cause to believe that a crime was committed" and that the defendant committed it; People v. Cohen; Circumstantial evidence and reasonable inferences; People v. Henderson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Aoun

e-Journal Number: 58177

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

 

Concluding that there was evidence that the defendant offered a witness (S) something of value for the purposes of discouraging him from testifying in defendant's brother's (A) trial, the court held that the district court did not abuse its discretion in binding defendant over on the charge of violating MCL 750.122 and that the circuit court erred in granting his motion to quash. Thus, the court reversed the circuit court's orders granting the motion to quash the bindover and dismissing the charge, and remanded for reinstatement of the charge. S purchased real property from a man identified as A. At the time of the purchase, A "apparently represented that there were no back taxes owing on the property." However, after the sale, S learned that there existed approximately $8,000 in back taxes. "As a result of these and other events, criminal charges were brought" against A. The evidence "clearly established" that defendant offered S something of value - he offered to pay the back taxes owed on the property. The principal issue was whether there was evidence that he offered to pay the taxes to discourage S from participating in the criminal proceedings involving A. The court concluded that the prosecution presented sufficient evidence that he offered to pay the taxes to encourage S to withhold his testimony or to discourage him from attending the proceeding as a witness. S was questioned repeatedly about the statements made by defendant. He stated several times that defendant (1) offered to pay the back taxes, (2) asked that S "not go to court" and (3) indicated that he did not want his "brother to be on probation." Defendant argued that this testimony was insufficient to establish that he offered S "something of value for the purpose of discouraging him from testifying as a witness" in A's criminal case. However, the court found that the "totality of defendant's statements, particularly defendant's specific reference to his brother's criminal case, supports a reasonable inference that defendant's offer to pay the back taxes was made to discourage" S from testifying against A in the future. S specifically testified that defendant offered to pay the back taxes to discourage S from testifying further in A's case. Thus, the district court's decision to bind defendant over "did not fall outside the range of reasonable and principled outcomes." Since the bindover was warranted by the evidence, the circuit court erred in granting defendant's motion to quash.

 

Full Text Opinion

Issues: Constitutional right to present a defense; People v. Kowalski; The Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.); People v. Carruthers; Ignorance of the law or mistake of law; People v. Motor City Hosp. & Surgical Supply, Inc.; Prosecutorial misconduct; Arguing from the facts that a witness (including the defendant) is not worthy of belief; People v. Launsburry; Use of "hard language"; People v. Ullah; "Vouching"; People v. Bahoda; Comment on a witness's credibility based on the evidence; People v. Thomas; Whether the prosecutor expressed a personal belief in defendant's guilt; People v. Laidler; Eliciting evidence directly contradicting a defendant's assertion; People v. Figgures; Evidence that defendant previously threatened a witness; Good-faith efforts to admit evidence; People v. Noble; Mischaracterization of testimony during closing argument; Ineffective assistance of counsel for failure to object to alleged prosecutorial misconduct; Strickland v. Washington; People v. Pickens; Failure to raise a meritless objection; People v. Ericksen; "Other acts" evidence; MRE 404(b); People v. Mardlin; People v. VanderVliet; A proper non-character purpose; People v. Crawford; The probative value of the evidence versus the danger of unfair prejudice; People v. McGhee; People v. Fisher; People v. Albers

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Grant

e-Journal Number: 58180

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

 

The court held that the defendant was not denied his constitutional right to present a defense when the trial court properly precluded him from presenting evidence about the MMMA or medical marijuana in an effort to show that his actions should be excused. He waived any MMMA defense. He was not deprived of a fair trial by prosecutorial misconduct, and defense counsel did not provide ineffective assistance by failing to make meritless objections to the alleged misconduct. Further, the trial court did not abuse its discretion in admitting evidence that defendant was previously seen at the home near plainly visible marijuana plants. Thus, the court affirmed his convictions for the manufacture of 20 or more but less than 200 marijuana plants, and possession of marijuana. The charges arose from the 2012 execution of a search warrant at the home of defendant's girlfriend (O). The fact that he might have "acted under a mistaken belief as to the legality of the marijuana grow operation is no defense under Michigan law because 'ignorance of the law or a mistake of law is no defense to a criminal prosecution.'" The court also noted that "reference to the MMMA and medical marijuana was irrelevant given defendant's theory of defense." He did not seek to argue that he possessed and manufactured the marijuana under a mistaken belief as to its legality - he contended that he did not live at O's home, "did not assist in the marijuana grow operation, did not have access to the marijuana grow room, and did not possess the marijuana at issue." Given his theory of the case, his beliefs as to whether O was lawfully growing marijuana were legally irrelevant. The court also rejected all his prosecutorial misconduct claims except one, agreeing that the prosecutor mischaracterized a rebuttal witness's testimony. However, it concluded that the comment did not deprive him of a fair trial. "Defense counsel immediately objected to the remark, and the trial court agreed that the remark was a mischaracterization. The prosecutor then apologized twice before correcting the inaccurate statement and asserting that defendant disliked the witness for 'whatever reason.'" Thus, the jury was made fully aware of the inaccuracy. The challenged other acts evidence was in the form of a police officer's testimony about a visit to O's home in 2010. Evidence that "defendant was seen at his girlfriend's home in 2010 near plainly visible marijuana plants, that he subsequently disappeared when an officer requested to speak with him, and that he was later arrested at that home while in possession of marijuana, was probative of defendant's living situation, his knowledge of (and assistance in) the manufacture of marijuana, and his possession (actual or constructive) of marijuana found in the same home in 2012."

 

Full Text Opinion

Issues: Due process; Trial court's decision to refer to jurors by number rather than name; People v. Williams; "Anonymous jury"; People v. Hanks; MCR 2.510(A) & (C); Prosecutorial misconduct; "Plain error" review; People v. Unger (On Remand); Claim that the prosecutor insinuated during rebuttal closing argument that defendant had committed prior armed robberies; People v. Dobek; People v. Brown; People v. Kennebrew; People v. Comella; People v. Thomas; Ineffective assistance of counsel; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; Strickland v. Washington; People v. Bahoda; Sentencing; People v. Hardy; Scoring of 15 points for OV 1 & 5 points for OV 2; Effect of defendant's acquittal of the weapons possession charges; People v. Ewing; People v. McCuller

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Kerperien

e-Journal Number: 58210

Judge(s): Per Curiam – Owens, Jansen, and O'Connell

 

Defendant was not denied a fair and impartial trial by the fact that the jurors were referred to by number rather than name, or denied the effective assistance of counsel. Also, the trial court did not err in scoring the guidelines in sentencing him. The court affirmed his convictions of armed robbery and unlawful imprisonment and sentence, as a fourth-offense habitual offender, to concurrent terms of 25 to 50 years in prison. Defendant claimed that the trial court violated his due process rights by empaneling an anonymous jury, in that the jurors were referred to by number rather than name, and by failing to give an appropriate cautionary instruction explaining the anonymity. However, in this case, as in Hanks and Williams, "there was nothing to show that juror biographical information was withheld from defendant. MCR 2.510 requires the use of juror personal history questionnaires, which all parties to the action must have access to and which the attorneys must be given a reasonable opportunity to examine before being called on to challenge for cause." The trial court noted that defendant had access to the juror questionnaires in this case, and there was no reason for the court to conclude otherwise. Further, he did not show "that the use of numbers 'prevented him from conducting a meaningful voir dire or that his presumption of innocence was compromised.'" The record reflected that both attorneys conducted extensive voir dire, "and in doing so, were able to emphasize legal principles applicable to their case." Also, "no comments were made at trial to indicate to the prospective jurors that it was unusual to refer to the jurors by number rather than name, or that the numbers were of any significance." Further, the court rejected his claim that he was denied a fair trial by the prosecutor's insinuation during rebuttal closing argument that defendant had committed prior armed robberies. It concluded that when considered in context, "the statement was merely the prosecutor's reasonable explanation or interpretation of defendant's actions based on the evidence presented and made in response to defense counsel's argument that defendant's actions were not indicative of a robbery." As the challenged statement did not rise to the level of prosecutorial misconduct, "any objection by defense counsel would have been futile."

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's bench trial conviction of fourth-degree fleeing and eluding (MCL 750.479a(2)); Identity; People v. Yost; Witness credibility; People v. Kanaan; MCR 2.613(C); Ineffective assistance of counsel for failure to present defendant's actual tattoos as evidence; People v. Armstrong; People v. Trakhtenberg; People v. Seals; Matters of trial strategy; People v. Dunigan; Prejudice; Law Enforcement Information Network (LEIN); Secretary of State (SOS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Thiel

e-Journal Number: 58186

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

 

Holding that the testimony of two witnesses and a video was sufficient to identify defendant as the fleeing motorcyclist, the court rejected his claim that there was insufficient evidence of his identity. He also failed to demonstrate that defense counsel's decision not to show defendant's tattoos was sound strategy, and he was unable to establish prejudice. Thus, the court affirmed defendant's bench trial conviction of fourth-degree fleeing and eluding. Officer F testified that "streetlights illuminated the area, and he got a 'very good look' at the motorcyclist's face." F saw the motorcyclist's face "for 5 to 10 seconds, from a distance of 10 to 12 feet. The motorcyclist was not wearing a helmet, so his face was unobstructed." F identified defendant as the motorcyclist after he searched the LEIN system for defendant's name and found an image of him in the SOS database. At trial, F again identified defendant as the motorcyclist. F's identification was also supported by the testimony of M, defendant's ex-girlfriend. During the attempted traffic stop, F observed that the motorcyclist had something printed on his left arm. M testified that "defendant has several Chinese symbols tattooed on the back of his upper left arm." At the trial court's request, M "physically pointed to the location of these tattoos between the shoulder and elbow on the back of defendant's upper left arm." The trial court found that her description of the tattoos and their location on defendant corresponded with F's description of the printing he observed on the motorcyclist's left arm. At trial, a video of the chase taken from F's vehicle was admitted into evidence and played. "The trial court compared defendant's body type, profile, and jaw line, particularly the overbite, to the motorcyclist in the video, and found that defendant was the motorcyclist." While defendant argued on appeal that F's identification was not credible, the court noted that it could not interfere with the trial court's determination that F was a persuasive witness and his identification of defendant was credible. Further, while defendant and other witnesses testified that he sold the motorcycle in 2011, F positively identified him as the driver of the motorcycle he pursued on 7/16/12, the trial court was shown the video and a still photo, and it determined defendant was the motorcyclist. "As the finder of fact, the trial court was entitled to weigh the evidence and resolve all conflicts."

 

Full Text Opinion
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