Criminal Law

Issues: Sentencing; 21-day notice requirement where the prosecution intends to seek a sentence enhancement; MCL 769.13; People v. Shelton; People v. Morales; People v. Bollinger; People v. Williams; Ineffective assistance of counsel; People v. Frazier; People v. Eloby (After Remand); Failure to make a futile objection; People v. Goodin; Impeachment of a witness with a prior inconsistent statement; People v. Patton; Matters of trial strategy; People v. McFadden; People v. Rockey; People v. Trakhtenberg; People v. Dalessandro; Failure to establish the factual predicate for a claim; People v. Hoag; Assault with intent to do great bodily harm less than murder (AWIGBH); Carrying a concealed weapon (CCW)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Davis

e-Journal Number: 58422

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

The court held that the trial court did not err by sentencing the defendant as a second habitual offender, and that his trial counsel was not ineffective for failing to object that the prosecution's notice was not timely or for failing to attempt to impeach the victim. He was convicted of AWIGBH, CCW, felon in possession, and felony-firearm for shooting the victim. The trial court rejected his self-defense argument. It sentenced him, as a second habitual offender, to concurrent prison terms of 3½ to 15 years for the AWIGBH conviction, 1 to 7 years each for the CCW and felon in possession convictions, and a consecutive 2-year term of imprisonment for the felony-firearm conviction. On appeal, the court rejected his argument that he should not have been sentenced as a second habitual offender because notice of the prosecutor's intent to seek to enhance his sentence was not timely filed. It held that, "[b]ecause the habitual offender notice had been included in the charging documents from the inception of the case and defendant does not deny that he actually received the notice before the March 6, 2013 deadline, the trial court did not err by sentencing defendant as an habitual offender." It further held that his trial counsel was not ineffective for failing to object that the notice was not timely filed because the notice was proper and any objection to it would have been futile. The court also rejected his argument in his Standard 4 brief that he was entitled to a new trial because defense counsel was ineffective for failing to impeach the victim with his preliminary examination testimony. It held that defendant "has not identified any specific testimony that [the victim] gave at the preliminary examination that was contrary to his trial testimony such that it could have been used for impeachment." In addition, defendant "has not shown a reasonable probability that the outcome of the trial would likely have been different had [the victim] been impeached in the manner stated." Therefore, "defendant has failed to establish that counsel was ineffective." Affirmed.

 

Full Text Opinion

Issues: Whether the district court abused its discretion by binding defendant over for trial; People v. Henderson; People v. Hotrum; People v. Smith; People v. Cohen; People v. Baugh; Embezzlement by a public officer or his or her servant or agent; MCL 750.175; Whether defendant either held public office or was the agent or servant of such officer; People v. Jones; Whether the trial court properly quashed the information under MCR 6.112(G)(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Handzlik

e-Journal Number: 58424

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

The court held that the district court abused its discretion by binding defendant over for trial because the prosecution failed to support the first element of the crime at the preliminary examination. Thus, it affirmed the trial court's order granting defendant's motion to quash the information and dismissing two counts of embezzlement by a public officer of over $50. At issue was the first element of the offense (the defendant either held public office or was the agent or servant of such officer). No evidence was presented at the preliminary examination to show that defendant was the agent or servant of a public officer. The prosecution did not even suggest that defendant was an agent or servant of a public officer until defendant moved to quash the information. As to the prosecution's claim that the trial court erred in quashing the information under MCR 6.112(G)(2), it conceded that the information erroneously suggested that defendant was a public officer, not a servant or agent, but argued that she failed to show that she was prejudiced by the error in the information. The prosecution's argument was misplaced, however, because MCR 6.112(G)(2) governs dismissal of an information for "a variance between the information and proof . . . ." Here, there was not a variance in proof between the information and the proofs; rather, there was an absence of proof.

 

Full Text Opinion

Issues: Due process; Identity; People v. Perry; People v. Lemmon; People v. Dunigan; Sentencing; Claim that defendant's sentence of 40 to 80 years' imprisonment was "cruel and unusual" because it violated the principle of proportionality; People v. Carines; People v. Powell; People v. Babcock; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Johnson

e-Journal Number: 58433

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

Viewing the evidence in the light most favorable to the prosecution, the court held that the evidence was sufficient to determine that a rational trier of fact could find the element of identity was proven beyond a reasonable doubt. Thus, it held that defendant was not denied his right to due process. Also, he did not show how his sentence, which was within the guidelines range, was not proportionate, and failed to overcome the presumption of proportionality. Thus, he did not establish a constitutional violation. The court affirmed his convictions of second-degree murder, AWIGBH, felon in possession and felony-firearm, and sentences. The surviving victim positively identified defendant. The evidence showed that the shooter stood directly over the surviving victim when he aimed the gun at his head and shot him a second time, and the victim had a clear look at the shooter's face. While the record indicated some inconsistencies in defendant's and the other witnesses' statements, there was also evidence that the witnesses "were panicky, angry, sorrowful, and in severe emotional states when some of the initial statements were given immediately after the shooting and that defendant and his family had threatened several of the witnesses, including the surviving victim." The jury is "free to believe or disbelieve, in whole or in part, any of the evidence." It was the jury's job to assess the credibility of the witnesses, and "to determine the weight to be accorded any inferences." They had sufficient evidence to conclude that "any inconsistencies in the testimony were the result of the witnesses either being threatened or being in an emotional state that made it difficult to give accurate recollections." The "credibility of identification testimony is a question for the trier of fact that we do not resolve anew."

 

Full Text Opinion

Issues: Ineffective assistance of counsel; Strickland v. Washington; People v. Trakhtenberg; People v. Dendel; A criminal defendant's right to the effective assistance of counsel during the plea bargaining process; People v. Douglas; Lafler v. Cooper; Presumption that counsel is effective; People v. Solmonson; Decision to plead guilty; People v. Corteway; People v. Fonville

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Kreiner

e-Journal Number: 58397

Judge(s): Per Curiam – Saad, O’Connell, and Murray

 

The court held that the trial court did not err by finding the defendant's trial counsel was ineffective in the plea bargaining process. She was convicted of CSC I and sentenced to 25 to 40 years' imprisonment. The trial court denied her motion for a new trial but ordered the prosecution to reoffer a rejected plea offer after finding that defense counsel was ineffective as to the plea process. The prosecution appealed, arguing that "the trial court held defense counsel was ineffective because [he] had a conflict of interest arising from his representation of another client" charged with CSC IV. The court disagreed, noting that the trial court found that "defense counsel minimized the ramifications of rejecting the plea offer, overstated defendant's chances at trial, and failed to discuss the impact of defendant's inculpatory statements." The court held that the trial court's findings were not clearly erroneous. "Defendant testified that defense counsel (1) discussed the plea offer with her once, for about two minutes, before she rejected it on the record, (2) advised her to reject the plea and told her that there was no point in taking it if she did not commit the crime, and (3) that defense counsel did not really go through the pros and con of accepting the plea, and that he told her that the prosecution had 'nothing,' that she was innocent, that she would not be in this position if not for [the officer who interviewed defendant], and that '[w]e've got these people.'" Thus, the facts permitted "a finding that defense counsel did not explain 'the matter to the extent reasonably necessary to permit the client to make an informed decision.'" The court also rejected the prosecution's argument that, even if defense counsel's performance was deficient, defendant could not establish that she was prejudiced by defense counsel's error. The trial court "stated that it believed the rejected offer 'would have caught this within just guidelines' and noted that it did not know why the plea was not pursued. Thus, there is a reasonable probability that the trial court would have accepted the plea according to the terms of the plea offer." Finally, the court held that "the trial court did not clearly err in finding that, but for counsel's error, there is a reasonable probability that defendant would have accepted the plea bargain." The trial court "need only find that there was a 'reasonable probability' that defendant would have accepted the plea, so defendant's equivocation on the issue does not foreclose a conclusion like the trial court made here. Although there was evidence supporting the opposite conclusion, the [trial] court carefully evaluated the appropriate factors and evidence supported its findings." Affirmed.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's accosting a minor conviction; MCL 750.145a; Defining "immoral act"; Use of a dictionary to define terms undefined by statute; People v. Haynes; Constitutional right to present a defense; People v. Adamski; People v. Hayes; Exclusion of evidence under the rape-shield statute (MCL 750.520j); People v. Hackett; People v. Williams; Prosecutorial misconduct; People v. Watson; People v. Dalessandro; People v. Fyda; People v. Dobek; "Plain error" review; People v. Carines; Effect of the jury instructions; People v. Long; People v. Graves; Ineffective assistance of counsel; People v. Pickens; People v. Gioglio (On Remand); Matters of trial strategy; People v. Rockey; People v. Heft;Failure to object to remarks that were not clearly improper; People v. Armstrong; Allegedly perjured testimony; People v. Gratsch; People v. Lester; Entrapment claim; People v. Vansickle; Claim that defendant's statutory right to a polygraph test was violated; MCL 776.21(5); People v. Rogers; People v. Jones; Waiver by failing to request a test before conviction; People v. Phillips; The prosecutor's charging discretion; People v. Venticinque; People v. Nichols; People v. Barksdale; The bindover decision; People v. Oliver; People v. Wilson; The victim's competency to testify; Presumption that all witnesses are competent to testify; MRE 601; Rebutting the presumption; People v. Coddington

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McGlashen

e-Journal Number: 58405

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

Holding, among other things, that the evidence was sufficient to establish beyond a reasonable doubt that the defendant accosted the 14-year-old victim (KH) for immoral purposes, and that he was not denied his constitutional right to present a defense by exclusion of evidence under the rape-shield statute, the court affirmed his conviction under MCL 750.145a. "It was undisputed that KH was 14 years old when the events occurred. Whether or not defendant knew her actual age is irrelevant under the statute." The court noted that KH testified that she told defendant she was only 14 years old. She also testified that he "pulled her on top of him, placed his hands underneath her underwear, touching both her buttocks and vagina, and kissed her on her mouth, cheek, and neck." He told her, among other things, that she "needed a real man[.]" The court found that from this evidence, "the jury could reasonably conclude that defendant engaged in acts with the 14-year-old victim was that went 'beyond customary or proper bounds or limits.'" While defendant argued that "KH was not credible and that there was nothing to corroborate her testimony," such challenges relate to the weight rather than the sufficiency of the evidence. "These same challenges were presented to the jury during trial. This Court will not interfere with the jury's role of determining issues of weight and credibility." As to defendant's right to present a defense claim, at the preliminary exam, "KH denied making any false accusations of rape. Before the start of trial, defendant was given the opportunity to demonstrate factual support for this claim, but he was unable to offer any competent evidence that KH had previously made false accusations of rape." He presented evidence that KH had made general apologetic comments in 2010 but "the statements did not refer to sexual conduct and the nonspecific statements could have easily applied to a number of different subjects or situations. Because KH's alleged statements were not 'concrete evidence' of false accusations of rape, the trial court did not err by prohibiting defendant from further inquiry." His proposed questions "amounted to a 'fishing expedition,' which is improper under the rape-shield statute." The court also rejected defendant's other arguments on appeal.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's unlawful imprisonment conviction; MCL 750.349b(1)(a); People v. Railer; "Restrain" defined (MCL 750.349b(3)(a)); MCL 750.349b(1)(b); "Secretly confined"(MCL 750.349b(3)(b)); People v. Jaffray; People v. Kosik; Failure to preserve evidence; Brady v. Maryland; People v. Chenault; Arizona v. Youngblood; "Plain error" review; People v. Carines; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Roberts

e-Journal Number: 58423

Judge(s): Per Curiam – Saad, O’Connell, and Murray

 

The court held that a rational trier of fact could find beyond a reasonable doubt that the defendant forcibly restricted the victim's movements or forcibly confined her "so as to interfere with her liberty by use of a weapon or dangerous instrument." There was also sufficient evidence that she was "secretly confined." Thus, there was sufficient evidence to support defendant's unlawful imprisonment conviction. The victim testified that he held her captive for two nights, for the most part in his apartment and bedroom. She asked if she could leave the apartment, "but he responded that he would kill her before he would let her leave." She testified that defendant either held a knife (at one point cutting her chest) or a knife was located next to the bed during the entire episode. The presence of the knife, defendant's use of it, and his threats to kill her kept her from even trying to escape or contact people for help. The victim also testified that "after defendant choked her, he refused her requests to leave." Although his father and uncle were present in the apartment, she "could not ask them for help because defendant was 'right there' next to her. During the car ride, the victim did not ask defendant's father or his female friend for help because defendant was sitting next to her in the backseat." He did not let her communicate with his mother when she visited the apartment. When defendant and the victim left the apartment to take a walk, she "saw cars, but she did not attempt to flag down any of the drivers. She did not attempt to get away from defendant because she could not outrun him." The court also rejected defendant's claim that his CSC I convictions must be vacated because there was insufficient evidence of unlawful imprisonment and it was unknown under which theory the jury convicted him of CSC I. Further, it held that there was no Brady violation because "the government was never in possession of the knife and hanger," and concluded that there was "no evidence that the police acted in bad faith by not collecting the knife and hanger." Defendant's convictions of AWIGBH, felonious assault, domestic violence (third offense), resisting a police officer, three counts of CSC I, and unlawful imprisonment were affirmed.

 

Full Text Opinion

Issues: Whether stipulating to a prior felony "waived" the defendant's right to appeal based on the jury's knowledge of his prior conviction; People v. Mayfield; People v. Metamora Water Serv., Inc.; People v. McCray; People v. Vaughn; People v. Kowalski; People v. Green; Voir dire; People v. Bowling; MCR 6.412; People v. Washington; Ineffective assistance of counsel; People v. Ericksen; Jury instruction on "flight"; People v. Coleman; People v. Unger; People v. Armstrong; Admission of text messages; People v. Gursky; People v. Ford; MRE 901; People v. McDade; Photographic evidence; People v. Gayheart; People v. Ho; People v. Mills; Prosecutorial misconduct; People v. Roscoe; People v. McCuller; People v. Dobek

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Smith

e-Journal Number: 58409

Judge(s): Per Curiam – Stephens, Talbot, and Beckering

 

The defendant could not stipulate to a prior unspecified felony for purposes of his felon in possession charge and then appeal based on the jury's knowledge of his history because his stipulation waived the issue. The defendant stipulated to the prior felony to "minimize the possibility of prejudice" resulting from the introduction of evidence about his prior conviction. He now argued that he should have been given the option of pleading no contest outside the presence of the jury. However, the court held that he could not "approve a course of action in the trial court and then object to that action on appeal." The court also held that the trial court did not err by conducting its own voir dire because "the prosecutor and defense counsel were permitted to approach the bench to have discussions with the trial court. In addition, the parties were permitted to exercise peremptory and for-cause challenges." Defense counsel was not ineffective for not challenging the trial court's decision to conduct voir dire. The court also held that the trial court properly instructed the jury on flight because defendant's actions could have indicated "consciousness of guilt." The flight instruction was supported by his disappearance from his empty apartment and his failure to keep in touch with both his pregnant girlfriend and his own cousin. Neither did the trial court abuse its discretion by admitting various text messages from one of the victims into evidence because they were properly authenticated based on the circumstances surrounding the messages. Photographs of the dead bodies were properly admitted, even though "appalling," because they were "probative of the location of the victims' deaths as well as of defendant's intent." The court also concluded that there was no evidence of prosecutorial misconduct. Defendant's convictions of two counts of first-degree premeditated murder, felon in possession, and felony-firearm were affirmed.

 

Full Text Opinion

Issues: Claim that defendant's due process rights were violated by the delay in charging her; People v. Reid (On Remand); People v. Tanner; People v. Adams; People v. Patton; People v. Woolfolk; People v. Fiorini (On Rehearing); United States v. Lovasco; Assault with intent to commit murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stoll

e-Journal Number: 58421

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

 

The court held that, given the victim's inability to identify defendant, the suggestion of another possible suspect who was excluded by DNA testing, and the first lab's problematic lack of accreditation, the prosecution "abided by elementary standards of fair play and decency" in delaying her arrest. Also, she was not deprived of her right to due process. Thus, the court affirmed her convictions of armed robbery and AWIM, and sentences. Defendant claimed that her due process rights were violated by the delay in charging her. She claimed that she awoke at approximately 9:00 AM on the morning of the robbery and then went directly to a courthouse with her mother, arriving there at about 9:30 AM. As the trial court recognized, the important detail in her story was that she was at her house at 9:00 AM, the approximate time of the robbery. While she alleged that her mother would have corroborated her timeline and provided an alibi, she failed to assert that her mother was the only person who saw her at 9:00 AM or shortly thereafter. Since defendant had not shown, or even alleged, that her mother was the only person who could have provided an alibi, she did not establish that the pre-arrest delay caused her actual and substantial prejudice. Even if the court were to conclude that she suffered actual and substantial prejudice, there was no evidence the prosecution delayed bringing charges in order to gain a tactical advantage. The delay was due to the struggle in obtaining DNA test results from an accredited laboratory. She argued that the prosecution could have proceeded with the results from the first laboratory, even though it was unaccredited, because accreditation status would have "merely provided fodder for cross-examination." While perhaps true, the prosecution's decision to seek evidence from an accredited laboratory as part of the investigation did not violate due process.

 

Full Text Opinion

Issues: Whether there was sufficient evidence to support the defendant's conviction of resisting or obstructing a police officer; People v. Wolfe; In re Winship; People v. Meissner; People v. Reese; Resisting or obstructing an officer; MCL 750.81d(1); People v. Corr; People v. Moreno; People v. Quinn; People v. Dalton; Whether an arrest warrant is necessary; People v. Manning; Steagald v. United States; Payton v. New York; Garden City v. Stark; The trier of fact's role in determining the weight of the evidence or the credibility of the witnesses; People v. Kanaan; Waiver; People v. Carter; People v. Lueth

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. White

e-Journal Number: 58381

Judge(s): Per Curiam – Meter, Whitbeck, and Riordan

 

The court held that there was sufficient evidence to support the defendant's conviction of resisting or obstructing a police officer because the officer lawfully entered her home to arrest her son. She was handcuffed and arrested for blocking the officer's further entry into her home to arrest her son who had outstanding warrants. The trial court sentenced her to 18 months' probation. On appeal, the court rejected her argument that there was insufficient evidence to conclude that the officer's entry into her home was lawful. It noted that although four of the five arrest warrants listed defendant's son's address as another location, and witnesses testified that he did not actually live there, one of the warrants did indicate that it was his residence, and the officer testified that he had previously interacted with him there. He also testified that when he arrived at the residence he saw defendant's son in the home's kitchen through the open screen door. "Accordingly, viewing the evidence in the light most favorable to the prosecutor, we conclude that sufficient evidence supported [defendant's] resisting and obstructing conviction." The court also rejected her argument that the trial court's instruction that the officer could rely on LEIN information improperly tainted the jury, finding that she waived it. Affirmed.

 

Full Text Opinion
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