Criminal Law

Issues: Sufficiency of the evidence to support the defendant's convictions of felon in possession and felony-firearm; People v. Perkins; People v. Johnson; Sentencing; Consecutive sentencing; People v. Brown; "Plain error" review; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Chambers

e-Journal Number: 57469

Judge(s): Per Curiam – Donofrio, Gleicher, and M.J. Kelly

 

Holding that there was sufficient evidence to prove that the defendant possessed a weapon, the court affirmed his felon in possession and felony-firearm convictions. However, it remanded for the ministerial correction of his judgment of sentence to reflect that his probationary sentences for felon in possession and resisting, assaulting, or obstructing a police officer were to run concurrently to his two-year sentence for the felony-firearm conviction. Defendant did not challenge his resisting, assaulting, or obstructing conviction on appeal, but argued that there was insufficient evidence that that he actually possessed the weapon. However, witness-D testified that he saw another man (H) hand defendant a black and silver handgun. D also saw defendant hold the weapon in his hand, cock the weapon, and then, after a "moment or two," hand it back to H. This testimony was sufficient for the fact-finder "to find, beyond a reasonable doubt, that defendant was in possession of a firearm." Further, when police later searched H's vehicle, they recovered a black and silver handgun in the trunk. The handgun was a semi-automatic, which meant that an individual would cock the weapon in order to use it. Defendant argued that reasonable doubt was established because the weapons were discovered in the trunk of H's vehicle and D never saw H go into the trunk of his vehicle. However, the trial court in defendant's bench trial noted that by the time H was detained by police, "he would have had an opportunity to put the weapon in the trunk of his vehicle, or alternatively, he could have simply moved the weapon to the trunk" when D was not looking. "Thus, the location of the weapon when it was discovered later by police was not enough to establish reasonable doubt." Since felon in possession was the predicate felony for his felony-firearm conviction, defendant's possession of a weapon during the commission of that felony was also sufficient to convict him of felony-firearm. However, the court agreed with the prosecution and defendant that the trial court erred by ordering his probationary sentences for his felon in possession and resisting, assaulting, or obstructing convictions to run consecutively to his felony-firearm sentence of two years' imprisonment, instead of concurrently.

 

Full Text Opinion

Issues: Claim that admission of the victim's alleged pregnancy or alleged abortion was unfairly prejudicial; People v. Lukity; People v. Duncan; Relevance; MCL 750.520d(1)(e)(i); People v. Crawford; People v. Mills; MRE 403; Claim that the trial court erred by limiting defendant's inquiry into the victim's alleged abortion; Right of confrontation; The rape-shield statute (MCL 750.520j)); People v. Arenda; Sentencing; Scoring of OVs 3, 4, 10, 11, & 19; People v. Hardy; People v. Cannon; People v. Johnson; People v. Adams

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jungkind

e-Journal Number: 57467

Judge(s): Per Curiam – Murphy, Shapiro, and Riordan

 

The court held, among other things, that the trial court did not abuse its discretion by allowing evidence about the victim's (a high school student in defendant's class) alleged pregnancy or alleged abortion. It affirmed his jury trial conviction of one count of CSC III and sentence to 40 months to 15 years in prison. He argued that the trial court erred by allowing, over objection, evidence as to the victim's alleged pregnancy or alleged abortion because the evidence was unfairly prejudicial. He conceded that the challenged evidence was relevant. The court concluded that evidence of the pregnancy and subsequent abortion were material because they were "related to" establishing an element of the offense (whether defendant engaged in an act of sexual penetration with the victim). He placed that element at issue by his plea of not guilty and by his denials during trial. At the motion hearing as to the abortion-related evidence, he stated that he intended to argue that there was no medical evidence that the victim was ever pregnant and, thus, "her entire story lacked credibility." The evidence that defendant obtained the abortion pills for the victim was relevant for the purposes not only of showing her credibility, but for establishing that defendant believed the victim "was pregnant and that it was likely he who got her pregnant." Also, the evidence had substantial probative value. "The threshold [for proving probative value] is minimal: 'any' tendency is sufficient probative force. Further, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under MRE 403." The evidence had "critical probative value because defendant's role in procuring pregnancy tests and abortion medication was inextricably intertwined with establishing" that he engaged in sexual intercourse with the victim. While the evidence also had a potential for prejudice (in light of the controversial nature of abortion), this did not substantially outweigh its probative value. Further, the trial court instructed the jury that the evidence as to defendant's alleged acquisition of abortion pills was to be considered solely for the purposes of evaluating the victim's credibility and "that the jury was not to conclude, from this evidence, that defendant was a bad person, likely to commit crimes, or was 'guilty of other bad conduct.'"

 

Full Text Opinion

Issues: "Other acts" evidence; MRE 404(b)(1); People v. Martzke; People v. Starr; People v. Golochowicz; MRE 403; People v. Mills; People v. Cameron; People v Graves; Allegedly "suggestive" pre-trial identifications; People v. Harris; People v. Gray; People v. Kurylczyk; People v. Hornsby; Search & seizure; Motion to suppress evidence; U.S. Const., amend. IV; Const. 1963, art. 1, § 11; People v. Slaughter; Franks v. Delaware; People v. Turner; Standing to challenge a search warrant; People v. Brown; People v. Parker; Double jeopardy; U.S. Const., amend. V; Const. 1963, art. 1, § 15; People v. Dawson; Sufficient evidence of "identity"; People v. Wolfe; People v. Nowack; People v. Oliphant; People v. Davis; Jury composition; Taylor v. Louisiana; People v. Bryant; Use of peremptory challenges to excuse an African-American juror; Batson v. Kentucky; People v Knight; Purkett v. Elem; Prosecutorial misconduct; People v. Bahoda; People v. Rodriguez; People v. Mann; People v. Long; Ineffective assistance of counsel; People v. Ginther; People v. Snider; People v. Armstrong; People v. Hoag; Right to present a defense; U.S. Const., amend. VI; Const. 1963, art. 1 § 20; People v. Adamski; Right to a speedy trial; People v. Patton; People v. Mackle; People v. Cain; Sentencing; Habitual offender status; Presumption that the PSIR is accurate; People v. Callon; Scoring of OVs 1-3 & 7; People v. Hardy; Exercise of "due diligence" in producing an endorsed witness; "Probable cause" for search warrants

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Morris

e-Journal Number: 57457

Judge(s): Per Curiam – Gleicher, Saad, and Fort Hood

 

In this armed robbery and felonious assault case arising from the robbery of a gas station, evidence that the defendant previously robbed another gas station was properly admitted under MRE 404(b)(1) because it "was relevant to disputed factual issues in this case and was not offered to show defendant's bad character." The other acts evidence "was probative of defendant's identity as the person who robbed" the gas station in the charged incident. There were many similarities with the previous robbery, and the evidence was not unduly prejudicial. Also, the trial court's "instructions limited the potential for any prejudice." Further, contrary to the defendant's argument, there was "no evidence that the photographic identification procedure was unduly suggestive or improper." The trial court also correctly found that "the limited warrantless search of defendant's car at the scene constituted a valid inventory search." He was not entitled to a Franks hearing as to the search warrant for his car, and he lacked standing to challenge the search warrant for his girlfriend's home since he could not show that "he had a legitimate privacy interest" in the home. There was no merit to his claim that, because this was his second trial, his double jeopardy rights were violated. The "objective facts and circumstances do not support a finding that the prosecutor's conduct was intended to goad defendant into moving for a mistrial." There also was sufficient evidence to establish his identity as the robber, and his challenge to the racial makeup of the jury did not "demonstrate a systematic exclusion of African-Americans in Macomb County's jury-selection process." The defendant also failed to establish a Batson violation since he did not show that "the prosecutor impermissibly used a preemptory challenge to excuse the only African-American jury venire member" - the prosecutor's explanation for the challenge was "race neutral." There was no evidence of prosecutorial misconduct, and the trial court's instructions were sufficient to dispel any alleged impropriety. The court rejected defendant's ineffective assistance of counsel claims, and concluded that he was not denied his constitutional rights to present a defense or to a speedy trial. He also was not entitled to resentencing. Affirmed.

 

Full Text Opinion

Issues: Whether the trial court should have allowed the defense to question the victim's motive for testifying; People v. McGhee; Waiver of the right to challenge the admission of the defendant's jail phone calls; People v. Kowalski; People v. Carter; Prosecutorial misconduct; People v. Rodriguez; People v. Dobek; People v. Kelly; People v. Quinn; People v. Watson; People v. McLaughlin; People v. Fyda; People v. Unger; Ineffective assistance of counsel; U.S. Const., amend VI; Const. 1963, art. 1, § 20; Strickland v. Washington; People v. LaVearn; People v. Torres (On Remand); People v. Rice; Sufficiency of the evidence to support an assault with intent to murder (AWIM) conviction; People v. Beard; Intent element; People v. Davis; Admissibility of the victim's preliminary examination testimony as substantive evidence; MRE 801(d)(1)(A); People v. Malone; Right to a "public trial"; People v. Vaughn; Waller v. Georgia; "Plain error" review; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stalling

e-Journal Number: 57461

Judge(s): Per Curiam – Donofrio; Concurrence – Gleicher; Separate Concurrence – M.J. Kelly

 

Even if the trial court may have erred by prohibiting defense counsel from asking the victim whether the prosecutor had threatened him with a perjury prosecution if his testimony was inconsistent with his testimony at the preliminary examination, any error was harmless because the victim ignored any alleged instructions and refused to identify the defendant at trial. The court concluded that the defendant waived his right to object to the admission of the recording of part of a phone call he made while incarcerated because defense counsel expressed satisfaction with the trial court's ruling. The court rejected defendant's prosecutorial misconduct claims. The prosecutor's questions to the victim regarding "threats were relevant to the victim's credibility." The prosecutor's closing comments did not make "any arguments that defendant had 'bad character' or that he must be guilty because he has 'bad character.'" Her comments about "bumps" on the victim's head from a beating he received before trial, even if erroneous, "did not deprive defendant of a fair trial." The court rejected the defendant's claims that the prosecutor "impugned the character of his defense counsel," finding no attempt to suggest that defense counsel was "'intentionally attempting to mislead the jury.'" The prosecutor did not impermissibly shift the burden of proof by arguing that defense counsel could not "negate anything." It is "not improper for a prosecutor to argue that evidence is 'uncontradicted.'" Viewed in context, the court concluded that "this is what the prosecutor was arguing." Any "potential misstatements of the law" the prosecutor may have made were "cured when the trial court provided the correct law on the subject." The prosecutor did not improperly appeal to the jury's sympathy by saying that the victim was "'beat down,'" because "the prosecutor was highlighting the intervening attack on the victim as the reason why he changed his testimony at trial from his earlier testimony . . . ." Defense counsel was not ineffective for failing to call the defendant's mother as a witness because she feared the mother was "'going to fabricate.'" Since there was no prosecutorial misconduct, the defendant could not claim that his counsel was ineffective for failing to object to the prosecutor's actions. Defense counsel's "decision not to highlight Defendant's prior conviction by requesting a limited instruction" was a matter of trial strategy. The court also held that there was sufficient evidence that the defendant intended to murder the victim and that he was the shooter. He failed to establish plain error as to the closure of the courtroom. Affirmed.

 

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