Sunday, July 15, 2018

Carpenter v United States and Cell Site Data

Much has been written and talked about in the media regarding the recent United States Supreme Court's decision in Carpenter v United States and I would never presume to weigh in any more succinctly or insightfully than Professor Orin Kerr, Frances R. and John J. Duggan Distinguished Professor of Law, University of Southern California Gould School of Law.  Therefore, I will simply cite to his learned analysis of this monumental decision.  The question of the scope of the Government's ability to seek cell site data without the benefit of a search warrant is still in question, but should anyone need any extensive analysis of the opinion, Professor Kerr's analysis can be found here.  My congratulations go out to Detroit Attorney Harold Gurewitz for his persistence in preserving the issue and well-deserved victory.  Enjoy.

Saturday, February 3, 2018

State SORA Held Unconstitutional for HYTA Graduate

On January 24, in the case of People of the State of Michigan v Boban Temelkoski, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds.  Temelkoski had pleaded guilty under the Holmes Youthful Trainee Act with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  The Court emphasized, "The statute in effect at the time of defendant’s plea further provided that “[a]n assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime, and the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee.”  However, several years later a registration requirement was enacted and applied retroactively to his case.  Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment under the ex post facto clause.  However, the court did state that “It is undisputed that registration under SORA constitutes a civil disability.”  Therefore, the Court reversed the Court of Appeals and reinstated Judge James Chylinski's order removing Temelkoski from the sex offender registry.

Cheryl Carpenter represented Temelkoski in the trial court and the appeal was handled by David Herskovic.  Justices Wilder and Zahra dissented. 

An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, can be found here.



Wednesday, July 26, 2017

MSC Overrules 25 Year Old Decision in Felony Firearm Case

The Michigan Supreme Court, in the past few days, has issued a number of opinions related to crimes, criminal procedure and sentencing.  Significantly, the Court overruled a 25-year-old decision regarding the interpretation of the felony firearm statute, when, in People v Dwayne Wilson, Docket No. 154039 (July 25, 2017), the Court held that a defendant may be sentenced as a third offender (mandatory minimum 10 years imprisonment, consecutive to any sentence for the underlying offense) even though his two (2) prior convictions arose out of the same occurrence.  Justice Joan Larsen wrote the unanimous opinion that overruled People v Stewart, 441 Mich 89 (1992).

The trial court, Macomb County Circuit Judge James Biernat, Jr., had ruled that Wilson's two prior convictions for felony firearm from one prior case amounted to two (2) prior convictions for felony firearm and that the Supreme Court's decision in Stewart was no longer good law because it had relied on case law that had subsequently been overruled and the statute did not explicitly mention an exception for single occurrence convictions.  The Court of Appeals reversed in an unpublished per curium opinion.

The reasoning revolved primarily around strict adherence to the language of the felony firearm statute which provides no explicit exception for prior convictions that arise out of the same occurrence.  The statute mandates a consecutive sentence for a first offense (2 years), a second offense (5 years) and a third or subsequent offense (10 years).  The legislature excepted felony firearm convictions for a number of offenses, i.e., a defendant may not be convicted of CCW and felony firearm, but did not make an exception as to punishment for multiple prior convictions arising from a single occurrence.  The Supreme Court found the absence of an exception significant, and stated "the text contains no similar exception for convictions arising out of the same criminal incident, and the presence of one limitation on the kinds of convictions that are to be counted strongly suggests the absence of others unstated."

In regard to the stare decisis issue, the Court determined that the Stewart case had been wrongly decided, that the case relied upon by Stewart had previously been overruled and that numerous opinions had noted the shaky ground upon which Stewart stood.  "There is no separate-incidents requirement in either the habitual-offender or felony-firearm statutes, and the Supreme Court erred in Stewart by judicially engrafting a separate-incidents test onto the unambiguous statutory language of the felony-firearm statute. Stewart was wrongly decided." Therefore, the Court felt justified in overruling Stewart.

The prosecution's appeal was handled by APA Emil Semaan.  Wilson was represented by Peter Van Hoek of the State Appellate Defenders Office.


Wednesday, November 9, 2016

COA Grants Prosecution Interlocutory 404(b) Application

In this interlocutory application for leave, the Michigan Court of Appeals yesterday published it's previously unpublished opinion in People v Calvin Kelly, Docket No. 331731, reversing the Kalamazoo Circuit Court's decision to exclude evidence offered by the prosecution pursuant to MRE 404(b).

Kelly is charged with kidnapping, three (3) counts of first degree CSC and assault with intent to commit CSC.  The allegations arise from an incident in 2008.  Kelly has readily admitted to having sexual intercourse with the complainant (the prosecution possesses favorable DNA evidence), but asserts that the encounter was consensual because the complainant is a prostitute and is merely upset because Kelly did not pay her.

Kelly's DNA, however, has linked him to a total of five (5) CSC complaints, and he has admitted to having intercourse with three (3) others.  In each case, which span a timeframe from 1985 to 2010 and occurred in four (4) different states, Kelly told the same story - no assault occurred because of the women consented to sex as prostitutes.  The versions told by the women are all similar - Kelly drove them to a secluded area, threatened them with a knife or punched and choked them, and then forced them to have intercourse with him.  He did not use a condom and ejaculated, frequently leaving DNA evidence behind.  Kelly had not been charged in any of the other seven (7) cases, but the prosecution wished to present other complainant's testimony about the assaults.

Kelly's objection to the use of the MRE 404(b) centered on the fact that he had a viable defense to the allegations and he had not even been charged with them.  The prosecution argued that the other acts were relevant as they were offered for a proper purpose - "to establish defendant’s intent and to demonstrate a common scheme, plan or system in doing an act."  Kelly took the position that "relevancy means believability" and since he had not even been charged with the other crimes and that the women lacked credibility, his objection to the evidence should be sustained.

The trial court ruled in his favor, but apparently engaged in an improper analysis of the prosecution's offer of proof.  The trial court found the fact that Kelly had never been charged and that each of the cases was a swearing contest between the defendant and the complainants, the court could not take a "leap of faith" to conclude Kelly had actually been involved in a pattern of criminal activity.  The court held that "if defendant’s conduct in relation to the other acts was not criminal, then the other acts evidence would not be of any use in the present case."

The Court of Appeals, not surprisingly, found that the trial court had abused it's discretion in excluding the 404(b) evidence.  Primarily, the Court held that the trial court had not engaged in the proper 404(b) analysis as the Michigan Supreme Court had set forth in People v VanderVliet in 1994:


First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).]

Here, the trial court had not even concluded that the evidence met the relevancy requirement before it went straight to the MRE 403 analysis and concluded that the unfair prejudice outweighed the probative value.  Therefore, the trial court abused its discretion and the Court of Appeals reversed the decision to exclude the evidence.  The Court retained jurisdiction, however, in remanding the case to the trial court with instructions to engage in the proper analysis and thereafter decide whether the evidence should be admitted.

Christopher Allen from the AG's office represented the People on appeal.  Kelly was represented by Anastase Markou from Kalamazoo. 

Friday, August 19, 2016

Prosecution's Threat to Witness Merits Reversal

Yesterday, the Michigan Court of Appeals reversed the conviction of Devaun Lopez who had previously been convicted following a jury trial in the Saginaw County Circuit Court.  The Court, in a per curiam opinion, concluded in People v Devaun Lopez, Docket No. 327208, that the prosecution had improperly threatened a prosecution witness prior to testifying.  Dennis Hoskins was a key witness for the prosecution who had testified at the preliminary examination that the defendants had both admitted to him their involvement in the the murder and had openly discussed the details, including the use of a .38 caliber pistol, which matched the evidence from the scene.

Just prior to the trial, the prosecutor became concerned that Hoskins was going to change his testimony from what he said at the preliminary examination.  During a colloquy between Hoskins, his attorney, the prosecutor and the two defense attorneys, the defendant's attorney claimed to have heard the prosecution threaten Hoskins that he would be prosecuted for perjury and face life imprison if he did not testify consistently with his preliminary examination testimony.  During a hearing held outside the presence of the jury on the third day of trial, the following occurred:
The Witness: Yes. The prosecutor’s told me - - they threatened me with life in prison.  
The Court: Okay. With regard to your right to testify or not testify, do you wish to exercise your Fifth Amendment privilege and not testify at this time? 
The Witness: Yes, sir.

After the prosecution then presented the audiotape of Hoskins' preliminary examination testimony to the jury pursuant to MRE 804(b)(1), the defense moved to strike it, arguing that MRE 804(a)(1) did not authorize the use of the transcript because, though the witness was unavailable due to asserting his Fifth Amendment right, the rule further leads to the conclusion that the witness is not unavailable if the proponent has something to do with the witness' unavailability.  The court ultimately ruled:
Well, this is all very interesting and we’ve made a clear record of your positions. I’m going to deny the motion itself.  The witness himself indicated he felt threatened; that’s why he wasn’t testifying.  Mr. Dunn could say what he wanted to say, but I’m not going to take his testimony over the witness’s testimony himself.
 The Court of Appeals reversed and ordered a new trial.  The bottom line was that Hoskins was not "unavailable" pursuant to MRE 804(a).  The Court found that "MRE 804(a) posits that '[a] declarant is not unavailable as a witness if” his or her refusal to testify 'is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.'"  Here, regardless of the prosecution's intent or the alleged tone of his voice, the witness testified he was threatened and the trial court concluded as much.  After finding that the prosecutor had little reason to suspect Hoskins was going to commit perjury, and therefore, improperly issued a warning to him, the Court stated:
The trial court recognized that Hoskins refused to testify due to the prosecutor’s threat, yet failed to connect its finding with the rule’s command that “procurement” of a witness’s absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced Hoskins, the court was required to exclude Hoskins’ preliminary examination testimony in the first instance, or to strike the testimony from the record thereafter. By admitting prior testimony in clear violation of the evidentiary rules designed in part to protect a defendant’s right to confront the witnesses against him, the trial court violated Lopez’s fundamental right to a fair trial, abusing its evidentiary discretion.
 On appeal, the defendant was represented by Ronald Ambrose, and the Saginaw County Prosecutor's Office was represented by Nathan Collison.

Friday, April 22, 2016

COA Reverses Home Invasion Special Jury Instruction

Yesterday, the Michigan Court of Appeals published an opinion in People of the State of Michigan v Troy Bush, Docket No. 326658 (April 21, 2016), holding, essentially, that a defendant may not be convicted of home invasion, MCL 750.110a(2), for allegedly breaking into a bedroom inside a home he has previously been granted permission to enter.  An interesting part of this ruling is the fact that the prosecution had moved in the trial court for a special jury instruction prior to the trial and the defense filed an interlocutory application for leave to appeal the trial court's granting of the motion.  The Court of Appeals denied the interlocutory application, but the Michigan Supreme Court reversed the denial and remanded the case to the Court of Appeals for consideration as on leave granted.

Troy Bush, a handyman, considered the residence he was charged with breaking into to be his permanent residence until he was arrested for first degree home invasion, felonious assault and resisting and obstructing a police officer.  The complainant, Melissa Partain, resided at the home with her adult son, Jason.  The day before the incident, Jason had invited the defendant to the home to fix a bathtub.  Sometime in the afternoon of November 17, 2014, Melissa barricaded herself in an upstairs bedroom because she claimed she had received threatening text messages from Bush.  She stated that Bush broke through the bedroom door and assaulted her.

The prosecution's theory, and hence the request for a special jury instruction, was that home invasion can be accomplished after a defendant is lawfully on the premises if the defendant further breaks into a room within the home to which he has no permission to enter.  The Court of Appeals disagreed.

The home invasion statute is clear in that it punishes any person "breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling...."  Though case law existed under the old B&E statute to suggest that a person could be convicted under these circumstances, the caselaw was not binding in that it either predated November 1, 1990 or it was unpublished.  More importantly, the home invasion statute defines, within the statute, a "dwelling" 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."  An abode is defined as a home or place where one abides.  Consequently, a room within the home does not fall within the definition provided by the legislature and a careful reading of the statute did not provide any broader definition.  The Court reversed the trial court's decision and remanded the case to the Kalamazoo Circuit Court for further proceedings.

The prosecution was represented on appeal by Heather Bergmann and the defense was represented by Joseph McCully of Kalamazoo, MI.
 

Wednesday, December 9, 2015

"Knock and Talk" Scrutinized by COA Post-Jardines


Yesterday, the Michigan Court of Appeals decided an interesting 4th Amendment issue relating to a popular tactic utilized by police departments across the State of Michigan, "knock and talk." In the consolidated cases of People v Frederick and People v Van Doorne, Kent County Circuit Judge Dennis Leiber had denied each defendant's motion to suppress. Each filed applications for leave to appeal to the Court of Appeals that were denied. The Supreme Court, however, remanded the cases as on leave granted to consider whether the "knock and talk" procedure used by the Kent Area Narcotics Enforcement Team  (KANET) violated the 4th Amendment pursuant to the United States Supreme Court's holding in Florida v Jardines___ US ___; 133 S Ct 1409; 185 L Ed 2d 495 (2013).

In Jardines, Justice Scalia wrote the opinion for the majority, concluding that police officers who approach a house and enter onto the front porch with a drug detection canine, do so in violation of the 4th Amendment. The vast majority of homeowners give implied consent for persons to approach the front door of the home. “[T]o find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”  Because a homeowner does not impliedly consent to such an intrusion into the curtilage of the home, any evidence gained as the result of such a search cannot be utilized to support the issuance of a search warrant.

A typical "knock and talk" procedure similarly involves one or more officers approaching the front door of the home, knocking, waiting for someone to answer and then engaging that person in a conversation in order to gain information or evidence.  In the Frederick case, KANET officers had executed a marijuana search warrant at the home of Timothy and Alyssa Scherzer and the Scherzers promptly informed the KANET officers that they had supplied marijuana butter to two deputies currently working in the Kent County Jail (through intermediaries).  Rather than obtaining search warrants for Frederick's and Van Doorne's homes, seven officers wearing tactical vests and carrying holstered sidearms went to Frederick's home at 4:00am.  They knocked on the front door and waited for a few minutes before Frederick answered.  They informed him that his name had come up in a criminal investigation and asked for permission to come in. He acceded to the request and after further questioning showed them his marijuana butter and consented to a further search of his home.  The same officers arrived at Van Doorne's home at 5:30am and conducted the same procedure with the same result.

The Court of Appeals' majority, Judges Michael Talbot and Kirsten Kelly, concluded that the procedure utilized by the KANET officers here did not violate the rule espoused in Jardines and, therefore, did not violate the 4th Amendment.  However, Judge Deborah Servitto wrote a lengthy dissent, concluding that the trial court erred in failing to suppress the evidence.

A difference between the Jardines scenario and the present one, obviously, centers on the former's use of the drug detection canine, as highlighted by Justice Scalia above. Judge Servitto goes further, however, in pointing out that the knock and talk tactics used here were executed between 4:00am and 5:30am, times leading Judge Servitto to hold "I would interpret the instant case as presenting the specific question of whether a knock and talk procedure conducted at a private residence in the middle of the night (the “pre-dawn hours”), without evidence that the occupant of the residence extended an explicit or implicit invitation to strangers to visit during those hours, is an unconstitutional search in violation of the Fourth Amendment."  Her framing of the issue, she points out, finds support in the Jardines opinion in both the majority opinion as well as Justice Alito's dissent.  The majority here provided little analysis of the timing issue and simply concluded, "while a typical person may well find the presence of uniformed police officers on their doorstep in the early hours of the morning 'unwelcome,' we cannot conclude that it is, without more, the type of circumstance that would lead an average person 'to—well, call the police.'"  Judge Servitto, properly I believe, concluded that the fact is, the average person does not consent to seven uniformed and armed police officers banging on their front door in the middle of the night seeking to gain entry into the home to conduct a search.  The officers intentions were objectively clear based upon all of the facts and circumstances presented at the lengthy evidentiary hearing in the trial court.

Neither defendant has yet filed a further application for leave to appeal back to the Supreme Court, however, given the current make up of the Court and Judge Servitto's well-reasoned dissent, it will be interesting to see how such a request is handled.  On appeal, Frederick was represented by Bruce Block of Ada, Michigan, and Van Doorne was represented by Jeffrey Arnson of Grand Rapids.  James Benison represented the Kent County Prosecutor.