Thursday, July 9, 2015

COA Reverses Oakland Circuit on Right to DNA Testing

Yesterday, the Michigan Court of Appeals rendered its published opinion in People v Gilbert Lee Poole, Jr., Docket No. 315982, holding that Poole was entitled to DNA testing of blood samples preserved from the scene of a 1988 homicide.  The interesting aspect of the case is the fact that, in Poole's 1989 trial in Oakland County, blood typing of blood found at different areas of the scene had already excluded Poole as the source of the blood, and the jury was informed of that fact. Yet the jury still found him guilty of the murder.  Poole has a fairly rare blood type of AB, which represents only about 3% of the population.  The victim's blood type (O) was found in many areas of the crime scene, and the investigators found no type AB blood.  However, one blood sample, found on a rock in the victim's pants, was type B, matching neither Poole nor the victim.

Poole had petitioned the trial court on two separate occasions for DNA testing of the blood samples, and each time the trial court denied the request.  First, in 2006, Judge Edward Sosnick denied the request because "Evidence presented at the defendant's trial already established that the defendant’s blood [type] was not found on the victim."  Poole's second petition was also denied in 2012.  Judge Rae Lee Chabot held "the jury had been fully aware that defendant was not the source of any crime scene blood, given the blood-type evidence, yet the jury still convicted defendant.  DNA testing excluding defendant as a donor would therefore add nothing of relevance if a new trial took place." The defendant's second petition was the subject of the present appeal.

The Court of Appeals initially had affirmed Judge Chabot's ruling, finding that the decision before them had already been decided against the defendant (following Judge Sosnick's ruling), and, therefore, that decision was the law of the case.  Poole filed an application for leave to appeal with the Michigan Supreme Court.  In lieu of granting leave to appeal, the Supreme Court remanded the case to the Court of Appeals, holding that the earlier orders from the the Court of Appeals and the Supreme Court did not constitute "law of the case" because the issue had not been decided on the merits in those courts.  Also, the Supreme Court held, "“no provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material."

MCL 770.16 sets forth the hurdles a defendant must overcome in order to be granted the opportunity to have biological material, still in existence, analyzed for the presence of DNA.  They are: (1) defendant was convicted of a felony at trial before January 8, 2001, and is currently serving a prison sentence for the conviction; (2) that defendant’s petition was filed in the sentencing court before January 1, 2016; (3) that biological material was collected and identified during the police investigation of defendant’s case; (4) that defendant presented prima facie proof that the biological evidence sought to be tested was material to the question of defendant’s identity as the perpetrator of the murder; (5) that there is clear and convincing evidence that a sample of biological material is indeed available for DNA testing; (6) that there is clear and convincing evidence that the biological material was not previously subjected to DNA testing; and (7) that there is clear and convincing evidence that defendant’s identity as the perpetrator was at issue during his trial.

The issue for Poole was that the two trial court decisions had, apparently, concluded he failed to meet the requirement of subsection (4), that the DNA evidence was material to the question of the identity of the perpetrator.  Both trial court opinions had focused on the fact that Poole was excluded as the source of any blood evidence found at or around the scene.  Any further DNA testing would not yield any more evidence that would be material to the defendant's identity as the perpetrator of the crime.

However, the Court of Appeals, adhering to the meaning of the words chosen by the legislature, found that Poole had satisfied all seven of the requirements set forth by MCL 770.16.  Further, the statute mandates that the court "shall order DNA testing" once the defendant has satisfied the above requirements.  On the question of materiality, the court found that DNA testing is much more specific than the old, blood-typing evidence.  Testing of the sample that did not match either Poole or the victim could yield the identification of another individual involved in the murder.  Here, the only evidence that linked Poole to the murder was the fact that the two left the bar together and Poole's ex-girlfriend who claimed, five months after the homicide, to have heard Poole confess to it.  Therefore, the decision of the Oakland County Circuit Court, denying Poole's request for DNA testing, was reversed and the case remanded to the circuit court.

Poole was represented by Marla Mitchell-Cichon from the Cooley Innocence Project in Lansing. The prosecution was represented by Joshua Miller of the Oakland County Prosecutor's Office.  The local press has covered the result as well in the Oakland Press and the Detroit News.

Monday, December 29, 2014

Jury Deprived of Lesser in Reckless Driving Death Case

Last week, the Michigan Supreme Court rendered its decision in People v Thabo Jones, Docket No. 147735 (December 23, 2014), upholding the constitutionality of MCL 257.626(5).  That statute mandates that, when the defendant is charged with reckless driving causing death (MCL 257.626(4)), the trial court shall not instruct the jury on the lesser offense of committing a moving violation causing death under MCL 257.601d.  The difference is significant in that the former carries a maximum penalty of 15 years imprisonment, where the latter is a one-year misdemeanor.

Judge Richard Scutt, ruling on a pretrial request for the lesser included jury instruction, held MCL 257.626(5) was unconstitutional in that it infringed on the judiciary's authority to regulate court practice and procedure.  The prosecution sought interlocutory relief and the Court of Appeals (JJ. Ronayne-Krause and Shapiro, with K. F. Kelly dissenting) affirmed. The Supreme Court granted leave and held the following:

"The circuit court erred by granting defendant’s request to instruct the jury on moving violation causing death. The Legislature acted within its constitutional authority by creating a substantive exception that prohibited the jury’s consideration of that lesser offense when the charged offense is reckless driving causing death.
1. MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury instructed on necessarily included lesser offenses. MCL 257.626(5) sets forth a clear exception to this general rule: when a defendant is charged with reckless driving causing death, the jury shall not be instructed regarding the crime of moving violation causing death. Under People v Cornell, 466 Mich 335 (2002), this legislative modification did not impermissibly infringe the Supreme Court’s constitutional authority to enact rules governing practice and procedure because determining what charges a jury may consider concerned a matter of substantive law.
2. Defendant did not have a Sixth Amendment right to have the jury instructed on moving violation causing death. While the United States Supreme Court has ruled that the jury must have the opportunity to convict on a lesser included offense in capital cases, it has expressly declined to rule on whether there is a constitutional entitlement to have the jury consider lesser included offenses in cases involving noncapital offenses. The fact that MCL 257.626(5) is silent in the context of a judge sitting as finder of fact did not alter this conclusion. Given the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would understand that the defendant could not be convicted of the lesser offense."

James C. Howarth handled the case for the defense and Timothy Baughman represented the prosecution.

Friday, December 19, 2014

Mistakes v Mistakes: Police Need Not Know the Law

This week, the United States Supreme Court authored its opinion in Heien v North Carolina, holding 8-1 that a police officer's reasonable mistake about the law will justify a seizure and not run afoul of the Fourth Amendment.  Chief Justice Roberts wrote the opinion for the majority, while Justice Kagan (joined by Justice Ginsburg) wrote a concurring opinion.  Justice Soto-Mayor was alone in her dissent.

Heien was traveling on Interstate 77 in North Carolina when Sgt. Matt Darisse of the Surry County Sheriff's Department pulled in behind him because Heien looked "stiff and nervous."  Further down the road, Heien braked for slower traffic, and only his left brake light came on. The deputy, believing that he had observed a traffic infraction (a defective brake light) stopped the vehicle.  He ultimately ended up searching the vehicle and found a baggie of cocaine. Turns out, the North Carolina motor vehicle code only requires one working brake light, though the statute is somewhat confusing on that issue.  Heien moved to suppress the evidence because of the invalid stop.

The trial court denied the motion. The North Carolina Court of Appeals reversed, holding that the motor vehicle code required only one working brake light and, therefore, the deputy's stop of the vehicle was objectively unreasonable.  The State appealed and the North Carolina Supreme Court reversed, finding that the statute in question was ambiguous on the issue of the number of brake lights required and that the deputy's decision to stop Heien, though wrong, was nonetheless reasonable.

SCOTUS upheld that decision, noting previous cases where officers who search and seize evidence based on objectively reasonable factual mistakes have been upheld in the past. "The warrantless search of a home, for instance, is reasonable if undertaken with the consent of a resident, and remains lawful when officers obtain the consent of someone who reasonably appears to be but is not in fact a resident. See Illinois v. Rodriguez, 497 U. S. 177, 183–186 (1990). By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. See Hill v. California, 401 U. S. 797, 802–805 (1971)."

The issue was whether an officer is similarly justified when he or she makes a mistake about the law, presumably something they should have the expertise to understand before being allowed to exercise their authority in the community.  The majority held that an officer is justified, provided his "mistake" was objectively reasonable. In this case, it was, given the confusing motor vehicle code in North Carolina. Justice Kagan concurred in the result, but wrote separately to highlight the holding that the officer's mistake must not be his subjective belief about what the law is. Therefore, "That means the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law."

Justice Soto-Mayor dissented.  Her fear is that interpretations of the law should not be left to police officers in the street. Though officers who make reasonable factual mistakes will be protected, "The same cannot be said about legal exegesis. After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, 'the notion that the law is definite and knowable' sits at the foundation of our legal system. Cheek v. United States, 498 U. S. 192, 199 (1991). And it is courts, not officers, that are in the best position to interpret the laws."

Friday, May 30, 2014

COA Reverses R&O Conviction Entered Prior to Moreno

Yesterday, the Michigan Court of Appeals reversed a defendant's conviction for resisting and obstructing a police officer and remanded the case to the trial court for a new trial, holding that the prosecution is required to prove, as an element of the offense, that the officer's actions in effectuating an arrest are lawful.

In People v Quinn, Docket No. 309600 (May 29, 2014), Judge Wilder, writing the unanimous opinion, also held that the Michigan Supreme Court's holding in People v Moreno, 491 Mich 38; 814 NW2d 624 (2012), finding that a defendant had the right to resist an unlawful arrest in his own home, was retroactive as applied to Quinn's case.

An Emmet Township Public Safety Officer testified that she was on routine patrol at 1:00am in an area that had recently suffered sever storm damage and was without power. She testified about thefts occurring in the area during the blackout and to seeing a car parked in a lot near a salon. She approached to investigate why a car was parked in the lot at that hour.  As she approached, she determined that the car was parked, not at the salon, but in the lot of an adjacent apartment complex.  She saw the defendant and his adult son in a dark carport.  She did not know what they were doing, but she wanted to find out and told the two "to come over here." Someone responded, "No, you come over here." She said the two then started walking quickly toward the building.

She radioed for assistance and then ran to the area where the defendant and his son had gone into the building through a rear door.  She went in and saw the defendant and his son on a landing, told them to give her identification and they both refused. When she tried to arrest the son, Quinn went into the apartment. The officer forced her way to the door and held it open with her foot. She pepper sprayed both men and, when backup arrived, they forced their way into the apartment and arrested both.

Quinn testified consistently with what the officer had said, except that he denied having contact with the officer outside the apartment door, and that he was trying to call 911 when the other officers came in and forcefully arrested him.  He stated he did not know it was the police outside of the apartment because it was dark. He was concerned for their own safety and was trying to call 911, but was having difficulty seeing because of the pepper spray.

Quinn filed a motion to suppress based on the unlawful actions of the officer in coming into the apartment without consent or probable cause. The Supreme Court, however, had yet to decide Moreno and the trial court denied the motion based on the current state of the law, People v Ventura, 262 Mich App 370; 686 NW2d 748 (2004), that said a defendant had no right to resist an unlawful arrest. In Moreno, the Court overruled Ventura and held that a defendant did have that right.  The Court, however, did not specifically hold that the lawfulness of the officer's actions was an element of resisting and obstructing a police officer that the prosecution had to prove in its case in chief.

The Quinn Court held that it is, and because the trial court had failed to instruct the jury on that element (previously required at common law), Quinn was entitled to a new trial with a properly instructed jury. Though Moreno had yet to be decided as of the date of Quinn's trial, the Court held that Moreno's application was retroactive, at least as it related to Quinn, who had filed a motion to suppress in the trial court and had appealed that issue to the Court of Appeals.

Quinn's appeal was handled by Michael Skinner of Lake Orion, Michigan.

Wednesday, April 9, 2014

Trial Court Errs in Sentencing Above Mandatory Minimum 25

Yesterday, the Michigan Court of Appeals issued its opinion in People v Jarrud Payne, Docket No. 314816, in a case where the trial judge sentenced the defendant to a 30 year to 50 year term of imprisonment in a case where the defendant was convicted of an offense carrying a 25-year mandatory minimum.  In a per curiam opinion, the Court reversed on the sentencing issue and remanded the matter to the trial court for resentencing.

Payne, 17 1/2 years old at the time of the offense, was convicted following a jury trial of criminal sexual conduct in the first degree where the victim was less than 13 years old.  The victim, a five-year-old boy, testified Payne had "stuck his pee-pee in my butt and it hurt." Payne, when confronted with the allegations by sheriff's deputies, initially denied the allegations but subsequently admitted to doing the act. The defense argued Payne, after suffering from years of mental health issues, was legally insane at the time of the offense. The jury convicted Payne as charged, specifically holding that he was not legally insane or guilty but mentally ill.

The primary issue on appeal was the defendant's sentence.  The trial court sentenced the Payne to 30-50 years imprisonment.  Payne argued on appeal that his sentence violated MCL 750.520b(2)(b) which, according to the defense, called for a flat 25-year term of imprisonment, and in order for a trial court to sentence him to a term in excess of that, the court would need to articulate substantial and compelling reasons for an upward departure.

The statute states that when a defendant who is 17 years of age or older is convicted of CSC-1 against a victim who is less than 13 years of age, the defendant shall be punished “by imprisonment for life or any term of years, but not less than 25 years.” The prosecution argued that the legislature's use of "not less than 25 years" gave sentencing courts authority to sentence defendants in excess of that minimum, but not less.  However, the Court held that the Michigan Supreme Court had already ruled on the issue implicitly in 2010 in People v Wilcox, 486 Mich 60; 781 NW2d 784 (2010).  There, the Supreme Court held that an analogous statute, MCL 750.520f(1), which called for a mandatory minimum 5 years of imprisonment for a second felony CSC offense, required a sentencing court to articulate substantial and compelling reasons for any upward departure from the mandatory minimum. According to the MSC, the guidelines applied to the defendant's offense.  The guidelines require substantial and compelling reasons for any upward or downward departure. Mandatory minimums are exempt from guideline analysis, but only the mandatory minimum sentence is, not any deviation from that.  Therefore, if a sentencing court deviates upward from a mandatory minimum, it must articulate substantial and compelling reasons to do so.

In this case, Payne's guidelines for the CSC 1st were calculated at 81-135 months. The statute called for a mandatory minimum sentence of 25 years.  The sentencing court, therefore, had two choices 1). sentence Payne to the mandatory minimum 25 years without articulating any substantial and compelling reasons, or 2) impose a sentence in excess of the flat 25 years and articulate substantial and compelling reasons for the upward departure and the extent of it. The trial court erred in doing neither of these options.

Michael Robie of Lawrence, Michigan represented the People in this appeal. Payne was represented by Christopher Smith of the State Appellate Defenders Office.

Monday, January 20, 2014

SCOTUS to Decide Anonymous Tipster Stops

Tomorrow, at 10:00am, the United States Supreme Court will hear oral argument in a case that I believe will have a significant impact for those of us who regularly practice in trial courts.  In Navarette v California, Docket No. 12-9490, the Court is presented with this question: Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?

Lorenzo and Jose Navarette were stopped by officers from the California Highway Patrol after the CHP received a tip from another agency who had gotten a 911 call from a motorist who called to say a silver pickup truck had just run someone off the road.  The CHP stopped the truck 19 minutes after the call came in and after following the truck for five miles, observing no illegal or suspicious driving.  The officers quickly detected the odor of marijuana coming from the interior of the truck and searched it, finding a large quantity of marijuana and paraphernalia indicative of an intent to deliver.  Both Navarettes were charged with possession with intent to deliver marijuana under California state law.  Their motions to suppress the evidence, based on the invalidity of the stop, were denied.

The pair plead guilty to the offense and were each sentenced to 36 months probation and the first 90 days in the Mendocino County Jail. California apparently allows the appeal of plea-based convictions, and the California Court of Appeal affirmed the convictions, finding that officers, acting on an anonymous tip, need not corroborate any of the details of the call in order to justify the stop of the offending vehicle.  The California Supreme Court denied Navarettes' appeal without comment.

The Supreme Court's ruling on this issue will be significant to Michigan practitioners.  As many of you know, our Court of Appeals ruled on this identical issue in People v Barbarich, 291 Mich App 468; 807 NW2d 56 (2011), holding, in an opinion written by Judge Kirsten Frank Kelly and joined by then Judge Brian Zahra, "The tip provided sufficient information to accurately identify the vehicle and to create an
inference that a crime or civil infraction had occurred; and, the tip was also sufficiently reliable, based on the woman’s contemporaneous observations. Under the totality of the circumstances, Bammarito (the arresting officer) had a reasonable articulable suspicion that justified an investigatory stop of defendant’s vehicle. The circuit court erred by concluding otherwise." In Barbarich, an anonymous woman had pulled up to the officer's car on St. Patrick's Day and mouthed the words, "He almost hit me," and pointed to a red truck that was pulling out of a bar parking lot. The officer never obtained any identifying information from the woman, and proceeded to get behind the red truck and stop it based only upon the officer's encounter with the unidentified woman. Barbarich was convicted of operating while intoxicated. Judge Elizabeth Gleicher, on the other hand, dissented, finding that the anonymous tip was "utterly devoid of any objective or specific facts" to justify the stop.

This interesting issue should now, finally, be decided by our highest court.  Tomorrow's argument will be recorded and a link to the completed recording will be available at If you are looking for any assistance on this issue, links to all of the briefs filed before the USSC can be found by clicking here.

Wednesday, December 18, 2013

To Testify or Not to Testify? COA Says Defendants Must

Yesterday, the Michigan Court of Appeals published an opinion affirming the first degree home invasion conviction of a defendant who decided not to testify in his own defense because the trial court had ruled, in limine, that the prosecution could impeach him with a prior home invasion conviction under MRE 609.  In People v McDonald, Docket No. 311412 (December 17, 2013), Judges Borello, Fitzgerald and Murphy held that Gerald McDonald had failed to even preserve the issue because he did not testify in the trial.

The defendant was accused of having broken in to a woman's apartment and, with a silver pistol, ordered her to give him money.  She told the intruder she had no money and he left, taking her purse from where she had left it in the kitchen.  The police attempted to arrest defendant a short distance from the apartment, but still in the same complex, and the defendant resisted.  During the struggle the Officers discovered a silver pistol on the ground where the struggle occurred, and, a short distance from where the defendant was stopped, the woman's green purse in a window well of the apartment building. McDonald claimed that he lived nearby with his girlfriend, who he named, and gave the police five different names when he was being questioned.  The victim identified the defendant on scene as the perpetrator and again during a physical lineup conducted a week later.

Prior to the trial and outside the presence of the jury, Calhoun County Circuit Judge James Kingsley ruled that the prosecution could impeach McDonald, if he chose to take the stand, with a prior home invasion conviction (the opinion does not state what the specific conviction was for, nor does it state how old the conviction was).

The Court of Appeals held that McDonald had waived any right to appeal the ruling because he chose not to take the stand.  The Court relied on the United States Supreme Court's ruling in Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), (followed by the Michigan Supreme Court in People v Finley, 431 Mich 506; 431 NW2d 19 (1988), and People v Boyd, 470 Mich 363; 682 NW2d 459 (2004)), where the Court reasoned that no error occurs to the defendant until the objectionable evidence is actually admitted in the trial.  The Court dispensed with the defendant's argument that the ruling forced him to waive his right to testify in his own defense, because "...if an offer of proof is made and the court erroneously permits the introduction of hearsay, character evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error requiring reversal unless the evidence actually is introduced. Unless the defendant actually testifies, a number of questions remain open to speculation." The Court found that, among other things, the defendant's decision not to testify could be based upon a number of reasons, the prosecution could decide against using the impeachment during the trial because the evidence comes in better than it had hoped, the judge could change his mind prior to admission of the impeachment evidence, etc. Because the defendant chooses not to testify and the evidence is not admitted, the ruling's impact on the outcome of the trial is too speculative for the appellate court to engage in any meaningful analysis of the issue.  Therefore, in order for a defendant to preserve his right to appeal an adverse ruling on a Rule 609 decision, the defendant must testify and the prosecution must impeach him with the prior conviction.

Criminal defense practitioners should take note, and advise clients accordingly, that in order to preserve the issue, the client, essentially, must fall on the sword if he ever hopes to appeal an erroneous decision by a trial court allowing the jury to know that he has been previously convicted.  It should be noted that in this particular case the defendant was also charged with being a felon in possession of a firearm and the fact that he was on parole at the time was also before the jury (for other reasons).  Therefore, I wonder whether the defendant's decision not to testify was really based upon his fear of being impeached or whether it was based upon some other reason.  I also wonder whether the Court had the same feeling.

Mr. McDonald was represented on appeal by Daniel Bremer of Burton, Michigan, and the prosecution was represented by APA Brandon Hultink of the Calhoun County Prosecutor's Office.