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In this interlocutory application for leave, the Michigan Court of Appeals yesterday published it's previously unpublished opinion in People v Calvin Kelly, Docket No. 331731, reversing the Kalamazoo Circuit Court's decision to exclude evidence offered by the prosecution pursuant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

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."