Thursday, December 17, 2009

Troy Amends Local Ordinance for MIP's


On November 23, 2009, the Troy City Council amended the city's local ordinance, rescinding that portion authorizing police to issue tickets to underage drinkers who refuse to submit to a preliminary breath test. See, "Troy Changes Procedures on Underage Arrests." The amendment was in response to the Michigan Court of Appeals decision in People v Choudhury, a Troy student who was ticketed for being a minor in possession after submitting to a required PBT. Troy District Court Judge William Bolle had suppressed the evidence gained as the result of the PBT finding that the search of Chowdhury's person was accomplished without the benefit of search warrant or a recognized exception to the warrant requirement. The City appealed and, in a written opinion the COA called "succinct but complete," Judge Rae Lee Chabot affirmed. Judges Cynthia Diane Stephens, Kathleen Jansen and Kurtis Wilder rejected the City's contention that a warrant was not required because a "special need" existed, i.e., a compelling state interest in protecting young people from the dangers of alcohol abuse and in protecting the general public from the potential consequences of alcohol abuse by young persons.

The amendment also changed the wording of the ordinance, authorizing police to "request" a minor submit to a PBT as opposed to "requiring" compliance.

Wednesday, December 16, 2009

COA Affirms Murder Conviction for LaCalamita


Yesterday, the Michigan Court of Appeals affirmed the first degree, premeditated murder conviction of Anthony LaCalamita, III, in a short, 4-page per curiam opinion signed by Judges Pat Donofrio, David Sawyer and Donald Owens. As many may recall, LaCalamita was charged with murder as the result of a shooting spree in the Troy offices of Gordon Advisors. See, LaCalamita Sentenced to Life in Prison. The firm's receptionist, Madeline Kafoury, died as the result of gunshot wound to the chest. LaCalamita had been fired from his position with the company four days prior to the shooting.

On appeal, the Court rejected the defendant's claim that the verdicts of guilty on each of the multiple counts was against the great weight of the evidence. The defense claimed the evidence presented at trial clearly established that LaCalamita was legally insane at the time the crime was committed. The Court, however, reasoned that a verdict is against the great weight if the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. Simply because testimony may be inconsistent or contradictory, "even when impeached to some extent, is an insufficient ground for granting a new trial.”

At trial, the defense presented Dr. Norman Miller who opined that defendant was in a manic and delusional state at the time of the incident and believed that he was involved in a battle of good and evil. The prosecution countered with two experts, Dr. Carol Holden and Dr. Charles Clark, who concluded that LaCalamita, at worst, suffered from a personality disorder that did not rise to the level of a "mental illness" as defined by MCL 330.1400(g). A defendant is legally insane if he suffers from a mental illness and, as a result, lacks a “substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.” MCL 768.21a(1). A mental illness is “a substantial disorder of thought or mood that significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400(g). Posed with two opposing opinions regarding LaCalamita's mental status at the time of the crime, the jury was free to choose who to believe. The trial court, the Honorable Rudy Nichols, did not err in denying the defendant's motion for a new trial on the basis that the verdict was against the great weight of the evidence.

The trial court had also denied the defendant's request for surrebuttal closing argument (claiming he had the burden of establishing the insanity defense by a preponderance of the evidence). The COA found that MCR 6.414(G) gave no such right to the defense, even when the defendant had a burden, and, therefore, Judge Nichols did not abuse his discretion in denying the motion. Marilyn Day handled the matter for the prosecution, and the defense was represented by Royal Oak attorney, Peter Ellenson.

Tuesday, December 15, 2009

Oral Argument Watch


On Friday, the Supreme Court granted oral argument on two interesting criminal cases: one from the Kent County Circuit Court, People v Hercules-Lopez, and another out of Ingham County in People v Mushatt.
In Hercules-Lopez, the Court of Appeals, in a divided opinion, had reversed the jury conviction of the defendant for armed robbery, conspiracy to commit armed robbery and felony firearm. During deliberations, the jury expressed some confusion as to whether they could conclude the defendant had entered an agreement to commit the crime charged. The trial court replied, without the defendant's attorney present, “If the defendant actually agreed with another to commit a crime, it does not matter why he agreed.” The majority, Judges Jane Markey and Stephen Borrello, concluded that giving the supplemental, non-standard jury instruction without counsel's presence was a critical stage of the proceedings and the complete denial of counsel at a critical stage requires automatic reversal. Judge William Murphy, in dissent, found the giving of the supplemental instruction was not a critical stage of the proceedings because the supplemental instruction was no different than the unobjected-to instruction given earlier. It is interesting to note that Judge Murphy concluded that the trial attorney was made aware of the judge's actions prior to the jury reaching a verdict, and that fact seemed to weigh in his conclusion. On the other hand, the majority held that nothing was placed on the record regarding the instruction until after the jury had reached a verdict.

The MSC granted oral argument in the matter directing the parties to brief whether defendant was denied counsel at a critical stage, whether the trial court's answer was merely a repeat of the standard instruction and whether any relevance should attache to trial counsel's actions after being informed of the instruction while the jury was still deliberating.

The MSC granted leave in Mushatt for the parties to argue whether OV3 (bodily injury not requiring medical treatment) should be scored for actions that are not part of the sentencing offense. Mushatt had been convicted of LIB and Fleeing and Eluding when the facts showed he stole a wallet from an employee inside an office. In leaving the scene, before being chased by the police, he struck a woman with his car, leaving a bruise that did not require medical treatment. The trial court scored 10 points for OV3, even though the defendant had been acquitted of felonious assault, and the COA affirmed.

The MSC asked for oral argument on whether the OV was scored consistently with the Court's prior opinion in People v McGraw, from earlier this year. There, the Court held that OV9 (multiple victims) could not be scored where the victimes were not put in harm's way until after the sentencing offense had been committed.

We will keep you posted as the dates for oral arguments are scheduled on these interesting issues.

Thursday, December 10, 2009

Miranda - Did Florida Grant More?

The following article is reprinted from the SCOTUSblog, an excellent blog published by Tom Goldstein of Akin, Gump, Strauss, Hauer & Feld, LLC. The article was written by Anna Christiansen. The case framed the following: Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

"Below, Sam Bateman of Stanford Law School recaps Florida v. Powell, one of two cases heard by the Court on Monday. Sam previewed the case here on Sunday, and Lyle’s post-argument analysis is available here. Check the Florida v. Powell (08-1175) SCOTUSwiki page for additional updates.

At oral argument on December 7 in Florida v. Powell, the Court grappled with how far a “Miranda warning” can deviate from the standard content typically included in such warnings – particularly an admonition regarding a suspect’s right to have counsel present “during” questioning – before it ceases to comply with Miranda. The inquiry was complicated not only by the inherent difficulty of drawing lines in the sand in a doctrine that is not supposed to require “magic words,” but also by contradictory indications in the forty-three-year-old Miranda decision itself.

Lyle Denniston has already ably and extensively chronicled the main substance of the arguments on whether the standardized Tampa police form used in Powell’s case complies with the strictures of Miranda. This post will focus, therefore, on a collateral procedural matter which several of the Justices nevertheless seemed interested in exploring at the argument: whether the Florida Supreme Court’s decision striking down the Tampa warning rested on an adequate and independent state law ground.

The answer to that question may well be significant in the case, because if the Florida court rested its decision on independent Florida law in addition to federal law, the Court’s adequate and independent state ground doctrine would require it to refrain from issuing a decision. And at the start of the State’s argument, several Justices pressed the State’s counsel on whether that doctrine should come into play in this case. As Justice Ginsburg put it, could the Florida court on remand “say: Well, that’s very nice, but we have a Florida Constitution [and] we are putting [the requirement that warnings include the phrase ‘during questioning’] squarely under the Florida Constitution” – thereby rendering any Supreme Court decision effectively advisory? But counsel for Florida, Joseph Jacquot, responded that the theoretical possibility that the state court could do so was irrelevant; the adequate and independent state ground doctrine only bars review when the state court has clearly indicated that its decision rests on an independent state ground, while in this case the Florida Supreme Court “interwove Federal law” into its discussion of its own precedent.

Powell’s counsel then returned to the argument during her allotted time, arguing that “the Florida Supreme Court must have referred to its constitutional provision . . . at least five times.” She encountered heavy skepticism from the bench, however, as to whether that would strip the Court of the ability to hear this case. Justice Kennedy pointed out both that the Florida court always discussed its own precedent in connection with Miranda, and that no Florida Supreme Court case has ever stated that Florida has a warning requirement that is more rigorous than Miranda itself. Justice Scalia, meanwhile, noted that the Florida court was only asked to decide the certified question of whether the Tampa warning complied with Miranda, not the Florida Constitution, though Justice Stevens responded that the use of the generic term “Miranda warnings” could encompass both federal and state constitutional law.

Ultimately, it was unclear whether Powell could find five votes willing to dismiss the case on adequate and independent state law grounds. Instead, it seemed more likely that the Court will reach the merits and finally provide some added clarity to law enforcement regarding the precise wording that Miranda requires."

Sunday, November 8, 2009

Oral Argument This Week on Oakland County CSC Conviction Reversal

The Michigan Supreme Court continues its weekly oral argument schedule on November 4, 2009. The Court hears arguments in the appeal of People v Redd on Wednesday morning.

Defendant Anthony Marion Redd was accused of having sexual intercourse with a 14-year-old girl. An Oakland County jury convicted him of third-degree criminal sexual conduct. However, the trial court, Honorable Rudy Nichols, granted the defendant’s motion for a new trial because the prosecutor obtained extensive testimony from a police detective that the defendant failed to answer certain accusations about the assault and suddenly left an interview. The Michigan Court of Appeals reversed the trial court and reinstated the conviction.

The Michigan Supreme Court is asked to decide three issues on appeal:

1.Did the trial court abuse its discretion when it granted the defendant a new trial?
2.Did the trial court err in admitting the police detective’s testimony?
3.Did the defendant waive any error when his attorney expressed satisfaction with the trial court’s instructions to the jury?

Court sessions will be held on the sixth floor of the Michigan Hall of Justice in Lansing. Oral arguments begin at 9:30 a.m. The Court’s oral arguments are open to the public. Cyril Hall, Pontiac, Michigan, represents the Appellee and Danielle Walton from the Oakland County Prosecutor's Office will argue for the prosecution.

Videos of Michigan Supreme Court oral arguments are also available online. Hearings will be recorded at the Hall of Justice, and posted on the State Bar of Michigan’s “Virtual Court” web page within 24 to 48 hours.

Saturday, November 7, 2009

Objectively Unreasonable Errors Do Not Equate to Ineffective Assistance of Counsel


On November 3, 2009, the Court of Appeals issued one of two published opinions in People v. Davenport, Docket No. 271366. Gary Davenport was convicted of six counts of 1st Degree Criminal Sexual Conduct following a bench trial. The primary issue on appeal pertained to his trial counsel’s failure to challenge the potential conflict of interest when his first attorney joined the Presque Isle County Prosecutor’s Office.

Before trial, but after the preliminary exam, the defendant’s attorney “switched sides” and went to work as one of two attorneys at the county prosecutor’s office (same office pursuing the CSC charges). The successor trial counsel did not raise the potential conflict issue, nor was it addressed by either the trial judge or the prosecutor. In the first appeal, People v. Davenport, 280 Mich App 464 (2008), the defendant made an ineffective assistance of counsel claim based, in part, on defendant’s trial counsel failure to move for disqualification of the prosecutor’s office or otherwise raise the potential conflict. In response, the Court of Appeals made numerous initial findings:

1) The trial lawyer’s failure to raise the possibility of conflict constituted “an objectively unreasonable error."
2) It was “plain error” for the trial court not to explore the issue and make findings on the appropriateness of the safeguards, if any, put in place by the prosecutor’s office to protect privileged matters on the defendant’s behalf.
3) If a defendant shows a member of the prosecutor’s office represented or counseled him in the same or a related matter, a rebuttable presumption is created that members of the prosecutor’s office conferred about the case.
4) The burden of overcoming the presumption requires the prosecution to prove that “effective screening procedures have been used to isolate the defendant’s former counsel from the prosecution of the substantially related criminal charges”
Since the record was insufficient on the issue, the Court of Appeals remanded the case in 2008 to the trial court for an evidentiary hearing. The focus of the hearing was to determine if the prosecutor’s office had created sufficient pre-trial safeguards to prevent the trial prosecutor from receiving any communications about the case from the defendant’s former attorney, now turned assistant prosecutor.

Following the lengthy post remand evidentiary hearing, the Court of Appeals found in this opinion that the prosecutor’s office had met the requisite burden by showing appropriate steps were both implemented and followed, thereby preventing improper communications or involvement by the defendant’s past counsel. As a result, the court found that the record failed to establish defendant was prejudiced by his previous lawyer’s move to the local prosecutor’s office prior to defendant’s trial. In short, even though his trial counsel committed an “objectively unreasonable error,” defendant was not entitled to relief for ineffective assistance of counsel because he was unable to establish prejudice, i.e., that the outcome would have been different had the defendant’s attorney moved to recuse the county prosecutor’s office.

J. Randall Secontine contributed to this post

Sex Offender Registry Does Not Apply to Romeo and Juliet under HYTA


The Michigan Court of Appeals ruled in People v. DiPiazza, (COA # 284946) on November 3, 2009, that a defendant who completed HYTA (Holmes Youthful Trainee Act) could not be required to register under Michigan’s Sex Offender Registry Act because it imposed on the defendant cruel and unusual punishment in violation of Michigan Constitution, Const 1963, art 1, § 16.

Robert DiPiazza, age 18, had consensual sexual intercourse with his then-14-year-old high school sweetheart. A high school teacher had found a photograph of the two in bed and contacted the local prosecutor. Subsequently, he pled guilty to one count of attempted CSC, 3d degree, and was sentenced under the HYTA in August, 2004. He successfully completed his term of probation. (The two were ultimately married in 2009 and expecting their first child in June of this year). The trial court, however, ruled that DiPiazza was still required to register as a sex offender because the SORA was not amended until six weeks after he was sentenced. The trial court stated, “If I had some discretion, yours is one of those Romeo and Juliet cases where I would probably grant your relief.”

In Michigan, the Sex Offender Registration Act (SORA), MCL 28.721 et seq., had been in a state of flux between 1995 and 2004. Prior to 1999, there was no issue if a HYTA candidate was required to register as a sex offender as the SORA did not provide for a public database and therefore if one was required to register and received HYTA, which keeps records private and leaves a young person with no criminal conviction, the public would not be privy to that information. Between October 1, 1995 and October 1, 2004, if one was convicted of a sex offense, one was required to register even if granted YTA status. The legislature corrected the problem for HYTA recipients by amending SORA, effective October 1, 2004, and stating that a youthful trainee was no longer required to register if he or she successfully completed HYTA. Mr. Dipiazza fell into the group between 1999 and October 1, 2004, as he pleaded guilty on July 23, 2004.

The court was struck by the disparity of the sentences between someone who was sentenced prior to, or after, October 1, 2004. Judge Fitzgerald wrote for the court, “[i]t is incongruous to find that a teen that engages in consensual sex and is assigned to youthful trainee status after October 1, 2004, is not considered dangerous enough to require registration, but that a teen that engaged in consensual sex and was assigned to youthful trainee status before October 1, 2004, is required to register. The implied purpose of the SORA, public safety, is not served by requiring an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship.” (P. 7).

The court decided that two questions needed answering; first, do the registration and notification requirements of SORA impose punishment on a defendant? Second, do the registration and notification requirements of SORA impose cruel and unusual punishment? The court found both in the affirmative. On the cruel and unusual punishment analysis, the court was moved by an Indiana court decision in Indiana v. Wallace, 905 NE 2d 371 (2009), that said Indiana’s SORA is punitive because it makes information available on all sex offenders without restriction and without regard to whether the individual poses any particular risk. The Michigan court concluded that Mr. Dipiazza, “… is not a sexual predator, nor did the trial court deem him to be. Further, even if defendant needed rehabilitation, SORA’s labeling him to be a convicted sex offender works at an opposite purpose, preventing defendant from securing employment and otherwise moving forward with his life plans.” (P. 11). Thus, the court held that as applied to Mr. Dipiazza the requirement to register as a sex offender amounted to cruel and unusual punishment.

We will keep an eye on this interesting case, and be sure to let everyone know if the Muskegon County Prosecutor decides to apply to the Supreme Court for leave to appeal.

Daniel Corrigan Grano contributed to this post.

Monday, July 13, 2009

Availability of Opinions

The full text of all of the opinions cited in our blog are available at the Supreme Court and Court of Appeals websites. The links for both are listed in the column on the right.

COA Rules for Plaintiff in Civil Rights Act Case

The Michigan Court of Appeals recently issued a published opinion dealing with Michigan’s Civil Rights Act that could have significant impact on the availability of certain causes of action not confined only to the prisoner/jailer relationship. In Hamed v Wayne County Plaintiff was in custody of Wayne County deputy sheriffs who transported her to Wayne County Jail. Deputy Johnson was alone on duty in the male registry area of the jail. Jail regulations required attendance of a female deputy in the presence of female inmates. However, upon being contacted, Sgt. Dawash permitted the deputies to leave plaintiff alone with Johnson.
The Plaintiff alleged that Johnson subjected her to unwanted sexual conduct in circumstances that suggested that her treatment as an inmate would depend on whether she submitted to that conduct. Johnson then directed her into a private office where he sexually assaulted plaintiff. Johnson was subsequently convicted of criminal sexual conduct.
The trial court erred in granting summary disposition for defendants in this case arising from violations of Michigan Civil Rights Act (“CRA”) on the ground that defendant Wayne County’s employee acted outside the scope of his authority when he sexually assaulted the plaintiff. The court of appeals held that strict vicarious liability for employers is applicable in quid pro quo sexual harassment arising from the provision of public accommodations and public services, when the harassment consists of a sexual assault.
The Plaintiff claimed that Wayne County was liable for Johnson’s actions under the theory of respondeat superior. However, the trial court granted summary disposition for defendants with respect to plaintiff’s claims for quid-pro-quo sexual harassment on the ground that Johnson acted outside the scope of his authority when he sexually assaulted the plaintiff and thus Wayne County and the department could not be found liable under a theory of respondeat superior
A plaintiff claiming quid-pro-quo harassment in the context of public accommodations must show that the provider of those services or accommodations, or the provider’s agent, used her submission to, or rejection of, the unwanted conduct as a factor in a decision affecting the plaintiff’s access to the public or accommodations.
In Champion v Nation Wide Security, 450 Mich 702 (1996), the Supreme Court adopted the view that imposes strict liability on employers for quid-pro-quo sexual harassment committed by supervisory personnel. The Court held that a supervisor’s sexual assault of a subordinate employee is a form of quid-pro-quo sexual harassment, and that the employer is strictly liable for the supervisor’s conduct only where the assault is accomplished through the use of the supervisor’s managerial, or supervisory powers.
The court held that the strict liability analysis of Champion was applicable to the circumstances presented in this case, finding that Johnson did not merely use his position to find opportunities to commit a sexual assault against plaintiff, rather he used his authority as a turnkey to exploit her sexually. Therefore, plaintiff’s amended complaint plead facts sufficient to support a claim that Johnson’s managerial authority was instrumental and integral tool in perpetrating the sexual assault.
Submitted by Andy Dragovic, Associate Attorney,
Flood, Lanctot, Connor & Stablein, PLLC

Monday, July 6, 2009

MSC is Balanced in Borgne and Shafier Opinions

On July 1, 2009, the Michigan Supreme Court issued two separate but intertwined opinions dealing with the issue of whether prosecutors can use a criminal defendant's post-arrest, post-Miranda silence as evidence in the prosecution's case-in-chief or as impeachment of the defendant should he provide exculpatory testimony in defense of the charges. In People v Shafier and People v Borgne, Justice Michael F. Cavanagh, writing for the majority (Justice Marilyn Kelly concurring), reached opposite results on what at first blush may seem to be identical cases.

In Shafier, the defendant was convicted of two counts of Second Degree Criminal Sexual Conduct based upon the allegations of his 13 year-old adopted daughter. The jury acquitted him of three additional counts of First Degree Criminal Sexual Conduct. Once the allegation was made, the defendant was immediately arrested and Mirandized. When he was first confronted by the arresting officer about the allegations, the defendant chose to "keep his mouth shut" because he was "shocked and didn't know what to say" and wanted "to wait and talk to somebody." The prosecutor used the fact of the defendant's silence "pervasively" in the trial - in his opening, direct examination of the arresting officer, cross examination of the defendant and his closing argument. The Court found, rather easily, that the State's use of the post-arrest silence violated the defendant's due process rights pursuant to Doyle v Ohio, 426 US 610 (1976). The issue became, however, because the error was unpreserved at the trial, whether it was "plain error" under the Carines standard. The Court held that it was. The trial was a close credibility question between the defendant and the complainant, the evidence was not overwhelming (the jury acquitted defendant of the most serious offenses) and the outcome "seriously affected the fairness, integrity or public reputation of a judicial proceeding." The Court affirmed the Court of Appeals' decision to reverse the defendant's conviction.

In Borgne, however, the Court reversed the Court of Appeals' decision reversing the defendant's convictions of armed robbery and felony firearm. The victim was pumping gas when she was approached by a man who grabbed her and demanded her purse. He showed a gun and the victim gave the man her purse. She then began screaming that she had been robbed and enlisted the help of bystanders to chase the man. When the police arrived, one of her helpers showed the police an abandoned warehouse. The police went in and found the defendant hiding in a corner. As soon as they exited the building, the victim exclaimed, "That's him, that's the man that robbed me!"

At trial, the defendant testified he was hiding in the building because he had heard gunshots and was afraid of being shot at. On cross, the prosecutor asked the defendant whether he had said anything about this sotry to the police when he was arrested. the defendant stated he had tried to but they put him into the back of the patrol car without listening to him. The prosecutor pressed further and asked about the defendant's further silence about the incident at the police station after he had been Mirandized. The defendant, without objection from his counsel, testified that he told the officer he wanted to wait for a lawyer to help him in the matter before he answered any questions. The prosecutor then utilized the defendant's silence at the station in his summation, arguing that a year has gone by and the defendant had told no one about the story of someone shooting at him.

Though the facts appear similar in both cases, the Supreme Court, again Justice Cavanagh, concluded the Court of Appeals erred in reversing the defendant's convictions. The Court decided against the defendant primarily on the fact that the case against the defendant was overwhelming and that the prosecutor's use of his silence, though a constitutional violation, did rise to the level necessary to satisfy the prongs of the plain error analysis under Carines. However, the Court did have this to say about the prosecutor: "It is, nevertheless, important to make clear that the prosecutor's violation of Doyle in this case is not taken lightly....To be clear, the prosecutor has not won this appeal; rather, the defendant has lost it because he has not proven that the Doyle violation entitles him to a new trial under the plain error doctrine."

Thursday, July 2, 2009

The New Michigan Supreme Court Blog Begins Today

Daily, the Michigan Supreme Court and the Michigan Court of Appeals issue opinions that have a significant impact on the legal community, the business community, schools, government and society in general. It is our hope to provide one central location to afford the oportunity for all to discuss the decisions of Michigan's courts and for us to hopefully simplify and make the decisions easier to understand for the general public. We will present the issues decided, prognosticate on what impact the decision will have and generally discuss the goings on at Michigan's highest courts. We hope this site will provide everyone with informative and valuable insight into the sometimes mysterious high courts. Welcome.