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.