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."