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.

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