Thursday, July 29, 2010

Self Defense is Available to Felon-in-Possession of a Firearm

Last Friday, the Supreme Court rendered another opinion dealing with a criminal case in People v Roberto Dupree. The question presented was whether a defendant may assert the defense of self-defense when charged with being a felon in possession of a firearm contrary to MCL 750.224f. The answer, at least in regard to Dupree’s facts, is, “Yes.” The Court granted Dupree a new trial, finding that Wayne County Circuit Judge Brian Sullivan erred when he gave, sua sponte, a jury instruction which he called “the necessity defense to being a felon-in-possession.”
Justice Maura Corrigan wrote the opinion for the majority, consisting of Justices Weaver, Young, Markman, Hathaway and her, affirming the Court of Appeals published decision. (Judge Murray dissented).  Justices Cavanagh and Kelly concurred in the result but wrote separately concerning the additional defense of duress which the defendant raised separately. Kevin Ernst represented Dupree on appeal.

The defendant’s version of the events differed significantly from the prosecution’s, but did create a plausible self-defense argument. Dupree was at a party and observed the complainant, Reeves, shove a female relative off of the porch. Dupree interceded and told Reeves not to disrespect his sister-in-law. Reeves shoved Dupree and the two fell off the porch wrestling. During the struggle, Reeves shirt came up and Dupree saw a gun in Reeves’ waistband. Dupree was in fear for his life because Reeves was bigger, drunk and armed, and, when Reeves went for the gun, Dupree grabbed it. As the two struggled over the gun, Dupree shot Reeves three (3) times. Dupree kept the gun, left the premises and threw the gun out of his car window when he was a sufficient distance from the house. Dupree was charged with Assault with Intent to Murder, Felonious Assault, Felon in Possession of a Firearm and Felony Firearm. The jury found him not guilty on everything except being a felon in possession of a firearm.

The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that.” Michigan’s jurisprudence carries with it no such requirement, and the Court found that the error was not harmless.

Because the Court had granted leave to address whether, if at all, self-defense is available to a defendant in a felon-in-possession case, a majority of the opinion is devoted to answering that question. Because the defense is “embedded in our criminal jurisprudence” it is available as a defense to this charge even though the charge of felon in possession of a firearm was statutorily created and not part of the common law. “Legislative bodies enact criminal statutes against a background of Anglo-Saxon common law.” Unless the Legislature affirmatively abrogated the defense for a felon-in-possession charge, the Court concluded the defense is available. Of course, that means that, once the defendant proffers a prima facie case of self defense, it then becomes the prosecution’s burden to prove beyond a reasonable doubt the defendant did not act in self-defense. The Court affirmed the Court of Appeals’ decision to remand the case to Wayne County for a new trial on the felon-in-possession charge.  Time will tell whther the prosecution will actually go forward in light of the Court's ruling.

Tuesday, July 27, 2010

Spontaneity is the Key to 803A Tender Years Exception

In People v Gursky, the Michigan Supreme Court addressed the definition of “spontaneous” as the term is used in the “tender years” hearsay exception created by MRE 803A. The more restrictive definition declared by the Court resulted in the finding that the challenged statements were inadmissible and thus, had been erroneously admitted by the trial court. The victory for the defendant, however, was short lived as his four convictions for 1st Degree CSC (MCL 750.520b(1)a) were affirmed. The Court held the Macomb County Circuit Court’s error was harmless.

Gursky was convicted of committing multiple acts of sexual penetration with his girlfriend’s daughter when she was six and seven years of age. The child testified at trial about the charged incidents. However, the prosecution called an adult friend of the child’s mother who testified to several out of court statements made by the child in response to the witness’ probing questions, days after the last date of offense. The questions resulted from a “suspicion” the friend had about that “something had been going on” with Gursky towards the child. The questions asked by the friend to the child included: “if anyone had been touching her?”, “had anyone touched your private parts?”and “Who touched you?” After the child identified Gursky as the perpetrator, the friend asked more probing questions like: “What did he touch you with?” “Did he touch you any other way?” Did he touch you with his penis?” Circuit Judge Edward Servitto, over the objection of trial counsel, allowed the answers through the friend’s testimony under MRE 803A. He ruled the delay in disclosure was reasonable.

Gursky was convicted and appealed on the basis the challenged evidence should not have been admitted under the “tender years” exception, MRE 803A. More specifically, Gursky, represented on appeal by Robin Lerg, argued that the answers given by the child were not “spontaneous” because they were, in part, suggested by the questioning posed by the friend. The Court of Appeals disagreed on multiple fronts, but most notably because it found “Taken as a whole, the victim’s statements were primarily spontaneous, despite being prompted by [the friend’s] questions.”

The Court ruled that the answers from the child were clearly not spontaneous. It vacated the Court of Appeals’ ruling and rejected its reasoning. In so doing, Michigan’s highest court specifically stated it is not enough for “tender years” evidence to have simply a few “spontaneous elements” as allowed by the appellate court below. Instead, the Court ruled MRE 803A admissibility requires that spontaneity be an “independent requirement” and that it must be established that the evidence was not prompted, implied or manufactured in any way by the overreaching actions or interrogations of an adult. Since the questions posed by the adult friend here were too suggestive, the challenged answers were not admissible.

While the Court did not summarily reject the right of an adult to ask questions within the “tender years” context, it clearly emphasized any such inquiries to a child must be “…nonleading or open-ended in order for the statement to be considered the creation of the child.” If objective analysis finds the evidence resulted from the suggestion of an adult rather than the “creation of the child”, MRE 803A will certainly render the evidence inadmissible. The most important holding appears to relate to this bright-line rule: MRE 803A generally requires that the declarant-child initiate the specific topic of sexual abuse and that “…a statement prompted by an adult’s question specifically concerning sexual abuse is not spontaneous.”

J. Randall Secontine contributed to this post.

Monday, July 26, 2010

The Long Climb is Over in People v Hill

A divided Michigan Supreme Court on Friday reversed both the Muskegon Circuit Court and the Court of Appeals regarding what it means to “make or produce” child sexually abusive material under MCL 750.145c(2) when a defendant downloads child pornography from the internet and then simply copies those images to CD’s, where no proof exists to suggest the defendant had the intent to do anything other than retain the images for his own personal use. In People v. Hill, the defendant was charged with five counts of making child sexually abusive material, a twenty (20) year felony, and a Class B offense under the guidelines. Hill, represented on appeal by Grand Rapids attorney, Frank Stanley, contended he was merely guilty of the four (4) year felony for knowing possession of the prohibited material pursuant to MCL 750.145c(3), a much less serious Class D offense.

In 2006, police discovered 50 CD-Rs in Hill’s bedroom with over 70,000 images of child pornography. Justice Markman wrote for the majority and held, “that when the terms ‘produces’ and ‘makes’ in MCL 750.145c(2) are construed in accordance with their immediately surrounding text and with a view toward the statute’s overall organization, including a graduated scheme of offenses and punishments, a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD-Rs for his own personal use.”

For any of you that have handled such cases, it seems the Court has finally rendered an opinion that takes the totality of the statute into account. It has never made any sense to me to punish someone who copies a picture from the internet with the same severity as the guy who set up the lights, recruited the victim and snapped the photos of the child. Justice Markman aptly pointed out the correct definition of the term “make” with the following illustration: “Just as a person who downloads a song from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited image to a CD-R for his personal use has not produced or made the image.” Just as the prosecution must prove an intent to deliver to differentiate between a drug user and a drug trafficker, now, it appears same must be said for child sexually abusive material cases. The prosecutor now bears the burden of proving the defendant possesses an intent to do something other than merely possessing the material for personal use.

Justices Young wrote the dissent with Justice Corrigan joining. (Justice Weaver authored her own dissent). There, he argued, “the majority opinion relieves a defendant of criminal responsibility for making copies of child pornography ‘for personal use’ and creates out of whole cloth an additional hurdle for those prosecuting individuals who make child pornography.” Justice Markman responded to the dissent, by pointing out the distinctions in the statute that go from a twenty (20) year felony to a seven (7) year felony to a four (4) year felony. He wrote, “we do not ‘relieve …of criminal responsibility’ the computer downloader when we recognize that the Legislature drew distinctions in MCL 750.145c between types of misconduct. No criminal responsibilities are being ‘relieved’ when the legislative distinctions are respected and the computer downloader of prohibited material is made subject to a 4-year term of imprisonment and the distributor of the same material is made subject to a 7-year term of imprisonment instead of the 20-year term of imprisonment reserved for the producer of the material, but for whose actions the material would never have existed in the first place. The Legislature is entitled to draw distinctions in its definitions of criminal activity, and this Court is obligated as a general matter to abide by those distinctions.”

Daniel Corrigan Grano contributed to this post.