Wednesday, December 18, 2013

To Testify or Not to Testify? COA Says Defendants Must

Yesterday, the Michigan Court of Appeals published an opinion affirming the first degree home invasion conviction of a defendant who decided not to testify in his own defense because the trial court had ruled, in limine, that the prosecution could impeach him with a prior home invasion conviction under MRE 609.  In People v McDonald, Docket No. 311412 (December 17, 2013), Judges Borello, Fitzgerald and Murphy held that Gerald McDonald had failed to even preserve the issue because he did not testify in the trial.

The defendant was accused of having broken in to a woman's apartment and, with a silver pistol, ordered her to give him money.  She told the intruder she had no money and he left, taking her purse from where she had left it in the kitchen.  The police attempted to arrest defendant a short distance from the apartment, but still in the same complex, and the defendant resisted.  During the struggle the Officers discovered a silver pistol on the ground where the struggle occurred, and, a short distance from where the defendant was stopped, the woman's green purse in a window well of the apartment building. McDonald claimed that he lived nearby with his girlfriend, who he named, and gave the police five different names when he was being questioned.  The victim identified the defendant on scene as the perpetrator and again during a physical lineup conducted a week later.

Prior to the trial and outside the presence of the jury, Calhoun County Circuit Judge James Kingsley ruled that the prosecution could impeach McDonald, if he chose to take the stand, with a prior home invasion conviction (the opinion does not state what the specific conviction was for, nor does it state how old the conviction was).

The Court of Appeals held that McDonald had waived any right to appeal the ruling because he chose not to take the stand.  The Court relied on the United States Supreme Court's ruling in Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), (followed by the Michigan Supreme Court in People v Finley, 431 Mich 506; 431 NW2d 19 (1988), and People v Boyd, 470 Mich 363; 682 NW2d 459 (2004)), where the Court reasoned that no error occurs to the defendant until the objectionable evidence is actually admitted in the trial.  The Court dispensed with the defendant's argument that the ruling forced him to waive his right to testify in his own defense, because "...if an offer of proof is made and the court erroneously permits the introduction of hearsay, character evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error requiring reversal unless the evidence actually is introduced. Unless the defendant actually testifies, a number of questions remain open to speculation." The Court found that, among other things, the defendant's decision not to testify could be based upon a number of reasons, the prosecution could decide against using the impeachment during the trial because the evidence comes in better than it had hoped, the judge could change his mind prior to admission of the impeachment evidence, etc. Because the defendant chooses not to testify and the evidence is not admitted, the ruling's impact on the outcome of the trial is too speculative for the appellate court to engage in any meaningful analysis of the issue.  Therefore, in order for a defendant to preserve his right to appeal an adverse ruling on a Rule 609 decision, the defendant must testify and the prosecution must impeach him with the prior conviction.

Criminal defense practitioners should take note, and advise clients accordingly, that in order to preserve the issue, the client, essentially, must fall on the sword if he ever hopes to appeal an erroneous decision by a trial court allowing the jury to know that he has been previously convicted.  It should be noted that in this particular case the defendant was also charged with being a felon in possession of a firearm and the fact that he was on parole at the time was also before the jury (for other reasons).  Therefore, I wonder whether the defendant's decision not to testify was really based upon his fear of being impeached or whether it was based upon some other reason.  I also wonder whether the Court had the same feeling.

Mr. McDonald was represented on appeal by Daniel Bremer of Burton, Michigan, and the prosecution was represented by APA Brandon Hultink of the Calhoun County Prosecutor's Office.

Monday, November 11, 2013

COA: MMMA Status not Relevant to Dispensary Delivery

The Michigan Court of Appeals recently affirmed the Oakland County conviction of a Michigan Medical Marijuana Act card holder, when he delivered a small amount of marijuana to an undercover officer who possessed a fabricated medical marijuana card.  In People v VanSickle, Docket Number 309555 (November 5, 2013), Judges Servitto, Cavanagh and Wilder held, in a published opinion, that the trial court did not err in granting the prosecution's motion in limine requesting an order that the defendant be prevented from mentioning in the trial that he was a medical marijuana patient and, therefore, legally delivered the marijuana to another patient pursuant to Sec. 4 of the Act.

Jason VanSickle was arrested following the investigation of a Ferndale dispensary in 2010 (incidentally, the trial court had dismissed charges against seven of the owners or operators of the dispensary.)  During that investigation, undercover officers, posing as legitimate medical marijuana patients, met the defendant in the waiting room of the dispensary.  They engaged in friendly banter during which VanSickle stated he was there to sell his overage of marijuana to the dispensary.  During the conversation VanSickle offered to sell marijuana to the officers.  They went out to the parking lot and into VanSickle's truck where he produced a digital scale and a quantity of marijuana from a mason jar, and sold 1/4 ounce of marijuana to the officers for $50.00.

The Court dispensed, so to speak, with VanSickle's entrapment argument, finding that the officers had not engaged in conduct that would induce an otherwise law-abiding citizen to commit the crime, nor was their conduct so reprehensible that the Court could not tolerate it.  Though the officers lied about their status as MMA patients, the Court reaffirmed the position that law enforcement officers may engage in deception in order to uncover criminal activity as long as their actions do not create a crime.  Here, the officers only showed their fake cards to the dispensary personnel and not VanSickle, and he never asked to see them.

More interestingly, the Court also gave its blessing to the trial court's granting of the motion in limine. Because the defendant was prohibited from selling marijuana to any patients by the Court's 2011 ruling in People v MacQueen, 293 Mich App 644 (2011) (patient to patient transfers are not protected activity under the MMMA), VanSickle's status as a patient was irrelevant.  Therefore, any mention of his status as a card holder or allowing him to argue he was protected under Sec. 4 of the Act was prohibited by MRE 402 as the rule prohibits "the admission of evidence that is not relevant."  In addition, the Court gave full retroactive effect to MacQueen, finding that the ruling in MacQueen did not make criminal that which was previously legal and, therefore, did not violate the ex post facto clause of the Constitution.

The case was argued to the Court of Appeals by Jim Rasor for the defendant and Jeff Kaelin for the Oakland County Prosecutor's Office.

Monday, September 2, 2013

COA Rules a Teacher is a Teacher, No Matter the Time of Year

Bay City Central High School
Earlier this past week, the Michigan Court of Appeals decided the issue of whether a substitute teacher can be tried for criminal sexual conduct with a student when the alleged acts occur in the summertime when school is not in session.  In People v Heidi Leanne Lewis, Docket No. 310949, a per curiam opinion, the Court held that the fact the teacher was not technically in a position of authority over the student at the time of the alleged acts, the Bay County Circuit Court's decision to dismiss the charge against the teacher was, nonetheless, error.  The Court reinstated the case against Heidi Leanne Lewis and remanded the matter to Bay County for further disposition.

Apparently, a number of male students had alleged that Ms. Lewis had engaged with them in sexual acts that occurred during the summer months.  According to the Associated Press, Lewis taught British Literature in a special education class at Bay City Central High School early in 2010. Prosecutors said she had sex with three of her male students that summer. Prosecutors say the trysts did not take place on school property.  The charges were dismissed by Judge Kenneth Schmidt in June, 2012, after the second mistrial.  The court held that the charges should be dismissed because Ms. Lewis was not a contractual employee of the district during the summer months.

The Court of Appeals, however, reversed after a lengthy legislative intent analysis on the meaning of the word "is."  The CSC 3rd statute, MCL 750.520d, states that a person is guilty of CSC in the 3rd degree if the complainant is between 16 and 18, and the defendant "is" a teacher.  The Court found that the dictionary definition of "is" is "be", and "be" means "to occupy a place or position."  The statute does not articulate any time frame in which the act is to have occurred, and the Court reasoned, "Consequently, if a sexual penetration occurs by a substitute teacher after the school bell rings, or on a Saturday, or during the summer prosecution pursuant to MCL 750.520d(1)(e)(i) is not foreclosed."  As long as the defendant occupies the place or position of a substitute teacher and the complainants meet the statutory definition, the defendant may be convicted of the offense.

The Court pointed out that the prosecution's brief failed to conform to the court rules (the prosecution submitted only cross examination of some of the witness testimony), and, I would suspect, had the defendant complained of the deficiencies the Court would have stricken the brief.  However, because their ruling was not very fact specific, and the defendant failed to object, the Court reasoned they had enough facts from the sparse transcripts submitted to rule on the issue.

The prosecution was represented on appeal by Sylvia Linton and the defense by Courtney Thom of Midland.

Saturday, August 24, 2013

COA Upholds Priest-Penitent Privilege

Yesterday, the Michigan Court of Appeals, in a per curiam opinion, affirmed the dismissal of charges against John Prominski, the pastor at Resurrection Life Church in Ionia, Michigan who had been charged by the Ionia County Prosecutor's Office with failing to report suspected child abuse.  People v Prominski, Docket No. 309682.

Section 3 of the Michigan Child Protection Law mandates the reporting of suspected child abuse or neglect to the authorities by members of the clergy. MCL 722.623.  However, MCL 722.631, in abrogating any other privileged communications, retains what we commonly refer to as the "priest-penitent" privilege, those communications "made to a member of the clergy in his or her professional character in a confession or similarly confidential communication."

In 2009, one of Rev. Prominski's parishioners approached him, seeking his advice as to what to do, because she suspected that her husband was molesting her two young daughters.  She told her pastor that her husband was making the girls touch themselves, and she wanted to know if she should report her suspicions to the authorities.  Rev. Prominski did not report the suspected abuse but agreed to speak to the husband and counsel him.  Two years later, the mother approached her pastor again and told him that the abuse was continuing and that she had discovered her husband in the girls' room in the middle of the night and her daughter screaming that he had touched her.  Rev. Prominski advised the mother to report the abuse or he would.  The woman's husband was prosecuted and imprisoned in 2012.

The prosecution, upon discovering the 2009 conversation between Rev. Prominski and the mother, charged him with failing to report the suspected abuse, a 93-day misdemeanor under MCL 722.633(2).  The district court, Judge Raymond P. Voet, dismissed the charge, holding: "I can’t find anything but that this was done within exactly what the privilege was intended to target," because the mother went to her pastor "for guidance, advice and expected that the conversation be kept private."  The Circuit Court affirmed the dismissal and the prosecution sought leave to appeal.

The prosecution argued that the mother's revelations to the defendant were not a confession in the traditional sense because she was not admitting any wrongdoing on her own part, but was divulging the wrongdoing of another person, her husband.  The Court of Appeals was not persuaded because the privilege identified in Section 11, protects not only confessions but also "similarly confidential" communications between the clergy and the parishioner.  Clearly, the mother here had approached her pastor to seek his guidance and advice on what to do, and she did not expect that her conversations were going to be made public without her consent.

The prosecution was represented in the Court of Appeals by Kristen Stinedurf and Rev. Prominski was represented by Grand Rapids attorney, Bruce Alan Block.

Saturday, August 3, 2013

Hitting Victim in Head with Airsoft Gun Results in 50 Offense Variable Points

This past week, Justice David Viviano had the opportunity to issue his first opinions dealing with appeals in criminal cases.  In People v Hardy and People v Glenn, Docket Numbers 144327 and 144979, two cases consolidated for the appeal, the Court dealt with the proper scoring of Offense Variable 7.  In each case the trial court had assessed 50 points for the variable because the statute authorizes scoring where "a victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense."  MCL 777.37(1)(a).  Hardy's carjacking case originated in Oakland County (Judge Michael Warren) and Glenn plead guilty to armed robbery in Jackson County (Judge John McBain).

The prosecutor argued that Hardy had engaged in conduct designed to substantially increase the fear and anxiety of the victim when, in addition to pointing a shotgun at the victim in order to steal the car, he racked the shotgun.  The Court turned to the United States Army Technical Manual to define "racking" a shotgun as pulling the slide of the weapon along the forestock, then pushing it back to its original position.  The prosecutor argued the act of racking the gun was only to threaten the victim with immediate and violent death.  His trial counsel agreed, stating, "I cannot argue with that, your honor."  Judge Warren sentenced Hardy to 12 to 50 years in prison.  His appellate counsel argued Hardy had received ineffective assistance of counsel because the trial attorney failed to object to the scoring.

Glenn, while robbing a gas station, had hit the victim in the back of the head with his plastic airsoft shotgun, knocking him to the ground, before emptying the cash register.  The Jackson County Prosecutor argued the act of hitting the victim in the back of the head was designed to get them to move faster and to be afraid.  In Glenn's case his attorney did object, but Judge McBain found in favor of the prosecution and sentenced Glenn to 15 to 30 years in the MDOC.

In each case, Justice Viviano, joined by Justices Young, Kelly, Zahra, Markman and McCormack, held that the trial court had appropriately added 50 points to the defendants' offense variable scores.  The Court found that if 1) a defendant engages in conduct beyond that necessary to commit the crime and 2) the defendant intends to increase the victim's fear and anxiety by a considerable amount, a sentencing judge may then add 50 points for OV 7.

In both cases, the defendants had argued their actions were not designed to increase the fear and anxiety of the victim, but were committed merely to urge compliance with their demands - in Hardy's case to turn over the car and in Glenn's case, to hurry and empty the cash register.  The Court, however, found that in order to gain compliance from the victims, the defendants were increasing the victims' fear and anxiety by a considerable amount.  In each case the trial court had not erred.

Saturday, July 27, 2013

No Strict Liability for Dog Owners under Dangerous Animals Act

"Today, there are roughly 4,500 federal crimes on the books.  And still many more regulations and rules that, if not abided by, result in criminal penalties, including incarceration.  Many of these laws impose criminal penalties – often felony penalties – for violations of federal regulations.  Americans are expected to know it is wrong to commit murder or burglary or engage in an act of terrorism, regardless of what the law says.  But today Americans must contend with literally thousands of obscure and cumbersome federal regulations, a simple misreading or ignorance of a regulation can land a person in prison."  Rep. Jim Sensenbrenner (R-WI), Chairman of the Crime, Terrorism, Homeland Security and Investigations Subcommittee and head of Congress' Over-Criminalization Task Force.

Though Congress appears to be taking steps to reduce the explosion of the enactment of federal criminal statutes undertaken in the past 25 years, yesterday's opinion from the Michigan Court of Appeals at least appears to be the judiciary's best effort to reign in the Michigan Legislature's emulation of federal over-criminalization.

In People v Janes, Docket No.312490, the issue was whether the Michigan Legislature intended that dog owners be penalized criminally (a four-year felony in this case) when their dogs injure or kill another person, regardless of whether the dog's owner had any previous knowledge of the dangerousness of the animal.  Judge Michael Kelly, joined by Judge Stephen Borello, held that the Legislature did not intend strict liability for dog owners under the Dangerous Animals Act, MCL 287.323.  Judge Kathleen Jansen dissented.

In May, 2012, John Wesley Janes was recovering from knee surgery at the home of Cheryl Anderson in rural Alger County, home of Pictured Rocks National Lakeshore and part of the Hiawatha National Forest.  Anderson already owned a cocker spaniel, and about three weeks prior to the incident, Janes acquired a pit bull from the local animal shelter.  The animal shelter employees had not reported any aggressive tendencies of the dog and, in fact when the previous owner had dropped the dog at the shelter, the owner signed a statement that the dog had not bitten anyone within the previous two weeks.

On May 18, a young girl had been dropped off by the school bus in front of the Anderson home.  As the girl approached the house, a woman who was in the house saw the two dogs run toward the girl.  The woman ran out to stop the dogs from jumping on the girl.  She was able to control the cocker spaniel, but the pit bull bit the girl on the arm and face and would not stop.  The woman picked up the girl to try and keep her from further injury, and the pit bull began biting the girl's legs.  Finally, Janes' adult son, who was also living at the residence, was able to control the dog and get it in the house.  The injuries to the girl's legs were the most serious: "her knee was torn up bad, right to the bone."

The district court held the preliminary examination and ruled that MCL 287.323(2) was a strict liability offense and bound Janes over to the circuit court.  Janes filed a motion to quash, claiming that the offense required the prosecution to prove, among other things, Janes's knowledge that the animal was dangerous prior to the incident in order for him to stand trial on the criminal charge.  The circuit court denied his motion to quash, but did hold the prosecution must establish Janes's knowledge at the upcoming trial and that the jury instructions would encompass such an element.  The prosecution sought interlocutory leave to appeal.

The Animal Control Act is silent on what intent the defendant must possess in order to be guilty of the offense.  However, in concluding in Janes's favor, the Court relied heavily on the reasoning from the United States Supreme Court in Morisette v United States, 342 US 246 (1952), and adopted by our Supreme Court in People v Quinn, 440 Mich 178; 487 NW2d 194 (1992), which held that the requirement the defendant must possess a particular mens rea for any criminal offense "is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."  Therefore, the Court concluded that "we must infer that the Legislature intended
some criminal intent in the absence of an indication that the Legislature expressly or impliedly intended to dispense with that element."  Here, the Legislature had not.

I obviously agree with the Court's reasoning here, even if it may seem that the Court is not taking into account the vicious nature of the girl's injuries, and the public may look upon this opinion as restricting the public's interest in punishing people that own dangerous dogs, especially pit bulls.  However, civil remedies are always available to victims of dog attacks under much more expansive theories of recovery than what is necessary to convict in a criminal case.  The rush to criminalize behavior that, in the past, was usually seen as tragically negligent or accidental, with the mind set of most Legislatures that we have to look like we are doing something, only serves felonize the population and fill the state's prisons.  So does allowing prosecutors to proceed against people without first establishing the intended to do something wrong.

Janes was represented by Kathryn S. Denholm of Manistique, Michigan.  Alger County Prosecutor Karen Bahrman argued the case on behalf of the People.

Sunday, July 14, 2013

Unanimous Supremes Overturn CSC Conviction

On Friday, in an interesting opinion written by Justice Michael F. Cavanagh, the Michigan Supreme Court overturned the conviction of John Musser, finding that the trial court erred in allowing all portions of the defendant's videotape recorded interrogation to be played for the jury.

In People v Musser, Docket No. 145237, the problem rested in the officer's repeated assertions during the interrogation of his opinion that the complainant, an 11-year-old girl, was credible.  Statements of the officer in charge were admitted at the defendant's trial such as, "Again, if there’s no reason for her to make this crap up, why would she say it? This is the last thing . . . she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn’t happen? We can’t find anything. Kids don’t lie about this stuff."  Additionally, the officers stated, "But if she’s saying you touched her breasts—I wasn’t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, 'Bill, there’s no question this happened and the stuff that I’m aware of he probably did'— we just need to know why."  On top of these statements, Ofc. Kolakowski testified during the trial that he had received specialized training in conducting forensic interviews of children, he had done 100's of forensic interviews and that 11-year-olds such as the complainant here know the difference between the truth and a lie.  Musser testified at the trial and denied the allegations.

The trial court had denied Musser's motion to suppress the statements, finding that they gave context to the defendant's answers to the interrogator's questions.  The Court of Appeals agreed and affirmed Musser's convictions of two counts of CSC 2d Degree and one count of assault and battery (which was given to the jury as a lesser included offense of assault with intent to commit CSC 2d Degree).  In reversing the Court of Appeals, the Supreme Court simply relied on the Michigan Rules of Evidence.

The Court did not go so far as to say that a bright line rule exists mandating the exclusion of such statements vouching for the credibility of witnesses, but found here that the admission of the interrogator's statements during the interview did not satisfy MRE 401.  The statements held no probative value, and even if they did, any probative value was substantially outweighed by the danger of unfair prejudice in this case where the trial was a credibility contest between the complainant and the defendant.  No physical evidence existed to support the allegations.  The Court found that the stated reason of the trial court for admitting the statements - that they gave context to the defendant's answers - was unsupported by the record.  The above statements were irrelevant for that purpose.

Musser was represented on appeal by former Kent County Circuit Court Judge Dennis Kolenda, who is now of counsel to Dickinson Wright in their Grand Rapids office.  Many of you may be familiar with Judge Kolenda's State Bar publication "Potentially Dispositive Pretrial Motions," published by the criminal law committee.  It is an excellent reference for those practicing criminal defense in the State of Michigan.

Saturday, July 6, 2013

Search Warrant Invalid in 6th Circuit Opinion

Last week, the Sixth Circuit Court of Appeals issued a somewhat surprising opinion suppressing evidence in a federal drug case and reversing the defendant's conviction, finding the search warrant invalid because it lacked probable cause and the good faith exception did not apply.  Though the opinion, authored by Judge R. Guy Cole, is unpublished, it provides a very good analysis of search warrant jurisprudence, citing many published opinions that may be of use to criminal defense practitioners.

In United States v Buffer, Docket No. 12-5052, Memphis police received an anonymous tip that drugs were being sold from a residence.  Four days before the execution of a search warrant, the affiant observed "several visits" to the home that lasted approximately one to three minutes each.  The affiant did not specify the exact number of visitors nor the span of time within which he made these observations.  On the same day, the affiant stopped one of the visitors who the affiant claimed had engaged in a transaction at the house and found him to be in possession of a small amount of marijuana, the equivalent of one joint.  This person was named in the affidavit.

Upon execution of the search warrant, the officers found numerous guns, marijuana and over $5,000.00 in cash.  The district court denied his motion to suppress, holding that the search warrant contained sufficient probable cause, and, even if it did not, the good faith exception to the warrant requirement applied.  Buffer plead guilty to the gun and marijuana counts, preserving his right to appeal the denial of his motion to suppress, and the district court sentenced him to 66 months incarceration.

The Court of Appeals reversed, holding the search warrant lacked probable cause primarily because anonymous tip is meaningless unless it is corroborated by an independent police investigation.  The Court found here 1) the observations of frequent visitors to the home lacked specificity in that the affiant stated he observed only "several" visitors and provided no specific time frame other than the date; 2) the affiant provided no fact from which the magistrate could conclude whether the person they stopped with marijuana had actually gotten the marijuana from inside the residence or had had it on him prior to going to the residence (he also never admitted to buying the marijuana there).  Therefore, because the anonymous tip had not been sufficiently corroborated by the independent police investigation, the search warrant affidavit lacked probable cause.

The good faith exception, under United States v Leon, did not save this search, because in order for the exception to apply, the affidavit must supply "a minimally sufficient nexus between the illegal activity and the place to be searched."  Such a nexus was not established here and the Court, therefore, concluded that the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

As I said earlier, the opinion is unpublished.  However, I believe it is a very good analysis of the law as it relates to search warrants and the Court cites numerous published opinions in reaching the conclusion that the district court erred in denying the motion to suppress.  Buffer was represented on appeal by Lee Gerald of Memphis.

Wednesday, June 26, 2013

Supreme Court Rules In-Custody Parolee not Protected by Miranda

Not to be overshadowed today by the flood of opinions emanating from the United States Supreme Court, the Michigan Supreme Court rendered its opinion in the case of People v Elliot, Docket No. 144983, a post-arrest confession case.  A gas station in Jackson County was robbed at gun point.  Samuel Elliot was on parole after being released from prison on another charge and the day following the robbery, he was arrested for a an unrelated parole violation warrant.  The police agency investigating the robbery attempted to interrogate Elliot after he was arrested on the warrant, but he invoked his right to remain silent after the officers advised of his rights pursuant to Miranda v Arizona.

Three days later, a parole agent from the Michigan Department of Corrections conducted an interview of Elliot while he was housed at the county jail.  The agent served Elliot with his parole violation allegations and explained to him that he had violated his parole in a number of ways, including robbing the gas station.  She then asked Elliot to make a statement.  He admitted to robbing the gas station.  The agent did not advise Elliot of his Miranda rights.

The trial court held a Walker hearing and denied Elliot's motion to suppress his confession.  He was convicted and the Court of Appeals reversed (Docket Number 301645), finding that a parole officer is a law enforcement officer and that Elliot was in custody at the time of the interrogation.  Therefore, because he had earlier invoked his right to remain silent, the statement he made to the parole agent was inadmissible and its admission was not harmless error.  The MSC reversed the Court of Appeals and reinstated Elliot's conviction and sentence of 15 to 30 years in the Department of Corrections.

Justice Markman wrote the opinion that was joined by Justices Kelly, Zahra and Viviano.  The Court concluded first that no blanket rule existed to hold that every parole officer was a law enforcement officer for the purposes of Miranda analysis.  The Court felt that the inherently coercive situation that exists in a station house custodial interrogation does not equate to the less coercive nature of the interaction between a parolee and a parole agent.  The Court focused on the fact that, here, Elliot was interviewed in the jail library, and that the interview lasted only 15 to 25 minutes.  The Court felt that a parolee under these circumstances would feel that he had the right to get up and walk out of the interview, and somehow go back to his cell.  Therefore, Elliot was not "in custody" as the Supreme Court meant that term in Miranda.  No custody means that any statements made were free and voluntary and properly used by the prosecution in the defendant's trial.

Justice Young concurred in the result, but would have further stated that even if Elliot was in custody at the time of his interrogation, he had initiated the further questioning by sending a letter to the police requesting the opportunity to speak with them again.  It is not clear whether the letter was ever made part of the lower record, so Justice Young's reliance on the letter is questionable, at least to the dissenters.

Justice McCormack, joined by Justice Cavanagh, dissented, concluding the others were wrong in concluding that Elliot was not in custody at the time of his interrogation.  Estelle v Smith, a United States Supreme Court case, held that a defendant who was interviewed by a jail or prison psychiatrist for the purpose of determining his competency to stand trial could not have those statements used as evidence in his trial because the defendant was in custody for the purposes of Miranda analysis.  Justice McCormack would have upheld the the Court of Appeals decision.

Elliot was represented by Patrick Ehlmann who received the Barbara R. Levine Award for Excellence in Appellate Advocacy posthumously for his long career and for his work on this case.  Mr. Ehlmann passed away June 9, 2012, three weeks after filing his brief in opposition to the prosecution's application for leave to appeal according to