Michigan Supreme Court Blog

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

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 d

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 2

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.

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 rack

"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 C rime, 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 Co

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

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

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