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.