Wednesday, November 9, 2016

COA Grants Prosecution Interlocutory 404(b) Application

In this interlocutory application for leave, the Michigan Court of Appeals yesterday published it's previously unpublished opinion in People v Calvin Kelly, Docket No. 331731, reversing the Kalamazoo Circuit Court's decision to exclude evidence offered by the prosecution pursuant to MRE 404(b).

Kelly is charged with kidnapping, three (3) counts of first degree CSC and assault with intent to commit CSC.  The allegations arise from an incident in 2008.  Kelly has readily admitted to having sexual intercourse with the complainant (the prosecution possesses favorable DNA evidence), but asserts that the encounter was consensual because the complainant is a prostitute and is merely upset because Kelly did not pay her.

Kelly's DNA, however, has linked him to a total of five (5) CSC complaints, and he has admitted to having intercourse with three (3) others.  In each case, which span a timeframe from 1985 to 2010 and occurred in four (4) different states, Kelly told the same story - no assault occurred because of the women consented to sex as prostitutes.  The versions told by the women are all similar - Kelly drove them to a secluded area, threatened them with a knife or punched and choked them, and then forced them to have intercourse with him.  He did not use a condom and ejaculated, frequently leaving DNA evidence behind.  Kelly had not been charged in any of the other seven (7) cases, but the prosecution wished to present other complainant's testimony about the assaults.

Kelly's objection to the use of the MRE 404(b) centered on the fact that he had a viable defense to the allegations and he had not even been charged with them.  The prosecution argued that the other acts were relevant as they were offered for a proper purpose - "to establish defendant’s intent and to demonstrate a common scheme, plan or system in doing an act."  Kelly took the position that "relevancy means believability" and since he had not even been charged with the other crimes and that the women lacked credibility, his objection to the evidence should be sustained.

The trial court ruled in his favor, but apparently engaged in an improper analysis of the prosecution's offer of proof.  The trial court found the fact that Kelly had never been charged and that each of the cases was a swearing contest between the defendant and the complainants, the court could not take a "leap of faith" to conclude Kelly had actually been involved in a pattern of criminal activity.  The court held that "if defendant’s conduct in relation to the other acts was not criminal, then the other acts evidence would not be of any use in the present case."

The Court of Appeals, not surprisingly, found that the trial court had abused it's discretion in excluding the 404(b) evidence.  Primarily, the Court held that the trial court had not engaged in the proper 404(b) analysis as the Michigan Supreme Court had set forth in People v VanderVliet in 1994:


First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).]

Here, the trial court had not even concluded that the evidence met the relevancy requirement before it went straight to the MRE 403 analysis and concluded that the unfair prejudice outweighed the probative value.  Therefore, the trial court abused its discretion and the Court of Appeals reversed the decision to exclude the evidence.  The Court retained jurisdiction, however, in remanding the case to the trial court with instructions to engage in the proper analysis and thereafter decide whether the evidence should be admitted.

Christopher Allen from the AG's office represented the People on appeal.  Kelly was represented by Anastase Markou from Kalamazoo. 

Friday, August 19, 2016

Prosecution's Threat to Witness Merits Reversal

Yesterday, the Michigan Court of Appeals reversed the conviction of Devaun Lopez who had previously been convicted following a jury trial in the Saginaw County Circuit Court.  The Court, in a per curiam opinion, concluded in People v Devaun Lopez, Docket No. 327208, that the prosecution had improperly threatened a prosecution witness prior to testifying.  Dennis Hoskins was a key witness for the prosecution who had testified at the preliminary examination that the defendants had both admitted to him their involvement in the the murder and had openly discussed the details, including the use of a .38 caliber pistol, which matched the evidence from the scene.

Just prior to the trial, the prosecutor became concerned that Hoskins was going to change his testimony from what he said at the preliminary examination.  During a colloquy between Hoskins, his attorney, the prosecutor and the two defense attorneys, the defendant's attorney claimed to have heard the prosecution threaten Hoskins that he would be prosecuted for perjury and face life imprison if he did not testify consistently with his preliminary examination testimony.  During a hearing held outside the presence of the jury on the third day of trial, the following occurred:
The Witness: Yes. The prosecutor’s told me - - they threatened me with life in prison.  
The Court: Okay. With regard to your right to testify or not testify, do you wish to exercise your Fifth Amendment privilege and not testify at this time? 
The Witness: Yes, sir.

After the prosecution then presented the audiotape of Hoskins' preliminary examination testimony to the jury pursuant to MRE 804(b)(1), the defense moved to strike it, arguing that MRE 804(a)(1) did not authorize the use of the transcript because, though the witness was unavailable due to asserting his Fifth Amendment right, the rule further leads to the conclusion that the witness is not unavailable if the proponent has something to do with the witness' unavailability.  The court ultimately ruled:
Well, this is all very interesting and we’ve made a clear record of your positions. I’m going to deny the motion itself.  The witness himself indicated he felt threatened; that’s why he wasn’t testifying.  Mr. Dunn could say what he wanted to say, but I’m not going to take his testimony over the witness’s testimony himself.
 The Court of Appeals reversed and ordered a new trial.  The bottom line was that Hoskins was not "unavailable" pursuant to MRE 804(a).  The Court found that "MRE 804(a) posits that '[a] declarant is not unavailable as a witness if” his or her refusal to testify 'is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.'"  Here, regardless of the prosecution's intent or the alleged tone of his voice, the witness testified he was threatened and the trial court concluded as much.  After finding that the prosecutor had little reason to suspect Hoskins was going to commit perjury, and therefore, improperly issued a warning to him, the Court stated:
The trial court recognized that Hoskins refused to testify due to the prosecutor’s threat, yet failed to connect its finding with the rule’s command that “procurement” of a witness’s absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced Hoskins, the court was required to exclude Hoskins’ preliminary examination testimony in the first instance, or to strike the testimony from the record thereafter. By admitting prior testimony in clear violation of the evidentiary rules designed in part to protect a defendant’s right to confront the witnesses against him, the trial court violated Lopez’s fundamental right to a fair trial, abusing its evidentiary discretion.
 On appeal, the defendant was represented by Ronald Ambrose, and the Saginaw County Prosecutor's Office was represented by Nathan Collison.

Friday, April 22, 2016

COA Reverses Home Invasion Special Jury Instruction

Yesterday, the Michigan Court of Appeals published an opinion in People of the State of Michigan v Troy Bush, Docket No. 326658 (April 21, 2016), holding, essentially, that a defendant may not be convicted of home invasion, MCL 750.110a(2), for allegedly breaking into a bedroom inside a home he has previously been granted permission to enter.  An interesting part of this ruling is the fact that the prosecution had moved in the trial court for a special jury instruction prior to the trial and the defense filed an interlocutory application for leave to appeal the trial court's granting of the motion.  The Court of Appeals denied the interlocutory application, but the Michigan Supreme Court reversed the denial and remanded the case to the Court of Appeals for consideration as on leave granted.

Troy Bush, a handyman, considered the residence he was charged with breaking into to be his permanent residence until he was arrested for first degree home invasion, felonious assault and resisting and obstructing a police officer.  The complainant, Melissa Partain, resided at the home with her adult son, Jason.  The day before the incident, Jason had invited the defendant to the home to fix a bathtub.  Sometime in the afternoon of November 17, 2014, Melissa barricaded herself in an upstairs bedroom because she claimed she had received threatening text messages from Bush.  She stated that Bush broke through the bedroom door and assaulted her.

The prosecution's theory, and hence the request for a special jury instruction, was that home invasion can be accomplished after a defendant is lawfully on the premises if the defendant further breaks into a room within the home to which he has no permission to enter.  The Court of Appeals disagreed.

The home invasion statute is clear in that it punishes any person "breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling...."  Though case law existed under the old B&E statute to suggest that a person could be convicted under these circumstances, the caselaw was not binding in that it either predated November 1, 1990 or it was unpublished.  More importantly, the home invasion statute defines, within the statute, a "dwelling" as "a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter."  An abode is defined as a home or place where one abides.  Consequently, a room within the home does not fall within the definition provided by the legislature and a careful reading of the statute did not provide any broader definition.  The Court reversed the trial court's decision and remanded the case to the Kalamazoo Circuit Court for further proceedings.

The prosecution was represented on appeal by Heather Bergmann and the defense was represented by Joseph McCully of Kalamazoo, MI.