Michigan Supreme Court Blog

  Yesterday, in a 4-3 decision with a concurrence and two dissenting opinions, the Michigan Supreme Court ruled that duress is an available defense to one form of 2d Degree Murder - willful and wanton disregard that the natural tendency of the act is to cause death or great bodily harm - often referred to as "depraved heart" murder. Justice Bridget McCormack , probably writing her final opinion as a member of the bench, was joined by Justices Bernstein, Cavanagh and Welch in the opinion in People v Gafken , Docket No.  161835 .  Theresa Gafken was convicted of second degree murder in the St. Clair County Circuit Court, MCL 750.317.  The evidence showed she drove her car, while running from the police, at speeds in excess of 100 MPH.   She ran a red light and collided with other vehicles, killing one person and severely injuring several others.  The prosecution's theory was that Gafken had intended to do an act that was in willful and wanton disregard of the...

Yesterday, the Michigan Court of Appeals issued its opinion in People v Brigitte Louise Rousse, Docket No. 358358 (May 5, 2022) , an opinion that held police, with an otherwise valid search warrant, lacked the authority to search the interior of a pole barn located outside the curtilage of the home. An animal control officer discovered a cow loose on the road near the Defendant's home.  Upon returning the cow to its pen, he observed numerous dead animals on the property in various states of decomposition.  He saw three dogs on the property that were emaciated. The Defendant had no explanation for how the animals died.  From one of the pole barns that could be observed from the road and the house, he heard the yipping of dogs.  The officer obtained a search warrant for the property.  However, in the description of the place to be searched, the officer listed only the description of the house, making no mention of the pole barns on the property.  A search of ...

Can police stop a car when an anonymous caller to 911 says the driver of a particular vehicle was yelling at her kids and appeared to be intoxicated? The Michigan Supreme Court answered in the negative yesterday in People v Pagano . The 911 caller, according to the officer's recollection of what dispatch said (the tape was not entered as evidence), said they were " conce rned because she had ah children with her and she was yelling; appearing to be obnoxious; and appeared to be intoxicated um that was causing her behavior ah with the children.  And then had left is why the caller thought she was intoxicated."  The caller gave the license plate number, the make, model and color of the car and the direction the defendant was headed. Thirty minutes later, a deputy found the car and followed the defendant, but did not make any independent observation of drunk driving or any civil infraction. The defendant was charged with OWI, Child Endangerment and Open Intox.  After an evi...

Today, the United States Supreme Court issued an interesting decision in a 4th Amendment case in Kansas v. Glover , 589 U.S. ____ (2020) (Docket No. 18-556).  The fact scenario centered around a common, yet oft litigated, circumstance.  A sheriff's deputy randomly ran the license plate of a truck he was behind.  The computer showed the truck belonged to Glover and also showed that Glover's license was revoked.  Assuming that Glover was driving, he stopped the truck.  Glover was driving and he was charged. The trial court granted Glover's motion to suppress any evidence discovered after the stop and dismissed the charges.  The Kansas Court of Appeals reversed. The Kansas Supreme Court reversed, finding that the stop violated the Fourth Amendment. The USSC, Justice Thomas writing for the majority, held: When the officer lacks information negating the inference that the owner is driving the vehicle, an investigative stop made after running the vehicle'...

Can a defendant, charged with felony murder, argue duress as an affirmative defense to the crime? Yesterday, the Michigan Supreme Court answered in the affirmative, overruling two Court of Appeals decisions from the 1990's.  In People v Tiffany Reichard , ___ Mich ___ (Docket No 157688) , March 30, 2020, Justice Viviano authored the opinion on behalf of a unanimous court, concluding that the defendant, who wished to present evidence that her boyfriend had physically abused her, could argue in her trial that she committed the underlying felony under duress and, therefore, was not guilty of felony murder. After bindover on the felony murder charge, Reichard moved the lower court to allow her to present the defense.  The trial court, Judge Thomas Wilson from Jackson County, agreed.  The prosecution filed an interlocutory application to the Court of Appeals which reversed the trial court. At common law, courts banned the use of duress as a defense to murder.  When ...

Yesterday, the Michigan Supreme Court reversed the conviction of a Saginaw County man whom a jury had convicted of conspiracy to commit murder. In People v Sammons , ____ Mich ____, Decided March 16, 2020 ( Docket No. 156189) , Justice Cavanagh, joined by Chief Justice McCormack and Justices Viviano, Bernstein, and Clement, concluded that a show up of the defendant to a witness was unduly suggestive because it implied that the defendant was a suspect in the murder. The show up was unnecessary, except for police convenience, because the defendant was in custody at the time. The show up was unreliable utilizing the factors identified in Neil v Biggers , 409 US 188 (1972), and, finally, the prosecution's use of evidence of the identification was not harmless beyond a reasonable doubt. A show up is unlike a corporeal lineup, because in a show up the police show the suspect to the witness singly.   It is interesting to note from the facts that the 16-year-old witness, who saw t...

On February 13, 2020, the Court of Appeals ruled that the smell of marijuana, even in light of a driver's possession of a valid medical marijuana card, can give rise to probable cause to search a lawfully stopped vehicle.  Provided, however, some additional suspicious fact gives rise to reasonably believe that driver may be possessing marijuana outside of the restrictions imposed by the MMMA.   In People v Moorman, Docket No. 349282 (2/13/2020) , the defendant was stopped for speeding in Alger County.  Upon approaching the car, the state trooper smelled the strong odor of "a good quantity" of fresh marijuana.  He asked Moorman if he had any marijuana in the vehicle, and Moorman said that he did not, though he had harvested marijuana earlier that day.  He then produced his caregiver card and told the trooper that he was a caregiver for five patients.  Nonetheless, the trooper searched the vehicle because simply, in his mind, he had noted the "odor of ma...

Yesterday, the Michigan Supreme Court reversed the trial court and the Court of Appeals in its decision in People v Beck , Docket No.  152934 (July 29, 2019) , a case out of the Saginaw Circuit Court dealing with a significant sentencing issue.  The syllabus of the opinion follows. Eric Beck was convicted as a fourth-offense habitual offender of being a felon in possession of a firearm (felon-in-possession) and carrying a firearm during the commission of a felony (felony-firearm), second offense, after a jury trial in the Saginaw Circuit Court. He was acquitted of open murder, carrying a firearm with unlawful intent, and two additional counts of felony-firearm attendant to those charges. The applicable guidelines minimum sentence range for the felon-in-possession conviction was 22 to 76 months in prison, but the court imposed a sentence of 240 to 400 months (20 to 331⁄3 years), to run consecutively to the mandatory five-year term for second-offense felony-firearm. The c...

Yesterday, the Michigan Court of Appeals decided that a retroactive application of the Michigan Supreme Court's decision in People v Lockeridge,   498 Mich 358; 870 NW2d 502 (2015), did not violate the ex post facto  clauses  of the state and federal constitutions, even though the defendant was sentenced to a lengthier term of incarceration when his case was remanded for resentencing. In People v Steven Aderrick Odom , Docket  No. 339027, March 12, 2019 (Meter, PJ), the defendant had previously appealed his 210 to 420-month sentence for armed robbery, claiming that the trial court engaged in judicial fact-finding to increase the then mandatory sentencing guideline range.  The Supreme Court ultimately agreed and ordered the defendant to be resentenced pursuant the reasoning followed in  United States v Crosby , 397 F3d 103, 117-118 (CA 2, 2005).  Back in the trial court, the judge determined that he had been constrained by the mandatory nature of ...

Yesterday, the Michigan Court of Appeals reversed the conviction of Farrin Lee Felton after the Court determined that the trial court in Kalkaska County had impermissibly allowed the introduction of MRE 404(b) evidence in Felton's drug delivery trial. After the defendant and two others were pulled over by the the police, the officers arrested the driver, Johnson, for driving on a suspended license. Upon searching him, the officers discovered a quantity of cocaine and heroin secreted in his underwear.  Johnson was charged with two counts of possession with intent to deliver less than 50 grams.  He worked out a deal with the prosecution where his two 20-year felonies would be reduced to simple possession with a sentence agreement of probation under Sec. 7411, in exchange for his testimony that Felton, the back seat passenger, was the person actually guilty of possessing with intent to deliver the drugs and that he had given them to Johnson to hide when the trio was pulle...

Much has been written and talked about in the media regarding the recent United States Supreme Court's decision in Carpenter v United States and I would never presume to weigh in any more succinctly or insightfully than Professor Orin Kerr, Frances R. and John J. Duggan Distinguished Professor of Law, University of Southern California Gould School of Law.  Therefore, I will simply cite to his learned analysis of this monumental decision.  The question of the scope of the Government's ability to seek cell site data without the benefit of a search warrant is still in question, but should anyone need any extensive analysis of the opinion, Professor Kerr's analysis can be found here .  My  congratulations  go out to Detroit Attorney Harold Gurewitz for his persistence in preserving the issue and well-deserved victory.  Enjoy.

On January 24, in the case of People of the State of Michigan v Boban Temelkoski , the Michigan Supreme Court held the state’s sex offender registration scheme  unconstitutional  on due process grounds.  Temelkoski had pleaded guilty under the Holmes Youthful Trainee Act with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  The Court emphasized, " The statute in effect at the time of defendant’s plea further provided that “[a]n assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime, and the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee.”    However, several years later a registration requirement was enacted and applied retroactively to his case...

The Michigan Supreme Court, in the past few days, has issued a number of opinions related to crimes, criminal procedure and sentencing.  Significantly, the Court overruled a 25-year-old decision regarding the interpretation of the felony firearm statute, when, in People v Dwayne Wilson , Docket No. 154039 (July 25, 2017) , the Court held that a defendant may be sentenced as a third offender (mandatory minimum 10 years imprisonment, consecutive to any sentence for the underlying offense) even though his two (2) prior convictions arose out of the same occurrence.  Justice Joan Larsen wrote the unanimous opinion that overruled  People v Stewart , 441 Mich 89 (1992). The trial court, Macomb County Circuit Judge James Biernat, Jr., had ruled that Wilson's two prior convictions for felony firearm from one prior case amounted to two (2) prior convictions for felony firearm and that the Supreme Court's decision in Stewart was no longer good law because it had relied on ca...

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 s...

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 thre...

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 ...

Yesterday, the Michigan Court of Appeals decided an interesting 4th Amendment issue relating to a popular tactic utilized by police departments across the State of Michigan, "knock and talk." In the consolidated cases of People v Frederick and People v Van Doorne , Kent County Circuit Judge Dennis Leiber had denied each defendant's motion to suppress. Each filed applications for leave to appeal to the Court of Appeals that were denied. The Supreme Court, however, remanded the cases as on leave granted to consider whether the "knock and talk" procedure used by the Kent Area Narcotics Enforcement Team  (KANET) violated the 4th Amendment pursuant to the United States Supreme Court's holding in Florida v Jardines ,  ___ US ___; 133 S Ct 1409; 185 L Ed 2d 495 (2013) . In Jardines , Justice Scalia wrote the opinion for the majority, concluding that police officers who approach a house and enter onto the front porch with a drug detection canine, do so in vi...