Evidence of defendant’s prior conviction for criminal sexual conduct may be admissible under MCL 768.27a.

In People v Yeakey, Unpub, Mich App (#292912, 1/18/2011) the Court of Appeals re-affirmed that evidence of a defendant’s prior conviction for criminal sexual conduct is admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a.

MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.  To be admissible under MRE 404(b), other acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502 (2004).

MCL 768.27a provides that (1) notwithstanding section MCL 768.27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.  (2) As used in this section: (a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. (b) “Minor” means an individual less than 18 years of age.

Under MCL 768.27a, if a defendant is accused of committing a listed offense against a minor, the prosecution may present evidence that the defendant committed another listed offense against a minor without justifying the admissibility of the evidence under MRE 404(b). People vPattison, 276 Mich App 613 (2007). While such evidence is still subject to the requirements of MRE 401 and 403, the statute allows, in many cases, “evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted.

In Yeakey the prosecution filed a “Notice of Intent to Present Other Acts Evidence at Trial Pursuant to MCL 768.27a and MRE 404(b).” There was apparently no objection to the introduction of such evidence by defense counsel and there is no indication whether the trial court allowed the admission of the challenged evidence under MCL 768.27a, or MRE 404(b), or both.

It is uncontested that defendant was previously convicted of a listed offense against a minor, as defined in MCL 768.27a, and was charged in the instant matter with a listed offense against a minor, third degree criminal sexual conduct. The evidence of defendant’s prior conviction was thus admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a. Further, evidence of defendant’s prior conviction was relevant under the definition set forth in MRE 401, because the evidence made the likelihood of defendant’s behavior with K. more probable. People v Mann, ___Mich App ___ (2010).  And the probative value of defendant’s prior conviction was not substantially outweighed by the danger of unfair prejudice under MRE 403. The defendant’s prior conviction was probative on the issue of whether K. was telling the truth at trial, or whether defendant was telling the truth. Defendant denied that any sexual contact took place. He further portrayed himself as an honest person and one that would admit when he has done something wrong. The testimony concerning defendant’s prior conviction focused, in large part, on whether he initially admitted to police in that case that he had had sexual intercourse with an underage girl, or whether he had denied it. Given that defendant’s credibility was directly placed at issue and his denial of any sexual contact also placed K.’s credibility at issue, the circumstances surrounding his prior criminal sexual conduct conviction were highly probative and the value of this evidence was not substantially outweighed by unfair prejudice.

Finally, the trial court instructed the jury: The prosecution has introduced evidence of a claimed sexual misconduct by the defendant with a minor, for which he is not now on trial. Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed those acts. If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the offense for which he is now on trial. Because a jury is presumed to follow its instructions, People v Abraham, 256 Mich App 265 (2003), it is presumed that the jury followed the trial court’s caution regarding the use of defendant’s prior conviction in this matter.

The trial court did not thereby abuse its discretion in admitting evidence of defendant’s prior criminal sexual conduct conviction under MCL 768.27a. (The Court of Appeals finally remarked that it wan not therefore necessary to address whether it was also alternatively admissible under MRE 404(b).

The failure to advise a defendant of a SORA requirement when registration is succinct, clear and explicit is ineffective assistance of counsel.

In People v Fonville, __ Mich App __ (#294554, 1/25/2011) the Court of Appeals ordered that defendant be allowed to withdraw his plea of guilty to child enticement because defense counsel failed to advise defendant that he would be required to register under the SORA.  Like deportation, sex offender registration is not a criminal sanction, but is a particularly severe penalty.  In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirements70 and place of domicile restrictions.  Moreover, sex offender registration is “intimately related to the criminal process.”  The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.”

If the sex offender registration statute is “succinct, clear, and explicit” in defining the registration requirement for a particular conviction, applying the Padilla rationale, defense counsel must advise a defendant that registration as a sexual offender is a consequence of his guilty plea.  The failure to inform a pleading defendant that his plea will necessarily require registration as a sex offender will thereby affect whether the plea was knowingly made.   

The 180-day rule to dispose of new criminal charges against inmates in Michigan correctional facilities.

In People v Lown, __ Mich __ (#139969, 1/14/2011) the Michigan Supreme court re-affirmed that the statutory “180-day rule”, established by MCL 780.131 and MCL 780.133, to dispose of new criminal charges against inmates in Michigan correctional facilities requires dismissal of the case if the prosecutor fails to commence action on charges pending against an inmate within 180 days after the Department of Corrections delivers notice of the inmate’s imprisonment.  The rule does not require that a trial be commenced or completed within 180 days of the date notice was delivered; it is sufficient that the prosecutor  “proceed promptly” and “move[] the case to the point of readiness for trial” within the 180-day period. People v Hendershot, 357 Mich 300, 304 (1959).  There is, however, no good-faith exception to the rule. Instead, good faith is an implicit component of proper action by the prosecutor, who may not satisfy the rule simply by taking preliminary steps toward trial but then delaying inexcusably.

The statutory 180-day period is, by the plain terms of the statute, a fixed period of consecutive days beginning on the date when the prosecutor receives the required notice from the DOC. Thus, the relevant question is not whether any delay is attributable to the prosecutor, but whether action was commenced within 180 calendar days following the date the prosecutor received the notice. If so, the rule has been satisfied unless the prosecutor’s initial steps are “followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly.  Accordingly, a court should not calculate the 180-day period by apportioning to each party any periods of delay after the DOC delivers notice.

A violation of the 180-day rule deprives the court of “jurisdiction under MCL 780.133 and specifically divests the court of personal jurisdiction over the defendant for the particular action, and the court must dismiss the matter with prejudice.

Michigan Supreme Court grants leave to appeal in two criminal cases.

The Michigan Supreme Court, in the waning days of 2010, granted leave to appeal in two criminal cases leaving open the possibility of allowing criminal defendants defenses previously unavailable. 

In People v Harris, ___ Mich ___ (#141513, 11/30/2010) the Supreme Court granted leave to appeal to address the prior decision of People v Adams, 262 Mich App 89 (2004) that inability to pay is not a defense to the crime of felony non-support under MCL 750.165 is an incorrect reading of the statute or unconstitutional; (2) whether the trial court abused its discretion when it denied the defendant’s post-sentencing motion to withdraw his plea; and (3) whether the trial court erred when it adopted the child support arrearage amount that had been determined by family court as the restitution to be imposed in this criminal case, or whether the defendant waived that issue.  The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

In People v Moreno, Jr, ___ Mich ___ (#141837,  12/29/2010) the Court granted leave to appeal to address a defendant's right in his or her home to resist an illegal arrest and the  availability of self defense.  The parties were requested to address the following issues: (1) whether a person present in his or her own home can lawfully resist a police officer who unlawfully and forcibly enters the home, without violating MCL 750.81d; (2) if not, whether, so interpreted, MCL 750.81d is unconstitutional; and (3) whether a defendant prosecuted under MCL 750.81d for resisting a police officer who unlawfully and forcibly enters the defendant’s home may claim self-defense. 

Denial of grandparenting time.

In Wernette and Finch v Wernette, Unpub (1/4/2011, 293309 the Court of Appeals affirmed the Circuit Court’s denial of grandparenting time after the suicide of the grandfather’s son, the father of the children.  The Court of Appeals suggested that a successful grandparenting time action or motion must include expert testimony, or at least the testimony of knowledgeable professionals such as school personnel or "others trained in children’s behavior or mental health."  Without such testimony, the grandparent will have difficulty proving that denial of grandparenting time creates a substantial risk of harm to the child's mental, physical, or emotional health as required by the statute.

Plaintiff grandfather argued that common sense should have led the court to see that it would be damaging to the children to cut off his relationship with the children, already emotionally impacted by their father’s death. However, under MCL 722.27b(4)(b) an appeal to common sense does not overcome the presumption that the denial of grandparenting time does not create such a risk and even when the presumption is overcome, visitation is only ordered in those situations where the court decides it is in the best interests of the children. MCL 722.27b(6).

The denial of court-ordered grandparenting time is not equivalent to the complete denial of the right to see the children. It is true that the circumstances seem to indicate that at this time defendant is unlikely to allow visitation. However, circumstances can change. It is not that the court is preventing visitation—the court is simply not ordering that it occur.

Court of Appeals decision expanding the use of 404b evidence in OWI trials.

In People v Amine, __ Mich App __ (Unpub, #294345, 12/21/2010) the Court of Appeals affirmed defendant’s jury trial conviction for OWI-3^rd denying his argument that the trial court improperly admitted other acts evidence of a prior OWI arrest under MRE 404(b).  In the prior bad act and existing charge defendant Amine was intoxicated and sitting in the driver’s seat of a car when the police arrived. In each he denied that he had been driving the car, stated that the driver was someone close to him, and that person confirmed his explanation.  Although there were slight differences, defendant’s behavior in both incidents otherwise was substantially similar. He reacted to each situation—which was functionally the same because he was faced with the possibility of an OWI arrest—with the same defense. From the incidents’ similarities, the jury was able to infer that his present defense was another manifestation of the common pattern defendant employs when discovered drunk behind the wheel of a car. Such an inference does not rely on character evidence, and thus, the trial court did not abuse its discretion in admitting the evidence under MRE 404(b) under the three step test of People v Vandervliet, 444 Mich 52, 74 (1993).  Under Vandervliet, the evidence must be relevant to an issue other than propensity, relevant under MRE 402 to a fact at issue at trial, and it must survive a MRE 403 balancing process determining if the danger of undue prejudice substantially outweighs the evidence’s probative value. Id. at 74-75.  If, however, the only relevance is to character or the defendant’s propensity to commit the crime, the evidence must be excluded. People v Crawford, 458 Mich 376, 385 (1998).   In addition, under Vandervliet “the trial court, upon request, may provide a limiting instruction under Rule 105.” Id. at 75.  The Court of Appeals further, weighing in favor of admitting such testimony reiterated that, “it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place.” People v Sholl, 453 Mich 730, 741 (1996).