Conviction reversed---Ineffective Assistance of Counsel

In People v Brown, __ Mich __ (#144298, 5/09/2012) the Michigan Supreme Court determined that the defendant’s trial counsel was ineffective for failing to specifically request the National Counsel on Alcoholism and Drug Dependence staff activity logs before trial, as those logs supported the defendant’s claim that he did not have as many individual counseling  sessions with the complainants as they alleged. Trial counsel was also ineffective for failing to effectively cross-examine the sole complainant (the “complainant”) whose testimony resulted in the defendant’s convictions. Counsel failed to point out any of the inconsistencies in the complainant’s trial testimony, and also failed to develop the point that her trial testimony was inconsistent in some respects with her preliminary examination testimony and with her initial statement to the police.

Defendant’s appellate counsel was also ineffective for failing to raise these issues on the defendant’s direct appeal.  Defendant was prejudiced thereby, and has met the burden of establishing entitlement to relief under MCR 6.508(D). 

Defendant’s conviction is reversed and on retrial the defendant should be permitted to introduce relevant and admissible evidence produced in the civil suit filed on behalf of the complainant.

No one is a fan of sex offenders, but . . .

Along with murder, voluntary manslaughter and felonious assault that results in serious bodily injury of another child, MCL 712A.19a(2)(d), as amended, effective May 1, 2012, now provides that if a parent is required to register under the sex offenders registration act, the department of human services is not required to make reasonable efforts to reunify the child with the parent. 

Critics argue that this will allow the family court to terminate a parent's parental rights to a child for no other reason than a parent being required to register under the Sex Offenders Registration Act (SORA).  (Past law required that there be some showing of ‘unfitness’ before parental rights can be terminated.)  Advocates counter that judges retain discretion to order DHS to make reasonable efforts to reunify the child with the parent, and the legislation was needed to receive federal funding.  Setting aside whether money should be a controlling factor,

In domestic relations cases would this allow a parent to petition to terminate the other parent’s parental rights thereby resolving issues of custody and parenting time while retaining the right to receive child support?  Even if unrelated to the circumstances leading to the SORA registration.  The Michigan Supreme Court held in In re Beck, 488 Mich 6 (2010) that even after a parent’s rights have been terminated, the obligation to support continues unless a court of competent jurisdiction modifies or terminates the obligation. Under MCL 722.3 a court has the discretion to terminate or modify a parent’s obligation to provide support, but is not compelled to do so.

In criminal cases does this then require advising a defendant that his/her plea to an offense resulting in registration under the SORA could result in a termination of his/her parental rights?  Even if unrelated to the existing charge?  The United States Supreme Court held in Lafler v Cooper, 566 US ___ (2012) that an ineffective assistance of counsel claim may be based on counsel’s failure to properly inform the defendant of the consequences of accepting or rejecting a plea offer. Counsel’s assistance must be sufficient to enable the defendant the defendant “to make an informed and voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446 (1995).

Drug profile evidence is not admissible as substantive evidence of guilt.

On appeal defendant contended that the officers’ testimony regarding the evidence found on the table and its significance constituted improper drug profile evidence. A profile is a list of usually innocuous characteristics that police believe to be typical of a person engaged in a particular illegal activity. People v Hubbard, 209 Mich App 234, 239 (1995). “Drug profile evidence is essentially a compilation of otherwise innocuous characteristics that many drug dealers exhibit, such as the use of pagers, the carrying of large amounts of cash, and the possession of razor blades and lighters in order to package crack cocaine for sale.” People v Murray, 234 Mich App 46, 52-53 (1999). Drug profile evidence is not admissible as substantive evidence of guilt.  Hubbard, 209 Mich App at 241. On the other hand, expert testimony is admissible “to explain the significance of items seized and the circumstances obtaining during the investigation of criminal activity.” Murray, 234 Mich App at 53.

In this case, the officers explained the significance of the scales, sifter, sandwich bags, and hanger which, otherwise innocuous in and of themselves, can be used to make, weigh, package, and sell drugs. People v Williams (After Remand), 198 Mich App 537, 542 (1993). Because the testimony did not relate otherwise innocent characteristics to defendant in order to establish his guilt, it was not profile evidence. Murray, 234 Mich App at 62-63.

Defendant next contends that the officers’ testimony regarding the significance of the physical evidence was improper because the officers were not admitted as expert witnesses under MRE 702. We agree that because testimony of the type offered here “was not within the knowledge of a layman,” it constitutes expert testimony. People v Ray, 191 Mich App 706, 707- 708 1 (1991). Here, plaintiff failed to lay a foundation for the officers’ expert testimony by showing that they had specialized knowledge regarding narcotics activity based on their experience, training, or education and the court failed to find that specialized knowledge would assist it in understanding the evidence or determining a fact in issue. MRE 702.  Accordingly, it was plain error to permit them to offer what amounted to expert testimony.