Conduct designed to substantially increase the fear and anxiety of a victim.

In People v Hardy, __ Mich __ (#144327, 7/29/2013) the Michigan Supreme Court held, for purposes of the sentencing guidelines, that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” does not require that a defendant’s conduct be “similarly egregious” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 points. The sentencing guidelines provide that a trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in subsection (1)(a). (sadism, torture, excessive brutality, or whether defendants engaged in conduct designed to substantially increase the fear and anxiety a victim suffered during the offense). Although the sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13, the Sentencing Guidelines otherwise allow a factor that is an element of the crime charged to be considered when computing an offense variable score.

Recognizing, however, that “[a]ll . . . crimes against a person involve the infliction of a certain amount of fear and anxiety”, the relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount. In making this determination, because the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant.

As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.

Prosecution witness rules in criminal cases

Under MCL 767.40a, the prosecution’s burden is “to give initial and continuing notice of all known res gestae witnesses, identify witnesses the prosecutor intends to produce, and provide law enforcement assistance to investigate and produce witnesses the defense requests.” People v Long, 246 Mich App 582, 585 (2001). “‘[T]he purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae status.’”  People v Gadomski, 232 Mich App 24, 36 (1998), quoting People v Calhoun, 178 Mich App 517, 523 (1989). “Therefore, if the defendant knew of the res gestae witness in any event, the prosecutor’s failure to list the witness would be harmless error.” Calhoun, 178 Mich App at 523.

Defendant argues that the trial court erred by allowing the prosecutor to call as witnesses that were not listed on the information. “A trial court’s decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion.” People v Yost, 278 Mich App 341, 379 (2008). The prosecutor moved the trial court for the late endorsement of the two witnesses after trial began. Because of the late request, the prosecutor could not amend the witness list without leave of the court for good cause shown or by stipulation of the parties. MCL 767.40a(4). The trial court found good cause to permit one witness’ testimony because the prosecutor intended to call him to rebut a defense raised during defense counsel’s opening argument. Both the prosecutor and the trial court were surprised by the defense raised by counsel. A trial court has good cause to permit the late endorsement of a witness to rebut a surprise defense. See People v Kulick, 209 Mich App 258, 265 (1995), remanded for reconsideration on other grounds 449 Mich 851 (1995). Accordingly, the trial court did not abuse its discretion in finding good cause for the late endorsement of Cottrell. Yost, 278 Mich App at 379. The trial court also found good cause to allow the other witness to testify because he was available to both the prosecutor and defendant throughout the case and, therefore, should not have been a surprise to defendant. A trial court does not abuse its discretion in finding good cause to permit a witness to testify if the opposing party is not surprised by the endorsement.  See People v Callon, 256 Mich App 312, 326-327 (2003).  Were we to find error, defendant has not shown that the trial court’s ruling resulted in prejudice. Callon, 256 Mich App at 328. Defendant does not explain how he would have responded if he received earlier notice of the prosecutor’s intent to call these witnesses. Further, defense counsel refused the trial court’s offer of an adjournment to speak with the witnesses and, indeed, stated that she was familiar with what the witnesses would say. In People v Lobaito, 133 Mich App 547, 557 (1984), this Court recognized that, if counsel fails to request time to interview a witness, it tends to negate a claim of prejudice. Defendant has not established prejudice and is not entitled to relief on this ground. Callon, 256 Mich App at 328.

Hearsay statements by the interrogator that may require special attention.

“[W]here the proponent of the evidence offers an interrogator’s out-of-court statements that comment on a person’s credibility for the purpose of providing context to a defendant’s statements [(and, thus, are not offered for the truth of the matter asserted)], the interrogator’s statements are only admissible to the extent that the proponent of the evidence establishes that the interrogator’s statements are relevant to their proffered purpose. See MRE 401.” People v Musser, ___ Mich ___, ___ (2013). Despite being relevant, the statements may still be excluded under MRE 403 if “‘the danger of unfair prejudice to the defendant substantially outweighs the probative value of [the statements.]” Musser, ___ Mich at ___, quoting People v Robinson, 417 Mich 661, 666 (1983). Thus, “a trial court must . . . evaluate the probative value of the out-of-court statements in providing context to a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-of-court statements are presented to the jury.” Musser, ___ Mich at ___. In these cases, “courts must be mindful of the problems inherent in presenting the statements to the jury, especially in child-sexual-abuse cases.” Id. at ___. “[I]f an interrogator’s out-of-court statement is determined to be admissible for the purpose of providing context to a defendant’s statements, . . . the court, upon request, ‘shall restrict the evidence to its proper scope’ [pursuant to MRE 105.]” Musser, ___ Mich at ___. To that end, the court may “requir[e] the interrogating officer to testify at trial and paraphrase the statements he or she made that provoked a relevant statement by a defendant . . . [in order] to protect a defendant’s right to a fair trial from the resulting prejudice of allowing the jury to hear the interrogator’s comments verbatim.” Id. at ___. Another option is to redact the statements. 

Michigan's 1st Mental Health Court suspends operation.

In deference to the personnel needs of Circuit Court Probation and the lack of existing resources; Ionia County is, effective immediately, suspending operation of its mental health court.

The personnel commitment and thereby trying to do more with less; the lack of funding, available resources and dwindling attendance at mental health court team meetings; probably made this action essentially inevitable.

Please understand this is not a knee jerk response.  For a long time, the lack of resources and the alternative increased use of incarceration has been a legitimate concern.  Sending a person with mental health issues to prison to utilize the services available in prison or via the prison re-entry program is too often the best option for the probationer, but is still wrong, for all of the obvious reasons.  And, now understanding the personnel commitment by the probation department to the specialty courts, it’s a decision whose time has come.

A special thank you to everyone for your time and effort in trying to make our mental health court the best it can be.  It was and is appreciated.