Restitution requires a connection to the course of conduct that gives rise to the conviction.

In People v McKinley, __ Mich __ (#147391, 6/26/2014) the Supreme Court held that restitution in a criminal case requires a connection to the course of conduct that gives rise to the conviction. 

The plain language of the statute authorizes the  assessment of full restitution only for “any victim of the defendant’s course of conduct that gives rise to the conviction . . . .” The statute does not define “gives rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster’s College Dictionary (2000), p 1139. Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction.  Similarly, the statute requires that “any victim” be a victim “of” the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase “that gives rise to the conviction” out of the statute by permitting restitution awards for “any victim of the defendant’s course of conduct” without any qualification.  

Tort claims in a divorce action

In Fernandez v Fernandez, Unpub Per Curiam Opinion of the Court of Appeals, (#315584, 6/24/2014) the trial court entered a judgment effectuating the parties’ divorce, which reserved for future adjudication plaintiff’s tort claims and the division of some property and marital debt. After a trial, the court entered an opinion and order finding for plaintiff on her claims of assault and battery and intentional infliction of emotional distress, awarding plaintiff $10,000 in damages for pain and suffering, awarding defendant $3,000 in damages for his loss of personal property, requiring defendant to pay two-thirds of the parties’ marital debt totaling $29,678.62, and equally dividing among the parties $72,739 in proceeds from the sale of marital real estate.  Affirmed.  Defendant’s conduct went beyond “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” and also went “beyond all possible bound of decency” such that it is “regarded as atrocious and utterly intolerable in a civilized community.” Lewis v LeGrow, 258 Mich App 175 (2003) (quotations and citations omitted).

 

To prove a claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct by the defendant, (2) intent or recklessness by the defendant, (3) causation, and (4) the plaintiff’s experience of severe emotional distress. Walsh v Taylor, 263 Mich App 618, 634 (2004). For conduct to qualify as sufficiently extreme and outrageous, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. A defendant is not liable for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Lewis, supra, 258 Mich App at 196.

 

Sufficient trial evidence also demonstrated that defendant’s actions caused plaintiff severe emotional distress. Plaintiff testified that she suffered emotional distress and sleeplessness because of defendant’s threats to take the parties’ son and hurt her. Even after she obtained the PPO, she worried that defendant would try to enter her house. The record also contained evidence that plaintiff suffered significant physical trauma during the brutal attack by defendant, which caused lingering pain in her neck. Plaintiff testified that the trauma from the June 30, 2009 incident required her to treat with a mental health therapist. She further testified that at the time of trial she still suffered nightmares, felt easily startled and afraid, and could not perform her job as effectively as she could before the incident.  The evidence thus gave rise to a reasonable inference that defendant’s course of conduct caused plaintiff to experience severe emotional distress, a question for the trial court. Lewis, supra, 258 Mich App at 196; Mull, 196 Mich App at 421.

MRE 803A, Opinion testimony on the credibility of another person

In People v Douglas, __ Mich __ (#145646, 7/11/2014) the defendant objected during the trial to the admission of statements made by the child victim during a forensic interview. The statements came into evidence through a video recording of that interview and the testimony of the person who conducted the interview.
 

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Under MRE 803A, a statement describing an incident that included a sexual act performed with or on the declarant by the defendant is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding if certain criteria are met. However, if the declarant made more than one corroborative statement about the incident, only the first is admissible under MRE 803A.  Accordingly, MRE 803A did not permit the admission of this ‘second’ disclosure of the alleged fellatio during the forensic interview.
 

Although MRE 803(24) permits the admission of a hearsay statement not covered by any other exception if the statement demonstrates circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, is relevant to a material fact, is the most probative evidence of that fact reasonably available, and serves the interests of justice by its admission, the child’s statement during the forensic interview was not the most probative evidence of the alleged fellatio reasonably available. Rather, the best evidence of the child’s out-of-court disclosure of the alleged fellatio was the statement made to her mother before the forensic interview. To conclude otherwise would contravene the express preference in MRE 803A for first corroborative statements. In addition, the disclosure during the forensic interview lacked alternative indicia of trustworthiness. The trial court, therefore, abused its discretion by admitting the child’s statements made during the forensic interview regarding the alleged fellatio. In a trial in which the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant and result in harmful error. This might be even more likely when the hearsay statement was made by a young child. This case involved a pure credibility contest, and the forensic interviewer’s testimony and the video recording of the forensic interview were not harmlessly cumulative. Instead, this hearsay evidence added clarity, detail, and legitimacy to the child’s in-court testimony and more probably than not tipped the scales against defendant such that the reliability of the verdict against him was undermined and a new trial was warranted.

 

 

Defendant was also entitled to a new trial on the basis of counsel’s ineffective assistance at trial.  It is improper for a witness to comment or provide an opinion on the credibility of another person while testifying at trial. Several witnesses in this case, including the forensic interviewer, violated this well-established principle, but defense counsel failed to object. To be constitutionally effective, counsel’s performance must meet an objective standard of reasonableness. There was no sound strategy in counsel’s failure to object to the vouching testimony. Given the centrality of the child’s credibility to the prosecution’s case, the lack of evidence beyond her allegations, and the nature of the testimony offered by the witnesses in question, it is reasonably probable that but for the deficiencies in counsel’s performance, the outcome of the trial would have been different.

Restitution includes mileage.

In People v Garrison, __ Mich __ (#146626, 5/29/2014) the Michigan Supreme Court held that the victims’ immediate need to recover their property, inventory their losses, and explain their losses in court was a natural consequence of defendant’s criminal activity. Hence, their travel expenses were a direct result of defendant’s criminal course of conduct. The sentencing court’s decision to include these expenses in its restitution order was in keeping with its statutory duty to order defendant to pay “full restitution.”

There are two main statutes that govern restitution in Michigan: MCL 780.766 (part of the CVRA) and MCL 769.1a (the general restitution statute). Both statutes begin by defining “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.”  The statutes then declare that sentencing courts “shall order” a defendant convicted of a crime to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate.”  Several following subsections in the statutes go on to provide detailed instructions regarding how to calculate restitution for various types of injuries. Subsection (3) of each statute14 pertains to property loss; Subsection (4) of each statute pertains to a victim’s physical or psychological injury, and Subsection (5) of each statute also pertains to bodily injury, including death.

The CVRA and Article 1, § 24 of Michigan’s Constitution were enacted as part of a movement intended to balance the rights of crime victims and the rights of criminal defendants.  One aim of these laws was “to enable victims to be compensated fairly for their suffering at the hands of convicted offenders.” The Legislature’s statutory direction to order defendants to pay complete, entire, and maximum restitution effectuates this goal of fair compensation.  Not all crime victims suffer property damage, personal injury, or death. But many of these otherwise unharmed victims must travel to reclaim property, identify perpetrators, or otherwise participate in the investigatory process in the aftermath of a crime. These travels impose a real financial burden on victims in the form of transportation expenses. If we treated Subsections (3) to (5) as excluding those losses, we would not give effect to the connection that the Legislature made between the financial harm that a person suffers and that person’s status as a victim within the provisions of the CVRA.

Although courts must order defendants to pay “full restitution,” their authority to order restitution is not limitless. The statute authorizes restitution only for damage or loss that results from a “defendant’s course of conduct that gives rise to the conviction . . . .”  This is in keeping with the statute’s definition of “victim” as “an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.”  Thus, the losses included in a restitution order must be the result of defendant’s criminal course of conduct.

Brady violation---Did the government suppress evidence favorable to the defendant and material.

In People v Chenault, __ Mich __ (#146523, 146524, 4/4/2014) the Michigan Supreme Court held that in  order to establish a Brady violation, a defendant need only demonstrate that the government suppressed evidence that is both favorable to the defendant and material.

In Brady v Maryland, 373 US 83 (1963) the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 US at 87. In identifying the essential components of a Brady violation, the Supreme Court has articulated a three-factor test: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must  have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [Strickler v Greene, 527 US 263, 281-282 (1999).]  Stated differently, the components of a “true Brady violation,” are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material. Id.

The contours of these three factors are fairly settled. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v Whitley, 514 US 419, 437 (1995), without regard to the prosecution’s good or bad faith, United States v Agurs, 427 US 97, 110 (1976) (“If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.”). Evidence is favorable to the defense when it is either exculpatory or impeaching. Giglio v United States, 405 US 150, 154 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule [of Brady].”), quoting Napue v Illinois, 360 US 264, 269 (1959). To establish materiality, a defendant must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v Bagley, 473 US 667, 682 (1985). This standard “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal . . . .” Kyles, 514 US at 434. The question is whether, in the absence of the suppressed evidence, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. In assessing the materiality of the evidence, courts are to consider the suppressed evidence collectively, rather than piecemeal. Id. at 436.

Extortion is not dependent on the seriousness or significance of the compelled act.

In People v Harris, __ Mich __ (# 146212, 10/9/2014) the defendant was convicted of extortion after he had agreed to pay another person $400 to fix the transmission on defendant’s truck. This person began working on the truck, but stopped when it began to rain. Upset by his refusal to work in the rain, defendant went into his house and returned with a gun, and said that he would “silence him” unless he resumed working on the truck or returned a portion of defendant’s down payment for the work. The person refused, defendant returned home; the officers arrived and found defendant in the driveway carrying a rifle.

 

Under the plain language of the extortion statute, MCL 750.213, extortion occurs when a defendant maliciously threatens to injure another person with the intent to compel that person to do any act against his or her will, without regard to the seriousness or significance of the compelled act, overruling People v Fobb, 145 Mich App 786 (1985), and People v Hubbard (After Remand), 217 Mich App 459 (1996), to the extent that those decisions required that the act or omission compelled by the defendant be of serious consequence to the victim.  Under the plain language of the extortion statute, the crime of extortion is complete when a defendant (1) either orally or by a written or printed communication, maliciously threatens (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will. The Court of Appeals decisions in Fobb and Hubbard, which held that the act demanded of the victim must have been of serious consequence to the victim in order to convict a defendant of extortion, are contrary to the plain language of the statute.

A primer for prosecution use of defendant's post-arrest, post-Miranda silence.

In People v Bailey, Unpub Per Curiam Opinion (3/6/2014, #309879) the Court of Appeals held that although the prosecution clearly crossed the line by repeatedly using defendant's post-arrest, post-Miranda silence to infer guilt; and defense counsel's failure to object was objectively unreasonable, the same was not reversible error because the unchallenged evidence against defendant was very strong.

 

The United States Constitution guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” US Const Am V. Miranda, 384 US 436, established guidelines for law enforcement agencies and courts to follow in order to protect the privilege against compelled self-incrimination during custodial police interrogations. People v Shafier, 483 Mich 205 (2009).  A defendant’s right to remain silent is protected by the Fourteenth Amendment which precludes the use of a defendant’s silence following Miranda warnings to impeach an exculpatory story. People v Alexander, 188 Mich App 96 (1991).  As a general rule, if a person remains silent after being arrested and given Miranda warnings, that silence may not be used as evidence against that person. Shafier, 483 Mich at 212-213, citing Wainwright v Greenfield, 474 US 284 (1986) because there is no way to know after the fact whether it was due to the exercise of constitutional rights or to guilty knowledge. People v McReavy, 436 Mich 197 (1990). Accordingly, where the record indicates that a defendant’s silence is attributable to an invocation of his Fifth Amendment privilege or a reliance on Miranda warnings, use of his silence is error. Id. at 202.

 

In order to prevail on a claim of ineffective assistance of counsel, defendant must show that: (1) counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms at the time the representation took place, and (2) counsel’s deficient performance prejudiced the defense such that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. People v Carbin, 463 Mich 590 (2001), quoting Strickland v Washington, 466 US 668 (1984).

 

Where silence follows Miranda warnings, the prosecution is not permitted to use postwarning silence to impeach a defendant’s exculpatory trial testimony, Shafier, 483 Mich at 213, or as direct evidence of a defendant’s guilt in its case-in-chief, id. at 213-214, unless the defendant claims to have told the police the same version upon arrest, People v Sutton, 436 Mich 575 (1990), quoting Doyle v Ohio, 426 US 610, 619 n 11 (1976).

 

In Shafier, 483 Mich at 215, the prosecutor made references to the defendant’s post-arrest, post-Miranda silence during trial. The prosecutor deliberately elicited testimony from the arresting officer regarding the defendant’s silence by asking if the defendant spoke to the officer after he was arrested and given his Miranda warnings. Id. at 215-216. The defendant testified that he had not committed the charged crime; during cross-examination, the prosecutor attempted to impeach his testimony by asking “You didn’t say a single word about being arrested for criminal sexual conduct. Is that right?” Id. at 216-217. The defendant responded that he had not. Id. at 217. The prosecutor began his closing argument by highlighting the significance of the defendant’s silence; he argued that the defendant was silent because “the defendant had been making his daughter do things that no person speaks about.” Id. at 217. Our Supreme Court noted that “a reference to a defendant’s post-arrest, post-Miranda silence” is generally a constitutional violation unless the reference was minimal. Id. at 217-218. It held, however, that “the prosecution clearly crossed [the] line by repeatedly using [the] defendant’s post-arrest, post-Miranda silence as evidence in its case-in-chief and to impeach the defendant’s testimony that he was innocent.” Id. at 218. The Court held that the defendant’s Fourteenth Amendment due process rights were violated by the prosecutor’s repeated use of the defendant’s silence to infer his guilt. Id. at 218-219. The Court reversed the defendant’s conviction and remanded to the trial court “for further proceedings.” Id. at 224.

 

Here, detective Gruzin testified at trial that he went to the jail to interview defendant. He testified that defendant was given his Miranda warnings. The prosecutor asked, “And at that time, he invoked his Fifth Amendment right and didn’t wish to speak with you regarding any investigation, right?” Gruzin responded that defendant only stated “I have nothing to say to you.” Accordingly, like in Shafier, the prosecution “deliberately elicited testimony” from Gruzin concerning defendant’s post-arrest, post-Miranda silence. During defendant’s testimony the prosecution asked defendant twice if he had shared his exculpatory story with Gruzin, to which defendant said “no.” Also, during defendant’s testimony, the prosecutor stated, “Now, how are we supposed to know where to go? You won’t talk to Detective Gruzin at all.” Accordingly, like in Shafier, the prosecutor used defendant’s silence in an attempt to impeach his testimony that he was “innocent.” During closing arguments, the prosecution referenced the fact that defendant failed to share his exculpatory testimony with Gruzin twice. The prosecutor submitted to the jury that this supported that defendant fabricated his testimony. Accordingly, like in Shafier, the prosecutor highlighted the significance of defendant’s silence to infer his guilt in his closing argument.

 

As in Shafier, the prosecution in the instant case clearly crossed the line by repeatedly using defendant’s post-arrest, post-Miranda silence as evidence in his case-in-chief and to impeach the defendant’s testimony that he was innocent. Accordingly, defendant’s due process rights were violated by the prosecutor’s repeated use of his silence to infer his guilt. See Shafier, 483 Mich at 218-219. It is well established that the prosecution is not permitted to use post-warning silence to impeach a defendant’s exculpatory trial testimony, id. at 213, or as direct evidence of a defendant’s guilt in the prosecutor’s case-in-chief, id. at 213-214, where the defendant has not claimed “to have told the police the same version upon arrest.” Sutton, 436 Mich at 592. Further, defense counsel’s failure to object to the prosecution’s repeated use of defendant’s post-arrest, post-Miranda silence with respect to Gruzin was objectively unreasonable. See Carbin, 463 Mich at 600.

 

It then becomes necessary to consider whether defense counsel’s deficient performance prejudiced the defense such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. In Shafier, 483 Mich at 221-223, our Supreme Court considered whether improperly admitting evidence of the defendant’s post-arrest, post-Miranda silence into evidence affected the defendant’s substantial rights. The Court considered the following factors: (1) the extent of the prosecutor’s comments, (2) the extent to which the prosecutor attempted to tie [the] defendant’s silence to his guilt, and (3) the overall strength of the case against [the] defendant when considered in light of the degree to which the jury’s assessment of the evidence might have been affected by the prosecutor’s references to [the] defendant’s silence. [Id. at 221.] While the Shafier Court was analyzing whether the defendant was prejudiced by the improper evidence under the plain error doctrine, id. at 220-221, the Court’s considerations regarding the effect that the improper admittance had on the outcome at trial is also relevant in determining whether the outcome of trial would have been different “but for” defense counsel’s unprofessional error. 

 

With respect to the first factor, the Shafier Court noted that “the more extensive a prosecutor’s references to a defendant’s post-arrest, post-Miranda silence, the more likely it is that the references had a prejudicial effect.” Id. at 221-222. Here, the prosecution’s references to defendant’s silence when Gruzin attempted to question him were frequent throughout the second day of trial. The prosecutor elicited the testimony from Gruzin concerning defendant’s silence, asked defendant twice on cross-examination about his failure to provide his exculpatory story to Gruzin, and made two references to defendant’s failure to speak to Gruzin during his closing argument. Accordingly, because the prosecutor repeatedly referenced defendant’s silence with respect to Gruzin, the references prejudiced the defense. See id.

 

With respect to the second factor, the Shafier Court also held that the references “to a defendant’s post-arrest, post-Miranda silence are more likely to be prejudicial the more directly or explicitly the prosecutor uses the silence to challenge a defendant’s credibility or show a defendant’s guilt.” Id. at 222. In so holding, the Court considered whether the references were inadvertent. Id. Here, the references were not inadvertent. Rather, the prosecutor specifically questioned Gruzin and defendant about defendant’s invocation of his right to silence. The prosecutor directly stated the following to defendant during cross examination: “[H]ow are we supposed to know where to go? You won’t talk to detective Gruzin at all.” More importantly, the prosecutor specifically referenced defendant’s silence with respect to Gruzin twice in his closing argument. The prosecutor suggested that the fact that defendant failed to share the “story” with Gruzin was evidence that defendant had waited to hear what other witnesses stated in order to “fabricate a story that fit the evidence.” The prosecutor also stated that “if he was telling the truth, he would have told . . . Detective Gruzin when he had the opportunity.”  Accordingly, the prosecutor used defendant’s silence to directly challenge defendant’s credibility and show his guilt, thus increasing the prejudicial effect. See id.

 

Finally, with respect to the third factor, the Shafier Court considered “the overall strength of the case against the defendant and the degree to which the jury’s assessment of the evidence might have been affected by the prosecutor’s references to a defendant’s silence.” Shafier, 483 Mich at 222-223. Here, Lobbezoo testified that he was ten feet away from defendant when he saw him removing property from the victim’s vehicle. Defendant ran from him; and, thereafter, Lobbezoo gave dispatch a description of defendant. Defendant was seen in the neighborhood twice by Lobbezoo as he searched for the perpetrator, and defendant was apprehended by other officers a short period of time after the charged crimes occurred. Defendant matched Lobbezoo’s description with the exception that he was wearing glasses at the time of arrest and was not wearing the green coat; he was also older than Lobbezoo initially described. However, Lobbezoo was “positive” that defendant was the perpetrator because of his dreadlocks, facial structure, and the fact that they were both covered in the same “foliage.” The victim’s “Dewars bag, change, and golf tees were found in defendant’s pocket. Although this Court does not make credibility determinations, People v Wolfe, 440 Mich 508 (1992), amended 441 Mich 1201 (1992), defendant’s attempt to explain how he came into possession of the victim’s property was patently incredible. Accordingly, the unchallenged evidence establishes that the prosecution’s case against defendant was very strong, and was not solely a credibility contest between police and defendant as defendant claims. Moreover, as discussed infra, defendant’s failure to provide Lobbezoo with his exculpatory statement was properly before the jury by way of other testimony because defendant specifically waived his right to silence while being transported to the jail; thus, the jury was already aware of defendant’s failure to share his exculpatory story immediately after his arrest. Because the prosecution’s case was strong and defendant’s silence with respect to Lobbezoo was properly in the record, the jury’s verdict was not likely a result of the prosecutor’s references to defendant’s silence with respect to Gruzin. Therefore, the final factor lessens the prejudicial effect on the defense. See People v Borgne, 483 Mich 178 (2009) (holding that, because “the untainted evidence against [the] defendant show[ed] how strong the prosecution’s case was,” reversal was not necessary despite the prosecution’s use of defendant’s post-arrest, post-Miranda silence).

 

In sum, the record establishes that the prosecutor’s injection of the silence issue was deliberate and was used to challenge defendant’s credibility and show his guilt, thus increasing the prejudicial effect. However, because the jury’s verdict was not likely a result of the prosecutor’s references to defendant’s silence with respect to Gruzin, defense counsel’s failure to object to the prosecution’s repeated use of defendant’s silence did not prejudice defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Carbin, 463 Mich at 600. Therefore, defendant was not denied effective assistance of counsel.