Gang-related expert testimony.

In People v Bynum, __ Mich __ (#147261, 7/11/2014) the Michigan Supreme Court held that MRE 402 and MRE 702 requires a trial court to act as a gatekeeper of gang-related expert testimony to determine whether the proposed testimony is relevant and will assist the trier of fact to understand the evidence. The introduction of evidence regarding a defendant’s gang membership is relevant and can “assist the trier of fact to understand the evidence” when there is fact evidence that the crime at issue is gang-related.  However, ordinarily, expert testimony about gang membership is of little value to a fact-finder unless there is a connection between gang membership and the crime at issue.  Additionally, an expert witness may not use a defendant’s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates MRE 404(a).

Sometimes, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters—such as clothing, symbolism, and tattoos—as features of gang membership and gang involvement. At other times, “an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”  In other words, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge. Accordingly, the relevance of gang-related expert testimony “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.”

In the context of gang-related violence, expert testimony may be admitted regarding general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime. For example, if someone got a member of the gang in trouble, the gang would retaliate” as part of “the State’s attempt to establish a motive” for such retaliation. The testimony, of course, must otherwise meet the rules of evidence before it can be admitted, and MRE 404(a) limits the extent to which a witness may opine about a defendant’s gang membership.  In that regards MRE 404(a) provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.  An expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.

In Bynum, the expert exceeded the limitations of MRE 404(a) when he went beyond discussing the general characteristics of gang membership and gang culture and testified that he believed that the defendant exemplified, on a particular occasion, the character trait of a gang member who needed to protect territory through violence.  By proffering an opinion that the defendant exhibited the character trait of violence commonly associated with gang members to explain how the defendant allegedly premeditated in the murder, the expert gave the jury a separate reason for rejecting the defendant’s self-defense claim. 

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.