MCL 768.27a prevails over MRE 404(b)

In People v Watkins, ___ Mich ___ (#142031, 6/8/2012) the Supreme Court held that MCL 768.27a irreconcilably conflicts with MRE 404(b) and that the statute prevails over the court rule.   The Court held that evidence admissible under MCL 768.27a remains subject to MRE 403, but that courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.  

MCL 768.27a(1), provides that 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.  Listed offense’ means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.” MCL 768.27a(2)(a).

Evidence admissible pursuant to MCL 768.27a may be excluded under MRE 403 if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

There are several considerations that may lead a court to exclude such evidence under MRE 403. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.  This list of considerations is meant to be illustrative rather than exhaustive.

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.

The common-law rule that a person may resist an unlawful arrest.

In People v Moreno, Jr, ___ Mich ___ (#41837, 4/20/2012) the defendant was charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. Defendant was charged with resisting and obstructing a police officer in violation of MCL 750.81d.

In Michigan, obstructing a police officer has been recognized as a common-law crime, as well as an offense governed by statute.  However, the right to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our state’s common law.  In explaining the common-law right to resist an unlawful arrest, “one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest” and that “the basis for such preventive or resistive action is the illegality of an officer’s action, to which [a] defendant immediately reacts.”

The Supreme Court held that MCL 750.81d does not abrogate the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.  People v Ventura, 262 Mich App 370 (2004) was overruled to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, the Court reversed the judgment of the Court of Appeals and remanded the case to the trial court. On remand, the trial court was to grant defendant’s motion to quash the charges on the basis of its ruling that the officers’ conduct was unlawful.

Effective assistance of counsel at the pretrial stage.

In People v Douglas, __ Mich App __ (#301654, 4/12/2012) the defendant argued that he was denied the effective assistance of counsel at the pretrial stage of the proceeding because counsel failed to inform him that he would be subject to a 25-year mandatory minimum sentence if he was convicted of first-degree CSC and because counsel erroneously advised him that he would not be able to live with his children if he was required to register as a sex offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.   On appeal the Court of Appeals agreed that counsel’s performance was constitutionally deficient, prejudiced defendant and thereby reversed his convictions for criminal sexual conduct.

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A defendant’s Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v Cooper, 566 US ___; ___ S Ct ___ (2012), slip op at 5. 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. Hill v Lockhart, 474 US 52, 58 (1985). As for ineffective assistance of counsel claims generally, where a defendant’s claim is based on counsel’s failure to properly advise the defendant with respect to a plea offer, the defendant must show that his attorney’s performance “‘fell below an objective standard of reasonableness’” and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Padilla v Kentucky, ___ US ___; 130 S Ct 1473, 1481-1482 (2010), quoting Strickland v Washington, 466 US 668, 688, 694 (1984). “In the context of pleas[,] a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 US at ___, slip op at 5. 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).

In this case counsel’s failure to inform defendant that he would receive a 25-year mandatory minimum sentence if the jury convicted him of first-degree CSC fell below an objective standard of reasonableness. Padilla, 130 S Ct at 1482.  MCL 750.520b(2)(b) clearly provides for a mandatory 25-year minimum sentence for a violation “committed by an individual 17 years of age or older against an individual less than 13 years of age[.]” Thus, counsel’s advice to defendant that he could face up to a 20-year sentence, but that he would most likely be sentenced to a minimum term between five and eight years in accordance with the sentencing guidelines, was erroneous. Moreover, the information regarding the mandatory minimum sentence was essential to enable defendant to make an informed decision whether to accept the prosecution’s plea offer or proceed with trial. Corteway, 212 Mich App at 446.

In Lafler, 566 US at ___, slip op at 5, the Court articulated the standard that a defendant must establish in order to demonstrate prejudice in cases in which counsel’s ineffective advice led the defendant to reject a plea offer and proceed to trial. The Court stated: In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

In this case counsel’s erroneous advice prejudiced defendant. On the morning of trial, the prosecution offered defendant the option of pleading guilty to fourth-degree CSC. Defense counsel advised defendant that, if he accepted the offer, the worst sentence that he could receive was ten months in jail with the requirement that he register as a sex offender. Counsel testified at the Ginther hearing that if he had known that first-degree CSC carried a mandatory 25-year minimum sentence, he “would have absolutely pressed [defendant] and insisted that he take the deal.” Moreover, defendant testified that, had his attorney advised him of the 25-year mandatory minimum sentence, he would have taken the plea offer because “[a] 25-year minimum is a lot different than the possibility of not going to prison.” Defendant maintained that he would have accepted the plea offer even if doing so meant that he would have been permitted very little or no contact with his children. According to defendant, counsel erroneously advised him that he would not be permitted to reside with his children for as long as he was required to register as a sex offender. Defendant testified that he did not learn until after trial that the SORA would not have prohibited him from residing with his children and that counsel’s misinformation regarding  

In Lafler, supra, the Court stated that if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. [Lafler, 566 US at ___, slip op at 8.]

Although the trial court determined that no error occurred because defendant was aware of the possibility that he could be sentenced to a 20-year term, there is a significant difference between the possibility of a 20- year term, but the likelihood of serving a much shorter sentence, and the certainty of serving a 25-year minimum term. Defendant has thus shown that the offer was valid, that he would have accepted the offer, and that his conviction and sentence would have been much less severe than the convictions and sentences imposed after trial. Therefore, defendant has established that counsel’s failure to inform him of the actual consequences of accepting or rejecting the plea offer prejudiced him. Lafler, 566 US at ___, slip op at 5. Having concluded that defendant satisfied both prongs of the Strickland test, we must now determine the appropriate remedy. In doing so, we note that the circumstances of this case are very similar to those in Lafler. In Lafler, 566 US at ___, slip op at 3, the respondent rejected two plea offers on the basis of defense counsel’s erroneous advice and was convicted following trial. The parties agreed that counsel’s performance was constitutionally deficient, and the respondent established the requisite prejudice. Id. at 5, 12. The Court noted that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation’” and “must ‘neutralize the taint’ of a constitutional violation[.]” Id. at 10, quoting United States v Morrison, 449 US 361, 364-365 (1981). The Court concluded: The correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich Ct Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”).  Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. [Lafler, 566 US at ___, slip op at 12.]  In People v Fonville, 291 Mich App 363, 394-395(2011), this Court held that defense counsel’s representation was constitutionally defective because counsel failed to advise the defendant that pleading guilty would require him to register as a sex offender pursuant to the SORA. Here, although defense counsel advised defendant that he would be required to register as a sex offender, counsel erroneously informed defendant that his registration would preclude him from living with his children for the duration of his registry, or 20 years. The instant case differs from Lafler in one material respect. In this case, defendant was denied the effective assistance of counsel at both the plea bargain and trial stages of the proceeding.  Accordingly, taking this circumstance into consideration, we vacate defendant’s convictions and sentences and remand to the trial court for the prosecution to reinstate its plea offer made immediately before trial. If defendant refuses to accept the plea offer, he is entitled to a new trial.

Self-defense is applicable to a charge of felony firearm.

In People v Goree, __ Mich App __ (#302046, 4/17/2012) the Court of Appeals held that the trial court erred by instructing the jury that self-defense is not applicable to a felony firearm charge.

At its core, felony-firearm is a possessory offense. In People v Dupree, 486 Mich 693 (2010) the Supreme Court has found self defense applicable to another possessory offense—being a felon in possession of a firearm in violation of MCL 750.224f.  In Dupree, the defendant was a convicted felon who was legally barred from possessing a weapon. The defendant wrested a weapon away from an armed assailant during a confrontation at a family party. The defendant then used the weapon to shoot the assailant three times. Id. at 698-699.  The defendant challenged the assault charges raised against him, asserting that he acted in self defense. Id. at 699.  Similar to the current case, the jury acquitted Dupree of the assault charges but convicted him of being a felon in possession of a firearm. Id. at 700.  On appeal the Supreme Court determined that common-law self-defense was applicable to a felon-in-possession charge without the trial court’s gloss requiring a defendant to discard the weapon as soon as possible. Id. at 705-706. The Court noted that felon-in-possession statutes are “‘not intended to affect [a defendant’s] right to use a firearm in self-defense’” but were merely intended “‘to prohibit members of the affected classes from arming themselves with firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exists [sic].’”  

Pursuant to MCL 780.972, a criminal defendant may raise self-defense as follows: (1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies: (a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. (b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. (2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

In this case the trial court’s instruction that defendant’s act of felony-firearm could not be justified by self-defense was reversible error. Defendant was “entitled to have a properly instructed jury consider the evidence against him,” and is therefore entitled to a new trial on the felony-firearm charge, with an instruction on self defense.