Discovery in Criminal Cases--criminal records

In People v Sluck, Unpub Per Curiam, (#302215, 11/1/2012) the Court of Appeals held that a prosecutor can be compelled to compile a list of its own witnesses’ criminal records by a review of its own files. In Sluck the defendant had relied on MRE 6.201(A) and requested, in part, that the prosecution disclose the complainant’s criminal history; the prosecuting attorney indicated at the motion hearing that her office had the information in its possession.

Discovery in criminal cases is governed by MCR 6.201.  

MCR 6.201(A), titled “Mandatory Disclosure,” provides in relevant part: [i]n addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties . . . * * * (4) any criminal record that the party may use at trial to impeach a witness; [and] (5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial . . . . [Emphasis added.]  Because disclosure under MCR 6.201(A) is mandatory, when a party requests information under the court rule, that information must be provided to the requesting party. People v Laws, 218 Mich App 447, 454-455 (1996).

This includes the possibility of juvenile adjudications.  Although not generally admissible at trial, records of juvenile adjudications of a witness other than the accused may be admissible at a criminal trial under MRE 609(e) if “conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.” Crimes “admissible to attack the credibility of an adult” are covered by MRE 609(a), and are defined as those crimes an essential element of which is dishonesty or false statement, or those crimes an essential element of which involves theft, are punishable by over a year in prison, and which have “significant probative value on the issue of credibility.” People v Parcha, 227 Mich App 236, 241-242 (1997).   And, necessarily, a trial court must have access to criminal records or juvenile adjudications in order to perform its gate-keeping function to determine if they are admissible under MRE 609. Laws, 218 Mich App at 452 (a trial court may conduct an in-camera review to determine if evidence is discoverable); People v Small, 467 Mich 259, 264 (2002), quoting MCL 768.29 (“[i]t shall be the duty of the judge to control all proceedings . . . and to limit the introduction of evidence . . . to relevant and material matters . . .”).

On appeal the people argued in Sluck that Elkhoja II, infra and the LEIN statute prohibited the people from conducting a lien search in behalf of the defendant.  In People v Elkhoja, 658 NW2d 153 (2003) (Elkhoja II), the Supreme Court issued an order that adopted the dissent in People v Elkhoja, 251 Mich App 417 (2002) (Elkhoja I) that in conjunction with MCL 6.201(A)(5), and the LEIN statute a prosecutor cannot be compelled to conduct a LEIN search on behalf of a defendant.  However, the Court of Appeals in Sluck held that this does not prevent the trial court from compelling a prosecutor to compile a list of its own witnesses’ criminal records by review of its own files without resorting to an independent search of the LEIN database. Records of criminal convictions, unearthed by the prosecution in prior cases, are “known” to the prosecution for purposes of MCR 6.201. To hold otherwise would allow prosecutors to remain willfully ignorant of valuable impeachment evidence to which defendants are otherwise entitled.

Supreme Court Briefs Filed in US Airways, Inc. v. McCutchen---Guest blog by Emily Hootkins.

November 9, 2012 | Posted by Emily Catherine Hootkins, ERISA Litigation Group, Alston & Bird.

Briefs have been filed, the date for oral argument is rapidly approaching, and the parties are gearing up to face the Supreme Court in this year’s hot ERISA reimbursement case of US Airways, Inc. v. McCutchen. To briefly recap the facts, in McCutchen the plan sued under ERISA § 502(a)(3) for full reimbursement of medical expenses after a participant recovered limited damages related to injuries sustained in a car accident. The District Court granted summary judgment to US Airways, as plan administrator, based on language in the plan allowing full reimbursement of any monies recovered by the participant. No. 2:08-CV-1593, 2010 WL 3420951 (W.D. Pa. Aug. 30, 2010). On appeal, the Third Circuit vacated and remanded. 663 F.3d 671 (3d Cir. 2011). Citing Amara, the Third Circuit rejected the plan’s claim for full reimbursement by finding that ERISA § 502(a)(3) incorporates traditional equitable defenses. Id. at 678-79. Looking at the facts of the case, the Third Circuit concluded that requiring the participant to provide full reimbursement to the plan (without allowing offset for his attorneys’ fees and expenses) would be “inappropriate and inequitable relief.” Id. at 679.

The Supreme Court granted US Airways’ petition for certiorari on June 25, 2012. The question presented is: “Whether the Third Circuit correctly held--in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits--that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.”

On August 29, 2012, US Airways filed its brief on the merits, arguing “Section 502(a)(3) does not empower courts to use free-floating equitable principles to rewrite benefit plans.” (Pet’r’s Brief p. 4.) US Airways gives three rationales for its position. First, § 502(a)(3) only authorizes appropriate equitable relief to “enforce . . . the terms of the plan” and McCutchen’s approach would improperly “obliterate[]” the plan terms. (Id.) Second, the equitable relief sought by US Airways (an equitable lien by agreement) requires a court to enforce the actual agreement of the parties, which allows full reimbursement, rather than rewrite the parties’ agreement. (Id.) Third, US Airways argues that McCutchen’s approach conflicts with the goals of ERISA by making liabilities unpredictable. (Id.) The Third Circuit’s decision is characterized as a threat to the stability of self-funded ERISA plans, as it would discourage employers from offering benefits yet encourage gamesmanship by plan participants in the structuring of settlements. (Id. at pp. 42-50.)

Respondents address these arguments and others in their brief on the merits filed on October 18, 2012. They argue that U.S. Airways’ approach is “neither ‘appropriate’ nor ‘equitable’” as it ignores principles of unjust enrichment in favor of “rote enforcement of contract terms.” (Resp’ts’ Brief p. 2.) Respondents maintain that the Third Circuit’s approach is consistent with how courts would have treated US Airways’ claim in the days of the divided bench, where an insurer’s subrogation claims were limited to a pro rata share of a recovery. (Id. at pp. 13-25.) Further, in equity, Respondents argue that the common fund rule requires that US Airways pay its proportional share of the fees and costs incurred in obtaining the damages recovery. (Id. at pp. 26-32.)

Responding to policy concerns, Respondents argue “the plans have not offered a scintilla of actual evidence that their apocalyptic vision of life under the Third Circuit’s approach will come to pass.” (Id. at p. 48.) “If anything, there is every reason to believe that Petitioner’s full-reimbursement approach would increase litigation costs by making it less likely that tort claimants would be willing to settle cases.” (Id. at p. 54.)

These contentious briefs confirm that this is a Supreme Court case worth following. Many ERISA plans contain “subrogation” or “reimbursement” provisions, and how the Supreme Court resolves the question of whether “equitable defenses” can limit a plan’s recovery under § 502(a)(3) is likely to have a far-reaching impact on related reimbursement and underlying tort litigation.

Oral argument in this case is set for Tuesday, November 27, 2012.

Attorney Fees--Determining the number of hours reasonably expended.

In Adair v State of Michigan, __ Mich App __ (#230858, 11/6/2012) the Court of Appeals held that Plaintiffs failed to carry their burden of proving the number of hours reasonably expended in the litigating of their claim.

The party requesting an award of attorney fees bears the burden of proving the reasonableness of the fees requested. Smith, 481 Mich at 528. Smith establishes an analytical framework to guide the lower courts in the methodology of determining what constitutes a “reasonable fee.” In general terms, the Smith framework requires a trial judge to determine a baseline reasonable hourly or daily fee rate derived from “reliable surveys or other credible evidence” showing the fee customarily charged in the locality for similar legal services. Id. at 530-531, 537. Once the trial judge has determined this hourly rate, the judge must multiply this rate by the reasonable number of hours expended in the case. The product of this calculation serves as the “starting point for calculating a reasonable attorney fee.” Id. at 531, 537. Finally, the trial judge may make up-or-down adjustments to the fee based on certain factors enumerated in Rule 1.5(a) of the Michigan Rules of Professional Conduct and Wood v DAIIE, 413 Mich 573 (1982), and any additional relevant factors. Smith, 481 Mich at 529-531, 537.

In determining the number of hours reasonably expended, the party requesting attorney fees has the burden of supporting their claimed hours with evidentiary support, including detailed billing records, which the opposing party may contest for reasonableness. Smith, 481 Mich at 532; Augustine v Allstate Ins Co, 292 Mich App 408, 432 (2011). An itemized bill of costs by itself is insufficient to establish the reasonableness of the hours claimed. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33 (1983). Indeed, the trier of fact is not required to accept it on its face, id.; nor is the trier of fact required to accept an attorney’s representation that the hours identified in the bill of costs were reasonably expended, Sturgis Savings and Loan Ass’n v Italian Village, Inc, 81 Mich App 577, 584 (1978); see also Augustine, 292 Mich App at 423. Rather, the fee applicant must demonstrate by documentation or specific testimony or both that the time identified as expended on a billable item was actually and reasonably expended. Augustine, 292 Mich App at 432-434; Petterman, 125 Mich App at 33.

Exceeding the sentencing guidelines; objective and verifiable factors

In People v Anderson, __ Mich App __ (#301701, 10/23/2012) the Court of Appeals upheld the upwards departure on the basis of substantial and compelling reasons that were objective and verifiable.

A court may depart from the appropriate sentence range . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3). In order to be substantial and compelling, the reasons on which the trial court relied “must be objective and verifiable.” People v Smith, 482 Mich 292, 299 (2008). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.” People v Horn, 279 Mich App 31, 43 n 6 (2008). The reasons for departure must also “be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.” Smith, 482 Mich at 299. However, “[t]he trial court may not base a departure ‘on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record . . . that the characteristic has been given inadequate or disproportionate weight.’” Id. at 300, quoting MCL 769.34(3)(b). Moreover, “the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.” Smith, 482 Mich at 303 (emphasis in original). Thus, “the trial court . . . must justify on the record both the departure and the extent of the departure.” Id. at 313 (emphasis in original).

In Anderson the trial court’s upward departure was supported by other objective and verifiable factors that keenly grabbed the court’s attention, including the planning defendant engaged in, the extreme nature of the victims’ injuries, the victims’ unusual level of psychological trauma, defendant’s pattern of escalating violence toward the victims, and defendant’s inability to benefit from counseling. The trial court stated that it thought any one of the reasons it articulated justified an upward departure. Given the court’s comments, the Court of Appeals was satisfied that the court would have departed to the same degree on the basis of the valid reasons alone.

The existence of the victims’ unusually severe burn injuries was objective and verifiable, and the trial court did not abuse its discretion when it determined that the severity of those injuries was a substantial and compelling reason in support of its sentencing departure.

Although OV 4 accounts for psychological injuries suffered by victims, it does not adequately consider the ways in which an offense affects familial relationships, see People v Armstrong, 247 Mich App 423, 425-426 (2001), nor does it always account for the unique psychological injuries suffered by individual victims. See Smith, 482 Mich at 302.  Under the circumstances of this case, the trial court did not err in finding that the guidelines did not adequately account for the psychological injuries suffered by the victims. Consequently, this was a substantial and compelling reason to depart upward from the guidelines.

The trial court’s sixth basis for departing from the guidelines was that defendant had a propensity to re-offend and was therefore a threat to public safety. A court’s opinion or speculation about a defendant’s future dangerousness is not objective or verifiable. People v Cline, 276 Mich App 634, 651 (2007). But the trial court may base a sentencing departure on a defendant’s future dangerousness if objective and verifiable facts support the court’s conclusion, such as the defendant’s past failures to rehabilitate or demonstrated obsessive or uncontrollable urges to commit certain offenses. Horn, 279 Mich App at 45. Recurring and escalating acts of violence are objective and verifiable because they are external occurrences that can be confirmed. Id. at 46.  In this case, the trial court based its conclusions on objective and verifiable facts. The court noted that defendant had been “diagnosed with symptoms of oppositional defiant disorder” and had not benefitted from the various forms of counseling he had received from a young age. Defendant had threatened, stolen from, and damaged the property of his parents on “numerous occasions.” The trial court determined that defendant’s “escalation of violence” toward his parents was not adequately addressed by the sentencing guidelines. The trial court did not simply state that it thought defendant had a propensity to re-offend—it supported its conclusion with objective, verifiable, external determinations.

CSC 1st requires lifetime monitoring unless defendant is sentenced to life without parole.

In People v Johnson, __ Mich App __ (#302173, 10/16/2012) the defendant was convicted of three counts of CSC I and sentenced to 17-1/2 to 40 years in prison and lifetime electronic monitoring pursuant to MCL 750.520n.  Defendant argued on appeal that he was erroneously ordered to lifetime electronic monitoring because the victim was not less than 13 years old at the time of the offenses. The Court of Appeals disagreed.

MCL 750.520b(2) provides that Criminal sexual conduct in the first degree is a felony punishable as follows: (a) Except as provided in subsections (b) and (c), by imprisonment for life or for any term of years. (b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any terms of years, but not less than 25 years. (c) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, by imprisonment for life without possibility of parole if the person was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age.  (d) In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n.

This section requires three differing prison sentences for first-degree criminal sexual conduct, depending upon the circumstances: (1) imprisonment for life or any term of years; (2) imprisonment for life or any term of years, but not less than 25 years, if the defendant is 17 years or older and the victim is 13 or younger; or (3) imprisonment for life without the possibility of parole, if the defendant was previously convicted of a criminal sexual conduct offense or another attempted CSC offense. The subsection (d) penalty regarding lifetime monitoring is explicitly required to be imposed in addition to the penalties provided in subsections (a) and (b).

The lifetime monitoring penalty specifically does not apply when a defendant is sentenced to prison for life without parole under subsection (c).  

Accordingly, from the plain statutory language of the statute, regardless of the defendant’s and the victim’s age, MCL 750.520b(2) requires lifetime electronic monitoring for first-degree criminal sexual conduct offenses where the defendant has not been sentenced to life in prison without parole.

The judge's role in a Medical Marijuana Section 8 motion.

In People v Anderson, __ Mich App __ (#300641, 9/18/2012) the defendant was arrested after police officers discovered marijuana plants and plant material in his home in June 2009. The prosecutor charged him with manufacturing marijuana, see MCL 333.7401(1) and (2)(d)(iii), and the district court bound Anderson over for trial in March 2010. Id. at 41. In April 2010, Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. Id. at 41-42.

On remand from the Supreme Court, the Court of Appeals further remanded the case to the trial court for an evidentiary hearing under People v Kolanek, 491 Mich 382 (2012).  As set forth in Kolanek, the trial court’s role at the evidentiary hearing is limited: it must determine whether the defendant has presented sufficient evidence from which a reasonable jury could conclude that the defendant established the elements of his or her § 8 defense and then determine, given the evidence presented at the hearing, if there is a material factual dispute concerning one or more of those elements. Id. at 411-413. The trial court may not weigh the evidence, assess credibility, or resolve factual disputes at the hearing. Id. at 411 (“Questions of fact are the province of the jury, while questions of law are reserved to the courts.”). Rather, the trial court must determine—as a matter of law—if the defendant established his or her right to have the charges dismissed under § 8, or if there are material factual disputes that must be resolved by a jury. Id. at 411-413.

Appointment of a DNA expert for the defense.

In People v Webb, Unpub (#305017, 8/16/2012) the Court of Appeals reversed convictions of first-degree home invasion, safe breaking, felon in possession of a firearm, and two counts of felony-firearm. 

At trial DNA evidence was the only evidence linking defendant to the crime. Before trial, defendant requested the appointment of a DNA expert witnessed, which the trial court denied.  According to the Court of Appeals, the trial court abused its discretion in denying defendant’s request for an expert witness.

“Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such rights.” People v Leonard, 224 Mich App 569, 580 (1997). MCL 775.15 provides that an indigent defendant may request that the judge, “in his discretion[,] . . . make an order that a subpoena be issued” for a material

witness favorable to defendant “without whose testimony [defendant] cannot safely proceed to a trial[.]” As reflected in this permissive language, it is a discretionary decision and “a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich 437, 442 (2003). “[A] defendant must show a nexus between the facts of the case and the need for an expert.” Leonard, 224 Mich App at 582. Also, “[i]t is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.” Tanner, 469 Mich at 443 (internal quotations and citation omitted).

In this case the only evidence linking defendant to the crime was the DNA evidence. Thus, there was a nexus between the facts of the case and the need for a DNA expert, Leonard, 224 Mich App at 582. Without the ability to have an independent DNA expert examine the blood samples, defendant was deprived of an opportunity to present a defense to the charged crimes. “[F]undamental fairness requires that the state not deny [indigents] an adequate opportunity to present their claims fairly within the adversary system.” Leonard, 224 Mich App at 580 (internal quotations and citation omitted). In spite of this concern for fundamental fairness, the trial court failed to articulate any reasons justifying the denial of defendant’s request for an independent DNA expert.  This was reversible error.