Beruflich Dokumente
Kultur Dokumente
ERIKA BREITFELD
I. MIRANDA AND OTHER EVIDENCE RULES ........................................... 598
A. Custodial Interrogation: Police, Parole, and the Measure of
Coercion .................................................................................. 598
B. The Power of Community: Did Local Citizens Just Help the
Police Catch Me?..................................................................... 601
C. Under the Michigan Rules of Evidence, Dont Tell Anyone
or Youll Get in Trouble Is Not Enough to Prove That a
Defendant Made a Witness Unavailable to Testify.................. 605
D. To Have and to Hold from This Day Forward: A Look at the
Spousal Privilege ..................................................................... 608
E. The Loud Consequences of Remaining Silent: Miranda,
Raffel, and Michigan Rules of Evidence.................................. 609
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!............................................................................................. 611
A. Close . . . Closer . . . How Close Is Immediate Presence
Under the Larceny from a Person Statute?......................... 611
B. What Does Any Act Mean in the Extortion Statute?.............. 614
C. When Do I Have to Know That I Possess a Dangerous
Animal? Before or After It Attacks and Injures a Person? ...... 616
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute..................................... 618
E. Dont Take Away My PIP Benefits: Unlawfully Taking
Away and How It Affects Insurance Benefits......................... 619
III: JUDGES AND LAWYERSOUR BEHAVIOR MATTERS ...................... 622
A. Blurred Judicial Lines: When Professional and Personal
Conduct Merge ........................................................................ 622
B. What Say You? A Judges, a Prosecutors, and a Defense
Attorneys Statements Are All OK, Says the Court of
Appeals! ................................................................................... 625
C. When It Doesnt Go Your Way, Blame It on Your Attorney
(and Other Reasoning the Court Refuses to Adopt)................. 627
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People v. Elliott, 494 Mich. 292, 295, 833 N.W.2d 284, 286 (2013).
Id. at 296, 833 N.W.2d at 286.
Id. at 297, 833 N.W.2d at 28687.
Id. at 297, 833 N.W.2d at 287.
Id.
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custodial interrogation, and the court reversed the court of appeals and
reinstated the defendants conviction and sentence.29
B. The Power of Community: Did Local Citizens Just Help the Police
Catch Me?
In a case entwined with multiple robberies and locations, the
message from People v. Henry30 is clear: when a community joins with
the police, the criminal loses. In Henry, a career criminal appealed his
five criminal convictions involving various armed robberies that
occurred in 2010.31 He raised Fourth,32 Fifth,33 and Sixth Amendment34
challenges, as well as claimed a Brady violation,35 Due Process
violation,36 and a subject matter jurisdiction challenge.37
A brief recitation of the facts is necessary to understand the
multitude of the defendants claims. The Lansing Police were barraged
with a string of armed robberies in November 2010.38 During that time,
the Lansing Police received an anonymous tip providing the name and
location of a man who the anonymous tip informant claimed committed
the recent armed robberies.39 An officer followed up on that tip and went
to the address where the suspect was supposed to be.40 The apartment
was secure, and there did not appear to be any signs of forced entry, so
the officer left, as he had no reason to enter the apartment without a
warrant.41 The next day, a suspect robbed a small diner that was about a
quarter of a mile away from the apartment that was referenced in the
anonymous tip.42 Officers responded to the restaurant and learned that
four witnesses to the robbery had left the diner looking for the suspect.43
The witnesses spotted the suspect and followed him to an auto parts
store, then to his vehicle, and finally to the apartment complex where the
29.
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assistance of counsel and noted that counsel was not ineffective for
choosing not to file frivolous motions.58 In sum, the court denied the
defendants claims of ineffective assistance of counsel.59
Additionally, the defendant claimed that the sufficiency of evidence
(that he assaulted a victim during one of his crimes) was not proven.60
The court disagreed and found that when the defendant told the victim
during the course of the robbery, you know the deal, and, youve got
two seconds, that a reasonable person would have feared an assault.61
The court explained that it was reasonable for the victim to infer that the
defendant was threatening her with violence and referencing the other
recent robberies.62
Next the defendant argued that the police violated his Miranda rights
when they questioned him in jail.63 The court agreed.64 The court took
particular disliking to the way the police explained Miranda rights to the
defendant.65 The court included the following exchange in its opinion:
Instead of scrupulously honoring defendants assertion of his
Fifth Amendment right to remain silent, the police sought to
assure defendant that he would not be giving up his rights by
making a statement. Specifically, when defendant stated, you
say give up the rights, the detective responded, Well no, do
you wanna give us, give us a statement at this time? . . . . The
detective informed defendant that his rights were on the form;
then stated, Now Im asking do you wanna make a statement at
this time . . . ? . . . . [B]efore signing the waiver, defendant
again sought assurance that he was not giving up his rights when
he stated, But Im not give [sic] up my rights am I?66
The court reasoned that the police concealed that agreeing to talk
also was a waiver of the defendants rights.67 But even though the court
found that the police violated the defendants Miranda rights, the court
held that the error was harmless.68 The court cited the mountains of
58.
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116.
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Id.
Id. at 120, 832 N.W.2d at 74748.
303 Mich. App. 737, 738, 846 N.W.2d 412, 414 (2014).
Id. at 738, 846 N.W.2d at 414.
Id.
Id.
Id. at 739, 846 N.W.2d at 414.
Id.
Id.
Id.
Id.
Id.
Id. at 73940, 846 N.W.2d at 414.
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applicable statute.129 The trial court disagreed with the prosecutor and
dismissed the case against the defendant.130 The prosecutor appealed.131
The court held that the wife did not need to consent to testify; stated
another way, the prosecution could compel her testimony because the
spousal privilege did not apply.132 The court meticulously reviewed the
history of the spousal-privilege statute and its amendments.133
Ultimately, the court determined that the general rule is that there is a
legal right not to make a spouse testify against the other spouse.134 But
that rule must be read with its exceptions, including subsection (3),
stating that the privilege does not apply [i]n a cause of action that grows
out of a personal wrong or injury done by one [spouse] to the
other . . . .135 Therefore, because the defendants charges stemmed from
him entering his wifes home and shooting one of her guests, the court
reversed the trial court and remanded for reinstatement of the charges
against the defendant.136
E. The Loud Consequences of Remaining Silent: Miranda, Raffel, and
Michigan Rules of Evidence
The Michigan Supreme Court has held that a defendants silence at
his first trial can be used for cross-examination in that same defendants
second trial.137 In People v. Clary,138 a criminal defendant was tried for
attempted murder and possession of a firearm during a felony.139 The
jury could not reach a verdict, and the trial court declared a mistrial due
to a hung jury.140 The defendant did not take the stand at his first trial.141
129. Id. at 740, 846 N.W.2d at 414 (alteration in original) (quoting MICH. COMP. LAWS
ANN. 600.2162(3)(d) (West 2015)).
130. Id.
131. Id.
132. Id. at 749, 846 N.W.2d at 419.
133. Id. at 74148, 846 N.W.2d at 41519. The court examined previous opinions
including the cases People v. Love, 425 Mich. 691, 391 N.W.2d 738 (1986); People v.
Sykes, 117 Mich. App. 117, 323 N.W.2d 617 (1982); People v. Ellis, 174 Mich. App.
139, 436 N.W.2d 383 (1988). The court also noted that the spousal privilege statute has
undergone two amendments to arrive to its current content today. Szabo, 303 Mich. App.
at 741, 846 N.W.2d at 415.
134. Id. at 74647, 846 N.W.2d at 418.
135. Id. at 747, 846 N.W.2d at 418 (alterations in original) (quoting MICH. COMP.
LAWS ANN. 600.2162(3)(d) (West 2015)).
136. Id. at 749, 846 N.W.2d at 419.
137. People v. Clary, 494 Mich. 260, 263, 833 N.W.2d 308, 311 (2013).
138. Id.
139. Id. at 262, 833 N.W.2d at 310.
140. Id.
141. Id. at 263, 833 N.W.2d at 311.
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During his second trial, the defendant took the stand and testified
that he did not shoot the victim.142 On cross-examination, the prosecutor
impeached the defendant by asking him why he did not offer that
testimony during the first trial.143 Specifically, the prosecutor stated,
You didnt tell that jury the same story youre telling this jury, did you,
sir?144 The jury returned a guilty verdict, and the defendant appealed
based on the prosecutors use of his silence during cross-examination.145
The court of appeals held that the defendant was improperly
impeached and dismissed the defendants convictions.146 The prosecutor
filed an application for leave to appeal.147
The Michigan Supreme Court held that the prosecutors
impeachment of the defendant could include that defendants silence
during his earlier trial.148 The court took great lengths to compare the
current case to Raffel v. United States,149 which is the guiding case about
silence used as impeachment. The court distinguished the Raffel case
with the Doyle case.150 Using these two cases as guidance, the court held
that while it was permissible to comment on the defendants silence
during his first trial, the prosecutor could not refer to the defendants
post-arrest and post-Miranda silence.151 (During the second trial, the
prosecutor had asked the defendant why he never told the police he
didnt shoot the victim.152)
The court stated that when the prosecutor asked the defendant why
he never told the police he didnt shoot the victim, the prosecutor
violated the defendants post-Miranda silence.153 The court relied on
Raffel again to reason that Raffel addresses impeachment that occurs
during subsequent trials, while the Doyle case addresses silence that
occurs at the time of arrest.154 This distinction was key to the courts
analysis.
142. Id. at 26364, 833 N.W.2d at 311.
143. Id. at 264, 833 N.W.2d at 311.
144. Id. at 264 n.1, 833 N.W.2d at 311 n.1.
145. Id. at 264, 833 N.W.2d at 311.
146. Id.
147. Id.
148. Id. at 263, 833 N.W.2d at 311.
149. 271 U.S. 494 (1926); see Clary, 494 Mich. at 26671, 833 N.W.2d at 31215.
150. Id. at 27173, 833 N.W.2d at 31517.
151. Id. at 27172, 833 N.W.2d at 31516. The court reviewed the arraignment
transcript and verified that the defendant was read his Miranda rights, so the prosecutor
could not comment on the lack of any post-arrest and post-arraignment statements. Id. at
272, 833 N.W.2d at 316.
152. Id. at 272, 833 N.W.2d at 316.
153. Id. at 27172, 833 N.W.2d at 31516.
154. Id. at 272, 833 N.W.2d at 316.
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Therefore, the court held that the prosecutor should not have made
reference to the defendants post arrest and post-Miranda silence and
should not refer to that silence if there was a third trial.155 But the court
noted that the defendants decision not to testify at his first trial can be
used for impeachment purposes, which was what occurred in the current
case.156
Finally, the court acknowledged the chilling effect that comes with
allowing a defendants silence to be used as impeachment evidence in a
later retrial.157 But the court explained that the Fifth Amendment is not
an immunity from cross-examination on the matters he has himself put
in dispute.158 The court reasoned that the Fifth Amendment does not
preclude the defendant from the truth-testing function159 of crossexamination: if the defendant takes the stand he cannot then assert his
right to remain silent to avoid the interests of justice.160
Therefore, the court ultimately did not change the court of appeals
reversal of the defendants convictions, not because of the prosecutors
use of the defendants silence as impeachment, but because the
prosecutor should not have addressed the defendants post-arrest and
post-Miranda silence.161 As a result, the court remanded the case for
further proceedings (a possible third trial) and indicated that if there was
another trial, the prosecutor could refer to the defendants failure to
testify at his first trial.162
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!
A. Close . . . Closer . . . How Close Is Immediate Presence Under the
Larceny from a Person Statute?
The Michigan Supreme Court clarified the meaning of the phrase
from the person of another in the context of the larceny from the
person statute.163 A loss prevention officer working at Macys viewed,
over closed-circuit television, a very nervous patron (the defendant)
155. Id.
156. Id. at 27071, 833 N.W.2d at 315.
157. Id. at 27778, 833 N.W.2d at 319.
158. Id. at 279, 833 N.W.2d at 320 (quoting Brown v. United States, 356 U.S. 148,
15556 (1958)).
159. Clary, 494 Mich. at 278 n.13, 833 N.W.2d at 319 n.13.
160. Id. at 279, 833 N.W.2d at 320.
161. Id. at 280, 833 N.W.2d at 321.
162. Id. at 281, 833 N.W.2d at 321.
163. People v. Smith-Anthony, 494 Mich. 669, 672, 837 N.W.2d 415, 417 (2013).
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walking through the store.164 The defendant selected a perfume set from a
display and put it in a grocery bag that she had with her.165 The loss
prevention officer confronted the defendant about the perfume set, and
after a struggle, the defendant was captured.166
The prosecution charged the defendant with unarmed robbery.167 The
jury was instructed on the unarmed robbery, and per the defendants
request, larceny from the person.168 The jury was read the larceny from
a person criminal jury instruction, which explained that to find a person
guilty of larceny from the person, the jury must find that the property
was taken from [the loss prevention officers] person or from the [loss
prevention officers] immediate area of control or immediate
presence.169 The jury returned a verdict of not guilty on the unarmed
robbery but guilty of larceny from the person.170 The defendant
appealed.171
The court of appeals reversed the defendants conviction because it
found that taking property from another required more than [a] vague
proximity between the victim and the perpetrator.172 In essence, the
court of appeals did not find that the loss prevention officer was close
enough to the defendant for the defendant to have committed a taking
that was within the immediate area of control or immediate
presence.173 The prosecutor filed an application for leave to appeal, and
the supreme court granted leave to address the following three issues:
1. Was there proof beyond a reasonable doubt that the crime of
larceny was committed within the immediate area of control or
immediate presence of the loss prevention officer;
2. Did the 2004 amendment of the robbery statute alter the
definition of presence under the larceny from the person
statute; and
164.
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167.
168.
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loss prevention officer was only fairly close to the defendant when she
stole the perfume set.182 Therefore, the court found that the conviction
was in error and affirmed the court of appeals judgment.183
In a lengthy dissent, Justice Kelly stated that the majority was
defining the from the person language too narrowly.184 Specifically,
Justice Kelly stated that the majority was ignoring years of jurisprudence
that delineated that actual possession was not needed for larceny from
the person.185 Instead, Justice Kelly advocated that the proper definition
of from the person is one that means property taken in the persons
immediate presence, which includes property that is under the persons
personal protection and control such that a taking of such property
triggers a substantial risk that a violent altercation will occur.186
B. What Does Any Act Mean in the Extortion Statute?
The Michigan Supreme Court has addressed the confusion as to
whether the crime of extortion requires a person to compel another to do
an act that is of serious consequence to the victim or just any act.187
In People v. Harris,188 a mechanic agreed to work on the defendants
truck for $400.189 While the mechanic was working on the truck in the
defendants driveway, it began to rain.190 The mechanic took shelter
close by on another neighbors porch.191 When the defendant saw that the
mechanic was not working on his truck in a prompt manner, the
defendant became upset and told the victim that he would silence him
if the victim did not start working on the truck.192 The victim responded
that he would rather meet his maker than capitulate to defendants
demands.193 This exchange upset a group of women on a nearby porch,
so they called the police.194 The defendant was arrested and charged with
various offenses, including extortion.195
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
Id.
Id. at 693, 837 N.W.2d at 428.
Id. at 69394, 837 N.W.2d at 428 (Kelly, J., dissenting).
Id. at 69394, 837 N.W.2d at 42829.
Id. at 701, 837 N.W.2d at 433.
People v. Harris, 495 Mich. 120, 122, 845 N.W.2d 477, 479 (2014).
Id. at 121, 845 N.W.2d at 479.
Id. at 123, 845 N.W.2d at 480.
Id.
Id.
Id. at 124, 845 N.W.2d at 480.
Id.
Id.
Id.
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A jury convicted the defendant of all charges, and the defendant filed
an appeal with the court of appeals alleging that there was insufficient
evidence to convict him of extortion.196 Specifically, the defendant
argued that he did not compel the victim to do an action that was serious
in nature or had significant value.197
The court of appeals affirmed the convictions, but it acknowledged
that precedent198 held that only serious acts could support a conviction
under the against his will prong of the extortion statute . . . .199 The
Michigan Supreme Court granted leave to appeal to determine what
elements a prosecutor would have to prove to convict a defendant of
extortion.200
The Michigan Supreme Court held that the defendant was properly
convicted of extortion.201 The court concluded that in its decision People
v. Fobb, the court of appeals added language that it should not have.202
The supreme court reasoned that the plain language of the extortion
statute was clear: the word any means just thatone or more without
specification.203 The court opined that the legislature intended to create a
broad net when defining what act would suffice for the extortion statute,
which is why it chose to use the word any.204
Additionally, the court held that the statute on its face placed citizens
on notice about what conduct is prohibited.205 Specifically, the court
noted that the statute included the word malicious, which provided a
scienter requirement and guidance as to what behavior was precluded
under the statute.206 Therefore, the court overruled the decisions in
196. Id.
197. Id. at 125, 845 N.W.2d at 481.
198. People v. Fobb, 145 Mich. App. 786, 787, 378 N.W.2d 600, 601 (1985). Fobb
holds that a person must compel an act that has serious consequences, even though the
plain language of the statute does not contain the word serious but only states any act.
Id.
199. Harris, 495 Mich. at 125, 845 N.W.2d at 481.
200. Id. at 126, 845 N.W.2d at 481.
201. Id. at 139, 845 N.W.2d at 489.
202. Id. at 131, 845 N.W.2d at 484.
203. Id. (citing RANDOM HOUSE WEBSTERS COLLEGE DICTIONARY (2d ed. 1997)).
204. Harris, 495 Mich. at 132, 845 N.W.2d at 485.
205. Id. at 13439, 845 N.W.2d at 48688.
206. Id. at 138, 845 N.W.2d at 488. The court looked to a non-extortion case, People v.
Boomer, 250 Mich. App. 534, 655 N.W.2d 255 (2002), that addressed the
constitutionality of a statute that prohibited a person from using vulgar language in front
of children. Harris, 495 Mich. at 136, 845 N.W.2d at 487. The Boomer court held that
statute was facially vague because it didnt provide fair notice about what conduct was
prohibited. Id. at 137, 845 N.W.2d at 487. A reasonable person would have varying
opinions about what obscene, vulgar, or insulting language was, and therefore, the statute
promoted arbitrary and discriminatory enforcement. Id. The court used the Boomer case
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People v. Fobb and People v. Hubbard to the extent that those cases
required an act to have serious consequence to the victim.207 As a
result, the supreme court affirmed the court of appeals decision and
upheld the defendants convictions.208
C. When Do I Have to Know That I Possess a Dangerous Animal?
Before or After It Attacks and Injures a Person?
The timing of an owners knowledge is crucial in Michigans
owning a dangerous animal causing injury statute.209 In People v.
Janes, a pit bull attacked a child, biting her in the face and mauling her
legs.210 Although the pit bull was a bit aggressive with other dogs, the pit
bull had never threatened or attacked people during its six weeks at the
owners home.211 The pit bull was rescued from a local shelter and, to the
shelters knowledge, was a friendly dog.212 In fact, the previous owner
indicated that the dog had not attacked anyone or had any biting
incidents, but she did tell the sheriffs department that she was wary of
the dog because it had been abused before she adopted him as a rehab
pet.213 The defendant was charged with owning a dangerous animal
causing serious injury.214
The district court bound the case over and indicated that the crime
was a strict liability offense.215 In circuit court, the defendant argued that
the case should be quashed because the statute requires criminal intent,
and the prosecuting attorney failed to show that he had . . . knowledge
or notice of the dogs dangerous nature . . . .216 The circuit court agreed
with the defendant that the crime was not a strict liability offense but
found that the defendant had been negligent or reckless; therefore, the
court held that any future proceeding should be conducted with the mens
as a comparison to the extortion statute and found that the extortion statute was clear on
its face. Id. at 13639, 845 N.W.2d at 48788.
207. Harris, 495 Mich. at 139, 845 N.W.2d at 488.
208. Id. at 14041, 845 N.W.2d at 489.
209. People v. Janes, 302 Mich. App. 34, 37, 836 N.W.2d 883, 885 (2013).
210. Id. at 39, 836 N.W.2d at 885.
211. Id. at 39, 836 N.W.2d at 88586.
212. Id. at 39, 836 N.W.2d at 886.
213. Id. at 3940, 836 N.W.2d at 886.
214. Id. at 37, 836 N.W.2d at 885; see MICH. COMP. LAWS ANN. 287.323(2) (West
2015).
215. Janes, 302 Mich. App. at 40, 836 N.W.2d at 886.
216. Id.
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that the legislatures intent was to curtail the ownership of an animal that
the owner knows is dangerousnot to punish an owner for the negligent
keeping or handling of the animal.229 As such, the court found that the
prosecution must prove the following elements beyond a reasonable
doubt:
(1) [T]hat the [defendant] owned or harbored a dog or other
animal,
(2) [T]hat the dog or other animal met the definition of a
dangerous animal provided under MCL 287.321(a) before and
throughout the incident at issue,
(3) [T]hat [defendant] knew that the dog or other animal met the
definition of a dangerous animal within the meaning of MCL
287.321(a) before the incident at issue, and
(4) [T]hat the animal attacked a person and caused a serious
injury other than death.230
The court, therefore, remanded the case to the trial court for further
proceedings consistent with the courts opinion.231 But interestingly, in a
short but frank dissent, Judge Jansen indicated that the legislature
intended for the crime to be a strict liability offense.232 Judge Jansen
agreed that the present tense meets was used in the statute, but she
argued that the present tense suggests that an animal can meet the
definition of dangerous animal the very first time it bites or attacks a
person or another dog.233
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute
A substitute teacher claimed that Michigans third-degree criminal
sexual conduct statute did not apply to him because at the time of the
offense he was not actively teaching, as the school was on summer
break.234 In People v. Lewis, a substitute teacher (or contractual service
229. Id. at 53, 836 N.W.2d at 893.
230. Id. at 54, 836 N.W.2d at 893 (citing MICH. COMP. LAWS ANN. 287.323(2) (West
2015)).
231. Janes, 302 Mich. App. at 54, 836 N.W.2d at 893.
232. Id. at 54, 836 N.W.2d at 893 (Jansen, J., dissenting).
233. Id. at 55, 836 N.W.2d at 894.
234. People v. Lewis, 302 Mich. App. 338, 340, 839 N.W.2d 37, 40 (2013).
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provider, as the school district did not directly employ the defendant)
was accused of engaging in sexual acts with students from the school
district.235 The defendant was charged with violating the statute that
prohibits a student who is at least sixteen years of age and less than
eighteen years of age from engaging in sexual penetration with another
person who is either a substitute teacher or a contractual service
provider, among other roles of authority.236 After a mistrial and then the
second trial judge being disqualified from the case, the successor judge
requested that the parties brief the issue of whether the third-degree
criminal sexual conduct statute applied if the acts occurred over the
summer.237 After each party briefed the issue, the trial court dismissed
the case, holding that as a matter of law the defendant did not qualify as a
substitute teacher or contractual service provider under the statute
because it was undisputed that the acts occurred over summer break.238
The prosecution appealed.239
The court of appeals held that the statute applied even when the acts
occurred over summer break.240 The court reasoned that the purpose of
the law was to protect vulnerable students from abuse that may occur
because of positions of authority.241 The court noted that the teachers
relationship and authority is what the statute focused onnot the timing
of the penetration.242 Therefore, the court of appeals reversed the trial
courts decision and remanded the case for reinstatement of the
charges.243
E. Dont Take Away My PIP Benefits: Unlawfully Taking Away and
How It Affects Insurance Benefits
In a case of statutory interpretation, the Michigan Supreme Court
clarified that the mens rea element of unlawful taking away is present in
Michigans joyriding statute, even if the language does not expressly
mention intent.244 In Rambin v. Allstate Insurance. Co., a plaintiff was
severely injured when the motorcycle he was operating was involved in a
235. Id. at 339, 839 N.W.2d at 3940.
236. Id. at 34344, 839 N.W.2d at 4142 (citing MICH. COMP. LAWS ANN. 750.520d
(1)(e) (West 2015)).
237. Lewis, 302 Mich. App. at 340, 839 N.W.2d at 40.
238. Id.
239. Id.
240. Id. at 34748, 839 N.W.2d at 4344.
241. Id. at 347, 839 N.W.2d at 43.
242. Id. at 347, 839 N.W.2d at 4344.
243. Id. at 348, 839 N.W.2d at 44.
244. Rambin v. Allstate Ins. Co., 495 Mich. 316, 320, 852 N.W.2d 34, 3536 (2014).
620
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car accident.245 The plaintiff was seriously injured, and he filed a lawsuit
seeking benefits.246 The car involved was uninsured, and the plaintiff
admitted that the motorcycle he was driving at the time of the accident
was owned and registered to an unknown third party.247 This unknown
third party had a vehicle insured under Allstate Insurance, so the plaintiff
argued that he should receive PIP benefits from Allstate.248 In the
alternative, the plaintiff argued that if Allstate was not the responsible
insurer, then Titan Insurance should pay him PIP benefits because the
claim was assigned to it through the Michigan Assigned Claims
Facility.249 Both insurance companies filed motions for summary
disposition, arguing that the plaintiff was precluded from benefits.250
Titan alleged that the plaintiff was precluded from receiving PIP benefits
because the plaintiff was involved in the theft of the motorcycle; Allstate
alleged that the plaintiff was precluded from benefits because he had
taken the motorcycle unlawfully.251
The plaintiff, in turn, filed a summary disposition motion claiming
that he did not take the motorcycle unlawfully or with knowledge that he
lacked authority to take it.252 To fully understand the courts opinion, a
review of the facts is needed.
The plaintiff claimed that a friend offered to loan him a bike for a
group ride that night.253 The plaintiff claimed that he went to his friends
house, and the friend gave him the keys to the bike and told him that he
could use it.254 According to the plaintiff, he collided with an uninsured
motor vehicle.255 The court found it interesting that the plaintiff never
called the police when the accident occurred, despite the plaintiffs
serious injuries.256 Further, the plaintiff and his club-member friend left
the motorcycle on the side of the road and fled the scene.257 When
questioned by the police, the plaintiff first denied having any connection
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with the motorcycle.258 But the plaintiff recanted that story and indicated
that a fellow motorcycle club member, whom he had never met before
that night, loaned him the bike.259 When asked about the motorcycle
member, the plaintiff did not have his phone number, did not know
where he lived, and did not try to contact him after the accident.260
The trial court granted Allstate and Titans motions for summary
judgment.261 The court of appeals reversed the trial courts summary
judgment and found that the plaintiff did not take the motorcycle
unlawfully under the Michigan joyriding statute.262 The court made a
factual finding that from the drivers perspective there was no unlawful
taking, and based on the record, there was no genuine issue of material
fact that the plaintiff did not take the motorcycle unlawfully.263 Allstate
applied for leave to appeal, and the Michigan Supreme Court requested
that the parties address the following issue:
[W]hether the plaintiff took the motorcycle . . . unlawfully
within the meaning of MCL 500.3113(a), and specifically,
whether taken unlawfully under MCL 500.3113(a) requires the
person . . . using [the] motor vehicle or motorcycle to know
that such use has not been authorized by the vehicle or
motorcycle owner . . . and, if so, whether the Court of Appeals
erred in concluding that plaintiff lacked such knowledge as a
matter of law given the circumstantial evidence presented in this
case.264
The Michigan Supreme Court began its analysis by evaluating
whether the crime of taking unlawfully under the applicable statute was a
strict liability or general intent crime.265 The court held that criminal
jurisprudence principles require a mens rea requirement unless the
legislature intends to dispense with it.266 And in the unlawful taking
statute, the legislature had used the phrase without an intent to steal,
which was the legislatures way of removing the specific intent to
258. Id.
259. Id.
260. Id. at 335, 852 N.W.2d at 4344. The court made note that the plaintiffs story
could lead a jury to conclude that he knew the motorcycle was stolen. Id. at 334, 852
N.W.2d at 43.
261. Id. at 323, 852 N.W.2d at 37.
262. Id. at 324, 852 N.W.2d at 38 (citing MICH. COMP. LAWS ANN. 500.3113 (a) (West
2015)).
263. Rambin, 495 Mich. at 324, 852 N.W.2d at 38.
264. Id. at 325, 852 N.W.2d at 38 (alterations in original).
265. Id. at 325, 852 N.W.2d at 3941.
266. Id. at 32930, 852 N.W.2d at 41.
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permission.288 Again, the JTC found that the respondents testimony was
not credible and that she had committed forgery.289
Finally, the respondent was charged with numerous allegations of
having lied to the JTC.290 The JTC found that the respondent lied about
contacting Judge Brennans office, signing documents without her
attorneys permission, and other misrepresentations surrounding her
testimony about the case.291 As a result of the JTCs findings, the JTC
recommended that the respondent be suspended without pay and
assessed costs in the amount of $8,498.40.292
The Michigan Supreme Court agreed with all of the JTCs findings,
but the supreme court did not agree with the JTCs sanction.293 In its
review of the JTCs findings, the court looked at whether there was a
pattern and practice of misconduct, and it found that there was.294 The
court also found that the respondent used her position as a sitting judge
as leverage, committed misconduct that was prejudicial to the
administration of justice, and engaged in conduct that was premeditated
or deliberated.295 The court was particularly concerned with how the
respondent lied under oath.296 The court stated that testifying falsely
under oath is entirely incompatible with judicial office and warrants
removal.297 Therefore, the Michigan Supreme Court found that the JTC
sanction did not sufficiently address the egregiousness of the
respondents behavior.298 Hence, the supreme court ordered the
respondent to pay costs of $8,498.40 and removed her from judicial
office.299
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not commit plain error when it did not give the involuntary manslaughter
instruction.309
The defendant also claimed that the prosecutor committed
prosecutorial misconduct during closing argument.310 The court again
noted that the defendant failed to preserve this issue for appeal, but it still
addressed the argument.311 The court opined that a prosecutor may not
vouch for the credibility of witnesses, but a prosecutor may [a]rgue the
evidence and all reasonable inferences from the evidence as they relate to
their theory of the case.312 In that light, the court found that when the
prosecutor used the terms I submit to you or I think, the prosecutor
was not making a personal statement as to the belief of the witnesses but
rather was making an argument based on the reasonable inferences from
the evidence.313
Similarly, the defendant also contested his attorneys effectiveness.
The defendant claimed that his attorney was ineffective for several
reasons, all of which the court found meritless.314 The court was
particularly clear that counsel was not ineffective for failing to advance
meritless arguments or raise futile objections . . . .315
The court was also unpersuaded by the defendants arguments that
the sentencing offense variables (OV) were scored improperly.316 The
court reasoned that the defendant was the leader of the crime (OV 14),
the defendant did interfere with the administration of justice when he hid
evidence after the crime (OV 19), and he also was properly scored points
for causing a life-threatening wound to the deceased victims head (OV
4).317 Ultimately, the court found all of the defendants arguments
unpersuasive and affirmed the trial courts order.318
309. Id.
310. Id. at *5.
311. Id.
312. Id. (quoting People v. Seals, 285 Mich. App. 1, 22, 776 N.W.2d 314, 328 (2009)).
313. Id. at *56.
314. Id. at *7.
315. Id.
316. Id.
317. Id. at *89. The court explained that because the victim died and the defendant
was charged with murder, he not only killed the victim, but he also caused a physical
injurya gunshot wound to the head. Id. at *8. Because homicide was the charged
offense, the defendant could not receive the 100 points for the death, but the defendant
could receive 25 points for causing a life threating injury. Id.
318. Id. at *10.
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327.
328.
329.
330.
331.
332.
333.
334.
335.
336.
337.
338.
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did leave the state after a brief vacation and under his mothers
guidance.339
Further, the court did not agree with the juveniles argument that an
inaccuracy in the extradition documents made the extradition warrant
false.340 Specifically, the court noted that the misstated information on
the extradition documents was not even required on an extradition
demand.341 Therefore, any alleged inaccuracies were inconsequential.342
Finally, the court also denied the juveniles argument that extraditing
him would constitute cruel and unusual punishment.343 The juvenile
argued that he was only fifteen years old and removal to Georgia would
take him away from his family at a tender age.344 The court explained
that the United States Constitution and the Michigan Constitution both
contain cruel and unusual punishment provisions, but both require that
the defendant be subject to punishment.345 And because the juvenile had
not yet been prosecuted and found guilty, there was no punishment to
trigger a cruel and unusual punishment argument.346 In sum, the court
rejected the entirety of the juveniles arguments.
B. How Much Does Your Crime Cost?What Did the Legislature Intend
with Any Cost?
The Michigan Supreme Court has spoken: gone are the days when a
court could randomly and without reason assess a court cost under
MCLA section 769.1k (court-cost statute), which addressed criminal
court costs.347
In 2011, a defendant pled guilty to obtaining a controlled substance
by fraud.348 The defendant was sentenced to imprisonment and assessed
various court costs.349 Of issue in this case was whether the court could
assess $1,000 in unspecified court costs.350 The prosecutor alleged that
even though the specific statute under which the defendant pled guilty
did not allow the court to impose costs, the court-cost statute provided
the court with the independent authority to assess any cost that the court
339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
Id.
Id. at 64853, 840 N.W.2d at 77173.
Id.
Id.
Id. at 65255, 840 N.W.2d at 77374.
Id.
Id. (emphasis added).
Id.
MICH. COMP. LAWS ANN. 769.1k (West 2015).
People v. Cunningham, 496 Mich. 145, 14748, 852 N.W.2d 118, 120 (2014).
Id.
Id.
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may have incurred.351 The defense argued that the court-cost statute only
allowed the court to impose costs that the legislature had already
separately authorized in other statutes.352
The court held that the court-cost statute only provided the court
authority to impose costs that were authorized in other separate
statutes.353 The court reasoned that the legislature must have intended
any cost to mean costs that the legislature had separately authorized.354
Specifically, the court reasoned that the statute that requires the
defendant to reimburse the state for prosecution costs would be null
because all reimbursement costs could be assessed under the any cost
provision.355 Instead, the court reasoned that the legislatures decision to
enact many provisions that provide courts the power to issue costs for
certain circumstances shows that it did not intend to do a useless thing
by providing for certain costs when it had a broad catchall any cost.356
Rather, the court reasoned that it would seem logical that the legislature
viewed the court-cost statute as incorporating by reference all the
possible statutory costs that a Michigan court has available at a criminal
sentencing, instead of having to list each cost.357 Therefore, the supreme
court reversed the decision of the court of appeals and vacated the order
assessing $1,000 dollars in court fees.358
C. Crime Victims Rights FundNot to Punish, Just to Help
Timing is everything in life, and when a defendant robbed a bank in
March 2010, the current crime victims rights assessment was $60 for a
felony.359 But times changed, and when the bank robber was sentenced in
2011, the assessment had increased to $130 dollars for a felony.360 The
bank robber alleged that the increase in the assessment was an increase
of his punishment, violating the Ex Post Facto Clauses of the Michigan
and United States Constitutions.361
The court rejected the defendants argument and held that the Crime
Victims Rights statute was a civil remedy not so punitive in effect or
351.
352.
353.
354.
355.
356.
357.
358.
359.
360.
361.
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purpose as to render its intention uncivil.362 The court reasoned that the
very text of the word assessment reflected legislative intent to distinguish
the cost from a fine or punishment.363 Further, the court considered the
timing and purpose of the assessment and found that it indicated nonpunitive measures.364 In fact, the supreme court went through the
Mendoza-Martinez factors to assess whether the crime victims act has a
punitive purpose or effect.365
After careful review of all of the factors, the court determined that
the assessment was not a criminal fine, did not have a punitive purpose,
and was not excessive in its purpose.366 Therefore, the court affirmed the
judgment of the court of appeals and found that the Crime Victims
Rights Act does not violate the Ex Post Facto Clauses.367
D. Making Your Victim Whole: What Does Full Restitution Mean?
A defendant is responsible for making his or her victim whole, and
that includes the travel expenses that the victim may have to incur to
secure his or her stolen property.368 In People v. Garrison,369 the
Michigan Supreme Court upheld a trial courts award of nearly $1,000
dollars in travel expenses to secure four snowmobiles stolen from a
victims vacation home in Cheboygan, Michigan.370
The court held that the Crime Victims Rights Act and Michigans
general restitution statute authorize courts to provide full restitution to
a crime victim.371 The court acknowledged that the restitution was
limited to a victims losses due to the defendants course of conduct that
gave rise to the conviction . . . .372 Although the court acknowledged
that the legislature never expressly mentioned travel expenses in any
statutory subsections governing property loss, the court opined that
nothing in the statutes text indicated that only expressly mentioned
losses were permitted.373 Instead, the court stated that the legislature
362. Id. at 4950, 845 N.W.2d at 731.
363. Id. at 3941, 845 N.W.2d at 726 (emphasis added).
364. Id. at 4144, 845 N.W.2d at 72728.
365. Id. at 4344, 845 N.W.2d at 728 (citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 16869 (1963)).
366. Id. at 4350, 845 N.W.2d at 72831.
367. Id. at 4850, 845 N.W.2d at 731.
368. People v. Garrison, 495 Mich. 362, 365, 852 N.W.2d 45, 46 (2014).
369. Id.
370. Id. at 36566, 852 N.W.2d at 46.
371. Id. at 37375, 852 N.W.2d at 51.
372. Id. at 372, 852 N.W.2d at 50 (quoting MICH. COMP. LAWS ANN. 780.766(2)
(West 2015)).
373. Id. at 36873, 852 N.W.2d at 4850.
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court overruled the trial courts sentence and remanded the case for
resentencing under the proper guidelines.398
F. How Old Am I? The Importance of Age Calculation in Criminal
Sentencing
The Michigan Supreme Court clarified an issue that permeates all
facets of the law: How do the Michigan courts calculate age? In People
v. Woolfolk, the court of appeals was faced with determining when a
person reaches their ageor stated another wayhow does the
Michigan judicial and legislative branches calculate birthday?399
The defendant was found guilty of first-degree murder and felony
firearm.400 All parties agree that the murder occurred on the evening
before the defendants eighteenth birthday.401 The trial court sentenced
the defendant to a mandatory life sentence plus two years for the felony
firearm conviction.402 The defendant filed an appeal claiming that the
mandatory life sentence was cruel and unusual punishment in light of the
Supreme Courts opinion in Miller v. Alabama.403 The defendant also
claimed that his trial counsel was ineffective for not objecting to the
defendants pre-arrest delay and not objecting to the use of a single photo
for identification purposes.404
The court of appeals affirmed the defendants convictions but held
that the defendant was entitled to resentencing under Miller.405 First, the
court addressed the defendants delay-in-arrest claim and found that the
defendant was arrested once the prosecution had sufficient evidence and
that the delay was minimal and did not cause actual and substantial
prejudice.406 The court reasoned that because the prosecution had to
interview an out-of-state witness, there were jurisdictional and
evidentiary issues that caused the delay, and the prosecution should wait
for the collection of sufficient evidence before charging a suspect, even
when that wait is extended by the disappearance of a key witness.407
398. Id.
399. People v. Woolfolk, 304 Mich. App. 450, 45859, 848 N.W.2d 169, 175 (2014).
400. Id. at 45152, 848 N.W.2d at 171.
401. Id. at 45253, 848 N.W.2d at 172.
402. Id.
403. Id. at 45859, 848 N.W.2d at 175 (citing Miller v. Alabama, 132 S. Ct. 2455
(2012)).
404. Id. at 45358, 848 N.W.2d at 17274.
405. Id. at 50607, 848 N.W.2d at 200.
406. Id. at 45657, 848 N.W.2d at 174.
407. Id. at 45457, 848 N.W.2d at 17374 (citing People v. Herndon, 246 Mich. App.
371, 39091, 633 N.W.2d 376, 39192 (2001)).
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The court also disagreed with the defendants claim that a threemonth delay between the felony complaint and arraignment was
unreasonable.408 The court noted that it found the delay minimal, and the
defendant had not shown how the delay resulted in actual and substantial
prejudice to his case.409
Additionally, the defendant claimed that his attorneys failure to
object to the polices use of a single photo of him for identification
purposes was ineffective assistance of counsel.410 The court again
disagreed with the defendant and did not find that the defendants
attorney was ineffective.411 In fact, the court held that the witness already
knew the identity of the defendant as the shooter, and therefore, the use
of the photograph was only to confirm the identity of the person the
witness had already identified.412 Therefore, the court reasoned that the
use of the picture did not create a likelihood of misidentification, and any
objection from the defendants defense attorney would have been
meritless.413
Finally, the court addressed the defendants argument that a
mandatory life sentence was cruel and unusual punishment.414 The court
began its analysis by reviewing the Miller opinion, which held that the
court cannot sentence juveniles to life without parole.415 The court
acknowledged that under Miller, a juvenile is someone who is less than
17 years of age . . . [but also] between 17 and 18 years of age.416 The
court, however, immediately noted that neither the Miller case, the Carp
case, nor any statute addressed how to calculate when the defendant
reaches the age of eighteen.417 Hence, the court engaged in a detailed,
historical view of the competing age-calculation methods: the common
law birthday rule or the birthday rule.418
The common law birthday rule states that a person reaches their age
at the first moment of the day prior to the anniversary date of his [or
her] birth.419 The historical reasoning for the common law birthday rule
408. Id. at 45657, 848 N.W.2d at 174.
409. Id.
410. Id.
411. Id.
412. Id. at 45758, 848 N.W.2d at 174.
413. Id. at 45658, 848 N.W.2d at 17475.
414. Id. at 45859, 848 N.W.2d at 175.
415. Id.
416. Id. at 45960, 848 N.W.2d at 175 (quoting People v. Carp, 298 Mich. App. 472,
53637, 828 N.W.2d 685, 723 (2012)).
417. Id. at 46062, 848 N.W.2d at 176.
418. Id. at 46075, 848 N.W.2d at 17684.
419. Id. at 46062, 848 N.W.2d at 176 (citing Nelson v. Sandkamp, 34 N.W.2d 640,
642 (Minn. 1948) (citations omitted)).
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holds that fractions of days do not count towards ones age.420 On the
other hand, the birthday rule calculates age on the anniversary date of
his or her birth.421 The court acknowledged that some courts have
chosen to adopt the birthday rule instead of the common law rule.422 But
when the court reviewed Michigan jurisprudence, it noted that no
Michigan case, court, or statute has ever compared and then opted for
either the common law birthday rule or the birthday rule.423 In its attempt
to clarify the issue, the court reviewed the Miller opinion, the Michigan
Constitution, the expressions of the Michigan Legislature and the
Michigan Supreme Court, and finally the court reviewed two opinions
from the Michigan Attorney Generals office.424
The court found a lack of guidance from any authority, but the court
did consider a 1937 case from the Michigan Supreme Court where the
court opined that an insurer reached his age on his birthday.425 While the
court noted that the case did not directly address how age is calculated,
the court found the opinion persuasive.426 The court also reviewed a
Michigan Supreme Court opinion from 2009 that appeared to have
applied the birthday rule to a criminal sexual conduct statute.427
After an exhaustive analysis of historical framework and
jurisprudence, the court determined that no Michigan case ever applied
the common law birthday rule, and as such, the court was not persuaded
that Michigan ever adopted that rule.428 More importantly, the court
found that the Michigan Supreme Court had commonly and routinely
used language in its opinions that were consistent with the birthday
rule.429 Therefore, the court of appeals held that if the common law
birthday rule was ever adopted in Michigan, it was long ago abrogated
by decisions of the Michigan Supreme Court and the Michigan
Legislatures subsequent statutory enactments . . . .430 It follows,
naturally then, that the defendant was seventeen on the day he committed
420. Id. at 46264, 848 N.W.2d at 17778.
421. Id. at 464, 848 N.W.2d at 178 (quoting In re Robinson, 464 S.E.2d 86, 88 (N.C.
Ct. App. 1995)).
422. Id. at 46467, 848 N.W.2d at 178179. The court reviewed several states
including Kansas, North Carolina, Pennsylvania, Oklahoma, and Oregon that adopted the
birthday rule over the common law birthday rule. Id. at 46567, 848 N.W.2d at 17879.
423. Id. at 47578, 848 N.W.2d at 18485.
424. Id. at 477501, 848 N.W.2d at 18597.
425. Id. at 498500, 848 N.W.2d at 19596.
426. Id. at 499, 848 N.W.2d at 196.
427. Id. at 50203, 848 N.W.2d at 198. See generally People v. Chapman, 485 Mich.
859, 771 N.W.2d 770 (2009).
428. Woolfolk, 304 Mich. App. at 50405, 848 N.W.2d at 199.
429. Id.
430. Id. at 505, 848 N.W.2d at 199.
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court should have allowed him to assert a section four immunity defense,
as well as a section eight affirmative defense.441
As to the defendants section four immunity defense, the defendant
argued that he was possessing usable marijuana as described in the act,442
but the amount he possessed did not exceed the allowable amount under
section four.443 The court of appeals opined that the MMMA was very
clear on its face as to the definition of marijuana and the definition of
usable marijuana.444 The court reviewed the plain language of the
definition of marijuana as contained in the act and determined that the
brownies were marijuana, not usable marijuana.445 Specifically, the court
found that the brownies did not qualify as usable marijuana because
the brownies contained a THC extractnot dried leaves or flowers or
any mixture or preparation thereof.446 Therefore, the court found that
because the defendant possess[ed] edible products that were not usable
marijuana under the MMMA, section four immunity did not apply to
the defendant.447
As to the defendants section eight affirmative defense argument, the
defendant admitted that he did not raise this issue in the trial court
because, according to the defendant, he did not qualify for the
affirmative defense because he had to first fulfill the requirements of
section four under the law at the time of his trial.448 The court of appeals
found that because the law had changed during the pendency of the
defendants appeal, he was deprived of a substantial right that resulted in
plain error.449 Therefore, the court decided that the proper procedure to
handle a section eight affirmative defense was for the defendant to show,
during an evidentiary hearing, that he meets the elements of a section
eight defense.450 The court explained that if the defendant meets all the
elements of a section eight affirmative defense and there were material
questions of fact, then the defendant would be entitled to a new trial,451
was present. Id. at 60103, 837 N.W.2d at 23. The court refused to adopt the defendants
marijuana quantity measurement. Id. at 60304, 837 N.W.2d at 24.
441. Id. at 608, 837 N.W.2d at 26.
442. MICH. COMP. LAWS ANN. 333.26423(k) (West 2015) (defining usable marijuana
as the dried leaves and flowers of the marihuana plant, and any mixture or preparation
thereof).
443. Carruthers, 301 Mich. App. at 60103, 837 N.W.2d at 23.
444. Id. at 60208, 837 N.W.2d at 2326.
445. Id. at 60709, 837 N.W.2d at 26.
446. Id.
447. Id. at 611, 837 N.W.2d at 28.
448. Id. at 61118, 837 N.W.2d at 2831.
449. Id. at 61517, 837 N.W.2d at 3031.
450. Id. at 617, 837 N.W.2d at 31.
451. Id. at 618, 837 N.W.2d at 31.
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or if the defendant met all of the elements of a section eight defense with
no questions of fact, he would be entitled to a dismissal of the possession
charge.452 Hence, the case was remanded to the trial court for an
evidentiary hearing to determine what remedy applied to the
defendant.453
B. But I Didnt Think the Law Applied to Me!
After nearly four years in the Michigan courts, the court of appeals
found that there was nothing ambiguous about the MMMAs provisions
governing dispensaries.454 In the consolidated cases of People v.
Johnson, seven defendants owned and operated a marijuana
dispensary.455 The marijuana dispensary sold marijuana and candy
containing marijuana to undercover drug agents.456 As a result, each of
the seven defendants was charged with various crimes under the
Michigan public health code.457 After numerous motions, the trial court
determined that while it was not giving retroactive effect to the case of
Michigan v. McQueen,458 the court did find that certain provisions of the
MMMA statute were ambiguous and created due process
ramifications.459 As a remedy, the trial court determined that the rule of
lenity should apply to the case, and the court granted the defendants
motions to dismiss.460
The court of appeals reversed the trial courts decision and remanded
the case for reinstatement of charges against the defendants.461 The court
reasoned that because the public health code prohibits a person from
possessing, using, manufacturing, or delivering marijuana, the
defendants have the burden of showing that they were entitled to the
protections of the MMMAspecifically that they were qualifying
patients who had registry identification cards or that they were primary
caregivers who had been issued registry identification cards.462
But instead, the defendants argued that under the MMMA they could
not have predicted that their behavior was illegal because the act was
452. Id.
453. Id.
454. People v. Johnson, 302 Mich. App. 450, 46263, 838 N.W.2d 889, 896 (2013).
455. Id. at 454, 838 N.W.2d at 891.
456. Id. at 45256, 838 N.W.2d at 89192.
457. Id. at 45657, 838 N.W.2d at 893.
458. 293 Mich. App. 644, 811 N.W.2d. 513 (2011), affd on other grounds, 493 Mich.
135, 828 N.W.2d 644 (2013).
459. Johnson, 302 Mich. App. at 45657, 838 N.W.2d at 893.
460. Id. at 456, 838 N.W.2d at 892.
461. Id. at 46566, 838 N.W.2d at 898.
462. Id. at 45961, 838 N.W.2d at 895.
640
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ambiguous.463 The court noted that while the defendants claimed that the
act was ambiguous, they never clearly asserted which provision was
ambiguous and caused them to believe that their activity was lawful.464
The court noted that the defendants failed to point to any provision in the
MMMA where it could be reasonably inferred that marijuana
dispensaries were legal business entities.465 The court held that the trial
court abused its discretion when it found that the phrase using or
administering marijuana was ambiguous because the court did not
consider if each of the seven defendants qualified as a qualifying
patient or primary caregiver under the statute.466
Further, the court of appeals disagreed with the trial courts opinion
that the rule of lenity applied to this case.467 The court held that the rule
of lenity does not apply to the public health code, so the defendants
arguments failed.468
Lastly, the court of appeals held that the McQueen case, which
addressed the legality of operating a marijuana dispensary, should have
been retroactively applied.469 In support of its decision, the court held
that the defendants should have foreseen the courts interpretation of the
MMMA, so the application of McQueen did not have any due process or
ex post facto legal concerns.470 Therefore, the court of appeals reversed
the trial courts holding and remanded the case for reinstatement of the
charges and further proceedings consistent with the courts ruling.471
C. Living in the Mitten: You Have to Be a Michigan Resident to Seek
Immunity Under the MMMA
The court of appeals clarified that the court must determine if a
person qualifies for immunity under section four of the MMMAnot the
jury.472 In People v. Jones, the defendant was charged with possession of
marijuana with the intent to deliver.473 The defendant moved for
dismissal of the charges because she claimed that she was protected
under section four of the actthe immunity provision.474 The prosecutor
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
2015]
CRIMINAL LAW
641
argued that the defendant was not entitled to immunity because she was
not a Michigan resident at the time she applied for the registry card or at
the time of her arrest.475 The trial court held an evidentiary hearing to
determine if the defendant was a Michigan resident.476 After the hearing,
the trial court concluded that there were questions of fact that existed
about whether the defendant was a Michigan resident at the time.477 As
such, the trial court held that it could not determine as a matter of law if
the defendant was entitled to immunity and the immunity issue must go
to the jury.478 The prosecutor appealed.479
The court of appeals held that a person claiming immunity under
section four of the MMMA must be a Michigan resident.480 The court of
appeals reasoned that while matters of fact finding are traditionally left to
the jury, there are instances where the court must make factual
findings.481 The court reasoned that the statute had a section that
addressed visiting qualifying patients as a person who is not a
resident of this state or who has been a resident of this state for less than
30 days.482 Because the statute specifically references a section for
visitors, the court of appeals reasoned that Michigan residency was an
implied prerequisite to the valid possession of a registry card.483
Additionally, the court of appeals reasoned that allowing the trial court to
determine if immunity applied was more efficient because immunity
should be afforded at the earliest stages of the investigation.484 It would
hinder the purpose of immunity (to protect people from prosecution) if
the process required citizens to wait for a jury to decide if immunity
applied to them.485 Therefore, the court of appeals held that for immunity
to apply, the person must be a Michigan resident, and whether the
475. Id.
476. Id. at 57071, 837 N.W.2d at 11.
477. Id.
478. Id.
479. Id.
480. Id. at 57879, 837 N.W.2d at 1415.
481. Id. at 57274, 837 N.W.2d at 12; see also People v. Sexton, 461 Mich. 746, 609
N.W.2d 822 (2000) (highlighting that the trial court determines if a defendants
statements are voluntary); People v. Juillet, 439 Mich. 34, 475 N.W.2d 786 (1991)
(stating that the court determines if a defendant was entrapped under the criminal statute);
People v. Frohriep, 247 Mich. App. 692, 637 N.W.2d 562 (2001) (stating that a court
makes factual findings when determining whether a consent to search was valid).
482. Jones, 301 Mich. App. at 578, 837 N.W.2d at 14 (quoting MICH. COMP. LAWS
ANN. 333.26423(l) (West 2015)).
483. Id. at 57879, 837 N.W.2d at 1415.
484. Id. at 577, 837 N.W.2d at 14.
485. Id.
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