Trial Lawyers Takeaway: Redaction and limiting instruction is not always sufficient to cure a Confrontation Clause violation for admission of a co-defendant's confession.
Carl Bruner and Michael Lawson were charged with first-degree premeditated murder (among other things) for a killing outside a Detroit nightclub. They were tried together. At Lawson’s preliminary examination, a witness, Westley Webb, testified about the shooting. The prosecutor impeached Webb with his police statement, in which Webb said that Lawson had admitted to him that he was part of the shooting and had described that Bruner had a gun at the time.
By the time of Bruner’s and Webb’s joint trial, the prosecution could not locate Webb and therefore asked the trial court to treat Webb as an unavailable witness, which would have permitted the prosecution to read Webb’s prior testimony to the jury. The prosecutor conceded that Webb’s statements about Lawson’s description of Bruner holding the gun could not be admitted against Bruner.
As a result, the prosecutor agreed to remove any mention of Bruner and the trial court determined that a limiting instruction would suffice to protect any prejudice to Bruner. When Webb’s testimony from the preliminary examination was read into evidence, Bruner’s name was replaced with the word “Blank.” The court also instructed the jury to consider Webb’s testimony only against Lawson.
The question was whether this reading of Webb’s testimony violated Bruner’s right under the Confrontation Clause of the Sixth Amendment, as incorporated against the States through the Fourteenth Amendment.
Read MoreTrial Lawyer’s Takeaway: Magistrate can weigh credibility at preliminary examination and refuse to bind over if reasonable person could not reasonably believe defendant’s guilt.
In criminal cases, a defendant is entitled to a preliminary examination, where the prosecutor will attempt to convince a magistrate that there is probable cause to bind over the defendant for trial. Under MCL 766.13, “the magistrate determines at the conclusion of the preliminary examination” whether probable cause exists. Here, the magistrate dismissed the charges against Anderson because the prosecution’s sole witness lacked all credibility. The question is whether the magistrate was permitted to weigh the credibility of the witness at the preliminary examination; and, if so, what standard he or she should have used to conduct such a weighing.
Read MoreTrial Lawyer’s Takeaway: points for OV 4 may not be assessed solely on the basis that a serious psychological injury would normally occur as a result of the crime; fear while the crime is being committed, by itself, is insufficient to assess points for OV 4.
At sentencing in a criminal case, the trial court weighs so-called “offense variables” to determine how serious the defendant’s crime was for purposes of determining the sentence length. These variables review the characteristics about the crime to determine its seriousness. For example, the offense variable at issue in this case—Offense Variable (OV) 4—recommends a longer sentence if a “serious psychological injury requiring professional treatment occurred to the victim.” The list of offense variables operates like a checklist, allowing the judge to tally up a total at the end, which will recommend a particular sentence length.
Here, White, while robbing a gas station, held a gun to the cashier’s head. The cashier said she thought she heard the trigger being pulled. During White’s plea colloquy, he agreed that the cashier “was afraid” that he “was going to shoot her.” The trial court decided that OV 4 was satisfied because “people would typically suffer a psychological injury when confronted with the instant crime.”
Read MoreTrial Lawyer’s Takeaway: On harmless-error review, appellants must show that they likely would have prevailed.
Lyles was convicted of murder, but appealed the trial court’s denial of his request for an instruction informing the jury that his evidence of good character could create a reasonable doubt of his guilt. The issue in this appeal, however, is whether that error harmless.
Read MoreTrial Lawyer’s Takeaway: a criminal defendant must show prejudice to claim deprivation of counsel.
The question in Lewis was whether deprivation of counsel at the preliminary examination was a “structural error” or an error where the defendant must show prejudice in order to obtain a reversal. Under the Sixth Amendment, a criminal defendant is entitled to counsel at all critical stages of a prosecution.
Read MoreTrial Lawyer’s Takeaway: multiple felony-firearm convictions can arise from a single criminal incident.
MCL 750.227b(1) sets out mandatory sentencing if a person is convicted of multiple convictions of felony-firearm possession: 5 years for a second conviction and 10 years for a third conviction. Before Wilson’s felony-firearm conviction in this case, he had been convicted twice of felony-firearm, but these two convictions arose from the same criminal incident. Under the Court’s decision in People v. Stewart, 441 Mich. 89 (1992), Wilson argued that these prior felony-firearm convictions should only count as one for purposes of the statute because they arose from the same criminal incident.
Read MoreTrial Lawyer’s Takeaway: all sentencing guidelines are advisory; a sentence’s reasonableness is based on Milbourn proportionality.
Both cases involved sentencing in the aftermath of the Court’s decision in Lockridge, which made Michigan’s sentencing guidelines advisory. Justice McCormack wrote the majority opinion, joined by Justices Viviano, Bernstein, and Larsen.
Read MoreTrial Lawyer's Takeaway: you can be charged with OWI in your own driveway
The question in Rea is whether you can be charged with drunk driving under Michigan law when driving your own car in your own driveway.
Read MoreTrial Lawyer’s Takeaway: prosecution cannot merely recite a proper purpose for character evidence, must instead show the purpose is proper.
Denson was charged with assault with intent to do great bodily harm less than murder. At trial, he claimed self-defense. In response, the prosecution sought to introduce evidence of Denson’s prior conviction for assault with intent to do great bodily harm less than murder. That conviction resulted from a confrontation over a drug debt. Denson had sought out someone who owed him drug money, had smashed the windows on the person’s car, and, once the person appeared on a nearby porch, Denson shot him.
Defense counsel objected to admission of the conviction as inadmissible character evidence in violation of 404(b), but the prosecution claimed it was offering the evidence to rebut the self-defense claim, rather than to show propensity.
Read MoreTrial Lawyers’ Bottom Line: Trial court cannot correct an invalid sentence sua sponte after judgment; instead, a party must move for resentencing.
In 2011, Comer pled guilty to criminal sexual conduct. Under MCL 750.520n and People v Brantley, 296 Mich App 546 (2012), the trial judge should have imposed lifetime monitoring on the defendant, but the judge failed to do so. Even after a remand for resentencing due to incorrect scoring of offense variables, the trial court still did not impose lifetime monitoring.
The Michigan Department of Corrections wrote a letter to the trial court saying that the defendant’s sentence should have included lifetime monitoring; but the prosecution never moved for resentencing. The trial court then imposed life monitoring sua sponte. After a remand from the Michigan Supreme Court for consideration as on leave granted, the Court of Appeals affirmed, holding that “the trial court was empowered to correct defendant’s invalid sentence without time limitation.” The Court granted leave to appeal.
Read MoreTrial Lawyers’ Bottom Line: The scope of knock and talks is time sensitive. If consent to a search is not “sufficiently attenuated” from an unconstitutional search, then evidence must be suppressed.
In the two consolidated cases, the Kent Area Narcotics Enforcement Team made unscheduled visits to the defendants’ homes at 4:00 a.m. and 5:30 a.m. The families at both houses were asleep. After an initial conversation, the police officers read the defendants their Miranda rights. The defendants signed a consent form and consented to a search of their homes, where the police found marijuana butter and other marijuana products.
At trial, the defendants moved to suppress the evidence, but the trial court held that it was a valid, voluntary search. The Court of Appeals affirmed, emphasizing that the officers waited to be received before conducting their search. The Supreme Court then granted leave to appeal.
Read MoreTrial Lawyers’ Bottom Line: OV 5 should be assessed for “significant psychological injury,” even if victim’s family has no intention of seeking medical treatment
Damian Jones shot and killed a man he suspected of stealing his girlfriend’s phone. Calloway served as the getaway driver and was convicted of second-degree murder on an aiding and abetting theory. He was sentenced to 20 to 50 years in prison.
The trial court scored fifteen points for OV 5, which asks whether a “serious psychological injury requiring professional treatment occurred to a victim’s family.” The Court of Appeals reversed because there was no evidence that any member of the victim’s family required or intended to seek professional treatment. The Court granted leave to determine whether evidence of an intention to seek treatment is required to score fifteen points for OV 5.
Read MoreTrial Lawyers’ Bottom Line: Trial courts have discretion to hold a Franks hearing, even if defendant fails to make “a substantial preliminary showing.”
In 1978, the U.S. Supreme Court decided Franks v. Delaware, 438 US 154 (1978), which held that a defendant is entitled to a hearing under the Fourth Amendment if he or she “makes a substantial preliminary showing” (1) that a police officer knowingly or intentionally made a false statement in an affidavit to obtain a search warrant and (2) that the false statement was necessary to the judge’s finding of probable cause. These hearings came to be known as “Franks Hearings.” The Michigan Court of Appeals interpreted this decision to bar a trial court from holding a Franks hearing—even if the trial court wants to—unless the defendant first makes “the substantial preliminary showing.” The Supreme Court reversed this decision.
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