Michigan Court of Appeals

Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.

Court of Appeals Affirms Carp

Today the Michigan Court of Appeals upheld People v Carp. At issue was was whether the Supreme Court’s ruling in Miller v Alabama was retroactive. If Miller was retroactive, the Court also had to figure out what the appropriate remedy. The Court found that Miller was not fully retroactive and did not apply to cases that were final when Miller was decided. The Court stated that until legislation is passed to fix the Miller problem in Michigan, the remedy was to reduce individual sentences to life with the possibility of parole. The pleadings are available here.

Meanwhile the Legislature has taken action to try and fix things as well.
According to this news article, Michigan has proposed a new bipartisan package of bills on JLWOP in response to Miller. News coverage is here: . Here a legislative summary.

Supreme Court to Decide Sufficiency of the Evidence in Larceny Case

The Michigan Supreme Court also granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. People v. Smith-Anthony, Supreme Court No. 145371. My article explains why I believe this is wrong. Read More...

Michigan Supreme Court Hears Important Child Sexual Abuse Hearsay Issue

The Michigan Supreme Court has agreed to hear the Bay County Prosecutor’s appeal in People v. Burns, Supreme Court No. 145604 Bay County is attempting to bring in child hearsay statements to the forensic examiner claiming that the Defendant’s request for the complainant not to tell anyone about the offense constitutes “wrongful conduct” rendering the witness unavailable. Read More...

Court of Appeals Holds Former Mayor Kilpatrick to His Words

Former Detroit Mayor Kwame Kilpatrick wrote a book while on parole. Wayne County Circuit Judge David Groner ordered the proceeds impounded. Mayor Kilpatrick wanted to challenge the constitutionality of the statute permitting the seizing these proceeds. Unfortunately, Mayor Kilpatrick may have shot himself in the foot. The Court of Appeals stated that his structuring to avoid a restitution obligation together with his statements to the press may have barred the issue. Read the full story for more details. Read More...