CRIMINAL LAW UPDATESCRIMINAL LAW UPDATESGenesee Bar AssociationGenesee Bar Association

May 2, 2013May 2, 2013 Anne Yantus Anne Yantus

US SUPREME COURTUS SUPREME COURT

MIRANDA - CUSTODYMIRANDA - CUSTODY

Prisoner is NOT in Custody for MirandaPrisoner is NOT in Custody for Miranda

purposes even if incarcerated and taken topurposes even if incarcerated and taken to

isolated area of prison for questioning soisolated area of prison for questioning so

long as a reasonable person would feel freelong as a reasonable person would feel free

to stop the questioning and return to cell.to stop the questioning and return to cell.

Howes v FieldHowes v Field, 132 S Ct 1181 (2012) , 132 S Ct 1181 (2012)

EYEWITNESS EYEWITNESS IDENTIFICATIONIDENTIFICATION

The admission of a suggestive The admission of a suggestive identificationidentification

procedure violates Due Process only if theprocedure violates Due Process only if the

police orchestrated the suggestivepolice orchestrated the suggestive

identification.identification.

Perry v New HampshirePerry v New Hampshire, 132 SCt 716 , 132 SCt 716 (2012)(2012)

DOUBLE JEOPARDYDOUBLE JEOPARDY

When the judge discharged the jury without takingWhen the judge discharged the jury without takinga formal partial verdict after the foreperson hada formal partial verdict after the foreperson hadearlier announced the jury had unanimouslyearlier announced the jury had unanimouslyagreed the defendant was not guilty of the highestagreed the defendant was not guilty of the highestcharge but the jury was deadlocked on a lesser charge but the jury was deadlocked on a lesser

charge,charge,defendant defendant may be retriedmay be retried on highest charge as on highest charge asforeperson’s announcement was not an acquittalforeperson’s announcement was not an acquittalof the higher charge.of the higher charge.

Blueford v ArkansasBlueford v Arkansas, 132 S Ct 2044 (2012), 132 S Ct 2044 (2012)

DOUBLE JEOPARDYDOUBLE JEOPARDY

Double Jeopardy bars retrial after a Double Jeopardy bars retrial after a DirectedDirected

Verdict of AcquittalVerdict of Acquittal so long as the decision so long as the decision isis

a substantive determination that thea substantive determination that the

prosecution’s evidence fails to prove theprosecution’s evidence fails to prove the

offense even if it is based on an error of lawoffense even if it is based on an error of law

as to the facts the prosecution must prove.as to the facts the prosecution must prove.

Evans v MichEvans v Mich, 133 S Ct 1069 (2013)., 133 S Ct 1069 (2013).

EFFECTIVE ASSISTANCE OF EFFECTIVE ASSISTANCE OF COUNSELCOUNSEL

The Sixth Amendment provides a remedy The Sixth Amendment provides a remedy

for a defendant who rejected a plea due tofor a defendant who rejected a plea due to

deficient representation during pleadeficient representation during plea

bargaining and who was subsequentlybargaining and who was subsequently

convicted and sentenced after a fair trialconvicted and sentenced after a fair trial

(Cooper) or who subsequently accepted a(Cooper) or who subsequently accepted a

less favorable offer (Frye), ifless favorable offer (Frye), if

EFFECTIVE ASSISTANCE OF EFFECTIVE ASSISTANCE OF COUNSELCOUNSEL

IfIf the defendant can show: the defendant can show: 1) he would have accepted the offer but for 1) he would have accepted the offer but for

the deficient performance,the deficient performance, 2) the prosecutor and judge would not have 2) the prosecutor and judge would not have

reneged on the deal, andreneged on the deal, and 3) the defendant would have actually 3) the defendant would have actually

received the benefit of the deal.received the benefit of the deal.

Lafler v CooperLafler v Cooper, 132 S Ct 1376 (2012), 132 S Ct 1376 (2012)Missouri v FryeMissouri v Frye, 132 S Ct 1399 (2012), 132 S Ct 1399 (2012)

WHAT CONSTITUTES A WHAT CONSTITUTES A SEARCH?SEARCH?

The government engaged in a FourthThe government engaged in a Fourth

Amendment SEARCH in the trespassoryAmendment SEARCH in the trespassory

sense by installing a GPS tracker onsense by installing a GPS tracker on

defendant’s car and monitoring hisdefendant’s car and monitoring his

movements for a month without a warrantmovements for a month without a warrant

(therefore no need to decide if gov’t violated(therefore no need to decide if gov’t violated

Defendant’s reasonable expectation of privacy).Defendant’s reasonable expectation of privacy).

United States v JonesUnited States v Jones, 132 S Ct 945 , 132 S Ct 945 (2012) (2012)

DRUG SNIFFING DOGSDRUG SNIFFING DOGS

Bringing a drug-sniffing dog to defendant’sBringing a drug-sniffing dog to defendant’s

front door and having the dog sniff the areafront door and having the dog sniff the area

amounted to a SEARCH in the amounted to a SEARCH in the JonesJones

trespassory sense because it exceeded thetrespassory sense because it exceeded the

license residents customarily give to thelicense residents customarily give to the

public to approach their front door.public to approach their front door.

Florida v JardinesFlorida v Jardines, 133 S Ct 1409 , 133 S Ct 1409 (2013)(2013)

PROBABLE CAUSEPROBABLE CAUSE

In order to establish that the alert of a narcotics In order to establish that the alert of a narcotics dogs on the exterior of a vehicle provides probabledogs on the exterior of a vehicle provides probablecause to search the vehicle, the prosecution needcause to search the vehicle, the prosecution needonly show that the dog’s alert is a reliable indicatoronly show that the dog’s alert is a reliable indicatorof narcotics under the totality of the circumstancesof narcotics under the totality of the circumstances(prosecution does not necessarily have to produce(prosecution does not necessarily have to producedetailed data about dog’s past training anddetailed data about dog’s past training andperformance)performance)

Florida v HarrisFlorida v Harris, 133 S Ct 1050 (2013), 133 S Ct 1050 (2013)

WARRANTLESS SEARCH – WARRANTLESS SEARCH – EXIGENCY EXCEPTIONEXIGENCY EXCEPTION

The fact that alcohol in the blood The fact that alcohol in the blood dissipatesdissipates

is not, without more, an exigency thatis not, without more, an exigency that

excuses the requirement of a warrant toexcuses the requirement of a warrant to

draw blood for testing in drunk drivingdraw blood for testing in drunk driving

cases.cases.

Missouri v McNeelyMissouri v McNeely, 133 SCt 1552 , 133 SCt 1552 (2013)(2013)

MILLER V ALABAMA (2012)MILLER V ALABAMA (2012)

MANDTORY LWOP for Juvenile MANDTORY LWOP for Juvenile Homicide Offender IsHomicide Offender Is

UNCONSTITUTIONALUNCONSTITUTIONAL

1.1. Juv LWOP will be UNCOMMONJuv LWOP will be UNCOMMON2.2. Not retroactive in MichiganNot retroactive in Michigan3.3. Hearing re: Parolable or NotHearing re: Parolable or Not

MICHIGAN SUPREME COURTMICHIGAN SUPREME COURT

What’s Pending:What’s Pending:

Scoring of Offense Variable 7Scoring of Offense Variable 7

CVR and Ex Post Facto ClauseCVR and Ex Post Facto Clause

IAC re 25-Year Minimum for CSC 1IAC re 25-Year Minimum for CSC 1

SENTENCING GUIDELINESSENTENCING GUIDELINES

OV 1 – AGGRAVATED USE OF OV 1 – AGGRAVATED USE OF WEAPONWEAPON

Methadone, Heroin, Meth Methadone, Heroin, Meth NOT Used as a Weapon =NOT Used as a Weapon = 0 pts 0 pts

DRUGS & WEAPON in home, DRUGS & WEAPON in home, Defendant NOT PRESENT = Defendant NOT PRESENT = 0 0 ptspts

OV 3 – BODILY INJURYOV 3 – BODILY INJURY

Injuries to Injuries to CO-DEFENDANTCO-DEFENDANT or or DEFENDANTDEFENDANT : Yes : Yes

(People v Laidler)(People v Laidler)

Injuries to Injuries to FIREFIGHTERSFIREFIGHTERS: Yes: Yes

(People v Fawaz)(People v Fawaz)

OV 4 Serious Psych InjuryOV 4 Serious Psych Injury

No Points – No Evidence – Cannot AssumeNo Points – No Evidence – Cannot Assume

((People v Lockett)People v Lockett)

10 Pts: Nervous & Scared during Bank Rob10 Pts: Nervous & Scared during Bank Rob

10 Pts: Angry, Hurt, Violated and Frightened10 Pts: Angry, Hurt, Violated and Frightened

10 Pts: Bad Dreams, Not Feel Safe10 Pts: Bad Dreams, Not Feel Safe

OV 5 – Serious Psych Injury to OV 5 – Serious Psych Injury to FAMILYFAMILY

No Error in Scoring Zero (0) Points for No Error in Scoring Zero (0) Points for ::

DDISBELIEF, GRIEF, ANGER AND ISBELIEF, GRIEF, ANGER AND HEARTBREAKHEARTBREAK over loss of newborn over loss of newborn grandchild. grandchild.

People v PortellosPeople v Portellos

OV 7 – Excessive Brutality, OV 7 – Excessive Brutality, TortureTorture

Leave Granted in MSC:Leave Granted in MSC:

People v Glenn,People v Glenn, 295 Mich App 529 295 Mich App 529 (2012) (need egregious conduct, copius (2012) (need egregious conduct, copius or plentiful amounts of additional fear)or plentiful amounts of additional fear)

People v HardyPeople v Hardy, 491 Mich 934 (2012), 491 Mich 934 (2012)(def racked shotgun during carjacking)(def racked shotgun during carjacking)

OV 9 Number of VictimsOV 9 Number of Victims

1.1. YES – Firefighters Placed In Danger YES – Firefighters Placed In Danger (Fawaz)(Fawaz)

2.2. YES – Officer who died and neighborhood YES – Officer who died and neighborhood resident who was nearby (Bowling)resident who was nearby (Bowling)

3.3. YES – Persons in Close Proximity to YES – Persons in Close Proximity to Physically Threatening Situation (in Physically Threatening Situation (in Prison) (Gratsch)Prison) (Gratsch)

OV 9 (Con’t)OV 9 (Con’t)

2.2. NO - community at large re: B & E NO - community at large re: B & E of school building (Carrigan)of school building (Carrigan)

3.3. NO – two other girls in room during NO – two other girls in room during CSC that began as consensual sex CSC that began as consensual sex (Phelps)(Phelps)

OV 10 – VULNERABLE OV 10 – VULNERABLE VICTIMVICTIM

1.1. YES – Child Depicted in Child Porn, even if YES – Child Depicted in Child Porn, even if only downloading (Needham)only downloading (Needham)

2.2. NO – Run of the Mill PlanningNO – Run of the Mill Planning (Laidler) (Laidler)

3.3. NO – Past or Present DatingNO – Past or Present Dating(unless cohabitating or familial) (Brantley)(unless cohabitating or familial) (Brantley)

4.4. YES – Predatory Conduct with minor, teen YES – Predatory Conduct with minor, teen (Lockett; Johnson)(Lockett; Johnson)

OV 13 PATTERN OF CRIMESOV 13 PATTERN OF CRIMES

1.1. Sentencing Offense Must Be Part of Pattern Sentencing Offense Must Be Part of Pattern (Nelson)(Nelson)

2.2. Crimes Against Person, Prop, Drugs Crimes Against Person, Prop, Drugs (but NOT Conspiracy) ((but NOT Conspiracy) (Bonilla-Machado; Bonilla-Machado; Pearson)Pearson)

3.3. OK – Multiple Convictions from Same Incident OK – Multiple Convictions from Same Incident (Gibbs)(Gibbs)

4.4. OK – Some Evidence Dismissed Bank Robbery OK – Some Evidence Dismissed Bank Robbery (Earl)(Earl)

OV 14 - LeaderOV 14 - Leader

1.1. Multiple Offenders May Include One Not Multiple Offenders May Include One Not Charged w/ CrimeCharged w/ CrimePeople v JonesPeople v Jones

2.2. YES – Gave Orders, Used GunYES – Gave Orders, Used GunPeople v GibbsPeople v Gibbs

3.3. YES – Older, Drove Car, Purchased LiquorYES – Older, Drove Car, Purchased Liquor

People v LockettPeople v Lockett

OV 19 – LEAVE GRANTED and OV 19 – LEAVE GRANTED and DENIEDDENIED

Ten Points under OV 19 WhereTen Points under OV 19 Where

Defendant Leaves Scene Before Defendant Leaves Scene Before Police Arrive and Does Not Turn Self Police Arrive and Does Not Turn Self in for Questioning for 15 Days?in for Questioning for 15 Days?

People v Johnny Lee WilliamsPeople v Johnny Lee Williams

OV 19 (Con’t)OV 19 (Con’t)

NO – Interference w/ Emergency Medical NO – Interference w/ Emergency Medical Services (Portellos)Services (Portellos)

NO – False Statement after Anesthesia in NO – False Statement after Anesthesia in Hospital (Portellos)Hospital (Portellos)

YES – Sentencing Offense is Perjury YES – Sentencing Offense is Perjury (Underwood)(Underwood)

YES - Flight from Police After Order to StopYES - Flight from Police After Order to Stop(Ratcliff - new case)(Ratcliff - new case)

OV 19 – People v RatcliffOV 19 – People v Ratcliff

““Defendant obviously cannot be faulted Defendant obviously cannot be faulted for [co-defendant driver’s] decision to for [co-defendant driver’s] decision to disregard the order [to freeze],” but disregard the order [to freeze],” but proper to score where defendant fled proper to score where defendant fled on foot after vehicle stopped.on foot after vehicle stopped.

People v Ratcliff, __ Mich App __ People v Ratcliff, __ Mich App __ (303950, 3/5/13)(303950, 3/5/13)

NEW FROM MICH NEW FROM MICH LEGISLATURELEGISLATURE

1.1. Child Abuse Penalties Revised Child Abuse Penalties Revised (7/1/12)(7/1/12)

2.2. Three Strikes Law (10/1/12)Three Strikes Law (10/1/12)

3.3. Swift and Sure Probation (1/9/13)Swift and Sure Probation (1/9/13)

4.4. DV 3rd Penalty Increased (4/1/13)DV 3rd Penalty Increased (4/1/13)

5.5. Arson First – Fifth Degree (4/3/13)Arson First – Fifth Degree (4/3/13)

Child Abuse PenaltiesChild Abuse Penalties(Eff 7-1-12)(Eff 7-1-12)

First-Degree Child Abuse: First-Degree Child Abuse:

Was: 15 yearsWas: 15 years Now: Life or Term Now: Life or Term YearsYears

Second-Degree Child Abuse:Second-Degree Child Abuse:

Was: 4 yearsWas: 4 years Now: 10 / 20 yearsNow: 10 / 20 years

(2(2ndnd offense) offense)

DV THIRD PENALTIESDV THIRD PENALTIES(Eff 4-1-13)(Eff 4-1-13)

1.1. Domestic Violence Third Offense – Domestic Violence Third Offense – new maximum of new maximum of 5 YEARS5 YEARS..

2.2. May Use Successful DV Diversion May Use Successful DV Diversion under MCL 769.4a to Support Later under MCL 769.4a to Support Later DV DV RECIDIVISTRECIDIVIST Charge.Charge.

ARSON FIRST DEGREEARSON FIRST DEGREE(EFF 4/3/13)(EFF 4/3/13)

Maximum Penalty: Life or Term of YearsMaximum Penalty: Life or Term of Years

Either: Arson of Multi-Unit BldgEither: Arson of Multi-Unit Bldg

OROR

Arson of Bldg, Structure, Real PropArson of Bldg, Structure, Real Prop

Resulting in Physical InjuryResulting in Physical Injury

THREE STRIKES LAWTHREE STRIKES LAW(effective 10-1-12)(effective 10-1-12)

HABITUAL FOURTH OFFENSEHABITUAL FOURTH OFFENSE

Mandatory Min 25 yearsMandatory Min 25 years for HO4 for HO4 if:if:

Current Offense is “Serious” OffenseCurrent Offense is “Serious” Offense

One of Three Priors is “Listed” One of Three Priors is “Listed” OffenseOffense

THREE STRIKES LAWTHREE STRIKES LAW

Effective: OCTOBER 1, Effective: OCTOBER 1, 20122012

SERIOUS SERIOUS Offenses for HO4Offenses for HO4

Murder 2, Manslaughter, AWIMMurder 2, Manslaughter, AWIM

Assault with intent GBH, MaimAssault with intent GBH, Maim

Assault with intent Armed or Unarmed RobAssault with intent Armed or Unarmed Rob

Armed Robbery, CarjackingArmed Robbery, Carjacking

Kidnapping, Kidnap under 15 yrKidnapping, Kidnap under 15 yr

CSC 1st, 2nd, 3rd, Assault w/i PenetrationCSC 1st, 2nd, 3rd, Assault w/i Penetration

Prisoner Take Hostage, MayhemPrisoner Take Hostage, Mayhem

SERIOUSSERIOUS OffenseOffense

CONSPIRACY CONSPIRACY TO COMMITTO COMMIT

ALL “SERIOUS” OFFENSESALL “SERIOUS” OFFENSES

LISTEDLISTED Prior Offense Prior Offense

Murder 2, Manslaughter, AWIMMurder 2, Manslaughter, AWIM

ATTEMPT MURDERATTEMPT MURDER

SOLICITATION MURDERSOLICITATION MURDER

Assault with intent GBH, Maim, FELONYAssault with intent GBH, Maim, FELONY

Assault with intent Armed or Unarmed Assault with intent Armed or Unarmed RobRob

FELONIOUS ASSAULTFELONIOUS ASSAULT

LISTEDLISTED Prior Offense Prior Offense

Armed RobberyArmed Robbery

UNARMED ROBBERYUNARMED ROBBERY

Carjacking, Kidnapping, Kidnap under Carjacking, Kidnapping, Kidnap under 1515

CSC 1CSC 1st,st, 2 2ndnd, 3, 3rdrd and Assault w/i and Assault w/i PenetrationPenetration

TORTURETORTURE

LISTEDLISTED Prior Offense Prior Offense

Prisoner Take HostagePrisoner Take Hostage

MayhemMayhem

RIOT IN STATE PRISONRIOT IN STATE PRISON

ASSAULT OF EMPLOYEE DURING ASSAULT OF EMPLOYEE DURING ESCAPEESCAPE

LISTEDLISTED Prior Offense Prior Offense

AGGRAVATED STALKINGAGGRAVATED STALKING

FELONY STALKING, VICTIM UNDER 18FELONY STALKING, VICTIM UNDER 18

RESIST AND OBSTRUCT, DEATHRESIST AND OBSTRUCT, DEATH

RESIST AND OBSTRUCT, SERIOUS RESIST AND OBSTRUCT, SERIOUS IMPAIRIMPAIR

IMPAIRED DRIVING, DEATHIMPAIRED DRIVING, DEATH

LISTED LISTED Prior OffensePrior Offense

HOME INVASION FIRST, SECONDHOME INVASION FIRST, SECOND

CHILD ABUSE FIRST, SECONDCHILD ABUSE FIRST, SECOND

VULNERABLE ADULT, FIRST, SECONDVULNERABLE ADULT, FIRST, SECOND

FLEE AND ELUDING FIRST, DEATHFLEE AND ELUDING FIRST, DEATH

FLEE AND ELUDING SECOND, INJURYFLEE AND ELUDING SECOND, INJURY

LISTEDLISTED Prior Offense Prior Offense

ARSON DWELLINGARSON DWELLING

ANY DRUG OFFENSE OVER 4 YEAR ANY DRUG OFFENSE OVER 4 YEAR MAXMAX

CCWCCW

CARRYING WEAPON W/ UNLAWFUL CARRYING WEAPON W/ UNLAWFUL INTENTINTENT

FELONY FIREARM, SECOND OR HIGHERFELONY FIREARM, SECOND OR HIGHER

LISTEDLISTED Prior Offense Prior Offense

FIREARM POINTED W/OUT MALICE, FIREARM POINTED W/OUT MALICE, DEATHDEATH

INTENTIONAL DISCHARGE, VEHICLEINTENTIONAL DISCHARGE, VEHICLE

INTENTIONAL DISCHARGE, DWELLINGINTENTIONAL DISCHARGE, DWELLING

INTENTIONAL DISCHARGE EMERGENCY INTENTIONAL DISCHARGE EMERGENCY OR OR LAW ENFORCEMENT OFFICERLAW ENFORCEMENT OFFICER

LISTEDLISTED Prior Offense Prior Offense

Plus:Plus:

ALL ALL ATTEMPTSATTEMPTS TO COMMIT TO COMMIT LISTED OFFENSELISTED OFFENSE

Mandatory 25 Years?Mandatory 25 Years?

Current Offense: Felonious Current Offense: Felonious AssaultAssault

Priors: AR, AWIM, AWGBHPriors: AR, AWIM, AWGBH

Mandatory 25 Years?Mandatory 25 Years?

Current Offense: AWGBHCurrent Offense: AWGBH

Priors: CCW, FF, FAPriors: CCW, FF, FA

Mandatory 25 Years?Mandatory 25 Years?

Current: Current: Conspiracy Conspiracy Armed Armed RobberyRobbery

Prior Offenses: Prior Offenses: CCW, PWID under CCW, PWID under 50; Unarmed Robbery50; Unarmed Robbery

The End.The End.