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, “Don’t Tell Anyone
or You’ll 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
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 Michigan’s CSC Statute..................................... 618
E. Don’t “Take Away” My PIP Benefits: “Unlawfully Taking
Away” and How It Affects Insurance Benefits......................... 619
III: JUDGES AND LAWYERS—OUR BEHAVIOR MATTERS ...................... 622
A. Blurred Judicial Lines: When Professional and Personal
Conduct Merge ........................................................................ 622
B. What Say You? A Judge’s, a Prosecutor’s, and a Defense
Attorney’s Statements Are All OK, Says the Court of
Appeals! ................................................................................... 625
C. When It Doesn’t Go Your Way, Blame It on Your Attorney
(and Other Reasoning the Court Refuses to Adopt)................. 627
† Assistant Professor of Law, Western Michigan University—Cooley Law School;
former Macomb County Assistant Prosecuting Attorney 2005–2011. Professor Breitfeld
would like to dedicate this article to her Grandma Rose Herzina—thank you for sharing
your love of reading and writing with me. You are so dearly missed.
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IV. IF THE STATUTE’S LANGUAGE IS SO PLAIN, WHY ALL THE
ANALYSIS? ..................................................................................... 627
A. The Uniform Criminal Extradition Act (UCEA) and Juvenile
B. How Much Does Your Crime Cost?—What Did the
Legislature Intend with “Any Cost”? ...................................... 629
C. Crime Victim’s Rights Fund—Not to Punish, Just to Help........ 630
D. Making Your Victim Whole: What Does “Full” Restitution
Mean? ...................................................................................... 631
E. Sentencing Guidelines: To Score or Not to Score?—That Is
the Question ............................................................................. 632
F. How Old Am I? The Importance of Age Calculation in
Criminal Sentencing ................................................................ 634
V. MICHIGAN MEDICAL MARIHUANA ACT (MMMA): THE ACT
THAT KEEPS THE COURTS BUSY!................................................... 637
A. How Much Do Your Brownies Weigh? ...................................... 637
B. But I Didn’t Think the Law Applied to Me! ............................... 639
C. Living in the Mitten: You Have to Be a Michigan Resident to
Seek Immunity Under the MMMA............................................ 640
I. MIRANDA AND OTHER EVIDENCE RULES
A. Custodial Interrogation: Police, Parole, and the Measure of Coercion
In Michigan, a brief meeting with a parole agent is not considered
custodial interrogation when the purpose of the meeting is for the parole
agent to inform the defendant of his parole violations.1 In People v.
Elliott, the defendant, a man with a history peppered with convictions
since his youth, was paroled for an unarmed robbery conviction.2 During
his time on parole, he failed to report to his parole officer, and as such,
was taken into custody on June 17, 2010.3 While on parole, the defendant
was also a suspect in a gas station robbery, and when the defendant was
arrested for the parole violation, the police paid him a visit to question
him about the recent gas station robbery.4 The police read him his
Miranda rights and questioned him about that crime.5 The defendant
answered a few questions but then requested a lawyer, so the police
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 286–87.
Id. at 297, 833 N.W.2d at 287.
ceased all questioning.6 On June 21, 2010, a parole officer—not the
defendant’s assigned officer but an officer who was covering for the
assigned agent’s cases—went to serve the defendant with his amended
parole-violation notice.7 The defendant was brought to the jail library,
and the parole officer introduced herself and began serving the defendant
with his parole violations.8 During this exchange, the defendant made
incriminating statements about the gas station robbery that the police
were investigating him for.9 The length of the meeting was about fifteen
to twenty-five minutes, and the parole officer admitted that she did not
give the defendant Miranda rights or tell the defendant that he did not
have to talk to her without a lawyer present.10
The defendant was charged with the crime of robbing that gas
station, and he filed a motion to suppress his confession on the grounds
that his Miranda rights were violated.11 The trial court denied the
defendant’s motion, and a jury convicted the defendant.12 The defendant
appealed to the court of appeals, and it reversed the circuit court’s ruling,
holding that the parole officer was a law enforcement officer for
purposes of Miranda, and the statements were inadmissible because the
defendant had earlier asked for a lawyer.13
The Michigan Supreme Court reversed the court of appeals and held
that the defendant was not subject to custodial interrogation.14 The court
reframed the issue, stating that the question was not if the parole officer
was a law enforcement officer for Miranda purposes, but rather if the
defendant was subject to custodial interrogation.15
To determine if custodial interrogation occurred, the court had to
first determine if the “[defendant’s] freedom of movement was
curtailed.”16 The court relied heavily on Howes v. Fields,17 where even
though a prisoner was told he could leave at any time, he was also
subjected to five to seven hours of questioning.18 In addition, the prisoner
was never read his Miranda rights, and the deputies ignored him when he
8. Id. at 297–99, 833 N.W.2d at 287–88.
9. Id. at 298–99, 833 N.W.2d at 288.
10. Id. at 299, 833 N.W.2d at 288.
13. Id. at 299–300, 833 N.W.2d at 288.
14. Id. at 322, 833 N.W.2d at 301.
15. Id. at 301–04, 833 N.W.2d at 289–90.
16. Id. at 308, 833 N.W.2d at 293 (quoting Howes v. Fields, 132 S. Ct. 1181, 1189
17. Fields, 132 S. Ct. at 1190.
18. Id. at 1193.
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indicated that he no longer wanted to speak to them.19 The court reasoned
that like the defendant in Fields, who was also in custody during the
interrogation but told he could leave at any time, the defendant in the
current case was also aware that he could leave at any time and return to
his cell.20 Of particular importance to the court’s analysis was that a
deputy, not a parole agent, escorted the defendant to the jail library,
indicating that the defendant knew that the parole officer had little
control over his freedom of movement.21
Further, the court noted that the circumstances surrounding the
defendant’s custody—that he was already in prison—was relevant
because the level of restraint was the same before questioning and after
questioning (the shock that is inherent with facing confinement is not
present because a prisoner is aware that he is not permitted to roam
freely).22 Therefore, the court found that the defendant’s movement was
not curtailed during the meeting.23
As to the interrogation element, the court noted that Miranda was
enacted to prevent the inherently coercive pressures that are present
during questioning.24 In its analysis, the court compared the
circumstances of the Fields defendant to the defendant in the current
case. The court noted that the interrogation in the Fields case lasted five
to seven hours, while the interrogation in this case lasted only a
maximum of twenty-five minutes.25 Further, the defendant in Fields was
questioned by stern officers using profanity and sharp tones, while in this
case, the defendant was not questioned for the purposes of getting a
confession but questioned as part of the parole officer’s job duties, and
she was cordial and sympathetic.26 Also, the Fields defendant stated that
he no longer wanted to talk to the armed officers, but in this case, the
defendant never said that he didn’t want to speak to the parole officer27—
in fact, he asked her to tell the police that he wanted to speak with them
again.28 Comparing the circumstances in Fields to the current
circumstances, the court concluded that the defendant was not subject to
Elliott, 494 Mich. at 306, 833 N.W.2d at 292.
Id. at 310–13, 833 N.W.2d at 294–95.
Id. at 309–10, 833 N.W.2d at 293–94.
Id. at 309, 833 N.W.2d at 293–94 (citing Fields, 132 S. Ct. at 1193).
Id. at 311–13, 833 N.W.2d at 295.
Id. at 313, 833 N.W.2d at 295.
Id. at 314, 833 N.W.2d at 296.
Id. at 314–15, 833 N.W.2d at 296.
Id. at 315, 833 N.W.2d at 296.
Id. at 319, 833 N.W.2d at 299.
custodial interrogation, and the court reversed the court of appeals and
reinstated the defendant’s conviction and sentence.29
B. The Power of Community: Did Local Citizens Just Help the Police
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 defendant’s 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
Id. at 322, 833 N.W.2d at 301.
305 Mich. App. 127, 130, 854 N.W.2d 114, 120 (2014).
Id. at 130–31, 854 N.W.2d at 121.
Id. at 137, 854 N.W.2d at 124.
Id. at 144, 854 N.W.2d at 127.
Id. at 151, 854 N.W.2d at 131.
Id. at 155, 854 N.W.2d at 133.
Id. at 159, 854 N.W.2d at 135.
Id. at 158, 854 N.W.2d at 134.
Id. at 131, 854 N.W.2d at 121.
Id. at 131–32, 854 N.W.2d at 121.
Id. at 132, 854 N.W.2d at 121.
Id. at 132, 854 N.W.2d at 122.
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witnesses stated that he entered on the ground level.44 Interestingly, the
apartment that was implicated the day before in the anonymous tip was
in the same complex and located on the same ground level where the
When the police arrived at the apartment (the same one implicated in
the anonymous tip), the police noticed that the window was slightly
open, and pry marks were on the window frame.46 The police could not
see inside the apartment because the blinds were closed.47 The officers
tried the window and noticed that it was unlocked and large enough for a
person to fit through.48 Fearing for the safety of anyone inside, as well as
the possibility that the restaurant suspect had fled into the apartment, the
police entered and conducted a protective sweep.49 Inside the apartment,
police found the defendant inside and clothing matching the suspect’s
The defendant made several claims during his appeal. First, he
argued that the police were not justified in their entry into the
apartment.51 The court of appeals disagreed and held that the police
entered the home under exigent circumstances, namely in pursuit of a
fleeing felon from a public place.52 The court placed high significance on
how the witnesses at the restaurant maintained visual contact on the
defendant until police arrived only fifteen minutes later.53 The court
further noted that police were also justified in entering the home to
protect the public or other apartment occupants from a fleeing suspect
who could have been armed with a weapon.54 Therefore, the court found
that the police entered the defendant’s home lawfully.55
Second, the defendant argued that his trial counsel was ineffective.56
In support, the defendant claimed that during the trial his attorney failed
to file a motion to suppress evidence based on the warrantless entry,
failed to locate alibi witnesses, and failed to make appropriate
objections.57 The court rejected the defendant’s claim of ineffective
Id. at 132–33, 854 N.W.2d at 122.
Id. at 133, 854 N.W.2d at 122.
Id. at 134, 854 N.W.2d at 122.
Id. at 137, 854 N.W.2d at 124.
Id. at 138, 854 N.W.2d at 125.
Id. at 138–39, 854 N.W.2d at 125.
Id. at 139–40, 854 N.W.2d at 125.
Id. at 140, 854 N.W.2d at 126.
Id. at 140, 854 N.W.2d at 125.
Id. at 141, 854 N.W.2d at 126.
assistance of counsel and noted that counsel was not ineffective for
choosing not to file frivolous motions.58 In sum, the court denied the
defendant’s 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, “you’ve 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
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 defendant’s 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 I’m 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 I’m 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 defendant’s rights.67 But even though the court
found that the police violated the defendant’s Miranda rights, the court
held that the error was harmless.68 The court cited the mountains of
Id. at 141–42, 854 N.W.2d at 126.
Id. at 142, 854 N.W.2d at 126.
Id. at 142, 854 N.W.2d at 126–27.
Id. at 143, 854 N.W.2d at 127.
Id. at 143–44, 854 N.W.2d at 127.
Id. at 144, 854 N.W.2d at 127.
Id. at 147, 854 N.W.2d at 129.
Id. at 147–48, 854 N.W.2d at 129–30.
Id. at 147–48, 854 N.W.2d at 129 (emphasis omitted).
Id. at 148, 854 N.W.2d at 130.
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evidence against the defendant, including the several witnesses who
could identify him committing the various robberies.69 And the court
reasoned that a rational jury would have found the defendant guilty
without the error.70
But in a rather lengthy dissent that evaluated the history, purpose,
and foundation of Miranda, Judge Boonstra disagreed with the court’s
opinion that the police violated the defendant’s Miranda rights.71 In the
dissent, Judge Boonstra indicated that the police were not trying to
coerce the defendant into making a statement but instead were trying to
dispel the defendant’s confusion.72 In fact, Judge Boonstra’s dissent
indicated that while the defendant was given proper Miranda rights,
there was no unequivocal invocation of those rights73 and no
“interrogation” for purposes of Miranda.74
Finally, the defendant claimed that he should have been afforded the
right to cross examine the confidential informant and that the court’s
failure to require the prosecutor to disclose the informant’s identity
violated his due process rights.75 The court agreed that testimonial
evidence did come in at trial that was hearsay and violated the
defendant’s right to confront his witnesses.76 But the court ruled that this
error also did not affect the outcome of the trial, considering the
overwhelming evidence against the defendant.77 The court also held that
the prosecution did not have to produce the confidential informant unless
the defendant showed a need for the informant’s testimony, which the
defendant did not show.78 Further, the court reasoned that the
confidential informant would not have offered any material or
exculpatory information; therefore, the court held that the trial court did
not abuse its discretion when it denied the defendant’s motion to produce
the confidential informant.79
In sum, the court denied all of the defendant’s motions, except for its
finding of a Miranda violation, which the court deemed harmless error.
Id. at 148–51, 854 N.W.2d at 130–31.
Id. at 151, 854 N.W.2d at 131.
Id. at 163, 854 N.W.2d at 137.
Id. at 167–70, 854 N.W.2d at 139–41.
Id. at 168, 854 N.W.2d at 140.
Id. at 173, 854 N.W.2d at 142–43.
Id. at 151–52, 854 N.W.2d at 131–32.
Id. at 154, 854 N.W.2d at 132.
Id. at 155, 854 N.W.2d at 133.
Id. at 156–57, 854 N.W.2d at 134.
Id. at 157, 854 N.W.2d at 134.
C. Under the Michigan Rules of Evidence, “Don’t Tell Anyone or You’ll
Get in Trouble” Is Not Enough to Prove That a Defendant Made a
Witness Unavailable to Testify
In Michigan, a criminal defendant must specifically intend that his
wrongdoing will make a witness unavailable to testify; knowledge of that
outcome is not enough. In People v. Burns,80 a four-year-old girl
disclosed to her Bible-study teacher that her father (the defendant) had
sexually abused her.81 The defendant promptly moved out of the home,
and the defendant did not have any further contact with the child until the
trial.82 After the child disclosed to the Bible-study teacher, she was
interviewed by a forensic interviewer, as well as a sexual-assault nurse.83
The child disclosed during both of the interviews that her father had
sexually abused her.84 The child did not testify at the preliminary exam
because the court allowed the sexual-assault nurse to testify about the
abuse under the medical-treatment exception to Michigan Rule of
Evidence (MRE) 803(4).85
At trial, the prosecution elicited the testimony of the Bible-study
teacher before the young girl testified.86 After the Bible-study teacher
testified, the prosecutor called the young child to the stand four times.87
The young child would not testify—the child left the witness stand, hid
in the courtroom, and even indicated that she would not tell the truth.88 In
response, the prosecutor argued that under Michigan Rule of Evidence
804(b)(6) the young child was unavailable because the defendant had
made the young child unavailable through this own wrongdoing.89 Under
Michigan Rule of Evidence 804(b)(6), a defendant can lose his right to
object to hearsay evidence if his own wrongdoing made the witness
unavailable.90 This rule is often referred to as the “forfeiture-by80. 494 Mich. 104, 832 N.W.2d 738 (2013).
81. Id. at 107, 832 N.W.2d at 740.
85. Id. at 107 n.3, 832 N.W.2d at 740 n.3.
86. Id. at 107 n.4, 832 N.W.2d at 740 n.4. Per the Michigan Rule of Evidence 803, a
corroborating witness can testify before the actual declarant as long as the declarant
testifies at some point during the proceedings. Because the young child did not testify in
court, the prosecutor argued that the defendant had made the young child unavailable
through his own wrongdoing, and the court should admit the Bible-study teacher’s
testimony even without the child’s testimony. Id. at 108, 832 N.W.2d at 741.
87. Id. at 107–08, 832 N.W.2d at 741.
88. Id. at 108, 832 N.W.2d at 741.
90. MICH. R. EVID. 804(b)(6); Burns, 494 Mich. at 110, 832 N.W.2d at 742.
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wrongdoing” rule.91 The prosecutor argued, therefore, that the child’s
testimony should be admitted through the Bible-study teacher.92
The prosecutor supported the argument by reminding the court that
the young child disclosed during her forensic interview that the
defendant told her “not to tell” and that if she did tell, she would “get in
trouble.”93 The prosecutor argued that the defendant’s instructions “not
to tell” was the wrongdoing that precluded the young girl from testifying,
thus making her unavailable.94 In response, the trial court judge found
that the defendant had committed wrongdoing and also found that the
young girl was unavailable to testify.95 As a result, the trial court then
allowed the hearsay testimony of the sexual-assault nurse and the
forensic interviewer, concluding that the defendant had forfeited his
confrontation right.96 The defendant was found guilty of first-degree
criminal sexual conduct, and he appealed.97
The court of appeals reversed the trial court, concluding that the trial
court had incorrectly interpreted the forfeiture-by-wrongdoing analysis
of MRE 804(b)(6).98 Specifically, the court of appeals opined that the
forfeiture-by-wrongdoing analysis requires that the defendant have a
specific intent that his wrongdoing will cause the witness’s
unavailability.99 The prosecutor filed leave to appeal.100
The Michigan Supreme Court held that the defendant did not have
the specific intent for his wrongdoing to make the young child
unavailable as a witness.101 To begin its analysis, the supreme court
analyzed the three elements required to admit evidence under the
forfeiture-by-wrongdoing rule.102 The court started by acknowledging
that the defendant did engage in wrongdoing and therefore met the first
element.103 As to the second element, that the wrongdoing is intended to
procure the declarant’s unavailability, the court focused heavily on the
91. Burns, 494 Mich. at 110–11, 832 N.W.2d at 742.
92. Id. at 108, 832 N.W.2d at 741. Under the Michigan Rule of Evidence 804(b)(6), a
defendant can lose the right to object to hearsay evidence if his own wrongdoing made
the witness unavailable. This rule is often referred to as the “forfeiture by wrongdoing”
rule. Id. at 110–11, 832 N.W.2d at 742.
93. Id. at 108, 832 N.W.2d at 741.
95. Id. at 108–09, 832 N.W.2d at 741.
96. Id. at 109, 832 N.W.2d at 741.
97. Id. at 109, 832 N.W.2d at 742.
101. Id. at 106, 832 N.W.2d at 740.
102. Id. at 115, 832 N.W.2d at 745.
intent element.104 In its analysis, the court referred to Michigan precedent
that requires a specific intent analysis for the forfeiture-by-wrongdoing
application.105 The court distinguished between a defendant having the
knowledge that his actions may lead to a witness’s unavailability, versus
a defendant having the actual purpose to cause a witness’s
unavailability.106 Applying the specific facts of the case to the specific
intent requirement, the court relied on how the defendant immediately
left the home after the allegations and never had any more contact with
the young child.107
The court also explained that the timing of the defendant’s
statements was important.108 For example, if the defendant had made the
statements after the sexual abuse had been reported, the court stated that
would infer a strong intent to cause the young child’s unavailability.109
But in reality, the defendant made the statement warning the child “not to
tell” during the sexual abuse, not after.110 The court reasoned that the
defendant’s statements could be interpreted to mean that the defendant
wanted the abuse to go undiscovered just as much as the statements
could be intended to prevent the young child from testifying.111 The
supreme court illustrated its frustration with the trial court’s lack of factfinding and acknowledged that the intent analysis must be conducted on
a case-by-case basis.112 Therefore, the supreme court found that based on
the facts, the trial court’s findings did not support the specific intent
required under the second element of MRE 804(b)(6).113
Finally, the court addressed the third element of MRE 804(b)(6)—
that the defendant’s actions caused the unavailability.114 The court stated
that the trial court undermined its own analysis when it failed to mention
the defendant’s actions as a reason why the young child would not
testify.115 The supreme court found that because the defendant’s
wrongdoing was not included as a reason why the child would not
testify, the trial court erred when it concluded that the prosecutor
104. Id. at 115–18, 832 N.W.2d at 745–47.
105. Id. at 112–13, 832 N.W.2d at 743–44 (citing People v. Jones, 270 Mich. App.
208, 714 N.W.2d 362 (2006)).
106. Id. at 117, 832 N.W.2d at 746.
107. Id. at 115–16, 832 N.W.2d at 745.
108. Id. at 116, 832 N.W.2d at 745.
111. Id. at 116–17, 832 N.W.2d at 746.
112. Id. at 116–18, 832 N.W.2d at 746.
113. Id. at 118, 832 N.W.2d at 747.
114. Id. at 119, 832 N.W.2d at 747.
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satisfied the third element, causation, of MRE 804(b)(6).116 As a result,
the supreme court affirmed the court of appeals and remanded the case to
the trial court for a new trial.117
D. To Have and to Hold from This Day Forward: A Look at the Spousal
When a spouse is prosecuted for actions stemming from a personal
wrong or injury done by one spouse to the victim spouse, the court can
compel the victim spouse to testify. In People v. Szabo,118 a husband
went to his estranged wife’s house and shot a man who was visiting.119
During the incident, the defendant put two bullet holes in the wife’s
home, and she was visibly upset by the incident.120 The husband was
charged with assault with intent to murder and felonious assault.121
At the preliminary exam, the prosecution called the defendant’s wife
to the stand.122 The defendant’s attorney stated that the wife was going to
exercise her spousal privilege.123 But the wife testified, and the district
court sent the matter to circuit court.124
In circuit court, the defense filed a motion to quash and dismiss
based on spousal privilege.125 The attorney argued that the wife was
compelled to testify against her will.126 In support of his motion, the
defense attorney attached a signed affidavit from the wife that stated that
she formally invoked her spousal privilege not to testify and that she did
not fear the defendant.127 The prosecution responded by arguing that at
the preliminary exam the wife never asserted her spousal privilege, so
she waived any right to now assert that privilege.128 Further, the
prosecutor added that the spousal privilege did not apply because the
defendant was being “prosecuted for actions growing ‘out of a personal
wrong or injury done by one [spouse] to the other,’” as indicated in the
Id. at 120, 832 N.W.2d at 747–48.
303 Mich. App. 737, 738, 846 N.W.2d 412, 414 (2014).
Id. at 738, 846 N.W.2d at 414.
Id. at 739, 846 N.W.2d at 414.
Id. at 739–40, 846 N.W.2d at 414.
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 defendant’s charges stemmed from
him entering his wife’s 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 defendant’s silence at
his first trial can be used for cross-examination in that same defendant’s
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)).
132. Id. at 749, 846 N.W.2d at 419.
133. Id. at 741–48, 846 N.W.2d at 415–19. 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 746–47, 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).
139. Id. at 262, 833 N.W.2d at 310.
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 didn’t tell that jury the same story you’re telling this jury, did you,
sir?”144 The jury returned a guilty verdict, and the defendant appealed
based on the prosecutor’s use of his silence during cross-examination.145
The court of appeals held that the defendant was improperly
impeached and dismissed the defendant’s convictions.146 The prosecutor
filed an application for leave to appeal.147
The Michigan Supreme Court held that the prosecutor’s
impeachment of the defendant could include that defendant’s 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 defendant’s silence
during his first trial, the prosecutor could not refer to the defendant’s
post-arrest and post-Miranda silence.151 (During the second trial, the
prosecutor had asked the defendant why he never told the police he
didn’t shoot the victim.152)
The court stated that when the prosecutor asked the defendant why
he never told the police he didn’t shoot the victim, the prosecutor
violated the defendant’s 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 court’s
142. Id. at 263–64, 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.
148. Id. at 263, 833 N.W.2d at 311.
149. 271 U.S. 494 (1926); see Clary, 494 Mich. at 266–71, 833 N.W.2d at 312–15.
150. Id. at 271–73, 833 N.W.2d at 315–17.
151. Id. at 271–72, 833 N.W.2d at 315–16. 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 271–72, 833 N.W.2d at 315–16.
154. Id. at 272, 833 N.W.2d at 316.
Therefore, the court held that the prosecutor should not have made
reference to the defendant’s 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 defendant’s decision not to testify at his first trial can be
used for impeachment purposes, which was what occurred in the current
Finally, the court acknowledged the chilling effect that comes with
allowing a defendant’s 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 function”159 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 defendant’s convictions, not because of the prosecutor’s
use of the defendant’s silence as impeachment, but because the
prosecutor should not have addressed the defendant’s 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 defendant’s failure to
testify at his first trial.162
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
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 Macy’s viewed,
over closed-circuit television, a very nervous patron (the defendant)
156. Id. at 270–71, 833 N.W.2d at 315.
157. Id. at 277–78, 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,
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 defendant’s
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 officer’s] person or from the [loss
prevention officer’s] 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
The court of appeals reversed the defendant’s 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
Id. at 673, 837 N.W.2d at 417.
Id. at 673–74, 837 N.W.2d at 417.
Id. at 674, 837 N.W.2d at 417.
Id. at 674, 837 N.W.2d at 418.
Id. (emphasis omitted).
Id. at 675, 837 N.W.2d at 418.
3. If the amendment did not alter the definition of the word
presence, is the phrase consistent with the common law
definition of “presence.”174
To begin, the Michigan Supreme Court analyzed past decisions and
concluded that the definition of “from the person” requires the victim to
be immediately present when the property is taken.175 Further, the court
acknowledged that the constructive presence exception also applied to
larceny-from-the-person cases if the defendant prevented the victim from
accessing the victim’s property by using force or threats.176 The
constructive presence exception means that a victim is constructively
present with the property even when they are separated from it due to the
violence or fear created from the defendant.177
The court next confirmed that the 2004 amendments to Michigan’s
robbery statute did not have any affect on the meaning of “from the
person” in the larceny from the person statute—“from the person” still
requires that the victim be “immediately present” when the property is
The court then analyzed what the meaning of “immediate presence”
encompasses. The court stated that:
[t]he immediate presence test can only be satisfied if the property
was in immediate proximity to the victim at the time of the
taking. In other words, the common-law meaning of “immediate
presence” in the larceny-from-the-person context is consistent
with the plain meaning of the word “immediate,” which means
“having no object or space intervening, nearest or next.”179
When applying the law to the facts, the court held that the facts did
not satisfy the “immediate presence” test because the loss prevention
officer was not in possession of the property when it was taken.180 The
court reasoned that the evidence was insufficient to show that the
defendant was in the immediate presence of the victim.181 Rather, the
174. Id. at 675–76, 837 N.W.2d at 418.
175. Id. at 682–83, 837 N.W.2d at 422.
176. Id. at 685, 837 N.W.2d at 424 (discussing People v. Gould, 384 Mich. 71, 179
N.W.2d 617 (1970)).
177. Id. at 684, 837 N.W.2d at 423.
178. Id. at 685–87, 837 N.W.2d at 425.
179. Id. at 688, 837 N.W.2d at 425–26 (quoting RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY (2d ed. 1998)).
180. Id. at 689, 837 N.W.2d at 426.
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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 person’s
immediate presence, which includes property that is under the person’s
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 defendant’s
truck for $400.189 While the mechanic was working on the truck in the
defendant’s driveway, it began to rain.190 The mechanic took shelter
close by on another neighbor’s 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 defendant’s
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
Id. at 693, 837 N.W.2d at 428.
Id. at 693–94, 837 N.W.2d at 428 (Kelly, J., dissenting).
Id. at 693–94, 837 N.W.2d at 428–29.
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. at 124, 845 N.W.2d at 480.
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
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 that—one 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
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.
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 WEBSTER’S COLLEGE DICTIONARY (2d ed. 1997)).
204. Harris, 495 Mich. at 132, 845 N.W.2d at 485.
205. Id. at 134–39, 845 N.W.2d at 486–88.
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 didn’t 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 defendant’s 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 owner’s knowledge is crucial in Michigan’s
“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
owner’s home.211 The pit bull was rescued from a local shelter and, to the
shelter’s 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 sheriff’s 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 dog’s 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 136–39, 845 N.W.2d at 487–88.
207. Harris, 495 Mich. at 139, 845 N.W.2d at 488.
208. Id. at 140–41, 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 885–86.
212. Id. at 39, 836 N.W.2d at 886.
213. Id. at 39–40, 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
215. Janes, 302 Mich. App. at 40, 836 N.W.2d at 886.
rea element included in the jury instructions.217 The prosecutor appealed
The court of appeals held that the crime was not a strict liability
offense, that there was a requirement to show criminal intent on the part
of the owner, and that the way to show intent was through the owner’s
knowledge that his animal met the definition of a dangerous animal
before the incident that resulted in charges.219 Using common law
principles and looking at the legislature’s intent, the court reasoned that
just because a statute did not mention intent did not indicate the
legislature’s desire to omit it.220 Actually, the court indicated that courts
will “infer the presence of the element [of intent] unless a statute
contains an express or implied indication that the legislative body wanted
to dispense with it.”221 Therefore, the court determined that the crime
was not a strict liability offense.222
The court then evaluated what the legislature intended when it said
that an animal “meets” the definition of a dangerous animal at the time of
the offense.223 The court reasoned that because the legislature used the
present tense “meets” and coupled that word with the present tense
“attacks,” it intended that the animal must qualify as a dangerous animal
before the incident and throughout the incident.224 The court rejected the
prosecutor’s argument that all animals are generally dangerous so that a
finding of prior knowledge of an animal’s dangerousness was not needed
to prove the crime.225 In fact, the court found the prosecutor’s argument
to fly in the face of American culture, where many people own animals,
especially dogs.226 The court indicated that it found it “unthinkable that
the Legislature intended to subject law-abiding, well-intentioned citizens
to a possible four-year prison term if, despite genuinely and reasonably
believing their animal to be safe around other people and animals, the
animal nevertheless harms someone.”227
Further, the court rejected the circuit court’s indication that the
proper mens rea standard was gross negligence.228 The court indicated
219. Id. at 53–54, 836 N.W.2d at 893 (emphasis added).
220. Id. at 42–43, 836 N.W.2d at 887.
221. Id. at 43, 836 N.W.2d at 887 (quoting People v. Tombs, 472 Mich. 446, 697
N.W.2d 494 (2005)).
222. Janes, 302 Mich. App. at 53, 836 N.W.2d at 893.
223. Id. at 43–53, 838 N.W.2d at 887–893.
224. Id. at 44–45, 836 N.W.2d at 888.
225. Id. at 46, 836 N.W.2d at 889.
226. Id. at 48, 836 N.W.2d at 890.
227. Id. at 48, 836 N.W.2d at 890–91.
228. Id. at 52, 836 N.W.2d at 891–92.
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that the legislature’s intent was to curtail the ownership of an animal that
the owner knows is dangerous—not 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
(1) [T]hat the [defendant] owned or harbored a dog or other
(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 court’s 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 Michigan’s CSC Statute
A substitute teacher claimed that Michigan’s 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
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).
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 teacher’s
relationship and authority is what the statute focused on—not the timing
of the penetration.242 Therefore, the court of appeals reversed the trial
court’s decision and remanded the case for reinstatement of the
E. Don’t “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
Michigan’s 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 39–40.
236. Id. at 343–44, 839 N.W.2d at 41–42 (citing MICH. COMP. LAWS ANN. § 750.520d
(1)(e) (West 2015)).
237. Lewis, 302 Mich. App. at 340, 839 N.W.2d at 40.
240. Id. at 347–48, 839 N.W.2d at 43–44.
241. Id. at 347, 839 N.W.2d at 43.
242. Id. at 347, 839 N.W.2d at 43–44.
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, 35–36 (2014).
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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 court’s 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 friend’s
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 plaintiff’s
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
245. Id. at 321, 852 N.W.2d at 36.
246. Id. at 320–21, 852 N.W.2d at 36.
247. Id. at 321, 852 N.W.2d at 36. The unknown third party’s motorcycle was stolen
on August 4, 2009. Id. at 322, 852 N.W.2d at 37. Nineteen days later the plaintiff was
involved in a serious accident on the motorcycle. Id. at 323, 852 N.W.2d at 37.
248. Id. at 321, 852 N.W.2d at 36.
250. Id. at 322, 852 N.W.2d at 37.
252. Id. at 323–24, 852 N.W.2d at 37–38.
253. Id. at 323, 852 N.W.2d at 37.
256. Id. at 334, 852 N.W.2d at 43.
257. Id. at 335, 852 N.W.2d at 43.
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 Titan’s motions for summary
judgment.261 The court of appeals reversed the trial court’s 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 driver’s 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
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 legislature’s way of removing the specific intent to
260. Id. at 335, 852 N.W.2d at 43–44. The court made note that the plaintiff’s 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
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 39–41.
266. Id. at 329–30, 852 N.W.2d at 41.
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permanently deprive an owner of his or her property.267 It was not, the
court reasoned, the legislature’s intent to completely eliminate intent
altogether.268 In fact, the court opined that if the legislature wanted to
eliminate intent altogether, it would have used the phrase “without regard
to intent.”269 Instead, it retained the mens rea element to take without
authority or intent to use without authority, but removed the “specific
intent to permanently deprive” element.270 The court stated that “[f]or a
person to take personal property without the authority of the actual
owner, there must be some evidence to support the proposition that the
person from whom he or she received the property did not have the right
to control or command the property.”271
Additionally, the court found that the court of appeals erred when it
engaged in fact finding.272 Specifically, the court found that there were
genuine issues of material fact with regard to the unlawful taking.273 The
court stated that there was “compelling evidence to counter plaintiff’s
claim that he was not complicit in the unlawful taking of the
motorcycle.”274 As a result, the court affirmed the court of appeals’
holding that the crime was not a strict liability offense, reversed the court
of appeals’ grant of summary judgment, and remanded the case for
III: JUDGES AND LAWYERS—OUR BEHAVIOR MATTERS
A. Blurred Judicial Lines: When Professional and Personal Conduct
The Judicial Tenure Commission (JTC) filed a complaint against
sitting Third Circuit judge, Deborah Ross Adams (respondent).276 In its
complaint, the JTC alleged that the judge had engaged in perjury,
267. Id. at 331, 852 N.W.2d at 41–42.
269. Id. at 330, 852 N.W.2d at 41.
270. Id. at 330–31, 852 N.W.2d at 41–42.
271. Id. at 332, 852 N.W.2d at 42.
272. Id. at 337, 852 N.W.2d at 44.
274. Id. at 334, 852 N.W.2d at 43.
275. Id. at 336–37, 852 N.W.2d at 44.
276. In re Adams, 494 Mich. 162, 165, 833 N.W.2d 897, 899 (2013). As procedural
background, the JTC filed a formal complaint against the respondent on April 17, 2012.
Id. At the same time, the JTC filed a request for the appointment of a master. Id. at 166,
833 N.W.2d at 900. The Honorable Donald G. Miller was appointed the master, and a
hearing was held from September 11–17, 2012. Id. On October 9, 2012, the master filed
his findings of fact with the JTC. Id.
forgery, and numerous misrepresentations to the commission.277 These
charges stemmed from a case in the Oakland County Circuit Court where
the respondent was the defendant in a divorce case.278 During the case,
and while represented by counsel, the respondent repeatedly called
presiding Judge Mary Brennan’s chambers.279 When the judge
questioned the respondent about her conduct under oath, the respondent
denied contacting the judge, the judge’s staff, or anyone from the judge’s
office.280 When Judge Brennan’s staff testified under oath that they had
repeatedly had contact with the respondent and informed the respondent
that her communication was improper, the respondent once again denied
that she had any contact with the judge, her staff, or anyone from her
office while respondent was represented by counsel.281 Upon review of
these facts, the JTC found that the respondent’s testimony lacked
credibility and that the respondent had made false statements while under
Secondly, the respondent was charged with forgery.283 The
respondent was accused of filing pleadings and signing her former
attorney’s name to those pleadings without the attorney’s permission.284
The respondent admitted that she signed the documents, but she insisted
that she had her attorney’s permission.285 The respondent’s former
attorney testified that she did not sign the documents, and she did not
give the respondent any permission to file or sign the pleadings.286
Further, the court considered an e-mail that the respondent sent to her
former attorney indicating that she wanted her permission to file
pleadings in the court.287 The court reasoned that if the respondent had
permission to sign and file documents on her attorney’s behalf, the
respondent would not have needed to send an email asking for
277. Id. at 165, 833 N.W.2d at 900.
282. Id. at 171, 833 N.W.2d at 903.
283. Id. at 173, 833 N.W.2d at 904.
286. Id. at 173–74, 833 N.W.2d at 904. In contrast, during the master’s review of the
facts, he found that there was insufficient evidence to find that the respondent violated
the forgery statute. Id. at 167, 833 N.W.2d at 900–01. Specifically, the master found that
the respondent lacked intent to injure or defraud. Id. at 167–68, 833 N.W.2d at 901. The
JTC disagreed with the master’s findings on this charge. The JTC did not have to find
that a criminal statute was violated to find that judicial misconduct occurred. Id. at 168
n.5, 833 N.W.2d at 901 n.5.
287. Id. at 174–75, 833 N.W.2d at 904–05.
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permission.288 Again, the JTC found that the respondent’s 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 Brennan’s office, signing documents without her
attorney’s permission, and other misrepresentations surrounding her
testimony about the case.291 As a result of the JTC’s 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 JTC’s findings,
but the supreme court did not agree with the JTC’s sanction.293 In its
review of the JTC’s 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
respondent’s behavior.298 Hence, the supreme court ordered the
respondent to pay costs of $8,498.40 and removed her from judicial
288. Id. at 174–75, 833 N.W.2d at 905.
289. Id. at 175, 833 N.W.2d at 905.
292. Id. at 170, 833 N.W.2d at 902.
293. Id. at 164, 833 N.W.2d at 899.
294. Id. at 180–81, 833 N.W.2d at 907–08. Specifically the court stated that the
respondent continued to “shirk any responsibility for her wrongdoings or express any
indication of remorse.” Id. at 181, 833 N.W.2d at 908.
295. Id. at 181–83, 833 N.W.2d at 908–09.
296. Id. at 181, 833 N.W.2d at 908.
297. Id. at 184–85, 833 N.W.2d at 909–10 (quoting In re Justin, 490 Mich. 394, 419,
809 N.W.2d 126, 139 (2012)).
298. Id. at 185, 833 N.W.2d at 909.
299. Id. at 187, 833 N.W.2d at 911. Justice McCormack dissented, highlighting that
the JTC’s recommendation of a 180-day suspension was the more appropriate sanction
because the misconduct arose from a personal divorce case that was emotionally difficult
for the respondent. Id. at 188, 833 N.W.2d at 912 (McCormack, J., dissenting). Further,
Justice McCormack opined that the misconduct never carried over to the respondent’s
duties as a judicial officer. Id. Justice McCormack, therefore, thought that the supreme
B. What Say You? A Judge’s, a Prosecutor’s, and a Defense Attorney’s
Statements Are All OK, Says the Court of Appeals!
In an unpublished opinion that offers a lot of guidance to
practitioners, the court of appeals clarified what phraseology and
terminology is appropriate for the courtroom. It found that when a judge
clarified what a Cobbs agreement was to the jury, he did not pierce the
veil of judicial impartiality.300 The court reasoned that the defendant
waived his right to preserve the claim when the judge asked if the
defendant agreed with the court’s final jury instructions, and the
defendant twice answered that he did.301 Further, the court indicated to
the jury that the judge’s comments or questions were not evidence.302
Finally the court noted that the evidence against the defendant was so
overwhelming that the judge’s conduct could not have unduly influenced
The defendant then argued that the trial court should have instructed
the jury on the lesser-included offense of manslaughter.304 The court
addressed the issue even though it made a finding that the defendant
waived any right to the error because he expressed satisfaction with the
The court found that an “instruction on a necessarily included lesser
offense is proper if the charged greater offense requires the jury to find a
disputed factual element that is not part of the lesser included offense and
a rational view of the evidence would support it.”306 The court reasoned
that the instruction was not justified because the evidence did not support
it—specifically, the evidence showed that the shooting was not an
accident but rather that the defendant pointed the gun at the victim and
shot him.307 The court reasoned that the defendant’s theory of the case—
that someone else committed the crime—did not comport with the
involuntary manslaughter instruction, and a rational view of the evidence
would not support it.308 Therefore, the court found that the trial court did
court should have paid more deference to the JTC’s recommendation of suspension for
180 days. Id. at 189, 833 N.W.2d at 912.
300. People v. Jessie, No. 310869, 2014 WL 2751047, at *2 (Mich. Ct. App. June 17,
301. Id. at *1.
302. Id. at *3.
306. Id. at *4 (emphasis added) (quoting People v. Cornell, 466 Mich. 335, 357, 646
N.W.2d 127, 139 (2002)).
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not commit plain error when it did not give the involuntary manslaughter
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
Similarly, the defendant also contested his attorney’s 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 defendant’s 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 victim’s head (OV
4).317 Ultimately, the court found all of the defendant’s arguments
unpersuasive and affirmed the trial court’s order.318
310. Id. at *5.
312. Id. (quoting People v. Seals, 285 Mich. App. 1, 22, 776 N.W.2d 314, 328 (2009)).
313. Id. at *5–6.
314. Id. at *7.
317. Id. at *8–9. 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
injury—a 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.
C. When It Doesn’t Go Your Way, Blame It on Your Attorney (and Other
Reasoning the Court Refuses to Adopt)
In a short, but very clear opinion, the Michigan Court of Appeals
addressed a disgruntled defendant’s claims of ineffective assistance of
counsel. In People v. Herron, the defendant claimed that his attorney
failed to object to a jury instruction, failed to properly advise him of plea
agreement and sentencing implications, and failed to properly reveal
inconsistencies in a witness’s testimony.319
The court disagreed with all of the defendant’s claims holding that
the defendant’s claims were not based in evidence.320 In fact, the court
stated multiple times that the defendant was trying to expand the record
with his offers of proof.321 Further, the court indicated that it would not
second-guess an attorney’s trial strategy.322 Therefore, the defense
attorney’s judgment to not draw attention to a witness’s statement about
the defendant’s previous criminal history was trial strategy—not
ineffective assistance of counsel.323 Further, the court noted that the
defendant’s attorney was not ineffective for failing to make futile
objections.324 Ultimately, the court reasoned that an attorney is in the best
position to make decisions about trial strategy, and the court was not
going to second-guess those decisions using hindsight.
IV. IF THE STATUTE’S LANGUAGE IS SO PLAIN, WHY ALL THE
A. The Uniform Criminal Extradition Act (UCEA) and Juvenile
In a case of first impression, the Michigan Court of Appeals
solidified that the UCEA does apply to juveniles.325 In In re Boynton, a
Michigan juvenile—who was twelve years old at the time—went to visit
his godfather in Georgia.326 While the juvenile was in Georgia, Georgia
authorities began investigating him for sexually molesting a four-year319. People v. Herron, No. 310188, 2013 WL 4436875, at *2–4 (Mich. Ct. App. Aug.
321. Id. at *2, *4–5.
322. Id. at *4.
323. Id. at *3.
324. Id. at *2 (citing People v. Crews, 299 Mich. App. 381, 401, 829 N.W.2d 898,
325. In re Boynton, 302 Mich. App. 632, 635, 840 N.W.2d 762, 763 (2013).
326. Id. at 635, 840 N.W.2d at 764.
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old child.327 Before the conclusion of the investigation, the juvenile
returned to Michigan.328 Several months later, Georgia authorities sought
the juvenile’s extradition from Michigan to Georgia to face charges of
aggravated child molestation.329 Because the juvenile was on probation in
Michigan for a domestic violence charge against his mother, the court
began the extradition procedures in May 2011.330 The juvenile was
appointed counsel, and counsel challenged the extradition on four issues:
first, the juvenile claimed that the UCEA did not apply to juveniles
charged with delinquent behavior; second, the juvenile claimed that he
was not a fugitive of justice under the UCEA; third, the juvenile claimed
that because the extradition documents contained an error, the documents
were inaccurate and could not be honored in an extradition proceeding;
and finally, the juvenile argued that extraditing him to Georgia would be
cruel and unusual punishment.331
The court held that the UCEA did apply to the juvenile.332 The court
reasoned that the plain language of the UCEA statute—and the
accompanying federal statutes—all contained the word “person” as it
related to extradition.333 The court also reviewed case law from other
jurisdictions and found that Texas, the District of Columbia, and
Montana all held that juveniles are not to be exempted from the
UCEA.334 While the defendant argued that a delinquency proceeding was
not a “criminal” proceeding under the UCEA, the court disagreed and
found that “the nature of the charging procedure used by the demanding
state [the state holding the warrant] is irrelevant.”335 Therefore, the court
found that the UCEA applied to the defendant.336
The court also found that the juvenile was a fugitive from justice,
and again, the UCEA did apply to him.337 In support, the court held that
the manner in which a person has left the state has little bearing on the
fugitive status if the person isn’t willing to return on his own.338 Hence,
the court found that the juvenile was a fugitive from Georgia, even if he
Id. at 635, 840 N.W.2d at 764.
Id. at 636, 840 N.W.2d at 764.
Id. at 636–37, 840 N.W.2d at 764.
Id. at 643–44, 840 N.W.2d at 768.
Id. at 637–42, 840 N.W.2d at 765–67.
Id. at 641–43, 840 N.W.2d at 767–68.
Id. at 643–46, 840 N.W.2d at 768–69.
Id. at 647, 840 N.W.2d at 770.
Id. at 646–49, 840 N.W.2d at 770–71.
did leave the state after a brief vacation and under his mother’s
Further, the court did not agree with the juvenile’s 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 juvenile’s 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 juvenile’s 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
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
Id. at 648–53, 840 N.W.2d at 771–73.
Id. at 652–55, 840 N.W.2d at 773–74.
Id. (emphasis added).
MICH. COMP. LAWS ANN. § 769.1k (West 2015).
People v. Cunningham, 496 Mich. 145, 147–48, 852 N.W.2d 118, 120 (2014).
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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 legislature’s 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 Victim’s Rights Fund—Not to Punish, Just to Help
Timing is everything in life, and when a defendant robbed a bank in
March 2010, the current crime victim’s 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 defendant’s argument and held that the Crime
Victim’s Rights statute was a civil remedy not so punitive in effect or
Id. at 151–54, 852 N.W.2d at 122–23 (emphasis added).
Id. at 153–54, 852 N.W.2d at 123.
Id. at 158–60, 852 N.W.2d at 126–27.
Id. at 157–58, 852 N.W.2d at 125.
Id. at 157, 852 N.W.2d at 125.
Id. at 157–59, 852 N.W.2d at 125–26.
Id. at 159–60, 852 N.W.2d at 126–27.
People v. Earl, 495 Mich. 33, 35, 845 N.W.2d 721, 724 (2014).
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 victim’s 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 Victim’s
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 court’s award of nearly $1,000
dollars in travel expenses to secure four snowmobiles stolen from a
victim’s vacation home in Cheboygan, Michigan.370
The court held that the Crime Victim’s Rights Act and Michigan’s
general restitution statute authorize courts to provide “full restitution” to
a crime victim.371 The court acknowledged that the restitution was
limited to a victim’s losses due to the “defendant’s 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 49–50, 845 N.W.2d at 731.
363. Id. at 39–41, 845 N.W.2d at 726 (emphasis added).
364. Id. at 41–44, 845 N.W.2d at 727–28.
365. Id. at 43–44, 845 N.W.2d at 728 (citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69 (1963)).
366. Id. at 43–50, 845 N.W.2d at 728–31.
367. Id. at 48–50, 845 N.W.2d at 731.
368. People v. Garrison, 495 Mich. 362, 365, 852 N.W.2d 45, 46 (2014).
370. Id. at 365–66, 852 N.W.2d at 46.
371. Id. at 373–75, 852 N.W.2d at 51.
372. Id. at 372, 852 N.W.2d at 50 (quoting MICH. COMP. LAWS ANN. § 780.766(2)
373. Id. at 368–73, 852 N.W.2d at 48–50.
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unambiguously wanted the courts to order “full” restitution, and
therefore, the subsections should not be read as an exhaustive list of what
types of restitution were available.374 Therefore, the court reversed the
decision of the court of appeals and reinstated the trial court’s restitution
award of nearly $1,000 dollars in travel expenses.375
E. Sentencing Guidelines: To Score or Not to Score?—That Is the
The court of appeals has clarified that when a father fails to pay child
support, he cannot be “punished” for that offense in the sentencing
guideline variables OV 16 or OV 19, unless extenuating facts are
present.376 In People v. Hershey, a father who had child support
arrearages of nearly $6,500 was sentenced for failure to pay child
support.377 The defendant was sentenced to five months in jail and
twenty-four months of probation.378 After sentencing, the defendant filed
a motion for resentencing arguing that OV 16 and OV 19 were
First, the defendant argued that OV 16 was improperly scored.380 OV
16 requires the “court to score [five] points when property that ‘had a
value of $1,000.00 or more but not more than $20,000.00’ is ‘obtained,
damaged, lost, or destroyed.’”381 The defendant argued that OV 16 did
not apply to his case because failure to pay child support “did not
constitute property that was ‘obtained, damaged, lost, or destroyed.’”382
The defendant argued, and the court agreed, that because the defendant
was unable to pay the child support and did not have any assets, it could
not be said that he retained or obtained money, as referenced in OV
16.383 The court held that an “obligation to pay money does not translate
to possession of the money owed,” explaining that the defendant could
not have lost the money because he never had it to begin with.384 The
court further reasoned that the intention of OV 16 was to address tangible
375. Id. at 373–75, 852 N.W.2d at 51.
376. People v. Hershey, 303 Mich. App. 330, 332–33, 844 N.W.2d 127, 131 (2013).
377. Id. at 333, 844 N.W.2d at 131.
379. Id. at 332–35, 844 N.W.2d at 131–32.
380. Id. at 334, 844 N.W.2d at 131.
381. Id. at 337, 844 N.W.2d at 133 (quoting MICH. COMP. LAWS ANN. § 777.46(1)(c)
382. Id. at 334–35, 844 N.W.2d at 132.
383. Id. at 336–37, 844 N.W.2d at 133.
384. Id. at 338, 844 N.W.2d at 134.
property, not a person’s loss of an expectation.385 Therefore, under a
preponderance of the evidence standard, the court held that the trial court
erred when it scored five points under OV 16.386
Moreover, the court reached the same conclusion when it reviewed
OV 19.387 The defendant also argued that OV 19 was improperly scored
because he did not interfere with the administration of justice.388 The
court explained that “OV 19 applies if there was a ‘threat to the security
of a penal institution or court or interference with the administration of
justice or the rendering of emergency services.’ The trial court must
assess [ten] points for OV 19 if ‘[t]he offender otherwise interfered with
or attempted to interfere with the administration of justice.’”389 The court
examined the plain language of the statute and determined that the
defendant did not hinder any part of the judicial process when he failed
to pay.390 In fact, the court held that even when the defendant violated his
probation, he did not hinder any part of the trial court’s process.391 The
court added that it was unaware of any case law that suggested that a
probation violation was an interference with the administration of
Finally, the court had to determine if the defendant waived his right
to address these issues because he failed to object to the scoring at
sentencing.393 The court held that while the defendant did indicate that he
did not have any “additions or corrections” to the presentence report, the
defendant was not specifically asked if he agreed with OV 16 or OV
19.394 Rather, the defendant was posed with a broad question.395
Moreover, the court relied on a Michigan statute that provides defendants
three separate opportunities to raise scoring errors: at sentencing, in a
motion for resentencing, or in a motion to remand.396 As such, the court
reasoned that because the defendant raised the scoring issue in a motion
for resentencing, he preserved the issue for appeal.397 Therefore, the
385. Id. at 340–41, 844 N.W.2d at 135.
387. Id. at 342, 844 N.W.2d at 135.
389. Id. at 342, 844 N.W.2d at 135–36 (alteration in original) (citations omitted)
(quoting MICH. COMP. LAWS ANN. § 777.49 (West 2015)).
390. Id. at 340–41, 844 N.W.2d at 135.
391. Id. at 344–46, 844 N.W.2d at 137.
392. Id. at 344–47, 844 N.W.2d at 137–38.
393. Id. at 346–47, 844 N.W.2d at 138.
394. Id. at 351–52, 844 N.W.2d at 141.
397. Id. at 353–55, 844 N.W.2d at 142.
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court overruled the trial court’s sentence and remanded the case for
resentencing under the proper guidelines.398
F. How Old Am I? The Importance of Age Calculation in Criminal
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 age—or stated another way—how 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 defendant’s 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 Court’s opinion in Miller v. Alabama.403 The defendant also
claimed that his trial counsel was ineffective for not objecting to the
defendant’s pre-arrest delay and not objecting to the use of a single photo
for identification purposes.404
The court of appeals affirmed the defendant’s convictions but held
that the defendant was entitled to resentencing under Miller.405 First, the
court addressed the defendant’s 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
399. People v. Woolfolk, 304 Mich. App. 450, 458–59, 848 N.W.2d 169, 175 (2014).
400. Id. at 451–52, 848 N.W.2d at 171.
401. Id. at 452–53, 848 N.W.2d at 172.
403. Id. at 458–59, 848 N.W.2d at 175 (citing Miller v. Alabama, 132 S. Ct. 2455
404. Id. at 453–58, 848 N.W.2d at 172–74.
405. Id. at 506–07, 848 N.W.2d at 200.
406. Id. at 456–57, 848 N.W.2d at 174.
407. Id. at 454–57, 848 N.W.2d at 173–74 (citing People v. Herndon, 246 Mich. App.
371, 390–91, 633 N.W.2d 376, 391–92 (2001)).
The court also disagreed with the defendant’s 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 attorney’s failure to
object to the police’s 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 defendant’s
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 defendant’s defense attorney would have been
Finally, the court addressed the defendant’s 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 456–57, 848 N.W.2d at 174.
412. Id. at 457–58, 848 N.W.2d at 174.
413. Id. at 456–58, 848 N.W.2d at 174–75.
414. Id. at 458–59, 848 N.W.2d at 175.
416. Id. at 459–60, 848 N.W.2d at 175 (quoting People v. Carp, 298 Mich. App. 472,
536–37, 828 N.W.2d 685, 723 (2012)).
417. Id. at 460–62, 848 N.W.2d at 176.
418. Id. at 460–75, 848 N.W.2d at 176–84.
419. Id. at 460–62, 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 one’s 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 General’s 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
Legislature’s subsequent statutory enactments . . . .”430 It follows,
naturally then, that the defendant was seventeen on the day he committed
420. Id. at 462–64, 848 N.W.2d at 177–78.
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 464–67, 848 N.W.2d at 178–179. 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 465–67, 848 N.W.2d at 178–79.
423. Id. at 475–78, 848 N.W.2d at 184–85.
424. Id. at 477–501, 848 N.W.2d at 185–97.
425. Id. at 498–500, 848 N.W.2d at 195–96.
426. Id. at 499, 848 N.W.2d at 196.
427. Id. at 502–03, 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 504–05, 848 N.W.2d at 199.
430. Id. at 505, 848 N.W.2d at 199.
murder, and under the Miller authority, must be resentenced in
accordance with that opinion.431 Therefore, the court of appeals
remanded the case to the circuit court for resentencing as required under
V. MICHIGAN MEDICAL MARIHUANA ACT (MMMA): THE ACT THAT
KEEPS THE COURTS BUSY!
A. How Much Do Your Brownies Weigh?
The court of appeals took on baked goods in the recent People v.
In Carruthers, a defendant who had a medical marijuana card, a
caregiver certificate, and four patients, was charged with possession with
intent to deliver marijuana.434 At issue were brownies that contained the
controlled substance, THC.435 At trial, the defendant admitted that the
brownies were made with a THC extract called “cannabutter.”436 The
defendant argued that the total weight of the brownie should not be
calculated to decide how much marijuana he actually possessed, but
rather the weight of the THC contained in the brownie.437 The trial court
ruled that the entire weight of the brownie would be calculated for
purposes of how much marijuana the defendant possessed, and because
that amount was more than the limit provided in the Michigan Medical
Marihuana Act (MMMA), the trial court held that the defendant could
not use the medical marijuana immunity defense contained in section
four of the act.438 A jury found the defendant guilty of possession with
intent to deliver, and the defendant filed this appeal.439
On appeal the defendant argued that the trial court should have
considered only the amount of marijuana that was labeled on each
brownie package.440 The defendant also argued on appeal that the trial
431. Id. at 506–07, 848 N.W.2d at 200.
433. People v. Carruthers, 301 Mich. App. 590, 837 N.W.2d 16 (2013).
434. Id. at 593–96, 837 N.W.2d at 19–20.
435. Id. at 594, 837 N.W.2d at 19.
436. Id. at 594–96, 837 N.W.2d at 19–20.
437. Id. at 593–95, 837 N.W.2d at 19.
438. Id. at 599, 837 N.W.2d at 22.
439. Id. at 596, 837 N.W.2d at 20.
440. Id. at 597–601, 837 N.W.2d at 21–22. The defendant wanted the trial court to
accept his labeling of the marijuana as accurate. Id. at 603 n.6, 837 N.W.2d at 24 n.6.
This is because the prosecution’s expert admitted that she could not determine the exact
amount of THC contained in each brownie, but rather, she could only testify that THC
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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 defendant’s 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 extract—not “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
As to the defendant’s 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
defendant’s 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 601–03, 837 N.W.2d at 23. The court refused to adopt the defendant’s
marijuana quantity measurement. Id. at 603–04, 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
443. Carruthers, 301 Mich. App. at 601–03, 837 N.W.2d at 23.
444. Id. at 602–08, 837 N.W.2d at 23–26.
445. Id. at 607–09, 837 N.W.2d at 26.
447. Id. at 611, 837 N.W.2d at 28.
448. Id. at 611–18, 837 N.W.2d at 28–31.
449. Id. at 615–17, 837 N.W.2d at 30–31.
450. Id. at 617, 837 N.W.2d at 31.
451. Id. at 618, 837 N.W.2d at 31.
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
B. But I Didn’t 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 MMMA’s 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 defendant’s
motions to dismiss.460
The court of appeals reversed the trial court’s 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 MMMA—specifically 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
454. People v. Johnson, 302 Mich. App. 450, 462–63, 838 N.W.2d 889, 896 (2013).
455. Id. at 454, 838 N.W.2d at 891.
456. Id. at 452–56, 838 N.W.2d at 891–92.
457. Id. at 456–57, 838 N.W.2d at 893.
458. 293 Mich. App. 644, 811 N.W.2d. 513 (2011), aff’d on other grounds, 493 Mich.
135, 828 N.W.2d 644 (2013).
459. Johnson, 302 Mich. App. at 456–57, 838 N.W.2d at 893.
460. Id. at 456, 838 N.W.2d at 892.
461. Id. at 465–66, 838 N.W.2d at 898.
462. Id. at 459–61, 838 N.W.2d at 895.
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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 court’s 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’
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 court’s 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 court’s holding and remanded the case for reinstatement of the
charges and further proceedings consistent with the court’s 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 MMMA—not 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 act—the immunity provision.474 The prosecutor
Id. at 458–61, 838 N.W.2d at 894–95.
Id. at 459–61, 838 N.W.2d at 895.
Id. at 461–63, 838 N.W.2d at 896.
Id. at 459–61, 838 N.W.2d at 895.
Id. at 461–63, 838 N.W.2d at 896.
Id. at 462, 838 N.W.2d at 896.
Id. at 465–66, 838 N.W.2d at 898.
Id. at 463–66, 838 N.W.2d at 897–98.
Id. at 465–66, 838 N.W.2d at 898.
People v. Jones, 301 Mich. App. 566, 568, 837 N.W.2d 7, 9–10 (2013).
Id. at 570, 837 N.W.2d at 10.
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
476. Id. at 570–71, 837 N.W.2d at 11.
480. Id. at 578–79, 837 N.W.2d at 14–15.
481. Id. at 572–74, 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 defendant’s
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 578–79, 837 N.W.2d at 14–15.
484. Id. at 577, 837 N.W.2d at 14.
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immunity applied was a fact-finding question for the trial court to