MSC orders oral argument in marijuana ‘collective cultivation’ case

Does a person violate the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., by growing marijuana for other caregivers or patients?

The Michigan Supreme Court may provide an answer. The Court has ordered oral arguments in People v. Bylsma, ___ Mich App ___ (2011), on Bylsma’s application for leave to appeal an adverse Court of Appeals ruling.

Bylsma, a registered caregiver under the MMMA, had 88 marijuana plants under cultivation in a rental space. Following a police raid, Bylsma was charged with manufacturing marijuana. Under the MMMA, a registered caregiver may possess 12 marijuana plants for each registered patient that the caregiver is connected to through the Michigan Department of Community Health’s registration process.

Bylsma was connected to two registered patients, entitling him to possess 24 plants. The remaining plants, Bylsma said, belonged to other registered caregivers and patients. Bylsma argued that he was entitled to immunity under § 4(b) of the MMMA because nothing in the act prevents other caregivers or patients from using the same space to grow marijuana.

The COA denied his motion to dismiss the charge. The COA reasoned that the evidence, which Bylsma did not dispute, showed that he possessed all 88 plants, and that under the MMMA, he was entitled to only 24.

The MSC has directed the parties to address:

“(1) whether the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., permits qualifying patients and registered primary caregivers to possess and cultivate marijuana in a collective or cooperative; and

“(2) whether, under the circumstances of this case, the defendant was entitled to immunity from prosecution for manufacturing marijuana under § 4 of the MMMA, MCL 333.26424, or entitled to dismissal of the manufacturing charge under the affirmative defense in § 8 of the act, MCL 333.26428.”

Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

Ear ID evidence helps secure murder conviction

The police were fairly certain that Geoffrey Lavar Lawson was the triggerman during an armed robbery of a Genesee County party store.

A video surveillance tape showed that someone jumped up on the store’s counter, put his arm over the bulletproof glass and pointed a handgun at the clerk. The clerk gathered up money from the registers and handed it over. The man on the counter then shot and killed the clerk.

The video apparently wasn’t clear enough to identify Lawson as the man on the counter.

But there was a clear image of the man’s ear.

The prosecution brought in Dr. Norman Sauer, a forensic anthropology expert. Sauer selected various images of ears from the surveillance video. Then he had a videographer film defendant’s left ear. Sauer made side-by-side comparisons of ears from the surveillance video with the images of Lawson’s ear. Sauer could not find any differences between Lawson’s ear and the ear on the surveillance video.

Sauer testified that he couldn’t exclude Lawson as the shooter but declined to make a positive identification.

Based on Sauer’s testimony and other identification evidence, a jury convicted Lawson of first-degree felony murder, armed robbery, conspiracy to commit armed robbery and felony firearm.

On appeal, Lawson faulted Sauer’s testimony because there is no scientific basis to support the hypothesis that every ear is unique. He argued that ear identification is not generally accepted unless there is a unique or individual characteristic. He pointed to a Washington Court of Appeals case, State v Kunze, 97 Wash App 832, 855; 988 P2d 977 (1999), in which a conviction based on a latent ear print was reversed because of the uncertainty in clinically reproducing the conditions that created the latent print.

Lawson’s case is different, ruled the Michigan Court of Appeals.

The same limitations are not present in photographic comparisons. To make an accurate photographic comparison, one must attempt to best duplicate the surveillance images, and that process does not present a risk of distorting an image. Rather, it simply makes a photographic comparison more accurate and reliable by trying to match perspective.

So, Mr. Lawson, listen up, said the COA.

We conclude that the admission of Dr. Sauer’s testimony was neither an abuse of discretion nor a plain error. The methodology employed Dr. Sauer is not new or novel science, and there is nothing inherently unreliable in pointing out similarities in the morphologic features of an ear. Dr. Sauer also did not make a positive identification. As such, defendant cannot show that he suffered plain error, or that his trial counsel was ineffective for failing to object to Dr. Sauer’s testimony.

The unpublished case is People v. Lawson.

Latest court rule orders from the MSC

Late last month, the Michigan Supreme Court unanimously ruled in People v. Cole, that a defendant who pleaded guilty to sex crimes could withdraw his plea because the trial court neglected to tell him that along with a 5- to 15-year prison sentence would come a lifetime of electronic monitoring.

Justice Michael Cavanagh’s opinion stated::

MCR 6.302 and constitutional due process require a trial court to inform a defendant pleading guilty or no contest to first-degree criminal sexual conduct (CSC-I) or second-degree criminal sexual conduct (CSCII) that he or she will be sentenced to mandatory lifetime electronic monitoring, if required by MCL 750.520b(2)(d) or MCL 750.520c(2)(b).

Yesterday, the Court amended MCR 6.302 to explicitly reflect the holding in Cole. The added language is underscored in the block quote below.

MCR 6.302(B)(1) now provides:

(B) An Understanding Plea. Speaking directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that each defendant understands:

(1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;

(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c[.]

The amendment is effective immediately, although the Court will take comments until Oct. 1, and will consider the matter at a later public hearing.

In a proposed amendment of MCR 2.105,  plaintiffs seeking a court order for substituted service of process would be required, as part of the “diligent inquiry” to locate the defendant, to use the Internet.

The proposed amendment is underscored in the block quote below.

MCR 2.105(I)(2) would provide:

A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. For purposes of this rule, “diligent inquiry” shall include an online search if the moving party has reasonable access to the Internet. A hearing on the motion is not required unless the court so directs.

To submit comments concerning the changes to either rule, follow the appropriate link for information.

Police seize legal guns and won’t give them back

The Michigan Supreme Court is considering whether to grant leave to appeal in a case where the police seized a mostly legal collection of weapons and decided to just keep them without seeking forfeiture.

Our story: Kurtis Minch kept a lot of weapons at his house. He had 87 of them in his arsenal.

Unfortunately for Minch, when the Fruitport police raided his house, they discovered an illegal short-barreled shotgun in his collection.

Minch pleaded guilty to a couple of weapons charges — possessing a short-barreled shotgun, MCL 750.224b, and possessing a firearm during the commission of the felony, MCL 750.227b. He didn’t expect that he would get any of the 86 legal weapons back, having pleaded to felonies, but he was very interested in what would happen to them.

The police are going to keep them — not forever — but just for a while, the Muskegon County prosecutor explained. Are you seeking forfeiture, Minch wanted to know. Nope, and we don’t intend to, the prosecutor said.

This didn’t seem right, so Minch asked Muskegon Circuit Court Judge Timothy Hicks to order the police to  give the weapons to Cutler, Minch’s mother.

No problem, ruled Hicks.

On appeal, the prosecutor argued that “allowing the police to deliver the firearms to Cutler would be akin to allowing defendant to distribute them and that this action should be barred under MCL 750.224f.”

Not so, the Michigan Court of Appeals ruled.

The prosecution argues that if defendant is permitted to authorize the police department to dispose of the weapons on his behalf, the department would effectively be acting as defendant’s agent when it delivers the weapons to Cutler. However, the prosecution’s position fails to account for defendant’s due-process rights or previous decisions of this Court.

The Fruitport police have not instituted forfeiture proceedings, nor have they asserted that forfeiture proceedings would be proper. Therefore, denying defendant’s designee the right to take possession of the weapons would deprive defendant of his property without due process of law. Banks v Detroit Police Dep’t, 183 Mich App 175, 180; 454 NW2d 198 (1990); People v Oklad, unpublished opinion per curiam of the Court of Appeals, issued March 3, 2000 (Docket No. 206589).

Well, our case is different, the Muskegon prosecutor argued. There’s no due-process problem here because we’re not going to keep the weapons forever.

Okay, what are you going to do with them that won’t violate Minch’s due-process property rights, the COA wanted to know.

[The prosecution] fails to acknowledge that any other action the department could take, whether it be selling the weapons, melting them down, or retaining possession of them permanently, could only be accomplished through a forfeiture proceeding.

The MSC may take a look at all of this after Hicks decides whether Minch is entitled to appointed counsel and, if so, after the parties have briefed and argued the issues.

Defendant faces computer-snooping charges

Leon Walker, who accessed his estranged wife’s email account without permission and later gained unauthorized access to computerized police records, see People v. Walker,  can be tried on charges arising from those incidents, the Michigan Supreme Court has ruled in a 6-1 decision.

The Court of Appeals, in the email incident, held that defendant was properly bound over for trial under MCL 752.795:

A person shall not intentionally and without authorization or by exceeding valid authorization … [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

Walker worked for Oakland County’s information technology department. After he was charged, his superiors told him he could no longer access police and court databases. Despite the directive, Walker, with the unwitting help of two other Oakland County employees, gained access to a police records database, resulting in a second charge under MCL 752.795.

The COA ruled that Walker was properly bound over on that charge as well.

The MSC agreed in both instances but three justices expressed concern that the statute paints with a very broad brush.

In her dissent, Justice Marilyn Kelly said that Walker raised some arguments that are “worthy” of review:

Defendant argues that the language of MCL 752.795 is ambiguous. Also, he insists that the statute was not intended to criminalize a person’s reading of his or her spouse’s e-mails. He provides examples of innocuous conduct for which a person could be criminally prosecuted under the prosecution’s reading of the statute.

[Footnote 4] For example, defendant argues that a parent could be convicted for monitoring his or her child’s Internet and e-mail usage. He argues that a person could be convicted for using the calculator or word-processing programs on his or her spouse’s computer without permission. [end footnote]

Defendant also raises a significant question about whether Internet-based e-mail accounts fit within the statute’s reference to “a computer program, computer, computer system, or computer network.” …

I note that the Legislature is considering a bill [HB 4532] introduced specifically because of this prosecution that would exempt defendant’s conduct from the scope of MCL 752.795.

Given that this Court has declined to consider the issues involved here, the Legislature would do well to consider whether it intends that MCL 752.795 subject the behavior involved here to criminal penalties.

Justice Stephen Markman, in a concurrence joined by Chief Justice Robert Young Jr., said that Walker’s conduct “unquestionably” fell within MCL 752.795 but wrote “separately to urge the Legislature to consider whether it intends to criminalize the full range of conduct to which the statute potentially extends.”

Civil rights clinic sues to get access to prisoner clients

Daniel Manville said he has had just about enough. As the director of the Civil Rights Clinic at Michigan State University, he has to travel from the Metro area to Western Michigan to the far west side of the Upper Peninsula in order to meet with clients.

That’s hard enough.

But when he started hearing that prisons were going to shorten the hours during which attorneys could meet with clients, and that some were not going to provide private meeting space for confidential conversations, Manville said that burden was too much.

He said he first had a problem when he was visiting a prison in Adrian. He was told then that he couldn’t use a private conference room to meet with his client.

“The woman working the desk said, ‘We don’t have a key for that room,’ but that’s just ludicrous,” Manville said. The captain produced a key, but when he couldn’t track down an officer to provide personal protection for Manville, the meeting had to take place with the door open.

Manville didn’t make much of it, and wrote off the experience as a fluke. But then he visited another prison, where he was told that there would no longer be visiting hours on Tuesdays and Wednesdays, even for attorneys.

That’s unworkable, he said.

So he’s suing the director of the Michigan Department of Corrections, and wardens at three prisons. He filed Monday in the Eastern District.

“All I am asking for is for them to be reasonable, which is in some cases asking a lot of the Department of Corrections,” Manville said. “In more than 20 years I have never had a problem with being able to meet with a client. It’s getting to be unreasonable.”

Manville said that he was told that budget cutbacks have caused the prisons to shorten visiting hours.

Among the other named plaintiffs are attorneys Gerald Lorence, Craig Davis, Dory Baron, Lee Somerville and Nick Suciu. The case is Civil Rights Clinic, et al. v. Washington, et al.

Immigration consequences of plea: No judicial involvement

On a 5-2 vote, the Michigan Supreme Court has declined to adopt court rules that would have required judges to either (a) inquire whether a defendant knows that pleading guilty may have potential immigration consequences or (b) provide an advice of rights to that effect.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court held that an attorney provided ineffective assistance by not telling a client that pleading guilty to a drug charge could get him deported.

The MSC didn’t provide a reason why it passed on both versions of proposed amendments to MCR 6.302 and MCR 6.610.

Justices Marilyn Kelly and Michael Cavanagh dissented from the majority’s May 16 decision.

MSC nixes change to MCR 6.302

Judges advising defendants of their potential sentences at a plea hearing need not mention that the actual sentence may be longer than stated if a defendant is a habitual offender.

The Michigan Supreme Court yesterday declined to adopt an amendment to MCR 6.302, which would have imposed the requirement.

Under the habitual offender statute, MCL 769.13, prosecutors may advise defendants after a plea hearing that they intend to seek an enhanced sentence. This could create a discrepancy between the sentencing range announced at the plea hearing and the actual sentencing range that could be imposed.

The proposed amendment would have required judges to make defendants aware of that circumstance at the plea hearing.

The MSC turned down the proposed amendment on a 5-2 vote. Justices Michael Cavanagh and Marilyn Kelly would have adopted the amendment.

COA: Detroit marijuana proposal should have been on ballot

A proposed amendment of a Detroit ordinance, which would have eliminated penalties for use or possession of small amounts of marijuana on private property, should have been placed on the November 2010 ballot, a split Court of Appeals Panel has ruled.

Detroit election officials kept the proposal off the ballot after city lawyers said the proposal conflicted with state law.

The Coalition for a Safer Detroit, which backed the ballot initiative, sought a writ of mandamus to compel the Detroit city clerk and election commission to place the proposal on the ballot.

Wayne County Circuit Court Judge Michael Sapala refused to issue the writ. Sapala agreed that state law trumped the proposal, so there was no legal duty to put the proposal on the ballot.

In a 2-1 decision, the Court of Appeals reversed.

Judge Henry Saad, joined by Judge Elizabeth Gleicher, said under MCL 117.25 and the Detroit City Charter, the clerk had a clear duty to put the proposal on the ballot.

[I]t was a ministerial act for defendants to place the initiative petition on the ballot once the clerk determined that the petitions contained the required number of qualified signatures.

Because the clerk certified the petition, which contained the requisite number of qualified signatures, defendants had a clear legal duty to place the initiative on the ballot and plaintiff had a clear legal right to the performance of that duty.

Further, no other legal remedy was available where defendants declined to place the proposed amendment on the ballot through an exercise of discretion which is not permitted by law. Accordingly, we hold that the trial court abused its discretion in failing to enter an order of mandamus because plaintiff satisfied the elements necessary for mandamus relief.

Further, said the majority, the time to substantively challenge the proposal as conflicting with state law is after enactment, not before.

We take no position on whether a court may come to this conclusion when this proposed ordinance, if passed, is challenged. We also take no position on the wisdom of the petition or speculate about any actions that may or may not be taken if and when the proposed amendment is enacted.

Simply stated, before it becomes law, any judgment on the merits of such a claim would be an academic discussion about a hypothetical set of facts. Our courts should not render hypothetical opinions about matters that may never become law.

Despite that pronouncement, the majority took a shot at it anyway.

The proposed amendment appears to only provide that the use or possession of less than one ounce of marijuana on private property by a person 21 or older will not also be punished under the Detroit ordinances.

And, though plaintiff’s objective in supporting this initiative may well be to take yet another incremental step to legalize marijuana in Michigan and, though the intended effect of the ordinance may be to discourage arrests for the possession or use of small amounts of marijuana, this is not properly before us.

We do note, however, that it remains the case that local police officers may arrest a person for the commission of a state felony or misdemeanor under MCL 764.15 and, under the Detroit City Charter, it is the obligation of the Detroit Police Department to “enforce the laws of the state and the nation” as well as “the ordinances of the city.” City of Detroit Charter, § 7-1101.

Thus, the proposal, on its face, does not appear to change the fact that all persons under Michigan’s jurisdiction remain subject to the drug laws contained in the Public Health Code which criminalize the use and possession of marijuana.

Judge Jane Markey dissented. She had no trouble concluding that the proposal was contrary to state law, and on that basis, should not be on the ballot.

The rights of initiative and referendum are reserved to the people by Const 1963, art 2, § 9, which states, pertinent to this case:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. [Emphasis added.]

In my opinion, the emphasized sentence imposes a substantive limit on the right of initiative.

The case is Coalition for a Safer Detroit v. Detroit City Clerk, et al. (majority opinion) (dissenting opinion)