Investiture ceremony for COA’s Boonstra announced

The investiture ceremony for Michigan Court of Appeals Judge Mark Boonstra takes place Sept. 27 at 3:30 p.m. at Michigan Library & Historical Center, 702 West Kalamazoo St. in Lansing, with a reception in the Hall of Justice following the ceremony.

U.S. Sixth Circuit Court of Appeals Judge Ralph Guy, Jr. will swear Boonstra into office. Boonstra served as Guy’s law clerk from 1983 to 1985.

Governor Rick Snyder appointed Boonstra to the COA last March for a term ending Jan. 1, 2013. Boonstra is running unopposed for a partial term ending Jan. 1, 2015.

Before his appointment, Boonstra was a senior principal in the law firm of Miller, Canfield, Paddock and Stone, P.L.C., where he practiced for nearly 27 years.

Boonstra graduated from the University of Michigan in 1983 with both a Juris Doctor degree and with a Master of Applied Economics Degree. He is also a 1979 Phi Beta Kappa graduate of Michigan State University, with a B.A. in Political Science.

For more information about the event, contact Deborah Allen at 517-373-0898.

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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.”

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.

MSC and COA: More visibility?

A proposed amendment of Michigan Supreme Court Administrative Order 1989-1 would expand the standards for allowing film or electronic coverage of MSC and Michigan Court of Appeals proceedings.

Under the proposal, a new section, AO-1981(2)(b) would provide the following:

(2) (b) In the Court of Appeals and the Supreme Court.

(i) Film or electronic media coverage shall be allowed upon request in all court proceedings except for good cause as determined under MCR 8.116(D). Requests by representatives of media agencies for such coverage must be made in writing to the clerk of the particular court not less than three business days before the proceeding is scheduled to begin. A judge has the discretion to honor a request that does not comply with the requirements of this subsection. The court shall provide that the parties be notified of a request for film or electronic media coverage. An order denying permission to film or otherwise provide electronic media coverage must state with particularity the reasons for the denial.

(ii) A judge may terminate, suspend, limit, or exclude film or electronic media coverage at any time upon a finding, made and articulated on the record, that good cause requires such action or that rules established under this order or additional rules imposed by the judge have been violated.

(iii) If a judge terminates, suspends, limits, or excludes film or electronic media coverage, the person who requested permission to film or otherwise provide for electronic media coverage may appeal that decision to the Chief Judge of the Court of Appeals. If the Chief Judge affirms the judge’s decision, the requester may appeal by leave to the Supreme Court.

Refer to ADM Fine No. 2011-09 for information on how to submit comments concerning the proposal. The comment period closes Oct. 1.

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.

Inability to control child dooms negligent supervision claim

When a parent’s negligent supervision of a child results in someone being hurt, the injured party has a cause of action against the parent.

The big qualifier of this proposition of law is that the parent has the ability to control the child in the first place. American States Ins. Co. v. Albin, 118 Mich. App. 201 (1982).

Our story: Plaintiff broke a window of defendant’s home. Somehow, one of defendant’s dogs was let out of the house. Plaintiff hit the dog with a club. Defendant’s son grabbed a baseball bat from the house and hit plaintiff in the head. The resulting fractures, bleeding and hearing loss cost plaintiff her job and put her on disability.

Plaintiff sued defendant for negligently supervising her son. Defendant’s winning defense was a profound inability to keep her son in check.

Defendant weighed 100 pounds, had cancer and a heart condition that prevented her from working.

Her 17-year-old son weighed 300 pounds. Police reports established that he had assaulted his mother and other family members several times in the past.

The Court of Appeals affirmed the trial court’s dismissal of plaintiff’s suit.

Considering the substantial differential in size between defendant and her son and his past assaultive conduct toward her, we agree with the trial court that there is no genuine issue of material fact that defendant lacked the ability to physically control her son so as to prevent him from assaulting plaintiff, regardless of her awareness of his propensity for assaultive conduct.

Well, plaintiff argued, defendant could have taken other, nonphysical measures to control her son, such as calling 911 or hiding the baseball bat.

Although we agree that the applicable law does not limit the requisite “control” to the ability of a parent to physically restrain his or her child to prevent potential harm or injury, the altercation in this case was not reasonably foreseeable, and thus defendant could not have known of the necessity and opportunity to exercise control over her son’s conduct by taking the precautionary measures cited by plaintiff.

The COA opined that plaintiff’s best argument was that defendant had not medicated her son on the day of the incident. However, plaintiff offered her lay opinion only, and defendant insisted that she gave her son his medication on the day in question.

The unpublished case is Rollinson v. Beresowskyj.

Priest-penitent privilege survives challenge

The 1,500-year-old tradition of confidentiality between priests and their parishioners is alive and well, following a legal challenge in Michigan Court of Appeals.

In People v. Bragg, defendant Samuel Dale Bragg is on trial for fist-degree criminal sexual conduct, accused of molesting a young relative when he was 15 years old and she was 10 years old.

At his March 2011 preliminary examination in Wayne County 34th District Court in Romulus, Assistant Prosecuting Attorney Angela Povilaitis called Bragg’s pastor to testify. The pastor, Rev. John Vaprezsan, had previously given police officers a written statement in which he said that Bragg had made a confession in his office, where Bragg’s mother happened to work.

The prosecutor argued that the conversation wasn’t a confession. For starters, Bragg’s mother was present. That means that it’s unclear what role Vaprezsan was fulfilling as he talked to Bragg — the mother’s boss or a pastor? The prosecutor also argued that it’s not as if Bragg sought counsel from his pastor, as a confessor seeking to unburden his soul would do. Instead, the pastor summoned Bragg to his office to talk, after the alleged victim and her family, who are also members of the church, told him what had happened.

But Bragg’s attorney, Farmington Hills-based Raymond Cassar, argued that Bragg never made such a confession, but even if he did, it is protected and confidential. Cassar said that because Bragg was still a teenager at the time that the pastor called him to his office to discuss the matter, the mother’s presence doesn’t waive Bragg’s expectation of confidentiality. Further, the pastor pressured Bragg to confess in a manner that a pastor might, so anything Bragg would have told Vaprezsan should be confidential. We reported on this story last year, and subscribers can read it in full here.

The District Court admitted the evidence. Even though Cassar said that without the pastor’s statement, there was still enough presented to bind over his client for trial. The pastor testified. Bragg was bound over for trial. Wayne County Circuit Court Judge Cynthia Gray Hathaway approved the bind over based on the victim’s testimony, but determined that the district court abused its discretion in admitting the pastor’s testimony in violation of priest-penitent privilege.

The Court of Appeals noted that the case is unusual:

“We are not faced with a pastor who learned of ongoing or future criminal activity and struggled over whether to report it to the authorities. We are not asked to consider whether a cleric may speak to the police concerning information conveyed with an expectation of privacy. Today, we consider only whether a cleric may reveal in court a congregant’s statements made in confidence,” said the opinion.

The Court noted that “all 50 states have enacted statutes or evidentiary rules, and the federal government has accepted as part of its common law … [that] everywhere in this nation, any penitent speaking to any clergyman of any denomination enjoys an evidentiary privilege precluding the use in court of his ‘confession’ or sometimes more broadly his ‘communication.'”

The Court also noted that not only would a pastor refuse to make public the confidential conversations with parishioners, “Pursuant to MCL 600.2156, a cleric is not permitted to ‘disclose’ certain statements made to him.”

The Court opined that when Bragg spoke to Vaprezsan, the statements “fall within the scope of privileged and confidential communications under MCL 767.5a(2). The communication was necessary to enable Vaprezsan to serve as a pastor, because the defendant communicated with Vaprezsan in his professional character in the course of discipline enjoined by the Baptist Church.

“The communication between defendant and Vaprezsan served a religious function — it enabled Vaprezsan to provide guidance, counseling, forgiveness, and discipline to defendant.”

Cassar said that if the case had gone the other way, it would have had a chilling effect on communication with clerics.

“I think this is a great day for all religions. People can continue to confide in clergy without fear that their confidential conversations will be disclosed,” he said.

A spokeswoman for the Wayne County Prosecutor’s Office said this morning the prosecutor will seek leave to appeal in Michigan Supreme Court.