St. Joseph Michigan Criminal Defense Blog

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Supreme Court Rules

Supreme Court Rules the Dead Can Speak at Trial

Supreme Court Rules

On February 28, 2011, the Supreme Court ruled on a Michigan case involving statements made to the police by the victim in Michigan v. Bryant. In a decision that appears to go against existing legal precedent, Justice Sotomayor writing on behalf of the Court held that the statements of the victim to the police were admissible at trial because the primary purpose of those statements were made to address an ongoing emergency.

To understand this decision, you need a little background. The United States Constitution grants each criminal defendant the right to be confronted with the witnesses against him. This is designed to protect the defendant against statements made to the police or other government officials when he or she has not had the opportunity to cross-examine or question the validity of those statements. However, for many years it had been common practice to allow these statements to be admitted at trial as long as they fell within one of the commonly accepted hearsay exceptions including statements made in contemplation of death. The theory was that the circumstances in exceptions were inherently more credible because a person was less likely to lie if, for example, he or she believed he was about to die.

In 2004, in a case called Crawford v. Washington, the Supreme Court reigned in on this liberal use of hearsay exceptions to avoid requiring witnesses to confront the defendant. In that case the Court ruled that, even if a hearsay exception applied, a witness must be required to confront the defendant unless he or she was legally unavailable and the defendant had had a previous opportunity to cross examine the witness. If not, then any statement that was testimonial in nature would be inadmissible at trial. Testimonial was not expressly defined, but included police interrogations.

Two years later the Supreme Court addressed the issue of when a statement is testimonial in Davis v. Washington and Hammon v. Indiana. Essentially, the Court carved out an exception that statements made to police are not testimonial if the primary purpose for the statements was to resolve a present emergency. The Court in Davis distinguished between recounting events that were currently happening, and describing past events.

It was in light of this history of cases that the Court made its ruling in Michigan v. Bryant. The police in the case found the victim shot and bleeding in the parking lot of gas station. The victim reported that he had been shot by the defendant through the back door of the defendant home, and that he had driven himself to the parking lot. The emergency medical services arrived within approximately 10 minutes and transported the victim to the hospital where he died within hours. Despite the fact that the shooting had occurred 25 minutes earlier in another location some unknown distance away from where the victim was found, the Supreme Court ruled that there was an ongoing emergency and that the primary purpose of the questions and answers were to address the ongoing emergency. To justify its departure from Davis and Hammon, the court noted that here there was a gun involved, which the court seemed to imply created an inherent risk to the public. The Court also relied on the “informal” and at times disorganized nature of the police questioning as evidence of an “ongoing emergency.” Also, the Court stated that nothing the victim had said would lead the police to think that this was a private conflict or that the emergency had ended. Thus rather than having to demonstrate that the emergency still existed, all that the police, and by extension the prosecutor, had to demonstrate was that the possibility of a threat to the public had not been eliminated.

The effect of this case is that the ongoing emergency exception to what is testimonial requiring witnesses confront the defendant in a criminal trial has been greatly broadened. Rather than the common understanding of an emergency, which would require some apparent and readily present threat, the Court has created an assumption that, at least where a gun is involved, an ongoing emergency exists until the police can locate the suspect or believe that he is unarmed or otherwise unlikely to be a risk to the public. Future criminal defendants and their lawyers will need to be aware of this definition of an ongoing emergency and future appeals will have to define exactly how long such an emergency might last when, as here, there is no apparent threat when the police arrive on the scene.

Read the opinion here.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Criminal defense

Beyond The Sentence

Criminal defense

Criminal defense attorneys often get wrapped up in the particular terms of a sentence when talking to their clients about the benefits and risks of taking a plea, but for our clients, we realize that your concerns are much broader. You want to know how this conviction is going to impact your life. This includes plenty of what attorneys call collateral consequences that go beyond jail, probation, and fines and costs. Here is an almost definitely incomplete list of potential affects of a conviction that you should be aware of.

Deportation

Probably the most important consequence to any non-citizen is the risk of deportation. There are several crimes, including most felonies, which will cause you to be deemed deportable if you are convicted of them or plead guilty to them. Once you are deemed deportable you will be automatically deported unless you fit into a very narrow exception that would allow the Attorney General to waive deportation. The crimes that may cause you to be deemed deportable are:

  • Crimes of moral turpitude with a possible sentence of at least 1 year in jail that are convicted within 5 years of your date of admission (or 2 or more crimes of moral turpitude regardless of when they are committed)
  • Aggravated felonies
  • Failure to register as a sex offender
  • Controlled Substance crimes except for a single offense for possessing 30 grams or less of marijuana for personal use
  • Drug abuse or addiction
  • Firearm offenses
  • Domestic violence, stalking, or child abuse, neglect, or abandonment
  • Violation of a Personal Protection Order involving threats of violence, harassment or bodily injury to the protected party
  • Additional federal crimes

Sex Offender Registry

Another very important consequence of some convictions is the requirement that you register as a sex offender. If you are convicted or plead guilty to an offense listed in the Michigan Sex Offender Registry Act, MCL 28.722, you will be required to register as a sex offender for a period of 25 years. If you already are required to register as a sex offender, then you will be required to register for life. This requirement applies to the following crimes:

  • Accosting, enticing or soliciting child for immoral purpose
  • Sodomy against a minor
  • Indecent Exposure, Second Offense
  • Third or subsequent offenses of any of the following:
    • Disorderly Person
    • Indecent Exposure
  • Gross indecency against a minor
  • Kidnapping a minor
  • Leading, taking, carrying away, decoying, or enticing away a child under 14
  • Soliciting, accosting, or inviting a minor to commit prostitution or immoral act
  • Pandering
  • Criminal Sexual Conduct or Sexual Assault

Driver License Consequences

Many criminal charges also carry with them the risk of sanctions to your driver’s license through the Michigan Secretary of State. These determinations are made by the Secretary of State and are not within the control of the prosecutor or the court. These sanctions apply to the following crimes:

  • Controlled Substance crimes
  • Operating While Intoxicated
  • Operating While Visibly Impaired
  • Open Intoxicants in a Motor Vehicle
  • Minor in Possession of Alcohol
  • Use of a False ID to Purchase Alcohol
  • Driving While License Suspended
  • Failure to Pay Child Support

Also, even if you have not been convicted, if you were asked to take a chemical test to determine whether you were intoxicated while driving and you refused your license will be automatically suspended for one (1) year. If you refuse a second time within seven (7) years, your license will be automatically suspended for two (2) years.

Civil Liability

Sometimes, criminal actions can also expose you to civil liability to the victim. These include cases of malicious destruction of property and assault matters as well as others. If you are convicted or plead guilty to these kinds of criminal actions, what you say on the record can be used against you in the civil suit, potentially exposing you to paying substantial financial damages. However, this can be avoided if you agree to plead No Contest to the charges. Sometimes a prosecutor will not agree to this arrangement, but if you are concerned about a potential lawsuit, talk to your attorney about avoiding that liability by pleading No Contest instead.

Employment

Some employers will not hire convicted felons. However, the employers who take a hard line on this are fewer than you think. More often, they want to know the circumstances behind the conviction. Also, if you are convicted to a misdemeanor, many employers will still be willing to hire you.

However, there are some jobs, particularly those that require special security clearance, that take a hard stance against criminal activity, even after you are already hired. Also, several industries such as the medical field, attorneys, and day care providers, require certifications that will be revoked if you are convicted or plead guilty to certain kinds of crimes. If you work in one such industry, tell your attorney. He or she will work hard to keep any plea agreement on such terms that your employment consequences will be minimal.

Scholarships

In today economic climate, many people are going back to school and relying on federal and state scholarships to pay for tuition and living expenses along the way. It is important to know that conviction of a felony may make you ineligible for future financial aide. In particular, conviction of a controlled substance felony will make you lose any federal funding that you have previously been awarded.

 

There is more to being convicted of a crime than just jail time, probation, and fines and costs, but if you are actively involved in the plea negotiation process and inform your attorney of any special circumstances that may apply to your case, then your attorney can work hard to help minimize the collateral consequences of your conviction or guilty plea.

 

 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Burglary Case

St. Joseph, Michigan, Burglary Case Upheld by Court of Appeals

Burglary Case
The Michigan Court of Appeals published a case recently, People v. Osby, which upheld the conviction of a defendant for breaking into several motor vehicles in and around St. Joseph, Michigan, and for possessing burglar tools, a felony punishable by up to ten (10) years in prison.

The defendant was arrested after police reviewed surveillance footage showing an African American man walking toward the vehicle of one of the victims from a white van. That white van was later tracked to a motel where the defendant was staying. A search of the defendant hotel room revealed items belonging to the victims and marijuana. The police arrested the defendant and discovered a window punch when they searched him.

A window punch, or window hammer, is a small, sharply pointed object that is used to shatter the window of a vehicle to provide quick access or escape. It is often carried by emergency personnel and police responding to automobile accidents. On appeal, the defendant questioned whether this window punch could be considered a burglar tool to support a conviction of possession of burglar tools contrary to MCL 750.116. The statute makes it a crime to knowingly possess any device, tool, or substance used for forcing or breaking open any building, room, vault, safe or other depository to steal property therein. The defendant argued that the statute did not apply to automobiles. However, the court of appeals ruled that a depository was a catch-all phrase which included motor vehicles or any place a person would leave money or valuables for safekeeping. Because the average person locks his or her car doors assuming the contents of the vehicle will be safe, the court determined that a vehicle can be considered a depository under the statute.

The defendant appealed on several other grounds as well, but the court of appeals found no error in the conviction or sentence.

Read the statute and the Michigan Court of Appeals’ opinion on the State of Michigan website.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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about talking to the police

Talking to the Police

about talking to the police
The State of Michigan Court of Appeals recently published a case, People v. Vaughn, which dealt, in part, with the defendant’s motion to suppress statements made to the police because he had not been read his constitutional Miranda warnings. The court determined that, under the circumstances, the defendant was not in custody, so the statements could be used at trial.

Read the case on the State of Michigan website.

This is a problem that often finds its way into the Peter J. Johnson Law Office. Contrary to what all the crime dramas out there would have you believe, the police do not usually put suspects under arrest at the first meeting, or before they ask any questions. Instead, there is often an investigation stage where several suspects may be contacted and questioned without anyone being taken into police custody.

So what do you need to know about talking to the police?

First, you should know that you have a right to refuse to talk to the police, and to ask them to leave. A lot of people are concerned about what happens if they do not immediately cooperate with the police and do whatever is asked of them. Don’t be. The police know that you have a right to ask them to leave or to stop talking to them. The key is to be respectful. Politely say that you would rather not talk to the officer right now and kindly ask him or her to leave. It is your right to do so.

Second, you should know that if you let the police into your home, they are allowed to use anything that is in “plain view” against you at trial. If you choose to speak to the police, suggest that you will come to the station instead. This has the added benefit that anything they say to you or you say to them can be recorded. That way your attorney can review it later if necessary.

Third, you have the right to talk to an attorney before you talk to the police. This applies both before and after an arrest. If the police want to speak to you about a crime and you feel uncomfortable, you may ask them to postpone the interview until you have had an opportunity to talk to an attorney. Many times, lawyers will be able to listen to your story and advise you as to whether it is a good idea to talk to the police officer. Peter J. Johnson frequently facilitates meetings between police and his clients when it is in their best interests.

Fourth, if you are arrested, or otherwise taken into custody prior to questioning, the police must read you your constitutional Miranda rights. Unlike in the crime dramas, this does not have to happen the minute they place you under arrest, but it is supposed to happen before they ask you any questions. If they do not read you your rights, then your attorney can move to suppress any statements you made to the police before they read you your rights. Your remedy if you are not read your rights is that the statements cannot be used at trial.

Finally, it is rarely a good idea to talk to the police if you believe you may be a suspect in a crime. Although there are times when doing so can point them in another direction, often what you say can be used against you later in ways you did not expect at the time. This is why it is always a good idea to contact an attorney if you believe you are a suspect. An attorney can help to facilitate the interview, as described above, or can help to protect your rights if you decide not to talk to the police.

What a defendant says to the police is often one of the most important pieces of evidence for the prosecution at trial. This is why it is important for you to know how to react if the police come to talk to you. Be calm, be polite, but be smart about what you say and when you say it. It can make all the difference.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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basic driver improvement

Keep Points Off Your License

basic driver improvement
A brand new law was approved by the Governor on December 16, 2010, which can help you keep points off your license and keep your insurance rates low after receiving a ticket. The law requires the Secretary of State to offer a basic driver improvement course to certain individuals after receiving notification of a moving violation. The Secretary of State is required to send you a Notice of Eligibility for this course after they are informed you have received a traffic ticket (unless you fall within certain critera explained below). If you receive a Notice of Eligibility you have 60 days to successfuly complete the basic driver improvement course before points will be assessed against your license. The cost of this course cannot exceed $100.00.

You will not be eligible to take the basic driver improvement course if:

You have a commercial driver’s license.
The moving violation you were charged with is a criminal offense (this includes misdemeanors and felonies).
The moving violation you were charged with is would result in 4 or more points being added to your driving record.
You were charged with:
Careless or Negligent Driving,
Speeding in a Construction Zone,
Speeding in a School Zone, or
Failure to Stop for a School Bus.
You were charged with more than 1 moving violation as a result of the same incident.
Your license was suspended in connection with the moving violation.
You have previously completed a basic driver improvement course.
You already have 3 or more points on your driving record.
Your license is restricted, suspended, or revoked, or you were driving without a license.

If you receive a Notice of Eligibility and successfully complete a basic driver improvement course within the 60 days, then no points should be added to your driving record, and your insurance company will not be provided any information with respect to that moving violation.

This is a one-time deal. Once you complete the basic driver improvement course, you can never take advantage of this statute again, but it should help you in the unlucky event you are charged with a traffic offense.

You can read the original language of the statute on the State of Michigan website. For more information, see the Secretary of State website.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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