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CRIMINAL LAW UPDATES Genesee Bar Association May 2, 2013 Anne Yantus

CRIMINAL LAW UPDATES Genesee Bar Association May 2, 2013 Anne Yantus. US SUPREME COURT. MIRANDA - CUSTODY. Prisoner is NOT in Custody for Miranda purposes even if incarcerated and taken to isolated area of prison for questioning so long as a reasonable person would feel free

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CRIMINAL LAW UPDATES Genesee Bar Association May 2, 2013 Anne Yantus

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  1. CRIMINAL LAW UPDATESGenesee Bar AssociationMay 2, 2013 Anne Yantus

  2. US SUPREME COURT

  3. MIRANDA - CUSTODY Prisoner is NOT in Custody for Miranda purposes even if incarcerated and taken to isolated area of prison for questioning so long as a reasonable person would feel free to stop the questioning and return to cell. Howes v Field, 132 S Ct 1181 (2012)

  4. EYEWITNESS IDENTIFICATION The admission of a suggestive identification procedure violates Due Process only if the police orchestrated the suggestive identification. Perry v New Hampshire, 132 SCt 716 (2012)

  5. DOUBLE JEOPARDY When the judge discharged the jury without taking a formal partial verdict after the foreperson had earlier announced the jury had unanimously agreed the defendant was not guilty of the highest charge but the jury was deadlocked on a lesser charge, defendant may be retried on highest charge as foreperson’s announcement was not an acquittal of the higher charge. Blueford v Arkansas, 132 S Ct 2044 (2012)

  6. DOUBLE JEOPARDY Double Jeopardy bars retrial after a Directed Verdict of Acquittal so long as the decision is a substantive determination that the prosecution’s evidence fails to prove the offense even if it is based on an error of law as to the facts the prosecution must prove. Evans v Mich, 133 S Ct 1069 (2013).

  7. EFFECTIVE ASSISTANCE OF COUNSEL The Sixth Amendment provides a remedy for a defendant who rejected a plea due to deficient representation during plea bargaining and who was subsequently convicted and sentenced after a fair trial (Cooper) or who subsequently accepted a less favorable offer (Frye), if

  8. EFFECTIVE ASSISTANCE OF COUNSEL If the defendant can show: 1) he would have accepted the offer but for the deficient performance, 2) the prosecutor and judge would not have reneged on the deal, and 3) the defendant would have actually received the benefit of the deal. Lafler v Cooper, 132 S Ct 1376 (2012) Missouri v Frye, 132 S Ct 1399 (2012)

  9. WHAT CONSTITUTES A SEARCH? The government engaged in a Fourth Amendment SEARCH in the trespassory sense by installing a GPS tracker on defendant’s car and monitoring his movements for a month without a warrant (therefore no need to decide if gov’t violated Defendant’s reasonable expectation of privacy). United States v Jones, 132 S Ct 945 (2012)

  10. DRUG SNIFFING DOGS Bringing a drug-sniffing dog to defendant’s front door and having the dog sniff the area amounted to a SEARCH in the Jones trespassory sense because it exceeded the license residents customarily give to the public to approach their front door. Florida v Jardines, 133 S Ct 1409 (2013)

  11. PROBABLE CAUSE In order to establish that the alert of a narcotics dogs on the exterior of a vehicle provides probable cause to search the vehicle, the prosecution need only show that the dog’s alert is a reliable indicator of narcotics under the totality of the circumstances (prosecution does not necessarily have to produce detailed data about dog’s past training and performance) Florida v Harris, 133 S Ct 1050 (2013)

  12. WARRANTLESS SEARCH – EXIGENCY EXCEPTION The fact that alcohol in the blood dissipates is not, without more, an exigency that excuses the requirement of a warrant to draw blood for testing in drunk driving cases. Missouri v McNeely, 133 SCt 1552 (2013)

  13. MILLER V ALABAMA (2012) MANDTORY LWOP for Juvenile Homicide Offender Is UNCONSTITUTIONAL • Juv LWOP will be UNCOMMON • Not retroactive in Michigan • Hearing re: Parolable or Not

  14. MICHIGAN SUPREME COURT What’s Pending: Scoring of Offense Variable 7 CVR and Ex Post Facto Clause IAC re 25-Year Minimum for CSC 1

  15. SENTENCING GUIDELINES

  16. OV 1 – AGGRAVATED USE OF WEAPON Methadone, Heroin, Meth NOT Used as a Weapon = 0 pts DRUGS & WEAPON in home, Defendant NOT PRESENT = 0 pts

  17. OV 3 – BODILY INJURY Injuries to CO-DEFENDANT or DEFENDANT : Yes (People v Laidler) Injuries to FIREFIGHTERS: Yes (People v Fawaz)

  18. OV 4 Serious Psych Injury No Points – No Evidence – Cannot Assume (People v Lockett) 10 Pts: Nervous & Scared during Bank Rob 10 Pts: Angry, Hurt, Violated and Frightened 10 Pts: Bad Dreams, Not Feel Safe

  19. OV 5 – Serious Psych Injury to FAMILY No Error in Scoring Zero (0) Points for : DISBELIEF, GRIEF, ANGER AND HEARTBREAKover loss of newborn grandchild. People v Portellos

  20. OV 7 – Excessive Brutality, Torture Leave Granted in MSC: People v Glenn, 295 Mich App 529 (2012) (need egregious conduct, copius or plentiful amounts of additional fear) People v Hardy, 491 Mich 934 (2012) (def racked shotgun during carjacking)

  21. OV 9 Number of Victims • YES – Firefighters Placed In Danger (Fawaz) 2. YES – Officer who died and neighborhood resident who was nearby (Bowling) • YES – Persons in Close Proximity to Physically Threatening Situation (in Prison) (Gratsch)

  22. OV 9 (Con’t) • NO - community at large re: B & E of school building (Carrigan) 3. NO – two other girls in room during CSC that began as consensual sex (Phelps)

  23. OV 10 – VULNERABLE VICTIM • YES – Child Depicted in Child Porn, even if only downloading (Needham) • NO – Run of the Mill Planning (Laidler) • NO – Past or Present Dating (unless cohabitating or familial) (Brantley) • YES – Predatory Conduct with minor, teen (Lockett; Johnson)

  24. OV 13 PATTERN OF CRIMES 1. Sentencing Offense Must Be Part of Pattern (Nelson) • Crimes Against Person, Prop, Drugs (but NOT Conspiracy) (Bonilla-Machado; Pearson) 3. OK – Multiple Convictions from Same Incident (Gibbs) 4. OK – Some Evidence Dismissed Bank Robbery (Earl)

  25. OV 14 - Leader • Multiple Offenders May Include One Not Charged w/ Crime People v Jones 2. YES – Gave Orders, Used Gun People v Gibbs • YES – Older, Drove Car, Purchased Liquor People v Lockett

  26. OV 19 – LEAVE GRANTED and DENIED Ten Points under OV 19 Where Defendant Leaves Scene Before Police Arrive and Does Not Turn Self in for Questioning for 15 Days? People v Johnny Lee Williams

  27. OV 19 (Con’t) NO – Interference w/ Emergency Medical Services (Portellos) NO – False Statement after Anesthesia in Hospital (Portellos) YES – Sentencing Offense is Perjury (Underwood) YES - Flight from Police After Order to Stop (Ratcliff - new case)

  28. OV 19 – People v Ratcliff “Defendant obviously cannot be faulted for [co-defendant driver’s] decision to disregard the order [to freeze],” but proper to score where defendant fled on foot after vehicle stopped. People v Ratcliff, __ Mich App __ (303950, 3/5/13)

  29. NEW FROM MICH LEGISLATURE 1. Child Abuse Penalties Revised (7/1/12) 2. Three Strikes Law (10/1/12) 3. Swift and Sure Probation (1/9/13) 4. DV 3rd Penalty Increased (4/1/13) 5. Arson First – Fifth Degree (4/3/13)

  30. Child Abuse Penalties(Eff 7-1-12) First-Degree Child Abuse: Was: 15 years Now: Life or Term Years Second-Degree Child Abuse: Was: 4 years Now: 10 / 20 years (2nd offense)

  31. DV THIRD PENALTIES(Eff 4-1-13) • Domestic Violence Third Offense – new maximum of 5 YEARS. 2. May Use Successful DV Diversion under MCL 769.4a to Support Later DV RECIDIVISTCharge.

  32. ARSON FIRST DEGREE(EFF 4/3/13) Maximum Penalty: Life or Term of Years Either: Arson of Multi-Unit Bldg OR Arson of Bldg, Structure, Real Prop Resulting in Physical Injury

  33. THREE STRIKES LAW(effective 10-1-12)

  34. HABITUAL FOURTH OFFENSE Mandatory Min 25 years for HO4 if: Current Offense is “Serious” Offense One of Three Priors is “Listed” Offense

  35. THREE STRIKES LAW Effective: OCTOBER 1, 2012

  36. SERIOUS Offenses for HO4 Murder 2, Manslaughter, AWIM Assault with intent GBH, Maim Assault with intent Armed or Unarmed Rob Armed Robbery, Carjacking Kidnapping, Kidnap under 15 yr CSC 1st, 2nd, 3rd, Assault w/i Penetration Prisoner Take Hostage, Mayhem

  37. SERIOUSOffense CONSPIRACY TO COMMIT ALL “SERIOUS” OFFENSES

  38. LISTED Prior Offense Murder 2, Manslaughter, AWIM ATTEMPT MURDER SOLICITATION MURDER Assault with intent GBH, Maim, FELONY Assault with intent Armed or Unarmed Rob FELONIOUS ASSAULT

  39. LISTED Prior Offense Armed Robbery UNARMED ROBBERY Carjacking, Kidnapping, Kidnap under 15 CSC 1st, 2nd, 3rd and Assault w/i Penetration TORTURE

  40. LISTED Prior Offense Prisoner Take Hostage Mayhem RIOT IN STATE PRISON ASSAULT OF EMPLOYEE DURING ESCAPE

  41. LISTED Prior Offense AGGRAVATED STALKING FELONY STALKING, VICTIM UNDER 18 RESIST AND OBSTRUCT, DEATH RESIST AND OBSTRUCT, SERIOUS IMPAIR IMPAIRED DRIVING, DEATH

  42. LISTED Prior Offense HOME INVASION FIRST, SECOND CHILD ABUSE FIRST, SECOND VULNERABLE ADULT, FIRST, SECOND FLEE AND ELUDING FIRST, DEATH FLEE AND ELUDING SECOND, INJURY

  43. LISTED Prior Offense ARSON DWELLING ANY DRUG OFFENSE OVER 4 YEAR MAX CCW CARRYING WEAPON W/ UNLAWFUL INTENT FELONY FIREARM, SECOND OR HIGHER

  44. LISTED Prior Offense FIREARM POINTED W/OUT MALICE, DEATH INTENTIONAL DISCHARGE, VEHICLE INTENTIONAL DISCHARGE, DWELLING INTENTIONAL DISCHARGE EMERGENCY OR LAW ENFORCEMENT OFFICER

  45. LISTED Prior Offense Plus: ALL ATTEMPTS TO COMMIT LISTED OFFENSE

  46. Mandatory 25 Years? Current Offense: Felonious Assault Priors: AR, AWIM, AWGBH

  47. Mandatory 25 Years? Current Offense: AWGBH Priors: CCW, FF, FA

  48. Mandatory 25 Years? Current: Conspiracy Armed Robbery Prior Offenses: CCW, PWID under 50; Unarmed Robbery

  49. The End.

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