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May 2015

May 2015
28
May 28, 2015

MSC holds that MRE 803(7) permits a defendant to introduce evidence of an undocumented report of sexual abuse made to a school official

In People v. Marshall, No. 150165, the Michigan Supreme Court vacated the opinion of the Court of Appeals and held that MRE 803(7) permits a defendant to introduce evidence that a report of sexual abuse purportedly made to a school official was never documented. The defendant was convicted of multiple counts of criminal sexual conduct. At trial, the defendant sought to introduce evidence that it was never documented that the victim reported sexual abuse to her teacher years earlier, as the victim had testified she did. The trial court did not allow the evidence. On appeal, the defendant argued that the evidence was admissible under MRE 803(7), which allows introduction of “[e]vidence that a matter is not included in the memoranda, reports, records, or data compilations . . . to prove the nonoccurrence or nonexistence of the matter” where such records are kept in the regular course of business. The Court of Appeals held in an unpublished opinion that MRE 803(7) does not apply to evidence of absence of an entire record.

May 2015
28
May 28, 2015

MSC holds that MRE 803(7) permits a defendant to introduce evidence of an undocumented report of sexual abuse made to a school official

In People v. Marshall, No. 150165, the Michigan Supreme Court vacated the opinion of the Court of Appeals and held that MRE 803(7) permits a defendant to introduce evidence that a report of sexual abuse purportedly made to a school official was never documented. The defendant was convicted of multiple counts of criminal sexual conduct. At trial, the defendant sought to introduce evidence that it was never documented that the victim reported sexual abuse to her teacher years earlier, as the victim had testified she did. The trial court did not allow the evidence. On appeal, the defendant argued that the evidence was admissible under MRE 803(7), which allows introduction of “[e]vidence that a matter is not included in the memoranda, reports, records, or data compilations . . . to prove the nonoccurrence or nonexistence of the matter” where such records are kept in the regular course of business. The Court of Appeals held in an unpublished opinion that MRE 803(7) does not apply to evidence of absence of an entire record.

May 2015
28
May 28, 2015

MSC directs trial court to correct judgment of sentence that lists four first-degree murder convictions when only two people were murdered

In People v. Perry, No. 150147, the Michigan Supreme Court remanded to the trial court, directing it to correct the judgment of sentence to reflect two first-degree murder convictions instead of four because only two people were murdered.  The court relied on People v. Orlewicz, 293 Mich App 96 (2001), in which the Court of Appeals held that convicting a defendant of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single person violates double jeopardy protection.

May 2015
28
May 28, 2015

MSC holds that presentence report must include sentencing guideline calculation for all offenses of conviction

In People v. Alfaro, No. 150437-8, the Michigan Supreme Court vacated the defendant’s sentence because the presentence report did not include the sentencing guidelines calculation for one of the defendant’s offenses of conviction as required by MCL 771.14(2)(e). The defendant was convicted of both first-degree criminal sexual conduct and second-degree criminal sexual conduct, and the presentence report included only a guidelines calculation for the first-degree conviction. The Court of Appeals previously held in an unpublished opinion that since there were multiple concurrent convictions, only the guidelines range for the highest-class felony applies, and the trial court therefore did not need to articulate reasons for an upward departure from the guidelines sentence for the second-degree conviction. The Michigan Supreme Court, by contrast, held that the court must calculate the guidelines range for both convictions because it is authorized to impose a consecutive sentence rather than a concurrent sentence, since the acts of criminal sexual conduct occurred in the same transaction.

May 2015
28
May 28, 2015

MSC grants mini-oral argument on whether reasonable mistake of age is a defense to third-degree criminal sexual conduct involving a 13 to 16-year-old

In People v. Kilgo, No. 151076, the Michigan Supreme Court granted mini-oral argument on the application for leave to appeal, directing the parties to brief the issue of whether its decision in People v. Cash, 419 Mich 230 (1984) remains viable. In People v. Cash, the Michigan Supreme Court held that a reasonable mistake of age is no defense in a prosecution for third-degree criminal sexual conduct involving a 13 to 16-year-old. The court also directed the parties to brief whether the denial of the ability to assert a reasonable mistake of age defense in this context violates due process or equal protection principles.

May 2015
26
May 26, 2015

MSC grants mini-oral argument to consider whether defendant can be charged with felony under Election Code for forging signatures on nominating petition

In People v. Hall, No. 150677, the Michigan Supreme Court granted mini-oral argument to consider whether to grant leave to appeal on the issue of whether the Election Code’s forgery and nomination petition provisions conflict and therefore the defendant may only be charged under the misdemeanor statute. The defendant was charged with forgery under MCL 168.937, after he forged signatures for a district judge candidate’s nominating petition. He was originally charged with multiple felony counts of forgery under MCL 168.937 of the Election Code.  This is a felony punishable by a fine not exceeding $1,000.00, and/or by imprisonment for a term not exceeding 5 years.   The trial court and the Michigan Court of Appeals held, however, that Hall should have been charged with misdemeanor forgery under MCL 168.544c(9) of the Election Code. The Supreme Court will hear mini-oral argument to determine whether to these two criminal provisions of the Election Code conflict, and Hall should therefore be charged with the misdemeanor offense, rather than the felony offense. The court also directed the parties to address whether the rule of lenity applies in this case and whether charging the defendant with felony forgery under MCL 168.937 violates his due process rights because the warning on the nominating petitions lists forgery as a misdemeanor offense.

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