MSC to consider whether failure to properly swear the jury requires new trial

In People v. Cain, No. 149259, the Michigan Supreme Court granted the prosecutor’s application for leave to appeal the Court of Appeals’ May 2, 2014 order which granted the defendant’s motion for peremptory reversal based on failure to properly swear the jury. The Court of Appeals found that failure to properly swear a jury is considered a structural error that requires a new trial under People v. Allan, 299 Mich App 205; 829 NW2d 319 (2013). The Supreme Court will consider whether the Court of Appeals correctly concluded that the failure to properly swear the jury is a structural error that warrants a new trial, even if the parties failed to offer a timely objection. The Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file briefs amicus curiae.
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People v. Smart back at MSC: Court grants mini-oral argument to consider if a prosecuting attorney must be present for statements made in plea discussions to be excluded under MRE 410(4)

The Michigan Supreme Court has granted oral argument to consider the prosecutor’s application for leave to appeal in People v. Smart, No. 149040.  Smart concerns the question of whether, for purposes of excluding a defendant’s statement made during plea negotiations under MRE 410, the plea negotiations must directly involving a prosecuting attorney. Here, the defendant made numerous incriminating statements during meetings between the defendant, his attorney, and the detective.  At least one of the meetings was scheduled at the defendant’s request because he sought to secure a better plea deal.  The trial court held the defendant’s statements inadmissible under MRE 410 because the statements were made during the course of plea negotiations.  The Court of Appeals affirmed.  However, the court did not address the issue of whether a prosecuting attorney must be directly involved in the discussions, because it found that the prosecutor had conceded that some of the defendant’s statements were excluded under MRE 410(4), even though no prosecutor was present at the meetings.

This is the second time that Smart has appeared on the Michigan Supreme Court's docket.  In February 2014, the Court affirmed the order of the trial court suppressing the incriminating statements made by the defendant, finding that the defendant had reasonably believed his statements were made in the course of negotiating a plea deal.  Our post regarding this February 2014 ruling is here.
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MSC holds that a meth lab is not an incendiary device used as a weapon under OV 2

In People v. Jackson, No. 149173, the Michigan Supreme Court ruled that Offense Variable (“OV”) 2, for Lethal Potential of Weapon Possessed or Used, must be scored zero when an incendiary device is not used as a weapon, but as part of a methamphetamine lab. The defendant was convicted of manufacturing a controlled substance stemming from operation of a meth lab.  At sentencing, she was scored under OV 2 for possession of an incendiary device.  She appealed her sentence to the Court of Appeals, which denied leave to appeal.  In lieu of granting leave to appeal, the Supreme Court vacated the defendant’s sentence and remanded for resentencing with instructions to score zero points for OV 2. The Court also found that the trial court properly assigned a score of five points under OV 15, which applies if either the offense involved delivery or possession with intent to deliver of a controlled substance, or if the offense involved possession of a controlled substance under circumstances that indicate trafficking. Since there was evidence of delivery of drugs, the score was appropriate. The court refused to grant leave to appeal on any other ground.
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COA Holds No-Fault Statute of Limitations Protects Insurers after One Year

In Jesperson v Auto Club Ins. Ass’n, No. 315942, the Michigan Court of Appeals held that a first-party no-fault suit must be filed within one year of the accident that caused the injury.  Further, if the plaintiff received benefits from the insurer prior to filing suit, the one-year statute of limitations will only extend if the benefits were received within one year of the accident. Read More

COA: Misdemeanor drug paraphernalia conviction is a controlled substance offense for purposes of PRV 5

In People v. Stevens, No. 312325, the Court of Appeals held that a misdemeanor conviction for possession of drug paraphernalia should be scored under prior record variable (“PRV”) 5 of the Michigan Sentencing Guidelines. Because “drug paraphernalia” is defined under the Public Health Code as instruments used to manufacture or ingest a “controlled substance,” the court found that a misdemeanor conviction for possession of drug paraphernalia is a controlled substance offense for the purposes of PRV 5. Criminal practitioners should take note of this sentencing guideline determination when considering potential challenges to their client’s pre-sentence investigation report.
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