(An unpublished opinion is not binding as precedent but may have persuasive value in court.)

People v Nadeau

Concluding defendant failed to show a reasonable probability different conduct by his trial counsel regarding the alleged potential witnesses would have changed the result of the trial, the court held the trial court did not err in denying his motion for a new trial based on, inter alia, ineffective assistance of counsel. Defendant contended his trial counsel provided ineffective assistance by failing to interview potential witnesses, not trying to contact the witnesses until the day of trial, and not calling one of the witnesses who appeared at trial. Defendant was convicted after a jury trial of operating a motor vehicle while intoxicated, third offense. He claimed the witnesses would have been able to testify he was seen in the car earlier on the day of the incident and a third party was driving. However, the testimony of a police officer and another witness indicating they saw, in broad daylight, defendant driving the car with no passenger, and the evidence of his BAC level at the time, constituted overwhelming evidence of defendant’s guilt. Further, the court found defendant’s version of events, involving another supposed driver who fled the scene and jumped into a nearby river, “quite far-fetched.” The testimony of the potential witnesses about what they saw earlier in the day would have done little or nothing to undermine the testimony of the officer and the other witness the defendant was driving the car at the time of the incident. The court also rejected his prosecutorial misconduct claim based on his argument the assistant prosecutor improperly prosecuted his case in violation of MRPC 1.9 because he was involved in defending defendant in an earlier criminal case. Since the earlier case involved unrelated charges, this case did not involve “the same or a substantially related matter” as the prior case. Defendant’s conviction and sentence were affirmed. People v Nadeau, case no. 270090, released December 20, 2007.

People v. Palm

Although the defendant had standing to challenge his arrest, no Fourth Amendment violation occurred, and the court reversed the trial court’s order suppressing the BAC results, reversed the order of dismissal, and remanded for further proceedings. At about 1:45 AM, a sheriff’s deputy saw defendant’s vehicle traveling 44 mph in a 25 mph zone. He followed defendant and saw him quickly pull into a residential driveway and park. The deputy parked his car in front of the house, turned on his overhead lights, and saw defendant take a few quick steps toward the house. The deputy ordered defendant to stop, he did so, and began to walk toward the deputy. The two met and spoke. The deputy smelled a “very strong” odor of alcohol on defendant’s breath and noted his eyes were glassy. Placing a hand on defendant’s upper arm, the deputy escorted him to a location near the patrol car on the street. The deputy arrested defendant after he failed two sobriety tests and a PBT. Defendant later submitted to a BAC test, which resulted in the charge of OUIL, third offense. He moved to suppress the BAC tests and argued his arrest violated the Fourth Amendment. The trial court agreed, granted the motion, and dismissed the case. The court of appeals held the deputy had probable cause to believe defendant committed a traffic violation where he observed and registered defendant’s excessive speed in the residential neighborhood. Thus, the deputy could lawfully stop defendant to run a check on him and the vehicle, to issue a citation, and to ask reasonable questions concerning the violation. The court rejected defendant’s argument the deputy had no right to walk up the driveway to talk to or detain him. A driveway is a public place and there is no reasonable expectation of privacy in an open driveway, particularly if someone else owns it. The deputy lawfully stopped defendant and smelled alcohol on his breath, which was enough to create a reasonable suspicion to justify sobriety tests. After the deputy performed the PBT, confirming defendant’s intoxication, he lawfully arrested him. The case was reversed and remanded. People v. Palm, case no. 272901, released November 29, 2007.

People v Omecinskyj

Since the record showed defendant did not regurgitate or smoke, and because he was handcuffed and seat-belted in the back of the patrol car he could not have placed anything in his mouth, the court concluded any technical violation of the applicable administrative rule controlling BAC tests was harmless and there was no basis for invalidating the results of his BAC test. Defendant argued the trial court erred in denying his motion to suppress the results of his BAC test because the officer who administered it was driving his patrol car during part of the 15-minute observation period prior to administering the test required by the administrative rule. However, defendant admitted he had no recollection of placing anything in his mouth during the 15 minutes before the test, and the court concluded the trial court properly found there was no indication the test results were invalid. The court also rejected defendant’s argument the trial court erred in denying his motion to quash all the charges against him on the basis the stop was illegal because the officers had no reasonable suspicion he had committed a crime and had insufficient time to see any traffic violation. Reviewing the record, the court found there was ample evidence to show not only the officers had sufficient time to observe defendant’s violation of MCL 257.700(b), but also he had time to comply with the statutory requirement to dim his high-beam headlights in the presence of oncoming traffic. The record did not support defendant’s claim the officers were traveling so fast he could not respond to their visual signal to dim his headlights. Since the officers personally observed a violation of MCL 257.700(b), they were justified in stopping defendant’s vehicle. Defendant’s convictions of third-degree fleeing and eluding, OWI, and reckless driving were affirmed. People v Omecinskyj, case no. 271184, released November 27, 2007.

People v. Foster

There was sufficient evidence to support the defendant’s conviction of vehicular manslaughter. Defendant contended the prosecutor failed to prove he proximately caused the victim’s death. However, a defendant’s conduct need only be “a” substantial cause of another’s death, not “the” proximate cause. His convictions arose from a traffic accident at an intersection. Defendant was driving on a street with a stop sign at the intersection. The other car had the right of way. Defendant’s car failed to stop at the stop sign and collided with the other car as it proceeded through the intersection. There was no dispute the defendant failed to stop at the intersection. His car struck the victim’s car with such force on the driver’s side both doors would not open. The paramedics who arrived at the scene testified the victim was unconscious, had massive head trauma, massive oral trauma, his pupils would not dilate, and the amount of blood coming from his mouth prevented intubation. The victim died several days later from intense swelling of the brain due to a closed head injury. Thus, the evidence was sufficient to enable the jury to find beyond a reasonable doubt the defendant was a substantial cause of the victim’s death. The case was affirmed. People v. Foster, case no. 27366, released November 20, 2007.

People v. Newton

The district court properly bound the defendant over on charges of OUIL, third offense and operating a motor vehicle while license suspended, second offense. However, the trial court erred by granting defendant’s motion to quash on the basis he denied driving the car. The district court properly found the prosecution presented sufficient circumstantial evidence the defendant was operating the car shortly before the police officer arrived at the scene. This evidence along with the undisputed evidence defendant’s BAC was .16, supported a conclusion probable cause existed to believe defendant drove the car while intoxicated. The fact contradictory evidence—defendant denied driving the car and the car keys were not found on his person—existed did not warrant dismissal of the charges. The prosecution was not required to negate every reasonable theory consistent with innocence. Conflicts in the evidence are to be resolved by a jury, and the trial court should not substitute its judgment for that of the district court. The case was reversed and remanded for reinstatement of the charges. People v. Newton, case no. 273318, released November 6, 2007.

People v. Adams

The court of appeals reversed the defendant’s OUIL, second offense conviction, concluding it could not be reasonably disputed his trial counsel’s performance involving “a strategy of nonparticipation, was deficient and objectively unreasonable” and defendant was prejudiced by it. Defendant’s counsel allegedly urged the best defense strategy was for counsel not to participate in the trial while continuing to represent defendant and remaining in the courtroom. Counsel believed this tactic would increase the likelihood of success on appeal regarding the trial court’s denial of a motion to adjourn the trial, and mounting an actual defense would be problematic for reasons related to the request to adjourn. Counsel did not participate in the trial except for the submission of some jury instructions. The trial court inquired during the trial, and defendant explained he understood what counsel was doing, although he could not specifically state he agreed with or consented to it – he essentially deferred to counsel’s expertise. The trial proceeded and defendant was convicted. The court of appeals did not view the case as one where defendant was technically giving up his right to counsel, and there was no proper waiver of the right. Rather, the court viewed the case “as one arguably giving rise to a waiver of an appellate claim of ineffective assistance of counsel on the basis of defendant’s implicit consent to defense counsel’s misguided trial tactics.” However, assuming a defendant can effectively waive his or her right to an ineffective assistance of counsel claim, the record did not support a finding the defendant understandingly waived the right. The record did not even indicate defendant expressly agreed with or consented to counsel’s trial strategy. The case was reversed and remanded for a new trial. People v. Adams, case no. 268761, released on October 30, 2007.

People v. Bach

Even if the court assumed the defendant’s first OWI conviction was obtained in violation of her right to counsel, since her plea in the present OWI 3d case was accepted without her moving to set aside the prior conviction, under Roseberry she could no longer make a collateral attack on her prior underlying OWI conviction. Defendant pleaded guilty to OWI 3d and was sentenced to 23 to 60 months’ imprisonment. The trial court denied her motion to withdraw her guilty plea, and the court affirmed. Defendant contended her first OWI conviction was obtained in violation of her right to counsel because her request for appointed counsel was denied and the conviction led to five days’ imprisonment. Thus, she asserted the prior conviction could not be used to support her OWI 3d conviction and the trial court erred in denying her motion to withdraw her plea. However, pursuant to Roseberry a collateral attack on a prior conviction underlying a present charge cannot be made after a defendant’s guilty plea to the present charge is accepted. Once the transcript regarding the prior conviction was filed in the trial court, the trial court accepted defendant’s guilty plea without further discussion with the parties. The trial court did not abuse its discretion in denying defendant’s motion to withdraw her guilty plea. The court also rejected defendant’s claim her trial counsel was ineffective for allowing her to plead guilty to OWI 3d without first challenging her underlying OWI conviction. The case was affirmed. People v. Bach, case no. 2689633, released October 30, 2007.

People v. Joslin

Since the disputed evidence was relevant to the issue of the person actually driving the truck when it was observed swerving on the road and to whether defendant was intoxicated, and assuming an objection to the disputed evidence would have been sustained by the trial court, defendant failed to establish the trial result was unreliable and the result would have been different but for counsel’s failure to object. Defendant’s conviction arose from a late-night incident in which a witness observed a truck being driven erratically. A public safety officer responding to the reported incident saw the truck do a U-turn, then park. The officer parked his patrol car, walked up to the truck, and saw defendant in the driver’s seat, and his six-year old son sitting in the passenger seat. Because defendant smelled of alcohol, the officer performed field sobriety tests on him. Concluding defendant was drunk, the officer arrested him. A blood test later showed his BAC was .12. The prosecutor charged defendant with resisting arrest and OUIL with a juvenile passenger. Defendant contended his counsel was ineffective for failing to object to testimony provided by two officers describing defendant’s belligerent conduct after his arrest, including a remark about his son being placed in foster care. The prosecutor was required to prove defendant was operating a vehicle while intoxicated with a person under the age of 16 in the vehicle. The disputed evidence was relevant to the prosecutor’s burden of proving the elements of the crime. The case was affirmed. People v. Joslin, case no. 271168, released October 25, 2007.

People v. Burris

Based on the definition of “willful or wanton misconduct” in Jennings, the court held a defendant can be convicted of reckless driving if he intentionally disregarded the safety of persons or property or if he acted with indifference as to whether his conduct would endanger the safety of persons or property. Defendant was charged and convicted after he was stopped by a police officer for operating a motorcycle at a speed of 100 mph on 8 Mile Road. After the officer gave him two citations, defendant drove off at a high rate of speed and forced a pedestrian to “dance” around him to avoid being hit. The officer again pursued defendant and estimated his speed to be 100 mph. Defendant turned down a side street, which led to a high school. He stopped his bike and took off his helmet. Defendant then saw the officer turn the corner onto the side street. The officer again detained defendant. He contended his conviction for reckless driving was not supported by sufficient evidence because there was no evidence he knowingly disregarded the safety of persons or property. The officer testified after he issued defendant the two citations, defendant drove his motorcycle at 100 mph on 8 Mile Road where the posted speed limit was 45 mph. The officer also testified a pedestrian crossing 8 Mile Road was forced to “dance” out of defendant’s way. Defendant admitted he did not see the pedestrian. Thus, there was sufficient evidence to find beyond a reasonable doubt the defendant engaged in willful or wanton disregard for the safety of persons or property to convict him of reckless driving. The case was affirmed. People v. Burris, case no. 271790, released October 23, 2007.

People v. Middler

There was sufficient evidence to support the defendant’s convictions of OUIL – third offense and operating a motor vehicle with a suspended license. The parties stipulated to the fact that defendant was found to have a BAC of 0.16, which is twice the legal limit of .08. As a result, the outcome of the trial depended on the jury’s determination of how defendant arrived at the residence of S., her former boyfriend. At trial, the officers both testified defendant said she “took the back roads” to get to S.’s on the night in question. Defendant never said or implied someone else had driven her there, and there was no evidence indicating anyone else had been present at the scene that night. Although defendant’s daughter, B., testified she drove defendant to S.’s residence and was then picked up by her then boyfriend in a separate vehicle, one of the officers testified the only tire tracks seen in the snow that night belonged to defendant’s truck, and there was only one set of foot prints seen in the snow, which also presumably belonged to her. Similarly, another officer testified the only tire tracks she observed belonged to defendant’s truck and the other officer’s vehicle. Additionally, B. contradicted herself during the course of her testimony, where she initially stated she collided with S.’s vehicle fairly hard upon arriving at the residence and then later said she did not really hit the vehicle very hard. The testimony of the officers along with the appearance of the scene of the crime, cast doubt on the credibility of B.’s testimony. A rational jury could have concluded the testimony of B. was not credible based on the inconsistencies. As a result, the jury could have concluded defendant drove herself to S.’s on the night in question, thus satisfying the “operating” element of OUIL. The case was affirmed. People v. Middler, case no. 27309, released October 23, 2007.

People v. Swift

Concluding the blood sample seized in Jagotka II (People v Jagotka, 461 Mich 274; 622 NW2d 57 (1999)) and analyzed to determine the blood alcohol level of the defendant there was similar to the motor vehicle involved in the fatal collision here, the court held the police did not violate the statutory requirements of MCL 780.655 by releasing the vehicle prior to trial in this case. Defendant argued that the failure to preserve the vehicle violated the statutory requirements of the Warrant Act. “Like the testing of a blood sample, a vehicle inspection would naturally result in specific findings or the generation of a report. And like the blood sample in Jagotka II, the vehicle, itself, would not have been produced at trial.” Rather, like the laboratory report admitted at trial in Jagotka II, “the findings and testimony of the expert who actually inspected the vehicle was produced at trial in this case.” The court also held sufficient evidence supported defendant’s convictions of manslaughter and driving under the influence of a controlled substance causing death. While the victim’s driving into the intersection might have been negligent, “it was not grossly negligent and was foreseeable based on an objective standard of reasonableness.” Drivers regularly pull out in front of other cars, and a reasonable driver is aware a sudden stop might be necessary to avoid an accident. While defendant had the right of way, “he did not have the right to be driving 30 miles per hour or more in excess of the posted speed limit after having consumed marijuana.” A reasonable jury could have determined defendant’s driving was the factual and proximate cause of the fatal accident and the victim’s act was not a superseding, intervening cause. Defendant’s convictions were affirmed. People v. Swift, case no. 271105, released October 18, 2007.

People v. Cullen

When the trial court imposed a 60-day jail sentence “subject to review,” meaning the trial court would consider at a later date whether it would require the defendant to serve the jail sentence, it in effect imposed a suspended sentence in violation of MCL 257.625(9)(c). Thus, the sentence was invalid and resentencing was required. The prosecutor appealed from a sentence of three years’ probation, with 60 days to be served in jail “subject to review,” for defendant’s plea-based conviction of OUIL third. OUIL third is a Class E felony subject to the statutory guidelines. The guidelines as scored placed defendant in the D-II category, for which the minimum sentence range is 7 to 23 months. Thus, the trial court could impose a sentence with a minimum term within the range of 7 to 23 months, or an intermediate sanction, which could include up to a year in jail. However, “if the Michigan vehicle code…mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the Michigan vehicle code…authorized the sentencing judge to impose a sentence that is less than that minimum sentence, imposing a sentence that exceeds the recommended sentence range but is less than the mandatory minimum sentence is not a departure” from the guidelines. Section 625(9)(a) provides two alternate mandatory minimum sentences, either of which may be imposed. The provisions of MCL 769.34, including § 34(2), apply to a sentence imposed under MCL 257.625(9)(c). In addition, a term of imprisonment under subdivision (b) or (d) shall not be suspended. The suspension of a sentence temporarily or indefinitely postpones the judgment of the court. The case was reversed and remanded for resentencing in accordance with MCL 257.625(9)(c). People v. Cullen, case no. 272986, released October 4, 2007.