The Michigan Supreme Court released seven criminal law opinions in July. These cases discuss issues pertaining to voir dire, the reversal of a plea as a result of inaccurate information, the standard for reversing a parole board’s decision to grant parole, the ineffective assistance of counsel for failing to request the lesser-included offense, the forfeiture doctrine, identification of a defendant at trial, appealing within-guidelines sentences, and voluntariness of a witness statement.
People v Yarbrough
In People v Yarbrough, No 161513, ___ Mich ___, ___ NW2d ___ (July 14, 2023), during voir dire, the trial judge informed counsel that they were not permitted to peremptorily challenge any seated juror on whom the party had already passed. Defense counsel objected to this limitation and asked for a new venire, which was denied. Defendant was tried by the empaneled jury and was convicted.
Is an abuse of discretion by the trial court restricting peremptory challenges subject to a harmless-error analysis or does it requires automatic reversal?
Holding and Analysis
Automatic reversal is necessary. The court held that the denial or deprivation of a criminal defendant’s peremptory strike of a prospective juror is a structural error warranting automatic reversal and is not harmless-error review.
In People v Kabongo, 507 Mich 78, 968 NW2d 264 (2021), the Michigan Supreme Court addressed whether the trial court’s erroneous ruling pertaining to an objection to a peremptory challenge under Batson v Kentucky, 476 US 79 (1986), was a structural error that required automatic reversal or whether it was subject to harmless-error review. The court split 3-3 on the issue, so neither opinion had precedential effect. For a discussion of Kabongo, see Criminal Law Update 2021: Michigan Case Update. Agreeing with then-Chief Justice McCormack’s opinion in Kabongo, the court in Yarbrough held that “Michigan caselaw has recognized that the appropriate remedy for the erroneous denial of a peremptory challenge is automatic reversal even though this right is not constitutionally mandated. … The appropriate remedy for an error is determined not by the source of the legal principle, but by the impact of the error and its redressability.” Yarbrough, slip op at *12.
The court reasoned that the harmless-error standard, in the context of peremptory challenges, is unworkable. “To attempt to assess how a trial would have differed if the jury composition had been altered requires an act of pure speculation, making it an exercise in futility to ever establish that the error was more probably than not outcome-determinative.” Id., slip op at *14–15. The court also stressed the importance of not hampering peremptory challenges, noting that, as new prospective jurors are introduced, additional questions may arise that lead to additional information relevant to previously seated individuals. “The system imposed here cut short defendant’s ability to engage in this ongoing strategic monitoring, contrary to the mandate of MCR 2.511(E).” Id., slip op at *16.
People v Guyton
In People v Guyton, No 163700, ___ Mich ___, ___ NW2d ___ (July 18, 2023), defendant pleaded guilty to one count of armed robbery. As part of the plea, the prosecution agreed to recommend a sentence within the sentencing guidelines minimum range, to dismiss charges in an unrelated matter, and to dismiss a supplemental information charging defendant as a third-offense habitual offender. The trial court sentenced defendant to the top of the agreed-on guidelines range. After the plea was accepted and defendant was sentenced, it was discovered that defendant was eligible only to be charged as a second-offense habitual offender. Defendant sought to either withdraw her plea or be resentenced. The requests were denied by both the trial court and the court of appeals.
Can a plea be understood or knowingly entered into when it was, in large part, induced on the basis of an inaccurate understanding of the minimum and maximum possible prison sentences?
Holding and Analysis
No. The court held that the prosecutor’s mistake in identifying defendant as a third habitual offender instead of a second habitual offender made her plea involuntary and unknowing due to its significant effect on her perceived minimum sentence should she proceed to trial.
The court focused not on “whether defendant received a benefit from the bargained plea agreement, but rather whether defendant was adequately informed and aware of the ‘relevant circumstances’ surrounding the entering of the plea.” Guyton, slip op at *6. The court found that awareness of the accurate habitual offender enhancement is a relevant circumstance to accepting a plea and that this information should be conveyed to the defendant during their plea proceedings, even if not explicitly required by the court rules.
Here, the court noted that defendant was led to believe that a guilty plea would result in the dismissal of a third-offense habitual offender sentence enhancement. This had a significant effect on what defendant perceived her minimum sentence could have been if she proceeded to trial. This misinformation led defendant to believe that her plea insulated her minimum sentence from 42 additional months, when in reality it insulated her from potentially only 21 additional months. “Given this fundamental misapprehension of the likely consequences and relevant circumstances of her guilty plea, we conclude that defendant’s plea was not understandingly or voluntarily made.” Id., slip op at *12.
The court rejected the dissent’s opinion that this ruling “opens the floodgates” to any misinformation provided to a defendant being sufficient to set aside a plea. The court responded that “[n]ot every mistake or misunderstanding in the plea process will rise to the level of being involuntary or unknowing, but because the legal error in this case was both clear and significant, we find that defendant’s plea was involuntary and unknowing.” Id.
Finally, the court held that when a prosecutor seeks an enhanced sentence, it is their responsibility to ensure that a defendant receives notice and that the enhancement is legally permissible. This “obligation does not fall upon defendants to remember the specific details of their prior record.” Id., slip op at *13.
Macomb Cty Prosecutor v McBrayer (In re Parole of McBrayer)
In In re McBrayer, No 164311, ___ Mich ___, ___ NW2d ___ (July 24, 2023), McBrayer pleaded guilty to two counts of first-degree criminal sexual conduct and was sentenced to prison terms of 20 to 40 years. McBrayer became eligible for parole in January 2010 and the parole board granted him parole numerous times. However, on each occasion, either the prosecutor or victim appealed and the decision was reversed. Most recently, McBrayer again scored high on the parole-probability guidelines and was paroled. The court of appeals reversed the parole board’s decisions concluding in a split decision that there were substantial and compelling reasons to depart form the parole guidelines, emphasizing the heinous nature of the crimes and the effect on the victim, among others.
Did the court of appeals impermissibly substitute its own judgment for that of the parole board?
Holding and Analysis
Yes. The court held that while the court of appeals majority opinion acknowledged that the parole board’s decisions are reviewed for abuse of discretion, the court’s analysis essentially reweighed the evidence without affording proper deference to the board as required under the scheme established by the legislature. “Reviewing courts must recognize that, even if there are substantial and compelling reasons to deny parole, a grant of parole is not an automatic abuse of discretion.” In re McBrayer, slip op at *7.
Under the version of MCL 791.233e(6) in effect at the time McBrayer committed his offenses, the court noted that the parole board may depart from the parole guidelines and deny parole with a “high probability” score when there are “substantial and compelling reasons” to do so. Id., slip op at *8. In a footnote, the court stated that the amended version of the statute, see 2018 PA 339, 2022 PA 28, narrowed the parole board’s ability to depart from the guidelines, but it did not alter the deferential review that reviewing courts must give to the board’s decisions. Id., slip op at *8 n23.
When reviewing a parole board’s decision, the court determined that there is a two-part analysis. First, “a reviewing court must consider whether there are substantial and compelling reasons to deny parole to a prisoner with a high-probability guidelines score.” Id., slip op at *9. If no proper reasons exist, departure is unwarranted. However, “if substantial and compelling reasons exist and the [p]arole [b]oard nonetheless granted parole, the second question is whether the choice not to depart constituted a clear abuse of discretion.” Id., slip op at *9–10. The parole board abuses its decision if it chooses an outcome that is beyond the range of “reasonable and principled outcomes.” Id., slip op at *10. The court further clarified that this analysis entitles the parole board great deference, and courts are prohibited from substituting their own judgment for that of the board’s discretion.
Applying this analysis, the court stated that the court of appeals “simply concluded that, because there were substantial and compelling reasons for departure from the parole guidelines, the [p]arole [b]oard had abused its discretion.” Id., slip op at *11. The court noted that the court of appeals failed to consider that the parole board supported its decision with a significant amount of relevant evidence that was favorable to McBrayer’s case for parole. While there can be reasonable disagreement, “the Legislature assigned to the [p]arole [b]oard, and not to the judicial branch, the authority to choose among reasonable and principled outcomes.” Id., slip op at *12. Ultimately, the court held that because the parole board’s determination was within the bounds of the law, it did not abuse its discretion by paroling McBrayer.
People v Yeager
In People v Yeager, No 164055, ___ Mich ___, ___ NW2d ___ (July 27, 2023), defendant was charged with and convicted of first-degree murder. At trial, the jury was given first- and second-degree murder jury instructions. On appeal, the court remanded the case to determine whether defendant was denied effective assistance of counsel based on the trial counsel’s failure to request a jury instruction on voluntary manslaughter as a lesser-included offense. The trial court granted a new trial, but the court of appeals reversed in an unpublished opinion.
Did trial counsel’s failure to request the jury instruction for the lesser-included offense of voluntary manslaughter constitute ineffective assistance of counsel?
Holding and Analysis
Yes. The court first noted that to obtain a new trial for ineffective assistance of counsel, a defendant must demonstrate (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for that deficient performance, there is a reasonable probability that the outcome would have been different. Trial counsel believed that their self-defense theory would render defendant’s actions unintentional and that a manslaughter instruction would therefore not be applicable because manslaughter required an intentional act. The court noted, however, that both murder and voluntary manslaughter are not distinguished by intent but by the element of malice. Therefore, according to the court, defense counsel failed to understand the difference between the two charges. Furthermore, the court found that a review of the facts demonstrated that a voluntary manslaughter instruction was supported by the evidence presented at trial. Based on this reasoning, the court held that the first prong was satisfied.
The court next held that defendant was prejudiced by the decision not to request the voluntary manslaughter instruction, satisfying the second prong. First, the court disagreed that People v Raper, 222 Mich App 475, 563 NW2d 709 (1997), governed. In Raper, the court found that the jury’s rejection of second-degree murder in favor of first-degree murder demonstrated an unwillingness to convict a lesser offense such as manslaughter. Similarly, in this case, the jury convicted defendant of first-degree murder despite a second-degree murder instruction being given. Based on the Raper rationale, a lesser-included jury instruction of voluntary manslaughter would not have made a difference because the jury showed a reluctance to convict on a lesser charge. Instead of following Raper, the court, citing People v Beach, 429 Mich 450, 418 NW2d 861 (1988), clarified that “a reviewing court must consider the specific circumstances of the case in concert with the relevant offenses and ask whether the distinctions between the particular charges suggest that a jury’s rejection of an intermediate charge demonstrates that the jury would have been unlikely to select a lesser charge.” Yeager, slip op at *14. The court held that the court of appeals erred to the extent that it found that Raper “created a bright-line rule under which the absence of a voluntary manslaughter instruction is automatically considered harmless if the jury was instructed on both first- and second-degree murder and convicted the defendant of first-degree murder.” Id., slip op at *15–16.
Applying Beach, the court held that the jury “could reasonably conclude that defendant’s actions were the result of provocation to a state of emotional excitement” such that the mens rea for voluntary manslaughter could reasonably be satisfied. Yeager, slip op at *16–17. The instructions given here, the court held, did not present the two differing states of mind required for murder and voluntary manslaughter. That “gap in information” was enough to undermine the confidence in the outcome of defendant’s trial. Id., slip op at *17.
Lastly, the court disagreed with the dissenting opinion that there was no prejudice because a rejection of adequate provocation is implicit in the finding of premeditation in first-degree murder. The court noted that voluntary manslaughter does not require an absence of malice but that the presence of adequate provocation excuses malice. Therefore, “[b]ecause first- and second-degree murder are not distinguished by mens rea, the jury’s finding of malice does not speak to what the jury might have done were it instructed on adequate provocation.” Id., slip op at *18. The court also rejected the dissent’s argument that premeditation and provocation are mutually exclusive, stating that “the jury’s finding of premeditation does not necessarily mean that it would have found an absence of adequate provocation had it been properly instructed.” Id., slip op at *19.
People v King
In People v King, No 162327, ___ Mich ___, ___ NW2d ___ (July 28, 2023), defendant, a few months into his trial, moved to terminate his relationship with the appointed attorney and requested to proceed in propria persona. After a hearing on the issue, the trial court granted defendant’s motion. On the first day of trial, defendant agreed to enter a no-contest plea in exchange for a Cobbs agreement that capped his minimum sentence. Advisory counsel handled the details of the sentencing arrangement, and the plea colloquy included multiple references to the advisory attorney as defendant’s “attorney,” although the court also noted that defendant represented himself.
Does the forfeiture doctrine as stated in People v Carines, 460 Mich 750, 597 NW2d 130 (1999), apply if a self-represented defendant fails to object when the trial court fails to obtain a valid waiver of the right to counsel?
Holding and Analysis
No. The court held that defendant was not required to affirmatively invoke his right to counsel to preserve that right. He was also not required to object to the invalid waiver of the right to counsel. “Absent a defendant’s valid waiver of their right to counsel, deprivation of counsel during critical stages of the criminal proceedings is a structural error subject to automatic reversal, even when a defendant formally requests to represent themself.” King, slip op at *1.
The court rejected the prosecutor’s argument that defendant is not entitled to relief because the error was extinguished by defendant’s plea agreement and because his standby counsel acted as trial counsel for Sixth Amendment purposes. The court held that a valid no-contest plea at a later stage of the proceedings does not necessarily cure the deficiencies at the previous waiver-of-counsel stage, especially with respect to whether defendant should have known to object to the deficient waiver. The court went on to note that having standby counsel present was not constitutionally sufficient.
Ultimately, the court concluded that “[d]efendant was not required to affirmatively invoke his Sixth Amendment right to counsel in order to preserve that right. Defendant was not required to object to the invalid waiver of the right to counsel, and the Carines forfeiture doctrine does not apply.” Id., slip op at *14.
People v Posey
In People v Posey, No 162373, ___ Mich ___, ___ NW2d ___ (July 31, 2023), four individuals were involved in a shooting: witnesses Byrd and Scott and the two defendants being tried. At trial, Byrd, for the first time in the case, identified defendant as one of the shooters. Scott, who had previously identified defendant to the police, did not identify defendant at trial. On appeal, the court concluded that reliability criteria could not be applied to Byrd’s identification because there was no improper law enforcement activity and no pretrial identification of defendant through an unnecessarily suggestive process.
Defendant was found guilty at trial. His guidelines range was a minimum of 225 to 562 months’ imprisonment. He was sentenced to serve 264 to 480 months. However, after a motion by both parties requesting resentencing, defendant’s guidelines were corrected to 171 to 427 months. The trial judge imposed the same sentence, which was still within the guidelines range.
(1) Was defendant denied his right to due process when the first time a witness identified defendant was at trial? (2) Were the requirements in MCL 769.34(10) that the court of appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, consistent with the Michigan Constitution and caselaw?
Holding and Analysis
(1) Identification of Defendant at Trial
Yes. As a matter of first impression, the court first sought to determine whether the same protections that apply to an in-court identification of a defendant that was preceded by an unnecessarily suggestive pretrial identification procedure apply to situations in which there was no pretrial identification. Distinguishing People v Barclay, 208 Mich App 670, 528 NW2d 842 (1995), and Perry v New Hampshire, 565 US 228 (2012), the court held that those cases “are only binding when there is some pretrial identification by the witness presenting identification evidence that was not improperly facilitated by a state actor.” Posey, slip op at *14. When there is no pretrial identification by the witness and identification evidence is presented for the first time to a jury, the court held that “the crux of the analysis cannot be on whether the police behavior was improper … . Rather, ‘reliability is the linchpin in determining the admissibility of identification testimony.’” Id., slip op at *15 (quoting Manson v Brathwaite, 432 US 98, 114 (1977)).
The court further held that a defendant’s due process rights are implicated when the prosecution conducts an unnecessarily suggestive in-court law enforcement procedure by obtaining an in-court identification of a defendant through a witness who was unable to previously identify a defendant prior to that in-court identification. As applied here, the court held that, even assuming that this procedure violated his due process rights, he is not entitled to a new trial because he has not met the requirements of showing plain error or ineffective assistance of trial counsel.
(2) Appellate Review of Within-Guidelines Sentences
No. The court overruled the portion of People v Schrauben, 314 Mich App 181, 886 NW2d 173 (2016), that states that the court of appeals must affirm a within-guidelines sentence unless a defendant asserts that inaccurate information was relied on by the trial court or that there was an error in scoring the guidelines. Similarly, the court held that the court’s decision in People v Lockridge, 498 Mich 358, 870 NW2d 502 (2015), mandates that the portion of MCL 769.34(10) requiring affirmation of within-guidelines sentences on appeal be struck down as unconstitutional. Finally, the court reaffirmed the holding in Lockridge, stating that the sentencing guidelines “are advisory in all applications, including on appeal.” Posey, slip op at *28.
Under Lockridge and People v Steanhouse, 500 Mich 453, 902 NW2d 327 (2017), the court held that “appellate courts must review all sentences for reasonableness, which requires the reviewing court to consider whether the sentence is proportionate to the seriousness of the matter.” Posey, slip op at *29 (quoting Steanhouse, 500 Mich at 473). The guidelines, the court went on to rule, continue to “remain important as an advisory resource for sentencing courts and continue to be a ‘highly relevant consideration’ on appeal.” Posey, slip op at *29 (quoting Lockridge, 498 Mich at 391).
People v Stewart
In People v Stewart, No 162497, ___ Mich ___, ___ NW2d ___ (July 31, 2023), an 18-year-old defendant allegedly aided and abetted two other men in a pair of armed robberies by serving as a getaway driver. A victim of one of the robberies was killed. Defendant was arrested and interrogated during the early hours of the morning. He admitted to driving the car involved in both robberies but denied knowing that the other two men had been armed and intended to commit robberies. Before trial, defendant moved to suppress the admission of his statements from the interrogation, arguing that they were involuntarily made because of coercive interrogation techniques and promises of leniency. The trial court denied this motion. In a jury trial, defendant was acquitted of murder and assault with intent to commit murder but was found guilty on all other charges.
Were defendant’s statements to law enforcement, made during an early hours interrogation, voluntary?
Holding and Analysis
No. The court held that defendant’s statements were involuntary and the trial court erred by failing to suppress them. The court first noted that, to determine whether a statement was involuntary because of state coercion, a reviewing court must consider “whether the totality of the circumstances surrounding the making of the confession indicates that it was freely and voluntarily made.” Id., slip op at *5 (quoting People v Cipriano, 431 Mich 315, 334, 429 NW2d 781 (1988)). The court specifically directed consideration of numerous factors, including
the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse.
Stewart, slip op at *5 (quoting Cipriano, 431 Mich at 334).
Applying those factors, the court held that the overall effect on defendant’s free will of the circumstances considered collectively—“defendant’s age, the timing of the interrogation, the implications of leniency, the use of false evidence, and the language and tone employed by the officers—was such that defendant’s statements were not ‘freely and voluntarily made.’” Stewart, slip op at *23 (quoting Cipriano, 431 Mich at 334). The court went on to state that, as the use of these involuntary statements violated defendant’s right to due process, his conviction could stand only if the prosecutor could prove the error was harmless beyond a reasonable doubt, which the prosecutor was unable to do. The court ultimately held that defendant was entitled to a new trial excluding his involuntary statement.