October 2022 - Mini-Oral Argument on Application Granted

People v Steven Lee Montez, MSC No. 164243 (COA No. 353119), MOAA granted September 23, 2022

• Beck/References to Acquitted Conduct in PSIR

The Court directed the parties to address: (1) whether references to acquitted conduct in the defendant’s presentence investigation report (PSIR) violated his right not to be sentenced on the basis of conduct of which he was acquitted, as articulated in People v Beck, 504 Mich 605 (2019); and (2) whether the defendant’s trial attorney rendered ineffective assistance by failing to object to the references to acquitted conduct in the PSIR.

People v Damon Earl Warner, MSC No. 163805 (COA No. 351791), MOAA granted September 23, 2022

• Amend Information to Add Charges Dismissed by Order of Nolle Pros/False Confessions Expert

The Court directed the parties to address: (1) whether, under MCL 767.29 and MCR 6.112(H), a trial court may amend an information, over objection, to include a charge that was dismissed pursuant to an order of nolle prosequi, without beginning the proceedings anew, “unless the proposed amendment would unfairly surprise or prejudice the defendant,” MCR 6.112(H); (2) if so, whether the Eaton Circuit Court erred by doing so in this case and whether any error was harmless; and (3) whether the trial court abused its discretion by denying the defendant’s motion to appoint an expert in false confessions.

In re Forfeiture of 2006 Saturn, MSC No. 164360 (COA No. 357183), MOAA granted September 28, 2022

• Forfeiture of Vehicle Under MCL 333.7521(1)(d)

The Court directed the parties to address whether a genuine issue of material fact exists regarding whether the claimant’s 2006 Saturn Ion was, on June 24, 2019, “used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of [a controlled substance].” MCL 333.7521(1)(d) (emphasis added). 

In re Parole of Richard Allen McBrayer, MSC No. 164311 (COA No. 357720), MOAA granted September 30, 2022

• Consideration of Prior Appellate Decisions in Parole Board Decisions 

The Court directed the parties to address: (1) whether “substantial and compelling” circumstances existed such that the Parole Board erred in failing to deviate from the guidelines; (2) whether and to what extent the Parole Board was required to consider the appellate opinions reversing its prior grants of parole to the appellant; and (3) whether and to what extent those prior appellate opinions should inform review of the Parole Board’s most recent exercise of discretion. 

People v Milton Lee Lemons, MSC No. 163939 (COA No. 348277), MOAA granted September 30, 2022

• Biomechanical Engineering Evidence

The Court directed the parties to address whether the Court of Appeals erred in holding that: 1) the Wayne Circuit Court did not abuse its discretion by concluding that the biomechanical engineering evidence and testimony was inadmissible, or by excluding alternate causation theories that purportedly lacked scientific or factual support; (2) the Wayne Circuit Court correctly denied the defendant relief despite its erroneous decision to exclude the defense experts’ opinions regarding the validity of SBS diagnoses, reliance on the triad as a diagnostic tool, and the possibility of choking as an alternative cause of death; or (3) the new evidence presented by the defendant was insufficient to create a reasonable probability of a different outcome on retrial and warrant relief under People v Cress, 468 Mich 678, 692 (2003). 

People v Seth Vincent Horton, MSC No. 164520 (COA No. 359012), MOAA granted October 5, 2022

• Admissibility of Video Depicting Defendant in Jail Garb 

The Court directed that parties to address whether the trial court abused its discretion in ruling that a video recording of the preliminary examination is admissible at trial, despite the fact that the defendant is depicted in the recording dressed in jail garb. 

People v Matthew Scott Duff, MSC No. 163961 (COA No. 354406), MOAA granted October 5, 2022

• Custody / Partially Blocked Vehicle / People v Anthony (2019)

The Court directed the parties to address: (1) whether the totality of the circumstances surrounding the officers’ conduct of partially obstructing the defendant’s ability to move his vehicle would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter, see People v Lucynski, ___ Mich ___ (Docket No. 162833, decided July 26, 2022); and (2) whether People v Anthony, 327 Mich App 24, 40 (2019), correctly held that “only if officers completely block a person’s parked vehicle with a police vehicle is the person seized.” 

People v Brandi Marie Hull, MSC No. 164277 (COA No, 354667), People v Anthony Ray Hull, MSC No. 164195 (COA No. 354735), MOAA granted October 7, 2022

• Right to Resist Arrest on Reasonable Belief the Arrest was Unlawful

The Court directed the parties to address: (1) whether a person has a right to resist arrest where an arresting officer’s actions cause the person to reasonably believe the arrest is unlawful, Drennan v People, 10 Mich 169, 177 (1862); and (2) whether the prosecution presented sufficient evidence that defendants resisted, obstructed, or opposed a police officer, People v Vasquez, 465 Mich 83 (2001). The Court further ordered the parties in Docket No. 164195 to address whether a person may aid another in resisting an unlawful arrest and the parties in Docket No. 164227 to address whether counsel was ineffective for failing to request that the jury be instructed that a person has a right to resist arrest where an arresting officer’s actions cause the person to reasonably believe the arrest is unlawful.

by John Zevalking
Associate Editor