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News

Now Pay Delinquent Real Property Taxes Online
Eaton County Treasurer, Bob Robinson, announced this month that Eaton County property owners have a new and convenient way to make delinquent tax payments.  The treasurer’s office has contracted with Official Payments, a leading provider of electronic payment solutions to offer delinquent tax payment processing over the Internet through credit card and debit card transaction.  Visa, Discover, and MasterCard debit and credit cards will be accepted. This new service offers taxpayers a fast and efficient way to pay online and reduces manual processing time in the treasurer’s office.

“Through a unique partnership with Official Payments and BS&A Software, taxpayers can get online, pay, and process their delinquent tax payments instantly, in real time,” said Robinson.  “This is part of our ongoing work to increase efficiency in the treasurer’s office.  It can also help folks avoid last minute additional fees and interest on their past due real property taxes.”

For more information, go to http://www.eatoncounty.org/departments/county-treasurer 


New Legislation Extending Property Tax Exemptions to Qualified Disabled Veterans

Click here for more information.


Solar Power Energy Generation Statistics

Click here to view how many kwh have been produced by Eaton County's Solar Panel.

 


 

Domestic Violence

 

UPDATED: November 27, 2013

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Domestic Violence statutes
  Adrianne Van Langevelde
Adrianne Van Langevelde

Domestic Violence Specialist

info

Help for domestic violence victims

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What does it mean?

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Did you know ... ?

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What to do?

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Links

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Michigan's Domestic Violence Statutes


Michigan laws define "domestic violence" as an assault or an assault & battery by a

ballpink spouse
ballpink former spouse
ballpink person residing or having resided in the same household as the victim
ballpink person having a child in common with the victim
ballpink person with whom he/she has or has had a dating relationship

Michigan has two levels of domestic violence:

Domestic Assault   [MCL 750.81]
Victim need not be injured!
Criminal penalties (+ possible probation, counseling, community service, etc.):
1st conviction (misdemeanor): up to 93 days in jail and/or $500 fine
2nd conviction (misdemeanor): up to 1 year in jail and/or $1,000 fine
3rd or more conviction (felony): up to 5 years in prison and/or $5,000 fine

 

Aggravated Domestic Assault   [MCL 750.81a]
Victim must receive serious or aggravated injuries (such as injuries requiring immediate medical attention)
Criminal penalties (+ possible probation, counseling, community service, etc.):
1st conviction (misdemeanor): up to 1 year in jail and/or $1,000 fine
2nd conviction (felony): up to 5 years in prison and/or $5,000 fine

Since 2002, a person arrested for Domestic Violence cannot be released from jail on an interim bond set by the jail. The person must be held until he or she can be arraigned, or has an interim bond set by a judge or district court magistrate. The judge or magistrate's interim bond can include conditions, such as having no contact with the victim. (See 2001 PA 198.)

Other, more serious assault crimes can occur in domestic relationships -- such as Assault With a Dangerous Weapon (felony - up to 4 years and/or $2,000), Assault With Intent to Commit Great Bodily Harm Less Than Murder (felony - up to 10 years or $5,000), Assault With Intent to Commit Murder (felony - Life, or any number of years), etc. -- but they are not specifically charged as "domestic 'versions'" of those crimes, with different "domestic" penalties.

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What Does "Domestic Violence" Mean?


Domestic Violence is defined by the Penal Code as an assault or an assault & battery that is committed by (i) a spouse, (ii) a former spouse, (iii) a person residing or having resided in the same household as the victim, (iv) a person having a child in common with the victim, or (v) a person with whom he/she has or has had a dating relationship.

Domestic Violence has been defined by the Domestic Violence Act as a non-self defense act that:

  • causes or attempts to cause physical or mental harm to a family or household member,
  • places a family or household member in fear of physical or mental harm,
  • causes or attempting to cause a family or household member to engage in involuntary sexual activity by force, or duress, and/or
  • engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

The Domestic Violence Act defines "family or household member" as (i) a spouse or former spouse, (ii) a person with whom the defendant resides or has resided, (iii) a person with whom the defendant is or has engaged in a sexual relationship, (iv) a person to whom the defendant is related or was formerly related by marriage, or (v) a person with whom the defendant has had a child in common, or (vi) the minor child of one of these people.

Domestic violence has also been viewed as a learned pattern of physical, verbal, sexual and/or emotional behaviors in which one person in a relationship uses force and intimidation to dominate or control the other person. The partners may be married or not married; heterosexual, gay or lesbian; living together, separated or dating. Domestic violence occurs in all ages, races, genders and social classes.

The violence takes many forms and can happen all the time or once in a while. Examples of domestic violence are:

ballpink physical assault or abuse --- hitting, pushing, shoving, slapping, choking, punching, kicking, grabbing, beating, throwing her down, tripping, twisting arms, biting, using a weapon

ballpinkthreatened physical harm

ballpinksexual assault or abuse --- unwanted, forced sexual activity, making her do sexual things against her will, physically attacking the sexual parts of her body, etc.

ballpinkstalking

ballpinkintimidation

ballpinkemotional abuse --- mind games, name-calling, put-downs, making the victim feel bad about herself

ballpinkjealousy --- a sign of possessiveness and lack of trust

ballpinkcontrolling behavior and forced isolation (from family or friends) --- controlling what the victim does, who the victim sees or talks to, where the victim goes, relocating to a remote area, etc.

ballpinkeconomic abuse --- preventing the victim from getting or holding a job, and controlling the purse-strings by withholding money, taking her earned money, giving her an allowance, making her ask for money, etc.

An important step to help yourself or someone you know prevent or stop violence is recognizing the warning signs listed on the Violence Wheel.

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fist-r If you are in an abusive relationship ...pointing


 

You are not alone!
You are not to blame!
You can get help!

ballpink Get medical attention if you have been physically injured.

ballpink Save evidence to document the abuse (medical records, photographs of injuries and damage to your property, etc.).

ballpink Make a safety plan, which may include figuring out the "warning signs" that come before abuse:

  • protect your children
  • work out signals with neighbors to call the police
  • ask a friend or relative to stay with you
  • decide where you can go and what to take with you if you must leave (money, important documents, spare clothes, car keys, etc.)
  • [Also, review our safety plan brochure.]
ballpink Report domestic violence and stalking to the police!They can & will:
  • protect you from immediate danger, and help you and your children get out of the house safely;
  • arrest the abuser without a warrant when there is reasonable cause to believe that an assault has taken place or that the abuser has violated a Personal Protection Order or a restraining order;
  • advise you of available shelter programs and other services in your area;
  • write out a police report which can be used to help prove the abuse occurred and show good cause for a judge to grant a personal protection order or a restraining order.
    If you have a PPO, which the defendant is violating, download our Stalking Victim's Log! acrobat

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    info

    Resources Available for
    Domestic Violence Victims




    Get Crime Victim Forms & Brochures
    at our
    Downloads page!
      
    See our Crime Victim Assistance Resources pages
    for more resources in Michigan, and nationally
      

     


     

     

    Police

      If your situation is an emergency, call 911!

      Otherwise, call the nearest Eaton County police department.

     

     

    Shelters

     

    ballpink24 hour confidential crisis hotline

    ballpinkshelter for victims and their children

    ballpinkcrisis intervention

    ballpinkinformation and referrals

    ballpinklegal advocacy

    ballpinkhousing assistance

    ballpinktransportation

    ballpinkchild care

    ballpinkindividual counseling and support groups

    ballpinkassistance in developing a safety plan.

     

      Domestic violence shelters can provide safe, short-term housing, information, and assistance in considering all the options available to victims. They can also help break down the isolation victims have experienced in their abusive relationships and provide support from others who have been through similar experiences. Shelters provide a variety of supportive services which are confidential and free of charge:

       

      SHELTERS IN & AROUND EATON COUNTY
      S.A.F.E. Place
      (269) 965-SAFE (7233) [Crisis Line]
      (888) 664-9832 [Crisis Line / Toll-Free]

      (269) 965-6093
      (269) 966-2503 [Fax]
      PO Box 199
      Battle Creek, MI 49016
      SERVICES:Advocacy, shelter, and information to survivors of domestic violence.
      logo safe place
      SIREN / Eaton Shelter
      (517) 543-4915 [24-hr Crisis Line]
      (800) 899-9997 [24-hr Crisis Line]
      (517) 543-0748 [Office]
      P.O. Box 293
      245 S. Cochran
      Charlotte, MI 48813
      SERVICES:Emergency shelter, transitional housing, crisis counseling, etc to homeless families & battered women in Eaton County. Also, 24-hour crisis line, weekly support groups, referrals to legal assistance for abused women (available for residents and non-residents of the shelter).
      siren eaton shelter
      Green Gables Haven
      (800) 304-5445 [Toll-Free]
      (269) 945-4777 [Office]
      E-mail: greengableshaven@sbcglobal.net
      P.O. Box 388
      Hastings, MI 49058
      SERVICES:Green Gables Haven provides a temporary, secure, nurturing environment and support to enable victims of domestic violence in Barry County to make appropriate life-altering changes.
      GGH offers shelter for an abused person with their children for up to 4 weeks; access to the shelter 24-hours/day; access to clothing, personal hygiene items, food and/or emergency transportation while in the shelter; advocacy to assist in legal, medical and social matters; counseling, support groups, information and referrals; children's activities and groups; and mentoring programs.
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      Eve, Inc. (End Violent Encounters)
      [formerly called the Council Against Domestic Assault, or CADA]
      URL: www.eveinc.org
      (888) 796-5522 [24-hr Crisis Line / Toll-Free]
      (517) 372-3382 [Office]
      (517) 372-0024 [Fax]
      P.O. Box 14149
      Lansing, MI 48901
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      MSU Safe Place
      (517) 372-5572 [24-hr Crisis Line]
      (517) 355-1100
      SERVICES:Advocacy, shelter info, 24-hour support line, individual counseling, women's relationship group, support group. Community & corporate education. Batterer counseling & referral. MSU Safe Place is for MSU students, faculty, staff, retirees or their partners, and children who are experiencing an emotionally, physically or sexually abusive relationship. All services are free and confidential.
      msu safe place

     

    Hospitals

    • EATON RAPIDS COMMUNITY
      1500 S. Main, Eaton Rapids, MI
      Phone: (517) 663-2671

     

    • HAYES-GREEN BEACH
      321 Harris St., Charlotte, MI 48813
      Emergency Room: (517) 543-9507
      www.HGBhealth.com

     

    • INGHAM REGIONAL MEDICAL CENTER / GREENLAWN
      401 Greenlawn, Lansing, MI 48910
      Emergency Department: (517) 334-2286
      General Information: (517) 334-2121
      www.irmc.org

     

    • INGHAM REGIONAL MEDICAL CENTER / PENNSYLVANIA
      2727 S. Pennsylvania, Lansing, MI 48910
      Phone: (517) 372-8220
      www.irmc.org

     

    • SPARROW
      1215 E. Michigan Ave., Lansing, MI
      Phone: (517) 483-2700
      www.sparrow.com

     

    • ST. LAWRENCE
      1210 W. Saginaw, Lansing, MI
      Phone: (517) 372-3610
      www.sparrow.com
    •  

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    Did You Know ... ?

     

    ... domestic violence affects a large percentage of our community?

    • 1 in 4 women will experience domestic violence. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence" (2000)); National Coalition Against Domestic Violence)
    • An estimated 1,300,000 women are victims of physical assault by an intimate partner each year. ("Costs of Intimate Partner Violence Against Women in the United States", 2003. Centers for Injury Prevention and Control. Atlanta, GA; National Coalition Against Domestic Violence)
    • A woman is beaten every 15 seconds. (Bureau of Justice Statistics, "Report to the nation on Crime and Justice. The Data." Washington DC Office of Justice Program, US Dept. of Justice. Oct 1983)
    • The majority (73%) of family violence victims are female. Females were 84% of spousal abuse victims, and 86% of abuse victims in dating relationships. (US Dept of Justice, Bureau of Justice Statistics, "Family Violence Statistics" June 2005; National Coalition Against Domestic Violence)
    • Domestic violence is the leading cause of injury to women between ages 15 and 44 in the United States - more than car accidents, muggings, and rapes combined. (Uniform Crime Reports, Federal Bureau of Investigation,1991)
    • Females who are 20-24 years of age are at the greatest risk for intimate partner violence. (US Dept of Justice, Bureau of Justice Statistics, "Intimate Partner Violence In the United States" December 2006; National Coalition Against Domestic Violence)
    • Historically, females have been most often victimized by someone they knew. (US Dept of Justice, Bureau of Justice Statistics, "Criminal Victimization, 2005" September 2006; National Coalition Against Domestic Violence)
    • 28% of high school and college students surveyed said that they had experienced violence in a dating relationship. (Levy, Barry (1991). Dating Violence: Young Women in Danger, Seattle, WA, Seal Press)
    • 43% of teenage girls (age 14-17) report knowing someone their age who has been hit or beaten by a boyfriend. (Children Now/Kaiser Permanente poll, December 1995)
    • One in 6 women and one in 33 men have experienced an attempted or completed rape. (US Dept of Justice, "Prevalence, Incidence, and Consequences of Violence Against Women" November 1998; National Coalition Against Domestic Violence)
    • Sexual assault is reported by 33% to 46% of women who are being physically assaulted by their husbands. (American Academy of Pediatrics, Committee on Adolescence. Sexual Assault and the Adolescent. Pediatrics. 1994.)
    • Nearly 7,800,000 women have been raped by an intimate partner at some point in their lives. ("Costs of Intimate Partner Violence Against Women in the United States", 2003. Centers for Injury Prevention and Control. Atlanta, GA; National Coalition Against Domestic Violence)
    • 1 in 12 women and 1 in 45 men will be stalked in their lifetime. (Tjaden & Thoennes (1998), "Stalking in America", National Institute for Justice; National Coalition Against Domestic Violence)
    • 81% of women stalked by a current or former intimate partner are also physically assaulted by that partner, and 31% are also sexually assaulted by that partner. (Tjaden & Thoennes (1998), "Stalking in America", National Institute for Justice; National Coalition Against Domestic Violence)
    • In 55% of the cases where men are assaulting their partners, they are also assaulting their children. The battered mother may be suffering from physical and psychological injuries to the point that she cannot meet the needs of her children appropriately. (Murray A. Straus and Richard J. Gelles, Physical Violence in American Families, 1990.)
    • Battered women are more likely to suffer miscarriages and to give birth to babies with low birth weights. (Surgeon General, United States, 1992)
    • 63% of the young men between the ages of 11 and 20 who are serving time for homicide have killed their mother's abuser. (March of Dimes, 1992)


    ... assaults against females are under-reported to police?

    • Only about ¼ of all physical assaults, 1/5 of all rapes, and ½ of all stalkings against females by intimate partners are reported to the police. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence" (2000); National Coalition Against Domestic Violence);
    • Domestic violence is one of the most chronically under-reported crimes. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence" (2000); National Coalition Against Domestic Violence);
    • Rape remains the most under-reported violent crime in America. Only 16%, or approximately one of every six rapes, are ever reported to the police. Of the reported rapes, one quarter were reported to police more than 24 hours after the rape occurred. (National Victim Center and Crime Victims Research and Treatment Center, "Rape in America: A Report to the Nation", 1992)
    ... battering is not just a "momentary loss of temper?"
    • "One in five women victimized by their spouses or ex-spouses report they had been victimized over and over again by the same person." (The Basics of Batterer Treatment, Common Purpose, Inc., Jamaica Plain, MA)
    • If violence occurs once in a dating relationship, it is likely to occur again. (Levy, Barry (1991). Dating Violence: Young Women in Danger, Seattle, WA, Seal Press)
    • Battering is the establishment of control and fear in a relationship through violence and other forms of abuse. The batterer uses acts of violence and a series of behaviors, including intimidation, threats, psychological abuse, isolation, etc. to coerce and to control the other person. The violence may not happen often, but it remains as a hidden (and constant) terrorizing factor. (Uniform Crime Reports, Federal Bureau of Investigation, 1990)


    ... domestic violence frequently produces serious injuries?

    • Domestic violence is the leading cause of injury for women age 15 to 44. More women are injured from domestic violence than rapes, muggings and auto crashes combined.
    • Michigan State Police statistics show that a Michigan woman is killed by a partner or former partner every 5 days.
    • Almost 1/3 of female homicide victims are killed by an intimate partner, according to police records. (FBI, Uniform Crime Reports "Crime in the United States, 2000" (2001); National Coalition Against Domestic Violence)
    • 76% of female homicide victims had been stalked by the person who killed them. (McFarlane, et al, (1999), "Stalking and Intimate Partner Femicides" National Coalition Against Domestic Violence)
    • Less than 1/5 of victims reporting an injury from an intimate partner sought medical treatment following the injury. (US Dept of Justice, Bureau of Justice Statistics, "Intimate Partner Violence in the United States"e; December 2006; National Coalition Against Domestic Violence)
    • Intimate partner violence results in more than 18,500,000 mental heath care visits each year. ("Costs of Intimate Partner Violence Against Women in the United States", 2003. Centers for Disease Control & Prevention, National Centers for Injury Prevention and Control, Atlanta, GA; National Coalition Against Domestic Violence)
    • In 1996, approximately 1,800 murders were attributed to intimates. The victim was female in almost 75% of the cases. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Costs of Intimate Partner Violence Against Women in the US" (2003)
    • 20% of female homicide victims are between 15-24 years old. (Barry Levy (1993). In love and Danger, Seattle, WA, Seal Press)


    ... intimate partner violence has a large economic impact on our nation?

    • The cost of intimate partner violence exceeds $5.8 billion each year, $4.1 billion of which is for direct medical and mental health services. ("Costs of Intimate Partner Violence Against Women in the United States", 2003. Centers for Disease Control & Prevention, National Centers for Injury Prevention and Control, Atlanta, GA; National Coalition Against Domestic Violence)
    • Victims of intimate partner violence lost almost 8 million days of paid work because of the violence perpetrated against them by current of former husbands, boyfriends and dates. This loss is the equivalent of more than 32,000 full-time jobs, and almost 5.6 million days of household productivity as a result of the violence. ("Costs of Intimate Partner Violence Against Women in the United States", 2003. Centers for Disease Control & Prevention, National Centers for Injury Prevention and Control, Atlanta, GA; National Coalition Against Domestic Violence)
    • There are 16,800 homicides, and $2.2 million (medically treated) injuries due to intimate partner violence annually, which costs $37 billion. ("The Cost of Violence in the United States", 2007. Centers for Disease Control & Prevention, National Centers for Injury Prevention and Control, Atlanta, GA; National Coalition Against Domestic Violence)


    ... intimate partner violence has a significant effect on children -- the next generation of parents?

    • Witnessing violence between one's parents or caretakers is the strongest risk factor of transmitting violent behavior from one generation to the next. (Break the Cycle web site; National Coalition Against Domestic Violence)
    • Boys who witness domestic violence are twice as likely to abuse their partners and children when they become adults. (Stauss, Gelles and Smith (1990), "Physical Violence in American Families: Risk Factors and Adaptation to Violence&wuot; in 8,145 Families. Transaction Publishers; National Coalition Against Domestic Violence)
    • 30% to 60% of perpetrators of intimate partner violence also abuse children in the household. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence" (2000); Edelson, J.L. (1999), "The Overlap Between Child Maltreatment and woman Battering", Violence Against Women, 5:134-154; National Coalition Against Domestic Violence)


    ... leaving an abusive relationship is not "easy"?

    • The most dangerous time for a woman who is being battered is when she leaves, according to a study by the United States Department of Justice.
    • In Michigan, 75% of the women who are killed by their partners are murdered after the relationship is over or as it ends.
    • Women who leave their batterers are at a 75% greater risk of being killed by the batterer than for those who stay. (Barbara Hart, National Coalition Against Domestic Violence, 1988)
    • About 20% of the 1.5 Million people who experience intimate partner violence annually obtain civil protection orders. (Patricia Tjaden & Nancy Thoennes, National Institute of Justice and the Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey" (2000); National Coalition Against Domestic Violence)
    • Nationally, 50% of all homeless women and children are on the streets because of violence in the home. (Sen. Joseph Biden, U.S. Senate Committee on the Judiciary, Violence Against Women: Victims of the System, 1991)
    • There are nearly three times as many animal shelters in the United States as there are shelters for battered women and their children. (Senate Judiciary Hearings, Violence Against Women Act, 1990)


    ... most battered women do leave violent relationships?

    • Many battered women do leave their abusers permanently and succeed in building a life free of violence. Almost all battered women leave at least once.


    ... domestic violence knows no boundaries?

    • People of all socio-economic classes, races, religions, ethnic backgrounds, and sexual orientations can be victims of domestic violence. Many statistics have been gathered from lower-class families, but only because lower-class women are more likely to request assistance from agencies, so their problems are more visible. Many upper-class victims fear making their battering public because of social embarrassment and fear that it may harm their husband's careers. (Schulman, MA. "A Survey of Spousal Violence Against Women in Kentucky." Washington, DC. U.S. Government Printing Office, 1979)
    • Women of all cultures, races, occupations, income levels, and ages are battered - by husbands, boyfriends, lovers and partners. (Surgeon General Antonia Novello, as quoted in Domestic Violence: Battered Women, publication of the Reference Department of the Cambridge Public Library, Cambridge, MA)
    • "Approximately one-third of the men counseled (for battering) at Emerge are professional men who are well respected in their jobs and their communities. These have included doctors, psychologists, lawyers, ministers, and business executives." (For Shelter and Beyond, Massachusetts Coalition of Battered Women Service Groups, Boston, MA 1990)
    • Violence is the reason stated for divorce in 22% of middle-class marriages. (EAP Digest November/December 1991)


    ... married women are not the only victims of domestic violence?

    • People who are dating, separated, living together, divorced, have a child in common and/or are married, can be abused. Domestic violence can occur in any of these relationships.
    • Approximately 80% of sexual assaults against women are perpetrated by assailants known to the victim (friends, acquaintances, intimates, and family members). Acquaintance rape is particularly common among adolescent victims. (American Academy of Pediatrics, Committee on Adolescence. Sexual Assault and the Adolescent. Pediatrics. 1994)
    • Male victims represent 5% of reported sexual assaults. (Heise, L.L. Reproductive freedom and violence against women: where are the intersections? J Law Med Ethics. 1993.)
    • 28% of high school and college students surveyed said that they had experienced violence in a dating relationship. (Levy, Barry (1991). Dating Violence: Young Women in Danger, Seattle, WA, Seal Press)
    • If violence occurs once in a dating relationship, it is likely to occur again. (id.)
    • Young people tend to interpret the violence of their partner as signifying love. (id.)
    • Adolescents, especially adolescent girls, are at a greater risk for sexual assault then any other age group. Adolescents who are sexually assaulted are at a greater risk for sexual assault as an adult. Of the women who reported being raped at some time in their lives, 22% were under 12 years old and 32% were 12 to 17 years old when they were first raped. (Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey, National Institute of Justice, 1998)
    • Young people tend to interpret the violence of their partner as signifying love. (Levy, Barry (1991). Dating Violence: Young Women in Danger, Seattle, WA, Seal Press)
    • Many teens do not identify forcible sex as sexual assault. In one study over 50% of high school boys and 42% of high school girls believed that there are times when it is "acceptable for a male to hold a female down and physically force her to engage in intercourse." (National Crime Center and Crime Victims Research and Treatment Center. Rape in America: A Report to the Nation. Arlington, VA; 1992:1-16)


    ... women are not "just as violent as men"?

    • In 95% of domestic assaults, the man is the perpetrator of the violence. (Bureau of Justice Statistics. Report to the Nation on Crime and Justice. The Data. Washington, DC. Office of Justice Programs, U.S. Department of Justice, October 1983)
    • Male violence against women does much more damage than female violence against men; women are more likely to be injured than men (Murray A. Straus and Richard J. Gelles, Physical Violence in American Families, 1990)
    •  

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    Links

    ABA Commission on Domestic Violence   [American Bar Association]

     

    DomesticViolence.org
    web version of the Domestic Violence Handbook, created in Oakland County, Michigan.

     

    Family Violence Prevention Fund
    a national, non-profit organization that focuses on domestic violence education, prevention and public policy reform. Includes a Celebrity Watch, which chronicles celebrities in the news either as victims or perpetrators of domestic violence, and domestic violence "On the Air".

     

    Minnesota Center Against Violence & Abuse
    research education, scholarly papers on criminal justice, batterers' intervention, etc., access to resources

     

    Michigan Coalition Against Domestic and Sexual Violence

     

    Michigan Domestic Violence Prevention and Treatment Board
    Created in 1978. Responsible for administering state & federal funding to battle domestic violence

     

    Michigan Resource Center on Domestic and Sexual Violence

     

    Midland County Friend of the Court --- Domestic Violence Information
    excellent summary of signs of control & power; early warning signs of abuse; myths/facts about domestic violence; how victims can be helped; effects of abuse on children; and more.

     

    National Center for Missing and Exploited Children (1-800-THE-LOST)

     

    International Child Protection Center

     

    Shattered Love, Broken Lives
    60-article series on domestic violence, including interviews, images, links to related info and resources

     

    Violence Against Women [US Dept. of Justice]

     

    Yahoo! search re: domestic violence

     

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    Appeals

     

    UPDATED: July 10, 2012

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    The Appellate Division of any Prosecutor's office is generally not as visible to the public as its Trial Division. But, it is an integral component in the Prosecutor's efforts to protect the public & seek justice. Convictions gained before a jury can be lost years later before a panel of appellate judges.

    The Appellate news summarized here was prepared by our staff to keep the public informed on selected cases on appeal. Every effort has been made to fairly and accurately summarize the evidence & results of cases. Some cases may return to court for possible trial, so facts that have not already been released to the public will not be included.

    BrentMorton-2011-sm

    Brent E. Morton
    Sr. Assistant Prosecuting Attorney Appellate Specialist

     

     

     

    Appellate News Index
    (2008-2012)
    July 10, 2012 ~   2012 Second Quarter Appellate Stats & Achievements
    Apr 03, 2012 ~   2012 First Quarter Appellate Stats & Achievements
    Jan 05, 2012 ~   2011 Fourth Quarter Appellate Stats & Achievements
    Oct 05, 2011 ~   2011 Third Quarter Appellate Stats & Achievements
    Jul 05, 2011 ~   2011 Second Quarter Appellate Stats & Achievements
    Apr 05, 2011 ~   2011 First Quarter Appellate Stats & Achievements
    Jan 07, 2011 ~   2010 Fourth Quarter Appellate Stats & Achievements
    Oct 15, 2010 ~   2010 Third Quarter Appellate Stats & Achievements
    July 12, 2010 ~   2010 Second Quarter Appellate Stats & Achievements
    May 25, 2010 ~   2010 First Quarter Appellate Stats & Achievements
    Feb 12, 2010 ~   2009 Fourth Quarter Appellate Stats & Achievements
    Dec 31, 2009 ~   2009 Third Quarter Appellate Stats & Achievements
    Sept 15, 2009 ~   2009 Second Quarter Appellate Stats & Achievements
    April 03, 2009 ~   2009 First Quarter Appellate Stats & Achievements
    Jan 20, 2009 ~   2008 Fourth Quarter Appellate Stats & Achievements
    October 20, 2008 ~   2008 Third Quarter Appellate Stats & Achievements
    August 25, 2008 ~   2008 Second Quarter Appellate Stats & Achievements
    April 09, 2008 ~   2008 First Quarter Appellate Stats & Achievements
    January 08, 2008 ~   2007 Fourth Quarter Appellate Stats & Achievements

     

    Appellate News Archive (1998-2007)

    July 10, 2012:

     

    2012 Second Quarter Appellate Stats & Achievements

     

    Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2012. Year-to-date totals for 2011 are listed to comparison purposes.

     

      2012
    1st Quarter
    2012
    Yr-to-Date
    Total
    2011
    Yr-to-Date
    Total
    Briefs Filed 21 36 33
    Motions Filed 10 16 20
    Responses to Motions Filed 14 31 30
    Total Filings
    (answers, briefs motions, memorandums, miscellaneous)
    62 113 114

    Highlights of the Second Quarter include the following:

    • In People v Matthew Lane Christian, the Court of Appeals affirmed the defendant’s conviction for assault with intent to commit great bodily harm less than murder and sentence of 40 months to 15 years. Assistant Prosecuting Attorney Sharon Park successfully argued the case before the Court of Appeals. Former Assistant Prosecutor Kristin V. Brady wrote the winning brief.
    •  

    • In People v Rodney Scott Burger, Eaton Circuit Court Judge Thomas S. Eveland issued an opinion denying the bail bondman’s motion to set aside the forfeiture of bond under MCL 765.28 because the defendant committed numerous other crimes before being caught, the defendant’s apprehension was involuntary, the defendant is in another state (Florida) out of the Court’s reach on its current bench warrant, and the Surety did not affirmatively assist in apprehending defendant. Assistant Prosecuting Attorney Deanna Natoli wrote our brief and made the winning summation during oral argument.
    •  

    • In People v Meleathe Renee Robinson, the Court of Appeals denied the defendant’s delayed application for leave to appeal for lack of merit in the grounds presented. Defendant raised two issues regarding: (1) amount of restitution; and (2) scoring of Offense Variable 12. By indicating at sentencing that he had no objection to the amount of restitution, defense counsel waived the issue. Robinson and her attorney also obtained a sentence agreement, and defendant received exactly what she bargained for during plea negotiations. The sentencing judge used properly-scored guidelines to sentence defendant Robinson to a minimum sentence of 18 months (well within the minimum range of 14 to 58 months).
    •  

    • In Larry McClain v. Nick Ludwick, U.S. District Court Judge Victoria Roberts issued an opinion and order denying McClain’s Habeas Corpus petition because the Michigan appellate court’s adjudication of petitioner’s claims was objectively reasonable. We represented the respondent warden Ludwick in this civil case in which McClain claimed he was being held in violation of his constitutional rights. An Eaton County Circuit Court jury convicted McClain of first-degree home invasion, and found him not guilty of assault with intent to murder, and felony firearm. The Circuit Court judge sentenced McClain to six to 15 years. The jury’s verdict followed a lengthy trial that included 31 prosecution witnesses and two witnesses for the defense.
    •  

      Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd and assistant prosecutors Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adam Strong, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions. Legal Interns Andrew Hudson and Derek McKerr also helped research and write a response and two briefs.

       

       


         

        

      April 3, 2012:

       

      2012 First Quarter Appellate Stats & Achievements

       

      Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2012. Year-to-date totals for 2011 are listed to comparison purposes.

       

        2012
      1st Quarter
      2012
      Yr-to-Date
      Total
      2011
      Yr-to-Date
      Total
      Briefs Filed 15 15 21
      Motions Filed 6 6 8
      Responses to Motions Filed 17 17 10
      Total Filings
      (answers, briefs motions, memorandums, miscellaneous)
      51 51 51

      Highlights of the First Quarter include the following:

      • In People v Monique Denice James, the Michigan Court of Appeals issued an opinion affirming the defendant’s conviction for first-degree child abuse, third-degree child abuse and also her sentence of 6 to 15 years.
      •  

      • In People v Mark Shawn Morgan, the Court of Appeals issued an opinion affirming defendant’s convictions of three counts of first-degree criminal sexual conduct (victim under 13 years old) and sentence of 108 to 240 months in prison.
      •  

      • In Richard Lee Hasselbring v Debra Scutt, United States District Court Judge George Steeh issued an Opinion and Order Denying Hasselbring’s Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability (to the 6th Circuit Court of Appeals in Cincinnati). Hasselbring was convicted of two counts of sexually molesting a young child.
      •  

      • In People v Baraka Norwood, we filed People’s Memorandum of Law in Opposition to Motion for Relief from Judgment in Judge Thomas S. Eveland’s Court. The judge issued an Opinion Denying Defendant’s Motion for Relief from Judgment. The defendant’s spurious claims included: witness perjury, a traffic stop which violated the Fourth Amendment, prosecutorial misconduct involving suppression of documents, and ineffective assistance of trial and appellate counsel. Norwood was convicted of armed robbery and felony firearm.
      •  

      • In People v Benyam Habtegaber (Eaton County Circuit Court No. 98-020354-FH), we filed People’s Motion for Reconsideration of the Court’s Decision Granting the Defendant’s “Motion for Relief from Judgment Pursuant to Padilla v Kentucky.” A Michigan Court of Appeals panel recently held that because it established a new rule of law, Padilla should not be applied retroactively on collateral review. People v Gomez, Court of Appeals No. 302485, February 14, 2012. Writing “The Court must follow the Court of Appeals decision in this matter,” Eaton Circuit Judge Thomas Eveland issued an Opinion Granting the Prosecutor’s Motion for Reconsideration regarding the lack of retroactivity of Padilla v Kentucky. As a result, Habtegaber's application to set aside (i.e., expunge) his Eaton County conviction for No Account Check was denied.
      •  

        Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd and assistant prosecutors Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions. Legal Intern Sarah Fuhrman also helped research and write a response and a brief.

         

         


           

          

        January 05, 2012:

         

        2011 Fourth Quarter Appellate Stats & Achievements

         

        Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

         

          2011
        4th Quarter
        2011
        Yr-to-Date
        Total
        2010
        Yr-to-Date
        Total
        Briefs Filed 19 60 78
        Motions Filed 14 47 34
        Responses to Motions Filed 25 71 43
        Total Filings
        (answers, briefs motions, memorandums, miscellaneous)
        67 235 203

        Highlights of the Fourth Quarter include the following:

        • In 2011, we filed in the Court of Appeals a total of 8 briefs involving the Family Court's termination of parental rights. This was a 400% increase over the average filings from 2007 through 2010, during which we filed a total of 6 briefs, averaging 1.5 per year.
        •  

        • In In the Matter of McLeod Minors, Court of Appeals No. 303072; Eaton Circuit Court Family Division No. 09-017490-NA, Unpublished Per Curiam Opinion Affirming the trial court’s order terminating the respondent’s parental rights to the minor children under MCL 712A.19b(3)(c)(i), (g), and (j) because there were no errors warranting relief.
        •  

        • In People v Tracy Lynn Higelmire, Court of Appeals No. 300081; Eaton County Circuit Court Nos. 10- 020178-FH; 10-020181-FH, Per Curiam Unpublished Opinion reversing and remanding for resentencing because the sentencing court failed to articulate substantial and compelling reasons based on objective and verifiable factors to justify the downward departure.
        •  

        • In In the Matter of Morgan Minors, Court of Appeals No. 304625; Eaton Family Division No. 09-017246- NA, Court of Appeals Unpublished Per Curiam Opinion affirming the termination of respondentfather’s parental rights. Mark S. Morgan sexually abused his adopted daughter and an Eaton County jury convicted him of CSC. Respondent’s criminal appeal is pending. This opinion, signed by judges Kurtis T. Wilder, Michael J. Talbot and Deborah Servitto, says the court did not take judicial notice of respondent’s conviction where it heard the testimony of a witness and the petitioner presented a certified copy of conviction. Also, the panel wrote that Morgan could have made a collateral attack on his conviction, but he didn’t. The case is also notable because the panel wrote that Morgan did not have a right to confront his adopted daughter; that would only happen in a criminal case and TPR cases are civil, not criminal.
        •  

        • In In the Matter of Manuell-Peralez Minors, Court of Appeals No. 303938; Eaton Circuit Court Family Division No. 08-016964-NA, Unpublished Per Curiam Opinion of the Court of Appeals affirming the trial court’s order terminating the respondent-mother’s parental rights to the minor children.
        •  

          Honorable Mention: Assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, miscellaneous filings, and an Answer Opposing Habeas Petition during the Third Quarter. Intern Paul Skreli earned an assist on a response to a defendant’s motion for DNA testing.

           

           


             

            

          October 05, 2011:

           

          2011 Third Quarter Appellate Stats & Achievements

           

          Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

           

            2011
          3rd Quarter
          2011
          Yr-to-Date
          Total
          2010
          Yr-to-Date
          Total
          Briefs Filed 8 41 57
          Motions Filed 13 33 34
          Responses to Motions Filed 16 46 29
          Total Filings
          (answers, briefs motions, memorandums, miscellaneous)
          53 167 138

          Highlights of the Third Quarter include the following:

          • In People v Michael Carl Cooley, Michigan Supreme Court No. 142228, on behalf of the Prosecuting Attorneys Association of Michigan, we filed a Supreme Court Amicus Brief on the scoring of OV 19 for interfering with the administration of justice. Issue: Where the defendant threw away evidence and repeatedly denied guilt to police officers, did his conduct “interfere with or attempt to interfere with the administration of justice” supporting the scoring of 10 points under offense variable (OV) 19?
          •  

          • In People v Mark Shawn Morgan, Court of Appeals No. 302716, we filed Plaintiff-Appellee’s Brief on Appeal which included the following issues: (1) The trial court properly denied defendant/appellant’s Motion for Bill of Particulars under the considerations outlined in People v Naugle, where a child victim of ongoing sexual abuse is unable to provide specific dates of offense for the criminal sexual conduct charges; (2) The trial court properly admitted other acts evidence pursuant to MCL 768.27a; (3) The trial court properly excluded irrelevant testimony; and (4) The trial court properly instructed the jury that the testimony of the victim need not be corroborated if that testimony proves guilt beyond a reasonable doubt.
          •  

          • In In Re McLeod Minors, Eaton County Family Court No. 09-017489-NA, we filed Petitioner-Appellee's Brief on Appeal which included the following issues: I. Termination of parental rights is appropriate where petitioner proved by clear and convincing evidence at least one ground for termination. Where the Petitioner proved by clear and convincing evidence that respondents failed to progress sufficiently and failed to protect their children, Judge Byerley properly terminated their parental rights. II. If the Court finds there are grounds for termination of parental rights, it must order termination of parental rights unless the Court finds that doing so is clearly not in the children's best interests. Where Judge Byerley found that it is in the best interests of the children to terminate the Respondents’ parental rights, this Court should affirm.
          •  

          • In People Matthew Aaron Purves, Eaton District Court No. 11-0678, we filed the People’s Brief in Support of Bindover, which included the following issue: did the prosecutor present some evidence at the preliminary examination that defendant operated a motor vehicle while intoxicated causing a serious injury to the complainant where the victim lost all vision for a period of time and now suffers from a measurable brain impairment. Michigan law enumerates both of these injuries as “serious impairments of a body function?”
          •  

            Honorable Mention: Assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, miscellaneous filings, and an Answer Opposing Habeas Petition during the Third Quarter.

             

             


             

              

            July 05, 2011:

             

            2011 Second Quarter Appellate Stats & Achievements

             

            Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

             

              2011
            2nd Quarter
            2011
            Yr-to-Date
            Total
            2010
            Yr-to-Date
            Total
            Briefs Filed 13 33 35
            Motions Filed 12 20 24
            Responses to Motions Filed 20 30 22
            Total Filings
            (answers, briefs motions, memorandums, miscellaneous)
            63 114 89

            Highlights of the Second Quarter include the following:

            • In People v Ronald Carl Rose, we filed in the Michigan Supreme Court an Amicus Curiae Brief on behalf of the Prosecuting Attorneys Association of Michigan. This case involves the following issues: I. Does the use of a screen to shield a child complainant from the defendant during testimony violate the Confrontation Clause? II. Does the use of a screen to shield a child complainant from the defendant during testimony prejudice the defendant because it impinges on the presumption of innocence?
            •  

            • In People v Nicholas Allen Milbourn, the Michigan Supreme Court denied the defendant’s application for leave to appeal. We framed the issues as follows: I. Because defendant failed to object at the time restitution was imposed, and did not request an evidentiary hearing regarding the amount of restitution that was properly due, the issue is waived; and II. A judge is entitled to rely on information in the presentence investigation report, which is presumed to be accurate, unless the defendant effectively challenges the accuracy of the factual information. Because, at sentencing, defendant did not request an evidentiary hearing regarding the amount of restitution that was properly due, this was a waiver of his opportunity for an evidentiary hearing and he cannot now argue that he was denied due process.
            •  

            • In People v Rashida Morgan, the Michigan Supreme Court denied the defendant’s application for leave to appeal. Previously, the Court of Appeals had ruled that there was sufficient evidence to convict defendant of armed robbery because pepper spray does constitute a dangerous weapon within the meaning of the armed robbery statute. We framed the issue as follows: A dangerous weapon is any object used in a way that is likely to cause serious physical injury or death. While fleeing Wal-Mart after stealing a television set, defendant Morgan used a chemical/pepper spray to incapacitate a 74-year-old store employee who was treated for excruciating pain and temporary blindness. The evidence admitted at Morgan’s trial was sufficient to prove that she assaulted the victim with a dangerous weapon, an object capable of causing serious injury.
            •  

            • In People v Joshua James Whittum, the Court of Appeals granted the prosecution’s application for leave to appeal, limited to the following issue: A judge may depart from the sentencing guidelines if he gives a substantial and compelling, objective and verifiable reason. Incorporating everything he said, Eaton County Circuit Judge Calvin E. Osterhaven departed downward for 23 reasons, which are either not substantial and compelling or not objective and verifiable. Expressing uncertainty about what justice entailed, Judge Osterhaven never explained why 21 months was a more proportionate sentence than the guidelines minimum of 45 months; thus, remand for resentencing or re-articulation is necessary.
            •  

            • In People v David Armstrong Jones, Judge Osterhaven denied the defendant’s second motion for relief from judgment because the motion is not based on a retroactive change in law that occurred after his first motion for relief from judgment or new evidence that was not discovered before his first motion for relief from judgment.
            •  

              Honorable Mention: Prosecutor Jeffrey L. Sauter, Chief Assistant Prosecutor Douglas Lloyd, Assistant prosecutors Kristin Lefere, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, responses to motions, and miscellaneous filings during the Second Quarter.

               

               


               

              April 05, 2011:

               

              2011 First Quarter Appellate Stats & Achievements

               

              Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2011. Year-to-date totals for 2010 are listed to comparison purposes.

               

                2011
              1st Quarter
              2011
              Yr-to-Date
              Total
              2010
              Yr-to-Date
              Total
              Briefs Filed 21 21 18
              Motions Filed 8 8 13
              Responses to Motions Filed 10 10 12
              Total Filings
              (answers, briefs motions, memorandums, miscellaneous)
              51 51 45

              Highlights of the First Quarter include the following:

              • In People v Terrence Joseph Williams, Court of Appeals Docket No. 300089; Eaton County Circuit Court No. 08-020274-FH; in lieu of granting the application for leave to appeal, the Court of Appeals vacated the August 19, 2010 judgment of sentence (which involved a downward departure) and remanded this case for resentencing within the statutory sentencing guidelines range. In the event the sentencing court departs from such range, the judge must state on the record substantial and compelling reasons to justify its departure, see People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), and explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been, under People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008).
              •  

              • In In Re A.B. Edwards, Court of Appeals No. 298431; Eaton County Circuit Court Family Division No. 08-017070-NA, the Court of Appeals affirmed the termination of respondent mother’s parental rights to the minor child under MCL 712.19b(3)(c)(i), (g), and (j) because the panel concluded there were no errors warranting relief. The trial court (Judge Thomas Byerley) did not clearly err in finding that statutory grounds for termination of respondent’s parental rights were established by clear and convincing evidence. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000); MCR 3.977(K).
              •  

              • In Danny Eugene Downing v Linda Metrish, United States District Court for the Western District of Michigan Northern Division, Case No. 2:08-cv-009, the Federal District Court entered Judgment ordering that the petition for writ of habeas corpus is dismissed. It was further ordered that a certificate of appealability is DENIED as to each issue raised by the Petitioner in his application for habeas corpus relief because petitioner has failed to make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
              •  

              • In People v Juan Pablo Romero-Perea, Eaton County Circuit Court No. 10-315, Circuit Court Opinion denying defendant’s motion to suppress the apartment search claiming it was based on invalid consent.
              •  

                Honorable Mention: Assistant prosecutors Kristin Lefere, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and William Worden prepared briefs, motions, and responses to motions during the First Quarter.

                 


                 

                January 7, 2011:

                 

                2010 Fourth Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

                 

                  2010
                4th Qr
                2010
                Yr-to-Date
                Total
                2009
                Yr-to-Date
                Total
                Briefs Filed 21 78 79
                Motions Filed 10 34 33
                Responses to Motions Filed 21 43 51
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                64 203 182

                Highlights of the Fourth Quarter include the following:

                • In People v Willie Rich Chappell, Jr. (Supreme Ct. No. ____; Ct of App No. 290834) and Baraka Norwood (Supreme Ct No. _____; Ct of App No. 290852) [co-defendants tried separately], the Michigan Supreme Court denied the defendants’ applications for leave to appeal. The Michigan Court of Appeals affirmed the defendants’ convictions of two counts of armed robbery and one count of possession of a firearm while committing a felony (felony-firearm). Chappell was sentenced as a fourth habitual offender to serve 23-1/3 to 60 years in prison for the armed robbery convictions and to serve a consecutive term of 5 years in prison for the felony-firearm, second offense. Norwood was sentenced as a third habitual offender to serve concurrent prison terms of 14.58 to 40 years for the armed robbery convictions plus 2 years consecutive imprisonment for the felony-firearm conviction. Chappell and Norwood robbed a Delta Township Taco Bell at gunpoint during the early morning hours of July 23, 2008. Chappell and Norwood were taken into custody later that morning in Perry, MI and two handguns, gloves, a backpack, facial coverings, and cash totaling approximately $200 were recovered from their vehicle. The two employees working during the robbery identified Chappell and Norwood in court as the robbers. On appeal, Chappell claimed ineffective assistance of trial counsel and that his conviction was against the great weight of the evidence. After his arrest, Norwood admitted involvement in the robbery. Norwood’s sole issue on appeal involved his motion to suppress evidence, which the trial court denied. The Court of Appeals held that, contrary to Norwood’s argument, the Michigan Supreme Court made clear in People v Jenkins, 472 Mich 26, 33-34 (2005) that the Fourth Amendment is not implicated when an officer engages an individual in conversation or requests an individual’s identification. A seizure implicating the Fourth Amendment occurred only after the officer had sufficient basis to arrest defendant (no valid license) and that evidence obtained thereafter was properly acquired through a search incident to arrest. According to the MDOC web site, Chappells' earliest release date is 05/07/2037, and Norwood's earliest release date is 08/07/2025.
                •  

                • In People v Linda Sue Corr the Michigan Supreme Court denied the defendant’s application for leave to appeal. The Court of Appeals had reversed and remanded for reinstatement of the charges of resisting and obstructing a police officer, MCL 750.81d(1). After reviewing the testimony of the officers at the preliminary examination, the Court of Appeals found that the district court erred in its decision not to bind defendant over for trial because the evidence established probable cause that defendant committed the offenses. Although the Court of Appeals agreed with the circuit court that defendant’s conduct established probable cause to support her Bindover for trial, the Court of Appeals found that the circuit court erred in its determination that the officers’ testimony must be excluded as the “fruit” of defendant’s illegal detention. Defendant’s detention was not unlawful and even if it had been, the circumstances did not warrant the harsh remedy of the exclusionary rule. There was no evidence of misconduct or bad faith on the part of the officers.
                •  

                • In People v Darrin Jay Herp (Ct of App No. 291484; Eaton Co Circuit Ct No. 08-020070-FH), the the Michigan Supreme Court denied the defendant’s application for leave to appeal. Defendant raised three issues in his appeal of right: I. The evidence is insufficient to sustain defendant's convictions of felony firearm, felonious assault and unlawful restraint and therefore, defendant's convictions violate his right to due process and must be vacated; II. The trial court improperly scored offense variable 10, exploitation of a vulnerable victim at 15 points for "predatory conduct"; and III. The trial court abused its discretion in refusing to delete conjectural material from the presentence report that was not supported by the evidence at trial. The Court of Appeals wrote: "Because we conclude that there were no errors warranting relief, we affirm."
                •  

                • In People v Rashida Morgan (Ct of Appeals No. 294591), the Michigan Court of Appeals affirmed the defendant’s conviction for armed robbery. Morgan was on probation when she committed the armed robbery. The judge sentenced Morgan as a habitual offender, fourth offense, to not less than 126 months nor more than 300 months. Defendant stole a TV from Wal-Mart and used pepper spray on the store employee who followed her into the parking lot. On appeal, defendant claimed there was insufficient evidence to convict her because pepper spray does not constitute a dangerous weapon within the meaning of the armed robbery statute. The Court of Appeals rejected this argument. According to the MDOC web site, Morgan's earliest release date is 01/22/2020.
                •  

                  Honorable Mention: Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, Adrianne Van LangeVelde, and legal intern Jared Giuffre, prepared and filed briefs, motions, and responses to motions during the Fourth Quarter.

                   


                 

                October 15, 2010:

                 

                2010 Third Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

                 

                  2010
                3rd Qr
                2010
                Yr-to-Date
                Total
                2009
                Yr-to-Date
                Total
                Briefs Filed 22 57 63
                Motions Filed 10 34 24
                Responses to Motions Filed 7 29 45
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                49 138 145

                Highlights of the Third Quarter include the following:

                • In People v Willie Rich Chappell, Jr. (Ct of App No. 290834) and Baraka Norwood (Ct of App No. 290852) [co-defendants tried separately], the Michigan Court of Appeals affirmed the defendants’ convictions of two counts of armed robbery and one count of possession of a firearm while committing a felony (felony-firearm). Chappell was sentenced as a fourth habitual offender to serve 23-1/3 to 60 years in prison for the armed robbery convictions and to serve a consecutive term of 5 years in prison for the felony-firearm, second offense. Norwood was sentenced as a third habitual offender to serve concurrent prison terms of 14.58 to 40 years for the armed robbery convictions plus 2 years consecutive imprisonment for the felony-firearm conviction. Chappell and Norwood robbed a Delta Township Taco Bell at gunpoint during the early morning hours of July 23, 2008. Chappell and Norwood were taken into custody later that morning in Perry, MI and two handguns, gloves, a backpack, facial coverings, and cash totaling approximately $200 were recovered from their vehicle. The two employees working during the robbery identified Chappell and Norwood in court as the robbers. On appeal, Chappell claimed ineffective assistance of trial counsel and that his conviction was against the great weight of the evidence. After his arrest, Norwood admitted involvement in the robbery. Norwood’s sole issue on appeal involved his motion to suppress evidence, which the trial court denied. The Court of Appeals held that, contrary to Norwood’s argument, the Michigan Supreme Court made clear in People v Jenkins, 472 Mich 26, 33-34 (2005) that the Fourth Amendment is not implicated when an officer engages an individual in conversation or requests an individual’s identification. A seizure implicating the Fourth Amendment occurred only after the officer had sufficient basis to arrest defendant (no valid license) and that evidence obtained thereafter was properly acquired through a search incident to arrest. According to the MDOC web site, Chappells' earliest release date is 05/07/2037, and Norwood's earliest release date is 08/07/2025.
                • In People v Russell Percy Dunham (Ct of App No. 287584), the Michigan Court of Appeals affirmed the defendant’s second-degree murder conviction and sentence as a fourth habitual offender to prison terms of 34 to 60 years. The issues involved: (1) sufficiency of the evidence; (2) ineffective assistance of counsel regarding several sub-issues; and (3) cumulative error. The Court of Appeals held that the only real error was counsel’s failure to ensure that the jury did not see defendant’s swastika tattoo, and defendant failed to establish that this failure affected the outcome of the trial. According to the MDOC web site, Dunham's earliest release date is 07/21/2041.
                • In People v Joel Robert Dienhert (Ct of App No. 285489), the Michigan Court of Appeals affirmed the defendant’s second-degree murder conviction and sentence as a fourth habitual offender to prison terms of 34 to 60 years.affirmed the defendant’s convictions for OUIL causing death, operating a motor vehicle with a suspended license causing death, OUIL causing serious injury, and operating a motor vehicle with a suspended license causing serious injury. Defendant’s appeal involved three issues: I. the trial court denied his motion in limine and allowed the prosecution to introduce evidence pertaining to his attempts to obtain cocaine immediately preceding the crash because it went towards proving malice where defendant was charged with second-degree murder; II. The trial court denied defendant’s mistrial motion because the testimony that defendant had previously been convicted of drunk driving was inadvertent and unsolicited and the judge instructed jurors to disregard it; and III. The trial court properly excluded evidence of marijuana metabolite in the victim’s system because there was no evidence that it affected her driving and there was no evidence when she had smoked marijuana. Gross negligence would have been necessary to demonstrate an intervening, superseding cause for the crash. According to the MDOC web site, Dienhert's earliest release date is 12/25/2015.
                • In People v Terry Wayne Hall Eaton County Circuit Court Judge Thomas S. Eveland denied the defendant’s motion for relief from judgment. The Court found that the grounds raised in the motion for relief from judgment could have been raised on appeal from the conviction and sentence, defendant has not shown good cause for failure to raise those grounds on appeal, and defendant has not suffered actual prejudice from the alleged irregularities that support the claim for relief. The habitual offender sentencing procedures used by the Court were appropriate. The habitual offender statute does not violate the ex post facto clauses of the U.S. and Michigan Constitutions. Finally, although defendant claimed he was not given a competency hearing, the court record showed otherwise. While the competency hearing did not follow within the five days required by statute, this does not ipso facto entitle defendant to a new trial where no evidence of incompetency was presented to the court.
                • In People v Steven Edward Flick, Supreme Court No. 138258, and People v Brent Lazarus, Supreme Court No. 138261, Justice Corrigan joined by Justices Markman, Young and Weaver, held: In these consolidated cases, we consider the scope of the Michigan Penal Code provision that criminalizes the “knowing possession” of child sexually abusive material, MCL 750.145c(4). Defendants intentionally accessed and purposely viewed depictions of child sexually abusive material on the Internet. The only child sexually abusive material later found in their computers, however, had been automatically stored in temporary Internet files. Defendants contend that because the prosecution failed to establish that they knowingly possessed child sexually abusive material, the district courts erred by binding them over for trial. The term “possesses” as used in the statute includes both actual and constructive possession. Contrary to defendants’ arguments, the evidence presented at their preliminary examinations established that Flick and Lazarus did more than passively view child sexually abusive material on the Internet. When any depiction of child sexually abusive material was displayed on each defendant’s computer screen, he knowingly had the power and the intention to exercise dominion or control over that depiction. As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material. Consequently, the Supreme Court majority affirmed the Court of Appeals judgment and remanded for further proceedings consistent with the Supreme Court’s Opinion. We filed an amicus brief in this case.
                • In People v Jason M. Gursky, Supreme Court No. 137251, Justice Young, joined by Justices Weaver, Corrigan, Markman, and Hathaway, held: The complainant’s statements were not spontaneous and therefore should not have been admitted under the “tender years” hearsay exception, MRE 803A. However, because the statements were not used substantively to prove guilt, the statements were cumulative, and other evidence corroborated defendant’s guilt, the error was harmless. The Court of Appeals decision was vacated, but defendant’s conviction affirmed on other grounds. We filed an amicus brief in this case.
                • Honorable Mention: Assistant prosecutors Steve Knittel, Kristin Brady, Brent Morton, Kelly Morton, Deanna Natoli, Neil O’Brien, Sharon Park, and Adrianne Whitehead, prepared and filed briefs, motions, and responses to motions during the Third Quarter.

                   


                 

                July 12, 2010:

                 

                2010 Second Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

                 

                  2010
                2nd Qr
                2010
                Yr-to-Date
                Total
                2009
                Yr-to-Date
                Total
                Briefs Filed 17 35 41
                Motions Filed 11 24 18
                Responses to Motions Filed 10 22 31
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                44 89 101

                Highlights of the Second Quarter include the following:

                • In People v Angelo Rochelle McMullan (Supreme Ct No. 139209; Ct of App No. 281844; Genesee Co Circuit Ct No. 01-008582-FC), we filed the Amicus Brief of the Prosecuting Attorneys Association of Michigan in Support of the State of Michigan. The evidence established that defendant McMullan wanted to scare Smith into giving him money by threatening the victim at gunpoint. McMullan shot Smith in the chest at close range then rifled his pockets for money. The issue, as framed by our State Supreme Court, is whether a rational juror could conclude that defendant acted with a “lesser mens rea of gross negligence or an intent to injure, and not malice,” People v Holtschlag, 471 Mich 1, 21-22; 684 NW2d 730 (2004), thus warranting an instruction on involuntary manslaughter. Justice Corrigan, joined by Justice Young, asked the parties to address whether, as a matter of law, defendant’s assertion that he did not actually intend to kill the victim could preclude a finding of malice. In addition to this issue and sub-issue, Amicus added a section on Harmless Error analysis. According to information on the MDOC web site, McMullan is currently serving 30-75 years for second degree murder, and 5-15 years for felon in possession of a firearm. His earliest release date is 07/05/2033.
                •  

                • In People v Darrin Jay Herp (Ct of App No. 291484; Eaton Co Circuit Ct No. 08-020070-FH), the Court of Appeals issued an Opinion affirming the Defendant’s convictions and sentences. Defendant raised three issues in his appeal of right: (1) The evidence is insufficient to sustain defendant's convictions of felony firearm, felonious assault and unlawful restraint and therefore, defendant's convictions violate his right to due process and must be vacated; (2) The trial court improperly scored offense variable 10, exploitation of a vulnerable victim at 15 points for "predatory conduct”; and (3) The trial court abused its discretion in refusing to delete conjectural material from the presentence report that was not supported by the evidence at trial. The Court of Appeals wrote: “Because we conclude that there were no errors warranting relief, we affirm.” According to information on the MDOC web site, Herp is currently serving 3-3/4 to 15 years for unlawful imprisonment, 14 months to 4 years for assault with a dangerous weapon, and 14 months to 2 years for resisting/obstructing a police officer. All of these prison terms are consecutive to and preceeding a 2-year term for possessing a firearm in the commission of a felony. His earliest release date is 03/27/2014.
                •  

                • In People v Tyler Lynn Robins (Ct of Appeals No. 290884; Eaton Circuit Ct No. 07-020305-FH), the Court of Appeals issued an Opinion affirming defendant’s conviction of manufacturing methamphetamine for which he was sentenced as a third habitual offender to five to 40 years in prison. The Court held that a cell phone conversation was in the course of and in furtherance of the conspiracy and was not inadmissible hearsay. Any error in its admission was not outcome-determinative due to other evidence regarding methamphetamine manufacture. Counsel was not ineffective for failing to object to the introduction of this evidence. According to information on the MDOC web site, Robins is serving 5-40 years for manufacturing methamphetamine, and 2-15 years to maintaining a methamphetamine lab. His earliest release date is 08/27/2012.
                •  

                  Honorable Mention: Chief Assistant Prosecutor Doug Lloyd, assistant prosecutors Steve Knittel, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Jared Giuffre, prepared briefs, motions, and responses to motions during the Second Quarter. Brent Morton took top honors with nine court filings in the second quarter.

                   


                 

                May 25, 2010:

                 

                2010 First Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2010. Year-to-date totals for 2009 are listed to comparison purposes.

                 

                  2010
                1st Qr
                2010
                Yr-to-Date
                Total
                2009
                Yr-to-Date
                Total
                Briefs Filed 18 18 19
                Motions Filed 13 13 1
                Responses to Motions Filed 12 12 14
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                45 45 35

                Highlights of the First Quarter include the following:

                • In People v Linda Sue Corr, a published Court of Appeals opinion, the panel consisting of judges Mark J. Cavanagh, E. Thomas Fitzgerald and Douglas B. Shapiro, reversed and remanded for reinstatement of the charges of resisting and obstructing a police officer, MCL 750.81d(1). After reviewing the testimony of the officers at the preliminary examination, the Court of Appeals found that the district court erred in its decision not to bind defendant over for trial because the evidence established probable cause that defendant committed the offense. Although the Court of Appeals agreed with the circuit court that defendant’s conduct established probable cause to support defendant’s bind-over for trial, the Court of Appeals found that the circuit court erred in its determination that the officers’ testimony must be excluded as the “fruit” of defendant’s illegal detention. Defendant’s detention was not unlawful and even if it had been, the circumstances did not warrant the harsh remedy of the exclusionary rule because there was no evidence of misconduct or bad faith on the part of the officers. In March 2010, the People filed a brief in the Michigan Supreme Court (docket 140750) opposing Ms. Corr's Application for Leave to Appeal.
                •  

                • In People v Jason Michael Gursky, we filed an Amicus Brief on behalf of the Prosecuting Attorneys Association of Michigan with the Michigan Supreme Court. The issues, as framed by the Supreme Court, are: (1) whether the statements made by the complainant to Stacy Morgan on or about May 4, 2006 were “shown to have been spontaneous and without indication of manufacture” within the meaning of MRE 803A(2), and (2) whether it was more probable than not that any error in this regard was outcome determinative. See People v Lukity, 460 Mich 484, 495-496 (1999). In answer to the first issue, we argued that where complainant didn’t intend to make an assertion by her spontaneous acts, testimony regarding complainant’s physical behavior doesn’t comprise hearsay. The following was nonverbal conduct not intended as an assertion: (1) the horrified look on complainant’s face; (2) her eyes welling up; (3) thumb sucking; (4) tears; (5) crying, bawling; and (6) gasping for breath. Complainant’s nonverbal conduct, volunteered statements, and answers to Stacy Morgan’s questions were mostly spontaneous and without indication of manufacture. As such, they were admissible under MRE 803A. Regarding the second issue, we argued that where the error asserted is erroneous admission of evidence, the effect is evaluated in the context of untainted evidence to determine whether it is more probable than not that a different outcome would have resulted. Since testimony of a CSC complainant alone is sufficient to establish defendant’s guilt, and complainant’s testimony was corroborated by her mother, the detective, nurse, and Gursky’s admissions, defendant cannot meet his burden of showing that Stacy Morgan’s testimony was outcome-determinative.
                •  

                • In People v Patricia Ann Roberts, Assistant Prosecutor Kristin Brady prepared and filed our Brief on Appeal with the Court of Appeals. At issue in this fourth-degree child abuse case is whether a trial court should interfere with the jury’s role of determining the weight of the evidence or the credibility of the witnesses. The district court found a conflict in the testimony of the social worker and the defendant. We argued that the district judge abused his discretion and acted as the “thirteenth juror” by setting aside the jury’s guilty verdict, based on the credibility of a witness. The Circuit Court agreed with us and defendant appealed the circuit judge’s decision reversing the district court.
                •  

                  Honorable Mention: Prosecutor Jeff Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Jared Giuffre, prepared briefs, motions, and responses to motions during the First Quarter.

                   


                 

                February 12, 2010:

                 

                2009 Fourth Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

                 

                  2009
                4th Qr
                2009
                Yr-to-Date
                Total
                2008
                Yr-to-Date
                Total
                Briefs Filed 16 79 59
                Motions Filed 9 33 18
                Responses to Motions Filed 6 51 29
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                37 182 118

                Highlights of the Fourth Quarter include the following:

                • In People v Tyler Lynn Robins, we filed our brief in the Court of Appeals. This case involves two claims arising from his convictions for Manufacturing Methamphetamine and Maintaining a Methamphetamine Lab: (1) The circuit court committed plain error in allowing prejudicial hearsay evidence at trial; (2) Trial counsel was ineffective for failing to object to the prejudicial and inadmissible hearsay statements. Co-defendant Cook testified that while running through the woods, co-defendant Aspinall made a phone call to Robins. Cook was unable to hear the conversation, but claimed that he was told by Aspinall that Robins had passed Deputy Haga on the road and that Robins had his “monster” with him. Cook testified that “monster” meant methamphetamine. We argued that the statement was not hearsay because it was made "in furtherance" of the conspiracy to manufacture methamphetamine and cited People v Bushard, a Michigan Supreme Court case. Counsel is not ineffective for failing to object where objection is futile and there is a strong presumption of trial strategy where defense counsel used this evidence to impeach the witness because the State's expert had never heard of methamphetamine referred to as monster. According to the MDOc web site, Robin's earliest release date is 08/27/2012.
                •  

                • In People v Willie Rich Chappell, Jr., we filed our brief in the Court of Appeals. Defendant’s claims included: (1) whether there was an independent source for eyewitness identification is a question of credibility, and a reviewing court will not substitute its judgment on witness credibility for that of the trier of fact. Bennett and Thompson viewed robber number one for five to 10 minutes during the armed robbery, and, in court, these eyewitnesses positively identified Willie Chappell. This eyewitness, in-court identification was properly admitted. (2) No Fourth Amendment seizure occurs where there’s no restraint on the person’s liberty, e.g. where an officer seeks a citizen’s voluntary cooperation through non-coercive questioning. Casually, Officer Hernandez approached Norwood, asking, “What’s up?” Hernandez continued talking with Norwood as they walked towards the car he had driven, and when asked for his license, Norwood didn’t have one. Hernandez also saw money strewn across the car’s back seat. Hernandez’s non-coercive questioning did not amount to a seizure. (3) The record must be considered as a whole in determining whether the jury’s verdict can be said to be contrary to the great weight of the evidence. The evidence at Chappell’s trial included identification of defendant by two eyewitnesses and overwhelming circumstantial evidence of defendant’s guilt. Based on the evidence, it would not be a miscarriage of justice to allow the verdicts for felony firearm second offense and two counts of armed robbery to stand. According to the MDOC web site, Chappell's earliest relase date is 05/07/2037.
                •  

                • In People v Jonathon Emory Morgan, the Supreme Court denied the defendant’s application for leave to appeal from two convictions for car-jacking. The issues included: (1) unless there is evidence indicating an intention to return the property taken or that otherwise suggests that intent to steal did not exist, the phrase “intent to steal” is really more accurate and easily understood than the phrase that describes the mental element as the “intent to permanently deprive.” Where Morgan referred to “the car I jacked” and “the grand theft I did,” the evidence was sufficient to establish his “intent to steal”; (2) Failure to object to an instruction prior to a jury’s retiring to consider its verdict waives appellate review. Morgan’s attorney expressed approval of the circuit court’s jury instructions with the exception of the judge’s decision to forego instructing jurors on the defense of compulsion. Where trial counsel’s strategy was to argue compulsion rather than lack of specific intent, reversible error did not occur under these circumstances; (3) to justify reversal on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. Trial defense counsel elected to argue compulsion rather than a lack of specific intent. Where counsel’s decision involved trial strategy, defendant’s attorney provided effective assistance; and in two new issues, where Morgan failed to expound on his issues and provide any authority, he has abandoned claims that his sentencing guidelines were inaccurately scored and he was unjustly sentenced as a habitual offender. According to the MDOC web site, Morgan's earliest release date is 11/17/2014.
                •  

                • In People v Patrick Damen Shorty, the Court of Appeals affirmed defendant’s convictions and sentences. Defendant was convicted of one count of first-degree criminal sexual conduct (CSC) and two counts of second-degree CSC. He was sentenced to concurrent prison terms of 140 to 360 months on the CSC I conviction, and to 50 to 180 months for each of the CSC II convictions. On appeal, defendant argued that the evidence at trial was insufficient to convict him. Specifically, defendant claimed that the victim’s testimony was compromised because of her memory, as well as language and communication disabilities, and that the evidence supporting his convictions was therefore insufficient. When determining the sufficiency of the evidence, the Court views the evidence de novo in a light most favorable to the prosecution and must consider whether a rational trier of fact could find, based on that evidence, that the essential elements of the crime were proven beyond a reasonable doubt. Questions regarding the credibility of a witness and the weight of the evidence are left to the trier of fact and are not to be resolved anew by the reviewing court. In arguing that the victim’s testimony should not be deemed sufficient to sustain his conviction, defendant impliedly challenged her competency to testify. However, the Court of Appeals has specifically held that if a child is found competent to testify under MRE 601, then “a later showing of the child’s inability to testify truthfully reflects on credibility, not competency.” The record supported the conclusion that the victim was competent to testify. The victim’s testimony was detailed and provided all the evidence from which a rational jury could determine that the elements of both CSC I and CSC II were proven beyond a reasonable doubt. According to the MDOC web site, Shorty's earliest release date is 09/21/2019.
                •  

                • In People v Patricia Roberts, we filed a brief opposing defendant’s application for leave to appeal in the Court of Appeals. The issue: the District Court substituted its view of witness credibility “for the constitutionally guaranteed jury determination”; therefore, acting as the “thirteenth juror” and abusing its discretion. Circuit Court Judge Calvin Osterhaven reversed the District Court decision and reinstated the defendant’s conviction for 4th degree child abuse.
                •  

                • PAROLE APPLICATIONS FOR LEAVE TO APPEAL FILED: People v Joseph Earl Green, II (No. 02-020049-FH): CSC 2nd - Person Under 13; People v Rezese Hammonds(No. 09-1372-AP): Kidnaping, Attempted Murder, Malicious Destruction of Property.
                  • PAROLE or COMMUTATION OPPOSITIONS: People v Anna M. Bushard (No. 86-13-FC): First Degree Murder; People v Robert Carl Thompson (No. 77-1574-FC): Second Degree Murder; People v Roger Ruthruff (No. 86-51-FC): Felony Murder (First Degree Murder).
                •  

                   

                  Honorable Mention: Prosecutor Jeffrey Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Michael Eagen, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli helped prepare briefs, motions, and responses to motions during the Fourth Quarter. In October 2009, Sr. APA Neil O’Brien took charge of our parole project involving review and, when appropriate, opposing parole, commutation and pardon of prison inmates, particularly those convicted of serious crimes. We made 4 filings opposing parole or commutation/pardon.

                   


                 

                December 31, 2009:

                 

                2009 Third Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

                 

                  2009
                3rd Qr
                2009
                Yr-to-Date
                Total
                2008
                Yr-to-Date
                Total
                Briefs Filed 22 63 48
                Motions Filed 6 24 13
                Responses to Motions Filed 14 45 24
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                44 145 93

                Highlights of the Third Quarter include the following:

                • In People v Larry O'Neil McClain, the Michigan Supreme Court denied the defendant’s application for leave to appeal. The issues included: sufficiency of the evidence to support defendant’s home invasion conviction; five claims of ineffective trial counsel (jury instructions - failure to object, failure to request; failure to object to prosecutorial misconduct; failure to raise an alibi defense; and failure to investigate, interview, and call jailhouse witnesses), and a claim of cumulative error. According to the MDOC web site, McClain's earliest release date is 03/29/2013.
                •  

                • In People v James Damion Moore, the Michigan Supreme Court denied the defendant’s application for leave to appeal. The defendant claimed the evidence was insufficient to support his convictions for check forgery, uttering & publishing, first-degree home invasion, and assault with intent to murder. The victim testified that defendant stole, forged and cashed two of her checks without her permission. Five days after defendant’s arrest for stealing those checks, defendant entered the victim’s apartment without her permission, threatened to kill her and stabbed her in the back before fleeing. The victim identified the defendant as her attacker. The prosecution argued that sufficient evidence was presented from which the jury could find the essential elements of the charged offenses proven beyond a reasonable doubt.
                •  

                • In People v Timothy Landin Rodriguez, the Court of Appeals denied the defendant’s delayed application for leave to appeal. Rodriguez entered “no contest” pleas to two charges of armed robbery. In a different file, Rodriguez was convicted by an Eaton County jury of conspiracy to commit murder. A defendant is entitled to be sentenced on the basis of accurate information. Rodriquez had a prior felony conviction for attempted felonious assault, and he aided and abetted an armed robbery where two victims were terrorized when co-defendants fired five shots inside a gas station. Where the defendant’s Prior Record Variable 2 (low severity felony convictions) and Offense Variable 2 (lethal potential of weapon used) and OV 6 (multiple victims) were correctly scored, he was sentenced on the basis of accurate information.
                •  

                • In People v Stephen Chieppo, Eaton District Court Judge Harvey Hoffman issued an order denying the defendant’s motion to suppress evidence based on Arizona v Gant, 129 S Ct 1710; 173 L Ed 2d 485 (2009). Judge Hoffman ruled that the good faith exception applied to a search conducted prior to April 21, 2009 when Gant took effect. Judge Hoffman declined to apply the exclusionary rule because there was no police misconduct that would be deterred by the rule’s application.
                •  

                • AMICUS BRIEF FILED IN CHILD PORNOGRAPHY CASE: In People v Steven Edward Flick and People v Brent Lazarus, we filed an amicus brief in the Michigan Supreme Court on behalf of the Prosecuting Attorneys Association of Michigan and Jackson County. The issues, as framed by the Supreme Court, are: (1) whether intentionally accessing and viewing child sexually abusive material on the Internet constitutes “knowing possession” of such material under MCL 750.145c(4); and (2) whether the presence of automatically created “temporary internet files” on a computer hard drive may amount to “knowing possession” of child sexually abusive material or may be circumstantial evidence that defendant “knowingly possessed” such material in the past.
                •  

                • ANSWERS FILED TO HABEUS CORPUS PETITIONS: In Leo Paul Carmona v Jeffrey Woods, United States District Court Judge R. Allan Edgar ordered that Carmona's petition for writ of habeas corpus was denied. Carmona objected to the magistrate's recommendation to deny his motion to hold his petition in abeyance while he attempted to exhaust additional issues in the state courts. But, Carmona failed to comply with the requirements of Rhines v. Weber, 125 S. Ct. 1528 (2005). Carmona did not have a pending state court action, and he wished to raise several claims that present no constitutional issues and simply raise matters under state evidence rules. Judge Allen also denied a certificate of appealability as to each issue raised by Carmona because he failed to make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In the Federal system, a petitioner must have a certificate of appealability to appeal to the next level, in this case the 6th Circuit Court of Appeals in Cincinnati.
                •  

                • In Larry Darryl Steed v Millicent Warren, United States District Court Judge Lawrence P. Zatkoff, denied Steed’s petition for writ of habeas corpus. Steed challenged his convictions for drug-related offenses. Steed presented a single claim in his petition: that he was denied his Sixth Amendment right to have retained counsel of choice defend against the charges. Given the “wide latitude” afforded courts in balancing the right to counsel of choice against the needs of fairness and the demands of the calendar, the last-minute nature of the request, and the fourteen previous adjournments at Petitioner’s request, the Federal Court concluded that it was not an unreasonable application of Supreme Court precedent for the state court to find that Petitioner’s right to counsel of choice was not unreasonably or erroneously denied. Steed failed to establish that he is in the State of Michigan’s custody in violation of the Constitution or laws of the United States.
                •  

                  Honorable Mention: In addition to appellate prosecutor Bill Worden, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, assistant investigator Deanna Natoli and legal intern Jared Guiffre helped prepare briefs, motions, and responses to motions or argued those motions in court during the Third Quarter.

                   

                 


                 

                September 15, 2009:

                 

                2009 Second Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

                 

                  2009
                2nd Qr
                2009
                Yr-to-Date
                Total
                2008
                Yr-to-Date
                Total
                Briefs Filed 22 41 39
                Motions Filed 17 18 4
                Responses to Motions Filed 17 31 17
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                66 101 66

                Highlights of the Second Quarter include the following:

                • In People v Larry O'Neil McClain, the Court of Appeals affirmed the defendant’s jury trial conviction for first-degree home invasion. The facts were sufficient to prove that defendant participated in the robbery of a drug house. Defendant was sentenced as a fourth habitual offender to 6 to 20 years in prison. The issues involved: sufficiency of the evidence, and claims of ineffective assistance of trial counsel. According to the MDOC web site, McClain's earliest release date is 03/29/2013.
                •  

                • In People v David Michael Nichols, Circuit Court Judge Calvin E. Osterhaven denied defendant’s motion for new trial. Nichols was convicted by an Eaton County jury of assault with a dangerous weapon and felony firearm. The Court of Appeals remanded for an evidentiary hearing on defendant’s claim of ineffective assistance of trial counsel. Defendant’s claims included four issues involving evidence he claimed could have bolstered the defense theory of a conspiracy to frame the defendant involving his ex-wife, her boyfriend, and their co-worker. The circuit court found that this evidence would not have been outcome-determinative. Defendant also claimed that his attorney kept him from testifying, but his arrogance, and rambling answers came across during his testimony at the evidentiary hearing. Defendant sarcastically told the prosecutor to “knock yourself out” with his cross-examination. Judge Osterhaven held that trial counsel’s decisions were based on sound trial strategy. Defendant's appeal is pending before the Court of Appeals. According to the MDOC web site, Nichols' earliest release date is 10/30/2009.
                •  

                • In People v Jonathon Emory Morgan, the Court of Appeals affirmed defendant’s jury convictions of two counts of carjacking. Defendant claimed that the evidence was insufficient to prove that he intended to permanently deprive the owners of their vehicles. Defendant asserted that he only took the vehicles out of fear for his life because he was attempting to escape thousands of bats that were appearing out of the sky, turning into vampires, and eating people alive. Defendant was found competent to stand trial. The evaluating psychologist at the Forensic Center opined that defendant was not criminally insane at the time of the offense. Sufficient evidence existed to support defendant’s convictions. Defendant also asserted that the trial court violated his right to due process by not instructing the jury on specific intent. But, defendant expressly approved the instructions, waiving appellate review of this claim. Finally, defendant claimed ineffective assistance of counsel because his attorney failed to object to the jury instruction which he alleged failed to address all of the essential elements of carjacking. Due to the substantial amount of evidence against defendant, it is highly unlikely that an objection to jury instructions would have affected the trial’s outcome. That trial counsel focused on efforts to excuse defendant’s behavior (he took the cars to escape from flesh-eating bats and vampires) rather than focus on intent was not objectively unreasonable trial strategy under the circumstances. According to the MDOC web site, Morgan's earliest release date is 11/17/2014.
                •  

                  Honorable Mention: In addition to appellate prosecutor Bill Worden, Prosecutor Jeffrey Sauter, Chief Assistant Prosecutor Douglas Lloyd, assistant prosecutors Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli helped prepared briefs, motions, and responses to motions or argued those motions in court during the Second Quarter.

                   

                 


                 

                April 03, 2009:

                 

                2009 First Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2009. Year-to-date totals for 2008 are listed to comparison purposes.

                 

                  2009
                1st Qr
                2009
                Yr-to-Date
                Total
                2008
                Yr-to-Date
                Total
                Briefs Filed 19 19 20
                Motions Filed 1 1 2
                Responses to Motions Filed 14 14 10
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                35 35 35

                Highlights of the First Quarter include the following:

                • In People v James Damion Moore, the Court of Appeals affirmed the defendant’s convictions of assault with intent to murder, first-degree home invasion, two counts of forgery, and two counts of uttering and publishing checks. Defendant challenged the sufficiency of the evidence on his convictions. This case involved a credibility contest between the defendant and his former girlfriend. The Court of Appeals defers to the jury’s superior position to decide the weight and credibility to be given the former girlfriend’s testimony. By finding defendant guilty of the charged crimes, the jurors demonstrated their conclusion that they found the former girlfriend’s testimony credible. Additionally, there was ample circumstantial evidence to convict defendant. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. Defendant was sentenced to terms of 10-20 years for home invasion, 15-30 years for assault with intent to murder, and 23 months-14 years for uttering & publishing. According to the MDOC web site, Moore's earliest release date is 09/09/2023.
                •  

                • In People v Garrett James Nemeth, the Michigan Supreme Court denied the defendant’s application for leave to appeal the 09/29/2008 order of the Court of Appeals, which denied his delayed application for leave to appeal. Defendant pled to two counts of third-degree criminal sexual conduct, and received 4¾-15 years. According to the MDOC web site, Nemeth's earliest release date is 01/02/2013.
                •  

                • In People v Gary Alva Thatcher, Defendant challenged the constitutionality of Michigan’s criminal sexual conduct statutes, MCL 750.520(a)-(l). Defendant argued that these statutes were not lawfully and constitutionally enacted by the Michigan Legislature in 1974. People v Clopton 117 Mich App 673 (1982) addressed this claim where the substitute bill was constitutional if it had the same purpose. Defendant’s Motion for a Declaratory Judgment (MCR 2.605) was treated as a motion for relief from judgment, and was denied because the defendant failed to establish “good cause” and People v Clopton, 117 Mich App at 675-676, had previously upheld the constitutionality of Michigan’s criminal sexual conduct statutes. Defendant was sentenced to terms of 13-30 years for four counts of CSC 1st Degree (victim inder 13 years old). According to the MDOC web site, Thatcher's earliest release date is 10/03/2014.
                •  

                • In People v Jose Edward Villanueva , the People opposed a ¼ sentence reduction under MCL 801.257 for defendant-appellant. The People maintain that Judge Frank DeLuca properly exercised his discretion in denying the defendant's motion and the Circuit Court should affirm that decision, which was based on the defendant's prior record and the nature of the domestic assault he committed in this case. Judge DeLuca sentenced Villanueva to 365 days in the ECJ with credit for 17 days.
                •  

                  Honorable Mention: In addition to appellate prosecutor Bill Worden, Chief Assistant Prosecuting Attorney Douglas Lloyd, assistant prosecutors Michael Eagen, Kristin Brady, Sunny Matz, Brent Morton, Kelly Morton, Neil O’Brien, Sharon Park, and assistant investigator Deanna Natoli, prepared briefs, motions, and responses to motions or argued those motions in court during the First Quarter.

                   

                 


                 

                January 20, 2009:

                 

                2008 Fourth Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

                 

                  2008
                4th Qr
                2008
                Yr-to-Date
                Total
                2007
                Yr-to-Date
                Total
                Briefs Filed 11 59 63
                Motions Filed 5 18 51
                Responses to Motions Filed 19 29 37
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                25 118 163

                Highlights of the Fourth Quarter include the following:

                • In People v Michael Allen Miller, the Michigan Supreme Court reversed the Court of Appeals in an Ottawa Circuit Court case where the jury convicted Michael A. Miller of first-degree criminal sexual conduct. Before sentencing, the defendant learned that one of the jurors had concealed his prior convictions of offenses similar to the defendant's offense. The defendant moved for a new trial. The court held an evidentiary hearing, at which the juror testified, and denied the motion, finding no evidence that the defendant had suffered actual prejudice by the presence of a convicted felon on his jury. The Court of Appeals reversed the defendant's conviction in an unpublished opinion, and remanded the case for a new trial because of juror misconduct. The prosecution applied for leave to appeal, and we filed an amicus brief on behalf of the Prosecuting Attorneys Association of Michigan. The Supreme Court majority adopted our reasoning that a violation of MCL 600.1307a(1)(e), which prohibits a convicted felon from serving on a jury, requires a new trial only if the violation actually prejudiced the defendant. Writing for the majority, Justice Stephen J. Markman held: 1) while a criminal defendant has a constitutional right to be tried by an impartial jury, the defendant does not have a constitutional right to be tried by a jury free of convicted felons; 2) a juror's failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury. The burden is on the defendant to establish that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt; 3) the defendant's only complaint about the juror is that he is a convicted felon. The defendant offered no evidence that the juror was not impartial. A juror's mere status as a convicted felon is not sufficient to rebut the presumption of impartiality. The trial court did not clearly err by ruling that the defendant failed to demonstrate actual prejudice by the convicted felon's presence on his jury and did not abuse its discretion by denying the defendant's motion for a new trial; 4) the presence of a convicted felon on the defendant's jury did not constitute structural error, which is a fundamental constitutional error that defies analysis under the harmless-error standard of review.
                •  

                • In People v Lincoln Watkins, the Michigan Supreme Court voted to vacate its Order of April 23, 2008, granting leave to appeal. We had filed an Amicus Curiae Brief on behalf of the Prosecuting Attorneys Association of Michigan supporting the State of Michigan. Defendant was charged with five counts of first-degree criminal sexual conduct involving a child under the age of 13, and one count of second-degree criminal sexual conduct involving a child under the age of 13. The defendant's application for leave to appeal the judgment of the Court of Appeals was denied because the Supreme Court was no longer persuaded that it should review the question presented. Basically, the Supreme Court majority deferred to the Court of Appeals' decision upholding MCL 768.27a, which allows evidence in child molestation cases that a defendant committed another listed offense against a minor. The Court of Appeals ruled that the statute allowing admission of such evidence trumps the court rule on other act evidence, MRE 404(b). MCL 768.27a demonstrates the Michigan Legislature's intent that all other-acts evidence in criminal sexual conduct cases involving minors be admissible on any matter to which it is relevant.
                •  

                • In People v Isreal Louis Goodin, the Michigan Supreme Court denied leave to appeal where the defendant argued that the trial court abused its discretion and violated his constitutional right to due process by denying his motion to withdraw his plea where he claimed ineffective assistance of counsel, and where his plea was unknowing, unintelligent, and involuntary. Apparently, the defendant needed more than four different attorneys to tell him that he had no defense, and should take the best plea agreement offered to him where he was charged with first-degree home invasion, assault with intent to murder, felony firearm, and habitual offender second offense notice. Instead of receiving a minimum of 10 years in prison (guidelines downward departure), the defendant equivocated, and withdrew his initial plea. He later pled to the charges and received a sentence of 14 years and three months (minimum guidelines) consecutive to the mandatory two years on the felony firearm.
                •  

                •  

                  mug-talison-jerry-mdoc
                  Talison
                  In People v Gerald (Jerry) Cornell Talison, the Circuit Court denied Defendant's motion to correct information contained in his presentence report. Defendant was sentenced 41 years ago after being convicted of the first-degree murder of Harold Peterson, a 27-year-old gas station attendant, and Eaton County Sheriff's Deputy Dean Foster on 01/01/1967. Defendant received life imprisonment. He also pled guilty to attempted unarmed robbery, which took place while he was out on bond awaiting the murder trial. Defendant argued that the pre-sentence investigation (PSI) report regarding the attempted unarmed robbery stated that he was in possession of a firearm. Defendant argued that he did not become aware of the inaccuracy until recently and he should be permitted to change the inaccuracies he believes exist. MCR 6.429(C) states that a party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for re-sentencing, or in a proper motion to remand filed in the court of appeals. No evidence was presented to support defendant's contention that he did not have an opportunity to review the PSI before or at the time of sentencing. The only evidence is defendant's own self-serving statement that he did not have the opportunity to review the pre-sentence report. The fact that defendant pled guilty to attempted unarmed robbery does not create an indisputable fact that he was not armed during the course of the robbery. Defendant failed to provide any evidence that his pre-sentence report was incorrect other than his own contention.

                • Honorable Mention: In addition to appellate prosecutor Bill Worden, assistant prosecuting attorneys Kristin Brady, Sunny Matz, Brent Morton, Neil O'Brien, and Sharon Park, and legal externs Rachael Groffsky and Noah Siegel prepared briefs, motions, and responses to motions during the Fourth Quarter.

                 



                October 20, 2008:

                 

                2008 Third Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Third Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

                 

                  2008
                3rd Qr
                2008
                Yr-to-Date
                Total
                2007
                Yr-to-Date
                Total
                Briefs Filed 9 48 48
                Motions Filed 9 13 33
                Responses to Motions Filed 14 24 28
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                27 93 114

                Highlights of the Third Quarter include the following:

                • mug-lutzjeff-ecsd
                  Lutz
                  In People v Jeffrey Shannon Lutz, the Court of Appeals affirmed the convictions and sentences. Lutz was an Eaton County Sheriff's Sgt., who shot himself and blamed the shooting on a fictitious suspect. Lutz appealed from his jury convictions of false report of a felony, discharging a firearm at an emergency vehicle, reckless use of a firearm, and making a false report to a police radio station. Lutz was sentenced to five years' probation with 60 days in jail, community service, and restitution. Lutz argued that the prosecutor committed misconduct in opening statement by referring to "suicide messages" left by defendant as voice mails on his estranged wife's cell phone. Lutz further argued that the trial court abused its discretion by denying his motion for a mistrial based on this alleged prosecutorial misconduct. The Court of Appeals found that a good-faith effort by a prosecutor to admit evidence does not constitute misconduct. The Court of Appeals wrote: "The prosecutor reasonably could have believed that testimony from Detective Declerq relating that, within one hour of the detective having called defendant and told him that he recovered a potentially incriminating gun, defendant's wife contacted the detective and told him about getting suicidal messages from defendant would have been admissible." The evidence was not barred by spousal privilege or hearsay rules. Defendant's own statements constitute admissions of a party-opponent. The Court of Appeals further opined: "The prosecutor reasonably could have believed that evidence that defendant made suicidal statements within an hour of being informed that the police had recovered a potential item of evidence against him was relevant as evidence of defendant's consciousness of guilt." The trial court judge Thomas S. Eveland exercised his discretion to exclude the evidence, but the Court of Appeals found that "the trial court was overly generous to defendant by excluding evidence based merely on a determination that its probative value was outweighed by its prejudicial effect rather than based on a determination that its probative value was substantially outweighed by the danger of unfair prejudice", as stated in Michigan Rule of Evidence 403. The prosecutor could not have known that the trial court would exercise its discretion in this manner, the Court of Appeals wrote, "because it is reasonable to believe that evidence of defendant's expressions of a suicidal intent shortly after being confronted with the police having recovered potentially incriminating evidence was substantially probative as evidence of consciousness of guilt." The Court of Appeals concluded that the prosecutor referred to the proposed evidence at issue in his opening statement based on a good-faith belief that it was properly admissible. Finally, there was no violation of the Confrontation Clause because, viewed objectively, the circumstances indicate that the defendant's estranged wife primarily made statements to the detective to obtain police assistance with regard to an ongoing emergency, to obtain police assistance in preventing defendant from committing suicide. The Court of Appeals judges were: Henry William Saad, Karen M. Fort Hood and Stephen L. Borrello.
                •  

                • In People v Lincoln Watkins, we filed an Amicus Curiae brief on behalf of the Prosecuting Attorneys Association of Michigan supporting the State of Michigan. Defendant is charged with five counts of first-degree criminal sexual conduct involving a child under the age of 13, and one count of second-degree criminal sexual conduct involving a child under the age of 13. The Michigan Supreme Court granted leave and asked that the following issues be briefed: (1) whether MCL 768.27a conflicts with MRE 404(b) and, if it does, (2) whether the statute prevails over the court rule; (3) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(1)), while mandating that propensity evidence "is admissible for any purpose for which it is relevant," violated defendant's due process right to a fair trial; (4) whether the Court should rule that propensity evidence described in MCL 768.27a is admissible only if it is not otherwise excluded under MRE 403; and (5) whether MCL 768.27a interferes with the judicial power to ensure that a criminal defendant receives a fair trial, a power exclusively vested in the courts of this state under Const 1963, art 6, § 1. The Supreme Court invited the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file briefs amicus curiae. Supreme Court oral argument will be held in November.
                •  

                • mug-talison-jerry-mdoc
                  Talison
                  In People v Gerald Cornell Talison, we filed Plaintiff's Brief Opposing Motion For Relief From Judgment. Defendant filed a motion to correct the Pre-sentence Investigation Report, but we argued that it must be treated as a motion for relief from judgment, which is the exclusive remedy for post-appeal relief. Defendant claimed that inaccurate information was affecting his parole eligibility but Judge Robinson sentenced him to "natural life," a life sentence without the possibility for parole in the 1967 armed robbery of a Delta Township gas station that resulted in the death of the gas station attendant and an Eaton County deputy.

                 

                   

                • mug-larrymcclain
                  McClain

                  mug-goodinisreal
                  Goodin
                  In People v Larry O'Neal McClain, we filed Plaintiff-Appellee's Brief on Appeal in the Michigan Court of Appeals. Defendant's sole issue on appeal is the sufficiency of the evidence presented at trial to convict him of first-degree home invasion. This case involved a home invasion and shootout at an Eaton County drug house. The homeowner was shot seven times and spent three months in the hospital. An Eaton County jury convicted McClain of home invasion, but acquitted him of assault with intent to murder, and felony firearm. We also filed a brief opposing co-defendant Isreal Goodin's application for leave to appeal in the Michigan Supreme Court. Goodin plead guilty to first-degree home invasion, assault with intent to murder, and felony firearm. He also testified against McClain. Goodin received a minimum sentence of 16 years and three months. He claimed ineffective assistance of counsel regarding the scoring of his sentencing guidelines minimum range. According to the MDoC web site, McClain's earliest release date is 03/29/2013, and Goodin's earliest release date is 03/20/2023.
                •  

                • In People v Linda S. Corr, Eaton County Prosecuting Attorney Jeffrey Sauter filed a Motion for Reconsideration in the Eaton County Circuit Court where the defendant (a passenger in her son's vehicle) resisted and obstructed two Grand Ledge police officers after her son was arrested for operating while intoxicated. The District Court Judge, Harvey Hoffman, had declined to bind over the defendant, opining that there was insufficient evidence of a lawful command. The officers had ordered the apparently intoxicated defendant to stay inside the vehicle while they administered PBTs to others present to determine if anyone was sober enough to drive away the vehicle, which was still in the roadway. On appeal, Judge Calvin E. Osterhaven's opinion was based on the "Fruit of the Poisonous Tree" Doctrine because the defendant's actions occurred after her son had been arrested and removed from the scene of the traffic stop, and the Court opined that the defendant was illegally seized. The defendant refused to obey the officers' commands to stay inside the vehicle (it was dark outside, cold, and the roadway was very slippery), and as she was escorted back to the vehicle, the defendant elbowed one officer in the throat and kicked another in the shin. The Prosecutor maintains that the officers were merely trying to control a difficult situation, and that they reasonably detained the defendant. The Prosecutor's motion for reconsideration, which distinguishes this case from "Fruit of the Poisonous Tree" cases, remains pending.
                •  

                  Honorable Mention: Prosecutor Jeffrey L. Sauter and assistant prosecutors Hope E. Freeman, Jody E. Gilzene, Sunny Matz, Brent E. Morton, Neil F. O'Brien, and Sharon S. Park prepared briefs, memoranda, motions, and responses to motions during the Third Quarter.

                 



                August 25, 2008:

                 

                2008 Second Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Second Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

                 

                  2008
                2nd Qr
                2008
                Yr-to-Date
                Total
                2007
                Yr-to-Date
                Total
                Briefs Filed 19 39 32
                Motions Filed 2 4 22
                Responses to Motions Filed 7 17 18
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                31 66 75

                Highlights of the Second Quarter include the following:

                • In People v Michael Allen Miller, we filed an amicus brief in the Michigan Supreme Court on behalf of the Prosecuting Attorneys Association of Michigan. A convicted felon who was unqualified by statute for jury duty sat on the defendant's jury, which found him guilty of criminal sexual conduct, the same crime that the juror had been convicted of in the 1990s. The trial court held a hearing and the juror testified he believed that his convictions would only remain on his record for approximately seven years. The challenged juror proclaimed that he was fair, impartial, and listened to the evidence, arguments, and instructions. The Ottawa trial court denied the defendant's motion for a new trial and the Court of Appeals reversed on the basis of juror misconduct. The Ottawa County Prosecutor filed an application for leave to appeal the Court of Appeals' judgment. The Michigan Supreme Court granted leave, invited amicus curiae briefs, and limited argument to the following issues: (1) whether the Court of Appeals erred in reversing the defendant's conviction and remanding this case to the circuit court for a new trial pursuant to People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948); (2) whether DeHaven was wrongly decided or has been superseded by MCL 600.1354(1); (3) whether a criminal defendant must establish actual prejudice pursuant to MCL 600.1354(1) where the challenged juror was excusable for cause; (4) how the "actual prejudice" standard for purposes of MCL 600.1354(1) should be defined; and (5) whether the juror's failure to disclose his status as a felon, which disqualified him from serving on the jury, constituted structural error pursuant to Neder v United States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999). This case remains pending in the Michigan Supreme Court.
                •  

                • mug-johnsonbrandondeshawn-mdoc2006june
                  B. Johnson
                  In People v Brandon Deshawn Johnson (Eaton County Circuit Ct #05-020559-FH), we prevailed when the Michigan Supreme Court denied leave to appeal "because we are not persuaded that the question presented should be reviewed by this Court." On April 17, 2006, an Eaton County Circuit Court jury found Johnson guilty of Felony Murder and Felony Firearm. On appeal, defendant claims there was insufficient evidence presented at trial that he killed Antonio Weaver during the course of a larceny. Sufficient evidence was presented of the underlying larceny. Witnesses testified that Antonio Weaver had money, a cell phone, and a gun on him the morning he was killed. He also kept heroin in the freezer at the apartment he shared with his girlfriend. When found dead in the living room of the apartment, Weaver's money, heroin, cell phone and gun were missing. Within hours of Weaver's murder, defendant drove the victim's Buick Electra to Detroit and sold it to a stranger. When arrested the day after the murder, defendant had Weaver's gun (the murder weapon) and $747.00 in cash in his possession. Defendant knew Weaver kept large amounts of heroin in his freezer and had money on him the morning of his murder. Even defendant agreed that whoever killed Antonio Weaver stole his money, heroin, and cell phone. From the evidence, the jury could properly find that Antonio Weaver was killed during the course of a larceny.
                •  

                • mug-huverbrianscott
                  Huver
                  In People v Brian Scott Huver, the Court of Appeals affirmed the defendant's convictions and sentences for two counts of second-degree criminal sexual conduct, and possession of less than 25 grams of cocaine. Sentenced as a habitual offender, third offense, Huver received concurrent prison terms of six to 30 years for each CSC conviction and one to eight years for the drug conviction. Huver's issues included whether trial counsel was ineffective for failing to move to suppress his statements to police on the ground that he had unequivocally invoked his Fifth Amendment right to silence. The Court of Appeals found that the record did not support the defendant's claim and counsel is not required to advocate a meritless position. Huver also argued that evidence of Tennessee offenses were improperly admitted under MCL 768.27a. He argued that this conflicted with MRE 404(b) and was unconstitutional because the Michigan Supreme Court has exclusive authority to prescribe rules governing court practice and procedure. The Court of Appeals held that the statute is not merely procedural because it is a substantive rule of evidence reflecting a policy decision that in certain cases, juries should have the opportunity to weigh a defendant's behavioral history. Huver's final claim, that the evidence of his Tennessee offenses violated his right to due process and a fair trial, was rejected by the Court of Appeals because the Tennessee accusations qualified as listed offenses under SORA and are admissible under MCL 768.27a for their bearing on any matter to which they are relevant. The trial court gave a limiting instruction (limited purpose of challenging credibility of defendant's denials that he inappropriately touched the victim given initial denial in same interview that he ever was accused of inappropriately touching a child). Cautionary instruction also given (jury must not convict defendant because they think he is a bad person likely to commit such crimes). The Court of Appeals found that the trial court did not abuse its discretion in admitting the evidence, and the trial court's instruction protected D's rights to due process and a fair trial.
                •  

                • mug-bodellshirley
                  Bodell
                  In People v Shirley Louise Bodell, the Michigan Supreme Court denied the defendant's application for leave to appeal the January 31, 2008 judgment of the Court of Appeals "because we are not persuaded that the questions presented should be reviewed by this Court." On appeal, defendant challenged the sufficiency of the evidence solely on the ground that the evidence was not sufficient to prove defendant's identity as the robber in the Charlotte Check-N-Go robbery. Defendant also claimed that trial counsel erred in failing to include two necessary alibi witnesses by notice as required by MCL 768.21--thus, depriving her of an effective alibi defense. Late in trial, when defendant realized that crucial alibi witnesses were not going to provide the necessary alibi testimony, counsel moved to amend the alibi notice to add defendant's son and the son's long-time girlfriend to rehabilitate defendant's alibi. This was a matter of trial strategy. When counsel was not allowed by the court to amend his notice of alibi and question these additional witnesses-as a matter of trial strategy, counsel moved for a mistrial on the basis of ineffective assistance of counsel.
                  According to the MDoC web site, Bodell's earliest release date is 01/08/2016.
                •  

                • mug-greggfrederick-mdoc
                  Gregg
                  In People v Frederick Junior Gregg, the Eaton County Circuit Court denied the defendant's motion for relief from judgment. Judge Thomas S. Eveland ruled that the defendant properly received 10 points under OV 19 for attempting to interfere with the administration of justice because he fled from police officers when they raided his meth lab. The Circuit Court also denied the defendant's motion for reconsideration under MCR 2.119(F). Defendant failed to demonstrate any palpable error, and defendant also introduced new arguments and issues which cannot be addressed in a motion for reconsideration (defendant claimed there was an ex parte communication between the prosecutor and the judge regarding the scoring of OV 19).
                  According to the MDoC web site, Gregg'as earlies release date is 08/22/2010.
                • Honorable Mention: Assistant prosecutors Hope Freeman, Jody Gilzene, Doug Lloyd, Sunny Matz, Brent Morton, and Neil O'Brien, and Matt Newburg prepared briefs, motions, and responses to motions during the Second Quarter.

                 



                April 09, 2008:

                 

                2008 First Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the First Quarter of 2008. Year-to-date totals for 2007 are listed to comparison purposes.

                 

                  2008
                1st Qr
                2008
                Yr-to-Date
                Total
                2007
                Yr-to-Date
                Total
                Briefs Filed 20 20 21
                Motions Filed 2 2 11
                Responses to Motions Filed 10 10 11
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                35 35 45

                Highlights of the First Quarter include the following:

                • mug-jenkinswilliam-ecsd
                  Jenkins
                  In People v William Jenkins the Michigan Supreme Court denied leave to appeal. At the age of 16, Jenkins committed a carjacking that resulted in the death of 83-year-old Dr. Lewis Eugene Harrington who tried to prevent the vehicle he was gassing up at Meijers from being stolen. Dr. Harrington fell and struck his head and he died two months later in the hospital. Jenkins received 15-25 years, and his issues included: did he possess the malice necessary for a second-degree murder conviction; did the prosecutor breach the plea agreement where the prosecutor did not agree to a downward departure or to remain silent at sentencing; guidelines scoring; whether defendant's sentence violated Blakely v Washington; did the court abuse its sentencing discretion by not departing downward; ineffective assistance of counsel; whether the sentencing court should have considered an incriminating note written by defendant; and statutory interpretation of the carjacking statute and the phrase "course of conduct" being afforded broad meaning regarding restitution for a different vehicle damaged by defendant as he fled on foot from the scene of the carjacking.
                •  

                • mug-bodellshirley
                  Bodell
                  In People v Shirley Louise Bodell the Michigan Court of Appeals affirmed the defendant's convictions and sentences on two counts of armed robbery and her concurrent prison terms of 10 to 20 years on each conviction. Defendant challenged the sufficiency of the evidence regarding the identity of the armed robber, and the effective assistance of counsel regarding the rehabilitation of alibi witnesses. Defendant's convictions arose from the robbery of a Charlotte Check-N-Go store. This case involved similar acts evidence because the appearance of the perpetrator and the method of committing the crime were similar to robberies at two other Check-N-Go stores, one in Hastings and one in Kalamazoo. The defendant was a former Check-N-Go store employee, and the robbery victims identified her as the perpetrator.
                •  

                • steed
                  Steed
                  People v Larry Darryl Steed, the Supreme Court denied leave to appeal. Steed received a life sentence for cocaine delivery. While imprisoned, Steed conspired to deliver cocaine, and hired a hit man to get rid of the confidential informant. Steed's motion for relief from judgment raised seven issues including knowledge of the amount of controlled substance, a claim of altered intent, the right to counsel of his own choosing, the trial court's denial of a continuance, his sentence constituting cruel or unusual punishment, and ineffective assistance of trial and appellate counsel.
                •  

                • In People v Joseph Kendal West, the Court of Appeals denied leave where the defendant challenged the factual basis for his guilty pleas to first-degree child abuse. The defendant admitted that he was angry and frustrated, and he struck his infant son with his hand on more than one occasion, causing bone fractures.
                •  

                • In People v Peter Rusins Albertins, the Court of Appeals reversed the circuit court's order, which had reversed the district court's denial of defendant's motion to quash a warrant for blood test and suppress evidence of defendant's blood alcohol content.
                • Honorable Mention: Assistant prosecutors Hope Freeman, Jody Gilzene, Kelly Grunewald, Sunny Matz, Brent Morton and Neil O'Brien prepared briefs, motions, and responses to motions during the First Quarter.

                 



                January 08, 2008:

                 

                2007 Fourth Quarter Appellate Stats & Achievements

                 

                Eaton County Sr. Assistant Prosecuting Attorney William M. Worden announced that the Eaton County Prosecuting Attorney's Appellate Division made the following filings during the Fourth Quarter of 2007. Year-to-date totals for 2006 are listed to comparison purposes.

                 

                  2007
                4th Qr
                2007
                Yr-to-Date
                Total
                2006
                Yr-to-Date
                Total
                Briefs Filed 15 63 75
                Motions Filed 18 51 21
                Responses to Motions Filed 9 37 22
                Total Filings
                (answers, briefs motions, memorandums, miscellaneous)
                49 163 129

                Highlights of the Fourth Quarter include the following:

                • mug-johnsonbrandondeshawn-mdoc2006june
                  B. Johnson
                  In People v Brandon Deshawn Johnson (Eaton County Circuit Ct #05-020559-FH), the Michigan Court of Appeals (#273693) affirmed the defendant's convictions and sentences of life for felony murder and a consecutive two-year term for felony firearm. Defendant argued there was insufficient evidence that the victim was murdered during the commission of a larceny. However, several witnesses testified that the victim had money and/or drugs in his possession the night before and/or the morning of his murder. There was no money or drugs found at the crime scene or on the victim's body. Defendant agreed that whoever killed the victim must have stolen his drugs and money. Another witness testified defendant told him that he "stuck a guy up for money and ended up shooting him in the head" and that he took money and drugs from the victim's apartment. This testimony, along with the fact that defendant had the murder weapon in his possession and his fingerprint was on the trigger of the weapon, was more than sufficient to establish that defendant took drugs and money from the victim. Although defendant argued that there was testimony explaining away the theft of money a nd drugs and that defendant was not found with either money or drugs in his possession the next day, the Court of Appeals concluded there was more than sufficient evidence that defendant committed felony murder and larceny.
                •  

                • hasselbring
                  Hasselbring
                  In People v Richard Lee Hasselbring (Circuit Ct #03-020327-FH; Ct of Appeals #257846; Supreme Ct #134478), the Michigan Supreme Court denied the defendant's application for leave to appeal, thus reinstating the Court of Appeals decision reversing the trial court's directed verdict of acquittal on the second count of CSC II, reversing the order for resentencing, reversing the order granting a new trial and holding that the trial court erred in dismissing the second count of CSC II. In December of 2007, the trial court revoked the defendant's bond and Hasselbring was remanded to the custody of the Michigan Department of Corrections. Following his 2004 convictions by an Eaton County jury for sexually molesting a six-year-old boy, the defendant was sentenced to 18-180 months. Hasselbring had already served his minimum sentence when, in December of 2006, he was released on bond by the trial court judge. He is currently re-incarcerated with the Michigan Department of Corrections.
                •  

                • r jones ii

                  R. Jones, II

                  People v Ronald Emery Jones II (Eaton County Circuit Ct #03-020113-FC; Court of Appeals #280829), the Court of Appeals denied the defendant's application for leave to appeal because defendant failed to meet the burden of establishing entitlement to relief. Jones pled guilty but mentally ill to two armed robbery charges. In 2003, Jones robbed the Bay gas station in the City of Charlotte and the Double Nickel Party Store in Olivet. During both robberies, Jones carried an unloaded BB gun pistol (which looked like a real handgun) in his waistband where the victims could see it. Defendant unsuccessfully challenged information contained in his pre-sentence investigation report. According to the MDOC web site, Jones' earliest release date is 03/27/2013.

                 


                 

                 

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    Legal Definitions

     

    UPDATED: September 3, 2013 

     

    banr-define

     

    The terms and definitions on this page are relevant to criminal cases in the State of Michigan, U.S.A., unless noted otherwise. Criminal laws & procedures in other states and countries may be very different.

    DO NOT TAKE LEGAL ACTION SOLELY IN RELIANCE ON THE INFORMATION POSTED ON THIS PAGE!

    This page provides general information that is intended, but not guaranteed, to be correct, complete & up-to-date. Do not rely, for legal advice, on information given on this page or any externally referenced Internet sites. If you need legal advice upon which you intend to rely in the course of your legal affairs, consult a competent attorney in your area.

    If the word you are looking for does not appear on this list, check one of the following web sites: American Bar Association, Law.com, or Nolo's Law Dictionary.

     

     

    A   B   C   D   E   F   G   H   I   J   K   L   M   N   O   P   Q   R   S   T   U   V   W   X   Y   Z  

     

     

    A

    ABSTRACT OF CONVICTION
  • A form sent by courts to the Michigan Department of State (Secretary of State) reporting a person's conviction or adjudication for a traffic violation or other "reportable offense" (e.g., drug crime), or to the Michigan Department of State Police reporting a conviction or adjudication for a felony or 93-day or higher misdemeanor.
  • ACCESSORY
  • A person who knowingly and intentionally contributes to or aids in committing a crime (before or after, but not necessarily during, the commission of the crime).
  • Being an "accessory-after-the-fact" to a felony crime is a specific crime in and of itself. An "accessory after the fact" is a person who (i) knows that a crime has occured, and (ii) helps one or more of the people who committed it avoid discovery, arrest, trial, or punishment after the crime ended. The assistance given by an accessory after the fact must tend to frustrate the course of justice. A person cannot be convicted both of the principal crime as an aider/abettor, and as being an accessory after the fact to the same felony crime.
  • An accessory can include a person charged with conspiracy to commit a felony or misdemeanor crime.
  • See also Aiding / Abetting.
  • ACCOMPLICE
  • A person who participates in the commission of a crime, other than the person actually doing the principal criminal act. This person may be charged with the actual crime committed under an "aider or abettor" theory (gave aid, assistance or encouragement to the principal defendant(s)).
  • See also Accessory and Aiding / Abetting.
  • ACQUITTAL
  • Criminal defendant being found "not guilty" of the crime. An acquittal is not a declaration of the accused's "innocence"; it is a verdict that a Prosecutor failed to prove the accused's guilt beyond a reasonable doubt.
  • ACTUS REUS
  • A criminal act (Latin).
  • ADJOURNMENT
  • Postponing or rescheduling a case or court session until another date or time.
  • ADJUDICATION
  • Generally, a final judicial determination of a case. In juvenile delinquency cases, it is the equivalent of a 'conviction' in adult criminal cases, when the court formally takes jurisdiction of the minor due to a plea or a trial verdict.
  • ADULT
  • A person who is no longer deemed to be a minor. In Michigan, a person becomes an adult for criminal cases when they turn 17 [MCL 712A.2(a)]. In most other proceedings, an adult is someone age 18 or older.
  • ADVERSARY PROCEEDING
  • Actions contested by opposing parties. The system of trial practice in the U.S. and some other countries in which each of the opposing or adversarial parties has full opportunity to present and establish its contentions before the court.
  • AFFIANT
  • A person who makes out an affidavit.
  • AFFIDAVIT
  • Written statement of fact that is verified by oath or affirmation before a notary public or officer having authority to administer oaths. (Affidavits are generally not admissible in criminal trials or hearings in lieu of testimony because the opposing party has no opportunity to cross-examine the affiant.)
  • AFFIRMATIVE DEFENSE
  • Without denying the charge, the defendant raises extenuating or mitigating circumstances such as insanity, self-defense, or entrapment to avoid civil or criminal responsibility. The defendant usually must prove any affirmative defense he/she raises; but, in Michigan, a prosecuting attorney must disprove a claim of self-defense beyond a reasonable doubt. Court rules may require a defendant to notify the opponent before the trial that an affirmative defense will be raised.
  • AFFIRMED
  • When an appellate court declares that a lower court's order is valid and will stand as rendered in the lower court.
  • AGENT
  • Someone authorized to act for another person (known as the "principal"). Violation of a principal-agent relationship is the core of an embezzlement.
  • AIDING / ABETTING
  • Intentionally assisting (procuring, counseling, encouraging, helping, etc.) another person in the commission of a crime.
    • Examples: A bank robbery "get-away car" driver or look-out.
  • There is no distinction between a principal and an aider/abettor. Every person involved in the commission of an offense, whether he directly commits the act constituting the offense or whether he procures, counsels, aids, or abets in its commission can be prosecuted, tried, convicted and punished as if he had directly committed such offense. [MCL 767.39] "Aiding/abetting" is not a specific crime, it is a legal theory that results in someone other than a principal actor in a crime beging charged with / convicted of the actual crime.
  • Mere knowledge that another person is going to commit a crime, or mere presence at the scene of a crime, is not enough.
  • A person cannot be convicted both of the principal crime as an aider/abettor, and as being an accessory after the fact to the same felony crime.
  • See also Accessory and Accomplice.
  • ALIBI
  • "Lack of presence" defense. The defendant need not prove that he was elsewhere when the crime happened; he need only notify the Prosecuting Attorney of his intent to claim an alibi (along with his list of alibi witnesses). Ultimately, the Prosecutor must prove beyond a reasonable doubt that the defendant was present (i.e., a Prosecutor must disprove a claimed alibi).
  • ALLOCUTION
  • A defendant's opportunity to make a statement to the judge at sentencing. A defendant may make a personal statement, but is not required to do so. His/her attorney may also make a statement.
  • AMICUS BRIEF
  • A brief filed by an amicus ("friend of the court") in support of a party in a lawsuit or pending appeal. The court may have to give the amicus permission to file the brief, and may limit the issues argued by the amicus.
  • AMICUS CURIAE
  • "Friend of the Court" (Latin). A party who volunteers information on some aspect of a case or law to assist the court in its deliberation.
  • ANSWER
  • A party's written response to a legal pleading, such as a motion or brief.
  • A.P.A.
  • Abbreviation for Assistant Prosecuting Attorney.
  • APPEAL
  • Request to a supervisory court, usually composed of a panel of judges, to change the legal ruling of a lower court. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the Appellant; the opposing party is the Appellee.
    • Appeal by Application for Leave --- An appeal where a higher court must give permission to file it. A party must seek leave to appeal when a final order has not been entered, when the appeal is late, or in criminal cases when a defendant has pled guilty and is appealing an issue other than his sentence. An Application for Leave to Appeal explains the legal issues that the appellant wants reviewed, and the facts and law supporting them. The court has final discretion to accept or reject an application.
    • Appeal by Right --- An appeal to a higher court where permission does not have to first be obtained. The appeal must be filed within a specified time frame after the lower court's final order has been entered.
  • APPEAL RECORD
  • The record sent by the trial court to the appellate court of what happened at the trial court. This includes a copy of the docket, the case file (court documents) and transcripts of court hearings.
  • APPEARANCE
  • A document filed with the court (and provided to other parties) by an attorney advising that the attorney is representing a specific party.
  • APPEARANCE TICKET
  • A written notice to appear in court regarding a violation of a state law or local ordinance.
  • APPREHENSION ORDER
  • An order issued by the court to take a minor into custody. Also called a "pick-up order".
  • APPELLANT
  • The party appealing a decision or judgment to a higher court.
  • APPELLATE COURT
  • A court that reviews lower court decisions. Circuit Court is the appellate court for District Court cases. The Michigan Court of Appeals is the appellate court for Circuit Court and Probate Court cases. The Michigan Supreme Court is the appellate court for Court of Appeals decisions.
  • APPELLEE
  • The party responding to an appeal filed in a higher court.
  • ARRAIGNMENT
  • Criminal defendant's first appearance before a judge. The primary purpose is to inform the defendant of the charge(s) he is facing. The judge may also determine an appropriate bail and decide on a request for court-appointed counsel.
  • ARREST
  • To take into custody by legal authority.
  • ARREST WARRANT
  • An order issued by a judge or magistrate to a peace officer requiring the arrest of a named person.
  • See Warrantless Arrest.
  • ASSAULT [MCL 750.81, et seq]
  • An unlawful act that places another person in reasonable apprehension of receiving an immediate battery. An attempt to commit a battery. The defendant must intend to injure the victim or make the victim reasonably fear being struck. An assault must be intentional, not an accident.
  • Michigan has many types and levels of assaults:
    • Assault, or Assault & Battery - penalty: Misdemeanor -- 93 days &/or $500
    • Aggravated Assault - penalty: Misdemeanor -- 1 year &/or $1,000
    • Domestic Violence - penalty: Misdemeanor -- 93 days &/or $500
    • Aggravated Domestic Violence - penalty: Misdemeanor -- 1 year &/or $1,000
    • Assault with a Dangerous Weapon (Felonious Assault) - penalty: Felony -- 4 years &/or $2,000
    • Assault with Intent to Do Great Bodily Harm (Assault GBH) - penalty: Felony -- 10 years &/or $5,000
    • Assault with Intent to Maim - penalty: Felony -- 10 years &/or $5,000
    • Assault with Intent to Rob While Unarmed - penalty: Felony -- 15 years
    • Assault with Intent to Rob While Armed - penalty: Felony -- Life or any number of years
    • Assault with Intent to Murder - penalty: Felony -- Life or any number of years
  • Note: The victim need not be actually injured for a "Simple Assault", but injuries can be circumstantial proof of higher levels of assaults. For example, proof that a victim was physically injured and needed immediate medical attention can distinguish "Simple Assault" from "Aggravated Assault". The type or severity of injury may also prove the defendant's "intent" (i.e., Assault With Intent to Do Great Bodily Harm Less Than Murder, Assault with Intent to Maim, Assault With Intent to Murder, etc.).
  • Note: See self defense.
  • ASSISTANT PROSECUTING ATTORNEY
  • Lawyer hired by the elected Prosecuting Attorney to prosecute cases within that county as representatives of the People of the State of Michigan.
  • ATTORNEY
  • A lawyer. A person authorized to practice law in a state to represent the legal interests of another person.
  • AUTOMATIC WAIVER
  • See "Waiver of Jurisdiction".


  •  

    B

    BAIL
  • Bond money paid to a court by or on behalf of a criminal defendant as security that, when released from jail, the defendant will appear at all future hearings. The court can also set conditions of release (i.e., no contact with the victim, no alcohol consumption, etc.) If another person posts the bail money, then that third party vouches that the defendant will appear at future court dates. Bail can be forfeited if the defendant fails to appear or violates release conditions.
  • BAILIFF
  • A court employee who assists the judge in maintaining order in the courthouse, and who is responsible for the custody of a jury.
  • BATTERY
  • Intentional, unwanted and forceful/violent touching of another person, or something closely connected with that person.
  • BENCH TRIAL
  • Trial held before a judge and without a jury. The judge determines the facts.
  • BENCH WARRANT
  • A court order issued "from the bench" commanding the defendant's (or a missing witness') arrest and appearance in court after previously failing to appear for a hearing. A bench warrant can also be issued against a party for violating a court order, such as conditions of release or probation.
  • BEYOND A REASONABLE DOUBT
  • See Burden of Proof.
  • BIND-OVER
  • Finding at a felony preliminary examination that probable cause evidence exists to require a trial at the Circuit Court level on the charges made against the defendant.
  • BOND / BAIL BOND
  • A promise or contract to do or perform a specified act, or pay a penalty for failure to perform. This is usually guaranteed by a 'surety', who promises to pay if the 'principal' defaults, or by paying a cash bond.
  • In criminal cases, 'bond' means the same thing as 'bail': a financial obligation signed by the accused or a surety intended to guarantee the defendant's future appearances in court. The amount of the bond is set by a judge or magistrate. The bond can include conditions of release (i.e., no contact with the victim, no alcohol consumption, etc.) Factors influencing the amount of bond include the seriousness of the charge and risk to the community if the defendant is free, the defendant's criminal history, and the defendant's ties to the community.
  • There are four types of bonds:
    • Personal recognizance bonds (a.k.a. "PR" bonds or "signature bonds") do not require the defendant or a third party to pay money to the court, unless the defendant later fails to appear or violates other bond conditions.
    • Percent bonds require the defendant to post a percentage of the full bond (generally as low as 10%) to get out of jail, and the remaining percentage is due only if the defendant later fails to appear or violates other bond conditions.
    • Cash bonds require the full amount of the bond to be paid in cash before the defendant can be released. If the defendant appears at all future court dates, most of the monies are returned to the person who paid the bond.
    • Surety bonds are posted by a professional bondsman after being paid a non-refundable fee (usually a percentage of the full bond amount.
  • BREAKING
  • As in "breaking & entering" ... means using some force, no matter how slight, to enter a building (e.g., opening a closed door or pushing a partially-open door farther open, raising a window, taking screen off); damage need not result.
  • BRIEF
  • Written arguments submitted by the lawyers for each side in a case explaining facts and/or law supporting their respective positions why the court should decide the case or a particular part of a case in favor of that party.
  • BURDEN OF PROOF
  • Duty to establish through evidence a requisite degree of belief concerning a fact in the mind of a trier of fact. The duty to establish facts in an adversary proceeding.
  • Different burdens of proof exist in the law:
    • Prima facie -- evidence which is good and sufficient "on its face" to establish a given fact when not rebutted or contradicted.
    • Probable cause -- the burden of proof to issue an arrest or search warrant, or for a preliminary examination bind-over.
    • Preponderance of the evidence -- the burden of proof in civil cases. Evidence which, as a whole, shows that the fact sought to be proved is more probable than not. Evidence which is more credible and convincing. It is generally visualized as that side of the dispute toward which the scales tip when the credible evidence is weighed by the trier of fact. Something more than 50% of the credible evidence.
    • Clear and convincing -- the burden of proof in selected proceedings, such as termination of parental rights. A measure of proof which produces a firm belief or a high probability as to the allegations. It is difficult to quantify, but is more than a "preponderance" and less than "beyond a reasonable doubt".
    • Beyond a reasonable doubt -- the burden of proof in criminal cases. The degree of belief a criminal juror (or the judge in a bench trial) must have regarding all factual elements of a charged crime. No doubt, based on reason and common sense, can exist as to any fact needed to be proved.

     

     


     

     

    C

    CAPITAL OFFENSE
  • Crime punishable by life in prison, or by death. (Michigan does not have a death penalty.)
  • CARRYING A CONCEALED WEAPON
  • Crime that prohibits:
    • carrying a pistol or other firearm or dangerous weapon (e.g., dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length) with an intent to use the same unlawfully against the person of another [MCL 750.226]; or
    • carrying a dagger, dirk, stiletto, double-edged non-folding stabbing instrument of any length, or any other dangerous weapon (except a hunting knife adapted and carried as such), concealed on or about his/her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person [MCL 750.227]; or
    • carrying a pistol in a place or manner inconsistent with a license or permit issued pursuant to 1927 PA 372.
  • Penalty: Felony -- up to 5 years or $2,500 fine.
  • Unless licensed to carry a firearm, a person may not carry a concealed weapon for "self-defense".
  • CASE LAW
  • Published decisions issued by appellate courts. The legal principals announced in the decisions are binding authority for lower courts.
  • CASELOAD
  • The number of cases a judge handles in a specific time period.
  • CCW
  • See Carrying a Concealed Weapon.
  • CHALLENGES (Jury Selection)
  • Method for striking prospective jurors.
  • The Michigan Court Rules allow two types of juror challenges: for cause (unlimited number, the grounds for which must fit reasons specified in the Michigan Court Rules) and peremptory (limited number depending on the severity of the crime on trial, the grounds for which do not have to be specified). Appropriate challenges for cause exist when the juror is shown to be biased for or against a party, is related to a trial participant, etc. No reason need be announced for a peremptory challenge, although a purely racially-based challenge is not permitted.
  • A party can also "challenge the array", which questions the qualifications of the entire jury array (panel) summoned for jury duty (e.g., racial discrimination).
  • CHAMBERS
  • Judge's office.
  • CHARGE TO THE JURY
  • A judge's instructions to a jury. Information on the laws relating to the case, definitions of legal terms, and explanations of procedures relevant to the jury's duties.
  • CHIEF JUDGE
  • In courts with two or more judges, one judge is selected as the chief judge, who is a court administrator, in addition to handling his/her court docket.
  • CHILD ABUSE [MCL 750.136b]
  • Criminal mistreatment of a minor by an adult legally responsible for the minor. Concerns conduct toward an unemancipated child under 18 years of age by the parent, guardian or other person who cares for or has custody of or authority over the child. There are 4 degrees of child abuse.
    • First Degree (felony --- up to 15 years in prison) --- knowingly or intentionally causing serious physical harm (i.e., substantial physical disfigurement or impairment of a body organ or limb) and/or serious mental harm to a child.
    • Second Degree (felony --- up to 4 years in prison) --- causing serious physical harm and/or serious mental harm to a child by knowingly or intentionally committing an act that is cruel or is likely to cause serious physical or mental harm.
    • Third Degree (high court misdemeanor --- up to 2 years in prison) --- knowingly or intentionally causing some physical harm to the child.
    • Fourth Degree (misdemeanor --- up to 1 year in jail) --- causing physical harm to a child through a reckless act or an omission.
  • A defendant may raise a defense that his/her forceful actions were reasonable "parental discipline".
  • CHILD NEGLECT
  • The failure of a parent, guardian, or custodian of a minor to provide the minor with proper or necessary support, education, medical care, or physical care. Also, the failure to provide a fit home environment for the minor.
  • CHILD PROTECTIVE PROCEEDINGS
  • Proceedings in the family division of the circuit court regarding children under age 18 who are abused or neglected.
  • CHILDREN'S PROTECTIVE SERVICES (CPS)
  • A division in the Office of Children's Services in the Michigan Department of Human Services (formerly called the Family Independence Agency). Children's Protective Services workers investigate reports of suspected child abuse or neglect. They can also provide services to families in an effort to prevent abuse or neglect.
  • See DHS's on-line CPS Manual for more information.
  • CHILD SEXUALLY ABUSIVE MATERIAL [MCL 750.145c]
  • Developed or undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound recording of a child engaging in a listed sexual act; a book, magazine, or other visual or print medium containing such a photograph, film, slide, electronic visual image, or sound recording; or any reproduction, copy, or print of such a photograph, film, slide, electronic visual image, book, magazine, other visual or print medium, or sound recording.
  • A listed sexual act means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity. These terms are defined by statute.
  • Penalties:
    • Knowing Possession: Misdemeanor --- up to 1 year &/or $10,000 fine.
    • Distribution / Promotion: Felony --- up to 7 years &/or $50,000 fine.
    • Production / Financing / Inducement to Produce: Felony --- up to 20 years &/or $100,000 fine.
  • CIRCUIT COURT
  • Michigan's highest level trial court, with the broadest range of powers (including hearing appeals from District Court). Circuit Court has three divisions:
    • Criminal (the trial court for all felony crimes)
    • Civil (civil law suits over $25,000, or seeking injunctions or other equitable relief), and
    • Family (every aspect of family law, including divorce, child custody, parenting time/visitation, paternity, adoption, child & spousal support, PPOs, juvenile delinquency, child protection proceedings [parental neglect or abuse], as well as emancipation of minors, name changes, and waiver of parental consent to abortions).
  • The Friend of the Court office is a division of the Circuit Court.
  • Michigan has 57 Circuits, covering all 83 counties. Circuit Court judges are elected on a non-partisan ballot to six-year terms.
  • Eaton County has two Circuit Court Judges: Thomas S. Eveland and Calvin E. Osterhaven.
  • CIRCUIT COURT MISDEMEANOR
  • An offense designated by the legislature as a misdemeanor, but punishable by more than one year in jail. It is processed like a felony.
  • CIRCUMSTANTIAL EVIDENCE
  • Indirect evidence that implies something occurred but does not directly prove it. Evidence that suggests something by implication.
  • Example: circumstantial evidence of embezzlement includes proof that the defendant-employee had access to missing money and made several big-ticket purchases in cash around the time of the alleged embezzlement.
  • The law does not distinguish between the weight to be given to direct and circumstantial evidence. Jurors are instructed that they may give more weight to circumstantial evidence than direct evidence if they find the circumstantial evidence to be more credible.
  • See also direct evidence.
  • CITATION
  • A reference to a source of legal authority.
  • A direction to appear in court, as when a defendant is cited into court rather than arrested.
  • CIVIL CASE
  • Case between private litigants concerning personal wrongs, generally where the losing party must compensate the prevailing party with money or other property (e.g., divorces, personal injury, landlord-tenant, small claims and contract or property disputes). A civil plaintiff may be also be asking the court to tell the defendant to stop some behavior, or to do a specific thing. Both the plaintiff and the defendant may be represented by an attorney, unless the case is filed as a small claims case.
  • CIVIL INFRACTION
  • Non-criminal violation of a law prosecuted by the State or a local government unit. A person cannot be sent to jail for a civil infraction. The most common example is a traffic citation, like speeding. The penalty for a civil infraction is payment of fines, costs, and fees. For a traffic civil infraction, points may be added to the driving record.
  • A person can be found responsible for a civil infraction in one of four ways:
    1. by failing to respond to the citation on time; a default judgment will be entered; in most cases, the person's driver's license will be suspended until the fines & costs + a surcharge are paid;
    2. by admitting responsibility for the violation and paying the amount indicated on the ticket;
    3. after an informal hearing before a district court judge or magistrate;
    4. after a formal hearing before a district court judge.
  • CLEAR AND CONVINCING
  • See Burden of Proof.
  • CLERK OF THE COURT
  • A constitutionally-elected officer: the Circuit Court Clerk.
  • A court employee who is responsible for maintaining permanent records of all court proceedings and exhibits, and administering the oath to jurors and witnesses.
  • COBBS PLEA
  • Based on People v Cobbs, 443 Mich 276 (1993).
  • A "Cobbs plea" allows a defendant to enter a conditional guilty plea which can be withdrawn if a judge's eventual sentence falls outside sentencing terms specified by the judge before the plea was tendered.
  • Normally, defendants plead guilty without any legal expectation of a specific sentence, and judges are not bound by a sentencing agreement between the parties. But in "Cobbs agreements", the judge is asked to advise the parties before the plea is entered what an appropriate sentence range would be (based on case facts and the defendant's criminal history known to the judge at that time). The judge announces a sentencing 'preview', but the prosecutor is not a party to the terms of this possible sentence. If the defendant is induced to plead by this expected sentence, he may withdraw his plea if he does not receive that sentence.
  • See also Killebrew Plea.
  • CODE
  • A grouping of statutes, relating to a particular subject matter and arranged in classified order. Usually created by enactment of a new statute by the legislature embodying all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change would result in a new statutory concept. Examples: the Juvenile Code, Mental Health Code, etc.
  • CO-DEFENDANT
  • One who participates in the commission of a crime, along with another person.
  • COMMON LAW
  • Body of legal principles which derives its authority solely from usages, customs or court decisions since ancient times, or from the judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs, particularly the ancient unwritten law of England. Common law is distinguished from "statutory law", which is enacted by a legislative body such as Congress or a state legislature. Common law is the basis for the legal systems in every state except Louisiana. In Michigan, common law is still in effect except where it has been modified or repealed by statute.
  • COMPETENCY (TO STAND TRIAL)
  • A defendant is incompetent to stand trial only if incapable (1) of understanding the nature and object of the proceedings; or (2) of assisting the defense in a rational manner because of mental condition.
  • See MCL 330.2020.
  • Incompetence may be raised at any time during the proceedings by court or by motion of the parties. Where there is evidence of incompetency, the judge must halt the proceedings and refer the defendant to the center for forensic psychiatry or other facility officially certified by the department of mental health for a determination of competency.
  • A competency hearing must be held within 5 days of receipt of the forensic center report.
  • Treatment and/or medication may be ordered if there is substantial probability the defendant will regain competence.
  • Civil commitment may be sought if no substantial likelihood that the defendant will regain competence, or the case is dismissed after 15 months of incompetency.
  • Defendant may not be determined incompetent because medication is required to keep the defendant competent.
  • Amnesia covering all events before, during, and after the charged offense does not render the defendant incompetent.
  • COMPLAINT
  • In a criminal action, it is a written accusation (under oath or upon affirmation) that a felony, misdemeanor, or ordinance violation has been committed and probable cause exists that the named person is guilty of the offense.
  • Document on which criminal misdemeanors are charged in District Court, as well as the initial charging document for felonies.
  • CONCURRENT SENTENCE
  • Upon conviction for multiple crimes, a criminal sentence served at the same time as another criminal sentence, rather than one after the other. The person is release at the expiration of the longest term specified.
  • See also consecutive sentence.
  • CONCURRING OPINION
  • An opinion written by an appellate judge who agrees with the decision reached in the case, but would base the decision on different reasons than those expressed by the majority of judges.
  • See also Dissenting Opinion and Majority Opinion.
  • CONFESSION
  • An oral or written statement by person admitting that he or she committed a certain offense.
  • CONSECUTIVE SENTENCE
  • Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time. Consecutive sentences may only be imposed if there is specific statutory authority to do so. In some circumstances, consecutive sentences may be imposed within the judge's discretion (e.g., when a person is convicted of a new offense committed while on parole status); in other circumstances, consecutive sentences are mandatory (e.g., convictions for felony firearm + another offense).
  • See also concurrent sentence.
  • CONSENT, AGE OF
  • In Michigan, a minor has the legal capacity to consent to sexual activity at age 16. [See Criminal Sexual Conduct.]
  • CONSENT CALENDAR
  • An informal probation in some juvenile delinquency cases, usually for 1st-time misdemeanor offenders. If all probation terms are completed, the case is dismissed; if not, the court can transfer the case to the formal calendar for a pre-trial conference, formal plea, trial, etc. In victim rights cases, the court must notify the prosecutor if consent calendar may be approved so the victim can be consulted and the prosecutor can advise the court if he approves. Consent calendar can be granted over a prosecutor's and/or victim's objection.
  • CONSPIRACY [MCL 750.157a; CJI2d 10.1-10.5]
  • An agreement (express or implied) between two or more people to do an illegal act, or to commit a legal act in an illegal manner.
  • See Wharton's Rule.
  • A person can be convicted of both the crime of conspiracy to commit (insert name of crime) and of the actual crime (as a principal or as an aider/abettor). This does not violate principals of double jeaopardy.
  • CONTEMPT OF COURT
  • An act or failure to act that violates a court order, impedes the functioning of the court, or impairs the authority of the court.
  • An act calculated to embarrass, hinder, or obstruct a court. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect contempts involve the failure or refusal to obey a court order. A party found in contempt of court normally receives sanctions.
  • CONTINUANCE
  • The postponement of a hearing until a later date.
  • CONTRABAND
  • Goods barred by law (e.g., specific weapons, or drugs prohibited by law, etc.).
  • CONVICTION
  • Judge or jury's decision that the accused person is guilty of the crime.
  • CORPUS DELICTI
  • "Body of the crime" (Latin). The objective proof that a crime has been committed.
  • A confession is not admissible if the "corpus" of the crime cannot be proven.
  • CORROBORATING EVIDENCE
  • Supplementary evidence that supports or confirms the initial evidence. A victim's or witness' version of events does not have to be backed up by corroborating evidence.
  • COUNSEL
  • One who gives advice, especially legal advice.
  • See Attorney.
  • COURT
  • Government entity authorized to resolve legal disputes. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs." Courts and judges are part of the Judicial Branch of government.
  • COURT-APPOINTED ATTORNEY
  • Legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a "free" attorney; the defendant may be ordered to reimburse some or all of the attorney's bill. If jail time will not be imposed on a misdemeanor, the judge need not appoint an attorney.
  • See also Guardian ad Litem.
  • COURT OF APPEALS
  • "Intermediate" appellate court between the Supreme Court and the Michigan trial courts. Final decisions from a Circuit or Probate Court hearing may be appealed to the Court of Appeals. (See MCL 600.308.)
  • Hearings are held in Detroit, Grand Rapids, Lansing and Marquette before a panel of three Court of Appeals judges. At least two of the three judges must agree on the ruling. The panels are frequently rotated so that a variety of judicial opinions are considered. The decision of the panel is final, except for those cases which the Supreme Court reviews.
  • Court of Appeals judges are elected for 6-year terms.
  • Visit the Michigan Court of Appeals web site at coa.courts.mi.gov.
  • COURT OF CLAIMS
  • Specialized court that handles only claims over $1,000 filed against the State of Michigan or one of its departments. (Claims for less than $1,000 should be filed with the Department of Management and Budget's State Administrative Board.) The Court of Claims is part of the 30th Circuit Court in Ingham County. All trials heard by the Court of Claims are heard by a judge, not a jury.
  • COURT REPORTER or RECORDER
  • Person who makes a word-for-word record (either through stenography/short-hand or audio/video recording) of what is said in a court proceeding and can produce a transcript of the proceedings upon request. Michigan court reporters or recorders must be trained and certified.
  • CRIME
  • An act in violation of criminal law: an offense against the State of Michigan.
  • CRIMINAL CASE
  • Charge filed by a prosecutor against a defendant concerning violation of a criminal law. The act of violating a criminal law is an offense against the community, not a private wrong. Examples of criminal cases include theft, murder and OWI.
  • Criminal Responsibility
    See Insanity
    CRIMINAL SEXUAL CONDUCT
  • Michigan categorizes four degrees of CSC:
    • 1st Degree: (MCL 750.520b --- Felony--- life or any term of years + AIDS~HIV~STD testing) --- a sexual act involving penetration (sexual intercourse, anal intercourse, cunnilingus, fellatio, intrusion into any other body part or object in genital or anal openings) and any of the following:
      • victim is under 13 years old
      • victim is 13-15 years old + is a blood affiliation to the defendant, lives in the defendant's household, or the defendant is in an authority position to the victim
      • multiple actors are involved and force/coercion was used to accomplish the sexual penetration or the victim is incapacitated (physically helpless, mentally incapacitated or mentally defective)
      • weapon involved
      • personal injury + force/coercion
      • personal injury + victim incapacitated
      • defendant/actor is in the process of committing another felony
    • 2nd Degree: (MCL 750.520c --- Felony --- up to 15 years + AIDS~HIV~STD testing) --- sexual contact with the genital area, groin, inner thigh, buttock or breast, AND any of the circumstances listed for 1st Degree CSC.
    • 3rd Degree: (MCL 750.520d --- Felony--- up to 15 years + AIDS~HIV~STD testing) --- sexual penetration and any of the following:
      • victim is 13-15 years old
      • force or coercion
      • victim incapacitated
    • 4th Degree: (MCL 750.520e --- High Court Misdemeanor--- up to 2 years in prison and/or $500.00 fine + AIDS~HIV~STD testing) --- sexual contact and any of the following:
      • force or coercion
      • victim incapacity
      • defendant works for the Department of Corrections and the victim is an inmate
  • All persons convicted of CSC must register as a sex offender.
  • No need for corroboration of victim's testimony or resistance by victim.
  • A person can be charged and convicted of CSC on a spouse.
  • CROSS EXAMINATION
  • Questioning of a witness by a party other than the one who called that witness to the witness stand, to test the truthfulness of the witness's testimony, to further develop it or to otherwise expand on it.
  • C.S.C.
    See Criminal Sexual Conduct
    CUSTODY ORDER
  • Order of the Court which places a juvenile in the custody of the Court for a specific length of time, with authority to place the juvenile in detention as needed.


  •  

    D

    DATING RELATIONSHIP
  • Frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context. If a "dating relationship" is present, a person can get a Domestic PPO, and an assault can be charged as Domestic Violence.
  • DEFENDANT
  • Person who has been formally charged with committing a crime.
  • DEFENSE ATTORNEY
  • The attorney representing the accused (defendant).
  • DELIBERATIONS
  • Jury's discussions to decide the outcome of a case, held after all evidence has been presented and jury instructions have ended.
  • DELINQUENCY
  • Chargeable violations of laws by a minor under the age of 17. Juvenile delinquency offenses are prosecuted in the Family Division of Circuit Court. Chargeable offenses include all crimes that an adult could be charged with (e.g., violations of the penal code, motor vehicle code, etc.), plus "status offenses" (e.g., truancy).
  • Delinquency offenses are not considered 'criminal convictions'.
  • DELINQUENCY PROCEEDINGS
  • See Juvenile Delinquency Proceedings.
  • DE NOVO
  • "Anew" or "afresh" (Latin). A "trial de novo" is the retrial of a case. A "de novo" standard of review permits an appellate court to substitute its judgment for that of a trial judge, (e.g., interpretations of laws).
  • DEPARTMENT OF HUMAN SERVICES (DHS)
  • The state agency responsible for administering a broad range of social services programs in Michigan, including financial aid to families and the elderly, foster care services, Children's Protective Services, adoption services, juvenile justice, etc.
  • Click here to locate your county's DHS office.
  • The Department of Human Services was formerly known as the Family Independence Agency (until 03/15/2005), and before that as the Department of Social Services.
  • DEPOSITION
  • Oral statement made before an officer authorized by law to administer oaths. They are used in civil cases to examine potential witnesses, to obtain discovery, or to be used later in trial. Depositions are not used in criminal cases.
  • DESIGNATED PROCEEDINGS
  • Proceedings in which a juvenile under age 17 is tried in criminal proceedings that occur within the Family Division of the Circuit Court. The juvenile is afforded all the legal and procedural protections that an adult would be given if charged with the same offense in a court of general criminal jurisdiction. The juvenile could receive the same consequences as an adult if found guilty.
  • DETENTION
  • The secure, temporary care of a child who requires custody for his/her own welfare or the community's protection pending disposition or trial by the court or execution of an order of the court for placement or commitment.
  • D.H.S.
  • See Department of Human Services.
  • DIRECT EVIDENCE
  • Evidence that stands on its own to prove an alleged fact, such as what a witness claims he/she personally saw or heard. Example: testimony by a teller that she saw the defendant pointing a gun at her and heard him demand money during a bank robbery.
  • See also circumstantial evidence.
  • DIRECT EXAMINATION
  • Questioning of a witness by the party who first called the witness to the stand.
  • DISMISSAL
  • A court order terminating a case. May be voluntary (at the request of the parties) or involuntary.
  • See nolle prosequi.
  • DISORDERLY CONDUCT [MCL 750.167]
  • Penalty: Misdemeanor --- up to 90 day and/or $100
  • AKA "disorderly person" ... a compilation of socially offending conduct, including:
    • refusing or neglecting to support one's family
    • common prostitution
    • window peeping
    • public intoxication that is endangering people, or causing a public disturbance
    • indecent or obscene conduct in a public place
    • vagrancy, public begging, loitering in a place of illegal business, including a house of ill fame or prostitution
    • jostling or roughly crowding people unnecessarily in a public place
  • DISPOSITION
  • Family Court hearing in delinquency or neglect/abuse cases that is the equivalent of a "sentencing" in adult courts.
  • DISSENTING OPINION
  • An opinion written by an appellate judge explaining why he/she disagrees with the decision reached by the majority of judges considering the case.
  • See also Concurring Opinion and Majority Opinion.
  • DISTRICT COURT
  • All criminal cases for persons 17 years or older start in the district court. This Court conducts initial criminal arraignments, sets and accepts bonds, and conducts preliminary examinations in felony cases.
  • The trial court for all misdemeanors for which punishment does not exceed one year, civil infractions, civil small claims actions (up to $1,750), civil law suits for $25,000 or less, garnishments, landlord/tenant disputes, evictions, foreclosures and other proceedings.
  • District Court procedures are essentially like those used in Circuit Court with the exceptions that a city/township ordinance may be prosecuted by that city's/township's attorney ... and pre-sentence investigations are not always prepared on misdemeanors.
  • There are approximately 100 district courts in Michigan. District court judges are elected for 6-year terms on a non-partisan ballot.
  • Eaton County has two District Court Judges: Harvey J. Hoffman and Julie Reincke.
  • DIVERSION
  • A process of removing some minor criminal, traffic, or juvenile cases from the full judicial process on the condition that the accused undergo rehabilitation &/or make restitution for damages. Diversion does not involve a formal conviction/adjudication, and may not require an admission of guilt. If the accused completes this informal probation successfully, then the entire matter may be closed, and is expunged (erased) from the person's record.
  • Some Prosecutors' offices administer in-house diversion programs for first-time or property crime offenders. In those cases, charges are not issued unless the program is not completed.
  • DOCKET / CASE DOCKET
  • A written list of all important acts done in court in the conduct of an individual case, from beginning to end. This term is also commonly, but improperly, applied to the case calendar (a list of cases set for a hearing by a court on a specific day).
  • DOCKET NUMBER
  • Number assigned by the court's clerk to identify each case.
  • DOUBLE JEOPARDY
  • Being placed more than once in danger of being convicted and sentenced for the same offense. Being tried twice for the same offense. Jeopardy 'attaches' (begins) in a jury trial when the selected jury is sworn, and attaches in a bench trial when the first witness is sworn.
  • If a judge declares a mistrial has occurred, a criminal case may be re-tried without violating double-jeopardy.
  • DRUNK DRIVING
    See "OWI"
    DUE PROCESS (of Law)
  • The fundamental procedural rules that guarantee "fair play" in the conduct of legal proceedings (e.g., the right to notice and a hearing, the right to an impartial judge and jury, the right to present evidence on one's own behalf, the right to confront one's accuser, the right to be represented by counsel, etc.).
  •  


     

    E

    EMANCIPATION [1968 PA 293; MCL 722.1 et seq]
  • Termination of the parents' rights to the custody, control, services and earnings of a minor.
  • Rights & Responsibilities of Emancipated Minors: to enter enforceable contracts; to sue or be sued; to earn a living and retain earnings; to authorize medical, dental or medical care; to marry; to act autonomously in all business relationships; to apply for a driver's license and other state licenses; to apply for welfare; to make decisions and give authority in caring for a minor child; to make a will.
  • Emancipation "by operation of law": occurs when the minor (a) turns 18 years old, (b) is validly married, or (c) is on active military duty or is in police custody and the parent's consent is not available.
  • Emancipation "by order of the court": A minor who is 16 or 17 years old can petition the Circuit Court's Family Division for emancipation, but must prove that he/she can manage his/her financial and social affairs (including proof of employment or other means of support; housing; etc.), and attach affidavits from a physician, psychologist, therapist, nurse, clergy, school administrator, school counselor, teacher, law enforcement officer, duly regulated child care provider, or certified social worker with personal knowledge of the minor's circumstances and a belief that emancipation is in the minor's best interests. Receipt of General Assistance or ADC-F is not qualified "other means of support" and is not proof of self-support by the minor. The minor must also prove that the parent/guardian either does not object to emancipation or is not supporting the minor. The court must hold a hearing on the petition and determine (by a preponderance of the evidence) that the minor has met all of the legal requirements for emancipation, understands the rights and responsibilities of emancipation, and has shown that emancipation is in his/her best interest.
  • An emancipation obtained by fraud is voidable. Voiding the order does not affect an obligation, responsibility, right, or interest that arose when the order was in effect.
  • The minor or a parent or guardian of the minor may appeal (to the Court of Appeals) the Family Court's grant or denial of an emancipation petition.
  • Approved SCAO forms for emancipation cases (including the petition) can be downloaded at courts.michigan.gov/scao/courtforms/emancipation/emindex.htm.
  • The Prosecuting Attorney has no official role in an emancipation petition hearing.
  • EMBEZZLEMENT [MCL 750.174]
  • Michigan defines 4 levels of Embezzlement:
    • under $200: Misdemeanor -- up to 93 days and/or $500, or 3 times amount embezzled, whichever is greater
    • $200 or more but less than $1,000 (or repeat offender of above): Misdemeanor -- up to 1 year and/or $2,000, or 3 times amount embezzled, whichever is greater
    • $1,000 or more but less than $20,000 (or repeat offender of above): Felony -- up to 5 years and/or $10,000, or 3 times amount embezzled, whichever is greater
    • $20,000 or more (or repeat offender of above): Felony -- up to 10 years and/or $15,000, or 3 times amount embezzled, whichever is greater
  • The essence of this crime is a violation of trust --- the agent (e.g., employee) was entrusted with the principal's (e.g., employer) property, acquired the principal's property through that relationship of trust, and dishonestly disposed of/took/hid/converted the property to his own use.
  • EN BANC
  • "In the bench" or "full bench." Refers to appellate court sessions with the entire membership of a court participating rather than the usual quorum. The Michigan Court of Appeals usually sits in three-judge panels, but may expand to a larger number in some cases. They are then said to be sitting en banc (pronounced "on bonk").
  • ENTRAPMENT
  • Entrapment occurs when police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or when police engage in conduct so reprehensible that it cannot be tolerated by the court. Entrapment does not occur if the defendant has the propensity to commit the crime, and the police conduct only gives the defendant the opportunity to commit the crime.
  • ETHNIC INTIMIDATION (MCL 750.147b)
  • Penalty: Felony --- up to 2 years &/or fines up to $5,000.
  • Malicious and intentional intimidation or harassment of another person because of that person's race, color, religion, gender, or national origin. This conduct must also (a) cause physical contact with another person, (b) damage, destroy, or deface real or personal property, or (c) threaten to do an act described in (a) or (b) if there is reasonable cause to believe that such an act will occur.
  • Regardless of the existence or outcome of any criminal prosecution, a person who suffers injury to his/her person or damage to his/her property as a result of ethnic intimidation may sue the person who committed the offense to secure an injunction, actual damages, including damages for emotional distress, or other appropriate relief. A plaintiff may recover treble (triple) damages or $2,000.00, whichever is greater.
  • EVIDENCE
  • Information presented in testimony, documents, physical objects or other things that are used to prove or disprove facts relevant to a case.
  • See also direct evidence, circumstantial evidence, and corroborating evidence.
  • EXCLUSIONARY RULE
  • A court-made rule -- derived from the 4th and 5th Amendments to the US Constitution -- preventing illegally-obtained evidence from being used by the government in its case-in-chief against a criminal defendant.
  • The exclusionary rule is directed only at official police misconduct or evidence that was the indirect product or fruit of unlawful police conduct.
  • Exceptions to the exclusionary rule include: (i) if officers had an independent source for the discovery of the evidence; (ii) if the evidence would have been inevitably discovered by lawful means; (iii) if the connection between the illegal search and the discovery of the challenged evidence is so attenuated as to dissipate the taint; (iv) if the officers conducting the search acted in objectively reasonable reliance (good faith) on a search warrant that subsequently is determined to be invalid.
  • EX-PARTE
  • "By or for one party" (Latin)
  • Refers to situations in which only one party (without the adversary) appears before a judge. Such meetings are often forbidden.
  • EX-PARTE ORDER
  • Order entered without giving the party affected by the order an opportunity to be heard in court before the order is issued. An emergency order used when one party could be irreparably harmed by waiting for a hearing date. The orders are generally short-term, and hearings are scheduled soon to give the other party a chance to be heard.
  • EX-POST FACTO
  • After the fact. The Constitution prohibits the enactment of ex-post facto laws -- laws that make punishable as a crime an act done before the law was passed
  • EXPUNGE / EXPUNGEMENT [Adults: MCL 780.621, et. seq.; Juveniles: MCL 712A.18e]
  • Process where a conviction may be set aside. The official and formal elimination of part of a record. To legally void court records (including criminal records) in files, computers or other depositories under the courts jurisdiction.
  • In Michigan, a person's first criminal conviction can be set aside, but only if at the time the request is made that person has no other misdemeanor or felony convictions.
  • Expungement is not allowed for (i) felonies (attempts to commit felonies) punishable by life imprisonment, (ii) CSC 2nd or 3rd Degree or Assault with Intent to Commit CSC, or (iii) a traffic code violation.
  • Expungement cannot be sought until at least 5 years have passed since the date of sentencing or completion of a term of imprisonment for the conviction, whichever is later.
  • A court hearing is required after MSP reports to the court about pending charges against the applicant, any record of conviction of the applicant, and the setting aside of any conviction of the applicant obtained from its own records or from the FBI. The court may set the prior conviction aside if it determines that the circumstances and behavior of the applicant warrant it, and that it would be consistent with the public welfare.
  • Setting aside a conviction is a privilege and conditional and not a right.
  • EXTRADICT / EXTRADITION [1937 PA 144; MCL 780.1 et seq]
  • The formal process of delivering a person found in one state (or nation) to authorities in another state (or nation) where that person has been accused or convicted of a crime.
  • See the Uniform Criminal Extradition Act.


  •  

    F

    FAMILY COURT (Family Division of Circuit Court)
    Since 01/01/1998, Michigan Circuit Courts have operated a "Family Court" division (in addition to Civil and Criminal divisions). The Family Division handles divorce, child custody, parenting time, paternity, adoption, child & spousal support, domestic violence (PPOs), juvenile delinquency, neglect and abuse, emancipation of minors, parental consent waivers (abortion), and name changes. The Family Court will also have ancillary jurisdiction over cases involving guardians and conservators, and mentally ill or developmentally disabled persons (typically when the affected person's family is already subject to the jurisdiction of the family division).

    There is supposed to be one judge for one family. To the extent possible, all new cases involving a family will be automatically assigned to the judge hearing a previous case involving that family. Judges from both Probate and Circuit courts staff the Family Division. If two or more pending matters in the Family Court's jurisdiction involve the same family, they are assigned to the same judge whenever practical.

    Within certain broad guidelines, each circuit decides how its Family Court operates. There is no mandated number or percentage of the total Circuit and Probate judges who must be assigned to the Family Division; the number of judges assigned "shall reasonably reflect the caseload of that Family Division."

    FAMILY INDEPENDENCE AGENCY
  • See Department of Human Services.
  • FELONY
  • Crime carrying more than one year possible incarceration, unless it is specified as a misdemeanor. Felonies are tried in circuit court.
  • FELONY FIREARM [MCL 750.227b]
  • Penalty: Felony --- mandatory 2 years (or 5 years for second offense) imprisonment consecutive to and served before the term of imprisonment imposed for the felony or attempted felony conviction
  • Crime committed when carrying or having in his possession a firearm at the time a felony is committed or attempted to be committed.
  • A third party can be convicted of aiding/abetting a Felony Firearm charge, if the person procured, counseled, or assisted the accomplice in obtaining or retaining possession of the firearm.
  • F.I.A.
  • See Family Independence Agency.
  • FLEEING & ELUDING [MCL 750.479a]
  • A driver of a motor vehicle who willfully fails to obey a hand, voice, emergency light, siren, visual or audible signal by a police or conservation officer, acting in the lawful performance of his/her duty, that directs the driver to bring his/her motor vehicle to a stop. It may involve the defendant increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the officer. The officer giving the signal must be in uniform, and the officer's vehicle must be identified as an official police or DNR vehicle.
    • First Degree (Felony: up to 15 years &/or $10,000; license revocation) --- if the violation results in a death.
    • Second Degree (Felony: up to 10 years &/or $5,000; license revocation) --- if the violation results in serious injury; or the defendant has one or more prior convictions for (attempted) 1st, 2nd or 3rd-degree F&E; or the defendant has any combination of two or more prior convictions for (attempted) 4th-degree F&E. "Serious injury" means a physical injury that is not necessarily permanent, but that constitutes serious bodily disfigurement or that seriously impairs the functioning of a body organ or limb, including loss of or loss of the use of a limb, hand, foot, finger, thumb, eye, or ear; loss or substantial impairment of a bodily function; serious visible disfigurement; a comatose state that lasts for more than 3 days; measurable brain damage or mental impairment; a skull fracture or other serious bone fracture; and a subdural hemorrhage or hematoma.
    • Third Degree (Felony: up to 5 years &/or $1,000; license suspension) --- if the violation results in a collision or accident; or a portion of the violation occurred in an area where the speed limit is 35 miles an hour or less; or the defendant commits 4th-degree Fleeing and Eluding and has a prior conviction for F&E or Attempted F&E.
    • Fourth Degree (Felony: up to 2 years &/or $500 fine; license suspension)
    FORFEITURE
  • Real or personal property to which a person loses his right of possession due to the commission of a crime or by way of an assessed penalty. A forfeiture may be either administrative or judicial.
  • FORMAL HEARING
  • Hearing in which a civil infraction is contested before a district court judge (similar to a bench trial). The defendant may be represented by an attorney. The People are represented by the Prosecuting Attorney or an attorney for the local municipality.
  • See also Informal Hearing.
  • 404(b)
  • Michigan Rule of Evidence 404(b):
    RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
    (a) Character Evidence Generally. ...
    (b) Other Crimes, Wrongs, or Acts.
    (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
    (2) The prosecution in a criminal case shall provide reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary for a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant's privilege against self-incrimination.
  • Permits some "prior bad acts" evidence to be admitted at trial.
  • FOSTER HOME
  • A licensed home for the temporary board and care of abused and neglected or delinquent children.
  • FRAUD
  • Intentional deception designed to deprive another person of property or to injure him or her in some other way.
  •  


     

    G

    GARNISHMENT
  • A means of collecting a monetary judgment (such as restitution) by ordering a third party (the garnishee) to pay money, otherwise owed to the defendant, directly to the plaintiff.
  • Michigan allows several kinds of garnishment:
    • Periodic garnishment (SCAO form MC 12) -- examples: periodic payments made to the defendant, such as wages, rental or land contract payments, etc.
    • Non-Periodic garnishment (SCAO form MC 13) -- example: bank account
    • Income Tax garnishment (SCAO form MC 52) -- available only for Michigan state income tax refunds/credits (not federal or local income tax)
  • The SCAO forms are filed with the court where the original judgment was entered. The judge must approve the garnishment. It must then be served on the defendant (who can file a written objection with the court), and the entity that holds defendant's money (place of employment, bank, Michigan Department of Treasury, etc.).
  • See the State Court Administrative Office's "self-help" web page about garnishment. The SCAO site has downloadable court forms used for garnishment.
  • GINTHER HEARING
  • Based on People v Ginther, 390 Mich 436 (1973), an evidentiary hearing on a defendant's motion for new trial claiming ineffective assistance of counsel.
  • GOOD TIME
  • Reduction in time served in county jails as reward for good behavior. "Truth in Sentencing" laws have eliminated good-time reduction of prison sentences for felonies.
  • GRAND JURY
  • Group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony. Grand juries are rarely used in Michigan state courts, but are used by Federal courts.
  • GUARDIAN
  • An adult with the legal duty and power to care for the person of another individual who is: a) under age 18; or, b) a legally incapacitated person. A guardian may be appointed by a court or designated in a will.
  • GUARDIAN AD LITEM
  • Person appointed by the court to protect the legal interests of an infant, an incompetent adult, or a missing person who is involved in a court case. The court will appoint a guardian ad litem in cases of juvenile abuse or neglect. The "GAL" may be an attorney.
  •  


     

    H

    HABEAS CORPUS
  • Writ (order) to bring a person before a court. In its most common usage, the writ directs a warden or jailer to bring a prisoner or person detained so that the court may determine whether such person is lawfully confined. It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted.
  • HEARSAY
  • Statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered as evidence in the courtroom to prove that the the statement was true, not merely that the statement was made. Second-hand evidence not arising from personal knowledge of a witness, but generally from repeating what the witness heard others say outside the courtroom.
  • Hearsay is generally inadmissible, but dozens of long-established exceptions have been approved; the exceptions are based on circumstances where the out-of-court statements carry a likelihood of trustworthiness (e.g., deathbed statements, self-incriminating statements, statements made to doctors about medical conditions, excited utterances, etc.).
  • HIGH COURT MISDEMEANOR
  • See Circuit Court Misdemeanor.
  • HUNG JURY
  • A criminal jury that cannot reach a unanimous verdict.
  • H.Y.T.A. / YTA (Holmes Youthful Trainee Act) [MCL 762.11, 762.12, 762.13, 762.14]
  • Discretionary sentence where a person who pleads guilty to a crime committed between his/her 17th & 21st birthdays may, with the youth's consent and without entering an adjudication of guilt, is assigned the status of a youthful trainee. The person may be placed on probation, or committed to jail or prison. Upon successful completion of all terms set by the judge, the court will dismiss the charge. If the person fails to successfully complete the terms of probation, the judge may terminate YTA status, enter an adjudication of guilt and sentence the defendant.
  • YTA is not permitted for life, major controlled substance or traffic offenses.
  • YTA status is not a conviction for a crime.
  • Unless the court enters a judgment of conviction against the individual for the criminal offense, all proceedings regarding the disposition of the criminal charge and the individual's assignment as youthful trainee are closed to public inspection, but are be open to the courts, the department of corrections, the department of social services, and law enforcement personnel for use only in the performance of their duties.
  •  


     

    I

    IMMUNITY
  • A court-approved agreement by a prosecutor to not prosecute a person, usually in return for providing criminal evidence against another person or party.
  • IMPAIRED DRIVING [MCL 257.625]
  • Penalty: Misdemeanor --- jail up to 93 days (1st offense) or 1 year (2nd offense), fines up to $300 (1st offense) or $1,000 (2nd offense), community service, 4 points assessed on the driver's record, and a mandatory license suspension of at least 3 months (1st offense).
  • Lesser-included offense to OWI. A person driving a vehicle while visibly affected by alcohol &/or controlled substances.
  • IMPEACHMENT
  • Process of calling something into question, as in "impeaching the testimony of a witness." Impeachment generally challenges a witness' credibility (believability) with evidence of bias, prior inconsistent statements, etc.
  • IN CAMERA
  • In chambers; in private. A hearing or inspection of documents that takes place outside the presence of the jury and public, usually in a judge's office.
  • INDICTMENT
  • Formal accusation of a felony, issued by a grand jury after considering evidence presented by a prosecutor.
  • INDIGENT
  • Meeting a court's standards of poverty, thereby qualifying a criminal defendant for representation by a public defendar, or for filing fees to be waived.
  • INFORMAL HEARING
  • Hearing in which a civil infraction is contested before a district court magistrate. Generally, the police officer and person ticketed testify under oath, each explaining what happened. Attorneys are not allowed at informal hearings, but witnesses may attend and testify, and the defendant may ask questions of the police officer and witnesses. An adverse decision can be appealed by demanding a formal hearing and posting an appeal bond worth at least the amount of fines & costs for the charge.
  • INFORMAL PROCEEDING
  • When a juvenile petition is not authorized, but services and/or consequences are provided with the cooperation of a juvenile and his/her family. The file is considered "diverted" and must be destroyed within 28 days of the juvenile's 17th birthday.
  • See Consent Calendar.
  • INFORMATION
  • Document on which criminal felony charges are filed in Circuit Court after a Preliminary Examination bind-over or waiver.
  • INFRACTION
  • A violation of a law not punishable by imprisonment -- e.g., minor traffic offenses.
  • INJUNCTION
  • Order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • INQUIRY
  • A non-custodial conference held to determine further court action.
  • INSANITY
  • A person is legally insane if, as a result of mental illness or mental retardation as defined by MCL 330.1400a and MCL 330.1500(h) respectively, that person lacks substantial capacity either to appreciate the wrongfulness of his or her conduct to conform that conduct to the requirements of law.
  • The defendant has the burden of proof by preponderance of evidence. MCL 768.21a(1).
  • The defendant may be precluded from presenting evidence of insanity for failure to cooperate in the forensics center examination.
  • INSTRUCTIONS
  • Judge's explanation to the jury before it begins deliberations of the questions it must answer, including information about the laws governing the case.
  • INTERLOCUTORY
  • Provisional, temporary, non-final orders and decrees of a court.
  •  


     

    J

    JOYRIDING (Unlawful Use of an Automobile) [MCL 750.414]
  • Penalty: High Court Misdemeanor --- up to 2 years or $1,000
  • Taking or using a motor vehicle without authority, without the intent to steal (or being a party to such unauthorized taking or using). Unlike UDAA, Joyriding does not require proof of an intent to steal.
  • JUDGE
  • Government official with authority to decide lawsuits brought before courts.
  • JURISDICTION
  • Legal authority of a court to hear and decide a case before it, which depends on the type of case and how closely connected the parties are to the county where the court is located.
  • The geographic area over which the authority to interpret and apply the law extends (e.g., the court's authority to decide cases, the prosecutor's authority to issue criminal charges, etc.). (See also venue.)
  • In delinquency and abuse/neglect cases, the court's authority to enter orders affecting a youth and his/her parents or household.
  • JURY
  • Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact.
  • District court and civil cases (including Family Court) use 6-person juries. Felony criminal cases use 12-person juries.
  • JUVENILE
  • Youth under the age of 17.
  • JUVENILE CODE [1939 PA 288; MCL 712A.1 et seq]
  • The set of laws governing juvenile delinquency proceedings, designated proceedings, and child protective proceedings.
  • JUVENILE COURT
  • Until 01/01/1998, Juvenile Court was a division of the Probate Court, and was responsible for all juvenile delinquency offenses. Since 01/01/1998, these cases are prosecuted in the Family Division of Circuit Court.
  • JUVENILE DELINQUENCY PROCEEDINGS
  • Proceedings in the Family Division of the Circuit Court regarding a minor under age 17 who has:
    • committed an offense that would be a crime if committed by an adult, including a misdemeanor traffic offense;
    • deserted his or her home;
    • been absent from school;
    • repeatedly violated school rules; or,
    • disobeyed the reasonable and lawful commands of his or her parents.
  •  


     

    K

    KIDNAPPING [MCL 750.349]
  • Penalty: Felony --- up to Life or any term of years, &/or $50,000 fine.
  • Knowlingly restraining a person with the intent to (i) hold the peron for ransom or hotage, (ii) use the person as a shield or hostage, (iii) engage in criminal sexual conduct with the person, (iv) take the person out of the state, or (v) hold the person in involuntary servitude.
  • See also Unlawful Imprisonment
  • KIDNAPPING, PARENTAL (Custodial Interference)
  • Penalty: Felony --- up to 366 days incarceration and/or $2,000 fine
  • Parental Kidnapping occurs when a natural or adoptive parent takes or retains a child for more than 24 hours with intent to detain or conceal the child from the parent who has legal custody or visitation rights at the time, the person who adopted the child, or the person who had lawful charge of the child.
  • NOTE: The defendant may raise an affirmative defense that he/she took the child to protect the child from an immediate and actual threat of physical or mental harm, abuse or neglect.
  • KILLEBREW PLEA
  • Based on People v Killebrew, 416 Mich 189 (1992).
  • A "Killebrew plea" allows a defendant to enter a conditional guilty which can be withdrawn if the judge's eventual sentence falls outside sentencing terms negotiated by the prosecutor and defense.
  • Normally, defendants plead guilty without any legal expectation of a specific sentence, and judges are not bound by a sentencing agreement between the parties. But in "Killebrew agreements", the judge is advised before the plea of the sentencing terms approved by both sides and has allowed the defendant to enter this conditional plea. The judge is not a party to the agreement and may later impose any lawful sentence. But, because the defendant was induced to plead guilty by an expected sentence, he may withdraw his plea if he does not receive that sentence.
  • See also Cobbs Plea.
  •  


     

    L

    LARCENY
  • Stealing. The unlawful taking and carrying away of property of another with the intent to keep it from the owner. This is a specific intent crime, and cannot occur accidentally. The crime is completed when the defendant actually or constructively possesses or controls the property, moves or hides it, and specifically intends to permanently deprive the owner of it.
  • LAWYER
  • An attorney. A person authorized to practice law in a state to represent the legal interests of another person.
  • LEADING QUESTION
  • A question that instructs a witness how to answer, or suggests which answer is desired. These questions are usually prohibited on direct examination.
  • L.E.I.N.
  • Law Enforcement Information Network.
  • A computerized communication network accessed by law enforcement agencies. It contains information on active PPOs, pretrial release conditions in criminal cases, outstanding arrest warrants, driving records, and automobile registration, felony and high misdemeanor convictions, etc.
  •  

    LIFE OFFENSE
  • One or more of the following offenses allegedly committed by a juvenile in which the prosecuting attorney may authorize the filing of a criminal complaint and warrant instead of proceeding in the juvenile court:
    • assault with intent to commit murder
    • assault with intent to rob while armed
    • attempted murder
    • first-degree murder
    • second-degree murder
    • first-degree criminal sexual conduct
    • armed robbery
    • possession of or manufacture, delivery, or possession with intent to manufacture or deliver 650 grams or more of any schedule I or II controlled substance.


  •  

    M

    MAGISTRATE
  • Used generally, this title means a judge.
  • In Michigan, it is also quasi-judicial officer in a district court who has the authority to set bail, accept bonds, conduct informal hearings on civil infractions, accept guilty please and impose sentences for traffic violations, and perform marriage ceremonies.
  • Eaton County has one Magistrate: Brien R. Fortino.
  • MAJORITY OPINION
  • A written decision of the majority of appellate judges considering the case announcing the court's ruling, and the legal basis for the decision.
  • See also Concurring Opinion and Dissenting Opinion.
  • MALA IN SE
  • "Evil in itself".
  • Behavior that is universally regarded as criminal -- e.g., murder.
  • MALA PROHIBITA
  • "Wrong because prohibited".
  • Behavior that is criminal because society defines it -- e.g., manufacture of alcoholic beverages during Prohibition.
  • MALICE
  • Intent to commit a wrongful act without just cause or excuse. Evil intent, motive or purpose.
  • MANSLAUGHTER
  • Can be a lesser-included offense to murderif the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down.
    • Voluntary Manslaughter: (Felony --- 15 years and/or $7,500 fine) --- defendant caused a death + intended to kill or knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result.
    • Involuntary Manslaughter: (Felony --- 15 years and/or $7,500 fine) --- defendant caused a death + acted in a grossly negligent manner or intended to injure or commit an assault/battery. "Intent to kill" is not an element.
  • MARIHUANA / MARIJUANA
  • a Schedule 4 controlled substance.
  • MENS REA
  • The state of mind of the defendant that the prosecution must prove to establish criminal responsibility. Criminal intent. Some crimes require proof of a "specific intent" (e.g., in larcenies, the prosecutor must prove the defendant's specific intent to steal). Other "general intent" crimes require no proof of intent (e.g., OWI).
  • Pronounced menz RAY-uh.
  • MICHIGAN COMPILED LAWS (MCL)
  • Volumes of books containing the official version of Michigan statutes enacted by the state Legislature. MCLs are published by the Legislative Service Bureau.
  • MICHIGAN COMPILED LAWS ANNOTATED (MCLA)
  • Volumes of books containing the text of Michigan statutes, plus brief references to caselaw and legal commentary discussing the statutes. MCLs are published by the West Publishing Company.
  • MICHIGAN COURT RULES (MCR)
  • Rules adopted by the Michigan Supreme Court to govern procedures in all state courts.
  • MICHIGAN RULES OF EVIDENCE (MRE)
  • Rules adopted by the Michigan Supreme Court to govern admissibility of evidence in all state courts.
  • MINOR
  • A youth under a law's age of majority. A youth is considered a minor regarding criminal offenses until his 17th birthday, and are handled in Juvenile Court; offenses committed after his 17th birthday are handled in District Court and Circuit Court. Some crimes have substantive age limits: alcohol offenses have an age of majority of 21, tobacco offenses have an age of majority of 18, etc.
  • MIRANDA WARNING
  • A warning given by police before custodial interrogation that the person does not have to talk to police, his silence will not be held against him, and he has a right to legal counsel before talking to police.
  • Refers to a US Supreme Court decision: Miranda v Arizona, 384 US 436 (1966).
  • MISDEMEANOR
  • Crime carrying maximum jail time of one year or less.
  • Exception: a "high court" misdemeanor (e.g., CSC 4th Degree) can carry up to 2 years in prison, but is not labeled a "felony". High-court misdemeanors are handled procedurally like a felony.
  • MISTRIAL
  • An erroneous or invalid trial; a trial declared by a judge to be defective and void, generally due to prejudicial error in the proceedings or a "hung jury" (a jury that could not agree upon a verdict).
  • MOTIVE [CJI2d 4.9]
  • Whether the defendant had a reason to commit the alleged crime ... but a reason to commit the crime, by itself, is not enough to find a person guilty of a crime.
  • Motive is not an element of a crime that a prosecutor must prove.
  • MURDER
  • In Michigan, all murder is either in the first or second degree.
    • First degree murder: [MCL 750.316] (Felony: mandatory Life; no parole) -- "felony murder" (murder committed in the course of another felony), murdering a peace officer in the line of duty, or "premeditated murder". Murder cannot occur accidentally, the defendant must have intended to kill. Premeditation means that the defendant had time to consider the pros and cons of the killing beforehand.
    • Second degree murder: [MCL 750.317] (Felony: Life or any term of years) -- causing death + intending to kill or do great bodily harm or knowingly creating a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his/her actions.
    • Open Murder: [MCL 767.71] -- Michigan law does not require a prosecutor to choose between First Degree or Second Degree Murder when issuing a complaint, or even at trial. A prosecutor may charge "Open Murder", which is a combination of First and Second Degree Murder, and the jury may determine the appropriate degree based on the proofs.

  •  

    N

    NEGLIGENCE
  • There are 3 types/degrees of negligence:
    • Slight negligence: doing something that isn't dangerous, that only an extremely careful person would have thought could cause injury.
    • Ordinary negligence: carelessness ... not taking reasonable care under circumstances as they were at the time ... something that a sensible person would know could hurt someone.
    • Gross negligence: more than carelessness ... failure to use even the slightest amount of care in a way that shows recklessness or willful disregard for the safety of others due to an act or failure to act ... defendant must have known of the danger to another (i.e., knew of a situation requiring ordinary care to avoid injuring another) and could have avoided injury by using ordinary care and failed to use ordinary care to prevent injuring another when a reasonable person would have seen that serious injury would likely result.
  • NO CONTEST PLEA
  • A plea in which the facts supporting the crime's elements come from a source other than the defendant's own words in court (generally, from police investigation reports, witnesses statements, photographs, etc.). A "nolo contendere" plea is used when the defendant cannot recall his criminal actions (sometimes due to intoxication), or his verbal plea from a traditional guilty plea would be used in a potential civil law suit. Regardless, the plea is treated the same as a guilty plea, and the defendant is treated by a sentencing judge the same as if he was convicted via a guilty plea or trial verdict.
  • NOLLE PROSEQUI
  • "Unwilling to prosecute" (Latin). Form filed by a prosecutor to dismiss criminal charges. A "nolle pros" usually means the end of the matter, but can be filed "without prejudice" so that the prosecutor may reopen the case against the defendant at a later date. It may not be used to deny the defendant's constitutional right to a speedy trial.
  • NOLO CONTENDERE
  • "I will not contest it" (Latin). See No Contest Plea.
  •  


     

    O

    OBJECTION
  • Taking exception to a statement or procedure in trial. Calling the court's attention to improper evidence or procedure.
    • Objection Overruled - a judge's rejection of an objection as invalid.
    • Objection Sustained - a judge's support or agreement with an objection.
  • OFFENSE
  • A crime or ordinance violation. Generally implies an act infringing on the public, as distinguished from private rights.
  • Regarding minors, an offense is any act that violates provisions of the Juvenile Code and places the person committing the act in the jurisdiction of the juvenile court. Does not include civil infractions.
  • 180 Day Rule
  • A rule that allows people who are in county jails awaiting trial on felony charges for 180 days to be released on their own recognizance if the delay has not been caused by the accused or the accused's attorney.
  • A rule that requires all pending charges against a state prison inmate be brought to trial in 180 days, or be dismissed with prejudice.
  • ORDER
  • Decision of a court made in writing.
  • ORDINANCE
  • A local law or regulation enacted by the governing body of a municipality or county, such as the Eaton County Board of Commissioners. It has no effect outside that village, city, township or county.
  • OWI (Operating While Intoxicated) [MCL 257.625]
  • Commonly called "drunk driving". Formerly called Operating While Under the Influence of Liquor (OUIL).
  • A person operating a motor vehicle on a public road, parking lot or other place open to the general public while being significantly or substantially affected by intoxicating liquor, controlled substances, or both. A person is presumed to be intoxicated with a blood-alcohol content of 0.08% or more.
  • Penalties:
    • 1st offense penalty: Misdemeanor --- up to 93 days, $500 fines, community service; 6 points assessed on the driver's record, mandatory 6 month license suspension
    • 2nd offense penalty: Misdemeanor --- up to 1 year, $1,000 fines, community service, 6 points; vehicle immobilization, mandatory 1 year license revocation
    • 3rd offense penalty: Felony --- 1-5 years; $500-$5,000 fines; 6 points; vehicle immobilization; license revocation.
  • OVERRULE
  • A judge's decision to not allow an objection to prevail. Also, a decision by a higher court that a lower court's decision was in error.
  • See also sustain.
  •  


     

    P

    P.A.A.M.
  • Prosecuting Attorneys Association of Michigan -- a voluntary association of Michigan's 83 elected prosecutors and their staffs, comprising over 1,000 prosecuting officials throughout the state. PAAM's mission is to provide services to the state's prosecuting attorneys in order to make local law enforcement of state laws more uniform and efficient statewide. PAAM works with the legislature to enact, revise and improve criminal laws and criminal procedure --- including such issues as truth-in-sentencing, juvenile justice, domestic violence, child protection, and victim's rights.
  • PARENTING TIME
  • Formerly called "visitation". The time a child spends with a non-custodial parent.
  • PAROLE
  • Conditional release from prison of a convict before the expiration of a felony sentence. The parolee (the released person) need not serve the remainder of his incarceration unless he violates terms of his release. The parolee is under the supervision of a state parole officer during the parole period.
  • See robation.
  • PATERNITY
  • Establishing legal "fatherhood". [See our Family Support web page for more information about Paternity cases.]
  • PEACE BOND [1927 PA 175; MCL 722.1 - 722.15]
  • A civil remedy for personal disputes where Circuit Court PPOs are not available. Obtained from the District Court.
  • Differences between peace bonds and PPOs are: (i) peace bonds cannot be issued ex-parte in emergency situations because the peace bond procedure mandates a waiting period up to 7-days before the court can enter an order; (ii) the person against whom the peace bond complaint is named is entitled to a jury trial; (iii) although copies are filed with local police agencies, peace bonds cannot be entered into the state- and nation-wide LEIN network; (iv) the court's criminal contempt powers against a person violating a peace bond applies only in a limited category of domestic relationships (and does not apply to stalkers or people who are or have been in dating relationships).
  • PERJURY
  • Knowingly making a material false statement about a material fact while under oath to tell the truth.
  • PERMANENT WARD
  • A child who is permanently placed under the care of the court or other guardian because the parents' rights to the child have been terminated by the Family Court.
  • See also Temporary Ward.
  • PERSONAL PROTECTION ORDER [MCL 600.2950 - MCL 600.2950a]
  • Injunctive order to prevent reoccurrences of acts or threats of assault and harassment.
  • See our PPO web pages for more details.
  • See also Peace Bond.
  • PETITION
  • In juvenile delinquency or child protective proceedings before the Family Division of Circuit Court, a petition is the document in which the charged offenses or allegations are set forth. The petition includes the JC01 and JC02 forms, plus additional pages stating details of the allegations (if needed).
  • PETITIONER
  • The person signing or filing a petition.
  • PLAINTIFF
  • Person who originally filed a court action.
  • PLEA
  • Defendant's response to a criminal charge (guilty, not guilty or nolo contendere).
  • PLEA AGREEMENT / BARGAIN
  • A negotiated agreement between the Prosecutor and the defense counsel for the defendant to plead guilty or no-contest under certain terms and conditions. The agreement could include the defendant pleading to all pending charges with a sentence agreement, or pleading to less than all of his pending charges, or pleading to a less serious charge, or pleading guilty to one or more pending charges in exchange for dismissal of other charges. All plea agreements must be approved by the judge. Plea agreements are a means of arriving at a reasonable disposition without the necessity of a trial.
  • POLLING THE JURY
  • Asking jurors individually, after their verdict has been announced, whether they agreed (and still agree) with announced verdict. This occurs in the courtroom before the judge discharges the jury.
  • P.P.O.
    See Personal Protection Order.
    PRECEDENT
  • Court decision in an earlier case with facts and law similar to a dispute currently before a court. The decision of the earlier case will usually govern the decision of a later, similar case unless a party can show that the earlier decision was wrongly decided or that it differed in some significant way.
  • PRE-EXAM CONFERENCE
  • Scheduled meeting between the prosecutor and defendant's attorney days before the preliminary examination date to discuss plea bargains, whether the "prelim" will be held or waived to circuit court, etc.
  • This hearing is not required under the Michigan Court Rules. But they have been used locally in many counties (including Eaton County) to significantly reduce the number of cases scheduled for Preliminary Examination, to reduce the numbers of subpoenas issued and served for prelims, etc. The judge does not actively participate in pre-exam conferences.
  • PREJUDICIAL ERROR
  • Reversible error. Error committed during a trial serious enough to require an appellate court to reverse the judgment.
  • PRELIMINARY EXAMINATION
  • District Court evidentiary hearing for felonies where the prosecuting attorney must present evidence amounting to at least probable cause that the charged felony crime(s) in fact occurred and that the defendant committed it (them). Generally, the prosecutor presents just a fraction of his total evidence and witnesses. The defendant (or his attorney) can cross-examine the People's witnesses, and present his own proofs to refute the People's evidence. If the Prosecutor meets his burden of proof, the case is "bound over" to Circuit Court for arraignment on an information, and possible trial.
  • 14-Day Rule: defendants have a statutory right to have their Preliminary Examination within 14 days after their arraignment. [See MCL 766.4, MCR 6.104(E)(4).]
  • PRELIMINARY HEARING
  • The first stage in a juvenile delinquency or child protective proceeding when the child is in custody. An informal proceeding in the Family Division of Circuit Court in which the juvenile &/or parents and attorney are informed about the allegations in the petition. Testimony by the petitioner may be required to determine if the juvenile should not be placed with his parents pending further action on the petition.
  • PRELIMINARY INQUIRY
  • The first stage in a juvenile delinquency or child protective proceeding when the child is not in custody. An informal proceeding in the Family Division of Circuit Court in which the juvenile &/or parents and attorney are informed about the allegations in the petition.
  • PREPONDERANCE OF THE EVIDENCE
  • See Burden of Proof.
  • PRE-TRIAL CONFERENCE
  • Scheduled meeting between the prosecutor and defendant (or defendant's attorney) prior to a trial dateto discuss plea bargains, trial issues, etc. The judge usually does not actively participate in pretrial conferences, but may do so to assist in expediting resolution of trial issues, or simplifying the trial.
  • PRIMA FACIE
  • Evidence that is sufficient to prove a fact, or facts sufficient to establish a party's right to legal relief, if no evidence to the contrary if offered.
  • See Burden of Proof.
  • PRIOR ACT EVIDENCE
  • See MRE 404(b).
  • PROBABLE CAUSE
  • Facts and circumstance sufficient to convince a person of reasonable caution that an offense has been committed; mere suspicion or belief, unsupported by facts or circumstances, is insufficient. A search warrant may be authorized, or a warrantless arrest may be made, upon probable cause.
  • See Burden of Proof.
  • PROBATE COURT
  • Court with primary jurisdiction for cases involving wills, guardians and conservators, and mentally ill or developmentally disabled persons.
  • Probate Court judges may also be assigned to handle cases in the Family Division of Circuit Court, such as juvenile delinquency offenses, parental abuse/neglect, termination of parental rights, divorces, adoptions and name changes.
  • There are 79 probate courts in Michigan; probate judges are elected for 6-year terms.
  • Eaton County has one Probate Judge: Thomas Byerley.
  • PROBATION
  • Discretionary sentencing option for most misdemeanor and felony convictions where the defendant avoids some/all incarceration, and is released back into the community under the supervision of a probation officer for a specific time period, with rules to follow. Some rules are standard (e.g., to not violate any more laws), and others are specific to the defendant or crime (e.g., alcohol counseling when convicted of OWI). If the defendant violates any term of probation, the assigned probation officer (or the Prosecutor) can ask the sentencing judge to impose additional penalties after a probation violation hearing.
  • See arole.
  • PROBATION ORDER
  • An official written directive from a court ordering that a criminal defendant is sentenced to a term of probation. The document is signed by the judge and the defendant. It includes all legal conditions (both standard and special conditions) with which the defendant must comply during probation, including payment of fines, costs, restitution, etc.
  • PRO BONO
  • Legal services provided to a client free of charge.
  • PRO PER / PRO SE
  • Person who represents himself/herself in court without an attorney. The term comes from the Latin phrase in propria persona ("on one's own behalf").
  • PROSECUTING ATTORNEY
  • The term Michigan uses for a prosecutor.
  • PROSECUTOR
  • Elected or appointed official vested with authority by a constitution, statute or ordinance to represent the public interest and take legal action against persons violating state or local criminal laws. Michigan's prosecutors are known as "Prosecuting Attorneys". In other states they are called District Attorneys, State's Attorneys, County Attorneys, Commonwealth's Attorneys, or other titles.
  •  


     

    Q

    QUASH
  • Nullify, void or declare invalid. To overthrow or vacate.
  •  


     

    R

    R&C
    See Receiving & Concealing Stolen Property.
    RAPE
    See Criminal Sexual Conduct.
    REASONABLE DOUBT
  • Fair, honest doubt based on the evidence produced at trial (or missing from the proofs). A reasonable doubt must be based on reason and common sense, not on conjecture, speculation, possibilities or imaginary scenarios.
  • See Burden of Proof.
  •  

    REBUTTAL
  • The introduction of contrary evidence. A method of showing that statements by witnesses of what happened was not true. The stage of a trial at which such evidence may be introduced.
  •  

    RECEIVING & CONCEALING STOLEN PROPERTY [MCL 750.535]
  • Buying, receiving, possessing, concealing or aiding in the concealment of stolen, embezzled or converted money, goods or property, knowing or having reason to know or reason to believe that it was stolen, embezzled or converted.
  • Michigan defines 4 levels of R&C:
    • $20,000 or more: Felony -- up to 10 years and/or $15,000 fine (or 3x property's value)
    • $1,000 or more but less than $20,000: Felony -- up to 5 years and/or $10,000 fine (or 3x property's value)
    • $200 or more but less than $1,000: Misdemeanor -- up to 1 year and/or $2,000 fine (or 3x property's value)
    • Under $200: Misdemeanor -- up to 93 days and/or $500 fine (or 3x property's value)
  • A prosecutor may charge one higher level of R&C if the defendant was previously convicted of R&C or Attempted R&C.
  • The values of property purchased, received, possessed, or concealed in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total charged value.
  • The value element is proven by the property's fair market value (the highest price for which it would have sold in the open market).
  • A dealer in or collector of merchandise or personal property (or that person's agent, employee, or representative) who fails to reasonably inquire whether the person selling or delivering the stolen, embezzled, or converted property to the dealer or collector has a legal right to do so, or who buys or receives stolen, embezzled, or converted property that has a registration, serial, or other identifying number altered or obliterated on an external surface of the property, is presumed to have bought or received the property knowing the property is stolen, embezzled, or converted. This presumption is rebuttable.
  • REDIRECT EXAMINATION
  • Follows cross-examination and is exercised by the party who first called and questioned the witness.
  • REFEREE
  • A person who takes testimony, prepares reports, and makes recommendations to the Family Court in domestic relations, juvenile delinquency, designated proceedings involving juveniles, and child protective proceedings.
  • Non-Attorney Referee may only preside over Preliminary Hearings and Inquiries regarding delinquent and child protective cases, and Arraignments in designation cases.
  • Attorney Referee may preside over any type of hearing, except a jury trial.
  • RELEVANCE
  • Evidence having any tendency to make the existance of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. MRE 401.
  • REMAND
  • To send a case back to the court from which it came for further proceedings. This typically happens when an appellate court sends a case back to a lower court with instructions on further proceedings.
  • REPORTABLE JUVENILE OFFENSE
  • Juvenile delinquency offenses that requires fingerprinting --- murder or attempted murder, serious assaults (assault with intent to murder, to commit great bodily harm, to main, or to rob), arson of a dwelling, B&E, home invasion 1st degree, larceny in a building, car theft, car jacking, kidnapping, CSC 1st-3rd degree, robbery, possession or delivery of 650 grams or more of a schedule 1 or 2 narcotic.
  • RESISTING / OBSTRUCTING A POLICE OFFICER
  • Knowingly and intentionally obstructing, resisting, opposing, assaulting, beating or wounding a law enforcement officer who is engaged in his lawful acts or attempting to maintain the peace. The defendant's acts must have actually interfered with the officer in carrying out those duties.
  • Penalty: Felony ~ up to 2 years incarceration or a $1,000 fine.
  • RESPONDENT
  • The juvenile court equivalent of a defendant in a criminal case. The juvenile charged in a delinquency case, or the at-fault parents in a child protection proceeding, are respondents.
  • RESTITUTION
  • Payments ordered by the judge to repay victims for economic losses incurred as the result of the crime (property loss or injuries). Does not include compensation for pain and suffering, emotional distress or other non-economic damages that can result in compensation through a civil law suit.
  • Restitution is a constitutional right for crime victims. Mich Const 1963, Art I, Sec 24(10).
  • "Full restitution" must be ordered in all criminal cases where a victim suffers a loss directly caused by the course of conduct from which the conviction(s) arose. Restitution must be ordered for diversion, consent calendar, HYTA, charges dismissed in plea agreements, etc., or any resolution other than a trial acquittal or an unconditional dismissal. Michigan Crime Victim Rights Act, MCL 780.766(2).
  • Restitution must be a condition of probation, parole or a conditional sentence. MCL 780.766(11).
  • A restitution order is a civil judgment that never expires until it is paid in full. MCL 780.766(13).
  • Restitution cannot be discharged in bankruptcy. 11 USC 523(a)(9) & 1328(a)(3) .
  • RETAIL FRAUD [MCL 750.356c & .356d]
  • Stealing merchandise (items offered for sale to the public) while the store is open for business, "price switching", or trying to get a fraudulent refund from a store. Retail Fraud is a theft crime requiring proof that the item was taken intentionally (not accidentally), with the intent to steal.
  • Michigan defines 3 degrees of retail fraud:
    • 1st Degree ($1,000 or more stolen; or 2nd Degree + prior conviction):
      Felony -- up to 5 years and/or $10,000 fine (or 3x merchandise's value)
    • 2nd Degree ($200 or more but less than $1,000 stolen; or 3rd Degree + prior conviction):
      Misdemeanor -- up to 1 year and/or $2,000 fine (or 3x merchandise's value)
    • 3rd Degree (under $200 stolen):
      Misdemeanor -- up to 93 days and/or $500 fine (or 3x merchandise's value)
  • In addition to criminal penalties, a shoplifter may also be subject to civil penalties demanded by the store. The penalties include the full retail price of unrecovered property or recovered property that is not in salable condition, and civil damages of 10 times the retail price of the property, but not less than $50.00 and not more than $200.00.
  • REVERSE
  • When an appellate court sets aside the decision of a lower court because of an error. A reversal is often accompanied by a remand.
  •  


     

    S

    SEARCH WARRANT
  • Written order from a judge or magistrate that an officer may search a specific location for specific items which, if found, can be seized by the government for possible use in court as evidence. Search warrants are issued upon a showing of probable cause that the items are in the place to be searched, and are evidence of a crime.
  • Exceptions to the need for a search warrant include: (a) investigative stops and Terry pat-downs; (b) plain feel [detecting the evidence through the sense of touch during an authorized protective patdown search; the item's incriminating character must be immediately apparent]; (c) a search incident to an arrest; (d) automobile searches; (e) consent searches; (f) plain view [where the incriminating character of the evidence is immediately apparent, and officer had a lawful right of access to the object]; (g) administrative searches; (h) special needs searches [school searches, prisoner/probation searches]; (i) exigent circumstances, like hot pursuit of a fleeing felon, or preventing the imminent destruction of evidence, or precluding a suspect's escape, or rendering emergency aid; (j) searches by private persons who are not acting as agents of law enforcement in order to conduct the search.
  • SELF DEFENSE
  • Legally-justified use of force to protect one's self, another person, or property against some injury attempted by another person ... the right to repel force with force ... the defendant (i) must have honestly and reasonably believed that he had to use force for protection, (ii) may use only the type and degree of force that seems necessary for protection at the time based on the circumstances known to him, (iii) must not have acted wrongfully and brought on the assault (i.e., provoked the attack)
  • In Michigan, a prosecuting attorney has the burden of disproving a defendant's self-defense claim beyond a reasonable doubt.
  • SENTENCE
  • Punishment ordered by a court for a defendant convicted of a crime.
  • In Michigan, jail sentences are determinate, and prison sentences are indeterminate.
    • Determinate Sentence - a sentence of imprisonment for a specific period of time (e.g., 30 days).
    • Indeterminate Sentence - a sentence of imprisonment to a specified minimum and maximum period of time as authorized by statute, which is subject to termination by a parole board or other authorized agency after the prisoner has served the minimum term.
  • SENTENCING GUIDELINES
  • Criteria adopted by the Legislature that determine an appropriate range a judge may impose for the minimum sentence on felonies and high court misdemeanors (i.e., the "60" in a "60 to 120 month" sentence). The purpose of the guidelines is to ensure conformity of sentences across the state. "Prior Record Variables" (PRVs) and "Offense Variables" (OVs) are calculated and applied to a Sentencing Range Grid. A judge may depart from the sentencing guideline range (on either the high- or low-side) only where there are "substantial and compelling" reasons to do so.
  • The Sentencing Guidelines can be seen at the Michigan Judicial Institute web site.
  • SEQUESTER / SEQUESTRATION / SEPARATION OF WITNESSES
  • To separate. A procedure to shelter a trial participant from outside influences.
  • The term most frequently applies to witnesses, and prevents them from watching court proceedings and testimony (or talking outside the courtroom to other witnesses about the case) before they actually testify. In very rare cases, a jury can be sequestered during part or all of a trial.
  • SEX OFFENDER [MCL 28.721 - 28.732]
  • Person convicted as an adult or adjudicated as a juvenile of CSC, Indecent Exposure, Gross Indecency, or other similar enumerated crimes. The person must register with the Michigan State Police (and verify their home address quarterly) for a minimum of 25 years, or for life.
  • Michigan's searchable database of adult sex offender registrants is maintained by the Michigan State Police.
  • Links to other states' on-line sex offender registries (inspired by New Jersey's original "Megan's Law") may be found on our Victim Resources page.
  • SHOPLIFTING
    See Retail Fraud.
    SHOW CAUSE HEARING
  • Court hearing held so a person can explain why (s)he should not be considered in violation of a specific court order (i.e., a defendant violating a term of the probation order).
  • SIDEBAR
  • Conference between the judge and lawyers held out of earshot of the jury and spectators.
  • SMALL CLAIMS COURT
  • Division of the District Court in which civil lawsuits seeking a maximum $1,750 damages is heard. Like television's The People's Court, the parties represent themselves without attorneys. Jury trials are not allowed. The judge's or magistrate's decision cannot be appealed. If either party objects to these conditions, the case will be transferred to the Civil Division of the District Court.
  • SPECIFIC INTENT
  • Acting with intent to cause a particular result ... a special mental element that must be proven for some crimes. For example, larceny requires proof that the defendant specifically intended to steal the victim's property (i.e., to permanently deprive the owner of the property); if the defendant unknowingly possessed the victim's property or was truly borrowing it temporarily, no theft/larceny occurred.
  • Specific Intent may be proved by what the defendant says, does, how he does it, etc.
  • SPECIFIED JUVENILE VIOLATION
  • Crime for which a youth, convicted in a designated case, could be sentenced to prison --- murder or attempted murder; serious assaults (assault with intent to murder, commit great bodily harm, main, or rob); arson of a dwelling; home invasion 1st degree; car jacking; kidnapping; CSC 1st degree; armed robbery; bank or safe robbery; escape from a medium- or high-security juvenile facility; manufacture, sale, delivery or possession of 650 grams of a schedule 1 or 2 narcotic; or attempt, solicitation or conspiracy to commit these crimes.
  • STALKING [MCL 750.411h & i]
  • Download our Stalking Victim's Log. icon-acrobat
  • Stalking is (a) two or more willful acts of (b) continuing harassment or un-consented contact (c) that would cause a reasonable individual to suffer emotional distress, (d) that actually cause the victim to suffer emotional distress, (e) that would also cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested, and (f) that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested. Note: ALL of these elements must be present for "stalking" to be proven.
    Penalty: Misdemeanor--- 1 year and/or $1,000 fine, up to 5 years probation;
    • "Continuing harassment" means repeated (i.e., more than one) instances of un-consented conduct that would cause a reasonable person emotional distress, and that actually causes emotional distress. (A single incident made up of a series of continuous acts, each immediately following the other, is not "stalking".)
    • "Emotional distress" means significant suffering or distress that may result in, but does not necessarily require, medical or other professional treatment or counseling.
    • "Un-consented contact" means contact that you do not want or contact that you expressed that you wanted to avoid. This includes, but is not limited to, someone following you, confronting you at your workplace, phoning you, sending you mail, or placing objects on your property.
  • Aggravated Stalking: Stalking (i) in violation of a restraining order of which the suspect has actual notice; or (ii) in violation of a condition of bond, probation or parole; or (iii) credible threats against the victim, a member of the victim's family or household; or (iv) by a person previously convicted of Stalking.
    Penalty: Felony --- 5 yrs &/or $10,000 fine; probation from five years to any additional term of yrs.
  • Stalking a minor is a 5-year felony. Aggravated stalking of a minor is now a 10-year felony.
  • Michigan's Stalking statute was found to be constitutional by the US 6th Circuit Court of Appeals (02/05/2001). Read the Opinion in Jerry Lee Staley v Kurt Jones.
  • STANDING
  • Party's right to make a legal claim, or to seek judicial enforcement of a right or duty.
  • STARE DECISIS
  • Doctrine that once a principle of law has been determined to be applicable to certain facts, that principle will be followed in future cases involving substantially identical facts. This body of "case law" --- along with Common Law and statutes --- becomes the Laws of the Land.
  • STATE BAR OF MICHIGAN
  • An association for attorneys licensed to practice law in Michigan. All attorneys, including prosecutors, must be a member of the State Bar in order to practice law in Michigan.
  • Visit the State Bar of Michigan web site at www.michbar.org.
  • STATUS OFFENSE
  • A non-delinquency violation of law giving the Family Court jurisdiction over a minor. Status offenders are habitual runaways from home, truants from school, and incorrigible youths. Parents may be petitioners.
  • A violation of the juvenile code by a minor that would not be considered a violation of the law if committed by an adult.
  • STATUTE
  • Law passed by a legislature.
  • STATUTE OF LIMITATIONS
  • A time limit on the right to seek relief in court. Deadline set by law for filing a criminal charge or civil lawsuit after an event occurred that is the source of the charge or claim.
  • In criminal cases, there are several mandatory time limits to commence prosecution: no time limit for Murder; 10 years for Assault with Intent to Murder, Conspiracy to Murder, Kidnaping or Extortion; 6 years for other felonies or misdemeanors.
  • STAY
  • A suspension of a judicial proceeding by court order.
  • STIPULATION
  • An agreement between opposing parties on any matter relating to the case, including case facts. Courts must approve stipulations to take legal effect.
  • SUBPOENA
  • Court order requiring a person to appear in court and give testimony as a witness, and/or to produce documents. An employer cannot act upon or threaten to discharge or discipline a witness for missing work to testify in court when subpoenaed.
  • SUBPOENA DUCES TECUM
  • Court order to produce documents or records. (Pronounced DOO-suhz TEE-kum.)
  • SUPPRESS
  • Legal bar to admitting evidence at a trial or other court proceeding.
  • SUPREME COURT
  • Highest appeals court in Michigan.
  • An appellant files an application for "leave to appeal" in the Supreme Court, which the Court can grant (accept) or deny (reject) at its discretion. If an application is granted, the Supreme Court will hear the case; if denied, the decision made by the lower court remains unchanged.
  • The Supreme Court usually selects cases involving important constitutional issues and questions of public policy. The Supreme Court also has administrative duties --- general administrative supervision of all courts in the state, establishing rules for practice and procedure in all Michigan courts, etc.
  • The Supreme Court consists of seven justices: the chief justice and six associate justices. The justices are elected to serve 8-year terms. Every two years the justices vote to elect the chief justice.
  • Visit the Michigan Supreme Court web site at courts.michigan.gov/supremecourt/.
  • SUSTAIN
  • A judge's decision to allow an objection or motion to prevail.
  • See also overrule.
  •  

     


     

    T

    TEMPORARY WARD
  • A child who is permanently placed under the care of the court or other guardian because the parents' rights to the child have been permanently terminated by the family division of the circuit court.
  • See also Permanent Ward.
  • TERMINATION (OF PARENTAL RIGHTS) HEARING
  • A hearing held in the Family Division of the Circuit Court to determine if the parental rights are to be taken away from the parties involved, and therefore the child will become a permanent ward of the court.
  • TESTIMONY
  • Evidence presented orally and under oath by witnesses during trials or other court proceedings.
  • TRADITIONAL WAIVER OF JURISDICTION
  • See Waiver of Jurisdiction.
  • TRANSFER CASE
  • Petitions are issued by the prosecutor in the county where the offenses occurred. But a case may be transferred to the Family Court in the county where the juvenile lives for adjudication and disposition, with the consent of both counties' courts. The county-of-residence is responsible for monitoring and rehabilitating their youth.
  • TRANSCRIPT
  • Official record of the testimony taken in a trial or hearing. A written, word-for-word (verbatim) record of what was said.
  • TRUTH IN SENTENCING
  • Legislation requiring offenders to serve their entire minimum sentence without reduction for good behavior. These prisoners may also have their minimum sentence extended for "bad behavior" while in prison. They are not eligible for placement in a corrections center or on electronic monitoring ("tether").
  • Michigan's law went into effect 12/15/1998 for most serious crimes, and now applies to all felonies committed after 12/15/2000.
  • TURNER HEARING
  • Based on People v Turner, 390 Mich 7 (1973), a hearing to determine whether a defendant was entrapped by law enforcement officials into committing an offense.
  •  


     

    U

    UBAL (Operating with an Unlawful Blood Alcohol Level) [MCL 750.625]
  • Same penalties as OWI
  • Commonly called Per Se drunk driving. A person must be operating a vehicle with at least a 0.08% blood-alcohol concentration. Unlike OWI, it is irrelevant whether or not the driver is affected by the alcohol. If convicted, the penalties are identical to a conviction for OWI.
  • UDAA (Unlawfully Driving Away an Automobile) [MCL 750.413]
  • Penalty: Felony --- up to 5 years.
  • Car theft. Wilfully and without authority, taking possession of and driving or taking away (or assisting in or being a party to such taking possession, driving or taking away) of any motor vehicle belonging to another. Unlike Joyriding, U.D.A.A. requires proof of theft.
  • UNLAWFUL IMPRISONMENT [MCL 750.349b]
  • Penalty: Felony --- up to 15 years and/or $20,000 fine.
  • (i) Knowlingly restraining a person by means of a weapon or dangerous instrument, (ii) secretly confining and knowingly restraining a person, (iii) knowingly restraining a person to facilitate the commission of a felony, (iv) knowingly restraining a person to facilitate flight after the commission of a felony.
  • See also Kidnapping
  •  

    UTTERING & PUBLISHING [MCL 750.249]
  • Penalty: Felony --- up to 14 years.
  • Knowingly presenting a false, altered, forged, counterfeited or fictitious instrument (e.g., check, money order, credit sales slip) with an intent to defraud or cheat.
  • The instrument need not be accepted as good, or that an actual loss occurred. The crime focuses on it being offered as valid, directly or indirectly, by words or actions.
  •  


     

    V

    VACATE
  • To set aside. Example: a court may vacate an earlier order.
  • VENUE
  • Geographic location (e.g., city or county) where an event occurred. A "change of venue" happens when a case is moved to a court in another county or to a court having other jurisdictional powers ... generally because the case should have been filed there originally, or for the convenience of the parties/witnesses, or because a fair trial cannot be had in the original court's location.
  • Juvenile delinquency cases are routinely transferred to the county where the minor lives because that "home county" will ultimately be responsible for overseeing efforts to rehabilitate the child.
  • VERDICT
  • Decision of a jury or a judge on the issues submitted to the court for determination.
  • VICTIM
  • Person or entity who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.
  • VOIR DIRE
  • Process of jury selection, generally involving the judge and attorneys asking potential jurors about their experiences and beliefs. The purpose is to determine if the jurors are appropriate for sitting on the case at hand, particularly their willingness to decide the case only on the evidence presented in court. This French term (pronounced "vwa dear") means "to speak the truth".
  •  


     

    W

    WADE HEARING
  • Based on US v Wade, 388 US 218 (1967), a pre-trial hearing to test the fairness of a line-up. The issue is whether to admit or suppress an identification of an accused that resulted from the line-up.
  • WAIVER
  • Intentionally giving up a right. Example: a defendant waiving his right to remain silent to be interviewed by police.
  • WAIVER OF JURISDICTION
  • A process by which a juvenile may be processed or convicted as an adult.
  • WALKER HEARING
  • Based on People v Walker, 374 Mich 331 (1965), an evidentiary hearing on a defendant's motion to suppress his incriminating statement to the police. The hearing focuses on the totality of the circumstances surrounding the statement, including whether it was voluntarily and intelligently made, whether police advised the defendant of his Miranda rights and the defendant waived the rights, etc.
  • WARRANT
  • Court order authorizing an arrest or search.
  • WARRANTLESS ARREST
  • A police officer may arrest a person without a warrantunder the following circumstances:
    • a misdemeanor or felony is committed in the officer's presence [MCL 764.15];
    • the officer has probable cause to believe that a crime punishable by imprisonment for more than 92 days has been committed, even outside of his presence [MCL 764.15];
    • the officer has probable cause to believe that domestic violence has occurred [MCL 764.15a];
    • the officer has probable cause to believe that a PPO violation [MCL 764.15b] or domestic assault no-contact bond condition violation [MCL 764.15e] has occurred;
    • the officer has a reasonable belief that the suspect was the driver of a motor vehicle at the time of an accident and was driving while intoxicated or impaired [MCL 764.15].
  • WHARTON'S RULE
  • A substantive limitation on the scope of the crime of conspiracy. This rule provides that an agreement by two persons to commit a crime cannot be prosecuted as a conspiracy when the target crime requires the participation of the same two persons (for example dueling, bigamy or incest). The applicability of the rule focuses on the elements of the target crime, rather than on the factual circumstances of the particular case. So, if the offense could logically be accomplished by a single person, or the number of alleged conspirators exceeds the minimum number logically necessary to complete the substantive offense, Wharton's Rule does not apply.
  • WITH PREJUDICE
  • A dismissal "with prejudice" forever bars the same charge arising from the same incident from being brought against the same defendant again.
  • WITHOUT PREJUDICE
  • A dismissal "without prejudice" allows a prosecutor to re-file the same charge arising from the same incident against the same defendant again.
  • WITNESS
  • Person who comes to court (sometimes by subpoena) and swears under oath to give truthful evidence about information he/she has seen, heard or otherwise experienced.
    • Hostile Witness - a witness who exhibits antagonism toward the attorney or party during direct examination. The trial judge may then permit the attorney or party to question the witness with leading questions.
  • WORK RELEASE
  • Probation program where the defendant is permitted to maintain employment while residing in jail. The defendant leaves jail on work days only for his work hours, plus limited travel time.
  •  

     


     

    Y

    Y.T.A.
  • See Holmes Youthful Trainee Act.
  •  


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    © 1997-201 Eaton County Information Systems
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    Key Cases Calendar

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    ButnCounty1 ButnPAHome1 ButnPress ButnSiteMap

    UPDATED: December 10, 2013
    NOTE: The public or media have inquired into the status of the cases listed below.
    All defendants are presumed innocent of all charges, until convicted.

     

    TRIALS
    APPEALS

    DEFENDANT CHARGES DATE EVENT JUDGE PRESS
    RELEASE
    KEY CASES IN THE TRIAL COURTS
     

    Zachary Jay BOWDEN


    #13-______-FY

     

    Def Atty:
    Timothy Hilton Havis

    I. Fail Stop ID at Scene of Accident Resulting in Serious Impairment of a Bodily Function

    II. Reckless Driving Causing Serious Impairment of a Bodily Function

    III. Reckless Driving

    Thursday

    01/02/14

    8:30 am

     

    Friday

    01/17/14

    8:30 am

    Circuit Court

    Arraignment

     

     

    Circuit Court

    Status Conference

     

     

    Jason Robert ALGRA


    #12-020234-FC

     

    Def Atty:
    Frank Harrison Reynolds

    I-III. CSC 1st Degree

    IV-VIII. CSC 3rd Degree (Student)

    Monday

    1/27/14

    8:30 am

    Circuit Court

    Jury Trial

    Byerley

     

    DEFENDANT CHARGES DATE EVENT PRESS
    RELEASE
    CASES IN THE APPELLATE COURTS
     

     

             
     

     

             

     

     

     

     


     

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    | Criminal Case Process | Downloads | FAQs | Legal Glossary | Gov't & Search Links | Prosecutor Web Site Index |
     

    © 1997-2013 Office of the Eaton County Prosecuting Attorney | Disclaimers | Thanks
    © 1997-2013 Eaton County Information Systems
    Site developed and maintained by Neil F. O'Brien

    Acknowledgments

    UPDATED: September 3, 2013 

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    We gratefully acknowledge the following sites for including our pages in their links:

     


     

    | Eaton County Home | Prosecuting Attorney Home | Office Info | Paperless Files | Press Releases | Site Map |
    | Victims | Domestic Violence | PPOs | Witnesses | Appeals | Economic Crimes | Family Support |
    | Criminal Case Process | Downloads | FAQs | Legal Glossary | Gov't & Search Links | Prosecutor Web Site Index |
     

    © 1997-2011 Eaton County Prosecuting Attorney Douglas R. Lloyd | Disclaimers | Thanks
    © 1997-2011 Eaton County Information Systems
    Site developed and maintained by Neil F. O'Brien

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