Articles Posted in Crimes

As the close of the prosecution’s case, a Defendant can request the court for a directed verdict in his or her favor.  What is a directed verdict?  Michigan Court Rule 6.419 indicates that during a criminal trial the defense or the court on its own  volition can consider after the prosecution rests or after the close of all evidence whether or not the evidence is sufficient to support a conviction.   The standard that the trial Court uses in this determination is to consider whether or not, in the light most favorable to the prosecution, that a rational Judge or jury could find beyond a reasonable doubt that the Defendant is guilty.  See People v Smith-Anthony, 494 Mich 669 (2013).  Hence, if this standard is met, there is a judgment entered in favor of the Defendant without any Judge or jury deliberations.

In a way it seems unfair, because the evidence is considered in the light most favorable to the prosecution even though the Defendant is “presumed innocent”.  Needless to say, these motions are infrequently granted.

I had a jury trial several years ago where my client was charged with assault and battery.  The proof that the prosecution introduced at trial was a hearsay statement  (admitted over objection by the Judge as an excited utterance) from the daughter of the complaining witness that the complaining witness yelled from another room that her boyfriend “David spit on me”.  The complaining witness did not appear at the trial to testify.  In my motion for directed verdict I told the Court that the offense of assault and battery required proof beyond a reasonable doubt of intent.  There are instances where you may speak with someone and spit unintentionally comes from the other person’s mouth (when I was a child there was an expression “say it, don’t spray it”).  The jury in this case would have to speculate, or guess, whether or not the alleged spitting was intentional or accidental which is improper.

On occasion, a person will be dissatisfied with the lawyer that represents them in criminal law proceedings.  The reasons someone wants to obtain a new lawyer are various.  Reasons to want to obtain a new lawyer include the following: my lawyer does not communicate with me (the lawyer does not return phone calls, emails, and/or text messages); my lawyer does not adequately address my questions; my lawyer will not provide me with discovery materials; my lawyer will not file motions that I think are appropriate; my lawyer does not fight on my behalf; my lawyer is not on my side; there has been a breakdown in the attorney-client relationship; the lawyer has a conflict of interest; etc., etc..

One of the main disadvantages of having a public defender is that the representation you receive is the luck (or un-luck) of the draw.  Generally, the Defendant has no choice in terms of the public defender assigned to the case.  The lawyer may or may not provide great representation.  The lawyer may or may not care about the result you obtain.  The lawyer may or may not try and get you to plead guilty, rather than go to trial, because a trial requires a lot more work.

When a Defendant wants a new lawyer, there are a couple ways to go about the issue.  The best way is to hire a lawyer that gives you the confidence that the case is being handled in a thorough, experienced, professional manner.  If you have the ability to hire a lawyer, take the time to figure out if you and your prospective lawyer are compatible.  Does the lawyer have the experience needed to handle the particular type of case that you have?  What is the reputation of the lawyer?  Does the lawyer seem to know his or her stuff?  Will the lawyer handle the case, or will it be assigned to an associate lawyer?

One of the more difficult defenses to establish in Michigan is the insanity defense.   To prove legal insanity the Defense must prove by a preponderance of the evidence (show that it is more probable than not true) that the Defendant was, at the time of the alleged offense, legally mentally ill and either lacked the substantial capacity to appreciate the wrongfulness of his or her conduct or unable to conform his or her behavior to the law (legal insanity 2 prong test).

Even though a preponderance of the evidence is not a high burden, juries do not like this defense.  Many people feel that each of us are responsible for our own actions, and there is a fear that the Defendant will not be held responsible or accountable for his or her actions.  One of the instructions of the court for a jury instruction is that lawyers and the Court cannot tell the jury what the possible penalty is for a crime, and a jury might have a mistaken assumption that if a verdict of “not guilty by reason of insanity” (also referred to as NGRI) is reached the Defendant will face no penalty because he or she was acquitted.  There is a fear by juries that the Defendant might pose a danger to the community (especially for a violent crime) and could harm another person without a finding of guilt.

Unfortunately a jury is not told that if a Defendant is found to be “not guilty by reason of insanity”, the Defendant is committed to the Center for Forensic Psychiatry for an initial period of 60 days during which time the Defendant is examined and evaluated regarding his or her mental health condition.  The Center for Forensic Psychiatry has the option to find that no further treatment is needed, which is not a common result.  The more likely result is that a psychiatrist and another medical doctor will determine that further treatment is necessary, and a petition is filed with a probate court to order further in patient treatment.

It is not uncommon for a minor to commit retail fraud (or shoplifting).  The reasons for this include: peer pressure; greed; the feeling of invincibility; psychological reasons; etc.; etc.   It is always upsetting for a parent to learn that their child got into trouble, and the range of emotions that a parent may feel may run from concern to anger to disappointment.

What to expect for you and your child when your child is facing a shoplifting allegation?

If your child was lucky, the store made a decision to not involve law enforcement.  If law enforcement was contacted, how the case is handled depends upon the age of your child.

In Michigan, First Degree Child Abuse is a very serious offense.  According to Michigan Compiled Law 750.136b(2) it carries a possible penalty of life in prison or any term of years.  There are 3 elements that the prosecution must prove beyond a reasonable doubt at trial for a conviction to occur:  (1) the Defendant, (2) knowingly or intentionally, (3) causes serious physical or mental harm to a child.  See People v Gould, 225 Mich App 79 (1997) and Michigan Compiled Law 750.136b(2).

The above referenced elements have specific legal definitions.  The phrase “knowingly or intentionally” requires the prosecution to prove beyond a reasonable doubt that the Defendant intended to cause serious physical or mental harm to a child through the Defendant’s act, or that a Defendant knew that serious mental or physical harm would be caused by the Defendant’s act.   “[I]t must be shown that the Defendant intended to harm the child, not merely that the Defendant engaged in conduct that caused harm.” People v. Gould, 225 Mich App 79 (1997).

The terms “serious physical harm” and “serious mental harm” also have specific meanings that are defined by Michigan law.  According to Michigan Compiled Law 750.136b(1)(f) serious physical harm means any physical injury to a child that seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.   Michigan Compiled Law 750.136b(1)(g) defines serious  mental harm as an injury to the child’s mental condition or welfare that is not necessarily permanent.  The mental harm results in visibly demonstrable manifestations of a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or the ability to cope with the ordinary demands of life.  In Child Abuse First Degree trials the prosecution often tries to prove this element through the testimony of an expert witness (psychologist, psychiatrist, etc.).

If you are accused of a crime and are not a citizen of the United States a criminal conviction can have negative immigration repercussions.  What type of immigration impact can be influenced by a number of factors.  The following is a partial list of items that may play a role in the ultimate outcome when it comes to immigration:

  1. The conviction type.  Certain types of immigration convictions can subject a person to deportation (removal from the United States) and/or inadmissibility (the inability to reenter the United States if the alien leaves and tries to return).  It also may subject an alien to mandatory detention.  There are certain crimes that are classified in certain manners for immigration purposes (for example: Crimes of Violence; Crimes Involving Moral Turpitude); Aggravated felonies; Prostitution, etc., etc.)
  2. The alien’s status in the country.  The alien’s as undocumented, on a visa, or a lawful permanent resident (green card holder), can have a bearing on the immigration consequence and the forms of relief that may be available;

Carrying a concealed weapon in Michigan is a felony offense that carries up to 5 years in prison, up to $2500 in fines, possible probation/parole with conditions, and forfeiture of the weapon.  A conviction for the same can affect your ability to lawfully purchase and/or possess firearms.  This crime can also be prosecuted as a federal law violation depending on the circumstances.

In many accusations concerning carrying a concealed weapon the accusation begins with a traffic stop.  The car is stopped for some sort of traffic violation such as speeding, defective equipment, a bad license plate, etc..  The police officer approaches and asks the driver for his or her name, registration and proof of insurance.  During the stop a search of the vehicle occurs due to the driver’s consent, the officer seeing in plain view some sort of contraband, smelling the odor of marijuana, a search incident to an arrest (driving on a suspended license, an active warrant, open intoxicants in the motor vehicle, etc.) etc..  During the course of the search a weapon is discovered.

What happens next?

  • The information in this blog is not a substitute for seeking the legal opinion and/or legal representation of an experienced immigration lawyer who is fully aware of lawful permanent resident’s background and personal circumstances.  Immigration law is prone to frequent changes in the law that can affect the validity of the information provided herein.  For any immigration law issue I recommend attorney Sufen Hilf of the law firm Hilf & Hilf, PLC.

With the increasing legalization by States for marijuana there is a false perception that Federal law is also more tolerant.  The federal penalty for possession of marijuana (as a first time marijuana conviction only) is a misdemeanor with up to 1 year of incarceration and a maximum fine of $1000.  The federal penalty for selling or distributing less than 50 kilograms of marijuana is a felony that carries up to 5 years of incarceration and a maximum fine of $250,000.  At the time of this blog marijuana is classified under Federal law as a schedule 1 substance.

Immigration law is similarly in opposition to marijuana use, possession, distribution, sales, or cultivation.  Moreover, any sort of a diversionary sentence in State court in which the alien pled guilty before a Judge is still viewed as as a conviction.  It does not matter if the State considers the conviction as expunged, sealed, or not entered into a public record.

Twelve Oaks Mall is a popular shopping destination due to its collection of great stores. Nordstrom, Macy’s, Lord & Taylor, the Apple Store, and Lululemon Athletica,  and Victoria’s Secret are a few of it’s most sought after destinations.  One of the issues that Twelve Oaks and its merchants deal with on a daily basis is shoplifting (also called retail fraud or retail theft) and employee theft (also called embezzlement).

Twelve Oaks Mall has mall security, close circuit court, and a working relationship with Novi Police to protect its tenants.  The prosecution of shoplifters and people who embezzle money and merchandise is intended to serve as a deterrent for repeated thefts and the public at large.

How are people caught committing theft offenses?

Michigan has a regulatory scheme concerning firearms that places great limitations on how local governments are able to enforce alleged firearms violations.  Michigan Compiled Law 123.1102 states that “[a] local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state”.  This means that local governments are not allowed to enact laws concerning firearms and pneumatic guns (bb guns or pellet guns), unless they are specifically allowed to under federal and/or state Law.  The legal term for this practice is “preemption”.  The doctrine of preemption is also supported by Michigan Court interpretation of the law (See Michigan Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich App 401 (2003)).

There are a few exceptions to preemption under state law that are contained in Michigan Compiled Law 123.1103.  The local government is allowed to prohibit or regulate conduct that is a criminal offense in Michigan under state law.  This means that local governments are allowed to adopt the language of state laws or state codes and enforce those codes.  The local governments cannot adopt their own prohibitions that differ from state law (See MCL 123.1103(b)).

The state also allows local governments from preventing local government employees from transporting, carrying, and/or possessing pistols, firearms, and/or pneumatic guns in the course of their employment.  In Michigan, local governments can also place restrictions on persons below the age of 16 from carrying pneumatic guns in public (See MCL 123.1103(c)).