DocketNumber: Docket No. 305040
Citation Numbers: 299 Mich. App. 604
Judges: Hood, Kelly, Markey
Filed Date: 2/28/2013
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals by right his conviction of possessing a weapon in jail, MCL 801.262(2). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to imprisonment of 2 to 10 years. This Court initially granted defendant’s motion for remand “to allow defendant to have an evidentiary hearing on his claims of prosecutorial misconduct and to bring a motion for a new trial in the trial court based on those claims.”
Because defendant did not argue in the trial court that MCL 801.262(2) was unconstitutionally vague, he failed to preserve this claim for appellate review. Cf. People v Wilson, 230 Mich App 590, 593; 585 NW2d 24 (1998). Normally, unpreserved constitutional claims are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 764, 774; 597 NW2d 130 (1999). This Court may, however, overlook preservation requirements with respect to a challenge to the constitutionality of a criminal statute. People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). This Court reviews de novo whether a statute is constitutional under the void-for-vagueness doctrine. Id. “Statutes and ordinances are presumed to be constitutional and are so construed unless their unconstitutionality is clearly apparent.” Id. The party challenging the statute has the burden of proving its unconstitutionality. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009).
The void-for-vagueness doctrine flows from the Due Process Clauses of the Fourteenth Amendment and Const 1963, art 1, § 17, which guarantee that the state
MCL 801.262(2) provides:
Unless authorized by the chief administrator of the jail, a prisoner shall not possess or have under his or her control any weapon or other item that may be used to injure a prisoner or other person, or used to assist a prisoner in escaping from jail.
This statute has not been interpreted or applied in any published appellate decision, but this Court has addressed a similarly worded statute applicable to Michigan’s prison system.
In People v Herron, 68 Mich App 381, 383; 242 NW2d 584 (1976), the defendant was convicted of violating
This Court subsequently followed Herron in People v Osuna, 174 Mich App 530, 531; 436 NW2d 405 (1988), in which the defendant was convicted of violating MCL 800.283(4), which prohibited bringing a “weapon or
In sum, the Herron and Osuna decisions support that language prohibiting “a weapon or other implement which may be used to injure a prisoner or other person, or in assisting a prisoner to escape from imprisonment” is understandable by persons of ordinary intelligence and provides a reasonable opportunity to know what is prohibited. Roberts, 292 Mich App at 497; Herron, 68 Mich App at 383. Specifically, MCL 800.283(4) is not unconstitutionally vague because persons of ordinary intelligence can understand that it encompasses items with weapon-like qualities that could be used to harm others or make an escape. Osuna, 174 Mich App at 532.
The wording of MCL 800.283(4) and MCL 801.262(2) is substantively identical. MCL 801.262(2) uses the
For the reasons discussed in Herron and Osuna, we reject defendant’s claim that MCL 801.262(2) is void because it is unconstitutionally vague. A person of ordinary intelligence would understand that an unauthorized, sharpened fragment of metal attached to the end of a Q-tip is a “weapon or other item that may be used to injure a prisoner or other person, or used to assist a prisoner in escaping from jail.” Roberts, 292 Mich App at 497. Particularly in light of judicial interpretations of the similar statute, Noble, 238 Mich App at 652 (“A statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations . . . .”), the plain language of MCL 801.262(2) is not unconstitutionally vague. Osuna, 174 Mich App at 532; Herron, 68 Mich App at 383. Consistently with the reasoning of Herron and Osuna, we conclude the language of MCL 801.262(2) is not unconstitutionally vague.
Defendant also cannot establish a void-for-vagueness challenge to the statute regarding its application to his conduct. To challenge MCL 801.262(2) as unconstitutionally vague for failure to provide fair notice, defendant bears the burden of identifying specific facts that suggest that he complied with the statute. People v Douglas, 295 Mich App 129, 135; 813 NW2d 337 (2011). If he is able to do so, he must then show that the language “any weapon or other item that may be used to injure” is vague. Id.
Defendant cannot show that he complied with the statute. Defendant was convicted of the unauthorized
Defendant also argues that MCL 801.262(2) is unconstitutionally vague because it is overly broad and may apply to virtually any item. But when a vagueness challenge does not involve First Amendment freedoms, “the constitutionality of the statute in question must be examined in light of the particular facts at hand without concern for the hypothetical rights of others.” People v Vronko, 228 Mich App 649, 652; 579 NW2d 138 (1998). “The proper inquiry is not whether the statute may be susceptible to impermissible interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in this case.” Id. In this case, defendant possessed a needle, an item that falls within the scope of MCL 801.262(2) because it is an item that may be used to injure another person and is clearly inappropriate for a jail setting. The hypothetical situation that defendant posits involving the use of tissue paper to transmit disease does not render the statute unconstitutionally vague as applied because the
Defendant next argues that MCL 801.262(2) is unconstitutionally vague because it allows for arbitrary enforcement. A statute may be unconstitutionally vague if it does not contain adequate standards to guide those who are charged with its enforcement or because it impermissibly gives the trier of fact unstructured and unlimited discretion in applying the law. Douglas, 295 Mich App at 138. But a statute cannot be determined to confer unstructured and unlimited discretion unless the wording of the statute itself is vague. Id. Here, for the reasons already noted, the wording of MCL 801.262(2) is not vague. Thus, we conclude that defendant’s argument that the statute allows for arbitrary enforcement is meritless. In sum, MCL 801.262(2) is not impermissibly vague, and defendant’s constitutional challenge fails.
Next, defendant argues that his conviction must be reversed because the trial court failed to instruct the jury that a necessary element of the charged offense requires proof that defendant intended to use the item as a weapon. We disagree.
Defendant failed to preserve his challenge to the jury instructions by raising this issue in the trial court. People v Gonzalez, 468 Mich 636, 642-643; 664 NW2d 159 (2003). We review unpreserved claims of instructional error for plain error affecting substantial rights. Id. at 643; Carines, 460 Mich at 763. The determination of the necessary elements of a crime presents a question of law that we review de novo. People v Mass, 464 Mich 615, 622; 628 NW2d 540 (2001).
The Osuna decision interpreting the similarly worded statute governing Michigan’s prison system, MCL 800.283, supports our conclusion that MCL 801.262(2) is a general intent crime. The Osuna Court
Because MCL 801.262(2) is a general intent crime, the trial court did not err by failing to instruct the jury that defendant must have had the specific intent to use the item he possessed as a weapon. Consequently, plain error did not affect defendant’s substantial rights. Gonzalez, 468 Mich at 643; Carines, 460 Mich at 763. Finally, because the intent to use the item as a weapon is not an element of the offense, defendant’s related argument that trial counsel was ineffective for failing to request this instruction must fail. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that counsel is not ineffective for failure to raise a meritless argument).
Next, defendant argues that the trial court abused its discretion by not granting his motion for a new trial. Defendant argues that the prosecutor denied him a fair trial by (1) not correcting the false testimony of a cooperating jail inmate and (2) not disclosing a prior plea agreement with the inmate. The prosecution argues that the inmate’s testimony was accurate and that the plea agreement had no bearing on this case because it had been entered approximately six months before the crime was committed. Moreover, it was a readily accessible part of the trial court’s records. The prosecu
We review for clear error a trial court’s factual findings on a motion for a new trial and for an abuse of discretion the court’s decision to grant or deny the motion. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). The trial court abuses its discretion when the court’s decision is outside the range of principled outcomes. Id. Whether the prosecutor’s conduct denies a defendant a fair and impartial trial presents a question of law that we review de novo. People v Fyda, 288 Mich App 446, 460; 793 NW2d 712 (2010).
During cross-examination at trial, the inmate testified that he had “been a witness for the prosecution on some other cases and I’m not well-liked by the population in the jail.” He also acknowledged that he had been convicted of fraud within the past year and false pretenses within the past two years, the last conviction being the result of a plea bargain. On redirect examination, the inmate testified that he had informed jail staff that two other inmates had destroyed a television. That information ultimately led to at least one conviction. In addition, the inmate informed authorities about a robbery at Boyne Highlands, leading to one or more convictions. The inmate testified that he had provided information to the authorities “of my own free will” and answered no when asked if the authorities had given him “any compensation.”
After conducting an evidentiary hearing, the trial court determined that, in context, the inmate’s answer
With respect to defendant’s second argument, the trial court concluded that defendant could have discovered the inmate’s plea agreement through reasonable diligence because the plea agreement was available in the court’s files. The trial court also reasoned that defendant could have asked the inmate during trial whether he had executed any plea agreements in previous cases. Therefore, the trial court found that the prosecutor did not suppress evidence of the plea agreement. Finally, the trial court found that there was no reasonable probability that the outcome of the proceedings would have been different had evidence of the plea agreement been introduced at trial. Accordingly, the trial court denied defendant’s motion for a new trial.
A defendant’s right to due process guaranteed by the Fourteenth Amendment is violated when there is any reasonable likelihood that a conviction was obtained by the knowing use of perjured testimony. People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). Accordingly, a prosecutor has an obligation to correct perjured testimony that relates to the facts of the case or a witness’s credibility. People v Lester, 232 Mich App 262, 277; 591 NW2d 267 (1998). When a conviction is ob
First, defendant asserts that the inmate’s testimony that he never received “compensation ... for any of this information” was perjury because the inmate had previously received a favorable plea bargain in exchange for cooperating with the prosecution in an unrelated drug case. The trial court found that the inmate’s challenged testimony only addressed his cooperation regarding the damaged jail television and the Boyne Highlands robbery, so the testimony was not false. The trial court did not clearly err in so finding. Immediately before providing the challenged testimony, the inmate specifically testified about the television and Boyne Highlands cases. The trial court observed the exchange between the inmate and the prosecutor during trial, so it was able to fairly assess the context of the testimony at issue. Further, there is no dispute that the inmate did not receive any type of compensation or benefit regarding the television incident or the Boyne Highlands robbery; therefore, the inmate’s testimony was not false.
Moreover, even if the testimony was perjury and the prosecutor knowingly allowed it to stand uncorrected, defendant still would not be entitled to a new trial because the perjury and prosecutorial misconduct did not “materially affect[] the trial’s outcome ... .” Aceval, 282 Mich App at 390. Defendant admitted possessing the needle immediately after corrections
Second, defendant argues that the prosecutor violated his right to due process by failing to disclose before trial the inmate’s prior plea agreement. Upon request,
a defendant must prove: (1) that the state possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. [Id. at 281-282.]
In this case, the trial court found that defendant could not establish the second, third, or fourth elements
The trial court’s finding that defendant could have obtained the inmate’s prior plea agreement with reasonable diligence was not clearly erroneous. As the trial court explained, evidence of the plea agreement was available in the court’s files. Also, as the trial court explained, defendant’s discovery request could have included a request for all plea agreements entered with the prosecution’s prospective witnesses.
More importantly, we agree with the trial court that it is not reasonably probable that the outcome of the proceedings would have been different had the prosecution disclosed the plea agreement before trial. Defendant gave two written confessions admitting ownership of the needle, and the corrections officers’ testimony regarding its discovery in defendant’s belongings provided overwhelming evidence at trial to support his conviction. Further, the parties do not dispute that defendant was a jail inmate, and the jail administrator did not authorize his possession of the needle. Hence, even if the prior plea agreement were relevant to the inmate’s credibility and defendant had been able to use it for that purpose, we cannot find any reasonable probability that the outcome of trial would have been different. Consequently, the trial court did not abuse its discretion by denying defendant’s motion for a new trial for this reason.
Defendant also argues that he is entitled to resentencing because the trial court erred by assessing 10 points for offense variable (OV) 9 rather than zero points because fewer than two victims were placed in
MCL 777.39(1)(c) requires a trial court to score 10 points for OV 9 when “[t]here were 2 to 9 victims who were placed in danger of physical injury or death[.]” The trial court should “[c]ount each person who was placed in danger of physical injury ... as a victim.” MCL 777.39(2)(a). “OV 9 is scored only on the basis of the defendant’s conduct during the sentencing offense.” People v Carrigan, 297 Mich App 513, 515; 824 NW2d 283 (2012). In scoring OV 9, it is improper for a trial court to consider conduct after an offense has been completed. People v McGraw, 484 Mich 120, 122, 133-134; 771 NW2d 655 (2009).
In this case, the cooperating jail inmate testified that while defendant had the needle he had constructed, he stated, “I should stab her [a corrections officer] in the neck.” In addition, the inmate testified that a few days earlier, defendant informed him that “if I told anybody about it [the needle] he would hurt me.” From this testimony, the trial court had an adequate factual basis to conclude that while' defendant possessed the needle in the jail, at least two victims were placed in danger of
We affirm.
People v Gratsch, unpublished order of the Court of Appeals, entered February 15, 2012 (Docket No. 305040).
MCL 800.283(4).
This is the version of the statute as amended by 1972 PA 105, which subsequently was held to violate the title-object limitation of Const 1963, art 4, § 24. See People v Stanton, 400 Mich 192, 193; 253 NW2d 650 (1977). The Legislature enacted 1982 PA 343, containing the current version of MCL 800.283, to comply with the title-object limitation.
We note that the inmate’s testimony regarding defendant’s intent was material to defendant’s sentencing, as discussed later, but the trial court was fully cognizant of the plea agreement, so it could consider it in assessing the inmate’s credibility.
Defendant made such a request before trial.
See Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).