People v. Anderson
| Decision Date | 07 June 2011 |
| Docket Number | Docket No. 300641. |
| Citation | 293 Mich.App. 33,809 N.W.2d 176 |
| Parties | PEOPLE v. ANDERSON. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Cheri L. Bruinsma, Assistant Prosecuting Attorney, for the people.
John Targowski for defendant.
Before: HOEKSTRA, P.J., and MURRAY and M.J. KELLY, JJ.
In his delayed application for leave to appeal, defendant raises two alleged errors on the part of the trial court relative to the denial of his motion to dismiss. First, he argues that the trial court erred in requiring him to produce expert testimony in support of his defense to the charges, and second, that he should not have been precluded from raising his statutory defense at trial even though the trial court rejected the defense as factually unsupported after a pretrial evidentiary hearing. As set forth below, we agree with, and therefore adopt as a unanimous opinion of this Court, parts I, II(A), and II(C)(3). of Judge M.J. Kelly's concurring opinion. That is, we agree with Judge Kelly's analysis and conclusion concerning defendant's second argument, i.e., that under these facts the trial court correctly forbade defendant from raising his defense at trial, but we provide an alternative explanation for why defendant cannot prevail on his first argument. Consequently, for the reasons stated below and in parts I, II(A), and II(C)(3) of Judge Kelly's opinion, we affirm.
As we noted, defendant's first argument is that the trial court erred in requiring him to produce expert testimony to establish his defense under MCL 333.26428.1 This argument cannot be sustained, however, because the factual underpinning is incorrect. As the prosecution notes in its brief on appeal, the trial court did not require defendant to produce an expert in order to prevail on his defense. Instead, as the trial court's opinion makes clear, the trial court indicated that an expert would have been able to provide relevant testimony. In denying defendant's motion, the court considered both defendant's testimony and the testimony of his family physician, but rejected both as either not being credible (defendant) or not being qualified to testify on the subject (defendant's physician). In the end, however, the court held that in the absence of relevant expert testimony and any other credible testimony supporting the defense, defendant could not establish a defense:
The record is devoid of any explanation why growing marihuana outdoors in the open and having marihuana in amounts well in excess of the presumptive limit was reasonably necessary to treat Defendant's back pain. The court holds that expert testimony is relevant on this issue. This is not something a lay person would know. MRE 702. The Defendant's opinion on what he had for self-treatment is not creditable. The court finds on the proofs presented that his family doctor was not qualified to offer an opinion on this question, because there is no evidence she has experience working with patients for whom she has recommended marihuana, including experience with dosage. Her opinion is unpersuasive. There is no other evidence on this issue except the presumption within the [Michigan Medical Marihuana] Act. See MRE 301. Because the court has concluded the amount of marihuana exceeds the amount reasonably necessary, it need not resolve whether in fact the Defendant otherwise has met the requirement for a section 8 defense, or to what extent expert testimony is relevant to the other two requirements of section 8 [MCL 333.26428].We see nothing in this opinion where the trial court ruled as a matter of law that defendant's motion was being denied because of the absence of an expert who was qualified to testify about the amount of marijuana reasonably necessary for defendant's medical condition. Rather, the trial court analyzed the other evidence presented by defendant, i.e., his testimony and that of his physician, and after rejecting that evidence as well as recognizing a lack of expert testimony, denied defendant's motion. Hence, defendant's assertion that the trial court required him to produce an expert was incorrect, and as that was the basis for his argument, he cannot prevail.2
Affirmed.
In this interlocutory appeal, defendant, Ted Allen Anderson, appeals by leave granted the trial court's opinion and order denying his motion to dismiss the prosecution's charge that he unlawfully manufactured marijuana, see MCL 333.7401(1) and (2)(d), and barring him from arguing or presenting evidence that he had a valid defense to that charge under the Michigan Medical Marihuana Act (the MMA),1 MCL 333.26421 et seq. On appeal, this Court must determine whether the trial court erred to the extent that it required Anderson to prove his defense under MCL 333.26428 with expert testimony and whether it erred when it barred Anderson from presenting that defense at his upcoming trial. I conclude that Anderson could not—as a matter of law—establish the elements of the defense provided under MCL 333.26428. As such, the trial court did not err when it denied Anderson's motion and did not err when it prohibited Anderson from presenting that defense at his trial. For this reason, I would affirm the trial court's order.
Anderson testified that he had a degenerative back condition and that, in 1997, he further injured his back while working as a baker. He sought treatment through his family physician, Shannon McKeeby, M.D.
Anderson said that his back pain made it difficult to get up and down stairs and bend over and pick things up. He could not even pick up his grandchildren. He exacerbated his condition with a slip and fall at work in 2007. The fall worsened his condition to the point that he had to quit his job. He testified that, after the fall, he pretty much stopped gardening and it was even hard to get in and out of the shower. He said he was in “a lot more pain....” Although he used methadone for the pain, nothing helped with his sciatica. When his sciatic nerve got impinged on it sent a shooting pain down his leg “all the way to my foot” and “it feels like ... I'm standing on a hot poker.”
McKeeby testified that she had been treating Anderson at her family practice for at least 10 years. In addition to her general practice, she treated Anderson for chronic back pain. She stated that an MRI revealed that Anderson had a bulging disc in his back and that the disc was impinging on his nerves. She treated Anderson using different “modalities,” but he was still in “significant pain,” even with the medications that she was using to “try and control his pain....” She said that Anderson used methadone and Vicodin to control his back pain and that he had used MS Contin and Percocet in the past.
McKeeby said that, on June 4, 2009, Anderson came to an appointment for “general issues.” He discussed the new medical marijuana law and said it “was something that he would like to look into.” McKeeby stated that Anderson had not, before that appointment, ever said that he used marijuana. He asked her whether he might be a “good candidate” for using marijuana medically to treat his pain. After explaining the “risk and possible benefits,” McKeeby expressed her opinion that he might be a good candidate. McKeeby agreed that she unequivocally expressed her opinion to Anderson at the June 2009 appointment that marijuana “was a therapeutic modality” for his pain. Because she was prevented from authorizing his medical use of marijuana under hospital policy, she referred Anderson to a pain clinic for evaluation of possible medical use of marijuana. However, after she discovered that the pain clinic did not offer that kind of service, she left Anderson to his own devices in pursuing that type of treatment. McKeeby agreed that it would be reasonable for Anderson to maintain a three-month supply of marijuana for his treatment.
Anderson testified that marijuana relaxes him and gives him relief from his chronic pain: He also could stand longer without sciatica.
Georgeann Ergang testified that she worked for the Kalamazoo Township Police Department and that she was assigned to the Southwest Enforcement Team, which is a narcotics unit.2 Ergang said that she went to Anderson's residence on June 9, 2009. An officer had earlier gone to Anderson's home to investigate a possible break-in that Anderson's estranged wife had reported. Ergang said that the other officer called her after he discovered what appeared to be marijuana plants.
Ergang searched Anderson's home with his estranged wife's permission and discovered 15 marijuana plants under a grow light in a closet in an upstairs bedroom. She described the plants as starter plants or seedlings that ranged from three to six inches in height. Ergang testified that pictures of the growing operation in the bedroom seemed to show that the light was on. She also said that she did not turn on the light. She found a small plastic bag of marijuana and a bag with clippings of leaves and stems from marijuana plants. Ergang found an additional 11 marijuana plants growing in a garden behind Anderson's garage.
Anderson's wife testified that she went to his house to feed and water his animals while he was out of town. When she arrived, she discovered that the house had been burglarized and called the police. She did not know that Anderson had marijuana in the house or outside.
Ergang interviewed Anderson on June 15, 2009. She said that she asked him about the marijuana and he admitted that the plants were his. He explained that he used marijuana for his medical condition. He also said that he had “been smoking marijuana for a long time...
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