People v. Garland

• Decision Date: 18 August 2009
• Docket Number: Docket No. 284300.
• Citation: 286 Mich. App. 1,777 N.W.2d 732
• Parties: PEOPLE v. GARLAND.
• Court: Court of Appeal of Michigan — District of US

777 N.W.2d 732

286 Mich. App. 1

PEOPLE v. GARLAND.

Docket No. 284300.

Court of Appeals of Michigan.

Submitted August 5, 2009, at Grand Rapids.

Decided August 18, 2009.

Approved for publication October 15, 2009, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, David L. Morse, Prosecuting Attorney, and William J. Vailliencourt, Jr., Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker) for defendant.

Before: OWENS, P.J., and TALBOT and GLEICHER, JJ.

PER CURIAM.

Defendant appeals as of right the judgment of sentence reflecting his convictions of home invasion in the first degree, MCL 750.110a(2); two counts of criminal sexual conduct in the first degree (CSC I) (sexual penetration occurring during the commission of a felony), MCL 750.520b(1)(c)¹; and two counts of CSC in the third degree (CSC III) (sexual penetration with knowledge that the victim was physically helpless), MCL 750.520d(1)(c).² We affirm.

I. FACTS

On the evening of May 21, 2005, the victim and her sister went to a bar with their friend, Barb, and defendant. Once they arrived at the bar, the group had drinks and danced. At around 11:00 p.m. the victim's sister became nauseated and dizzy and she and the victim called for a ride home. Upon arriving at her sister's apartment, the victim realized that she had Barb's keys in her pocket. The victim put the keys outside on the welcome mat for Barb to pick up, then went to sleep.

Barb and defendant drove to pick up her keys, and then defendant drove Barb back to her car, where they parted ways for the evening. At some point after falling asleep, the victim was awakened by someone having contact with her vaginal area. At first, the victim could not move. Later, when she was able to move, she sat up and saw defendant and asked him, "where's Barb?" The victim passed out again and then later felt defendant kissing her lips and felt something inside her vaginal area. The victim never invited defendant to the apartment, nor did she consent to any sexual activity with defendant.

II. DOUBLE JEOPARDY

Defendant argues that his conviction of four separate counts of CSC where there were only two acts of penetration violates the prong of double jeopardy protection that prohibits multiple punishments. We review de novo questions of law, such as a double jeopardy challenge. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004). Defendant correctly observes that

[t]he United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15. The prohibition against double jeopardy . . . protects against multiple punishments for the same offense. [Nutt, supra at 574, 677 N.W.2d 1.]

To determine whether a defendant has been subjected to multiple punishments for the "same offense," we must first look to determine whether the Legislature expressed a clear intention that multiple punishments be imposed. People v. Smith, 478 Mich. 292, 316, 733 N.W.2d 351 (2007). Where the Legislature clearly intends to impose such multiple punishments, there is no double jeopardy violation. Id. Where the Legislature has not clearly expressed an intention to impose multiple punishments, the elements of the offenses must be compared using the Blockburger³ test. Id. at 316-318, 733 N.W.2d 351.

Under the Blockburger test, if each offense "requires proof of a fact which the other does not" then there is no violation of double jeopardy. Id. at 311, 52 S.Ct. 180 (quotation marks and citations omitted). However, because the Blockburger test is simply a tool used to ascertain legislative intent, the focus must be on a comparison of the abstract legal elements of the offenses and not on the particular facts of the case. People v. Ream, 481 Mich. 223, 238, 750 N.W.2d 536 (2008). Nowhere in the CSC chapter, MCL 750.520 et seq., does the Legislature clearly express its intention to impose multiple punishments. Thus, the Blockburger test must be applied.

In the instant case, the prosecution alleged two acts of sexual penetration: sexual intercourse and cunnilingus. For each act, defendant was charged, tried, and convicted of two criminal offenses: CSC I on the theory that a sexual penetration had occurred during a home invasion (counts II and IV), and CSC III on the theory that the victim was physically helpless (counts III and V).

First, the crimes of CSC I and CSC III are codified in the CSC chapter of the Michigan Compiled Laws as separate statutes. Second, although CSC I and CSC III both require a sexual penetration, the commission of CSC I does not necessarily require commission of CSC III and vice versa. We now compare the abstract, statutory elements of the two CSC crimes of which defendant was convicted, MCL 750.520b(1)(c) and MCL 750.520d(1)(c). MCL 750.520b(1)(c) requires proof that the sexual penetration occurred "under circumstances involving the commission of any other felony." This is not an element of MCL 750.520d(1)(c). MCL 750.520d(1)(c) requires proof that the sexual penetration occurred and was accompanied by the actor knowing or having "reason to know that the victim [was] . . . physically helpless." This is not an element of MCL 750.520b(1)(c). Thus, under the Blockburger test, because each offense contains an element that the other does not, CSC I and CSC III are separate offenses for which defendant was properly convicted and sentenced, without violating defendant's double jeopardy protection against multiple punishments.

Defendant cites People v. Johnson, 406 Mich. 320, 279 N.W.2d 534 (1979), and People v. Malkowski, 198 Mich.App. 610, 499 N.W.2d 450 (1993), for the proposition that a single act of penetration, even though accompanied by multiple aggravating circumstances, cannot result in multiple CSC convictions and sentences. However, defendant's reliance on those cases is misplaced. In Johnson and Malkowski, our Courts held that a defendant could not be charged with and convicted of multiple counts of CSC I pursuant to MCL 750.520b arising from a single act of penetration because each of the enumerated aggravating factors in MCL 750.520b were "`alternative ways of proving criminal sexual conduct in the first degree'" rather than separate offenses. Johnson, supra at 331, 279 N.W.2d 534 (citation omitted). In contrast, defendant, in this case, was charged with and convicted of two separate offenses under separate statutes, CSC I and CSC III, for each act of penetration. See Blockburger, supra at 304, 52 S.Ct. 180. ("`A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'") (Citation omitted.) Thus, Johnson and Malkowski do not apply in this case. See People v. Dowdy, 148 Mich.App. 517, 521-522, 384 N.W.2d 820 (1986) (Johnson only applies in cases where there are multiple punishments under one statute for a single act of penetration).

III. CONFRONTATION CLAUSE

Defendant next argues that admission of the victim's preliminary examination testimony violated defendant's right to confront the witnesses against him and violated the rule against hearsay. We review a trial court's factual findings for clear error. People v. Barrera, 451 Mich. 261, 269, 547 N.W.2d 280 (1996).

Former testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation Clause as long as the witness is unavailable for trial and was subject to cross-examination during the prior testimony. MRE 804(b)(1); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant claims only that the record does not support the trial court's factual finding that the victim was unavailable. A witness is unavailable if he or she "is unable to be present or to testify at the hearing because of ... then existing physical ... illness or infirmity[.]" MRE 804(a)(4).

Based on the evidence on the record showing that the victim was experiencing a high-risk pregnancy, that she lived in Virginia, and that she was unable to fly or travel to Michigan to testify, the trial court did not clearly err by determining that the victim was unavailable.

Further, because the issue of unavailability was a preliminary question for the trial court to decide before the admission of evidence, the rules of evidence did not apply. MRE 104(a). Therefore, defendant's argument that the victim's sister's testimony was hearsay or unreliable because no basis for her information was established is without merit. In addition, although the second of the two notes from a physician regarding whether the victim should fly simply stated that the victim should not fly, rather than stating that the victim should not fly or travel long distance as the first note did, this did not undermine the trial court's factual finding, because the victim's sister testified that the victim was unable to fly or travel and the prosecution represented to the trial court that the victim was unable to travel to Michigan to testify. The trial court had no reason to disbelieve the prosecution's representation, People v. Dunbar, 463 Mich. 606, 617 & n. 13, 625 N.W.2d 1 (2001) (no reason not to accept the representations of an officer of the court bound by a duty of candor to a tribunal), and defense counsel could have clarified any possible ambiguity in the sister's answer to the compound question by requesting clarification.

IV. HEARSAY AND INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant argues that admission of the victim's statements to a nurse violated the rule against hearsay and his right to confront the witnesses against him. Defendant also argues that defense counsel's failure to object to the admission of those statements on Confrontation Clause grounds constituted ineffective assistance of counsel. We...