People v. Gratsch

• Decision Date: 28 February 2013
• Docket Number: Docket No. 305040.
• Parties: PEOPLE v. GRATSCH.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 604

831 N.W.2d 462

PEOPLE

v.GRATSCH.

Docket No. 305040.

Court of Appeals of Michigan.

Submitted Feb. 7, 2013, at Lansing.

Decided Feb. 28, 2013, at 9:00 a.m.

Prior Version Recognized as Unconstitutional

M.C.L.A. § 800.283.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Laura A. Cook, Assistant Attorney General, for the people.

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

Before: KIRSTEN FRANK KELLY, P.J., and MARKEY and FORT HOOD, JJ.

MARKEY, J.

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.” ¹ Following a hearing, the trial court denied defendant's motion for a new trial. We now affirm.

Defendant first argues that MCL 801.262(2) is unconstitutionally vague because it failed to provide defendant with adequate notice that a sharpened paper clip fragment attached to the end of a Q-tip might be considered a “ weapon or other item” prohibited under the statute. Defendant made the item by removing the small cotton ball from one end of a Q-tip, placing the paper clip fragment inside the Q-tip, and then replacing the Q-tip cotton ball to cover the paper clip fragment. Jail staff referred to the item as a “needle” during trial. During sentencing, the trial court stated that the item was “not a knife or something that could cause anyone's death” but that “it could put out an eye” or “otherwise harm[ ] someone[.]”

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 N.W.2d 24 (1998). Normally, unpreserved constitutional claims are reviewed for plain error affecting substantial rights. People v. Carines, 460 Mich. 750, 764, 774, 597 N.W.2d 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 N.W.2d 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 N.W.2d 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 may not deprive a person of life, liberty, or property, without due process of law. People v. Roberts, 292 Mich.App. 492, 497, 808 N.W.2d 290 (2011). A statute may be challenged as unconstitutionally vague when (1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed, or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether the law has been violated. Noble, 238 Mich.App. at 651, 608 N.W.2d 123. A statute provides fair notice when it gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Id. at 652, 608 N.W.2d 123;Roberts, 292 Mich.App. at 497, 808 N.W.2d 290. “A statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” Noble, 238 Mich.App. at 652, 608 N.W.2d 123. But “[a] term that requires persons of ordinary intelligence to speculate about its meaning and differ on its application may not be used.” People v. Hrlic, 277 Mich.App. 260, 263, 744 N.W.2d 221 (2007).

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.²

In People v. Herron, 68 Mich.App. 381, 383, 242 N.W.2d 584 (1976), the defendant was convicted of violating MCL 800.283, which at the time provided that “[a] convict without authorization, shall not have on his person or under his control or in his possession any weapon or other implement which may be used to injure any convict or other person, or to assist any convict to escape from imprisonment.” ³ The defendant possessed a “draftsman's compass” in prison and argued that that the statute was void for vagueness because its language would permit the conviction of a prisoner for possessing pencils, pens, shoestrings, or religious paraphernalia. This Court concluded that the statute was not so vague that individuals of ordinary intelligence must guess at its meaning and application. Id. The Court observed that it was clear that “the statute was intended to prohibit possession of weapons or objects similar to weapons which might be used to harm others or make an escape. Moreover, the section challenged applies only to prison inmates and only to unauthorized possession or control.” Id. The Court described the compass that the defendant possessed as being “bent, ... sharpened on one end, and ... unfit for normal use. In short, it was an object of weapon-like qualities that could be used to harm others.” Id. The Herron Court concluded that because the statute was both facially constitutional and constitutional as applied, the defendant's hypothetical arguments could not form the basis for declaring the statute unconstitutional. Id. at 383–384, 242 N.W.2d 584.

This Court subsequently followed Herron in People v. Osuna, 174 Mich.App. 530, 531, 436 N.W.2d 405 (1988), in which the defendant was convicted of violating MCL 800.283(4), which prohibited bringing 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” into a correctional facility. This Court rejected the defendant's claim that the statute was unconstitutionally vague with respect to providing him notice that the hypodermic syringe he transported into a correctional facility was a prohibited item. Citing Herron with approval, the Court explained that the syringe was “an object with weapon-like qualities that could have been used to harm others or make an escape.” Id. at 532, 436 N.W.2d 405. The Osuna Court also rejected the defendant's claim that the statute “only applies to objects which possess greater weapon-like qualities than syringes.” Id. Further, citing Acrey v. Dep't of Corrections, 152 Mich.App. 554, 559, 394 N.W.2d 415 (1986), the Osuna Court rejected the defendant's argument that the syringe was for narcotics use, noting that “within the prison setting, the element which transforms an unauthorized article into a weapon is its potential to cause injury, not the inmate's subjective intent.” Osuna, 174 Mich.App. at 532, 436 N.W.2d 405.

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, 808 N.W.2d 290;Herron, 68 Mich.App. at 383, 242 N.W.2d 584. 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, 436 N.W.2d 405.

The wording of MCL 800.283(4) and MCL 801.262(2) is substantively identical. MCL 801.262(2) uses the phrase “any weapon or other item that may be used to injure a prisoner or other person,” while MCL 800.283(4) uses the phrase “a weapon or other implement which may be used to injure a prisoner or other person.”

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, 808 N.W.2d 290. Particularly in light of judicial interpretations of the similar statute, Noble, 238 Mich.App. at 652, 608 N.W.2d 123 (“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, 436 N.W.2d 405;Herron, 68 Mich.App. at 383, 242 N.W.2d 584. 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 N.W.2d 337 (2011). If he is able to do so, he must then show that the language ...