People v. Kolanek
| Citation | 491 Mich. 382,817 N.W.2d 528 |
| Decision Date | 31 May 2012 |
| Docket Number | Docket Nos. 142695,142712,142850.,6.,Calendar Nos. 5 |
| Parties | PEOPLE v. KOLANEK. People v. King. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, and Thomas R. Grden, Chief, Appellate Division, for the people in Kolanek.
Mark A. Ambrose and Shawn Patrick Smith, Bloomfield Hills, for Alexander E. Kolanek.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Joel D. McGormley, Assistant Attorney General, for the people in King.
Cramer & Minock, PLC by John R. Minock, Ann Arbor, Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss, Detroit, for Larry S. King.
Bradford W. Springer for Scholten Fant, P.C., Grand Haven, in Kolanek.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Joel D. McGormley, Assistant Attorney General, for the Attorney General in Kolanek.
Larry Burdick, Mount Pleasant, Jeffrey R. Fink, and Cheri L. Bruinsma for the Prosecuting Attorneys Association of Michigan in Kolanek.
Arvid Perrin and Irina Perrin in propriis personis in King.
We granted leave in these cases to consider substantive and procedural aspects of the affirmative defense of medical use of marijuana under § 8, MCL 333.26428, of the Michigan Medical Marihuana Act (MMMA).1 Given the plain language of the statute, we hold that a defendant asserting the § 8 affirmative defense is not required to establish the requirements of § 4, MCL 333.26424, which pertains to broader immunity granted by the act. The Court of Appeals erred by reaching the opposite conclusion in People v. King,2 and we therefore reverse the Court of Appeals' judgment in King.
Further, to establish the affirmative defense under § 8, we hold that a defendant must show under § 8(a)(1) that the physician's statement was made after enactment of the MMMA but before commission of the offense. The Court of Appeals reached this conclusion in People v. Kolanek,3 and we affirm the Court of Appeals in this regard. However, the Court of Appeals also held that defendant could reassert the affirmative defense at trial, despite his failure at the evidentiary hearing to establish the existence of a timely physician's statement under § 8(a)(1). This was error, and we reverse that portion of the Court of Appeals' holding.
In May 2009, police officers received an anonymous tip that marijuana was growing in the backyard of defendant Larry King's home in Owosso, Michigan. The officers went to the residence and observed, from a neighbor's driveway, marijuana plants growing inside a chain-link dog kennel that was wrapped on three sides with a plastic tarp. The officers then spoke with King, who showed them his “registry identification card” for medical use of marijuana that had been issued April 20, 2009. The officers asked to see the marijuana plants, and King consented. Using a key, he unlocked the padlock on the kennel. Inside the kennel were six marijuana plants. The kennel was six feet tall, was not anchored to the ground, and was open on top.
The officers then obtained a search warrant for King's home. Inside, the officers discovered six marijuana plants in his living-room closet, which did not have a lock on it. The back door to the home also lacked a lock. In addition to the live plants, the officers also found processed marijuana in two prescription bottles; several plastic bags containing marijuana stalks, buds, and leaves; two additional dead marijuana plants; and a food dehydrator.
King was arrested and charged with one count of manufacturing marijuana. 4 At the preliminary examination in the district court, he moved to dismiss the charge under § 8 of the MMMA.5 The court denied King's motion and bound him over on the charge.6
King renewed his motion to dismiss in the circuit court, again asserting that he had established the elements of the affirmative defense under § 8. The prosecutor responded that because King had failed to comply with § 4(a) by not keeping his marijuana in an “enclosed, locked facility,” King could not establish the elements of the affirmative defense under § 8. The circuit court disagreed with the prosecutor that King was not in compliance with § 4(a), ruling instead that King had satisfied the requirements of § 4 because he was a qualifying patient with a valid registry identification card; possessed no more than 12 plants in an enclosed, locked facility; and was entitled to the presumption that he was engaged in the medical use of marijuana. The circuit court further reasoned that King, in accordance with § 8, had obtained a valid physician's statement, possessed a reasonably necessary amount of marijuana consistently with § 4, and was engaged in the use and possession of marijuana to treat a serious medical condition. The circuit court therefore ruled that King's use of marijuana was “in accordance with [the MMMA]” 7 and that King was entitled to dismissal of the charge under § 8.8
The Court of Appeals reversed. The Court of Appeals held that the “express reference” in § 8 “to § 7 [MCL 333.26427] and the statement in § 7(a) that medical use of marijuana must be carried out in accordance with the provisions of the MMMA require [King] to comply with the provisions of § 4 concerning growing marijuana.” 9 Applying its interpretation of the statute, the Court of Appeals concluded that because King had failed to keep the plants in an “ ‘enclosed, locked facility,’ ” he had not complied with § 4(a). As a consequence, the Court held that he also failed to meet the requirements for the affirmative defense in § 8.10 The Court of Appeals reversed the circuit court and remanded for further proceedings.
We granted leave to consider, in relevant part, “whether the language ‘[e]xcept as provided in section 7’ in § 8(a) required the defendant to fulfill all of the conditions set forth in § 4 in order to have a valid affirmative defense under § 8(a).” 11
On April 6, 2009, police arrested defendant Alexander Kolanek for the possession of eight marijuana cigarettes. Kolanek did not have a registry identification card at the time of his arrest. The next day, the prosecution charged Kolanek with possession of marijuana.12
Six days later, on April 12, 2009, Kolanek requested that his physician of nine years, Dr. Ray Breitenbach, authorize his medical use of marijuana to treat chronic severe pain and nausea caused by Lyme disease. Breitenbach complied with this request on the basis of his professional opinion that Kolanek would receive a therapeutic benefit from using marijuana. The same day, Kolanek applied for a registry identification card. The Michigan Departmentof Community Health issued him a card two weeks later on May 1, 2009.
On June 9, 2009, Kolanek moved to dismiss the criminal charge pending against him, asserting the affirmative defense in § 8 of the MMMA. The district court held an evidentiary hearing on the motion, at which Breitenbach testified that Kolanek would have been eligible for the medical use of marijuana on the date of his arrest. However, despite having discussed Kolanek's potential medical use of marijuana on July 14, 2008, before the enactment of the MMMA, Breitenbach testified that he did not provide Kolanek with authorization to use marijuana until April 12, 2009, six days after the date of Kolanek's arrest.13
The district court rejected the prosecutor's argument that Kolanek must have had a valid registry identification card to assert a § 8 defense, but nonetheless denied Kolanek's motion to dismiss. The court reasoned that the language “has stated” in § 8(a)(1) contemplates a physician's statement made before commission of the offense. Because Kolanek had not obtained such a statement, the court concluded that Kolanek had failed to meet his burden under § 8.
Kolanek appealed in the circuit court, which reversed the district court's ruling. In the circuit court's view, the district court's interpretation of § 8(a)(1) was erroneous. Section 8(a)(1), according to the circuit court,
The Court of Appeals reversed the circuit court. Like the district court, the panel rejected the prosecution's argument that Kolanek had to meet the registry-card requirement of § 4 in order to assert a valid defense under § 8.14 The Court of Appeals also concluded that Kolanek had not produced sufficient evidence of the § 8 affirmative defense. 15 The Court of Appeals reasoned, like the district court, that the phrase “has stated” in § 8(a)(1) contemplates a physician's statement made after enactment of the MMMA but before the offense occurs.16 It reversed the circuit court's decision and remanded for reinstatement of the charge.17 In doing so, the Court provided directions on remand:
Because the statute does not provide that the failure to bring, or to win, a pretrial motion to dismiss deprives the defendant of the statutory defense before the factfinder, [Kolanek's] failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the § 8 defense at trial or from submitting additional proofs in support of the defense at that time.18
We granted Kolanek's application for leave to appeal to consider “whether, in order to have a valid affirmative defense for the medical use of marijuana under MCL 333.26428(a)(1), a defendant must obtain the required physician's statement after the date of enactment of the [MMMA], but before the date of the defendant's arrest.” 19 We also granted the prosecution's application for leave to appeal to consider “whether a defendant may assert the...
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