People v. Macleod
| Decision Date | 14 July 2016 |
| Docket Number | No. 326950,326950 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DUSTIN LEE MACLEOD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DUSTIN LEE MACLEOD, Defendant-Appellant.
No. 326950
STATE OF MICHIGAN COURT OF APPEALS
July 14, 2016
UNPUBLISHED
Cheboygan Circuit Court
LC No. 14-4961-FC
Before: OWENS, P.J., and BORELLO and O'BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions for manufacture with intent to deliver between 5 and 45 grams of marijuana, MCL 333.7401(2)(d)(ii), possession of a firearm by a felon, MCL 750.224f, possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), harboring a felon, MCL 750.199(3), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to concurrent prison terms of three to 25 years for manufacture with intent to deliver between 5 and 45 grams of marijuana, and three to 15 years each for possession of a firearm by a felon, possession with intent to deliver marijuana, and harboring a felon. The court also sentenced defendant to a prison term of two years for felony firearm, to be served consecutive to all other sentences. We affirm.
This case arises from the investigation of defendant for selling marijuana to people for whom he is not a registered caregiver under the Michigan Medical Marihuana Act, MCL 333.2641, et seq. The investigation included three controlled buys made using confidential informants Shawn Spohn and his girlfriend, a forward looking infrared radar (FLIR) scan of defendant's residence and of his grow house, and a comparative analysis of the energy bills of buildings similar in size and location to defendant's grow house. Using results obtained from the investigation, Detective Jess Halleck secured search warrants for defendant's residence and grow house on October 14, 2014, and members of the Huron Undercover Narcotics Team (HUNT) and of Straits Area Narcotic Enforcement (SANE) conducted the searches on the same day. Immediately prior to the search of his residence, defendant was arrested at a remote location. Defendant waived his Miranda rights, Miranda v Arizona, 384 US 436, 86 S Ct 1602, L Ed 2d 694 (1966), and participated in a police interview with Detective Jason Varoni. Among other
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things, defendant admitted that he had one to two pounds of newly harvested marijuana at his house, and approximately 40 full-grown plants and an unknown number of clones in a nearby grow house. Defendant identified himself as a medical marijuana grower and caregiver for three patients plus himself, but admitted that he sold "the medicine" to whomever said they needed it.
When officers knocked and announced themselves prior to searching defendant's residence, Megan MacLeod, defendant's sister, ran out the back door, toward the woods, and into the Black River, all the while with one officer yelling at her to stop, and another officer in pursuit. The pursing officer caught her in the middle of the river and turned her over to the proper authorities. Officer Dean Tebo testified that Megan MacLeod was an absconder from the Cheboygan County Jail.
SANE's search of defendant's residence turned up marijuana leaf in bags in the master bedroom and the kitchen freezer, and 23 canisters and 14 plastic baggies with different varieties of marijuana seeds. The team also found a black digital scale, a marijuana drying rack and several firearms.
Detective Halleck testified to the search of the grow house, describing the building as square, brick, and with surveillance cameras at each corner and black material covering the windows to keep the light out. Inside, officers found a garbage can containing marijuana "shake," one grow room with six plants from four to six feet tall, another grow room with four plants from three to four feet tall, a third room with 20 plants from three to four feet tall, and a room with 92 clones. Detective Halleck testified that all or most of the clones had a root system. They also found high-powered grow lights and bulbs in each room. In addition, the grow house had a ventilation system to keep the rooms cool, and a carbon dioxide tank to pump in extra carbon dioxide to help the plants grow. Including clones, officers seized 122 plants. Random samples of 21 plants were sent to the Grayling State Police Crime Laboratory for analysis. They were examined by forensic scientist Karen Brooks, who testified that each tested positive as marijuana.
Defendant first contends that the trial court erred by denying his motion to dismiss for lack of jurisdiction. We disagree. We review de novo questions regarding the exercise of territorial jurisdiction by a state court in a criminal prosecution. People v Collins, 298 Mich App 166, 172; 826 NW2d 175 (2012).
Defendant argued below that the state court did not have jurisdiction in this matter because he is a registered member of the Sault Ste. Marie Chippewa Tribe, and the charged crimes were committed in Indian Country. Defendant relied for support on a map showing the Indian territories ceded to the United States by the Chippewa and Ottawa Tribes in the 1836 Treaty of Washington (hereinafter, the "Treaty of 1836"), 7 Stat 491 (1836), and indicating that Cheboygan County is within the ceded territory. What defendant fails to appreciate, however, is that, once the subject territory was ceded to the United States in the 1836 Treaty, it ceased to be "Indian Country." The federal government defines "Indian Country" as
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(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. [18 US 1151.]
Defendant presented no evidence establishing that the charged crimes occurred on an Indian reservation, a dependent Indian community,1 or an Indian allotment.2 Therefore, the charged crimes did not occur in "Indian Country."
On appeal, defendant contends that the charged crimes occurred in the context of the 2007 Inland Consent Decree. United States v State of Michigan, 2:73-cv-26 [2007 Inland Consent Decree] (WD Mich, Nov. 2, 2007). The 2007 Inland Consent Decree, parties to which included the State of Michigan and the Sault Ste. Marie Chippewa Tribe, resolves "conclusively" the extent of the rights of various Tribes to hunt, fish, trap, and gather on the ceded territory, rights reserved by the Tribes in the Thirteenth Article of the Treaty of 1836.
Relevant to the instant appeal, § 6.2(a) of the 2007 Inland Consent Decree (hereinafter the "Decree") provides that tribal members "may Hunt, Fish, Trap, and Gather natural resources, without limitation as to the species (including non-native and artificially propagated species) targeted for harvest, the season or method of harvest, or the use of the resource harvested...." Also relevant is § 6.2(b), which permits each of the Tribes to regulate and to enforce regulation of these treaty-right activities with regard to their members. According to § 24.1, where a Tribe enacts regulations consistent with the Decree and has a forum with the necessary subject-matter jurisdiction, prosecutions of alleged violations of fish and game laws and of regulations by tribal members in the territory ceded in the Treaty of 1836 are to be heard in a tribal forum. Accordingly, § 24.2 precludes the State "from initiating prosecutions of the Tribes' members in State courts for violations of State law or regulations pertaining to Hunting, Trapping, otherwise taking any species of wildlife, Fishing, or Gathering, when such acts are within the scope of this Decree or subject to Tribal regulations that are consistent herewith."
Defendant asserts on appeal that the Decree gives him the right to gather, grow, and medicinally share cannabis, especially among tribal members in Section 5 areas,3 without
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interference from the State. Further, he asserts that the state court is without jurisdiction to interpret the Decree, and that his mere assertion that his activities fall under the Decree is sufficient to remove this case to tribal or federal court. Defendant does not support this latter position with authority. In § 1.3 of the Decree, the federal court retained jurisdiction over the parties and the subject matter "of the action to enforce [the] Decree and to resolve disputes arising under [the] Decree"; however, nothing in this provision prohibits a state court from initially determining whether a particular dispute falls under the Decree and, thus, outside its own jurisdiction.
Consent decrees are construed in the same manner as contracts. See Bd of Co Rd Comm'rs for the Co of Eaton v Schultz, 205 Mich App 371, 378; 521 NW2d 847 (1994). In ascertaining the meaning of a contract, appellate courts give "the words used in the contract their plain and ordinary meaning that would be apparent to a reader of the instrument." Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). When a term is undefined, consulting a dictionary is appropriate. See Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758 (2009).4
Section 20.1 of the Decree authorizes tribal members to "[g]ather plant materials and other natural resources on state lands for personal, medicinal, cultural, or traditional craft use...." Section 3.6 of the Decree defines "gather" or "gathering" as to take or acquire, or to attempt to take or acquire, "possession of any wild plant or part thereof or other natural resource." Although the Decree does not define "wild," with regard to plants, it means...
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