People v. Malette

• Decision Date: 21 October 2021
• Docket Number: 352921,355514
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES WILLIAM MALETTE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
CHARLES WILLIAM MALETTE, Defendant-Appellant.

Nos. 352921, 355514

Court of Appeals of Michigan

October 21, 2021

UNPUBLISHED

Chippewa Circuit Court LC No. 19-003922-FH

Before: Redford, P.J., and K. F. Kelly and Letica, JJ.

Per Curiam.

A jury convicted defendant of use of a computer to commit a crime, MCL 752.796; MCL 752.797(3)(d), aggravated stalking, MCL 750.411i, and two counts of stalking, MCL 750.411h. The trial court sentenced defendant to serve 180 days in jail for use of a computer to commit a crime, consecutive to 180 days in jail and five years' probation for aggravated stalking and stalking. Defendant appeals by right these convictions in Docket No. 352921. In Docket No. 355514, defendant appeals by right an amended judgment of sentence ordering defendant to pay $430.50 in restitution to SH, one of defendant's victims. Finding no errors, we affirm.

I. FACTUAL BACKGROUND

Defendant, an attorney in Sault Ste. Marie, Michigan, dated SS until she ended their relationship. A few months later she had contact with defendant while helping a mutual friend. SS eventually texted defendant and asked him to stop contacting her and stop "talking trash" about her to their friends. SS began dating SH who worked at a local store's pharmacy. SH testified that defendant started lingering in the pharmacy every few days, then escalated to coming into the pharmacy almost daily around the same time to stare at SH. SH testified that defendant came into the store between 20 and 50 times. On one occasion, defendant pointed his hand and finger in the form of a gun toward SH which SH took as a threat. Around this time, defendant entered into a dating relationship with LH. LH testified that when she refused to be in an official relationship with defendant, he acted erratically. She stated that defendant told a stranger that LH abused Xanax, was an alcoholic, and crazy.

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Between January 2018 and October 2018, defendant made multiple disparaging posts on his Facebook page about SS and SH, whom he referred to as "the dwarf," and "the elf" respectively. Defendant also made disparaging posts about LH and referred with sexual connotations to her as "the Newberry bicycle." In several of the posts, defendant threatened to have SS's housing terminated, threatened to get involved in LH's custody dispute with her children's father, and threatened to get LH fired. SS asked defendant multiple times to stop making the posts, but he continued. A freelance designer hired by defendant testified that defendant complained to him about SS, SH, and LH and made disparaging comments about them. Defendant's girlfriend at the time, LB, testified that defendant asked her to search SS's Facebook page so that he could make fun of it. SS, SH, and LH applied for personal protection orders (PPOs) against defendant. Defendant responded to SS's PPO request by deposing and subpoenaing her and SH five times in less than eight weeks. Defendant also hired a process server to repeatedly contact SS and SH at their home and at work to tell them that there were more letters of intent to sue coming for them later. SS testified that she felt terrified waiting for the pending paperwork, but no letters were ever served and defendant filed no case against her. On one occasion, defendant's process server waited outside of court to contact SH about pending paperwork while defendant watched from the parking lot. Defendant also asked his girlfriend, LB, to contact SH and tell him that more paperwork would be coming, even though she had no paperwork to serve. LB testified that defendant had her secretly record the interactions so that he could hear how SH reacted.

SS and LH were represented by JC, an attorney for a resource center for victims of domestic violence. JC testified that after she started representing SS, defendant's attorney sent a letter to her home that threatened sanctions or legal action if she did not drop the case. JC testified that defendant also sent her an e-mail that contained a veiled threat regarding defendant's representation of a man accused of domestic violence and strangulation. JC, therefore, also petitioned for and obtained a PPO against defendant. The graphic designer testified that defendant hired him to take pictures of cars parked in the parking lot of the resource center and defendant laughed when a woman came out of the building visibly upset. The circuit court granted PPOs for SH and LH, and defendant eventually entered into a stipulated no-contact order with SS.

In January 2019, LH discovered several posts about her on MyLife.com, a website on which individuals rate other people and leave anonymous comments, which generated a score like a credit meter based on such reviews. LH discovered disparaging comments posted in December 2018 and January 2019 about her, SS, SH, and defendant's former fiancée, many posted on the same day. LH contacted police, and detectives traced at least one of the posts to a computer in defendant's law firm and also a cell phone. Police obtained a warrant to search all of defendant's electronic devices, including his cell phone. The warrant described the places to be searched as defendant's home address, his law practice, defendant's person, and any clothing, bag, folder, or briefcase in his possession or control.

One day, detectives recognized defendant's car and followed him to a Walmart parking lot where they confronted defendant and he voluntarily exited his car and cooperated. Detective Sergeant Darrell Harp served defendant a copy of the search warrant and searched defendant's person. He then noticed defendant's phone sitting on the center console of his car. Detective Harp seized the cell phone without asking permission to enter the vehicle. Defendant had not been placed in custody and had the keys in his possession at the time. Later, a forensic extraction of

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defendant's phone showed that the dates and times that the disparaging MyLife.com posts were made were consistent with dates and times that defendant accessed the website on his cell phone.

Law enforcement charged defendant with aggravated stalking, MCL 750.411i, use of a computer to commit a crime, MCL 752.796, and two counts of stalking, MCL 750.411h. Defendant moved to suppress evidence from the cell phone extraction, arguing that the detective's search violated his Fourth Amendment rights because the warrant did not describe his car as a place to be searched. The circuit court denied defendant's motion, ruling a search warrant unnecessary to seize defendant's phone because it fell under the plain view and automobile exceptions. At the trial, the prosecution also introduced evidence from the forensic search of defendant's phone, which revealed a list entitled "2018 goals" modified in January 2019 stating: "Kill [SS] and [LH] . . . ball-peen hammer, ambush, camera issues, alibi, revenge. Kill [SH] . . . bombs and plan it . . . Kill . . . [JC] . . . fire Molvov cocktail, kill them all, hurt my enemies, don't get caught nor suspected." Defense counsel objected to the admission of the list and the trial court overruled the objection on the ground that the list demonstrated defendant's animus toward the witnesses.

The jury convicted defendant on all counts. At sentencing, SH orally requested that defendant pay him restitution for the vacation time that he had to use to respond to defendant's harassment. The circuit court ruled that it could not grant SH restitution for any libel, slander, or harassment claims, but could reimburse SH for the lost wages associated with defendant's harassment. The court ordered defendant to pay SH $430.50 to compensate SH for six hours for appearing under subpoena at defendant's attorney's office, one hour of reimbursement for filing a restraining order, and two and a half hours for court attendance.

II. ANALYSIS

A. AUTOMOBILE SEARCH

Defendant first argues that the evidence seized from his cell phone should have been suppressed because the officers conducted an unconstitutional warrantless search of his vehicle and the plain view and automobile exceptions did not apply. We disagree.

We review de novo a trial court's ultimate decision regarding a motion to suppress because of an alleged constitutional violation. People v Gingrich, 307 Mich.App. 656, 661; 862 N.W.2d 432 (2014). We review for clear error the trial court's findings of fact made during the suppression hearing. Id. "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." Id. (quotation marks and citation omitted). We review de novo constitutional issues such as a claim of Fourth Amendment violation and whether an exclusionary rule applied. People v Corr, 287 Mich.App. 499, 506; 788 N.W.2d 860 (2010).

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures requires that warrants be issued upon probable cause and particularly describe the place to be searched, and the persons or things to be seized. U.S. Const, Am IV. To establish a search's compliance with the Fourth Amendment, "the police must show either that they had a warrant or that their conduct fell within one of the narrow, specific exceptions to the

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warrant requirement." People v Kazmierczak, 461 Mich. 411, 418; 605 N.W.2d 667 (2000). The warrant in this case permitted the police to search for any and all electronic devices at defendant's home, office, or on his person, including "any article of clothing, bag, folder, [or] brief case that is in his possession or control[.]" Because the warrant did not identify defendant's car as a place to be searched, any search of the vehicle had to fall under one of the enumerated exceptions to the warrant requirement, either the plain view exception or the automobile...