People v. Russo, Docket No. 118821

• Decision Date: 06 November 1990
• Docket Number: Docket No. 118821
• Citation: 185 Mich.App. 422,463 N.W.2d 138
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Salvatore RUSSO, Defendant-Appellee. 185 Mich.App. 422, 463 N.W.2d 138
• Court: Court of Appeal of Michigan — District of US

Page 138

463 N.W.2d 138

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Salvatore RUSSO, Defendant-Appellee.

Docket No. 118821.

185 Mich.App. 422, 463 N.W.2d 138

Court of Appeals of Michigan.

Submitted June 18, 1990.

Decided Sept. 11, 1990.

Released for Publication Nov. 6, 1990.

[185 MICHAPP 424] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., and Helen V. Brinkman, Asst. Pros. Atty., for the People.

Smiley & Holst by Harold U. Smiley, Jr., Wyoming, for defendant-appellee.

Before HOOD, P.J., and HOLBROOK and NEFF, JJ.

HOOD, Presiding Judge.

The people appeal as of right from the June 30, 1989, order of the Kent Circuit Court dismissing three counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), and three counts of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a). We affirm in part and reverse in part.

The charges against defendant arose out of information[185 MICHAPP 425] provided to the Grand Rapids Police Department in 1989 by the alleged victim. The victim informed Officer Christine Karpowicz that defendant had sexually assaulted her on numerous occasions between the fall of 1978 and August, 1982. The victim was under the age of eighteen during this time period.

Officer Karpowicz obtained a search warrant for defendant's home from the Sixty-first District Court on April 27, 1989. The facts supporting the warrant were: (1) defendant sexually assaulted the victim from the fall of 1978 when she was five years old until August, 1982, when she was ten years old; (2) defendant performed various acts of sexual touching and penetration; (3) defendant photographed and videotaped the acts; and (4) the victim observed photographs and videotapes at defendant's residence.

The search warrant was executed and an abundance of evidence was retrieved from defendant's home. The evidence included videotapes depicting defendant engaged in sexual acts with children and commercially produced child pornography.

As a result of the items seized, defendant was arrested on April 28, 1989, and charged with multiple counts of criminal sexual conduct against the victim involved in the instant case as well as a second victim discovered upon review of the videotapes. The assaults upon the second victim are not at issue in the instant appeal. ¹

In any event, defendant filed a motion to dismiss both cases and to exclude evidence seized during the search of his residence. A hearing on the motion was held in the Kent Circuit Court on [185 MICHAPP 426] June 23, 1989. The basis of defendant's motion for dismissal as to the charges involved in this appeal was that since August, 1982, the last date on which an offense allegedly occurred, his April, 1989, arrest was barred by the six-year statute of limitations in effect at the time the crimes took place. M.C.L. Sec. 767.24; M.S.A. Sec. 28.964. Defendant further argued that the amended version of M.C.L. Sec. 767.24; M.S.A. Sec. 28.964 which extended the statute of limitations in certain criminal sexual conduct cases involving minors applied only prospectively. See M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2).

Defendant's motion to suppress evidence was premised on a claim that the search warrant was based upon an affidavit containing stale information and thus was defective.

In a detailed written opinion dated June 30, 1989, the circuit court granted defendant's motion to dismiss and suppress evidence. An order dismissing the case presently before this Court was entered on the same date.

I

The people first argue that the trial court erred in ruling that the amended statute of limitations in M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2) should not be applied retroactively and thus was inapplicable to defendant's case.

M.C.L. Sec. 767.24; M.S.A. Sec. 28.964 was amended by 1987 P.A. 255, effective March 30, 1988, to extend the limitation period for criminal sexual conduct cases involving victims who were under the age of eighteen at the time an offense occurred. The amended statute specifically states:

Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later. [M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2).]

[185 MICHAPP 427] The circuit court, in granting defendant's motion to dismiss, opined: (1) that an amendment to a statute of limitations only applies prospectively absent a contrary legislative intent, and no such intent existed in this case; and (2) that retroactive application of the amended limitation period would violate the constitutional prohibition against ex post facto laws. We will address each of the trial court's findings separately.

First, it is true that in Michigan statutes are generally presumed to operate prospectively unless a contrary legislative intent is shown. Selk v. Detroit Plastic Products, 419 Mich. 1, 9, 345 N.W.2d 184 (1984). This rule has been specifically applied to amendments to statutes of limitation governing civil cases. See Harrison v. Metz, 17 Mich. 377, 378 (1868); Great Lakes Gas Transmission Co. v. State Treasurer, 140 Mich.App. 635, 650-651, 364 N.W.2d 773 (1985); Farris v. Beecher, 85 Mich.App. 208, 214, 270 N.W.2d 658 (1978); International Business Machines Corp. v. Dep't of Treasury, 75 Mich.App. 604, 612-613, 255 N.W.2d 702 (1977), lv. den. 401 Mich. 816 (1977). However, in the instant case, we are faced with deciding whether amendments extending statutes of limitation applicable to criminal cases apply retroactively. After thorough review of the relevant authority, we believe that they do.

[185 MICHAPP 428] It has been stated that

Statutes limiting the time for the prosecution of offenses may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by completion of the period of limitation, but where a complete defense has arisen under such a statute, it cannot be taken away by a subsequent repeal thereof.

So, too, where a statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period although the original period of limitation had then expired; and such a statute is not invalid. A limitation act, however, cannot operate to revive offenses which were barred at the time of its enactment. [22 CJS, Criminal Law, Sec. 197, p 243, emphasis added; see also 21 AmJur2d, Criminal Law, Sec. 224, pp 410-411.]

A rationale for the rule allowing retroactive application of a statutory amendment extending a limitation period was articulated by Judge Learned Hand in Falter v. United States, 23 F.2d 420, 425-426 (CA 2, 1928):

Certainly, it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has been safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it. [Emphasis added.]

We find the aforementioned authority persuasive and believe that the rule with respect to statutes of limitation applicable to criminal cases [185 MICHAPP 429] should be that, when a statute extends the limitation period, the extension applies to offenses not barred at the time the amendment was passed and thus a prosecution may be commenced at any time within the newly established period. SeePeople v. Lewis, 180 Cal.App.3d 816, 225 Cal.Rptr. 782 (1986); State v. Wolfe, 61 S.D. 195, 247 N.W. 407 (1933); People v. Buckner, 281 Ill. 340, 117 N.E. 1023 (1917).

We also believe that the above conclusion is sound, considering the fact that in this case the amended limitation period would be applied to criminal sexual conduct against a minor. This rationale was enunciated by the Massachusetts Supreme Court in Commonwealth v. Bargeron, 402 Mass. 589, 524 N.E.2d 829 (1988).

In Bargeron the defendant was charged with several counts of assault with intent to commit rape involving children. The offenses occurred from 1979 to 1980 and defendant was indicted in 1987. During the time the alleged crimes took place, the applicable Massachusetts statute of limitations was six years. See G.L. c. 277, Sec. 63 (1986 ed). However, in July, 1985, the statute was amended by St 1985, c. 123, Sec. 63 which extended the limitation period to ten years. The amendment became effective on September 30, 1985. The Bargeron court addressed the issue whether the amended statute of limitations could be retroactively applied. In concluding that the amendment had retroactive effect, the court stated:

It may be argued that the [Massachusetts] Legislature recognized the delays commonly and understandably associated with a child's report of sexual abuse and wished to accommodate such delays by an extension of the statute of limitations. It makes good sense for the Legislature to consider what is increasingly one of the great scourges of our society--the sexual abuse of children. [Bargeron, 402 Mass. ----, 524 N.E.2d 831-832.]

[185 MICHAPP 430] We believe that the same argument can be made with respect to the Michigan Legislature's intent in extending the limitation period in criminal sexual conduct cases in which the...