People v. Russo

• Decision Date: 01 November 1991
• Docket Number: Docket No. 90088
• Citation: 487 N.W.2d 698,439 Mich. 584
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee and Cross-Appellant, v. Salvatore RUSSO, Defendant-Appellant and Cross-Appellee. ,
• Court: Michigan Supreme Court

Page 698

487 N.W.2d 698

439 Mich. 584

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

Docket No. 90088, Nov. Term, 1991.

Calendar No. 6.

Supreme Court of Michigan.

Argued Nov. 6, 1991.

Decided June 2, 1992.

William A. Forsyth, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Helen V. Brinkman, Asst. Pros. Atty., Grand Rapids, for plaintiff-appellee.

Harold U. Smiley, Jr., Wyoming, for defendant-appellant.

OPINION

BOYLE, Justice.

We granted leave in this case to determine whether the amended statute of limitations set forth in M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2) applies to the prosecution of a charge of criminal sexual assault involving a minor where the alleged acts were committed prior to, yet were not time-barred on, the effective date of the amendment. The prosecution's cross appeal was granted to answer the question whether the warrant authorizing the search of the defendant's home was supported by an affidavit establishing probable cause if the amended statute governs prosecution.

We find that the extended limitation period for criminal sexual conduct involving a minor was intended by the Legislature to apply to formal charges of offenses not time-barred on the effective date of the act filed after its effective date. ¹ Such an application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions. ²

In response to the second question, we hold that the supporting affidavit provided the magistrate a substantial basis to conclude that there was probable cause to believe that the evidence to be seized would be found in the place to be searched.

We affirm the decision of the Court of Appeals on the statute of limitations issue and reverse its decision on the search and seizure issue.

I Facts and Proceedings

The defendant was charged with three counts of criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), and three counts of criminal sexual conduct in the second degree, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a). The counts involved one child victim under the age of thirteen.

On April 25, 1989, the Grand Rapids Police Department received information from the victim, then age sixteen, that over a four-year span between the time she was five and ten years old, she had been sexually assaulted by the defendant every other weekend. The assaults allegedly occurred between the fall of 1978 and August, 1982. On April 27, 1989, a warrant was issued for a search of the defendant's residence on the basis of an affidavit, the details of which are set forth below. An abundance of homemade and commercial child pornography tapes, sexually explicit photographs, pornographic magazines, sexual paraphernalia, video, television and camera equipment, letters, drawings, and a list of 192 children's names were seized during the execution of the search warrant. The evidence seized included sexually explicit videotapes and photographs of the victim. ³ As a result of the seizure, the defendant was arrested on April 28, 1989, and charged with criminal sexual assaults of the child.

The statute of limitations in effect at the time of the alleged acts was six years. It is undisputed that, under the previous limitation period, the charges made would have been barred as of August, 1988. However, before the running of the then-applicable six-year period of limitation, the Legislature amended the statute. 1927 P.A. 175, as amended by 1987 P.A. 255, M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2), provides in part:

"(2) 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."

The amendment became effective on March 30, 1988, five months before the previous statute of limitations would have expired.

The defendant filed a motion to suppress the evidence and to dismiss the charges, claiming that the action was barred by the statute of limitations and that the warrant was defective. The trial court granted both motions, agreeing that the amended statute could not be applied to crimes committed before its effective date and that the information supporting probable cause to search was "stale." The trial court ordered that the charges against the defendant be dismissed. The people appealed of right the trial court's rulings on the statute of limitations and the search and seizure issues, and the Court of Appeals reversed in part and affirmed in part. ⁴ The Court held that the Legislature intended the amendment to apply to offenses not time-barred on the effective date of the act. ⁵

Regarding the search and seizure issue, the Court of Appeals agreed that probable cause did not exist and affirmed the lower court's ruling that the search warrant was defective and the resulting seizure was illegal.

We granted the defendant's application for leave to appeal the statute of limitations issue, and the people's application for leave to appeal the search and seizure issue. 437 Mich. 925 (1991).

II Statute of Limitations

The Legislature amended the Code of Criminal Procedure to provide:

"[I]f an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense ... 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." 1987 P.A. 255, M.C.L. Sec. 767.24(2); M.S.A. Sec. 28.964(2).

The prosecution asserts that the extended limitation period applies to those offenses that were committed before the amendment, but were not yet time-barred under the previous statute of limitations. ⁶ 6] The defendant contends that because the amendment does not specifically state that it applies to offenses arising before its effective date, the amendment is not applicable. The defendant also submits that the rules of statutory construction and the prohibition against ex post facto laws ⁷ proscribe its application to this case. Dealing with the claims in inverse order, we hold that neither ex post facto analysis nor application of the general statute of limitations requires dismissal.

The United States Supreme Court has consistently held that the Ex Post Facto Clause, U.S. Const., art. I, Sec. 10, cl. 1, was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedure that do not affect matters of substance. ⁸ In Dobbert v. Florida, 432 U.S. 282, 292-293, 97 S.Ct. 2290, 2297-2298, 53 L.Ed.2d 344 (1977), the Court stated:

" 'It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.'

* * * * * *

"Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v. Utah, 110 US 574 [4 S.Ct. 202, 28 L.Ed. 262] (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id. at 589 ."

An enactment will not escape a court's scrutiny under the Ex Post Facto Clause merely because a Legislature has given it a procedural label. However, legislation will not be found violative of the clause simply because it works to the disadvantage of the defendant. ⁹

Well-settled principles require the conclusion that applying the extended statute of limitations to the then-not-yet-time-barred alleged sexual assaults is not ex post facto. The sexual assaults were not innocent when committed, the quantum of punishment is unchanged, and the defendant has not been deprived of any defense available to him at the time the acts were committed. The statute of limitations defense was not available to the defendant at the time the assaults were committed or at the time the amendment became effective. The Legislature amended the statute of limitations five months before the defendant had any substantive right to invoke its protection. The statute of limitations defense remained available to the defendant after the amendment, just as it did immediately before the amendment went into effect.

Therefore, finding no violation of the Ex Post Facto Clause, we turn to the issue of legislative intent.

The general rule of statutory construction in Michigan is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect. ¹⁰ This rule applies equally to criminal statutes. ¹¹ However, an exception to the general rule is recognized where a statute is remedial or procedural in nature. Statutes that operate in furtherance of a remedy already existing and that neither...