Summary
In People v Murray, 341 Mich.App. 205, 216; 989 N.W.2d 284 (2022) (Murray I), vacated in part on other grounds by 979 N.W.2d 670 (Mich, 2022) (Murray II), this Court rejected the argument that MCL 750.520b(2)(b) "deprives a sentencing court of its discretion to consider individualized, mitigating circumstances by mandating a sentence of not less than 25 years."
Summary of this case from People v. SwiderOpinion
Nos. 355736 355737
03-24-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kirk Allen MURRAY, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Corey J. Wiggins, Prosecuting Attorney, and Geofrey C. M. Bilabaye and John S. Pallas, Assistant Attorneys General, for the people. Grabel & Associates, Lansing (by Scott A. Grabel and Timothy A. Doman ) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Corey J. Wiggins, Prosecuting Attorney, and Geofrey C. M. Bilabaye and John S. Pallas, Assistant Attorneys General, for the people.
Grabel & Associates, Lansing (by Scott A. Grabel and Timothy A. Doman ) for defendant.
Before: Cavanagh, P.J., and Markey and Servitto, JJ.
Markey, J.
A jury convicted defendant of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) and (2)(b) (sexual penetration of a person under 13 years of age by an individual 17 years of age or older), second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) and (2)(a) and (b) (sexual contact with a person under 13 years of age by an individual 17 years of age or older), and third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (sexual penetration accomplished by force or coercion). The trial court sentenced defendant to concurrent terms of 25 to 40 years’ imprisonment for the CSC-I conviction, 2 to 15 years’ imprisonment for the CSC-II conviction, and 20 to 180 months’ imprisonment for the CSC-III conviction. In these consolidated appeals, defendant argues that the trial court erred by admitting a witness's testimony regarding other-acts evidence in violation of the notice provision in MCL 768.27b(2). Defendant also contends that his 25-year minimum sentence for the CSC-I conviction must be vacated because MCL 750.520b(2)(b), which mandates a prison sentence of not less than 25 years when a victim is under 13 years of age and the perpetrator is 17 years of age or older, violates the separation-of-powers doctrine under Const. 1963, art. 3, § 2. We reject both arguments and affirm.
Defendant's CSC-I and CSC-II convictions were entered in lower court file number 19-012458-FC, and his CSC-III conviction was entered in lower court file number 19-012639-FC.
I. BASIC FACTS AND PROCEDURAL HISTORY
These cases arise from sexual assaults committed by defendant against his daughter, LM, and his then-wife, MM, during the summer of 2018. At trial, LM testified about an incident in which defendant sat LM on his lap, began touching her inner thigh, and then digitally penetrated LM's vagina. LM claimed that defendant warned her not to tell anyone about the sexual assault. LM was under 13 years of age at the time of the sexual contact and penetration, and defendant was 31 years old. A jury convicted defendant of CSC-I and CSC-II for the conduct involving LM.
Additionally, MM testified that after she admitted to having an affair in 2018, defendant told her that she needed to be his "sex slave" or else he would take their children and end the marriage. Over the next month and a half, defendant repeatedly forced MM to engage in nonconsensual anal intercourse. MM testified that she begged defendant to stop his behavior, but he refused. MM was afraid that defendant would follow through on his threat to take the children if she did not comply with his sexual demands. MM also testified about previous domestic violence defendant had committed, including an incident in which defendant drove MM and her friend, AV, to a mall in Traverse City. On the way home from the mall and after an argument ensued between defendant and MM, defendant pulled MM out of the car and left MM and her friend stranded on a back road needing to make their own way home. The trial court also allowed AV to testify about her recollection of this event, overruling a defense objection that the prosecution had failed to give pretrial notice of AV's testimony pursuant to MCL 768.27b(2). A jury convicted defendant of CSC-III for the conduct involving MM. At sentencing, the trial court was required to impose a prison sentence of not less than 25 years for the CSC-I conviction pursuant to MCL 750.520b(2)(b). Defendant argued that the mandatory-minimum-sentence provision of MCL 750.520b(2)(b) violated the separation-of-powers doctrine because the legislation encroaches on the judiciary's sentencing discretion and authority. The trial court, while somewhat sympathetic to the argument, applied the statute as written and imposed a sentence of 25 to 40 years’ imprisonment for the CSC-I conviction. This appeal followed.
Defendant and MM had one biological child together, and LM was MM's stepdaughter.
II. ANALYSIS
A. NOTICE OF WITNESS TESTIMONY
Defendant first argues that the trial court erred by concluding that the prosecution gave sufficient notice of AV's testimony under MCL 768.27b(2) and by allowing AV to testify. We review for an abuse of discretion a trial court's decision to admit evidence. People v. Cameron , 291 Mich.App. 599, 608, 806 N.W.2d 371 (2011). A trial court abuses its discretion when it chooses an outcome that is outside the range of principled or reasonable outcomes. People v. Babcock , 469 Mich. 247, 269, 666 N.W.2d 231 (2003). Preliminary questions of law, such as "whether a rule of evidence or statute precludes admissibility of the evidence," are reviewed de novo on appeal. People v. Lukity , 460 Mich. 484, 488, 596 N.W.2d 607 (1999). Allowing testimony that is inadmissible as a matter of law constitutes an abuse of discretion. People v. McFarlane , 325 Mich.App. 507, 517, 926 N.W.2d 339 (2018).
MCL 768.27b governs the admissibility of other-acts evidence regarding domestic violence or sexual assault committed by a defendant when that defendant is charged with domestic violence or sexual assault. As relevant to this appeal, MCL 768.27b imposes the following notice requirement on the prosecution when offering other-acts evidence under the statute:
(2) If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.
MCL 768.27b does not define "good cause." When a statute does not define a term, this Court may consult a dictionary and caselaw for guidance. In re Utrera , 281 Mich.App. 1, 10, 761 N.W.2d 253 (2008). This Court has previously defined "good cause" as "a legally sufficient reason." Id. (quotation marks, citation, and brackets omitted). "Good cause" has also been defined as "a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." Franchise Mgt. Unlimited, Inc. v. America's Favorite Chicken , 221 Mich.App. 239, 246, 561 N.W.2d 123 (1997) (quotation marks omitted), quoting Black's Law Dictionary (6th ed.).
In this case, defendant argues that the prosecution violated MCL 768.27b(2) by failing to provide notice before trial that it intended to introduce AV's testimony about the mall incident. Although the prosecution did not provide notice of its intent to offer AV's testimony under MCL 768.27b, the prosecution gave notice that AV might testify at trial when it included her on its witness list filed approximately four months before trial. The prosecution also produced, about eight months before trial, a police report that memorialized AV's interview concerning the mall incident. Additionally, the prosecution gave notice under MCL 768.27b(2) of its intent to offer MM's testimony about the matter. Considered together, defendant had ample notice that the prosecution might introduce AV's testimony about the mall incident. Defendant had a witness list naming AV, possessed AV's police statement, and received notice under MCL 768.27b(2) that the prosecution intended to present MM's testimony about the mall incident. To the extent and assuming that the prosecution did not, in fact, comply with the statutory notice requirement, these circumstances establish that the prosecution had a "legally sufficient reason" for not providing notice that it was specifically going to offer AV's testimony pursuant to MCL 768.27b. Accordingly, we conclude that the prosecution had "good cause" for its failure to strictly comply with MCL 768.27b(2) and that the trial court did not abuse its discretion or otherwise err by allowing AV to testify. Moreover, even were we to conclude that the trial court erred, reversal would not be warranted because any error in the admission of AV's testimony was not outcome-determinative, see Lukity , 460 Mich. at 495-496, 596 N.W.2d 607, and did not constitute a miscarriage of justice, MCL 769.26. In People v. Jackson , 498 Mich. 246, 278-279, 869 N.W.2d 253 (2015), our Supreme Court addressed a notice failure under MRE 404(b)(2), stating:
[The witness's] testimony was substantively admissible under MRE 404(b), notwithstanding the trial court's failure to properly analyze it under that rule. And while it was error for the prosecution not to provide, and the trial court not to require, "reasonable notice" of [the] testimony under MRE 404(b)(2), the defendant has not demonstrated that this error more probably than not was outcome determinative. As discussed above, the lack of proper pretrial notice did not result in the admission of substantively improper other-acts evidence. Thus, although the defendant was not afforded his due opportunity to marshal arguments against its admission before it was introduced at trial, he has not shown that any such arguments would have been availing, or would have affected the scope of testimony ultimately presented to the jury. Furthermore, while the defendant suffered "unfair surprise" from the unexpected introduction of this testimony at trial, he was admittedly aware of [the witness's] general version of events before trial, including her and [a friend's] prior relationships with the defendant, and he has not demonstrated how he would have approached trial or presented his defense differently had he known in advance that [the witness] would be permitted to testify as she did. For instance, the defendant has not suggested that he would have chosen to explore these prior relationships in greater depth with [the witness], nor has he identified or presented offers of proof from any witnesses he might have called in response to her testimony. He also has not suggested that he would have altered or abandoned his theory of fabrication so as to prevent [the
witness] from offering this testimony to counter it. We therefore cannot conclude that the defendant suffered outcome-determinative prejudice from the prosecution's failure to follow, and the trial court's failure to apply, MRE 404(b)(2). [Citations, quotation marks, and ellipsis omitted.]
In this case, AV's testimony was completely unrelated to LM's allegations that resulted in defendant's CSC-I and CSC-II convictions. Additionally, AV's testimony provided no new facts to the jury, was extremely brief, and did not relate to the sexual abuse of MM underlying the CSC-III conviction. There was corroborative evidence—testimony by LM—that was far more probative in relation to MM's account of her sexual abuse at the hands of defendant than AV's wholly unrelated testimony. Furthermore, defendant did not substantively challenge the admissibility of the other-acts evidence and has not explained how the asserted lack of notice impacted any cross-examination of AV or would have otherwise altered the defense's approach to the case. Accordingly, assuming that the trial court erred by allowing AV's testimony, we conclude that defendant has not established the requisite prejudice and hold that reversal is unwarranted.
AV's testimony regarding the mall incident was cursory as compared to MM's more-detailed testimony on the subject. Indeed, AV's testimony did not even specifically mention that defendant committed an assault, while MM's testimony clearly revealed an assault.
B. SEPARATION OF POWERS
Defendant next argues that MCL 750.520b(2)(b) violates the separation-of-powers doctrine by depriving a sentencing judge of the discretion to impose an appropriate punishment. With respect to a conviction of CSC-I, MCL 750.520b(2)(b) provides that when the offense "is committed by an individual 17 years of age or older against an individual less than 13 years of age," as was the situation in this case, the penalty is "imprisonment for life or any term of years, but not less than 25 years."
Whether a statute violates the separation-of-powers doctrine presents a question of constitutional law that we review de novo. People v. Garza , 469 Mich. 431, 433, 670 N.W.2d 662 (2003). "Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." People v. Benton , 294 Mich.App. 191, 203, 817 N.W.2d 599 (2011) (quotation marks and citation omitted). The party challenging a statute has the burden of proving its unconstitutionality. People v. Sadows , 283 Mich.App. 65, 67, 768 N.W.2d 93 (2009).
Article 3, Section 2 of the 1963 Michigan Constitution provides for the separation of powers, stating as follows:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
In Makowski v. Governor , 495 Mich. 465, 482-483, 852 N.W.2d 61 (2014), our Supreme Court provided an overview of the separation-of-powers doctrine:
While the Constitution provides for three separate branches of government, the boundaries between these branches need not be "airtight." In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. The true
meaning of the separation-of-powers doctrine is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution. [Quotation marks, citations, and brackets omitted.]
"[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature." People v. Hegwood , 465 Mich. 432, 436 & n. 8, 636 N.W.2d 127 (2001), citing Const. 1963, art. 4, § 45 ("The legislature may provide for indeterminate sentences as punishment for crime and for the detention and release of persons imprisoned or detained under such sentences."). Although the judicial power includes the authority to exercise discretion in imposing sentences, the Legislature may limit this sentencing discretion by establishing a specific penalty for a crime. People v. Conat , 238 Mich.App. 134, 147, 605 N.W.2d 49 (1999). "For example, the Legislature may set a minimum and a maximum sentence for a particular offense," and "[c]ourts have no sentencing discretion unless it be conferred upon them by law." Id. (quotation marks and citation omitted). "[T]here are offenses with regard to which the judiciary has no sentencing discretion, offenses about which discretion is sharply limited, and offenses regarding which discretion may be exercised under the terms set forth in the sentencing guidelines legislation." Garza , 469 Mich. at 434, 670 N.W.2d 662 (citations omitted). Ultimately, "the Legislature has the exclusive power to determine the sentence prescribed by law for a crime, and the function of the court is only to impose [a] sentence under and in accord with the statute." Conat , 238 Mich.App. at 147, 605 N.W.2d 49 (quotation marks and citation omitted; alteration in original).
We note that this Court has held that Const. 1963, art. 4, § 45 does not prohibit the Legislature from enacting statutes that provide for determinate sentencing. See People v. Snider , 239 Mich.App. 393, 426-428, 608 N.W.2d 502 (2000) (addressing the penalty of life imprisonment without parole for first-degree murder); People v. Cooper , 236 Mich.App. 643, 660-664, 601 N.W.2d 409 (1999) (addressing the penalty of two years’ imprisonment for carrying or possessing a firearm when committing or attempting to commit a felony, MCL 750.227b ).
Defendant argues that MCL 750.520b(2)(b) violates the separation-of-powers doctrine because the statute deprives a sentencing court of its discretion to consider individualized, mitigating circumstances by mandating a sentence of not less than 25 years. Under the principles and authorities cited in the preceding paragraph, defendant's argument plainly lacks merit because MCL 750.520b(2)(b) represents a permissible exercise of legislative authority to prescribe a mandatory minimum sentence. We hold that in enacting MCL 750.520b(2)(b), the Legislature properly exercised the authority vested in it by Const. 1963, art. 4, § 45 to provide penalties for criminal offenses; consequently, there was no violation of the separation-of-powers doctrine.
We affirm.
Cavanagh, P.J., and Servitto, J., concurred with Markey, J.