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Criminal Procedure

Criminal Procedure

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Published by WayneLawReview
Christine A. Pagac, Criminal Procedure 58 Wayne L. Rev. 657 (2012).
Christine A. Pagac, Criminal Procedure 58 Wayne L. Rev. 657 (2012).

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Published by: WayneLawReview on Sep 25, 2013
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657
CRIMINAL PROCEDURE
C
HRISTINE
A.
 
P
AGAC
I.
 
I
NTRODUCTION
................................................................................... 657
 
II.
 
F
OURTH
A
MENDMENT
...................................................................... 658
 
 A. Probable Cause to Arrest ...........................................................
658
 
1.
People v. Cohen
...................................................................
659
 
2.
People v. Glenn-Powers
.......................................................
660
 
 B. Search Incident to Arrest ............................................................
661
 
1.
People v. Tavernier
..............................................................
661
 
III.
 
S
IXTH
A
MENDMENT
........................................................................ 662
 
 A. Right to Confrontation ...............................................................
662
 
1.
People v. Fackelman
............................................................
663
 
2.
People v. Buie
.....................................................................
666
 
 B. Right to Self-Representation .......................................................
667
 
1.
People v. Brooks
..................................................................
667
 
C. Effective Assistance of Counsel ..................................................
669
 
1.
People v. Armstrong
.............................................................
669
 
 D. Due Process ..............................................................................
671
 
1.
People v. Cole
......................................................................
671
 
IV.
 
P
ROCEDURAL
R
ULES
:
 
G
RANT OF A
N
EW
T
RIAL
B
ASED ON
N
EWLY
D
ISCOVERED
E
VIDENCE
........................................................... 672
 
 A.
People v. Rao
.............................................................................
672
 
I.
 
I
NTRODUCTION
The
Survey
period saw two opinions by the Michigan Supreme Courtgranting new trials to criminal defendants, which is unusual in recentyears. In both instances, the court expressed concerns about thedefendant’s innocence, either as a matter of law or a matter of fact. In thefirst case,
People v. Fackelman
,
1
the court granted a new trial holdingthat his rights under the Confrontation Clause had been violated.
2
Notingthe particular circumstances of the case, and the fact that the evidencewent to his legal sanity in the face of “understandable grief,” the courtstated: “[I]t is imperative that defendant have the opportunity to be
† Assistant Defender, Michigan State Appellate Defender Office, Adjunct Faculty,University of Michigan Law School. B.A. with high distinction, 1988, University of Michigan; J.D.,
cum laude,
1991, University of Michigan.1. 489 Mich. 515; 802 N.W.2d 552 (2011),
cert. denied,
132 S. Ct. 759 (2011).2.
Id 
. at 564.
 
658 THE WAYNE LAW REVIEW [Vol. 58: 657confronted with the most powerful witness against him before his guilt orinnocence is decided.”
3
In the second opinion,
People v. Armstrong
,
4
aunanimous court granted a new trial because the defendant had beendenied effective assistance of counsel.
5
In a rape case with no physicalevidence, the trial counsel failed to introduce cell phone records which“would have cast serious doubt on the substance of her accusations” andquite possibly “would have convinced the jury to discredit thecomplainant’s accusations.
6
Questions about actual innocence, however,were not guaranteed to bring the defendant success, as demonstrated by
People v. Rao
.
7
 
The court denied a new trial because the claimed “newlydiscovered evidence” of innocence was not, in fact, newly discovered.
8
 Beyond fundamental questions of guilt or innocence, the recentlandmark decision of the U.S. Supreme Court in
Crawford v.Washington
9
has led to a resurgence of cases raising ConfrontationClause issues, as seen by the two Michigan Supreme Court opinions onthat subject during this
Survey
period. Another recent U.S. SupremeCourt case,
Padilla v. Kentucky
,
10
requiring that criminal defendants beadvised of the immigration consequences of their pleas,
11
also played arole in the Michigan Supreme Court’s decision in
People v. Cole
,
12
 regarding procedures in the taking of pleas. As has been the case inrecent years, prosecutor appeals continue to be successful in theMichigan appellate courts.II.
 
F
OURTH
A
MENDMENT
 
 A. Probable Cause to Arrest 
The court of appeals issued two decisions during the
Survey
periodanalyzing the circumstances under which an arrest violates the FourthAmendment’s prohibition of unreasonable searches and seizures. In bothinstances, the court held that the arrest was constitutional.
3.
Id 
.
 
at 542.4. 490 Mich. 281; 806 N.W.2d 676 (2011). Armstrong was represented on appeal byanother attorney in the State Appellate Defender Office.5.
Id 
. at 294.6.
Id 
. at 292.7. 491 Mich. 271; 815 N.W.2d 105 (2012).8.
Id 
. at 292.9. 541 U.S. 36 (2004).10. 130 S.Ct. 1473 (2010).11.
Id 
. at 1486.12. 491 Mich. 325; 817 N.W.2d 497 (2012).
 
2012]
CRIMINAL PROCEDURE 
659
 
1.
People v. Cohen
 
The first of the decisions,
People v. Cohen
,
13
 
has broaderimplications than the other decision in the
Survey
period as it arose froma warrantless felony arrest after a traffic stop. The police arrested boththe driver and the passenger for “joint constructive possession” of drugsand paraphernalia that the officers found in “plain view” in the centerconsole.
14
In the jail cell, an officer caught Cohen attempting to disposeof a baggie with a rock of suspected cocaine in it.
15
The prosecutorcharged Cohen with two crimes, one for the drugs found in the car and asecond charge for the cocaine discovered after he was jailed.
16
 The district court dismissed the charge against Cohen based on thedrugs found in the car because the prosecution had not shown the drugsbelonged to Cohen, the passenger, rather than the owner of the car.
17
Inthe circuit court, defense counsel argued that the dismissal of this chargemeant that the police did not have probable cause to arrest Cohen.
18
TheFourth Amendment prohibits warrantless arrests that are not supportedby probable cause,
19
and requires suppression of any evidence obtainedas a result.
20
Accordingly, counsel argued that the drugs found in the jailcell were the fruit of an illegal arrest and had to be suppressed.
21
Withoutthe drugs, there was no evidence to support the remaining charge againstCohen, so that had to be dismissed as well.
22
The circuit court agreed andthe prosecution appealed.
23
No brief was filed on behalf of the defendant.The court of appeals reversed, holding that probable cause to arrest isdifferent from probable cause to bindover.
24
Probable cause to arrest isviewed from the perspective of the arresting officer, and asks whether aprudent man would believe that the suspect has committed or iscommitting a crime.
25
The
Cohen
court did not offer a succinct statementof the probable cause standard applied at the preliminary examination,
13. 294 Mich. App. 70; 816 N.W.2d 474 (2011).14.
Id 
. at 72.15.
Id 
. at 73.16.
Id 
.
 
17.
Id 
.18.
Id 
.
 
at 74.19. United States v. Watson, 423 U.S. 411, 427 (1976).20. Mapp v. Ohio, 367 U.S. 643 (1961) (“[A]ll evidence obtained by searches andseizures in violation of the Constitution is . . . inadmissible in a state court.”).21.
Cohen,
294 Mich. App. at 73.22.
Id 
.
 
23.
Id.
24.
Id 
. at 77.25.
Id 
. at 75 (quoting People v. Champion
 ,
452 Mich. 92; 549 N.W.2d 849 (1996) andMaryland v. Pringle, 540 U.S. 366, 370 (2003)).

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