PEOPLE OF MI V TYIEE SAM BROWN

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 10, 2008 Plaintiff-Appellee, v No. 276518 St. Clair Circuit Court LC No. 06-002119-FC TYIEE SAM BROWN, Defendant-Appellant. Before: Murray, P.J., and Sawyer and Cavanagh, JJ. MURRAY, P.J. (concurring). As an intermediate appellate court, we are constitutionally bound to follow the precedent established by our Supreme Court. Paige v City of Sterling Heights, 476 Mich 495, 524; 720 NW2d 219 (2006). Thus, I concur in the decision to vacate defendant’s conviction because People v Nyx, 479 Mich 112; 734 NW2d 548 (2007), requires this decision. However, my reading of the many opinions issued in Nyx leads me to conclude that the only precedential holding of the Court (i.e., a ruling that a majority of the Court agreed upon) was that the Due Process Clause of the United States Constitution precluded convicting the defendant in that case because he had no notice that he would be charged, at the conclusion of trial, with criminal sexual conduct II. See Nyx, supra at 123-124 (Opinion of Taylor, CJ., and Markman, J) and at 142-143 (Opinion of Cavanagh and Kelly JJ.). There did not appear to be a majority conclusion on any other point within these opinions, so I would vacate defendant’s conviction on this constitutional ground because defendant’s procedural predicament was the same as it was for the defendant in Nyx.1 /s/ Christopher M. Murray 1 This error was not harmless. For one, this was a preserved issue. Second, defendant did not have an absolute “all or nothing” trial position as was the case in Nyx. See Nyx, supra at 150154 (Opinion of Young, J.). Third and finally, even if defendant’s defense was as defendant’s was in Nyx, the majority did not find harmless error. -1-

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