PEOPLE OF MI V JOSEPH WIXSON LAIRD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellee,
v
No. 276566
Calhoun Circuit Court
LC No. 2005-004169-FC
JOSEPH WIXSON LAIRD,
Defendant-Appellant.
Before: Bandstra, PJ, and Talbot and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for six counts of first-degree
criminal sexual conduct (“CSC”) with a person under the age of 13, MCL 750.520b(1)(a).
Defendant was sentenced in accordance with MCL 769.10, as a habitual offender, second
offense, to 356 to 600 months’ imprisonment. We affirm.
Defendant first asserts that the trial court erred when it refused to conduct an in camera
review of the victims’ counseling records, which he alleged contained exculpatory evidence. We
review a trial court’s decision denying a discovery request for an abuse of discretion. People v
Fink, 456 Mich 449, 458; 574 NW2d 28 (1998).
In general, “confidential communications made to a sexual . . . assault counselor ‘shall
not be admissible evidence in any civil or criminal proceeding without the prior written consent
of the victim.’” People v Stanaway, 446 Mich 643, 658-659; 521 NW2d 557 (1994), quoting
MCL 600.2157a(2). Statements made by a client to a psychologist are also privileged pursuant
to MCL 330.1750. Stanaway, supra at 659-660. The purpose of these privileges is to shield
these communications from use as impeachment or exculpatory evidence in a criminal or civil
trial. Id. at 662. However, it is recognized that “[c]ommon-law and statutory privileges may
have to be narrowed or yielded if these privileges interfere with certain constitutional rights of
defendants.” Id. at 668-669. A fair balance of these competing concerns permits privileged
information to be made available when necessity so demands, or when the benefit gained by
providing access to the privileged information is more valuable than the disadvantage incurred.
Id. at 663. Therefore,
where a defendant can establish a reasonable probability that the privileged
records are likely to contain material information necessary to his defense, an in
camera review of those records must be conducted to ascertain whether they
-1-
contain evidence that is reasonably necessary, and therefore essential, to the
defense. Only when the trial court finds such evidence, should it be provided to
the defendant. [Id. at 649-650.]
This is consistent with MCR 6.201(C)(2), which requires a trial court to conduct an in camera
inspection following a defendant’s demonstration of “a good faith belief, grounded in articulable
fact, that there is a reasonable probability that records protected by privilege are likely to contain
material information necessary to the defense.”
Based on our review of the record, we find that the trial court did not abuse its discretion
when it determined that defendant failed to meet his burden to articulate sufficient facts to
demonstrate a reasonable probability that the victims’ counseling records contained exculpatory
information. Contrary to the requirements delineated, supra, defendant failed to articulate any
facts in support of his request for the records. Rather, defendant merely theorized that the
counseling records contained exculpatory evidence based on the victims’ delay in reporting the
abuse and an alleged false report of abuse against another individual. However, defendant
provided no factual support to verify the existence of a prior false report of abuse by the victims.
In addition, an expert testified that children often hide abuse, which addressed defendant’s
assertion that the victims’ delay in reporting the alleged abuse raised issues regarding their
veracity necessitating release of the records. Based on the inadequate assertions by defendant,
the trial court properly exercised its discretion in denying defendant’s motion.
Defendant next contends that he was improperly sentenced as a habitual offender because
his criminal conduct in this case occurred before the conviction that formed the basis for the
habitual offender enhancement. We review this unpreserved issue for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Even when plain error affecting defendant’s substantial rights exist, “[r]eversal is warranted only
when the plain, forfeited error resulted in the conviction of an actually innocent defendant or
when an error ‘seriously affected the fairness, integrity or public reputation of judicial
proceedings’ independent of the defendant’s innocence.” Id. at 763-764, quoting United States v
Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
MCL 769.10(1) permits enhanced sentencing for habitual offenders in circumstances
where “a person has been convicted of a felony or an attempt to commit a felony . . . and that
person commits a subsequent felony within this state.” The intent of this statute is to punish
defendants more severely when they “decline to change their ways after an opportunity to
reform.” People v Poole, 218 Mich App 702, 713; 555 NW2d 485 (1996). Thus, it is not
sufficient that a defendant be convicted of two felonies; rather, the defendant must offend, be
convicted, and after the initial conviction, commit another offense. Id. at 711.
The trial court erred when it allowed defendant to be sentenced as a second habitual
offender based on his previous conviction for fourth-degree CSC. The presentence investigation
report reveals that defendant’s fourth-degree CSC conviction was entered on August 31, 2004.
However, the information charged that the instant conduct occurred between August 1, 2001 and
August 1, 2004, which was before the conviction used for the sentencing enhancement.
Therefore, pursuant to Poole, supra, defendant’s habitual offender status could not be based on
his 2004 fourth-degree CSC conviction.
-2-
However, we find that this error did not prejudice defendant or seriously affect the
fairness, integrity, or public reputation of the judicial proceedings. Rather than using the fourthdegree CSC conviction, the prosecutor could have based defendant’s habitual offender
enhancement on defendant’s April 7, 2003, conviction for attempted second-degree child abuse,
which comprises a felony punishable by a maximum of four years’ imprisonment. MCL
750.136b(4). Although the prosecutor is subject to a strict 21-day time limit for the original
notice that it will seek an habitual offender enhancement, MCL 769.13(1), a prosecutor may
amend “a timely sentence enhancement information to correct a technical defect where the
amendment does not otherwise increase the potential sentence consequences.” People v
Hornsby, 251 Mich App 462, 472; 650 NW2d 700 (2002). The substitution of the attempted
child-abuse conviction for the fourth degree CSC conviction would not have increased
defendant’s sentence beyond that contemplated in the original information. Thus, any error in
the sentencing enhancement notice did not affect defendant’s substantial rights.
Defendant asserts that the April 7, 2003, conviction cannot provide the basis for his
habitual offender enhancement because there were “no facts” to support that his sexual abuse of
the victims occurred after April 7, 2003. Contrary to defendant’s assertion, one of the victims
testified that acts of abuse took place in the family’s “green and white” house. The victims’
mother testified that they moved into this residence in April 2003, and that defendant was not
living with them in “early April” of that year. However, defendant moved back in with the
family shortly thereafter, and lived with the family until November 2003. The logical conclusion
to be drawn from this testimony is that defendant’s abuse of the victims, while residing at this
location, occurred between April 2003, when defendant moved back in with the family, and
November 2003, when defendant ceased residing with them. As a result, defendant’s conviction
for attempted second-degree child abuse could be used for purposes of enhancement as having
occurred before the currently charged incidents of criminal sexual conduct.
Affirmed.
/s/ Richard A. Bandstra
/s/ Michael J. Talbot
/s/ Bill Schuette
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
