PEOPLE OF MI V AARON KYLE MILLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 24, 2009
Plaintiff-Appellee,
v
No. 285797
Midland Circuit Court
LC No. 07-003054-FH
AARON KYLE MILLER,
Defendant-Appellant.
Before: Meter, P.J., and Murphy, C.J., and Zahra, J.
PER CURIAM.
Defendant was convicted by a jury of assault with a dangerous weapon (felonious
assault), MCL 750.82. He was sentenced to 17 months to 4 years in prison. Defendant now
appeals by leave granted. We affirm.
Defendant stabbed Ryan Hackler in the leg one evening after he had been drinking with
Hackler, Ronald Walters, and another acquaintance. Defendant testified that he stabbed Hackler
outside on a patio in the presence of Walters. Walters testified similarly. Defendant also
testified that beforehand, while inside a motel room when Walters was not present, Hackler tried
to choke him with a towel. Defendant claimed that he stabbed Hackler in self-defense because
of the earlier incident with the towel and because Hackler was verbally threatening defendant.
Defendant first argues that he was denied a fair trial because the prosecution failed to
subpoena and produce Hackler, a res gestae witness. The prosecution intended to produce
Hackler as a witness and had indicated to defendant and the trial court before trial that Hackler
would appear despite the fact that he now resided in Florida. On the day of trial, however,
Hackler failed to appear and the prosecutor stated that Hackler had changed his mind about
coming back to Michigan and testifying at trial. Defendant argues that Hackler’s testimony was
vital to his defense of self-defense.
In People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004), this Court stated the
following:
A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to
exercise due diligence to produce that witness at trial. A prosecutor who fails to
produce an endorsed witness may show that the witness could not be produced
despite the exercise of due diligence. If the trial court finds a lack of due
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diligence, the jury should be instructed that it may infer that the missing witness's
testimony would have been unfavorable to the prosecution's case. CJI2d 5.12[.]
[Citations omitted.]
We review for an abuse of discretion the trial court's determination of due diligence and
the appropriateness of giving a “missing witness” instruction. Eccles, supra at 389.
Hackler was an endorsed witness. The prosecution recounted that it made several efforts
to secure Hackler’s appearance and was told only a few days before trial that he did not intend to
come. However, the trial court noted that the prosecution did not serve a subpoena on Hackler in
Florida, whether due to cost or time consumption, and thus the court decided that defendant was
entitled to the missing witness instruction. The trial court instructed the jury as follows:
Ryan Hackler is a missing witness whose appearance was the
responsibility of the prosecution. You may infer that this witness’s testimony
would have been unfavorable to the prosecution’s case.
Although defendant argues that he was deprived of a fair trial because of Hackler’s
failure to appear, the missing witness instruction allowed the jury to conclude that Hackler’s
testimony would have confirmed what defendant asserted had transpired inside the motel room
and on the patio. Thus, the instruction served to ensure that defendant received a fair trial.1
Defendant next argues that the statutory provision governing intermediate sanctions,
MCL 769.34(4), limited his incarceration to a statutory maximum of 12 months in jail, and that
the United States Supreme Court’s decisions in Apprendi v New Jersey, 530 US 466; 120 S Ct
2348; 147 L Ed 2d 435 (2000), and Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed
2d 403 (2004), therefore constitutionally precluded any upward departure based on judicial
factfinding as opposed to a jury’s determination of the facts. We review de novo constitutional
questions and the interpretation and application of the statutory sentencing guidelines. Wayne
Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004); People v Cannon, 481 Mich 152,
156; 749 NW2d 257 (2008).
While this Court previously agreed with the argument posed by defendant, People v
Uphaus, 275 Mich App 158; 737 NW2d 519 (2007), the Uphaus opinion was later reversed on
this issue, 480 Mich 939 (2007), and expressly rejected by our Supreme Court in People v
Harper, 479 Mich 599; 739 NW2d 523 (2007). The Harper Court held:
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We also note that defendant never requested an adjournment of the trial due to Hackler’s
absence. Additionally, we reject defendant’s argument that reversal is necessary because the
trial court gave the jurors the mistaken impression that the prosecutor was free of any fault
relative to Hackler’s failure to appear. Defendant received, to the detriment of the prosecution,
the benefit of the missing witness instruction, which indicated that the prosecutor was
responsible for procuring Hackler’s presence at trial, thereby suggesting that the prosecution
failed in meeting its responsibility. We fail to see how defendant was deprived of a fair trial
simply because the court did not expressly and specifically lay blame on the prosecutor by way
of additional statements or instructions to the jury.
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Under Michigan law, the maximum portion of a defendant's indeterminate
sentence is prescribed by MCL 769.8(1), which requires a sentencing judge to
impose no less than the prescribed statutory maximum sentence as the maximum
sentence for most felony convictions. Michigan's unique law requiring the
imposition of an intermediate sanction upon fulfillment of the conditions of MCL
769.34(4)(a) does not alter the maximum sentence that is required upon
conviction and authorized by either the jury verdict or the guilty plea. Rather, the
conditional limit on incarceration contained in MCL 769.34(4)(a) is a matter of
legislative leniency, giving a defendant the opportunity to be incarcerated for a
period that is less than that authorized by the jury verdict or the guilty plea, a
circumstance that does not implicate Blakely. [Harper, supra at 603-604
(citations omitted; emphasis in original).]
Accordingly, defendant’s argument here does not warrant relief.
Finally, defendant argues that the trial court’s departure from the sentencing guidelines
was not based on substantial and compelling reasons. A court may depart from the sentencing
guidelines range if it has a substantial and compelling reason to do so and states on the record the
reasons for departure. MCL 769.34(3); People v Buehler, 477 Mich 18, 24; 727 NW2d 127
(2007). If the sentence constitutes a departure from the guidelines range, the trial court’s
articulation of the reasons for departure must be sufficient to permit effective appellate review.
People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Factors cited in support of a
departure must justify not only departure but also the extent of the particular departure made,
must be objective and verifiable, must keenly or irresistibly grab the court’s attention, and must
be of considerable worth. Id. at 299-303. To be objective and verifiable, the factors must be
actions or occurrences external to the mind of the judge and must be capable of being confirmed.
People v Horn, 279 Mich App 31, 43 n 6; 755 NW2d 212 (2008). The court may draw
inferences about the defendant’s behavior from objective evidence. People v Petri, 279 Mich
App 407, 422; 760 NW2d 882 (2008) (“trial court drew reasonable conclusions about
defendant’s actual behavior to depart from the guidelines”).
In reviewing a departure from the guidelines range, the existence of a particular factor is
a factual determination subject to review for clear error the determination that the factor is
objective and verifiable is reviewed de novo as a matter of law, the determination that the
factor(s) constituted substantial and compelling reasons for departure is reviewed for an abuse of
discretion and the amount of the departureis also reviewed for an abuse of discretion. Smith,
supra at 300; People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003). An abuse of
discretion occurs when the sentence imposed is not within the range of principled outcomes.
Smith, supra at 300. In ascertaining whether the departure was proper, we must defer to the trial
court’s direct knowledge of the facts and familiarity with the offender. Babcock, supra at 270.
The trial court departed from the sentencing guidelines by sentencing defendant to a
minimum of 17 months in prison, as opposed to an intermediate sanction as set forth in MCL
769.31(b). If the trial court had followed the guidelines, it would have issued an intermediate
sanction, such as a jail term of 12 months, because the minimum range of 2 to 17 months was
less than 18 months. MCL 769.34(4)(a).
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The trial court noted that until his divorce in April 2006, defendant had a good job as a
machinist, lived in a nice home, and volunteered in the community. But after the divorce, his
life, according to the trial court, began a swift downhill slide. He became homeless, and between
April 2, 2006, and October 27, 2006, defendant committed five crimes, three of them within
three days of each other. The crimes were disorderly conduct, OUIL, open intoxicant, assault
and battery, and the present felonious assault offense. The court observed, “It’s like a switch got
flipped in your brain and all of a sudden this good guy is doing really bad stuff.” The court
noted that jail staff had to restrain defendant on multiple occasions since his conviction “because
of what’s [been] described as aggressive, violent, and non-compliant behavior.” The trial court
noted that defendant told one deputy “to watch her back,” which the court stated could only be
construed as a threat of physical harm. The court expressed that there was something wrong
with defendant’s decision-making process, that his behavior had become erratic, and that
defendant was in need of psychiatric care. The trial court indicated that defendant could not
conform his conduct to a level acceptable by society. The court decided to sentence defendant to
the Department of Corrections (DOC), which the court believed had the necessary resources to
help defendant with his mental health issues. The court observed, however, that even if the local
community had the resources to give defendant the help he needed, a 12-month jail sentence
would not be appropriate because defendant would be out in approximately five months in light
of credit for time served and that would be "insufficient time for me to feel comfortable that you
are not a threat to yourself or to the community.”
On review of all of the trial court's statements at sentencing, the reasons given for
departure can be summed up as (1) defendant was a threat to the safety of the community, as
well as himself, and (2) he had psychiatric issues and needed treatment, which the DOC could
provide defendant given its resources, and which resources the county was lacking. Underlying
these conclusions were the trial court’s observations that defendant often failed to grasp basic
concepts throughout the proceedings no matter how thoroughly the concepts were explained to
him, that defendant's recent history following his divorce included bizarre behavior and a rash of
illegal activities, and that defendant behaved in a violent, aggressive, and noncompliant manner
relative to his time in jail and interaction with jail personnel.
With respect to defendant’s actions while in jail, the presentence investigation report
(PSIR) indicates that defendant was placed in isolation because of continuing destructive
behavior, that he was written up for violating administrative rules, for insolence, and for conduct
that disrupted security, and that defendant “appears to be quite unbalanced and goes into verbal
tirades on a regular basis.” With respect to defendant's recent history, the PSIR reveals that
defendant was convicted of four misdemeanors in 2006 and that he had an assault and battery
conviction in 1992. The PSIR also reflects that defendant’s ex-wife obtained a PPO against him,
that defendant had previously threatened to shoot himself and his ex-wife, and that his ex-wife
feared him because of his alcoholism and because he had pulled a knife and a gun on her on two
separate occasions. However, the trial court, following an objection, did state that it would not
consider the PPO and the incidents relative to defendant’s ex-wife for purposes of departure.
In People v Solmonson, 261 Mich App 657, 670; 683 NW2d 761 (2004), this Court stated
that the “trial court's conclusion that defendant was a danger to himself and the public was not
itself an objective and verifiable factor” for purposes of departing from the guidelines.
(Emphasis added.) The Solmonson panel, however, further indicated that the court’s conclusion
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that the defendant was a danger to himself and the public was based on the defendant’s extensive
criminal history of drinking-and-driving convictions. Id. The Court held that the “defendant’s
extensive criminal history reflecting that past sentences of probation, jail, and prison had not
deterred him, and the trial court’s legitimate concern for the protection of society,” justified a
prison sentence and supported the conclusion “that an intermediate sanction . . . would be less
likely to further the traditional goals of sentencing than a prison sentence.” Id. at 671-672.
Additionally, as noted above, “[t]he requirement that the trial court base its decision to
depart on objective and verifiable facts – i.e., actions and occurrences external to the minds of
those involved in the decision and capable of being confirmed – [does] not preclude the court
from drawing inferences about defendant’s behavior from objective evidence.” Petri, supra at
422.
Here, the trial court’s conclusions that defendant was a danger to the community and that
he had psychiatric issues requiring treatment could not form a basis for departure, in and of
themselves. The court, however, reasonably drew these conclusions from objective and
verifiable factors that included defendant’s behavior throughout the proceedings as observed by
the trial court, his criminal activities following his divorce, and defendant's behavior in jail as
observed by jail personnel. Defendant’s erratic, destructive, hostile, criminal, and troublesome
behavior in court, in public, and in jail provided substantial and compelling grounds for the trial
court to depart from the guidelines and sentence defendant to prison. Objective evidence relative
to defendant’s behavior gave rise to “the trial court’s legitimate concern for the protection of
society[.]” Solmonson, supra at 671. There is no appellate claim by defendant that his actions in
court, in public, and in jail did not occur as asserted, and thus the trial court did not clearly err
with respect to its factual determinations. The trial court’s ruling that substantial and compelling
reasons supported a sentencing departure, along with the court's decision regarding the extent of
the departure, do not fall outside a range of reasonable and principled outcomes; there was no
abuse of discretion.2
2
We do find somewhat problematic that part of the trial court’s ruling that defendant needed to
be sentenced to prison because a prison environment would provide the necessary psychiatric
care that would not otherwise be available to defendant locally or in the county jail. To the
extent that this is not a substantial and compelling reason for departure, resentencing remains
unnecessary. In Babock, supra at 260-261, our Supreme Court stated:
[I]f the trial court articulates multiple reasons [for departure], and the
Court of Appeals determines that some of these reasons are substantial and
compelling and some are not, the panel must determine the trial court's intentions.
That is, it must determine whether the trial court would have departed and would
have departed to the same degree on the basis of the substantial and compelling
reasons alone. If the Court of Appeals is unable to determine whether the trial
court would have departed to the same degree on the basis of the substantial and
compelling reasons, or determines that the trial court would not have departed to
the same degree on the basis of the substantial and compelling reasons, the Court
(continued…)
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Affirmed.
/s/ Patrick M. Meter
/s/ William B. Murphy
/s/ Brian K. Zahra
(…continued)
of Appeals must remand the case to the trial court for resentencing or
rearticulation of its substantial and compelling reasons to justify its departure.
On examination of the record, although the trial court stated that it was sending defendant
to prison because, in part, he need psychiatric assistance not available locally, the court also
commented that, even if sufficient mental health treatment was available locally, it would
nonetheless have sentenced defendant to prison because he was a danger to the public and
himself. Therefore, the trial court would have similarly departed had it not considered the issue
of available resources to treat inmates with psychiatric problems. It is evident that the trial
court’s overriding concern was the protection of the community and defendant himself given
objective and verifiable factors showing that defendant indeed posed a danger.
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