Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BILLEY JAMES CHOATE, Defendant-Appellant.

UNPUBLISHED August 19, 2010

No. 292193 Lapeer Circuit Court LC No. 07-009405-FH

Before: MURRAY, P.J., and DONOFRIO and GLEICHER, JJ. PER CURIAM. A jury convicted defendant of first-degree home invasion, MCL 750.110a(2). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to eight to 20 years' imprisonment. Defendant appeals as of right. We affirm. I Defendant initially urges this Court to vacate his conviction on the ground that the prosecutor failed to prove that the crime occurred in Lapeer County, and that the circuit court thus lacked jurisdiction to convict him of the crime. The Lapeer County Prosecutor charged defendant with an August 4, 2006 breaking and entering of a residence located at "7720 Burnside Road, Brown City, Lapeer County." Several witnesses confirmed at trial the address where the break in occurred, but no witnesses specifically testified that the residence sat within Lapeer County. Defense counsel moved for a directed verdict, alleging that "there is no evidence submitted that this crime occurred in Lapeer County." The trial court denied the defense motion, explaining as follows: The testimony was that on several occasions the testimony was that the specific address of the break-in was 7720 Burnside Road, Brown City, Michigan, Lapeer County. Again, there's a Brown City mailing address but it is within the County of Lapeer. The victims themselves never said Lapeer County. They continued to refer to Burnside Road and their address. I believe the officer did indicate that he went out to the Burnside Road address in the County of Lapeer but the Court will take judicial notice that 7720 Burnside Road is within the County of Lapeer and not within Sanilac County, so your motion for improper venue is considered and denied for a directed verdict. -1-

This Court reviews for an abuse of discretion a trial court's decision whether to take judicial notice of adjudicative facts. Freed v Salas, 286 Mich App 300, 341; 780 NW2d 844 (2009). The Michigan Rules of Evidence sanction judicial notice of facts when the fact "judicially noticed . . . is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." MRE 201(b). The trial court inaccurately recalled the trial testimony, which did not specifically note that 7720 Burnside Road was situated in Lapeer County. But the trial court acted within its discretion when it took judicial notice of the county in which 7720 Burnside Road is situated, namely Lapeer County, because the county within which the break in took place is readily and accurately ascertained by resort to atlases or maps, "sources whose accuracy cannot reasonably be questioned." MRE 201(b); Freed, 286 Mich App at 341. However, the trial court did not satisfy the requirement in MRE 201(f) that "[i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." Yet any error relating to the proof of venue at defendant's trial or the trial court's neglect to inform the jury of its taking of judicial notice regarding the situs of the crime remains subject to harmless error evaluation, according to the Michigan Supreme Court's decision in People v Houthoofd, ___ Mich ___; ___ NW2d ___ (Docket Nos. 138959, 138969, decided July 31, 2010). In Houthoofd, the Supreme Court found that none of the acts comprising the defendant's charged crimes had taken place in Saginaw County, the situs of the defendant's trial. Id., slip op at 9-16. The Supreme Court next considered "whether statutory venue error in criminal prosecutions is subject to a harmless error analysis under MCL 769.26." Id., slip op at 16. In pertinent part, the Supreme Court, analyzed the nature of the improper venue: . . . [W]e must first examine whether statutory venue error is a constitutional error in order to determine the applicable standard of review. In People v Lee[, 334 Mich 217, 225; 54 NW2d 305 (1962),] this Court recognized that "[i]n the absence of any limitation by constitutional provision, it seems to be generally recognized that the power of a State legislature to fix the venue of criminal prosecutions in a county or district other than that in which the crime was committed is unrestricted." . . . The Court noted that there was no explicit venue mandate in the Michigan Constitution of 1908. . . . and this omission carried over to the . . . 1963 Constitution[]. Thus, Michigan's constitution only requires that a defendant's constitutional right to a fair and speedy trial before an impartial jury be preserved, and does not require that the jury trial be in the county where the crime occurred; as a result, statutory venue error is not a constitutional error. [Houthoofd, slip op at 17-19 (footnotes omitted, emphasis added), citing Const 1963, art 1,

Download PEOPLE OF MI V BILLEY JAMES CHOATE.pdf

Michigan Law