Lead Opinion
In People v Helzer,
We hold that because the sexual delinquency statute, MCL 767.61a, neither explicitly nor implicitly requires that a separate jury determine the issue of sexual delin
For the reasons stated below, we grant the prosecutor’s application for leave to appeal, vacate the trial court’s order granting defendant a new trial, and reinstate defendant’s conviction.
I. FACTS AND PROCEDURAL HISTORY
While on parole for a similar offense, defendant Anthony Breidenbach exposed himself to a woman at a public bookstore. Defendant was charged with “indecent exposure as a sexually delinquent person”
Defendant appealed and moved to remand, arguing that the trial court had violated MCL 767.61a and Helzer, and that he had been denied the effective assistance of counsel. The Court of Appeals remanded the case to the trial court to allow defendant to move for a new trial on this basis,
The prosecutor now appeals in this Court, arguing that Helzer was wrongly decided and should be overruled, or, alternatively, that defendant waived any claim of error under Helzer by failing to object to the original decision to try his case before a single jury.
This case requires that we determine whether MCL 767.61a requires trials by separate juries when a defendant is charged with being sexually delinquent. Matters of statutory interpretation raise questions of law, which we review de novo.
III. PEOPLE v HELZER
In People v Helzer,
On the basis of this understanding, the Helzer Court held that in order to proceed fairly “against a defendant under this modified statutory scheme, the alternate nature of the sentence requires a hearing and record before a separate jury in cases where defendant does not
The trial court cannot predict at the outset whether a defendant will actually be prejudiced by having the same jury-decide both the principal charge and the sexual delinquency charge. However, the potential for prejudice is inescapable, given the broad function and wide discretion necessarily accorded the jury in the sexual delinquency hearing. Much more is involved than simply determining whether this defendant is the person convicted of specific prior offenses. Indeed, acts not necessarily resulting in criminal convictions may he considered under the statute. See MCL 750.10a; MSA 28.200(1). Furthermore, the definition of a sexually delinquent person allows, and in fact must depend upon, consideration of the prior principal sexual offense. Consequently, we find the possibility too real that a jury which only shortly before had found defendant guilty beyond a reasonable doubt on the principal sexual offense might without responsible deliberation conclude he was also a sexually delinquent person. In short, the likelihood of an automatic conviction in this subsequent proceeding requires us to order a separate jury.[13 ]
In sum, the Court concluded that “the decision to empanel a separate jury should not be left to the
IV ANALYSIS
We take this opportunity to revisit the scope of this Court’s decision in Helzer in light of what the plain language of MCL 767.61a requires. When interpreting a statute, we seek to “ascertain and give effect to the intent of the Legislature.”
On the basis of the language of MCL 767.61a, we hold that separate juries are not necessarily required when a criminal defendant is charged with being a sexual delinquent in addition to another sexual offense. MCL 767.61a provides in full:
*9 In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in [MCL 768.35], and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.
Nowhere in MCL 767.61a does the Legislature require that a jury separate from the one convicting a defendant of an underlying sexual offense determine whether the defendant is also a sexually delinquent person. Given the plain language of this statute, we believe that the Helzer Court erroneously fashioned a mandatory prophylactic procedure when the text of the statute neither explicitly nor implicitly requires it.
To the contrary, the text of the statute affirmatively demonstrates that a separate jury is not required when a defendant is charged as a sexually delinquent person. For example, the statute provides that “the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed,
Nor do we believe that Helzer’s policy justifications demand such a requirement. The Helzer Court was first concerned with the potential for prejudice in having the same jury decide both charges. However, such potential could be said to be present any time a prosecutor charges a defendant with more than one offense. Courts cannot predict with perfect accuracy whether allowing particular types of related charges to be tried in the same proceeding will prejudice a defendant — and this is true regardless of whether the joinder concerns charges of sexual delinquency or any other related crimes. So
Moreover, we note that Helzer’s concern regarding the high potential for automatic conviction if the same jury is allowed to hear both charges — and in the process hear evidence of a defendant’s history of sexual misconduct — is not very compelling when such evidence can be, and often is, admitted anyway under the Michigan Rules of Evidence or the doctrine of chances. Specifically, MRE 404(b) provides that evidence of other “crimes, wrongs, or acts” may be admissible in order to prove a defendant’s motive, intent, preparation, scheme, plan, system of doing an act, or absence of mistake or accident, among other purposes. This “other acts” evidence need not be evidence of acts that resulted in criminal convictions. As this case demonstrates, the evidentiary rule provides a basis for admitting evidence of a defendant’s prior sexual offenses.
The Helzer Court was further concerned that a jury deciding both charges might conclude without “responsible deliberation” that a defendant is a sexually delinquent person — in other words, that there is a high likelihood of “automatic conviction.”
Finally, we note that Michigan’s court rules contemplate that decisions regarding joint or severed trials for related charges lie firmly within the discretion of trial courts. In particular, MCR 6.120(B) provides:
On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.[28 ]
We believe that this rule provides the proper framework for courts to analyze whether separate juries are required when sexual delinquency is charged in addition to a primary sexual offense. That is, if “a fair
V STARE DECISIS
Although we conclude that Helzer wrongly created a rule mandating bifurcated trials when a defendant is charged with being a sexually delinquent person in addition to an underlying criminal sexual offense, that does not end our inquiry regarding whether Helzer should be overruled. In Robinson v Detroit, we set forth a multifactored test that this Court applies before overruling a precedent in order to provide respectful consideration to the cases decided by our predecessors.
First, we examine whether the Helzer rule of mandatory bifurcation defies “practical workability.” Although we conclude that the Helzer rule is not practically unworkable, it does impose unnecessary enormous costs on the judicial system because it requires empaneling two juries when the need for this has not been specifically determined. As noted, in accordance with Michigan’s court rules, Michigan courts are well able to accommodate joined or bifurcated trials as the circumstances of an individual case require.
Second, and most important, regarding reliance interests, this Court asks “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations. It is in practice a prudential judgment for a court.”
Moreover, as we noted in Robinson, when discussing reliance interests in the context of statutory law, the words of a statute themselves are of paramount importance because “it is to the words of the statute itself that a citizen first looks for guidance in directing his actions.”
Finally, we examine whether intermediate changes in the law or facts no longer justify the Helzer decision. Because Helzer created a policy-based, prophylactic rule, its continued validity is only supported to the extent that legal realities require it. Yet, as discussed at length earlier, the policy justifications for Helzer are largely undercut by the application of the rules of evidence and various legal doctrines in a trial setting.
Having reviewed these factors and considering the deference that must be accorded to the exact words chosen by the Legislature in MCL 767.61a, we conclude that the portion of Helzer requiring bifurcated trials should be overruled.
VI. CONCLUSION
We hold that separate juries are not necessarily required when a criminal defendant is charged with a sexual offense as well as with being a sexually delinquent person. To the extent that Helzer held contrarily, we overrule that portion of the decision and direct trial courts to exercise their discretion consistently with Michigan’s court rules when determining whether separate jury trials are required in a given case.
Accordingly, the prosecutor’s application for leave to appeal is granted, the trial court’s order granting defendant a new trial is vacated, defendant’s conviction is reinstated, and this case is remanded to the Genesee Circuit Court for further proceedings consistent with this opinion.
People v Helzer, 404 Mich 410; 273 NW2d 44 (1978).
MCL 750.335a (indecent exposure); MCL 767.61a (sexual delinquency). MCL 750.10a defines a sexually delinquent person as
any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.
MCL 750.335a(2)(c) provides that “[i]f the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.” Defendant was paroled on October 13, 2009.
People v Breidenbach, unpublished order of the Court of Appeals, entered June 23, 2009 (Docket No. 288895).
Despite having received the relief he requested, defendant refused to dismiss the appeal, resulting in a motion for guidance filed by his attorney that the Court of Appeals, in lieu of granting it, resolved by remanding the case for a new trial pursuant to the trial court’s order. People v Breidenbach, unpublished order of the Court of Appeals, entered Nov 23, 2009 (Docket No. 288895).
People v Breidenbach, unpublished order of the Court of Appeals, entered November 9, 2009 (Docket No. 294319) (denying the prosecutor’s application for leave to cross-appeal).
People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
Helzer, 404 Mich 410.
Id. at 414-415.
Id. at 417. The Court concluded that MCL 767.61a is different from a simple penalty enhancement and reflects a “legislative intent to construe sexual delinquency as a separate, alternate form of sentencing” designed for the penalization and rehabilitation of those determined to be sexually delinquent. Id. at 418-421.
Id. at 422. In imposing this requirement, the Helzer Court acknowledged that MCL 767.61a does not explicitly provide for convictions by separate juries. Rather, the Court held that “a separate hearing and record [was] directed by clear implication.” Id. at 419 n 13.
Id. at 422-423.
Id. at 423-424.
Id. at 424.
Id. In addition, the Court emphasized that
no reference to the sexual delinquency charge should be made to the jury trying the principal charge. Given the provision for separate juries, absolutely no need remains to acquaint the jury hearing the principal charge with the possible subsequent conviction of defendant as a sexually delinquent person. Discovery during trial of the principal charge that the jury hearing that case has learned of the sexual delinquency charge will henceforth be grounds for mistrial on the principal charge or reversible error on appeal. The two charges must be tried separately. Basic fairness to defendant requires this holding. [Id. at 426.]
People v Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).
Id., quoting People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002).
MCL 767.61a (emphasis added).
Id. (emphasis added).
Davis, 468 Mich at 79 (quotation marks and citation omitted).
Helzer, 404 Mich at 423.
This case presents a good example of when MRE 404(b) evidence may properly be used for non-character based purposes given that defendant denied that he exposed himself and additionally argued that, because of groin pain he was experiencing, he had wrapped the area with bandages and thus couldn’t have exposed himself. Indeed, the prosecutor in this case was allowed to elicit evidence of two of defendant’s prior offenses. Additionally, defendant admitted his prior felony convictions, testifying
See, e.g., People v Mardlin, 487 Mich 609, 616-619; 790 NW2d 607 (2010); People v VanderVliet, 444 Mich 52, 79-81; 508 NW2d 114 (1993); People v Crawford, 458 Mich 376, 392-397; 582 NW2d 785 (1998). The doctrine of chances creates a non-character basis for the admission of evidence of other acts when the other acts are related to the offense charged in such a way as to make it objectively improbable that all the acts were accidental and probable that at least one of them was the result of an actus reus. Rather than relying on the subjective character of the defendant, it relies on the objective improbability of so many accidental or unexplained events of a similar nature befalling one individual. See 1 Imwinkelried, Uncharged Misconduct Evidence (rev ed), § 4:03.
Just as MRE 404(b) evidence may be used in this case to demonstrate defendant’s intent, motive, or other non-character based purpose for exposing himself, the facts here also seem to present a particularly appropriate situation in which to properly employ the doctrine of chances. Defendant argued in particular that he did not intend to expose himself, or was not physically capable of exposing himself, in the instant case. This claim of a lack of intent or impossibility is belied by defendant’s repeated convictions of similar crimes. Defendant’s history of similar sexual deviancy demonstrates an objective likelihood of an actus reus in this case based on reasonable probabilities. Thus, because this evidence is likely otherwise admissible for proper purposes under MRE 404(b) or the doctrine of chances, the Helzer Court’s concern about unfair prejudice from trying the charges before a single jury is significantly diminished.
People v Williams, 483 Mich 226, 237; 769 NW2d 605 (2009) (quotation marks and citation omitted).
Helzer, 404 Mich at 423-424.
See, e.g., People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
Indeed, as the Helzer Court stated, the definition of “sexually delinquent person” “dependfs] upon” consideration of the principal sexual offense. Helzer, 404 Mich at 423.
Emphasis added. MCR 6.120(C) provides that “[o]n the defendant’s motion, the court must sever for separate trials offenses that are not related as defined in [MCR 6.120(B)(1)].”
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
Id. at 464.
Id. at 465.
Id. at 464.
Id. at 466.
See People v Hawthorne, 474 Mich 174, 183-184; 713 NW2d 724 (2006); Robinson, 462 Mich at 466-467 (“Such after-the-fact awareness does not rise to the level of a reliance interest because to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event. Such a situation does not exist here.”).
Robinson, 462 Mich at 467.
We note in particular that the Michigan Rules of Evidence were not yet effective when Helzer was briefed and argued, that they had only recently gone into effect when Helzer was decided, and that Helzer contains no discussion of MRE 404(b).
We emphasize that we overrule Helzer in part, and only in regard to Helzer’s creation of árale of mandatory bifurcation. The additional issues addressed in the Helzer decision are not at issue in this case.
Because we vacate the trial court’s order, our holding regarding the Helzer issue is dispositive of the prosecutor’s appeal, and therefore we need not consider the prosecution’s alternative waiver argument or whether any alleged error was harmless.
Concurrence in Part
(concurring in part and dissenting in part). I concur in the result reached by the majority. However, I write separately to express my disagreement with several parts of the majority opinion.
I disagree with the partial overruling of People v Helzer
The majority correctly notes that defendant testified about his prior felony convictions at trial. He also advanced as fact that he had accepted responsibility for those offenses to show that he would not have committed the indecent exposure alleged in this case. Moreover, many of his prior offenses would have been admissible under MRE 404(b) in a trial for the indecent exposure charge.
However, the testimony of defendant’s parole officer about defendant’s lengthy criminal history would have been admissible in the sexual delinquency case only to establish the elements of that offense. The prejudice inherent in admitting a defendant’s entire criminal
Under the facts of this case, I cannot conclude that the admission of defendant’s criminal history constituted plain error warranting reversal. Thus, I agree with the majority’s decision to reinstate defendant’s conviction, but would have decided this case on the narrow grounds previously discussed.
Because the majority reaches the Helzer rule and overrules it in part, I must also explain my disagreement with some of its reasoning. First, I would not rely on the doctrine of chances. As I explained in my dissenting opinion in People v Mardlin, “[t]he decision whether to apply the doctrine of chances is made on a case-by-case basis considering the particular facts of the case.”
I also write separately to address the majority’s supposition that “[pjerhaps cases involving charges of sexual delinquency will need to be tried before separate juries at a higher rate than other crimes, but this does not necessitate a special rule applicable to all cases involving charges of sexual delinquency, particularly those in which indications of prejudice do not exist.”
I would further caution trial courts that nothing in the Court’s ruling today undermines Helzer’s persuasive reasoning for bifurcating jury trials as a discretionary matter. Henceforth, trial courts should carefully consider the potential for prejudice in such cases and whether a defendant can get a “fair determination” of his or her guilt or innocence “of each offense.”
I also disavow part of the majority’s stare decisis discussion. In its analysis of the reliance interest, the majority states that “citizens [do not] contemplate criminal activity in reliance on the particular procedural rule implicated in this case.”
Moreover, reliance interests are supposedly not implicated here simply because “the Helzer Court failed to
For these reasons, I concur in the result reached by the majority opinion but dissent from much of its analysis.
People v Helzer, 404 Mich 410; 273 NW2d 44 (1978).
See, e.g., People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004).
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Id., quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (quotation marks omitted).
People v Mardlin, 487 Mich 609, 641; 790 NW2d 607 (2010) (Kelly, C.J., dissenting).
Ante at 12.
Ante at 11.
Thus, I agree with the Helzer Court that “a jury which only shortly before had found defendant guilty beyond a reasonable doubt on the principal sexual offense might without responsible deliberation conclude he was also a sexually delinquent person.” Helzer, 404 Mich at 423.
MCR 6.120(B) (emphasis added).
Ante at 16.
People v Gardner, 482 Mich 41, 83 n 11; 753 NW2d 78 (2008) (Kelly, J., dissenting) (explaining that “criminals are not the only people who rely on criminal statutes”).
Ante at 17.
See, e.g., Gardner, 482 Mich at 82-83 (Kelly, J., dissenting) (“[T]he majority often merges the reliance prong with the initial determination of whether the precedent was correctly decided. This last point effectively eviscerates the reliance prong of [the analysis of Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000)], because a ‘wrong’ decision supposedly can never generate reliance.”).
Concurrence in Part
(concurring in part and dissenting in part). I concur with the majority that the trial court’s order granting defendant a new trial should be vacated and that defendant’s conviction should be reinstated. However, I reach this conclusion because defendant has forfeited his right to separately empaneled juries in the matter before us. As the majority acknowledges, defendant was charged with “indecent exposure as a sexually delinquent person”
I. ANALYSIS
At issue is whether defendant was entitled to separately empaneled juries. The defendant’s claim of error was based on Helzer, which established a right to be tried by two separate juries when charged with indecent exposure as a sexually delinquent person pursuant to MCL 750.335a and MCL 767.61a. According to the record, defendant made no request for bifurcation before trial, nor did he object to empaneling a single jury either before or during the trial. The objection was not raised until after the conviction and sentence and after an appeal had been filed in the Court of Appeals. The prosecution argues that the issue has been waived or forfeited given these circumstances. While the majority holds that it need not consider the prosecution’s argument, I respectfully disagree. Under the circumstances presented in this case, I conclude that defendant forfeited the right to trial by separate juries and, consequently, there is no need to reach the question whether Helzer was correctly decided.
To determine whether the alleged error was forfeited, we first examine the right claimed by defendant. While defendant argues that he was denied the right to a jury trial, which cannot be waived without meeting the procedural requirements of MCR 6.402, I find defendant’s argument without merit. Defendant was not denied the right to a jury trial; to the contrary, defendant was tried by a jury in this case. Defendant’s claim of error involves the right to be tried by separate juries, in order to exclude possible prejudice resulting from the same jury hearing certain evidence. However, the right to separate juries found in Helzer was not
The test set forth in Carines for reversing a conviction on the basis of a nonconstitutional, unpreserved error requires that the defendant show a plain error that affected substantial rights.
Additionally, while Helzer discussed the right to separate juries in the context of fairness, in all situations in which severance is mandatory, the court rules clearly place the burden on the defendant to request the relief by motion.
Accordingly, I must respectfully dissent from the majority’s decision to overrule Helzer. Helzer has served as precedent in this state for more than 30 years. Given that the defendant forfeited the Helzer issue, there is no reason to overrule Helzer, even in part, in the case before us. Overruling precedent may be warranted in certain circumstances, but overruling 30-year-old precedent should not be done without thoughtful consideration of the principle of stare decisis. Any stare decisis analysis must focus on the individual case and the reasons for overruling precedent. While the majority finds that the Robinson
II. CONCLUSION
I concur with the majority that the order granting defendant a new trial should be vacated and that defendant’s conviction should be reinstated, although I reach this result on the ground that defendant forfeited his right to separately empaneled juries. Accordingly, I respectfully dissent from the majority’s decision to partially overrule Helzer, which has served as precedent for more than 30 years in this state, because it is unnecessary to reach the issue whether Helzer was correctly decided.
MCL 750.335a (indecent exposure); MCL 767.61a (sexual delinquency).
See also Spencer v Texas, 385 US 554, 567-569; 87 S Ct 648; 17 L Ed 2d 606 (1967) (holding that there is no federal constitutional right to a bifurcated criminal trial).
Helzer, 404 Mich at 424.
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
Id. at 763-764.
Id. at 774.
Zafiro v United States, 506 US 534, 540; 113 S Ct 933; 122 L Ed 2d 317 (1993).
See, e.g., MCR 6.120(C), which provides: “On the defendant’s motion, the court must sever for separate trials offenses that are not related as defined in [MCR 6.120(B)(1)]”; MCR 6.121(B), which provides: “On a defendant’s motion, the court must sever offenses that are not related as defined in MCR 6.120(B)”; and MCR 6.121(C), which provides: “On a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”
Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000).
Concurrence Opinion
I concur in the result only.