Defendant appeals by right his jury trial convictions of first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b. He was sentenced to life in prison without the possibility of parole for the murder conviction, consecutive to two years in prison for the felony-firearm conviction. We affirm defendant’s convictions and remand for resentencing in light of Miller v Alabama, 567 US_;
I. PERTINENT PACTS AND PROCEDURAL HISTORY
This case arises out of a shooting in Detroit on January 28, 2007. Witnesses saw a black car drive past a house. Shortly after, three men approached the house and someone shot a gun at the people inside. The victim, Mone Little, was shot and killed. Defendant was eventually identified by a witness, Michael Watson, as the person who fired a gun at the house. Watson had grown up with defendant and knew him by his street name.
The jury found defendant guilty of first-degree murder and felony firearm. Defendant was given a mandatory sentence of life in prison for the first-degree murder conviction and sentenced to two years’ imprisonment for the felony-firearm conviction. Defendant’s official date of birth is January 29, 1989. The offense therefore occurred on the evening before defendant’s 18th birthday. Defendant appeals his convictions and his mandatory life sentence.
II. DELAY IN ARREST
Defendant argues that the delay of nearly five years in arresting him for the murder of Little violated his due process rights, or, alternatively, that he was denied the effective assistance of trial counsel because his counsel did not object to the prearrest delay. We disagree. This Court denied defendant’s motion to remand for an evidentiary hearing.
A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial and that was used to gain tactical advantage violates the constitutional right to due process. United States v Marion,
Here, defendant has not demonstrated actual and substantial prejudice. Defendant has offered on appeal an affidavit asserting that he was at a party at his father’s residence “the entire night” in question, that he was not driving and did not have access to a black car that evening, and that no one could testify with certainty regarding either of those circumstances because of the long delay. This affidavit was not introduced in the trial court and is not part of the lower court record. This Court’s review is limited to the lower court record. Kent Co Aeronautics Bd v Dep’t of State Police,
We further conclude that the delay was reasonable and justified under the circumstances. Defendant argues that the delay had four components: (a) the period between the 2007 incident resulting in Little’s death and the anonymous tip in early 2009 regarding Watson’s location, (b) the several months between the tip and the police sergeant’s first visit to Missouri, (c) the period between the first and second visit to Missouri, and (d) the four months between the issuance of the felony complaint and defendant’s arraignment.
Finally, with regard to the delay between the issuance of a felony complaint and warrant on November 14, 2011, and defendant’s arraignment on February 23, 2012, defendant has not provided this Court with any authority to support the notion that a three-month delay between the issuance of a complaint and an arraignment is unreasonable, especially when for the majority of that time the defendant was incarcerated on other charges. However, no reason for the delay appears in the record. Generally, mere delay between the issuance of a complaint and an arrest and arraignment, absent actual and substantial prejudice, is not a denial of due process. See Patton,
Because we conclude not only that defendant has not established actual and substantial prejudice, but that the delay was not unreasonable, we do not find defendant’s trial counsel ineffective for failing to object to it. An attorney does not have a duty to make a meritless argument. People v Snider,
III. IDENTIFICATION
Defendant also argues that his trial counsel was ineffective for failing to object to the use of a single photograph in an interview with the only witness (Watson) who thereafter identified defendant in court. A photographic identification procedure violates a defendant’s right to due process when it is so impermissibly suggestive that it creates a substantial likelihood of misidentification. People v Gray,
In this case, the photograph was used only to help confirm the identity of the
IV SENTENCING
Defendant argues that his sentence of mandatory life imprisonment without the possibility of parole is cruel and unusual punishment under the United States and Michigan Constitutions. US Const, Am VIII; Const 1963, art 1, § 16. In light of Miller, we agree.
A. MILLER v ALABAMA AND ITS PROGENY
In Miller, 567 US at_, _;
In People v Carp,
Neither Miller nor Carp, nor any applicable statute, provides a means for calculating when a defendant reaches the age of 18. Resolution of this question requires this Court to decide, as an issue of first impression, whether the common-law rule of age calculation or, alternatively, the so-called “birthday rule,” governs age calculation under Michigan law.
B. THE COMMON-LAW RULE OP AGE CALCULATION
Contrary to common assumption or understanding, the common law has long held that an individual’s age is computed differently than time is computed under general computation principles. The common-law rule has been stated thusly:
Where the common law prevails, the general rule for the computation of time is to exclude the first and include the last day. For over 200 years, the common law has, however, recognized a remarkable exception to the foregoing rule, to the effect that in computing a person’s age the day upon which that person was born, even though he was born on the last moment thereof, is included, and he therefore reaches his next year in age at the first moment of the day prior to the anniversary date of his birth. [Nelson v Sandkamp, 227 Minn 177, 179;34 NW2d 640 (1948) (citations omitted).]
Stated another way, under the common law, “[t]he law ordinarily taking no cognizance of fractions of days, one becomes of full age the first moment of the day before” the anniversary of his or her birth. United States v Wright, 197 F 297, 298 (CA 8, 1912).
Courts of numerous other state jurisdictions also have followed the common-law rule, in various contexts. See, e.g., In re APS, 304 Ga App 513, 516;
Similarly, like the United States Court of Appeals for the Eighth Circuit in Wright, various federal courts have applied the common-law rule. See, e.g., Fisher v Smith,
C. THE BIRTHDAY RULE
By contrast, certain other jurisdictions
In State v Alley,
Meanwhile, other states appear to have chosen, in the absence of statutory guidance, to adopt the birthday rule rather than the established common-law rule. See, e.g., State v Wright, 24 Kan App 2d 558;
D. RATIONALE FOR COMMON-LAW RULE
“Although the point of origin of the [common-law] rule is uncertain, it clearly was a part of the English common law and appeared in cases decided as early as the seventeenth century.” Patterson, 222 NJ Super at 452, citing
Perhaps the earliest expression in this country of the rationale for the common-law rule of age calculation was that of the Court of Oyer and Terminer of Delaware in 1840:
On this question the law is well settled; it admits of no doubt. A person is “of the age of twenty-one years” the day before the twenty-first anniversary of his birth day. It is not necessary that he shall have entered upon his birth day, or he would be more than twenty-one years old. He is, therefore, of age the day before the anniversary of his birth; and, as the law takes no notice of fractions of a day, he is necessarily of age the whole of the day before his twenty-first birth day; and upon any and every moment of that day may do any act which any man may lawfully do. [Clarke, 3 Del (3 Harr) at 558, citing 1 Chit Gen Prac, 766 (emphasis in original).]
Subsequent decisions have focused on the “no fractions of a day” component of that expression to highlight the fact that age changes not only as of the day before one’s birthday, but as of the first moment of that day. See, e.g., Wright, 197 F at 298 (“[t]he law ordinarily taking no cognizance of fractions of days, one becomes of full age the first moment of the day before” the anniversary of his birth). As to that component of the analysis, the United States Supreme Court has recognized that the “no fractions of a day” rule is not absolute:
It is true that for.many purposes the law knows no division of a day; but whenever it becomes important to the ends of justice, or in order to decide upon conflicting interests, the law will look into fractions of a day, as readily as into the fractions of any other unit of time. The rule is purely one of convenience, which must give way whenever the rights of parties require it.. .. The law is not made of such unreasonable and arbitrary rules. [Louisville v Savings Bank, 104 US (14 Otto) 469, 474-475;26 L Ed 775 (1881) (quotation marks and citations omitted).]
In expounding this principle, the United States Supreme Court in Louisville discussed Justice Story’s opinion in In re Richardson, 20 F Cas 699, 702;
In In re Richardson, Justice Story explained that the rule that there is no fraction in a day is a limited doctrine to be applied only where it will promote justice in a case:
I am aware, that it is often laid down, that in law there is no fraction of a day. But this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and, therefore, like all other legal fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred and proved in furtherance of the right and justice of the case.... The common case put to illustrate the doctrine, thatthere is no fraction in a day, is the case, when a person arrives at majority.... Here the rule is applied in favor of the party, to put a termination to the incapacity of infancy.... So that we see, that there is no ground of authority, and, certainly, there is no reason to assert, that any such general rule prevails, as that the law does not allow of fractions of a day. On the contrary, common sense and common justice equally sustain the propriety of allowing fractions of a day, whenever it will promote the purposes of substantial justice. Indeed, I know of no case, where the doctrine of relation, which is a mere fiction of law, is allowed to prevail, unless it be in furtherance and protection of rights, pro bono publico. [In re Richardson, 20 F Cas at 701-702 (citations omitted; emphasis added).]
On the basis of these articulations, it is arguable that the common-law rule of age calculation (sometimes referred to as the “coming of age rule”) is a flexible concept, designed to be applied only when it “promotes substantial justice” or benefits a party by extending the protections afforded to a minor. Indeed, certain courts that have rejected the common-law rule in favor of the birthday rule have so argued:
A fiction which takes away some of the protections of minority status by eliminating any period during which one is actually an infant and requiring that infant to be treated as one of full age should be rejected. That is exactly what the coming of age rule does.... We think that a calculation method which foreshortens the protections with which we blanket infants must be discarded in favor of the uniform rule which provides an infant more than a full measure of protected status. For these reasons, we hold that the common law coming of age rule should be rejected in favor of our ordinary rules of calculation in deciding the date of the anniversary of one’s birth. [Patterson, 222 NJ Super at 454-455.]
Before exploring that further, however, we note that the “no fractions of a day” concept, in and of itself, is not necessarily pertinent to the question before us, which is whether to apply the common-law rule or the birthday rule. That is because the “no fractions of a day” concept would appear to apply in either event, regardless of which rule is applied, and serves merely to address the related inquiry of whether age changes at a particular point in time during a day. The common-law rule and the birthday rule determine to which day (the birthday or the day before) the “no fractions of a day” concept should be applied. As the court in Velazquez noted:
In order to avoid disputes, the common-law rule regarding age does not recognize fractions of a day. Under the common-law rule a person is deemed to have been born on the first minute of the day of his birth. In accordance with this principle, the common-law rule for determining a person’s age is that a person reaches a given age at the earliest moment of the day before the anniversary of his birth. The underlying rationale for this rule is that a person is in existence on the day of his birth; thus, he has lived one year and one day on the first anniversary of his birth.
... Like the common-law rule, the birthday rule does not recognize fractions of a day, thus, under the birthday rule a person attains a given age at 12:01 a.m. or at the beginning of the anniversary date of the person’s birth. ['Velazquez, 648 So 2d at 303-304 (emphasis added; citations omitted).]
This is further apparent from the language of Clarke itself, which found first that the
It is apparent, therefore, that the rationale for the common-law rule, while linked to the “no fractions of a day” concept, has its essential underpinnings elsewhere. Specifically, the common-law rule is premised on the rationale that “[a] person is in existence on the day of his birth. On the first anniversary he or she has lived one year and one day.” Alley,
The logic of the common-law rule has long been the subject of debate. The court in Alley concluded that “[t]he logic of the common law rule is unassailable.” Alley,
What appears true regardless of the logic, or lack thereof, of either the common-law rule or the birthday rule, is that both are legal fictions. As the court stated in Patterson:
Whether we compute age by the common-law method (counting the date of birth), or by our uniform method (excluding the date of birth) we are diverging from what, in fact, is real. Only the Roman principle of de momento en momentum reflects the reality of time: that a person comes to his next age one year from the exact moment of the person’s birth not from the earliest or latest instant of the day on which he was born. There are good reasons involving uniformity of approach and avoidance of litigation to reject a rule requiring proof as tothe very second of one’s birth in order to ascertain one’s rights some years later. The only question is what fiction shall take its place. Both the common law coming of age rule and the ordinary calculation rule are such fictions. [Patterson, 222 NJ Super at 453-454 (emphasis added).]
Further, given that both rules are fictions, the above-quoted commentary of Justice Story, although stated in dicta and with reference specifically to the “no fraction of a day” fiction, arguably applies to either rule. That is, according to Justice Story’s reasoning, all such fictions are not without exception, but instead should be applied “whenever it will promote the purposes of substantial justice” and “in furtherance and protection of rights,” and should “never [be] allowed to operate against the right and justice of the case.” In re Richardson, 20 F Cas at 701-702.
It has thus been suggested that the common-law rule of age calculation should be applied only when doing so favors the interests of the minor. See, e.g., 5 ALR2d 1143, 1145, § 2, n 5 (“Acceleration of the legal advantage of majority attained as the reason for inclusion of the day of birth in computation of age was suggested in a dictum by Judge Story in a bankruptcy case, Re Richardson . . . where it was stated . . . ‘Here the rule is applied in favor of the party, to put a termination to the incapacity of infancy.’ ”) (citing In re Richardson, 20 F Cas at 701-702). Further, the court in Tucker has opined, with regard to the common-law rule, that “[t]his legal fiction therefore was originally established to aid persons who would experience hardship or loss by virtue of the general rule of computation.” Tucker,
Whether that assessment is accurate or not, our review of the caselaw suggests that the common-law rule has not always been applied in furtherance of such an objective. Rather, where the common-law rule has been held to apply, it has at least sometimes been applied irrespective of the perceived equities. And other courts have been critical as a result. See, e.g., Tucker,
The problem, of course, in applying a legal fiction when and if a court perceives it as “promot[ing] the purposes of substantial justice” and “in furtherance and protection of rights,” as Justice Story suggested, is that persons (and courts) can have differing viewpoints regarding when those ends are achieved. For example, a criminal defendant and a crime victim are likely to perceive them quite differently. Moreover, such a fluid application does not lend itself to the goal of clarity in the law; rather, clarity would give way to flexibility on the part of the courts in applying the rule when and only when they perceived it as promoting justice.
Further, were we to find that the common-law rule applies in Michigan, and that it has been applied without regard to whether a party is affected positively or negatively, we then would face the dilemma of whether to, “listlessly” or not, follow the caselaw that has preceded us, under the long-standing doctrine of stare decisis, see Parker v Port Huron Hosp,
We will consider these and other issues as we evaluate the state of the law as it has been applied in Michigan.
E. APPLICATION IN MICHIGAN
It appears from our review that no Michigan court has directly considered the issue before us. We therefore address the issue as a matter of first impression. In doing so, we will first endeavor to discern whether Miller mandates, or other federal authorities suggest, a particular outcome in Michigan. We will then address Michigan law as reflected in the Michigan Constitution and in expressions of the Michigan Legislature, Michigan Supreme Court, and Michigan Attorney General.
In undertaking this analysis, we are mindful that our decision could have ramifications far beyond the narrow factual circumstance that is presented in this case. As important as our decision certainly is in the context of defendant and this case, the determination of the precise moment at which age is determined could have broad implications in other areas as well, e.g., in determining who is eligible to vote, to consume alcoholic beverages, to marry, and to enter into contracts, as well as in determining who may be required to attend school (and when).
As will become apparent as we progress through our analysis, we note at the outset that none of the authorities we have reviewed appears to definitively answer the question before us to any level of certainty. This indeed gives us pause, given that we are mindful that our proper role is to interpret, not to make, the law. See Mich Residential Care Ass’n v Dep’t of Social Servs, 207 Mich App 373, 377;
1. MILLER
Defendant contends that a reference to the term “birthday” in Justice Alito’s dissent in Miller, 567 US at_;
The circumstances of Miller further suggest that the Supreme Court did not consider the issue now before us. The two defendants in Miller were convicted, inter alia, of capital crimes. One was convicted, under Arkansas law, of capital felony murder. The other was convicted, under Alabama law, of murder in the course of committing an arson. Miller, 567 US at_;
Were it to have considered the issue, we believe the Supreme Court would have found the underlying law in Arkansas and Alabama (regarding age calculation) muddled and worthy of distinguishing and clarifying. The Arkansas Juvenile Code, for example, defines a “juvenile” in pertinent part as “an individual who is .. . [f]rom birth to eighteen (18) years of age ... or [who is] [adjudicated delinquent. . . prior to eighteen (18) years of age and for whom the juvenile division of circuit court retains jurisdiction[.]” Ark Code Ann 9-27-303. It does not indicate how age is to be calculated. The court in Allen v Baird,
In Alabama, by contrast, the courts had long endorsed the common-law rule of age calculation. See Frost, 153 Ala at 664 (“[A] person reaches a designated age on the day preceding the anniversary of his birth.”). The subsequently adopted Alabama Juvenile Justice Act, Ala Code 12-15-102, however, establishes juvenile court jurisdiction over a “minor” and “child.” It defines “child” in § 12-15-102(3) as “[a]n individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday.” Id. Further, “[w]here a delinquency petition alleges that an individual, prior to the individual’s 18th birthday, has committed an offense for which there is no statute of limitations . . ., the term child also shall include the individual subject to the petition, regardless of the age of the individual at the time of filing.” Id. Although we are not aware that the Alabama Legislature has expressly abrogated the common-law rule, its use of the term “birthday” in this context suggests that it may consider a birthday to be the date on which age changes.
Regardless of the state of the law in the underlying jurisdictions of Arkansas and Alabama, however, the Supreme Court in Miller did not address it, did not distinguish the law of those states one from the other or from that of any other state, and did not expressly endorse or reject either
2. OTHER FEDERAL AUTHORITIES
Although defendant was convicted in a Michigan state court of a Michigan state-law crime, we think it prudent to briefly review certain federal authorities, insofar as they may also inform our analysis. In particular, we note that the federal criminal statutory scheme includes the federal Juvenile Delinquency Act, 18 USC 5031 et seq. As the United States Court of Appeals for the Second Circuit has described, this act “establishes certain procedural protections for juveniles . . . that may remove them from the ordinary criminal justice system and place them in a separate scheme of treatment and rehabilitation.” United States v Hoo, 825 F2d 667, 669 (CA 2, 1987).
Although this federal statutory scheme applies only in federal courts, 18 USC 5032, its provisions have not escaped the notice of the United States Supreme Court in assessing the validity, under the Eighth Amendment, of state-law sentencing schemes. See Graham v Florida,
The federal act defines “juvenile” as follows:
For the purposes of this chapter, a “juvenile” is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who hasnot attained his twenty-first birthday, and “juvenile delinquency” is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult or a violation by such a person of section 922(x). [18 USC 5031.]
By defining a “juvenile” and “juvenile delinquency” according to whether a person has “attained [a] birthday” or committed a wrongful act “prior to his eighteenth birthday,” it would certainly appear that, in enacting the federal Juvenile Delinquency Act, Congress had in mind the birthday rule of age calculation.
3. THE MICHIGAN CONSTITUTION
Article 3, § 7 of the current 1963 Michigan Constitution states, “[t]he common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” This constitutional provision raises several questions relative to our consideration of whether the common-law rule of age calculation applies in Michigan: (1) whether the common-law rule of age calculation was “now in force,” i.e., was in force at the time of the adoption of the 1963 Michigan Constitution; (2) if so, whether it is “repugnant to this constitution”; and (3) whether, if then in force in Michigan, it has “expire [d] by [its] own limitations,” or has been “changed, amended or repealed.”
We are aware of no authority suggesting that the common-law rule of age calculation is “repugnant to [the] constitution,” or that it “expire[d] by [its] own limitations.” We will address together the remaining questions of whether the common-law rule was “in force” at the time of the adoption of the 1963 Constitution and whether it has been “changed, amended or repealed.” We do so because in the overall context of Michigan’s constitutional history, the two questions largely meld into one.
The natural presumption is that, absent evidence to the contrary, the common-law rule was indeed “[then] in force,” at the time of the adoption of the 1963 Constitution. That presumption is arguably supported by the language of earlier versions of the Michigan Constitution, insofar as it relates to the applicability of the common law before 1963. In particular, we note that Michigan’s first Constitution, which was adopted two years before Michigan became a state, did not specifically refer to the “common law,” but stated that “[a]ll laws now in force in the territory of Michigan, which are not repugnant to this constitution, shall remain in force until they expire by their own limitations, or be altered or repealed by the legislature.” Const 1835, sched § 2. Presumably, the reference to “ [a]ll laws” includes the then-existing common law, even though the specific constitutional reference to the common law did not arise until later. See Woodman,
This history suggests that the common law generally carried over from England
To answer that question, we must consider the differing verbiage that appears in Michigan’s four Constitutions relative to altering the common law. As noted, the current 1963 Constitution provides, in pertinent part, that the common law that is “now in force” shall “remain in force until. . . changed, amended or repealed.” Const 1963, art 3, § 7 (emphasis added). By contrast, the preceding 1908 Constitution provided, in pertinent part, that the common law that is “now in force” shall “remain in force until. . . altered or repealed.” Const 1908, sched § 1 (emphasis added). Significantly, both the earlier 1850 Constitution and the original 1835 Constitution (the latter by the implicit inclusion, as noted, of the common law within the term “[a]ll laws”) provided, in pertinent part, that the common law that is “now in force” shall “remain in force until. . . altered or repealed by the legislature.” Const 1850, sched § 1 (emphasis added); Const 1835, sched § 2 (emphasis added).
As the emphasized language demonstrates, Michigan’s four Constitutions employed different terms in describing the conditions under which the common law would no longer remain in force. From 1835 to 1908, the Constitutions provided that the common law would remain in force “until. . . altered or repealed by the legislature.” From 1908 to 1963, the Constitution provided that the common law would remain in force “until. . . altered or repealed.” And since 1963, the Constitution has provided that the common law would remain in force “until. . . changed, amended or repealed.”
In interpreting the quoted language from the 1963 Michigan Constitution, our Supreme Court has stated, “The meaning of the article is readily discernible. The common law as well as statutes abide unless ‘changed, amended or repealed.’ ‘Amendment’ and ‘repeal’ refer to the legislative
Indeed, given that the common law has its genesis in decisions of judges, it is unsurprising that the judiciary would also be empowered to change the common law. As Justice MARKMAN has stated, “[o]ur constitution gives the judiciary the authority to change the common law because the common law is ‘judge-made law.’ ” Id. at 271 (MARKMAN, J.) (emphasis omitted), citing Placek,
That said, however, it must again be noted that before 1963, the Michigan Constitution did not contain the language “changed, amended or repealed.” Beginning in 1908, the pertinent constitutional language instead was “altered or repealed.” As stated in Myers and Placek, “repeal” relates to the legislative process. But those cases did not address the meaning of “altered” in this context, because that term did not exist in. the Constitution at the time of those decisions. We conclude, however, in part on the basis of Justice MARKMAN’s reasoning and his use of the term “alter” in describing the authority of the judiciary relative to the common law, that the 1908 Constitution (like the 1963 Constitution) authorized the judiciary to alter the common law. See Woodman,
That brings us to our next observation, i.e., that Michigan’s 1835 and 1850 Constitutions provided that the common law shall “remain in force until. . . altered or repealed by the legislature.” Const 1850, sched § 1 (emphasis added); Const 1835, sched § 2 (emphasis added). The specific constitutional reference to the “legislature” suggests that, notwithstanding the fact that the common law is “judge-made law,” the then-effective common law was alterable only by the Legislature, and not by the
Later in this opinion, we will discuss whether the Legislature or the judiciary has in fact done so with respect to the common-law rule of age calculation.
4. MICHIGAN ATTORNEY GENERAL OPINIONS
Our Attorney General has twice opined, in noncriminal contexts, that Michigan would adhere to the common-law principle that one reaches an age on the day preceding the anniversary of his or her birth. Both of these opinions predated the adoption of the current Michigan Constitution in 1963, and were issued while the Constitution of 1908 was in effect. First, in 1929, Attorney General Wilber M. Brucker rendered an opinion stating that a foreign-born child who became 21 years of age (which then was the age of majority) on the very day that his father became a citizen of the United States did not obtain the right to vote by virtue of his father’s citizenship because he was no longer a minor child at that time. Attorney General Brucker opined that under the law it mattered not that the son was born in the afternoon, and that the father became a citizen in the morning of the anniversary of that day, because “the law does not recognize fractions of days.” See OAG, 1928-1930, pp 247-248 (February 27, 1929).
In rendering that opinion, Attorney General Brucker stated that “[o]ne becomes of full age on the day preceding the twenty-first anniversary of his birth on the first moment of that day.” Id. at 248. That, of course, is the portion of the opinion that is pertinent to the issue before us. But its significance and legal import is somewhat called into question by the fact that this quoted portion of the opinion was not pertinent to the precise issue that was presented to the Attorney General. In that matter, the pivotal event (citizenship) occurred on the very day on which the child attained the age of majority. Therefore, an endorsement of the “day before” component of the common-law rule of age calculation was not essential to answering the question that was the subject of the Attorney General opinion. What was essential was his endorsement of the “no fraction of a day” concept.
It is also noteworthy that the authorities on which Attorney General Brucker based his opinion did not include any caselaw, statute, or other authority from Michigan. Rather, the opinion cited only 31 CJ 987 (which itself contained no Michigan citations), as well as cases from Delaware and Indiana state courts.
Subsequently, in 1956, Attorney General Thomas M. Kavanagh (who later served as Chief Justice of our Michigan Supreme Court) was asked for an opinion regarding whether a person whose birthday is the day following an election is eligible to vote in that election. Attorney General Kavanagh opined that the person was eligible.
Interestingly, and while this opinion indeed depended on application of the common-law rule of age calculation (because the election occurred the day before the voter’s birthday), the question as presented to Attorney General Kavanagh assumed its applicability as a fact, and specifically inquired whether the voter satisfied the then-applicable qualification for being an elector, as set forth in Article 3, § 1 of the then-effective 1908 Michigan Constitution, that the elector be “above the age of 21 years.” (Emphasis added.) Attorney General Kavanagh’s conclusion was that the law does not “differentiate between parts of a day,” and therefore that the then-applicable constitutional language (“above the age of 21 years”) was “synonymous” with the language “attained the age of twenty-one years.”
Such opinions, while not binding on this Court, can be persuasive authority. Williams v Rochester Hills,
5. MICHIGAN STATUTES AND COURT RULES
Defendant calls attention to MCR 6.903(E) as evidence that the Michigan Court Rules provide for use of the birthday rule. Indeed, MCR 6.903(E) provides that a juvenile is “a person 14 years of age or older, who is subject to the jurisdiction of the court for having allegedly committed a specified juvenile violation on or after the person’s 14th birthday and before the person’s 17th birthday.” Defendant further points out that this Court in Carp referred to MCR 6.903(E) in determining that Miller applied to defendants between the ages of 17 and 18. Carp,
In a note by the Reporter, it was indicated that subchapter 6.900 was adopted
While the language employed by our Supreme Court in MCR 6.903 indeed informs our analysis, we must conclude that in adopting MCR 6.903, our Supreme Court acted to put into effect a court rule in conformity with the policy choices of the Michigan Legislature, as expressed in the public acts (or perhaps in conformity with the law as set forth in its prior opinions, as discussed later in this opinion). It did not act by court rule to put into effect a policy choice different from that expressed by the Legislature. We further conclude that the determination whether a defendant is a juvenile, rather than an adult, concerns a substantive rule of law, not a procedural one. See McDougall v Schanz,
However, none of the statutes or public acts referred to in the notes to MCR 6.903 or the related Supreme Court orders make reference to the calculation of age by the use of a defendant’s birthday (or otherwise, for that matter). For example, MCL 712A.2(a) establishes in the family division of circuit courts certain exclusive jurisdiction over juveniles “under 17 years of age . .. .” MCL 712A.4(1) authorizes the waiver of that jurisdiction if the offense, if committed by an adult, would be a felony and the accused juvenile is “14 years of age or older . . ..” MCL 764.1f(l) authorizes the filing of a complaint for specified juvenile violations committed by a juvenile “14 years of age or older but less than 17 years of age . .. .” The Probate Code and the Juvenile Facilities Act define a “juvenile” as a person who is less than or under “17 years of age . . ..” MCL 712A.l(l)(h); MCL 803.222. MCL 600.606(1) simply states that “[t]he circuit court has jurisdiction to hear and determine a specified juvenile violation if committed by a juvenile 14 years of age or older and less than 17 years of age[,]” while MCL 764.27 merely refers to “a child less than 17 years of age ... .”
Defendant also refers this Court to a reference to birthdays in the Youthful Trainee Act (YTA), MCL 762.11(1):
[I]f an individual pleads guilty to a criminal offense, committed on or after the individual’s seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee.
The classification of “youthful trainee” is created entirely by statute. “The YTA offers a mechanism by which youths charged with committing certain crimes between their seventeenth and twenty-first birthdays may be excused from having a criminal record.” People v Bobek,
We do not find the YTA’s reference to “birthdays” conclusive because nothing in the act purports to alter or affect the process used to calculate an individual’s age for the purpose of determining juvenile status. The fact that the Legislature placed temporal limitations on the assignment of “youthful trainee” status does not necessarily mean that, by implication, the Legislature abolished the common-law rule of age calculation for all purposes. To the contrary, the fact that the Legislature made reference to birthdays in the YTA, while refraining from such a reference in other statutes relating to juveniles, arguably may suggest different meanings. U S Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing),
Other Michigan statutes have addressed age in a variety of ways. The Age of Majority Act, MCL 722.51 et seq., sets the legal age of adulthood at 18 years of age and provides that an adult of legal age is “a person who is at least 18 years of age on or after January 1, 1972 . . . .” MCL 722.52(1). However, the act makes no mention of the method of age calculation to be used. MCL 552.17a(l) provides for the jurisdiction of a divorce court over minor children of the parties “until each child has attained the age of 18 years . ...” MCL 257.314 indicates that the expiration of operator’s and chauffeur’s licenses occurs on the licensee’s birthday
Michigan’s Revised School Code requires a child who turns age 11 on or after December 1, 2009, or a child who was age 11 before that date and enters grade 6 in 2009 or later to attend public school “during
As noted, “[t]he Legislature has the authority to abrogate the common law.” Hoertsman Gen Contracting, Inc v Hahn,
We are unable to discern from these statutes an intent by the Michigan Legislature to explicitly abrogate the common-law rule of age calculation. The situation before us is therefore unlike that presented in In re Harris (which applied the “birthday” rule on the basis of the California Legislature’s explicit abrogation of the common-law rule in favor of the “birthday” rule). This raises the further question, however, regarding whether the common-law rule of age calculation had previously been abrogated by the courts, so that explicit legislative abrogation was unnecessary. We thus next turn to a discussion of the relevant Michigan caselaw.
6. MICHIGAN CASELAW
Notwithstanding our presumption that the common-law rule of age calculation carried over from England to be “in force” in Michigan at the time of the adoption of Michigan’s first Constitution in 1835, we have not found a single case in Michigan that ever applied that common-law rule, either before or after the adoption of the 1963 Michigan Constitution. Nor have the parties directed us to any such case. Nor, as noted, did the Michigan Attorney General cite any Michigan case in rendering opinions in 1929 and 1956. This fact alone gives us pause in presuming that the common-law rule of age calculation was “in force” in Michigan in 1963, or that, by virtue of Article 3, § 7 of the 1963 Michigan Constitution, it thereafter “remain[ed] in force____” That said, we also have found no case in Michigan, nor have the parties directed us to any, that directly considered the alternatives of applying the common-law rule of age calculation or the birthday rule, and that opted for either.
We have, however, located Michigan caselaw that we find pertinent to our consideration of the issue, and that thus informs our analysis.
It is certainly true that, in Bay Trust, the precise date at which the insured turned 60 years of age was not at issue, because it was undisputed that he died 2 months and 10 days after his 60th birthday. Thus, the Court was not specifically tasked with determining whether the common-law rule or the birthday rule applied in Michigan. Moreover, the Court’s statement suggesting that the insured attained the age of 60 on his 60th birthday was not necessary to its adjudication and was therefore obiter dictum. See Roberts v Auto-Owners Ins Co,
Subsequently, in Evans v Ross,
Again, the precise issue that is before us was not presented in Evans. However, Evans again reflects that our Supreme Court, in equating “during such nonage” with “prior to her 16th birthday,” considered the defendant’s birthday as the critical date on which her age changed, and on which she attained the age of consent. Evans thus further calls into question whether the common-law rule of age calculation was in force in Michigan as of at least 1944.
Further, in O’Neill v Morse,
More recently, the Supreme Court arguably applied the birthday rule for purposes of the Age of Majority Act, MCL 722.51 et seq., and the child support statute, MCL 552.17a. In Smith v Smith,
Thus, absent exceptional circumstances, § 17a statutorily limited support payments up to the time of a child’s eighteenth birthday, three years before the age of majority. It was this Court in Johnson [v Johnson,346 Mich 418 ;78 NW2d 216 (1956)], that interpreted the exceptional-circumstances clause to allow support payments beyond a child’s eighteenth birthday, but not beyond the age of majority.
.. . [BJecause the court’s jurisdiction in a divorce proceeding is defined by statute, the court rule cannot expand jurisdiction to authorize child support beyond a child’s eighteenth birthday.
Though the courts have never dissented from the rule that the age of majority limits the duration of child-support payments, this saving clause has been used, when applicable, to provide for support up to a child’s twenty-first birthday. [Id. at 612-613, 620, 624 (opinion by RILEY, C.J.) (emphasis added).]
The Court ultimately held that because of the amendment of the age of majority to 18 years of age, the exceptional-circumstances provision of the child support act was “legally void” and, thus, a court could not “authorize child support beyond a
Still more recently, in People v Chapman,
In considering these cases, we take note of the long-standing debate over whether and when it is appropriate for the judiciary to alter the common law, and whether and when the courts should defer to the Legislature in this area of shared authority. See, e.g., Woodman,
The question before us is not, however, whether the judiciary should exercise its authority to change the common law, but rather whether our Supreme Court has already effectively done so. In that regard, we note that it is far from clear that a recognition of the applicability of the birthday rule of age calculation in Michigan would effect a “radical change” in the law, or a “new and potentially societally dislocating change to the common law,” or that it would “lead to dramatic reallocation of societal benefits and burdens.” To the
E THE BIRTHDAY RULE APPLIES IN MICHIGAN
After evaluating all of the above factors, we conclude that the birthday rule of age calculation applies in Michigan. Again, we acknowledge that none of the cited authorities alone answers the question decisively. Nonetheless, a number of considerations, taken together, persuade us to apply the birthday rule and to conclude that the common-law rule of age calculation does not apply in Michigan. First and foremost, as noted, we have found no case in Michigan ever applying the common-law rule of age calculation. Given that fact, we are hard-pressed to conclude that what once was an established rule in England was ever established in Michigan. While it may be that the rule is presumed to have carried over upon the adoption of Michigan’s first Constitution in 1835, it nonetheless was never applied in this state. Consequently, while the common-law rule may have reflected the “custom of the realm” from which Sir William Blackstone hailed, it never became the custom of the realm that is the state of Michigan.
To the contrary, the Michigan Supreme Court, to the extent that it has addressed the issue even in passing, has commonly and routinely used language consistent with the birthday rule and contrary to the common-law rule. It has confirmed its earlier enunciations consistent with the birthday rule by a court rule that, while procedural rather than substantive, specifically defines a “juvenile” according to one’s “birthday.” MCR 6.903(E). In our view, the Supreme Court thus confirmed its understanding of what the Legislature intended in the statutes to which the court rule conformed, and of what prior courts had proclaimed as a matter of substantive law. Similarly, the Legislature, while not explicitly abrogating the common-law rule (which it may have felt was unnecessary given the language of the caselaw), has at times used language consistent with the birthday rule. The only authority in Michigan supportive of applying the common-law rule are two Attorney General opinions that lack persuasive value, for the reasons already indicated.
For these reasons, we hold that the common-law rule of age calculation, to the extent that it was ever applicable in Michigan, was long ago abrogated by decisions of the Michigan Supreme Court and the Michigan Legislature’s subsequent statutory enactments must be interpreted with that judicial abrogation in mind. Further, given all the above-discussed factors, we believe that the Michigan Supreme Court, if called upon to decide the issue today, would confirm the applicability of the birthday rule of age calculation in Michigan.
Having reached this conclusion, we nonetheless would prefer a more express articulation of public policy from our Legislature or the Supreme Court than what we have currently. Consequently, we would encourage the Legislature and the Supreme Court to clearly articulate the public policy of the state of Michigan regarding age calculation by specific legislation and definitive
V CONCLUSION
For the reasons noted, we find no due process or other errors relative to defendant’s convictions. We conclude, however, that resentencing is required. Defendant admits that he was born on January 29, 1989. Defendant shot and killed Little on the evening of January 28, 2007. Under the birthday rule of age calculation, which we conclude applies, he was not yet 18 years of age when the shooting occurred. Miller makes it clear that violation of the prohibition against cruel and unusual punishment occurs when individuals “under the age of 18 at the time of their crimes” are sentenced to mandatory life without the possibility of parole. Miller, 567 US at_;
We affirm defendant’s convictions and remand for resentencing in accordance with Miller. We do not retain jurisdiction.
Notes
People v Woolfolk, unpublished order of the Court of Appeals, entered August 21, 2013 (Docket No. 312056).
Defendant alleges that a delay of four months occurred between the issuance of the complaint and warrant for his arrest and his arraignment. However, the record indicates that defendant was arraigned in the district court on February 23, 2012, that a preliminary examination was held on March 9, 2012, after a continuance was granted to the defense, and that defendant was arraigned in the circuit court on March 20, 2012. Thus, the delay between the issuance of the complaint on November 14, 2011, and defendant’s first arraignment is approximately three months and nine days, not four months.
Given that we find Miller to be controlling, and that it requires resentencing here, we need not separately address whether defendant’s sentence violates Michigan’s constitutional proscription of “cruel or unusual punishment.” Const 1963, art 1, § 16; see People v Bullock,
Although not referred to in Carp, we note that the Michigan Probate Code similarly defines “juvenile” as a person who is “less than 17 years of age.” MCL 712A. 1(1)(h).
The United States Court of Appeals for the Eighth Circuit in Wright did not indicate whether it was applying the common law of a particular state or federal common law; it cited only cases from the state courts in Delaware, Indiana, and Kentucky. The issue presented in Wright concerned the right of the federal government to set aside a lease of real property located in the Quapaw reservation that had been entered into by a member of the Quapaw Tribe who was a minor at the time of entering into the lease. While it has long been held that “[t]here is no federal general common law,” Erie RCov Tompkins,
Our citation of cases following the common-law rule, or alternatively the birthday rule, is intended to he exemplary, not exhaustive. See also Turner, The Maryland Survey: 2002-2003: Recent Decision: The Court of Appeals of Maryland, 63 Md L Rev 992 (2004); 5 ALR2d 1143, § 3, p 1147; 42 Am Jur 2d, Infants, § 10; 45 Am Jur Proof of Facts, 2d, 631, Age of Person, § 2; Williston, Contracts (4th ed), 9.3; 43 CJS, Infants, § 2; 86 CJS, Time, § 4.
See, generally, 1 Restatement Contracts, 2d, § 14, Infants, comment a, p 37 (stating generally that “[t]he birthday rather than the preceding day is the date of majority in some States”).
Our decision further may have implications regarding the processes that are employed by those who are responsible for ascertaining whether such eligibility or other requirements have been met and for enforcing the law in those circumstances. Generally, the documentation utilized for such purposes includes a proof of age in the form of a photographic identification card, a birth certificate, or an affidavit or other statement reflecting date of birth. See, e.g., MCL 168.495 (voting eligibility); MCL 436.1203 (alcoholic liquor sales); MCL 551.103 (marriage eligibility); MCL 600.1403(2) (minor’s ability to void a contract not available if minor represented with written document that he or she had reached the age of majority). We think it likely that persons charged with confirming age by such mechanisms typically, according to the common understanding of age calculation, assess age according to the date of birth reflected in the documentation (as would be consistent with the birthday rule), rather than by a computation that subtracts one day from the age suggested by the documentation (as would be consistent with the common-law rule of age calculation).
Indeed, other courts have properly foreshadowed additional issues that could arise in applying the common-law rule of age calculation:
Because the rule is footed in a calculation at the point of one’s birth, it does not simply affect the single transition between infancy and minority but every single relevant annual calculation from birth for a lifetime. This underscores a separate problem. How does the coming of age rule interface with the regulatory schemes in effect in this State? Did the Legislature intend that one could drive on the eve of his or her 17th birthday, vote on the eve of his or her 18th birthday and consume alcoholic beverages on the eve of his or her 21st birthday? Does the coming of age rule constitute a defense in a case in which one is charged with engaging in such act prior to the statutorily prescribed date? [Patterson, 222 NJ Super at 455 n 4.]
We note that the holding in Allen is expressly contrary to the holding of our Michigan Supreme Court in Bay Trust Co v Agricultural Life Ins Co,
The Alabama code further defines a “minor” as “[a]n individual who is under the age of 19 years and who is not a child within the meaning of this chapter.” Ala Code 12-15-102(18). While this provision does not address when an individual reaches the age of 19, the court in Alabama Dep’t of Mental Health v ECJ, 84 So 3d 926 (Ala Civ App, 2011), concluded that “the juvenile court’s ... commitment order necessarily expired when E.C.J. reached the age of 19” and that the “juvenile court erred in holding that its ... order remained in effect beyond E.C.J.’s 19th birthday....” Id. at 929-930. Whether the court intended to expressly endorse the birthday rule of age calculation, as opposed to the common-law rule of age calculation, is unclear.
Hoo describes the federal Juvenile Delinquency Act as “set[ting] forth, inter alia, the prerequisites for the exercise of federal jurisdiction over juvenile defendants, standards governing the disposition of juveniles found to be delinquent and the procedures for the transfer of juveniles to adult status.” Id. at 669 n 1. Hoo continued:
Specifically, a juvenile alleged to have committed an act of juvenile delinquency may not be prosecuted in a federal district court unless the Attorney General certifies to the court that (1) state courts either do not have, or will refuse to exercise, jurisdiction over the juvenile; (2) the appropriate state does not have “available programs and services adequate for the needs of juveniles”; or (3) the offense charged is a “crime of violence that is a felony,” or is one of several specifically enumerated narcotics-related offenses. The Act also provides that a juvenile who is adjudicated to be a delinquent may be placed on probation or may be committed to the custody of the Attorney General, but may not be “placed or retained in an adult jail or correctional institution.” When a juvenile who is not a previous offender is alleged to have committed a violent felony or one of several specified narcotics-related offenses, the Attorney General may make a motion to transfer the juvenile to adult proceedings. This motion may be granted if the district court “finds, after hearing, [that] such transfer would be in the interest of justice” given, among other things, the juvenile’s age, background and maturity. For certain previous offenders, however, transfer is automatic. [Id. (citations omitted).]
We further note that Congress also seemed to have birthdays in mind when calculating age at a later stage in life. See, e.g., 10 USC 7084 (“[a] civilian member [of the teaching staffs of the United, States Naval Academy and United States Naval Postgraduate School] may be retired at any time after his sixty-fifth birthday, and shall be retired by June 30 following that birthday”).
As Justice Markman has described:
The common law originated in the decisions of English judges, starting in the early Middle Ages, and developed over the ensuing centuries.... Sir Edward Coke explained that the common law was the “custom of the realm.” ... He indicated that if a custom was “current throughout the commonwealth,” it was part of the common law.... Sir William Blackstone similarly discussed “[gjeneral customs; which are the universal rule of the whole kingdom, and form the common law.” ....
The “common law and its institutions were systemically extended to America, at least insofar as appropriate for frontier conditions.” [Woodman,486 Mich at 266-267 (opinion by Markman, J.) (citations omitted).]
In Williams, the decision of the trial court was affirmed by an equally divided Court. Chief Justice Dethmers and Justice Kelly concurred with the opinion of Justice Carr for affirmance and Justice Black wrote a separate opinion for affirmance. Justices Smith, Kavanagh, and Souris concurred with the opinion of Justice Edwards for reversal.
The current 1963 Michigan Constitution describes the qualifications of electors with the language, “has attained the age of 21 years.” Const 1963, art 2, § 1.
MCL 712A.18, also under the Probate Code, pertains to orders of disposition of juveniles and refers to individuals “not less than 18 years of age” and “not less than 17 years of age____” MCL 712A.18(l)(b), and (e).
The Michigan Vehicle Code also provides a definition of “birthday” that means “any anniversary of the original date of birth. . ..” MCL 257.4a. However, the definition also deems persons born during a leap year on February 29 to have been born on March 1 “for the purposes of this act. ...” It thus appears that this definition is meant to be applied to the Michigan Vehicle Code, rather than generally.
We note that all of the cited cases postdate the amendment of the Michigan Constitution in 1908, so that at the time of those decisions there was no longer any arguable constitutional prohibition on the amendment of the common law by the judiciary. See our discussion earlier in this opinion.
The Court in Bay Trust found persuasive the earlier holding of our Supreme Court in Jackson v Mason,
The Legislature subsequently adopted legislation providing for post-majority support, effectively superseding the holding in Smith. See Rowley v Garvin,
We will not endeavor to address the various facets of the issue that might be considered. The precise issue before us in this case may, however, only be one. Others may include, for example, whether “fractions of a day” should he considered, whether one is “over” an age before reaching one’s next birthday, and whether any difference exists between one who has “attained” the age in question versus one who is “not less than” the age in question, or other formulations of this concept.
We express no opinion regarding the effect on remand in this case of the Miller factors, although we note from the record the approximately one- to two-hour differential from the time of the crime to the time of defendant’s attaining the age of 18.