People v. GURK

Order Michigan Supreme Court

Lansing, Michigan

October 13, 2006 Clifford W. Taylor,

Chief Justice

130913 Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Maura D. Corrigan

PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.

Plaintiff-Appellee, Stephen J. Markman,

Justices

v SC: 130913

COA: 257339

Wayne CC: 04-000868-01

THOMAS EDWARD GURK,

Defendant-Appellant.

_________________________________________/

On order of the Court, the application for leave to appeal the February 16, 2006

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

CORRIGAN, J., concurs and states as follows:

I agree with the Court’s order to deny defendant’s application for leave to appeal.

I write separately to underscore the Court of Appeals’ appropriate refusal to rely on

Valentine v Konteh, 395 F3d 626 (CA 6, 2005). The Court of Appeals correctly held that

lower federal court decisions are not binding on state courts when it distinguished

Valentine from the present case. People v Gurk, unpublished opinion per curiam of the

Court of Appeals, issued February 16, 2006 (Docket No. 257339), slip op at 2. Further,

more than simply being distinguishable, I conclude that Valentine was wrongly decided.

I agree with Judge Ronald Gilman’s partial dissent in Valentine that “no Supreme Court

case has ever found the use of identically worded and factually indistinguishable

indictments unconstitutional.” 395 F3d at 639 (emphasis original).

Under a rule restricting prosecutions to exceedingly narrow and

precise charges, a sex-abuse charge would presumptively be limited to a

single instance of abuse, despite clear evidence of multiple occasions,

unless the child can remember the specific time and place details for each

occurrence. Such an outcome is contrary to judicial precedent and is not

constitutionally required. [Id. at 641.]

2

Additionally, defendant made no motion challenging the specificity of the charges

in the circuit court. Reviewing for plain error under People v Carines, 460 Mich 750,

764 (1999), the Court of Appeals correctly held that defendant “failed to show that the

information or his convictions for five counts of CSC II violated any of his due process

rights because the information, paired with the preliminary examination, provided him

with constitutionally adequate notice of the charges against him . . . .” Gurk, supra, slip

op at 3.

Moreover, under Carines, the alleged error was not outcome-determinative.

During the bench trial, defendant contended that nothing of a sexual nature ever occurred

with his eleven-year-old step-daughter. His defense did not depend on a differentiation

of the counts. Because the information, combined with the proofs at the preliminary

examination, gave defendant constitutionally sufficient notice of the charges, I join the

order denying leave to appeal.

CAVANAGH, J., would grant leave to appeal.

KELLY, J., dissents and states as follows:

I would grant leave to appeal because this case involves an important

constitutional question. Contrary to Justice Corrigan’s contentions, the Sixth Circuit

Court of Appeals decision in Valentine v Konteh1 was well reasoned. And, because this

case and Valentine both concern the application of the Sixth and Fourteenth amendments

of the federal constitution,2 we should give careful consideration to the federal court’s

reasoning.

In this case, defendant was charged with and convicted of five counts of second-

degree criminal sexual conduct. But the complainant was not able to indicate when the

alleged abuse occurred. The extent of her specificity was that it occurred five or six

times while she was in the fifth grade. The complaints against plaintiff were identical.

There was no distinction between the various charges.

Valentine dealt with a strikingly similar situation. The court stated:

The problem in this case is not the fact that the prosecution did not

provide the defendant with exact times and places. If there had been

singular counts of each offense, the lack of particularity would not have

presented the same problem. Instead, the problem is that within each set of

20 counts, there are absolutely no distinctions made. Valentine was

1

395 F3d 626 (CA 6, 2005).

2

US Const, Ams VI and XIV.

3

prosecuted for two criminal acts that occurred twenty times each, rather

than for forty separate criminal acts. In its charges and in its evidence

before the jury, the prosecution did not attempt to lay out the factual bases

of forty separate incidents that took place. Instead, the 8-year-old victim

described “typical” abusive behavior by Valentine and then testified that

the “typical” abuse occurred twenty or fifteen times. Outside of the

victim’s estimate, no evidence as to the number of incidents was presented.

Given the way Valentine was indicted and tried, it would have been

incredibly difficult for the jury to consider each count on its own. The jury

could not have found Valentine guilty of Counts 1-5, but not Counts 6-20.

Nor could the jury have found him guilty of Counts 1, 3, 5 and 7, but not

the rest. Such a result would be unintelligible, because the criminal counts

were not connected to distinguishable incidents. The jury could have

found him “not guilty” of some of the counts only if they reached the

conclusion that the child victim had overestimated the number of abusive

acts. Just as courts should not permit abuse prosecutions to be defeated due

to the limited ability of child victims to remember precise temporal details,

they should for similar reasons not permit multiple convictions to stand

based solely on a child’s numerical estimate. [Valentine, supra at 632-

633.]

The court concluded:

The prosecutors in this case, however, abused this wide latitude by piling

on multiple identical counts. Numerous charges cannot be made out

through estimation or inference. Instead, if prosecutors seek multiple

charges against a defendant, they must link those multiple charges to

multiple identifiable offenses. Due process requires this minimal step.

Courts cannot uphold multiple convictions when they are unable to discern

the evidence that supports each individual conviction. [Id. at 636-637.]

Valentine was correctly decided. When applying that decision to the case before

us, we see that the prosecution has done little more than prove a single offense. But

defendant received five convictions and penalties as a result of this single proof.

Contrary to Justice Corrigan’s claim, this does rise to the level of plain error. Due

process concerns are present. The case concerns defendant’s ability to submit a defense

to the charges against him.

The Sixth and Fourteenth amendments require adequate notice of a charge against

a defendant. People v Jones, 395 Mich 379, 388 (1975). Without adequate notice of

each alleged offense, defendant could not raise a defense against each of them. If the

claims against him contained more specificity, perhaps defendant could have presented

specific alibi defenses or could have explained why an individual claim was improbable.

Because of the lack of specificity, the only defense that defendant could assert was that

4

no abuse ever occurred. That is, this error pushed defendant into an all-or-nothing box.

Nearly all other defenses were cut off.3

Defendant’s convictions for indistinguishable offenses raise serious double

jeopardy concerns. The prosecution was able to bring as many charges against him for

the period in question as it chose. In the future, if the complainant remembers a specific

incident during the time she was in the fifth grade, the prosecution is free to bring a new

charge against defendant. Because of the lack of specificity in the earlier charges,

defendant could never prove that he had already been convicted of the crime alleged in

the new charge. His convictions offer him no protection. He could be convicted of the

same charge over and over again.

No one is claiming that extreme specificity is required in child abuse charges. All

that is claimed is that there must be enough specificity to distinguish one charge from

another. The prosecution should not be allowed to pile on charges that it could not prove

in separate proceedings. There must be a line drawn between unnecessary specificity and

a complete lack of specificity in charges. I would grant leave to appeal to enable the

court to draw that line.

3

In fact, because of the lack of specificity, defendant could never explain what other

defenses he lost.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

October 13, 2006 _________________________________________

p1010 Clerk