STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
HON. Denise Langford-Morris
-vs-
Circuit Court
KEVIN AARON LANDAU, No. 2012-20227
Defendant-Appellant. District Court
No. 2011-20227
________________________________/
PEOPLE’S ANSWER TO
DEFENDANT-APPELLANT’ S MOTION FOR STAY OF PROCEEDINGS
Now comes Jessica R. Cooper, Prosecuting Attorney in and for the County of Oakland, by Joshua J. Miller, Assistant Prosecuting Attorney, and respectfully responds to Defendant’s motion before this Honorable Court as follows:
- The People admit the allegations contained in Paragraph One.
- The People neither admit nor deny the allegations contained in Paragraph Two.
- The People neither admit nor deny the allegations contained in Paragraph Three.
- The People deny the allegations contained in Paragraph Four. The Court Rules cited by Defendant apply, respectively, to the granting of a bond pending appeal following a criminal judgment and the Court’s ability to condition a stay pending appeal on the filing of a bond. They neither “require” that a request for a stay be filed in this Court nor “authorize” the Court to order a stay. Rather, the decision to stay proceedings in this second pre-trial, interlocutory appeal is entirely within this Court’s discretion. See, e.g., People v Bailey, 169 Mich App 492, 499; 426 NW2d 755 (1988) (noting that a court’s decision to grant a motion for a stay of proceedings is discretionary).
- The People neither admit nor deny the allegations contained in Paragraph Five.
- The People neither admit nor deny the allegations contained in Paragraph Six. Defendant cites to federal case law regarding stays and state case law regarding preliminary injunctions which the People do not believe is applicable in the instant case.
- The People neither admit nor deny the allegations contained in Paragraph Seven. The name of the 911 caller is listed in the police report and there is absolutely no indication this call was some type of fabrication. There is also no evidence this individual cannot be located.
- The People neither admit nor deny the allegations contained in Paragraph Eight. MCL 257.643 states that, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon, and the condition of, the highway.” An o individual who violates MCL 257.643 has committed a civil infraction. Id. MCL 257.643 is not “fictitious” as alleged by Defendant, and was part of the basis of the officer’s stop of the vehicle.
- The People neither admit nor deny the allegations contained in Paragraph Nine. The officer’s implementation of MCL 257.643 was reasonable and this is not a matter of first impression. MCL 257.643 indicates that a vehicle cannot follow “more closely than is reasonable and prudent,” and the fact that Defendant was only two car lengths away and had to apply his brakes indicates he was following closer than was reasonable given the circumstances.
- The People neither admit nor deny the allegations contained in Paragraph Ten. Defendant has preserved this issue for appeal in the event that he is convicted, and, if he is acquitted, the point is moot. There is no irreparable harm.
- The People deny the allegations contained in Paragraph Eleven. The People must prove beyond a reasonable doubt that Defendant is guilty of this offense. The more time that passes, the harder it will be for the witnesses to recall the details of this incident, and the more onerous the People’s burden becomes. The People note that Defendant-Appellant has previously been before this Court on a separate pre-trial application for leave to appeal, Docket No. 2011-DA9388-AR, which this Court dismissed in an order dated August 17, 2011, for failure to comply with the Michigan Court Rules concerning appeals. The new, pending application before this Court can only serve to further increase the People’s burden.
- The People neither admit nor deny the allegations contained in Paragraph Twelve.
- The People neither admit nor deny the allegations contained in Paragraph Thirteen. The People do not believe this is a matter of first impression, and do not believe there is any benefit to the public from staying these proceedings.
WHEREFORE, Jessica R. Cooper, Prosecuting Attorney in and for the County of Oakland, by Joshua J. Miller, Assistant Prosecuting Attorney, respectfully requests that this Court deny Defendant-Appellant’s Motion to Stay Proceedings.
Respectfully submitted,
JESSICA R. COOPER
PROSECUTING ATTORNEY
COUNTY OF OAKLAND
THOMAS R. GRDEN
CHIEF, APPELLATE DIVISION
BY: /s/ Joshua J. Miller____________
(P75215)
Assistant Prosecuting Attorney
Oakland County Prosecutor’s Office
1200 North Telegraph
Pontiac, Ml 48341
(248) 858-5435
DATED: February 24, 2012
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
Hon. Denise Langford-Morris
-vs-
Circuit Court
KEVIN AARON LANDAU, No. 2012-DA9591-AR
Defendant-Appellant. District Court
No. 2011-20227
________________________________/
STATE OF MICHIGAN)
SS)
COUNTY OF OAKLAND)
PROOF OF SERVICE
Joshua J. Miller, being duly sworn, deposes and says that on the 24th day of February, 2012, he served a copy of People’s Answer to Defendant-Appellant’s Motion to Stay Proceedings upon Arthur H. Landau, attorney for Defendant-Appellant, at 29777 Telegraph Rd. Ste. 2500, Southfield, MI 48034, by service through the Wiznet filing system.
Further deponent saith not.
/s/ Joshua J. Miller_________
JOSHUA J. MILLER, deponent
Subscribed and sworn before me,
This 24th day of February, 2012.
/s/ Michelle Renee Leismer________________
MICHELLE RENEE LEISMER, Notary Public
Oakland County, Michigan
Acting in the County of Oakland
My Commission Expires: 3/29/2017