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. 2011-20227
Defendant-Appellant.
District Court
No. 2011-20227
__________________________________/
PEOPLE’S ANSWER TO DEFENDANT-APPELLANT’ S
MOTION FOR HEARING ON APPLICATION FOR LEAVE TO APPEAL
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 admit that Defendant has filed motions to suppress evidence, but deny the remaining allegations contained in Paragraph Two.
- The People admit the allegations contained in Paragraph Three.
- The People admit the allegations contained in Paragraph Four.
- The People neither admit nor deny the allegations contained in Paragraph Five, and leave Defendant to his proofs. The People note that, as of the date of filing of this Answer, the People have received no copies of any transcripts in this matter, nor is there any indication apparent to the People that any transcripts in this matter have been filed with this Honorable Court.
- The People admit the allegations contained in Paragraph Six, but deny that interlocutory appellate review is required here, as the issues raised by Defendant are or can be preserved for appeal at trial. If he is acquitted, the point is moot.
- The People admit that Defendant filed an appeal with this Honorable Court on February 21, 2012, but deny that Defendant filed a proper application for leave to appeal. On February 21, 2012, Defendant filed a document entitled “Claim of Appeal,” and Defendant’s supporting brief, though purporting to be in support of leave to appeal, improperly asserts that this court has jurisdiction in this matter pursuant to MCR 7.101. The district court’s order that Defendant now wishes to CN appeal was an interlocutory order. See People v Bloyd, 96 Mich App 264, 266; 292 NW2d 546 (1980); People v Kulick, 57 Mich App 126, 129; 225 NW2d 709 (1974). Therefore, any jurisdiction this Honorable Court has in this interlocutory appeal is pursuant to MCR 7.103. 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 People neither admit nor deny the allegations contained in Paragraph Eight, and leave Defendant to his proofs.
- The People deny the allegations contained in Paragraph Nine.
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.
Moreover, the officer’s implementation of MCL 257.643 in stopping Defendant’s vehicle 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.” Neither published nor unpublished Michigan cases have ever suggested the standard outlined by MCL 257.643 is vague. See Poplawski v Huron Clinton Metropolitan Authority, 78 Mich App 644; 260 NW2d 890 (1977); Lucas v Carson, 38 Mich App 552; 196 NW2d 819 (1972); People v Frost, unpublished per curiam opinion of the Court of Appeals, issued July 19, 2011 (Docket No. 298702) (deferring to the trial court’s credibility determination on CN the officer’s testimony regarding whether the defendant was following too closely); People v Sanders, unpublished per curiam opinion of the Court of Appeals, issued September 27, 2011 (Docket No. 298507) (same). Furthermore, o such statutes from other states similar to MCL 257.643 have been “uniformly upheld against constitutional challenges.” United States v Hunter, 663 F3d 1136, 1142 (CA 10, 2011) (citing cases from multiple jurisdictions upholding “reasonable and prudent” statutes and affirming the constitutionality of a Kansas statute virtually identical to MCL 257.643).
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 trial court apparently found the officer’s testimony on whether Defendant was following at a reasonable and prudent distance to be credible, and that determination should be afforded deference by a reviewing court. See People v Geno, 261 Mich App 624, 629; 683 NW2d 687 (2004); Sanders, supra at 3. To the extent that Defendant argues that the officer’s subjective reasons for stopping Defendant’s vehicle are unclear, those reasons are irrelevant where there were objective and reasonable grounds to stop the vehicle. People v LaBelle, 478 Mich 891 (2007), citing United States v Whren, 517 US 806; 116 S Ct 1769; 135 L Ed 2d 89 (1996).
- The People neither admit nor deny the allegations contained in Paragraph Ten, and leave Defendant to his proofs.
- The People neither admit nor deny the allegations contained in Paragraph Eleven, and leave Defendant to his proofs.
To the extent that Defendant addresses in Paragraph Eleven the postQ) traffic-stop events that led to his arrest, the People argue that they are irrelevant to this appeal, where the crux of Defendant’s first question presented and first o argument heading in his brief is whether or not there was probable cause to stop his vehicle.
As to Defendant’s argument of judicial bias, the People again note as they did in their Answer to Paragraph Five, supra, that the People have received no transcripts and have no indication that any transcripts have been filed with this Honorable Court. To the extent that any transcript is available to this Court while evaluating this matter, the People argue that there is a heavy presumption of judicial impartiality. People v wells, 238 Mich App 383; 605 NW2d 374 (1999).
A court’s allegedly improper statements must be assessed in light of the whole record, rather than taken piecemeal out of context to establish judicial bias. People v Paquelle, 214 Mich App 336, 340-41; 543 NW2d 342 (1995). A court’s efforts to control the proceedings, and even expressions of impatience, dissatisfaction, annoyance, or anger alone do not demonstrate bias. Liteky v United States, 510 US 540, 555-56; 114 S Ct 1147; 127 L Ed 2d 474 (1994); Paquette, supra at 341.
The People add that they 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 again note that Defendant-Appellant has previously been before this Court on a separate pre-trial application for leave to CN 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 appeal before this Court can only serve to further increase the People’s burden if this Honorable Court grants Defendant an interlocutory appeal. The issues raised by Defendant are or can be fully preserved for appeal at trial. If he is acquitted, the point is moot. Interlocutory appellate review is unnecessary here.
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 dismiss Defendant-Appellant’s appeal.
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, MI 48341
(248) 858-5435
DATED: March 9, 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 9th day of March, 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 and by depositing same in an envelope with the Oakland County mailing pick-up service.
Further deponent saith not.
/s/ Joshua J. Miller_________
JOSHUA J. MILLER, deponent
Subscribed and sworn before me, This 9th day of March, 2012.
Is/ Michelle Renee Leismer
MICHELLE RENEE LEISMER, Notary Public
Oakland County, Michigan
Acting in the County of Oakland
My Commission Expires: 3/29/2017