Is the MSP Trooper Sammy Semour case going back to court???

[AQUAMAN]

The LDN released an article today that Judge Nellis just ruled that Judge Wadel erred in the Trooper case of DUI on Sammy Semour. This opens the gates again, not to prosecute on the DUI, but for Impaired driving or OWI prosecution. Question is this: will Spaniola's office bring this case back to court? Or will the former errant ruling, per Nellis, be ignored? Seems the breathalyzer tests were not illegal, and other technicalities aren't binding to this case. (Tried to post the article but browser won't allow me right now.) Thanks.

EDITOR ADD:  From the COLDnews article by Steve Mulherrin

Judge Jeffrey C. Nellis has ruled that Judge Peter Wadel erred in not allowing jurors to hear the results of a Breathalyzer test in the drunk driving case against Trooper Sammy Seymour. 

Seymour was arrested by Ludington Police Sgt. Steve Wietrzykowski Jan. 17.

Following a mistrial in the case, prosecutors appealed several decisions by Wadel, including that he disallowed use of statements by Seymour requesting “professional courtesy” or a ride home. Wadel also disallowed the use of the horizontal gaze nystagmus test because Wietrzkowski could not recall the exact order in which he tested the eyes. 

Finally, Wadel threw out the results of the Breathalyzer test after he said Wietrzykowski did not observe Seymour for long enough during a mandated observation period prior to Seymour taking the test at the Mason County Sheriff’s Office. 

When defense attorneys Mike Nichols and Gary Springstead asked for a directed verdict of not guilty on Unlawful Blood Alcohol Level (UBAL) — commonly called drunk driving per se — Wadel granted it.

Nellis’ ruling means that prosecutors can re-try Seymour on drunk driving charges, but only on “operating while intoxicated” or “impaired driving.” Nellis ruled that Wadel’s directed verdict means that Seymour has been tried on UBAL, meaning his Fifth Amendment protection against double jeopardy applies. 

Mason County Prosecuting Attorney Paul Spaniola said he received the ruling and he and his team of Glenn Jackson III and John Middlebrook are reviewing their options. They could appeal any element of Nellis’ ruling to the Michigan Court of Appeals.

Breath test

Nellis, a probate judge ruling in 51st Circuit Court, quoted substantial case law in his ruling. Wadel’s original ruling on the Breathalyzer focused on Wietrzykowski not observing Seymour for a substantial enough period of the mandated observation period. Nellis ruled that Wietrzykowski not following a rule to Wadel’s satisfaction isn’t the same as not following the law.

“Our case deals with the application of MCL257.625a(6) (g), which indicates that the Department of State Police shall promulgate uniform rules for the administration of chemical tests, ‘for the purpose of this section.’ The usual rules of statutory construction also apply to the interpretation of the administrative rules.’ People v. Tomko, 202 Mich App 673, 676 (1993).

“Nowhere in MCL 257.625 16(g) is there found language which indicates that a violation of the administrative rules will result in suppression of chemical test evidence. Further, the administrative rule itself does not provide for such a remedy. Keep in mind that in this case we are dealing with the interpretation of another subsection of MCL257.625a, just as was the case in Anstey and Wager. Also, these Supreme Court cases, which were both decided after Willis, Wujkowski, Brougner and Rexford. As such, it is clear that suppression of Mr. Seymour’s breath test results, despite the problems with the observation period, is not merited in this case.

“Rather, as in Anstey, the appropriate remedy, after further development of the facts and at the request of defense counsel, would be for the trial court to craft an appropriate instruction relative to the existence of the administrative rule regarding the observation period, and that the jury may determine whether a violation of the rule was established and what weight to give to this fact. The defense would also be free to cross examine the officer as to his conduct of the observation period and present any other relevant evidence as to the proper conduct of the observation and test and how those test results may be compromised as a result.

“Given these Michigan Supreme Court holdings and the fact that suppression of the evidence was not authorized by the Legislature in MCL257.625a, as described above, the ruling of the trial court as to the suppression of the Breathalyzer test results is reversed.”

 

Double jeopardy

Wadel had granted a directed verdict on UBAL, which the prosecutors argued was an improper action because thanks to changes in Michigan law, it is not its own charge, but rather a “theory” under which prosecutors can charge drunken driving. Jackson had argued that prosecutors simply charge the whole OWI law and then pursue conviction under either operating while intoxicated, UBAL or impaired driving. He said Wadel couldn’t grant a verdict on a theory after dismissing the breath test.

Nellis disagreed.

“On the second day of trial, after suppressing breath test results, Judge Wadel considered a defense motion for a directed verdict on the OWI charge. That motion was denied. However, Judge Wadel granted a directed verdict as to UBAL. The People maintain that this determination was in error, as per MCR 6.419, courts only have the authority to grant a directed verdict as to a “charged offense,” and not a theory of a case. It is Plaintiff’s contention that UBAL is only a theory.”

Nellis quoted the Michigan Supreme Court’s ruling in Evans v. Michigan in his ruling.

“… it has been half a century since we first recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’ Fong Foo v. United States, 369 U.S. 141, 143 (1962) (per curiam). A mistaken acquittal is an acquittal nonetheless, and we have long held that ‘[a] verdict of acquittal…could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thus violating the Constitution.’ United States v. Bell, 163 U.S. 662, 671 (1896) …”

“Following the rationale of Evans, it really does not matter if the trial court incorrectly determined that UBAL is a charge rather than a theory. The bottom line is that Defendant cannot be tried for driving with an unlawful blood alcohol level, a second time, without putting him twice in jeopardy. This would violate the 5th Amendment of the U.S. Constitution. That really should be the end of the inquiry.

“This Court is not convinced that the charge/theory distinction makes any significant difference under Evans, or that UBAL is merely a theory. The statute defines operating while intoxicated in two different ways. Under MCL 257.625(a) this includes operating a motor vehicle under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance. Under MCL 257.625(b), (UBAL, or the per se rule) having a blood alcohol content of .08 or more, meets the definition. The People are not precluded from prosecuting the defendant under (b). However, on remand back to 79th District Court for trial, the prosecutor will still be able to argue that Defendant violated subsection (a), and can introduce all admissible evidence, including the breath test results (as outlined in Issue 3 above), in its attempt to prove that Defendant drove while under the influence.

“In summary and consistent with the holding in Evans, the trial court’s decision to grant a directed verdict as to UBAL is not subject to review and is affirmed.”

 

Statements

Nellis said that Wadel did not abuse his discretion when he disallowed certain statements made by Seymour during his arrest as not relevant. Seymour requested “professional courtesy,” as well as asking if Wietrzykowski would just let him walk home.

Wadel had expressed concerns that the value of Seymour’s statements to Wietrzykowski were more prejudicial than probative — in other words, they did more to identify Seymour as a police officer than they did to potentially help in prosecution. Nellis concurred with that.

 

HGN test

Nellis agreed with Wadel that Wietrzykowski’s horizontal gaze nystagmus test of Seymour could not be used.

“Under these circumstances, especially in the light of the officer’s admission that he did not specifically remember the order in which he administered the test, this Court agreees with the trial court that the People did not lay a sufficient foundation to allow for the introduction of the HGN test results, because the Plaintiff did not meet its burden of proving the test was properly performed. As such, the trial court did not abuse its discretion in this instance, nor was its determination clearly erroneous. Therefore, the trial court’s ruling to keep out the HGN results is affirmed.”

[XLFD]

According to the MCP, Prosecutor Spaniola intends to retry the case. 

I agree with Nellis' ruling, however, I believe it is technically wrong to exclude statements made by Seymour as irrelevant.  If the prosecution plays the in-car video of the traffic stop, everything Seymour said and did should be available for the jury to see and hear, likewise if Officer Steve testifies under oath as to what was said, why suppress it?  It may have some prejudicial content about a charge that isn't leveled, but it is the record, and it helps show that Sammy thought he may have been driving drunk.

[AQUAMAN]

That MCP statement from the Prosecutor's office came earlier when the mistrial occurred. How about now? Only thing I found is that it's "under review". I'd be really surprised this goes to trial again, strictly based on whom this defendant is, his position in LE, and the history of Mason County Courts and fellow public servant courtesies to one another. Btw, what's the current status of Trooper Seymour? Still doing okay with MSP and behaving well? Maybe he's been through enough and learned his lesson? What's the verdict now from Torch members? Retrial, or status quo?

[Willy]

I have to hand it to Mr. Mulherrin. I didn't think there was anyone on the LDN staff that was capable of writing such an in depth and concise article. As far as a retrial, I don't think it's really necessary. The prosecution had it's chance to get a conviction but failed, so anything after that is just sour grapes. If the defendant had been charged with a capital offense then, yes, appeal and retry until the bitter end. Sammy's name has been dragged thru the mud enough so that his reputation will forever be tarnished and my bet is that the bad press will affect him more than anything else that could be done to him. A retrial would be a waste of tax dollars.