MR. DUNGAN: Your Honor, as far as the civil forfeiture case is concerned, it’s incumbent upon the prosecutor to show that the individual who owned the horses violated a criminal statute, although the burden is by a preponderance of the evidence as opposed to beyond a reasonable doubt in a criminal statute. The individual who owns the horses that the prosecutor is seeking to forfeit is Jim Henderson. Now, as far as problems that were going on out on that farm, we’ve heard Matt Mercier’s name a lot of times, we’ve heard that he’s the one in charge of the day to day operations of that farm, he’s the one in charge of vet care, taking care of them, feeding them, providing them with shelter, providing them with food, providing them with water. That’s been established based on the prosecutor’s own witnesses. The record is absolutely void of any evidence that Mr. Henderson is anything more than what’s considered to be an absentee owner, similar to what we heard from Miss Steenrod when she testifies, that oftentimes persons will board their horses with other persons, put other persons in charge of the daily care of their horses, either because they don’t want the horses on their property or they don’t want to deal with the work of taking care of horses on a daily basis. So while I have no doubt the court’s heard testimony of farm conditions and horse conditions that the court may not think is necessarily satisfactory, it’s been established that Mr. Mercier is the one who is in charge of all of those things. Mr. Henderson is nothing more than a absentee owner. You cannot hold him responsible for the actions of his caretaker. The criminal statute does not provide for vicarious liability, the civil forfeiture statute does not provide any liability for any vicarious liability for what’s done under someone else. I’d ask the court to take a look at an opinion which is People versus Johnson, and the citation for that is 104 Mich App 629. It’s not a forfeiture case, but it’s an animal cruelty case involving horses. The situation that happened in Johnson is--
MS. LAMP: Your Honor, if I may just ask Mr. Dungan if he could provide a copy of that if he’s going to reference that. That would be probably helpful to me and perhaps to the court.
MR. HURST: Let the record reflect a copy is being provided.
MS. LAMP: Thank you.
THE COURT: 104?
MR. DUNGAN: Yeah.
THE COURT: 269?
MR.
DUNGAN: 104—-yes, 104
THE COURT: 629.
MR. DUNGAN: What happened in that case, Your Honor, is there was a father and son team that owned some horses. The son was David Johnson, the father was William. It was established at the trial that the son David was solely responsible for the care of the horses, in taking care of them on a day to day basis, but that the father had been on the farm on several occasions to ride the horses and it’s possible he may have fed or watered them at those times. In October 24 it says the Humane Society comes out because they were notified by neighbors about potentially sick horses on the property, they found four emaciated horses. The horses were diagnosed as suffering from starvation, parasitism, similar to this. They both go to trial, they both get convicted. So Dad William Johnson files an appeal, essentially arguing that he cannot be found guilty of that because the horses were not in his custody, it was not his day to day responsibility to take care of them, he had delegated that to someone else. The Court of Appeals did reverse that conviction, finding that it was apparent among the owners David Johnson the son was solely responsible for the care of the animals. Although William Johnson rode the horses on several occasions during the summer of 1977 and may have fed and watered them at those times, there was no evidence that they were in his charge or custody, therefore the trial court erred in refusing to dismiss all charges against defendant William Johnson. So what we have here, Your Honor, really in the forfeiture context, is something that’s not a whole lot different than what we see in a forfeiture under the Controlled Substances Act. For example, if I had a car titled in my name and my name alone, I let my wife drive it and she gets pulled over by the state police with ten kilos of cocaine in the trunk and they want to forfeit it, they’re going to have to prove because it’s titled to me that I had some knowledge or played some part in putting that cocaine in the trunk. This is really, I guess under the drunk driving forfeiture statute it’s the same thing. If I loan my car out to an individual who picks up their third offense drunk driving in it and I had no knowledge that they were going to go out drinking that night, again, my interest in the car is not forfeited. So what the court is left with is a situation where the court’s been presented with evidence that Mr. Mercier was in charge of the day to day operations of what happened on that farm, that the conditions that developed on that farm, particularly with the horses, are things that happened primarily over the wintertime. The testimony was that it would take a couple to maybe three months for these kind of conditions to develop. Not one single person has got Mr. Henderson out there on that farm and the prosecution’s own witnesses have established who was in charge of the day to day care. That was Mr. Mercier, not Mr. Henderson. So on that basis, Your Honor, we’d ask the court to grant a directed verdict on the civil forfeiture case.
THE
COURT: Have you read this case, Miss
Lamp?
MS. LAMP: Your Honor, they provided me with a copy but
I am also trying to listen to the argument, so if we could pause for a few
minutes and give me a moment to read it, I would greatly appreciate it.
(Court looking at statute)
THE COURT: Do you want some time to investigate it now?
MS. LAMP: You mean reconvene in—-
THE COURT: Shepardize the case and---
MS. LAMP: I would, Your Honor, if I could.
THE COURT: I’ve got some thoughts on it, but I’d just as soon wait until--
MS. LAMP: I would like to. It’s based on an old statute too, Your Honor, so I would--
THE COURT: It has been appealed, I know that. Why don’t you go see what you can find out now?
MS. LAMP: Do that now, Your Honor? Thank you.
THE COURT: We’ll reconvene at five thirty.
MS. LAMP: Thank you, Your Honor.
(At 5:12 p.m. recess)
(At 5:33 p.m. reconvened; Court, counsel, parties
present)
THE COURT: Okay, we’re back on the record with People versus Henderson and Mercier. The parties are here. Miss Lamp, have you had the opportunity to review it and give some information?
MS. LAMP: I have, Your Honor. May I respond?
THE COURT: Sure.
MS. LAMP: Well, firstly, Your Honor, the statute that the case law is based on is MCL 752.221 which has been repealed. And even if we were to try to extrapolate the rules from the old statute to the new statute, looking at the old statute, the wording for a conviction requires that whoever overrides, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or cruelly kills or causes or procures to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed any animal and whoever having the charge or custody of any animal either as an owner or otherwise, inflicts unnecessary cruelty upon the same or willfully fails to provide the same with proper food, drink or shelter or protection from the weather is guilty of a misdemeanor. And that is the old statute. But the statute that we have now, Your Honor, reads very differently and has changed significantly than what was in effect in 1981. Our current statute reads that an owner, possessor or a person having the charge or custody of an animal shall not do any of the following, and the following one that we are proceeding on is the failure to provide animal care, animal, adequate care. And so I think that obviously distinguishes the two cases, showing that our statute has now been revised to include the owner of that and or person having the charge and custody of the horse. So also note, you know, there have been other significant changes such as torturing and killing are now felonies. Mutilating, felony.
MR. DUNGAN: May I respond--
MS. LAMP: So I think it was obvious that the Legislature’s intent in revising the statute was to make it a crime for this very type of behavior. And I disagree with Mr. Dungan that there has not been evidence that Mr. Henderson has had charge or custody of the animals anyways. But even putting all of that aside, it’s not applicable and the statute now is distinguished from the old one.
THE COURT: Mr. Dungan?
MR. DUNGAN: She’s really making a form over substance argument.
THE COURT: Formal who?
MR. DUNGAN: Form over substance.
THE COURT: Oh.
MR.
DUNGAN: If you look at the old statute
as it’s cited in the Johnson case, it says don’t torture, it says feed them,
make sure they got water, make sure they got shelter. I mean, when you break it down to basics,
that’s what it’s talking about, don’t be cruel, don’t torture, food, water,
adequate shelter. If you don’t, you’re
guilty of a crime. Under the old statute
who does that apply to. It says whoever
having the charge or custody of any animal, either as owner or otherwise. How is that any different from the new
statute, although it’s broken up? The
new statute says an owner, possessor or person having the charge or
custody. How is that anything different
from the old statute that says either a person, charge or custody either as
owner or otherwise? There’s no
difference. The old statute and new
statute apply to the same people, the people who did the crime. And the new and the old statute both prevent
and prohibit the same activity, don’t torture, don’t cruel and make sure you
provide them with adequate care. There’s
nothing in this statute that says an owner is strictly liable or an owner is
vicariously liable for the person he’s put in charge of taking care of his
animals. They both say the same thing in
different ways. It’s just, the new one’s
just a little more broken up with a
little more definitions, but there’s nothing in there that says I will hold you
responsible for the acts of another. We
don’t do that in
THE COURT: Miss Lamp?
MR. SCHROTENBOER: If I could respond, Your Honor, thank you. No, Defendant is wrong on this, no. Look at the statute. It says—-
THE
COURT: Which one?
MR. SCHROTENBOER: The old statute. Whoever does any of these things. If you look at it, the Court of Appeals
looked at it and said this does not place an affirmative duty on someone. What this does is it requires that the person
actually have had charge or custody. It
doesn’t nec—-it doesn’t apply to an absentee
owner. But if you look at the new
statute, it breaks it down.
THE COURT: What section are we at now?
MR. SCHROTENBOER: Okay. Section.
THE COURT: Fifty?
MR. SCHOTENBOER: Yeah, 750.50, Section Two. It says an owner shall not do any of the following: fail to provide animal with adequate care. That creates an affirmative requirement on the owner’s part to provide an animal with adequate care. It’s not a vicarious liability situation, no, he has an affirmative duty. If it is not done, he is guilty of this crime. Is this a misdemeanor? This part a misdemeanor?
MS. LAMP: That part is a misdemeanor.
MR. SCHROTENBOER: Yes. Which is just a misdemeanor. That’s how it breaks up. The Court of Appeals was right back in 1981, but that was the old statute. The new statute, common sense reading, does not apply to this alleged situation even assuming that Mr. Henderson had nothing to do with it other than he just happened to own it.
THE COURT: Are you saying that this is a strict liability statute?
MR. SCHROTENBOER: No.
MR. DUNGAN: Your Honor, he didn’t read it right. It doesn’t say an owner shall not fail to provide adequate care. It says owner, possessor, or, it doesn’t say and, it says or person having the charge or custody of an animal. There’s nowhere in here where you read straight on an owner shall not fail to provide adequate care. He didn’t read it right.
THE COURT: I think he was reading it in the context of affirmative steps--
MR. DUNGAN: Of a—-
MR. SCHROTENBOER: Yes.
THE COURT: Steps, in that context.
MR. SCHROTENBOER: It says an owner, possessor or person having the charge or custody of an animal, that’s right--
MR. DUNGAN: It’s or, not and.
MR. SCHROTENBOER: And I cut out the extraneous words in here, so it says an owner, three periods, shall not do any of the following, fail to provide an animal with adequate care. That’s what it says. That’s what the charge is, and that’s it. The statute is different from what it was, Johnson no longer applies.
THE COURT: Well, that’s one distinction. I’m not sure it may be one other difference but to me Johnson, first of all, as Mr. Dungan pointed out, it is a criminal case versus a civil action which the forfeiture is in terms of burden of beyond a reasonable doubt versus preponderance of the evidence that’s needed for a civil action, a forfeiture action, and since they didn’t address that, maybe they would have said well, that might have been enough in and of itself. It doesn’t sound like it, but maybe they could have. I don’t know if the state argued in Johnson or in the Rhode Island case aiding and abetting, maybe that wouldn’t have made a difference either. But what certainly makes a difference to the court here which is different in Johnson is here we have, in Johnson we have a situation where the horses are not even kept on the owner’s property or someone in possession or some other person having charge and custody of your animal in the context of Mr. Henderson. I think that’s a tremendous distinction from the case we have here. In this case--in Johnson the testimony was is, well, I think he came over and he rode a few times and he might have fed or watered, I think I read that somewhere.
MR. SCHROTENBOER: Yes, Your Honor. It’s in there.
THE COURT: And that’s, and the Court of Appeals felt that wasn’t enough. Oh, here it is. On several occasions during the summer of ’77 he may have fed and watered at those times. May have, doesn’t say he did. The fact that he comes over and rides them, he’s going to someone else’s property to do that and then he leaves. I don’t like that fact, you can’t just leave some boob in charge and say, well, you know, you take care of them and I’m never going to be responsible when you mess them up, but I do want to come over any time I want and ride them, and then leave, and leave blindly. Maybe Johnson is proper in that sense, but I think that’s a lot different than what we have here when we have someone else’s property, they’re kept on someone else’s property. I think that’s a valid distinction.
MR. DUNGAN: That that would impose--
THE COURT: So we’re not having proof that they, that he didn’t have charge or custody. The statute does read a little different as far as the owner, but I don’t know that that’s going to mean in and of the person itself, if the person is the possessor or person having charge or custody. Still on the same property, the horses are still on the same property where they were all the time. Miss Knott testified that she went over to the property and she talked with, she talked to, well, she talked to Mercier--
MR. DUNGAN: Right.
THE COURT: But she calls to James Henderson. I asked for him, I’m James Henderson, sorry they’re not available at this time and suggests she contact Mercier. That implies that we’re doing something here as far as Mr. Henderson is concerned, that he’s in charge here. He may be directing, he may not physically be there all the time, or Mercier for that matter, I think that’s pretty clear neither one of them are there for much of the time here, but Henderson, you know, that’s the telephone number that she’s given to make an inquiry concerning breeding for her horse, for her mare, excuse me. Gets on the web site, advertises horses. Who does she telephone? James Henderson.
MR. DUNGAN: The owner.
THE COURT: Not Mercier, not anybody else, Henderson. So tie that in with Mrs. Davis’s testimony which I think is crucial here, on this point particularly as well as many other points, who does she, who does she identify here that’s going on to this property, been two and a half years that she’s there? Henderson, Mercier. I think-—
MR. DUNGAN: Your Honor, she never said that.
THE COURT: She sure did.
MR. DUNGAN: No, Your Honor, she, we—-
THE COURT: She sure did. It’s in my notes.
MR. DUNGAN: She said she was never, she was able to identify cars, but not people. We pinned her down on that.
THE COURT: She’s the one that picked out the tie.
MR. DUNGAN: As knowing who he is, but not as having seen him on the property.
THE
COURT: Mr. Dungan,
we can’t work here in a vacuum like people fell off a tree. Why do you think she would identify
MR. DUNGAN: But not during the-—
THE COURT: Tied in with what Mrs. Knott says, tied in with the exhibit twenty-nine, the breeding contract that’s got Henderson’s name all over it, for taking the People’s proof in the light most favorable to the People as I think I should do at this particular time. Johnson’s distinguishable because it’s on different property. I think that changes, I don’t have to worry about whether the statute’s changed or not, I could care less, because I think that Johnson might have looked at it differently if it was on the owner’s property. Maybe not. But I don’t need that, I just think it’s on different property and that’s enough there tied in with what Mrs. Knott’s testimony is and Mrs. Davis’ testimony is, is that Henderson’s on the property on many occasions during the time that she was there to see that. And then, Knott does the breeding contract. So the court will deny the motion as far as Mr. Henderson is concerned.
As far as tomorrow, the testimony. Before--
MS. LAMP: Your Honor, there’s also one point I would like to bring to the court’s attention just before we conclude.
THE COURT: Yeah.
MS. LAMP: Your Honor, we had an incident yesterday. It was, I view it as a violation of the bond, at least the spirit of the bond as I heard the court instruct the defendants personally on the date of arraignment. And I’m not asking the court to revoke bond or put any new conditions on. I would just like the court to at the conclusion of me telling you what happened, at least instruct the defendants that when the court orders them to do something, that the court is expecting them to comply with the order. And yesterday we had the order at the arraignment that the defendants were not to have any contact with any of the potential witnesses in this case. We had provided Mr. Dungan, on the day of the arraignment I marched right upstairs and made a copy of my witness list and put it at the front window, instructed Mr. Dungan that’s where it was going to be. I assumed that he picked it up, I did not double check, but I told him that, there’s my potential witness list so that you can advise your clients that they’re not to have any contact with them. And yesterday when we had the issue of the stall needing to be built, Mr. Henderson not only goes out and directly addresses Kim Luce who is one of the witnesses in this case, but actually touches her on her arm twice, pats her and says we’ll be out there tomorrow to build the stall. And I just think that that’s not really complying with the spirit of what the court instructed them to do.
THE COURT: Either gentleman?
MR. HURST: Would you like me to respond, Your Honor?
THE COURT: Sure.
MR. HURST: I believe when we were here yesterday there was some discussion about what was going to happen last night with the stall. My clients had indicated last night before they left the courtroom that they would go out and build the stall and participate in building the stall, and there was an awful lot of discussion about that. If when in fact they went out there to build the stall or went out there and found that somebody else had already decided that they were going to be building, if Kim Luce had a conversation with my client, I don’t really have a problem with that. I think Kim Luce is a supervising law enforcement officer and I believe that she has the right to talk to my client, but when she talks to my client I believe that he naturally has the duty to respond. At the same time I don’t believe that he’s in violation of any bond provision and I wouldn’t have any problem with the court reminding both of the defendants today of what the bond provision is, but I do not believe that there’s any violation here and I would share the prosecutor’s position, that the bond is that they are not to discuss things with witnesses and that’s the way it should be and that’s the way it should continue until the court modifies them.
THE
COURT: Did you say that Director Luce
initiated the conversation?
MR. HURST: No, but I would understand that that’s
probably what happened. I don’t think my
client tracked her down and started talking to her, and of course Kim Luce is
not here today to tell us what happened, but I’m quite certain that my client
wasn’t badgering her or tracking her down or touching her impermissively
or anything like that. If in fact that
had occurred, I believe that Kim Luce would be here right now to ask the court
to revoke the bond.
MS. LAMP: Your Honor, may I respond?
THE COURT: Mm-Hmm.
MS. LAMP: My understanding is quite to the contrary, that as we were leaving the courtroom—-there was no reason to discuss it with anybody here except in front of the judge and through the attorneys and that’s how I understood that business was going to be conducted per your direct order. And when we left to go get on the elevator Ms., Officer Luce was quite surprised, somebody had grabbed her arm and she was, she was very surprised that it was James Henderson and he was making a comment to her about being out, himself being out there at the farm tomorrow to build the stall.
MR. HURST: Your Honor, I would note that Jennifer is not asking that the bond be revoked or that a violation be imposed. She’s merely asking that the court remind the defendants of their obligations and I share her position in that regard.
THE COURT: Was there some incident too you brought to my attention before, somebody came on the farm? There was some discussion about that leading to bond conditions?
MS. LAMP: Well, we did have that issue, Your Honor, that there has been things that were moved overnight, when people would come back it would be evident that somebody had been there. We had that issue. I think we also had Mr. Mercier arriving with the Channel 10 News or Channel 6 News at the farm on one occasion. This may have been before the court imposed that order, but to be at the gate of the farm.
THE COURT: Okay. Well, yesterday was a long day for one thing. The matter came up at the last second. It’s clearly an emotional issue, which is why I said we’re not going to do anything now. I guess that matter has taken care of itself with respect to the mare. But you have time to time these things are emotional. I have not appreciated the conduct of Mr. Henderson and Mercier in the past, but yesterday’s could have been in the heat of the moment at that particular time. I assume Director Luce would be a certain person that could handle herself even if it meant clubbing him over the head with a billy club if he touched her again and I would have felt that was appropriate conduct. But that’s me. We won’t have any more of that. I don’t know how much longer we’ll be together, we have tomorrow anyway, I don’t know how many witnesses you’ve got, but, and I don’t, you won’t have any of your witnesses here back except for the two officers?
MS. LAMP: Yes, Your Honor.
THE COURT: Will Director Luce be back?
MS. LAMP: I don’t anticipate having her here tomorrow.
THE COURT: Subject to any rebuttal that may occur, you’re not locked out of doing that if you like. So we won’t have that problem again that I see. But yesterday was kind of an emotional moment there at the end. I was dragged out and it was four o’clock in the afternoon. You start to lose focus after a time and I’m not a party. I’ve been in your guys’ chair before and sat through long, arduous hearings, so I hope I’ve been sensitive to--
MR. DUNGAN: Which one’s harder?
THE COURT: If we were off the record I’d tell you. So I’ve been there and done that and appreciate the practice issues you guys got and the time, obvious time and effort you’ve put into it, Miss Lamp, and emotions, you know, run at that, and I could tell by the gathering and talking and stuff that this was not the time for me to make the decision with little knowledge. I guess it turned out well based on what I’ve learned happened and I thought that for the Animal Control people to step up like that is very admirable. But, you know, Mr. Henderson’s, I guess from taking what I could see but also from my court officer, that the emotion that was maybe involved in these types of things, that type of thing at that moment after a long day, we didn’t take many breaks and you guys worked hard at it and your parties and stuff like that, but we certainly won’t tolerate another incident of that, but it sounds like that may not be an issue tomorrow because there won’t be prosecution witnesses here, potential or otherwise, and I doubt that Officer Dunlap and Officer Wheaton will be talking to you so that you guys don’t have to face that. But certainly instruct them, gentlemen, and you guys are excellent, you’ve been at this for a while and know what you’re doing, and to appreciate and impress upon them that this is a serious matter as far as I’m concerned and will take appropriate action if necessary. Everyone’s conducted themselves well. Like I said, that just got to be almost a free for all there at the end and nobody’s fault. You had a moment you had to bring up, these gentlemen may have been very concerned about that, where the horse was going to be, why a strange place versus what’s happened now, particularly if the horse was going to go back in twenty, thirty days, I can’t remember what the time period was in the letter. So let’s, let’s proceed in the manner in which we have so far. I’ve probably been the least civil of the bunch here of all the people that have been here, but trying to make sue you guys get to where I want you to be, eventually. So you’ll instruct them and I’m sure we won’t have any more problems.
MR. HURST: Yes, Your Honor.
THE COURT: One way or the other, in particular, Mr. Henderson is well aware of how courts work and should be. Now, to you, number of witnesses? Well, what I was going to say first of all is the jury trial’s gone, my hearing’s gone. So I can start at eight o’clock. Are you on the road then?
MR.
THE COURT: It will just be Mike—-
MR. HURST: Well, actually I’m going to be in circuit court arguing two motions and then I’m leaving town,
THE COURT: Then you’re going to leave.
MR. DUNGAN: I’ve told my witnesses nine o’clock.
THE COURT: Nine o’clock.
MR. DUNGAN: I’m sorry, I thought that’s what you had said before.
THE COURT: No, that’s okay, I did, but I thought maybe if we get started early, that’s fine. But that’s fine.
MR. DUNGAN: Judge, I anticipate having two short witnesses, four not short but not long, and then two doctors and then the defendants.
THE COURT: That’s okay.
MR. DUNGAN: We’ll knock it off in a day.
THE COURT: If we don’t get done Friday we’ve got other days to do.
MR. DUNGAN: Do we have all day tomorrow?
THE COURT: Far as I’m concerned.
MR. DUNGAN: Okay, good, all right.
THE COURT: I will break for lunch.
MR. DUNGAN: Oh, we get a lunch tomorrow? Good. What is it going to be, a five minute break for lunch or..
THE COURT: Is everyone on your list then going to be called?
MR. DUNGAN: Yeah.
THE COURT: So you know at least where he’s coming from as to number of witnesses?
MS. LAMP: Yes.
THE COURT: I’ve got some exhibits here. Do you want me to keep them, folks, or…
MS. LAMP: I think it would be most convenient, Your Honor.
(At 5:57 p.m. proceedings concluded)