Michigan Supreme Court 

# Order

Lansing, Michigan

January 3, 2006 Clifford W. Taylor,
Chief Justice

128629 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman,
Justices

v SC: 128629 COA: 253115 Oakland CC: 03-189690-FC JAMES DURRELL JACKSON, Defendant-Appellant.

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On order of the Court, the applicati on for leave to appeal the March 15, 2005 judgment of the Court of App eals is considered and, pursuant to MCR 7. 302(G)(1), in lieu of granting leave to app eal, we REVERSE in part th e judgment of the Court of Appeals and REMAND this case to the Oakland Circu it Court for resent encing within the appropriate sentencing guidelines range or, if the sentencing ju dge believes that a departure is justified, for a statement of substantial and compelling reasons supporting the departure. We do not quarrel with the Court of Appeals finding that this crime was extremely brutal. However, the sentencing ju dge stated that she did not believe that

defendant was entitled to the sa me sentence as his accomplices , “who were ab le to step up to the plate and say what they did and to admit their gu ilt,” while defendant subjected the victims to “having to testify.” A sentenci ng court, cannot, in whole, or in part, base

its sentence on a defendant’s refusal to admit guilt. People v Wesley, 428 Mich 708, 711 (1987); People v Yennoir, 399 Mich 892 (1977). Nor can a defendant be punished for exercising his right to trial. United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968); People v Courts, 401 Mich 57 (1977).

The sentencing court also commented on the “excessive brutality, violence, and terrorism” to which the victims were subj ected. But the 50-point score defendant received on Offense Variable 7 already accounted for these circumstances. A sentencing court may base a departure on a characteri stic already taken into account by the sentencing guidelines onl y if the court finds that the ch aracteristic was given inadequate or disproportionate weight. MCL 769.34(3)(b); People v Babcock, 469 Mich 247, 268 (2003). No such finding was made here.2

In all other respects, the applicati on for leave to appeal is DENIED.

C ORRIGAN , J., concurs and states as follows:

I concur in the majority’s conclusi on that the sentencing court improperly

sentenced defendant on the basi s of defendant’s refusal to adm it guilt. I also reluctantly concur in the majority’s decision to reman d this case for resentenc ing because the trial

court failed to articulate the factors in th is case that were “‘given inadequate or disproportionate weight,’” the precise magi c language necessary to sustain a departure

under People v Babcock , 469 Mich 247, 268, 272 (2003). I write separately to reiterate that sentencing judges need to comply precisely with the Babcock requirements so that unnecessary remands may be avoided.

Defendant and his accompli ces committed an unimaginab ly brutal crime. He and his three accomplices broke in to a home in search of mar ijuana. The home, however, was at the time occupied by the victims, a married couple who were housesitting for the owners, and their two-year-old s on. Over a period of two to three h ours, defendant and his accomplices terrorized the victims through beatings and sexual assaults. The Court of Appeals thoroughly illustrated the objective a nd verifiable acts of defendant and his accomplices. It stated:

The guidelines as scored simp ly do not contemplate the following objective and verifiable acts illustrating that each of the mu ltiple victims in this case experienced sadi sm, torture or excessive brutality: (1) in the presence of the wife and the two-y ear old son, the husband endured a severe beating for a prolo nged period, at least one-half hour with occasional beating thereafter, that split open the skin on his s kull and caused multiple bruises and lacerations all over his body; the husband felt countless strikes by a shotgun, fists, feet and a whippi ng by an extension cord, and the wife saw the husband struck fifty or sixt y times; (2) the assailants forced the husband to strip off his clothing by “point[ing] the gun to [the wife’s] head and then to [the] son’s head and ask[ing] if [they] wanted to die”; (3) while Anderson held the shotgu n to the wife’s face, he and defendant forced her to remove her clothing; defendant and the other assailants issued repeated threats, including that And erson should sh oot the victim because she had seen his face, and that they “should sh oot [the wife] for bleeding, bitch”; they also advised the husba nd, “[B]itch, give us th e shit or we’re going to rape your girl”; (4) on one occasi on, defendant committed three acts of vaginal and rectal penetration of the wife while she was forced to perform fellatio on Anderson, befo re the two other assailant s also forced the wife to fellate them; during one of the last tw o acts of fellatio, someone penetrated the wife’s vagina from behind; the husband repeatedly was beaten and forced to watch many of th e penetrations of the wi fe; (5) defendant and the3

other assailants forced the wife to fellate the husband briefly before punching and hitting the wife, and maki ng her get on to p of her husband and make sexual contact for a short time, all of which occurred while the two-year old son cried and screamed in the wife’s arms; (6) the assailants repeatedly separated the vi ctims, especially the wife, who was taken from place to place to facilitate multiple act s of sexual penet ration with the various assailants; and (7) after the cri mes, which occurred over the course of between two to three hours, (a) po lice officers indicated that the wife appeared hysterical and devastated; the wife subsequently lost her job and developed an ongoing anxiety disorder that requires daily medication, (b) a police officer reported that the husba nd exhibited “extremely upset, hysterical” behaviors, and (c) the moth er observed that the son repeatedly exhibited aggressive behaviors. [U npublished opinion p er curiam of the Court of Appeals, issued March 15, 2005 (Docket No. 253115).]

At sentencing, the trial judge stated th at “an upward departure is justifiable considering the excessive bruta lity, violence, the terrorism th at had occurred to both these victims but most significantly, to [the female victim].” These factors, however, were already considered in the scoring of the offense variables. A sentencing court may base a departure on a characteristic already taken into account by the sentencing guidelines only

if the court finds that the characteristic wa s “‘given inadequate or disproportionate weight.’” Babcock, supra at 268; MCL 769.34(3)(b). The tria l court did not so state. It appears to me that such magic language is now indisputably requi red before this Court will sustain an up ward departure.

It is beyond peradventure that objective and verifiable reasons that keenly and irresistibly grab one’s attention are present on this trag ic record. In my nearly fourteen years as an appellate judge, I cannot recall such abject depravity , cruelty, and sadism

toward victims—a married couple and their child—as the Court of Appeals has

described. Defendant’s crimes are “off the charts” in terms of extreme brutality, terrorism, and violence. Because the trial court failed to stat e that the factor of excessive brutality, violence, and terrorism was given inadequate weight under the guidelines, I join in remanding for resentencing.

W EAVER , J., concurs in part and dissents in part and states as follows:

I concur in the majority’s holding that the sentencing court improperly sentenced

on the basis of defendant’s refusal to admit guilt. United States v Jackson, 390 US 570 (1968).

I dissent from the portion of the order remanding this case to the trial court on the

basis of People v Babcock, 469 Mich 247 (2003). Applyi ng the analysis of my partial dissent and partial concurrence in People v Babcock, supra, at 280-284, I would_______________________________________ __ 4

find that the trial court satisfied the requi rement for “a substantia l and compelling reason” for its departure from the sentencing guidelines, and its decision did not venture beyond the range of principled outco mes under the circumstances.

Y OUNG , J., would deny leave to appeal.

s1227 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

January 3, 2006

Clerk