[Music] all right the time for motions has come and gone I don't consent to that well you don't you don't have to consent to that I gave you a motion cut off all the motions have been denied now is the time Mr McLoud where you have the constitutional right for a j trial so I can set this trial for uh would two days suffice Mr Mr Juliet I think we could probably do it in one day all right well just to be safe we'll schedule it for two days then um I can schedule this for a jury trial Mr McCloud on Thursday Friday August 8th and 9th and what we'll do is we'll be here Thursday August 8th to select the jury and um then we'll go immediately into the trial as needed we can um we'll continue into Friday I'll have you both file witness and exhibit lists within 21 days of today's [Music] date and welcome to facts or frauds what you are witnessing is real the participants are not actors good morning we are on the record in the 53rd Circuit Court for the county of Shaban and we are providing Public Access uh to this hearing both in the courtroom and also online and our first case this morning is people be Trevor McLoud file Q3 6748 FH Council you want to State your currence please all right Mr McLoud you do you still desire to represent yourself sir y all right and I'm required to remind you at each hearing that you do have the right to be represented by an attorney including an attorney at public expense if you qualify and requests um and do you wish to have an opportunity to hire an attorney or to uh seek appointed attorney or not I don't want to make that decision right now okay so you're continuing to represent yourself all right and you understand that you have those rights okay all right well we're here for a doed call that I had scheduled because Mr McLoud had requested the jury trial and I wanted to touch Bas and had you both submit proposed jury instructions which I did receive thank you both so what I want to do is I'm going to have the ask the Bays to deliver to you uh two packets uh one is the the ones that begin with 2.1 those are the preliminary that's for defense the preliminary jury instructions and then the 3.1 or the ones that start 3 point those are the final jury instructions that I would propose to give so those will be for your review and I want to discuss a couple things about that um the count one the defendant is charged with conservation resisting obstructing that's a a a bit of a strange statute uh there's no model dur instruction for that charge precisely the prosecutor base it on 13.2 which I think is correct although I did uh amend the prosecutor's request a charge to add some language from 13.1 that is also a correct statement of the law particularly the statement that the defendant must have actually resisted by what he said or did but physical violence is not necess necessary and then also because uh Mr McCloud you've raised a lot of legal challenges in this case that I have denied typically challenges on the law are for the court to decide and not the jury and wouldn't be able to present those arguments to the jury however because you're charged with resisting and obstructing the conservation officer the lawfulness of the officer's actions is indeed an element of the offense so I am required by law to instruct the jury uh on the uh framework that they need to decide that uh so I've included some language for that that the prosecutor did not request so I want to read my instruction on count one that I'm going to be reading at the trial and then that in count one the defendant is charged with the crime of assaulting battering wounding resisting obstructing opposing or endangering a conservation officer who was acting in the performance of his duties to prove this charge the prosecutor must prove each of the following elements Beyond A Reasonable Doubt first that the defendant assaulted battered wounded resisted obstructed opposed or endangered Dan lenf Felts who was a conservation officer performing his duties obstruct includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command the defendant must have actually resisted by what he said or did but pH iCal violence is not necessary second that the defendant knew or had reason to know that Dan Liston Felts was then a conservation officer performing his duties at theend third that Dan Liston felds gave the defendant a lawful command was making a lawful arrest or was otherwise performing a lawful act a conservation officer may make an investigatory stop of a vessel if that officer has based on objective facts a reasonable and articulable suspicion of a violation of law a conservation officer may make an arrest without a warrant if that officer has probable cause to believe that the defendant has committed a crime probable cause exists were the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to Warrant a personal reasonable caution in the belief that an offense has been or is being committed defendant is a member of a Native American tribe that is a party to a federal court consent decree that that binds the state of Michigan and its Law Enforcement Officers under the terms of that consent decree tribal members operating boats or other vessels who are engaged in the exercise of a treaty related hunting trapping fishing or gathering activity shall not be subject to State vessel registration requirements provided that the tribal member satisfies tribal license requirements for the activity in question is in compliance with the applicable tribal hunting trapping or fishing season limitations and Tribal Law adopted pursu to the decree and possesses evidence of being currently engaged in hunting trapping fishing or gathering such as Fish game or common items related to hunting trapping fishing their Gatherings such as fishing rods tip ups Firearms traps or Nets fourth the defendant's actions were intended by the defendant that is not accidental so in instructing the jury on the framework for which they should consider whether the officer's actions were lawful I've instruct I'm including in that instru ction uh black letter law on Reasonable Suspicion and probable cause for a stop and rest and I've included the uh direct quote from the consent decree that I believe is the uh provision that you've been arguing Mr uh Mr Juliet do the people have any objection to that instruction no no your honor Mr McLoud do you have any objections to that instruction to the jury for the trial and and then in count two the um is the operating of motorboat while intoxicated um I my model instruction is not that that was requested by the prosecutor I model it on the oow vehicle as did the prosecutor however the charging document in this case the information there there's two ways to charge someone with operating while intoxicated one is an Under the Influence Theory and and one is a over thee limit Theory the information in this case did not include the over thee limit Theory it included only the under the influence de so my instruction only includes that uh so the the instructions the prosecutor proposed for you know being over the 08 limit that's not that's not what's been charged I'm not getting that so the instruction would be as follows in count two the defendant is charged with the crime of operating a motorb while under the influence of alcohol to prove this charge the prosecutor must prove each of the following elements Beyond Reason without first that the defendant operated in a motorboat to operate means to drive or have actual physical control of a motorboat second that the defendant operated the motorboat on the Waters of the state third that the defendant was intoxicated that is the defendant operated the motorboat under the influence of alcohol under the influence of alcohol means that because of drinking alcohol the defendants AB ability to operate a motorboat in a normal manner was substantially lessened to be under the influence a person does not have to be falling down or hardly able to stand up on the other hand just because a person who drunk alcohol or smells of alcohol does not prove by itself that the person is under the influence of alcohol the test is whether because of drinking alcohol the defendant's mental or physical condition was significantly effective and the defendant was no longer able to operate a motorboat in a normal manner Mr Juliet the people have any objection to that instruction oh I know you're not Mr you have any objection that I'd like to include visibly that like law you'd like to include visibly impaired as a lesser included offense no I'd like the language to include that like the law stat that I have to be visibly impaired while operating well visibly impaired operating while visibly impaired is a lesser offense than operating while uh in toxicated but the the statute under the conservation um section A says is so case to vessel that is being oper well right right but the [Music] um number eight number five [Music] yeah subsection three A person shall not operate a motor a motorboat on the Waters of the state when due to the consumption of alcoholic liquor or a controlled substance or both the person's ability to operate is physically impaired ability to operate corre and then I'd like to include number eight that same oh the definition operate as used in this section operate means to be in control of a vessel propelled wholly or in part by Machinery while the vessel is underway and it's not docked at anchor idle or otherwise secur all right I will include uh the the definition operate under subsection 8 under the um second element where it says second that the defendant operated the motorboat in the waters to the state operate means and then I'll give the statutory instruction but Mr McLoud the operating while visibly impaired is a is a lesser offense um so I can instruct the jury if you request and I can change the verdict form to this effect too that says that they can consider whether you're guilty of the operating while in toxicated uh or they can consider the Lesser offense of operating while visibly impaired the um the operating toxicated is a higher burden to prove the language under the influence of alcohol legally is a higher burden than the visibly inar um so sometimes defendants want the Lesser included as an option other times they don't because they don't think that the higher burden would be met but so what I would not do I would deny your requests to like combine them into one instruction but if you want the visit the impaired given that say that's a lesser offense and I'll let you think on that we're going to come back for another doctor call in July if you request a lesser included I'll we do that um I'll make a note possible lesser included in all right um a couple other things um the [Music] um for jury selection with Mr McLoud representing himself um I think the the law does allow the court to conduct the VA Deer uh and I'm going to go ahead and do that so I'm signing an order today that on my own motion I will examine the prospective jurors during jury selection and not allow direct questioning from either the prosecution or the defense I uh I've noted over rule the um but I'm giving I'm giving both sides as required by the court rules an opportunity to submit written questions so you have to submit written questions to me not later than Tuesday July 2nd so I can review them and we're going to come back for a docket call on July 9th at 9:30 a.m. and then I will not ask questions that I determine are improper irrelevant or unnecessary sorry you have a jury my Native Americans my peers uh no sir it's a jury selected from at Ramen from the from folks in the county um all right and um also Mr McLoud you've waved your right to councel uh and we've gone through the waiver process and I believe that you have knowingly voluntarily and understandingly wave that the right to counsel with your eyes open as to the risks of uh self representation and that you're choosing to exercise your constitutional right for self-representation um that of course doesn't allow you to become disruptive to the court processes you you've not been doing that of late but there was some history early on of that so under Supreme Court precedent forab California 1975 this court may even over objection appoint what's called standby or advisory Council to Aid you if and when you ask for help or to be available to represent you in the event that the termination of your self-representation is necessary so therefore on my own motion I'm appointing the Shaban office of assigned Council not to act as your attorney Mr McLoud but to act as what's called a standby or advisory Council so they'll be present at the hearing in July and at the trial uh that they won't participate they'll be there to give you advice if you have any if you don't have any they won't give it uh and then if for examp example you became disruptive during the trial to the extent that even despite warnings you persisted and had to be removed then the attorney would jump in and finish the trial and demand but as long as you're not disruptive that's not going to be an issue but they're there're just as uh advisory Council for you all right Mr Juliet any objection to that no Mr McLoud do you have an objection to I object I do that myself and I'm going to let you represent yourself but I am going to appoint the standby or advisory Council uh just assist you if you deem necessary um and then I did notice as I reviewed the witness and exhibit lists that were submitted by the by the F by the both parties Mr McLoud you had listed both magistrates in the district court um District Court Judge probate court judge the elected prer and a retired Circuit Judge um can you tell me what what it's all perent to situation in what respect what testimony do you think that they be offering would be relevant at the TR do I have to I don't to say all that yeah you got to tell me that it's relevant because I don't see how that's possibly relevant well the magistrate okay the magistrate and the prosecuting attorney went ahead and prosecuted this case without having a warrant on file the judges all looked through this file didn't have a warrant on file still pursu it so mean it's kind of like your job isn't it to make sure all the people work SAR sure but that's not relevant to what the jury has to what the jury has to decide is whether the officer's actions on that day were lawful and whether you were resisting uh him and or operating a motor on tax not guilty if he is guilty of a charge one more Outburst you'll have to leave um so the um I me the judges the judges testimony magistrates and prosecutor is not not admissible or relevant so I'm going to strike from your witness list magistrate elmas magistrate Libby retired judge Barton judge bzo prosecutor goodr and retire judge P so you may not call those folks as Witnesses um and what we'll do then is come back for you both have them till July 2nd to come back for um they both have until July 2nd to file witness and exhibit list or I'm sorry to file requested questions that I would ask the jury during jury selection to achieve a fear and impartial jury um we're not going to get a fear and impartial jury because we're not Native Americans that's the whole situation well that doesn't if somebody's African-American we don't see an entirely African-American jury if somebody's Asian-American we don't see comp Asian well sure AR based on the treaty rights thing yeah in fact it would violate the constitution if I tried to seat a jury of only Native Americans and excluded People based on their race so I will decline your invitation to engage in racial discrimination in jury so so you have until July 2nd to submit written questions and we'll come back for a hearing on July 9th at 9:30 so I can tell you which of those questions I'm asking or not a not asking I'm granting Mr mccloud's request to add the definition operating and we'll give him until the 9th to decide if he wants the Lesser included impaired instructed is that the 9th or the second the 9th yeah the nth is the and we are still scheduled for jury selection August 8 and N all right anything further for today from the people uh just briefly your while we're on the record Mr McLoud and I have been undergoing a continued plea discussions I guess I would just ask supp for its position on a few Poss possibilities for resolution okay um I know in the past with some cases we've done you know plea to a felony with a very short term of a delay with a dismissal at the end uh is this the type of case the court might consider something like that on yeah I mean from what from what I've learned about the case in the pre-trial motions although your legal arguments have been unavailing Mr McLoud I don't think your underlying conduct in this case was all that egregious and so I mean I'm not looking to lock you up even if you're convicted after the trial um you know so whatever whatever negotiated outcome you guys could come up with I would have no problem with I don't think your behavior was was uh extreme can I can I motion for summary judgment what's that can I motion for summary judgment well uh no I mean you already did there has to be like a um legal grounds to dismiss which I denied or that there's not enough evidence of probable cause to go forward which have deny there is probable cause to go forward to a jury so I can't decide it instead of the jury um I mean you could wave your right to a jury and have a trial in front of me um but both sides would have to agree to that um or if you wanted to enter a plea of guilty or no contest the charges or some lesser charges as the prosecutor and you sort out you can do that as well well well right now what he's proposing is a disturbing the piece with no probation no jail um a week delayed sentence to I would like to add to no find some cost because I already paid to drug testing and all that stuff for the first four months and I'd like to also add to it that delay time served because of timeing drug testing all right well and if you guys come up with a negotiated uh outcome and then there are things that you both can agree to and then there's things that you can leave if if you're not agreeing to them that you both can argue to me and then I can decide you know well that's where we're at right now's right now all right so I think what we'll do then just because I don't I haven't scheduled anything else on the August trial date sometimes I schedule backups but I haven't done that in this case um and because I want to preserve the ability to use those dates or something else uh I'll indicate that the July night hearing will be a plea cut off as well so if there is any kind of um well I guess what I'm what I'm wondering is if I take this pleas something well I haven't heard clearly what the plea would be well I guess he's accurate that I did offer a disturbing piece but I know this cour doesn't do myem or probation so I think we have to be a PL to a two year on a week delay with a dismissal at the end um it's technically Fel in probation I'm I'm willing to give him a disturbing the piece but again I don't think this cour would put you want to do a disturbing the piece with the delay and dismissal no well I'm fine with that but I don't think this court will do a mem your probation uh I would do a I would do a misdemeanor delay with a dismissal if it's a short delay and I wouldn't have Department of Correction supervis them I would just uh supervise it internally Court sta okay um I will get that dra up then if you reach an agreement and you want to come in before July 9th just to get it done um just contact Court staff and we'll schedule a time for any other questions Mr jul no Mr M okay right we'll be iness hi well that's just about it so so thanks for watching and we'll see you again real soon and thanks for hanging out out with on facture for ODS make sure you hit that Thumbs Up Button you're subscribed and ring that Bell for notifications so the next time Premier a video you can meet a live chat with everyone else and leave a comment in the comment section tell me what you think and a huge thank you to all of our fax or frauds channel members if you'd like to become a member click join right next to subscribe or the link in the description now if you're still hanging around thank you why not hit that thumbs up button subscribe if you're not already and ring that Bell also leave a comment in the comment section tell me what you think till next time I'll see you soon