Order Michigan Supreme Court
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, Robert P. Young, Jr.
Plaintiff-Appellee, 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 application for leave to appeal the March 15, 2005
judgment of the Court of Appeals is considered and, pursuant to MCR 7. 302(G)(1), in
lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of
Appeals and REMAND this case to the Oakland Circuit Court for resentencing within the
appropriate sentencing guidelines range or, if the sentencing judge 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 judge stated that she did not believe that
defendant was entitled to the same sentence as his accomplices, “who were able to step
up to the plate and say what they did and to admit their guilt,” while defendant subjected
the victims to “having to testify.” A sentencing 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 subjected. 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 characteristic already taken into account by the
sentencing guidelines only if the court finds that the characteristic 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.
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In all other respects, the application for leave to appeal is DENIED.
CORRIGAN, J., concurs and states as follows:
I concur in the majority’s conclusion that the sentencing court improperly
sentenced defendant on the basis of defendant’s refusal to admit guilt. I also reluctantly
concur in the majority’s decision to remand this case for resentencing because the trial
court failed to articulate the factors in this case that were “‘given inadequate or
disproportionate weight,’” the precise magic 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 accomplices committed an unimaginably brutal crime. He and
his three accomplices broke into a home in search of marijuana. 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 son. Over a period of two to three hours, defendant and
his accomplices terrorized the victims through beatings and sexual assaults. The Court of
Appeals thoroughly illustrated the objective and verifiable acts of defendant and his
accomplices. It stated:
The guidelines as scored simply do not contemplate the following
objective and verifiable acts illustrating that each of the multiple victims in
this case experienced sadism, torture or excessive brutality: (1) in the
presence of the wife and the two-year old son, the husband endured a
severe beating for a prolonged period, at least one-half hour with occasional
beating thereafter, that split open the skin on his skull and caused multiple
bruises and lacerations all over his body; the husband felt countless strikes
by a shotgun, fists, feet and a whipping by an extension cord, and the wife
saw the husband struck fifty or sixty 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 shotgun to the wife’s face, he and defendant forced her
to remove her clothing; defendant and the other assailants issued repeated
threats, including that Anderson should shoot the victim because she had
seen his face, and that they “should shoot [the wife] for bleeding, bitch”;
they also advised the husband, “[B]itch, give us the shit or we’re going to
rape your girl”; (4) on one occasion, defendant committed three acts of
vaginal and rectal penetration of the wife while she was forced to perform
fellatio on Anderson, before the two other assailants also forced the wife to
fellate them; during one of the last two acts of fellatio, someone penetrated
the wife’s vagina from behind; the husband repeatedly was beaten and
forced to watch many of the penetrations of the wife; (5) defendant and the
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other assailants forced the wife to fellate the husband briefly before
punching and hitting the wife, and making her get on top 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 victims, especially the wife, who was taken from
place to place to facilitate multiple acts of sexual penetration with the
various assailants; and (7) after the crimes, which occurred over the course
of between two to three hours, (a) police 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 husband exhibited “extremely upset,
hysterical” behaviors, and (c) the mother observed that the son repeatedly
exhibited aggressive behaviors. [Unpublished opinion per curiam of the
Court of Appeals, issued March 15, 2005 (Docket No. 253115).]
At sentencing, the trial judge stated that “an upward departure is justifiable
considering the excessive brutality, violence, the terrorism that 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 was “‘given inadequate or disproportionate
weight.’” Babcock, supra at 268; MCL 769.34(3)(b). The trial court did not so state. It
appears to me that such magic language is now indisputably required before this Court
will sustain an upward departure.
It is beyond peradventure that objective and verifiable reasons that keenly and
irresistibly grab one’s attention are present on this tragic 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 state that the factor of excessive
brutality, violence, and terrorism was given inadequate weight under the guidelines, I join
in remanding for resentencing.
WEAVER, 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). Applying the analysis of my partial
dissent and partial concurrence in People v Babcock, supra, at 280-284, I would
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find that the trial court satisfied the requirement for “a substantial and compelling reason”
for its departure from the sentencing guidelines, and its decision did not venture beyond
the range of principled outcomes under the circumstances.
YOUNG, J., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 3, 2006 _________________________________________
s1227 Clerk