LANSING — A 35-year-old McBain man will continue to serve his prison sentence following the Michigan Court of Appeals’ dismissal of two appeals from a jury conviction for multiple criminal sex crimes in a a trial in October 2020 at the 28th Circuit Court in County Wexford.
Kirk Allen Murray was sentenced in November 2020 to 25 to 40 years in prison with 131 days credited and 2 to 15 years in prison after a jury found him guilty of first degree criminal sexual conduct and second degree CSC for sexual contact with 11-1 year olds on the dates of June 1 and October 1, 2018 or between June 1, 2018 and Cadillac. As a result of this conviction, Murray is to be electronically monitored for life.
He was also sentenced to 20 months to 15 years in prison with 48 days credited after a jury found him guilty of third degree CSC, force or coercion.
Both sentences are being served concurrently, according to court records.
Murray, however, filed his appeals on two cases, but the appeals were the same.
He first argued that the trial court erred in finding that the prosecution had given sufficient notice of the testimony of a particular witness under MCL 768.27b(2) and allowing that witness to testify.
In that case, judges said the witness’s testimony had no connection to the victim’s allegations that led to Murray’s conviction at CSC. Further, the witness’ testimony provided no new facts to the jury was extremely brief and had no relation to the sexual abuse of the other victim underlying the other CSC conviction. There was corroborating evidence – the testimony of the first victim – which was far more probative of the other victim’s account of her sexual abuse at the hands of Murray, than the totally independent testimony of the witness, according to the judges.
Further, the judges said Murray did not substantively challenge the admissibility of evidence of other acts and did not explain how the alleged lack of notification impacted any cross-examination of the witness or would otherwise alter the defense’s approach to the case.
Accordingly, assuming that the trial court erred in allowing the testimony of a witness, the judges concluded that Murray had failed to establish the requisite prejudice and concluded that the reversal was not warranted. .
Murray then argued that MCL 750.520b(2)(b) violates the separation of powers doctrine by depriving a sentencing judge of the discretion to impose an appropriate sentence.
Murray argued that MCL 750.520b(2)(b) violates the separation of powers doctrine because the statute deprives a sentencing court of its discretion to consider individualized mitigating circumstances by imposing a minimum sentence of at least 25 years.
Under the principles and authorities cited in the preceding paragraph, the defendant’s argument fails because MCL 750.520b(2)(b) represents an authorized exercise of legislative power to prescribe a mandatory minimum sentence.
The justices said that in enacting MCL 750.520b(2)(b), the legislature properly exercised the power granted to it by the Michigan Constitution to provide penalties for criminal offenses. For this reason, the judges declared that there was no violation of the doctrine of the separation of powers.
At the time of Murry’s 2020 sentencing, Wexford County District Attorney Corey Wiggins said these types of cases are always difficult for his office. He also said there must be a balance between what is best for victims and allowing them to get on with their lives as much as they can, while ensuring that justice prevails. While some may argue a mandatory minimum sentence is unfair, Wiggins also said others may argue it’s appropriate. He conceded in November 2020 that both sides had valid points.
Wiggins also said, however, that it is the job of the legislature to change the law and until that happens the justice system is left with mandatory minimum sentences in some cases.
In 2019, former Wexford County prosecutor and current 28th Circuit Court Judge Jason Elmore charged Murray with two separate cases involving criminal sexual conduct.
The second case originally included first-degree CSC and third-degree CSC counts for sex acts on an adult female. In February 2020, Murray was found not guilty of the CSC’s first-degree offense, but that same jury could not reach a unanimous verdict on the CSC’s third-degree offense. As a result, this failure to reach consensus by the jury led to a hung jury on this charge.
A hung jury is a judicial jury that cannot agree on a verdict after lengthy deliberation and is unable to achieve the required unanimity or supermajority. Wexford County Clerk Alaina Nyman said in February 2020 that the jury deliberated for nearly six hours and were brought into the courtroom twice during those deliberations. At that time, 28th Circuit Court Judge William Fagerman read the instructions for a hung jury, Nyman said. Fagerman also offered ways for the jury to reach a verdict, according to Nyman.
Although the two cases are separate, the court granted joinder to allow a single trial in October 2020. In law, a joinder is the joining of two or more legal matters together. Procedurally, a joinder allows multiple issues to be heard in a hearing or trial and is done when the issues or parties involved overlap enough to make the process more efficient or fair.
Although the cases were joined at trial, Murray had to file two appeals.