Attorneys to appeal collective marijuana – grow case

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A case alleging two Livingston County men operated a collective marijuana-grow operation is on hold while their attorneys appeal a District Court judge’s decision not to dismiss felony charges.

In October, Judge Carol Sue Reader dismissed multiple manufacture marijuana counts lodged against Darryl Scott Berry, of Howell Township, and co-defendant Jeffrey Allen Michael, of Fowlerville, after learning Michigan State Police destroyed more than 500 marijuana plants without a judge’s order. She reversed her ruling March 3, prompting the defense attorneys on Wednesday to request a stay in the case to appeal.

Officers executed search warrants at five properties in Livingston County where they seized an estimated 545 plants as well as about 15 pounds of marijuana, 7 pounds of processed marijuana and suspected marijuana edibles, and more than $195,000 in cash.

The state’s attorney general’s office objected, saying the defendants are “not harmed” by proceeding with the preliminary exam Wednesday, but Reader noted she has a duty to protect a defendant’s rights.

The judge, however, noted that she stands by her opinion that it’s not a medical marijuana case, which was the state’s argument when it asked Reader to reconsider her earlier decision that dismissed the charges.

Defense attorney Michael Komorn, who represents Berry, said the attorney general’s office does not get to decide whether it’s a medical marijuana case because his client’s doctor has already made that determination.

Attorney Shyler Engel, who represents Michael, said the case should be dismissed because the evidence has been destroyed.

As a result, Engel argues, he cannot effectively assert what is known as the Section 4 defense of the Michigan Medical Marihuana Act.

That section gives qualified, registered patients broad immunity from arrest and prosecution.

“I want to tell the court there was only this number of plants but because they’ve been destroyed, I’m unable to do that,” Engel said. “That’s why this case must be dismissed.”

Assistant Attorney General Dianna Collins told the court the state has clippings from each of the plants seized.

Engel countered that the state’s attitude of “just trust us” that the evidence destroyed was a marijuana plant is inappropriate.

Collins further argued that the defendants “were not operating within the medical marijuana” statute.

Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.

http://www.livingstondaily.com/story/news/local/community/livingston-county/2017/03/29/darryl-berry-marijuana-case/99786588/