Another Kalkaska Marijuana Case

May 6, 2012

Walter Sbresny is waiting to learn whether he can use a medical marijuana defense at trial.

Part one of a two-part story. Next week, the Express will look at the case of Archie Kiel, who is appealing a 2010 marijuana conviction, and the efforts of Kiel and Sbresny to make Kalkaska County more hospitable for medical marijuana patients through a grassroots political effort.

Walter Sbresny’s troubles with the law began when his son got mixed up in an investigation over some kids smoking pot.

Teenagers were hanging out at a shack for snowmobilers in Kalkaska last April when a deputy spotted one of them smoking a joint. Under interrogation, Sbresny’s son told the investigators he got the marijuana from him, a medical marijuana patient, without his knowledge.

That led the deputy to call in the Traverse Narcotics Team and within hours, Walter Sbresny heard a knock on his door.

A TNT officer told Sbresny he wanted to take a look at Sbresny’s marijuana grow operation because, if his son was able to get some of the pot, that meant the operation was not secure, and if it was not secure, the officer believed that meant Sbresny was in violation of the Michigan Medical Marijuana Act.

"He said that my grow was not secure, but when they got here, it was locked," Sbresny said.

When Sbresny refused to let police search his house without a warrant, he said he and his wife, Constance, were told by police to stay out of their house while the officers got one, he said.

The officers got a warrant, Sbresny says, after the deputy repeatedly asked him how many plants he had and he repeatedly responded, "What do you define as a plant?" Today, Sbresny says he wishes he would have exercised his rights and told police to leave without answering any of their questions, but that’s not what happened. He said at the time he believed he had no choice and the couple waited outside for hours until officers returned.

When police searched, they allegedly found nearly 200 marijuana plants in Sbresny’s basement, well over the 24 he could possess as a medical marijuana patient and caregiver of one patient.

Sbresny counters that the bulk of the plants were not viable and the total amount of what he possessed was insignificant, but as far as police were concerned, he was in violation of marijuana laws. Sbresny was taken to jail and booked on a felony charge.

CASE ON HOLD

Now, more than a year later, Sbresny’s case is on hold, as attorneys await the outcome of another case pending before the Michigan Supreme Court.

So far, a judge in Sbresny’s case has granted a motion from prosecutors to prohibit Sbresny from using his medical marijuana patient status as a defense in his trial.

If that decision holds, that would prevent the defense from even mentioning that Sbresny had a medical marijuana card or that a doctor determined he needed marijuana for medical reasons. Sbresny believes that would be devastating to his defense.

Sbresny is charged with delivery and manufacture of 20 to 200 marijuana plants, a felony that carries up to seven years in prison, and his trial is scheduled to begin Sept. 10.

For supporters of medical marijuana, Sbresny’s case demonstrates the aggressive stance courts and prosecutors have taken against medical marijuana since its use was approved by 63 percent of voters in 2008.

Since then, supporters argue the MMMA has been under attack in places like Kalkaska County and has been chipped away at by the Michigan Court of Appeals.

Since his legal troubles began, Sbresny has become a marijuana legalization activist, and he is working with Archie Kiel, another high-profile medical marijuana defendant who was prosecuted in Kalkaska County. Kiel was arrested and charged with felony delivery and manufacture after his use of medical marijuana was profiled in the Northern Express in 2009.

Kiel, whose 2010 conviction is under appeal, was also barred from mounting a medical marijuana defense.

There are over 30 cases that have either been decided by or are pending before the Michigan Court of Appeals over aspects of the MMMA, said Eric VanDussen, a freelance journalist and close follower of medical marijuana issues. One case in particular, People v King, which is pending before the Michigan Supreme Court, could have implications for Sbresny and Kiel, as it is likely to settle the issue of whether defendants have a right to raise medical marijuana status as a defense.

So far, appellate court rulings have not been favorable to the medical marijuana cause, however, VanDussen said.

"The Court of Appeals appears to have an agenda and it appears as though the deck is being stacked against the Medical Marijuana Act," he said.

"˜WRITTEN IN BLACK AND WHITE’

Kalkaska earned a reputation for some as an unfriendly locale for medical marijuana users under its previous prosecutor, Brian Donnelly, who died unexpectedly in January while cross-country skiing.

It is unclear what will happen when a new prosecutor takes office next year. Currently, an assistant prosecutor who Donnelly hired, Michael Perreault, has taken over the Sbresny case. He is running for prosecutor as a Republican.

At a preliminary hearing last year, Sbresny’s then-attorney, medical marijuana specialist Jesse Williams, argued that Sbresny’s case is an example of how the MMMA is under attack in Michigan.

Williams argued that the search of Sbresny’s house was illegal and that Sbresny was entitled to possess the marijuana that police found in his home.

Williams said: "The fact that you have some plants here, there’s nothing illegal about those plants. I don’t know what world I’m living in where we have statutes that are written in black and white, like every other statute, that are real easy to read. I mean – the – I hear they’re ambiguous or it’s unartful. They’re useless. They’re uncertain. I think the courts have made them ambiguous and unclear and uncertain."

At the hearing, Donnelly countered that the MMMA didn’t legalize marijuana, it only offers protection for certain people who use it under certain circumstances.

"The medical marijuana law carves out a narrow exception for certain individuals," Donnelly argued.

Williams said he still finds this argument absurd, even if it prevails in many cases, and he hopes the People v King case finally puts it to rest.

"I think it’s absolutely ridiculous that you have courts and other persons still out there saying that marijuana is still illegal, that this statute is just an exemption," Williams said. "I would put that to them point blank – you tell me how this statute doesn’t create rights."

Sbrensy was bound over to face trial and Williams soon left the case, to be replaced by attorney Kyle Trevas. Trevas said he didn’t want to comment about a pending case.

Later, Circuit Judge Janet Allen ruled that the number of plants Sbresny possessed disqualified him from mounting a medical marijuana defense.

To supporters of medical marijuana, this interpretation is an underhanded mutation of the MMMA by judges who seek to overturn the will of the electorate.

VanDussen quotes the ballot language approved by voters which he believes is clear – the act will "permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana."

To disallow a medical marijuana defense at trial, VanDussen believes, is unfair.

"You’re precluding them from saying "˜medical’ even if they have a very legitimate reason to use medical marijuana," he said. "It puts people in a situation that the people of the state of Michigan did not intend."

A LOT OF PLANTS

Sbresny, 52, a father of a 19-year0-old son and 21-year-old daughter and a former DJ who worked at WKLT for two stints in the 1980s and 1990s, started using medical marijuana after a medical condition left him unable to walk. He believes marijuana has been better for him than opiates, and he credits the drug for a partial recovery that has enabled him to walk again.

He is aware, however, of how his case might look.

Police say he had close to 200 marijuana plants growing in his basement. That’s a lot of plants.

Sbresny says he is not a drug dealer and that the 123 plants police said they seized from his home, the ones that constitute the case against him, represent a tiny amount of marijuana. He says the plants confiscated by police were inches tall and contained almost no marijuana material.

He maintains the plant material from those plants would add up to about the weight of a nickel, and all of the material together, including stems, weighed less than two ounces, less than the maximum weight amount he could possess under the MMMA.

He grew all of those plants, he said, because he didn’t know which ones were viable.

"I was waiting for one to start growing, rather than put months into one plant that won’t ever grow," Sbresny said.

Perreault, the assistant prosecutor, said he believes case law says someone who possessed as many plants as Sbresny is not entitled to a medical marijuana defense, though he says he, too, is waiting to learn what the Supreme Court rules.

"The law (as it stands) is simply pretty clear, that if you would like to take advantage of medical marijuana, you cannot possess more than 12 plants per person," Perreault said.

Perreault called Sbresny’s insistence that his plants did not amount to a significant amount of marijuana false. He said police only seized plants with root systems and he disagrees that all of the plants were tiny.

"There were plants of all sizes that were seized," Perreault said.

Williams, the marijuana defense specialist, believes the number of plants possessed by a defendant and whether a defendant is in compliance or not with the MMMA should be decided by a jury, not by a judge at a pre-trial hearing.

"The courts are predetermining the outcomes of these cases," Williams said. "Let a jury decide. What are these courts and these prosecutors so scared of?"