Admission of a redacted version of a plea hearing transcript; MRE 106; Sixth Amendment right to a fair trial; Ineffective assistance of counsel; Failure to object; Sufficiency of the evidence for a child sexually abusive activity (CSAA) conviction; MCL 750.145c(2)(a); Proof defendant knew or reasonably should have known that the girl was less than 18 years old; Sentencing; Reasonable & proportionate; Child sexually abusive material (CSAM)

The court concluded the trial court erred in admitting a redacted plea hearing transcript, but held that the error did not deprive defendant of a fair trial. Also, he was not denied the effective assistance of counsel. Further, there was sufficient evidence to convict him of CSAA. Finally, he did not overcome the presumption that his “within guidelines sentence is reasonable and proportionate.” He was convicted of CSAA, possession of CSAM, and using a computer to commit a crime. He was sentenced to 160 to 240 months for CSAA and using a computer to commit a crime, and 24 to 48 months for CSAM, to be served concurrently. Defendant argued “that the trial court erred in admitting a redacted version of [his friend W’s] plea hearing transcript such that the trial court violated MRE 106, and defendant was denied his Sixth Amendment right to a fair trial.” He further asserted “that the jury should have been made aware of the redacted portions of the transcript that indicated [W] pleaded guilty in exchange for the dismissal of” a CSC I charge. The court held that while defendant was “correct that the redacted version of the plea transcript read to the jury omitted [W’s] sentencing agreement, it did not render defendant’s trial unfair.” It noted that because he and W “were both charged with CSAA, it was reasonable for the trial court to assume that [W’s] possible sentence for CSAA might influence defendant’s jury. Therefore, it was reasonable to omit any mention of [W’s] possible sentence so as not to influence the jury in defendant’s trial.” But the court held that “the trial court erred in admitting the transcript in violation of the Confrontation Clause.” Given this error, it had to thoroughly examine the record to determine whether it was “‘clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.’” The court noted that at “trial, the prosecution presented evidence that the video constituting CSAM was found on defendant’s phone.” Detective M “testified that she recognized [W] in the video and defendant’s voice narrating the video.” Further, another witness (AF) “identified defendant as the person who recorded the video. But the strongest evidence against defendant was his own testimony in which he admitted to taking the video of [W] having sex with underage AF. He admitted he did not ask her age, in violation of the CSAA statute requiring a reasonable inquiry into a person’s age before having sex. After a review of the sum of the evidence, it is clear beyond a reasonable doubt that the jury verdict would have been the same absent the trial court’s error.” Thus, the error was harmless and defendant was not entitled to a new trial. Affirmed.

Brady v Maryland violation; Failure to disclose a ballistics report; Motion for a mistrial; People v Chenault; Whether evidence was exculpatory & material; Relevance; MRE 402; Unfair prejudice; MRE 403; Jury instructions; National Integrated Ballistic Information Network Evidence Worksheet (NIBIN report)

Holding that the trial court abused its discretion in denying defendant’s motion for a mistrial based on a Brady violation, the court vacated her convictions and sentences, and remanded for a new trial. The case arose from a shooting at her home. She was arrested after police initiated a traffic stop while she “was driving a Dodge Durango owned by a third party,” D. Police found “an unloaded handgun in the trunk of the Durango and placed it into evidence.” Defendant first learned during the trial that a ballistics report (a NIBIN report) indicated that gun was not linked to the shooting. After denying her motion for a mistrial or dismissal, the trial court gave two limiting jury instructions. On appeal, the court noted there was “no dispute that the NIBIN report was not timely disclosed to defendant.” As to whether it was exculpatory, she “was charged with crimes associated with the unlawful use of a firearm. The firearm [she] was in possession of when arrested was shown to have no direct link to the shooting as determined in the NIBIN report.” She contended that, “had counsel been aware of the report, she would have moved to exclude the handgun for being more prejudicial than probative.” The court concluded the report was “exculpatory evidence because it demonstrates the firearm found with defendant was not linked to the shooting for which [she] was on trial.” As to whether it was material, the court found merit in her argument that “had she known about the NIBIN report prior to trial, her counsel would have moved to exclude the firearm from being admitted into evidence under MRE 402 and 403.” The probative value of the gun was low and “whatever relevance [it] would have had to the prosecution’s case,” introducing it “was overly prejudicial under MRE 403.” Given that it “had no link to the shooting, admitting it into evidence had the potential to mislead the jury. Further, the prosecution already provided the victim’s testimony of the events as evidence of the shooting. Thus, there was a reasonable chance [it] would have been excluded for being more prejudicial then probative.” In the absence of the gun, “the prosecution would have to rely exclusively on the victim’s testimony of the shooting” and the court found that “lacked indicia of credibility.” It also determined that the trial court’s jury instructions designed to remedy the issue “themselves were a source of error.”

Habeas corpus; 28 USC § 2254; The Antiterrorism & Effective Death Penalty Act (AEDPA); Ineffective assistance of trial counsel; Strickland v Washington; Failure to counter the government's expert forensic witness with an expert for the defense; Sentencing; Apprendi v New Jersey; Blakely v Washington

The court affirmed the district court’s denial of petitioner-Hale’s request for habeas relief. It held that the state court did not err by ruling that his trial counsel was not ineffective for failing to counter the government’s expert forensic witness with a defense expert where even the expert Hale presented in these proceedings did not “refute the state's forensic evidence.” He also was not entitled to relief as to his claim that “he received heightened noncapital sentences based on facts not submitted to a jury, in violation of” Apprendi and Blakely. Hale was convicted of murder and noncapital crimes. The state appellate courts affirmed his convictions. In his habeas petition, he first argued that his trial counsel was ineffective by not countering the government’s expert witness with an expert for the defense. After holding that this claim had not been defaulted, the court explained that if Hale’s counsel “explored the option of calling a forensic expert, then consciously chose another trial strategy that later failed, such a decision would be difficult to fault without falling into the trap of hindsight bias. . . . The trial record shows that, in fact, this is exactly what Hale’s counsel did.” There was evidence that Hale’s counsel chose “to avoid engaging the state in a battle of forensic experts, and instead weave a sympathetic narrative, based on elements of Hale’s character and behavior, that supported his theory of what occurred.” The court concluded “‘it was “well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts.”’” As to Hale’s sentencing claims, the court agreed that, a year after Blakely, he “received a heightened sentence for his noncapital charges based on facts that a jury never determined.” The Ohio Supreme Court “found that no plain error existed” and thus, the violation did not warrant overturning his sentence. The court noted that it would “not disturb the Ohio Supreme Court’s decision unless it unreasonably applied clearly established federal law in conducting its harmless-error review.” Given that it held “that the Ohio Supreme Court’s ruling reasonably adhered to United States Supreme Court precedent, AEDPA” mandated that it “also deny Hale’s second claim for habeas relief.”

Motion for compassionate release under 18 USC § 3582(c)(1)(A); The First Step Act; USSG § 1B1.13 as amended; The “catch-all” provision (§ 1B1.13(b)(5)); Whether the disparity between crack & powder cocaine sentences constitutes an “extraordinary & compelling circumstance”; Rehabilitation as a basis for relief; 28 USC § 994(t)

The court held that defendant-Washington’s challenges to Congress’s sentencing scheme for crack versus powder cocaine did not constitute an “extraordinary and compelling” reason to grant his motion for compassionate release. Thus, it affirmed the district court’s denial of his motion. Washington pled guilty to possession of crack cocaine with the intent to distribute and to using a firearm in a drug-trafficking crime and was sentenced as a career offender to 280 months. After his motions for post-conviction relief were denied, he unsuccessfully filed multiple motions for compassionate release under § 3582(c)(1)(A). This was his fourth. The court noted that the U.S. Sentencing Commission set forth the grounds for compassionate release in its amendments to § 1B1.13, and modified the “catch-all” provision, § 1B1.13(b)(5), upon which Washington based his claim. He argued that “the disparity between crack and powder cocaine sentences—set by Congress at a ratio of 18:1—is an extraordinary and compelling circumstance justifying release.” However, the court explained that the enumerated grounds generally focus on “circumstances personal to the defendant or his family.” The court concluded that “even though the consequences of the crack-to-powder disparity may be ‘grave,’ the catch-all provision is not a home for complaints that the generally applicable penalties set by Congress are too harsh.” While Washington also argued that his age and mental health could constitute grounds for compassionate release, this claim was forfeited where he did not raise these grounds in the district court. As for his claim based on his rehabilitation efforts, the court commended his efforts but agreed with the district court that they did not support a reduction. Pursuant to § 994(t), a defendant’s rehabilitation “‘alone shall not be considered an extraordinary and compelling reason’ for a sentence reduction.”

Compliance with the notice provision of the Court of Claims Act (COCA) (MCL 600.6431); Retroactivity of Christie v Wayne State Univ; Flamont v Department of Corr; Landin v Department of Health & Human Servs; Tyrrell v University of MI

Concluding the facts here were “nearly identical to Landin, and are distinguishable from Flamont,” the court held that Christie did not apply “retroactively in this case in which plaintiff relied upon Tyrrell.” Thus, it affirmed the trial court’s denial of defendant-employer’s summary disposition motion in this case in which plaintiff alleged racial discrimination. Defendant argued the trial court erred in denying summary disposition “because it did not retroactively apply the Supreme Court’s decision in” Christie, which held that plaintiffs must strictly comply with the COCA’s notice provision, “MCL 600.6431, by filing the requisite written notice of a claim with the Court of Claims.” The court noted that while “this case was pending on appeal, a panel of” the court issued a published opinion in Flamont, holding “that Christie has full retroactive effect as it applied to the facts of that case. In Flamont, the plaintiff filed their complaint” before the court issued its opinion in Tyrrell, where it ruled “that plaintiffs were not required to comply with the notice provision of the COCA if the claims were raised in circuit court.” After Flamont was issued, the court decided in another published opinion, Landin, “that ‘Christie does not apply retroactively to circuit court cases that were in a procedural posture wherein Tyrrell’s interpretation of MCL 600.6431 was the law in Michigan during the one-year notice or filing period following accrual of a claim.’” The court noted that “among the situations in which a new rule of law is new for the purposes of resolving the question of its retroactive application are those where an established precedent upon which the parties have relied is overruled.” The Flamont plaintiff “could not argue that Christie overruled a precedent upon which she relied. In stark contrast, Christie overruled a precedent upon which both the plaintiff in Landin and plaintiff in the present case relied, which was Tyrrell.” Thus, the court determined that here, pursuant to Landin, Christie did not apply retroactively “because Tyrrell was a binding precedent during the notice and filing period in this matter[.]”

Action for deaths arising from a workplace accident; The intentional-tort exception to the exclusive-remedy provision of the Worker’s Disability Compensation Act (WDCA); MCL 418.131(1); Distinguishing Travis v Dreis & Krump Mfg Co, Gulden v Crown Zellerbach Corp (9th Cir), & People v Film Recovery Sys (IL App); The Wrongful-Death Act (WDA); MCL 600.2922(1); Wesche v Mecosta Cnty Rd Comm’n; Stone Warehouse of Michigan (SWM)

Holding that the trial court did not err in ruling that plaintiffs’ exclusive remedy was under the WDCA and properly dismissed their claims under the WDA, the court affirmed summary disposition for defendant-employer (SWM) in this action arising from a fatal workplace accident. Plaintiffs’ decedents were both killed while trying “to move stone slabs stored on A-frame storage racks in one of SWM’s warehouses[.]” Plaintiffs asserted claims under the WDA and the intentional-tort exception to the WDCA’s exclusive-remedy provision. The court concluded the testimony here “failed to indicate that SWM’s owners and managerial employees had actual knowledge that injuries were certain to occur because of their deliberate actions or inaction regarding the configuration of the A-frame storage racks in the warehouse and the storage and handling of stone slabs.” As a result, this case was distinguishable from those the Michigan Supreme Court discussed in Travis. The facts here indicated “that SWM’s owners and managerial employees were aware that the stone slabs were stored in a dangerous manner and that the warehouse was overcrowded, which could lead to accidental injury if the stone slabs were not handled properly. However, unlike Gulden and Film Recovery Sys, SWM’s employees acknowledged that working in the stone industry is itself dangerous, they were aware of the potential for injury because of the overstocked condition of the warehouse, and the evidence does not lend itself to a conclusion that SWM’s owners and managerial employees had actual knowledge that an injury was certain to result from the manner in which the stone slabs were stored in the warehouse.” As to plaintiffs’ WDA claim, the Supreme Court in Wesche “acknowledged that the exclusive-remedy provision of the WDCA is a statutory limitation applicable to a WDA claim.” Similarly here, because the trial court did not err in granting SWM summary disposition based on the WDCA’s exclusive-remedy provision, it “likewise properly dismissed plaintiffs’ WDA claim premised on the WDCA.”

Termination under § 19b(3)(f); Child’s best interests

Concluding that § (f) existed and “the trial court did not err by finding that it was in AIM’s best interests to terminate respondent-father’s parental rights,” the court affirmed. It noted that the “Legislature clearly did not intend to give incarcerated parents with limited earning ability the right to abandon their children. When viewed through this lens, the requirement that incarcerated parents assist with supporting their children suggests that the requirement to provide ‘substantial and regular support’ must be assessed relative to the parent’s means.” Here, the court concluded that “there was evidence that respondent did obtain employment while incarcerated and earned money by taking classes. However, he spent the money on perks for himself, such as commissary purchases and text messages, rather than putting anything toward AIM.” The evidence also showed the father “failed to regularly or substantially visit, contact, or communicate with AIM, despite having the means to do so. Respondent could not recall the last time he tried calling AIM, and this alone shows he did not maintain regular or substantial contact with AIM. At best, respondent sent a few cards through the mail, which petitioners [AIM’s guardians] denied receiving. Respondent could have [had them] get in touch with AIM, could have sent more mail to AIM, and could have made an effort to arrange a visit with AIM at the prison. Respondent knew how to contact petitioners and knew where they lived, but he failed or neglected to communicate with AIM without good cause. There was no evidence that [they] prevented respondent from contacting AIM.”