Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
View Text Opinion Full PDF Opinion
Business records; Notice; MRE 902(11); Self-authenticating records; Business-records exception to the hearsay rule; MRE 803(6); First Amendment; As-applied challenge; MCL 750.411s; Motion for a directed verdict; Ineffective assistance of counsel; Jury instruction “concerning commentary on public figures or matters of public concern”; Sufficiency of the evidence; Unlawfully posting a message; Sentencing; Scoring of OVs 12 & 19
The court concluded that: (1) “the trial court did not abuse its discretion when it allowed the prosecutor to admit the Facebook records as self-authenticating records under MRE 902(11),” (2) the trial court did not err when it denied defendant’s motion for a directed verdict on the ground that the prosecutor only adduced evidence of posts that were protected under the First Amendment, (3) she was not denied the effective assistance of counsel, (4) the trial court did not err when it found that she was not entitled to an instruction as to “commentary on public figures or matters of public concern because the facts did not support such an instruction,” and (5) there was sufficient evidence to convict her under MCL 750.411s. She was convicted of unlawfully posting a message, and sentenced to 90 days in jail with the sentence suspended and 3 years on probation. She first argued “that the trial court abused its discretion when it allowed the prosecutor to admit business records produced by Facebook.” On appeal, she only argued “that the prosecutor had to strictly comply with the notice provisions stated under MRE 902(11) before the trial court could admit the records. Because the prosecutor did not send a formal written notice, she maintains that the trial court could not admit the records under MRE 803(6). The rules of evidence allow the admission of hearsay evidence compiled through regularly conducted activity under MRE 803(6)—the business-records exception to the hearsay rule.” The court held that although “the prosecutor did not provide a separate, formal notice to the defense in which she related that she intended to admit the Facebook records as self-authenticating documents under MRE 902(11), she nevertheless met the minimum requirements of that rule with her disclosure because she both identified certified records and social media posts as evidence that she intended to admit, and the context provided by the preliminary examination made it amply clear that the Facebook records were the social media posts that were certified.” As to defendant’s as-applied challenge, under MCL 750.411s, the court concluded that the trial court correctly held that her “posts about the victim, which she posted on Facebook and her website, did not involve protected speech.” It determined that although “there was evidence that defendant was angry about the handling of her son’s assault case by the prosecutor and the police department, she did not create the website about the prosecutor or the police department—she created a website about the victim. The images and commentary posted on that website demonstrate that the purpose of the website was to demean and disparage the victim. There was nothing on the website that suggested that the goal of the website was to discuss, or bring to light, deficiencies in the police department or with the prosecutor’s office, which only tangentially involved the victim.” Affirmed.
Malicious destruction of trees, shrubs, grass, or turf in the amount of $200 or more but less than $1,000; Restitution; MCL 712A.30(3)(b) & 712A.31(1); Fair market value (FMV) versus repair costs; The components of the victims’ losses
Given that the victims “simply requested their actual, out-of-pocket losses,” the trial court did not err by “awarding those losses as restitution, irrespective of the [FMV] of the damaged golf course.” Further, except for a discrepancy in the arithmetic for “the components of the restitution amount,” the court concluded “the trial court neither abused its discretion nor committed any clear error in arriving at its restitution figure for” the golf club’s insurer (Westfield). Thus, the court vacated the $33,320 restitution award to Westfield and remanded “to allow the trial court to check its arithmetic and, if necessary, to amend the” restitution amount. It affirmed the trial court’s findings and restitution awards in every other respect. Respondent-juvenile (RM) argued “the trial court was obligated under MCL 712A.30(3)(b) to consider the [FMV] of the damaged property in establishing the amount of restitution.” But the court noted that “the victims of RM’s juvenile offense were not dispossessed of their property. Instead, they were forced to pay the costs necessary to return the property to the condition it was in before RM’s offense. In this circumstance, determining the [FMV] of the property makes less sense than determining how much it cost the victims to return the property to its original condition.” In this case, “the trial court did not err in awarding those losses as restitution, irrespective of the” damaged golf course’s FMV. As to the calculation of the restitution award, the award “must be confined to the amount of money actually required to repair the golf course. Additionally, any restitution in excess of the $2,500 deductible cannot be paid to the golf club” – all restitution exceeding the “deductible must be paid to Westfield in its capacity as the club’s insurer.” The trial court awarded it “the aggregate amount actually expended for repairs to the greens, as established by a preponderance of the evidence.” It made a “finding on each component of restitution and assigned a dollar value to each” one. But the court’s addition of the various figures added up to a different amount than the trial court reached.
Admission of preliminary exam testimony; Witness unavailability; MRE 804(a)(4); “Emotional distress”; Cross-examination; Fair trial; Witness’s invocation of the right against self-incrimination; Directed verdict; Sufficient evidence of AWIGBH & AWIGBH by strangulation
The court found that the trial court erred by concluding the victim (J) was unavailable as a witness but defendant failed to show the error was outcome-determinative. He also was not “deprived of a fair trial or his constitutional right to confrontation.” Finally, the trial court did not err by denying his motion for directed verdict. He was convicted of AWIGBH and AWIGBH by strangulation. Defendant challenged “the trial court’s determination that [J] was an unavailable witness and the admission of” her preliminary exam testimony. He argued “that the trial court’s rulings deprived him of his right to confront the witness.” The trial court found that J’s “attempted invocation of the Fifth Amendment, her refusal to testify, and her obvious emotional distress satisfied MRE 804.” Thus, it “declared her an unavailable witness.” But there was “no evidence that [J] was actually unavailable at trial. The trial court found that [J] was in emotional distress, but explicitly stated that it did not believe that her distress rose to the level of mental infirmity or mental illness under MRE 804. While mental infirmity or mental illness may justify declaring a witness unavailable under MRE 804(a)(4), ‘emotional distress’ alone is not one of the criteria for a finding of unavailability. More importantly, [J] did not ultimately refuse to testify.” A comparison of her preliminary exam “testimony and her testimony at trial reveals that her testimony remained largely consistent.” Thus, the trial court erred by finding that J was unavailable as a witness. But defendant failed to show that the “events gave rise to a violation of his constitutional right to confrontation.” The court found that he “was not deprived of the opportunity to undermine the allegations against him, nor was he deprived of an opportunity to impeach” J’s credibility. It concluded that despite the trial court’s evidentiary error, given the testimony provided by J, “including defense counsel’s cross-examination of her, as well as the other, very substantial evidence of defendant’s guilt that was presented at trial and untainted by any such error, defendant has not shown that ‘it is more probable than not that the error was outcome-determinative.’” Thus, reversal was not required. He next argued “that he was denied a fair trial by [J’s] mistaken invocation of the Fifth Amendment right against self-incrimination.” The court found that “there was no evidence that the prosecution called [J] as a witness knowing that she would invoke the Fifth Amendment.” Also, her “invocation of the right did not deprive defendant’s right to cross-examine her, as [J] was thoroughly cross-examined by defense counsel. And although it is not a determining factor, we note that [J] did not have a valid claim of privilege pursuant to the Fifth Amendment. She erroneously claimed the privilege because she did not want to testify. The trial court informed [J] that she did not have the right to claim the privilege and must testify.” Thus, her “mistaken claim of privilege did not constitute evidentiary error, nor was defendant deprived of a fair trial or his constitutional right to confrontation.” Affirmed.
Withholding of removal & asylum; Whether petitioner established a “legally cognizable social group” entitled to protection; 8 USC § 1101(a)(42); Characterization of the social group; Matter of W-Y-C- & H-O-B- (BIA); Claim for protection under the Convention against Torture (CAT); 8 CFR § 1208.18(a)(1); Board of Immigration Appeals (BIA); Immigration judge (IJ)
The court held that the BIA and IJ did not err in denying petitioner-Mateo-Esteban’s claim for asylum and withholding of removal where the particular social group that he initially identified, “people afraid of gangs in Guatemala,” was not a legally cognizable particular group. He was 5 years old when he entered the country illegally with his father in 2015. He applied for asylum, withholding of removal, and protection under the CAT. The IJ and the BIA ordered him removed, ruling that “people afraid of gangs in Guatemala” was not a legally cognizable group and that he did not show that the Guatemalan government would acquiesce in his torture if he returned. The court first considered Mateo-Esteban’s claim that the IJ and the BIA mischaracterized the social group he claimed to be a part of, that it should have been “minors threatened to be kidnapped by gangs in Guatemala.” But the court rejected this assertion, noting that when “pressed by the IJ about whether he was sure he wanted to define his social group as ‘people afraid of gangs,’ Mateo-Esteban’s attorney admitted ‘that is the only social group, really, that we can really put him under.’” The court concluded that given this “concession, much more than ‘substantial evidence’ supports the BIA’s finding that this was the lone group Mateo-Esteban presented to the IJ.” It held that he did not show “that he belongs to a legally cognizable particular social group. That defeats his claims for asylum and withholding of removal.” As to his claim for CAT protection, the court held that he failed to show “by a preponderance of the evidence that he will likely face torture in Guatemala and that it will be inflicted ‘with the consent or acquiescence of, a public official.’” It found that the 2018 United Nation’s Human Rights Report did not support his claim where the Report suggested that the Guatemalan government is trying to combat police misconduct and private violence, and his father’s failure to report extortion and the threats to kidnap Mateo-Esteban to the authorities weighed against him. The court held that taking “all the evidence Mateo-Esteban relies on at face value, [it] does not compel a finding that the government would acquiesce in his torture should he return.” The court denied his petition for review.
Amending the scheduling order; Adding a summary disposition motion hearing to a closed motion docket; Prejudice; Serious impairment of body function; MCL 500.3135; McCormick v Carrier
The court concluded that the trial court did not commit any procedural error as “to amending the scheduling order or its motion practice.” It also correctly granted defendant summary disposition based on the lack of a material question of fact whether plaintiff suffered a serious impairment of body function. The parties were involved in a motor-vehicle accident in which plaintiff was injured. She first argued that the trial court erred in amending the scheduling order and as a result, defendant’s summary disposition motion was untimely. The court found that “the trial court did not abuse its discretion by amending the original scheduling order to allow additional time for discovery.” As to the trial court’s consideration of the summary disposition motion on a day with a closed motion docket, the court determined there was “nothing to suggest that plaintiff was prejudiced by the trial court’s decision to entertain the motion on” a day with a closed motion docket. Finally, she claimed that the “trial court erred by concluding that she failed to establish a genuine issue of material fact as to whether she suffered a ‘serious impairment of body function’ for the purposes of MCL 500.3135.” The court found that “the evidence indicates that plaintiff suffers from post-concussion syndrome, as well as continuing pain in the head and back; that she played sports in high school but does not do so in college, apparently as a result of her continuing pain; and that her grade point average in college is lower than it was in high school. Arguably, the fact that [she] played sports in high school but does not do so in college as an apparent consequence of her continuing pain is sufficient to show the second and third elements of the McCormick test, i.e., that she lost (2) an ‘important body function’ that (3) affects her ‘general ability to lead [her] normal life.’” But the court held that “after reviewing the evidence, and setting aside the affidavit of [Dr. G], plaintiff has failed to satisfy the first element of the McCormick test, i.e., that she suffered an ‘objectively manifested impairment.’” Her claim rested solely on G’s affidavit, which indicated “that plaintiff suffers from post-concussion syndrome as a result of the accident. Notwithstanding that there are procedural issues with exclusive reliance on that affidavit, such as the fact that it is not supported by the underlying medical records themselves and the fact that it arguably was not timely filed, . . . the affidavit does not show that plaintiff suffered ‘serious neurological injury.’” Thus, the court found that “because the affidavit does not show [she] suffered a ‘serious neurological injury,’ and instead merely states, in a conclusory manner, that [she] suffers from post-concussion syndrome, it is insufficient to satisfy MCL 500.3135.” In addition, it did “not link that injury with [her] continuing pain, claimed inability to play college sports, or other negative aspects allegedly arising from the accident.” Affirmed.
Motion to terminate a PPO; PF v JF; Domestic relationship PPO (MCL 600.2950(1)); Engaging in conduct that violates MCL 750.411h; Hayford v Hayford
The court held that the trial court did not abuse its discretion in denying respondent’s motion to terminate the domestic relationship PPO obtained by petitioner. The parties were previously in a dating relationship. The court noted that engaging “in conduct that violates MCL 750.411h supports issuing a PPO.” Petitioner alleged in her ex parte petition for the PPO “that respondent induced someone to copy her apartment key and that he would enter her residence to take things or move them. She stated that [he] had his friends follow her and that a woman scratched her car at [his] request. She alleged that respondent had access to her cell phone and e-mail account, and used this access to read her messages and delete her photographs. After the PPO was filed, [she] received multiple text messages from unknown numbers that she believed were sent by [him]. She presented evidence of those text messages at the hearing. [They] came from three different phone numbers. Two of the texts referenced inviting petitioner over for grilled fish and wine, suggesting that the same person sent them. No one picked up the phone when [she] called the phone numbers, and she stated that respondent’s texting style matched that of the three texts sent from unknown numbers.” She also stated that she is afraid of him. The “text messages were electronic communications sent from a series of unknown phone numbers without petitioner’s consent, after she had changed her phone number multiple times. [They] came from a former dating partner who [she] alleged had sent other people to follow and harass her, repeatedly accessed her apartment, viewed personal emails and messages, and deleted personal photographs. Text messages from several unknown numbers, when received under the circumstances presented here, would undoubtedly cause a reasonable person to experience mental distress.” And there was record evidence that she “was in fact distressed by the continued contact.” The trial court determined her “testimony was credible, and that it was clear that she was frightened by the text messages.” The court deferred to its credibility findings and concluded they were not clearly erroneous. Affirmed.
Removal & placement in foster care; MCL 712A.13a(9); MCR 3.965(C)(2); The trial court’s factual findings; Rittershaus v Rittershaus; Anticipatory neglect; In re LaFrance
The court held that the trial court did not err by removing the children from respondent-mother’s care. They were removed on the basis of abuse and neglect. On appeal, the court rejected respondent’s argument that the trial court failed to make all the required factual findings prescribed by MCL 712A.13a(9) and MCR 3.965(C) before removing them from her care. It concluded the record supported “the trial court’s findings of substantial risk of harm to the children’s lives, physical health, or mental well-being, as required under MCL 712A.13a(9)(a).” And it was “reasonable for the trial court to conclude that more than one incident had caused the children’s injuries, and whether those incidents occurred over days or weeks, all three children were at a substantial risk of harm if they remained in” her care. In addition, her contention that she complied with all the medical recommendations and otherwise exercised proper supervision was without merit. Further, her “reluctance to consent to a CT scan was not the sole factor in the trial court’s decision concerning improper care. It was part of the totality of circumstances that the trial court considered in determining that the children were at a substantial risk in” her care. Moreover, respondent’s “claim that there was no evidence that her home was unsuitable misses the mark. The key issue was [her] ability to keep the children safe as their caregiver, not the physical attributes of the home.” Finally, the trial court did not err by removing the children under the doctrine of anticipatory neglect. Given the evidence, it did not err by “finding, for purposes of MCL 712A.13a(9)(b), that no adequate safeguards could be employed for the children to remain safely in [her] care because she at least shared the responsibility for the children’s non-accidental serious injuries. Similarly, remaining in the home would have been contrary to the children’s welfare for purposes of MCL 712A.13a(9)(c).” Further, the trial court’s placement of two of the children “in a licensed foster care home was adequate to safeguard the children’s health and welfare, and the trial court ordered the DHHS to make reasonable efforts to work with [respondent] with the goal of returning the children safely to her home.” Affirmed.