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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Right to a fair trial; Prosecutorial misconduct; Reference to a defense witness’s outstanding warrant; Ineffective assistance of counsel for failing to object
The court found no plain error in the prosecution’s closing argument reference to a defense witness (C) having an outstanding warrant and also rejected defendant’s claim that defense counsel was ineffective for failing to object. Defendant was convicted of CCW and resisting or obstructing a police officer after a traffic stop conducted by Officer T. The court noted that the trial court “incorrectly stated after closing arguments, when expressing distaste for the prosecution’s reference to the warrant, that there ‘was[n’t] any evidence in this trial relating to witness [C] having a warrant for her arrest.’ First, there was a reference to the warrant heard on the body cam footage played to the jury with no objection. Second,” T stated during his testimony that there was a warrant out for C’s arrest. “Given these references during trial to [C’s] warrant, the remark made during closing did in fact reference evidence that was already admitted at trial. Defense counsel specifically asked about the warrant during [T’s] cross examination, thus opening the door for rebuttal on this point by the prosecution. Further, considering the brevity of the reference to the warrant in closing, and that the warrant had been previously mentioned with no objection earlier in the case, as well as considering the evidence presented at trial supporting the verdict and sentence in this case,” the court concluded it could not be said that defendant met her burden to show “error that seriously affected the fairness, integrity, or public reputation of the trial proceedings.” It also found no merit in her ineffective assistance claim, holding that “defense counsel’s failure to object at closing was not legally deficient considering that the evidence had already been presented multiple times at trial, via [T’s] testimony and video evidence played for the jury.” Affirmed.
Prosecutorial error; Questioning about defendant not having a license or insurance on his vehicle; Distinguishing People v Robinson; Prosecutor “outburst” allegedly denigrating defense counsel; Rebuttal argument; Appeal to the jury’s civic duty; Prejudice
Concluding that defendant was not denied his right to a fair trial, the court affirmed his conviction of receiving or concealing stolen property with a value of $1,000 or more but less than $20,000. The case arose out of the theft of a camper trailer. Defendant argued “that the prosecutor erred by asking him and his girlfriend questions about him not having a license or insurance on his truck in front of the jury.” He relied on Robinson. But Robinson did not apply here. There, “the prosecutor knew that evidence about the stolen car was inadmissible at trial, but nevertheless deliberately elicited the defendant’s testimony about it in front of the jury. This error was compounded by the trial court’s inexplicable decision to allow the prosecutor to continue the improper line of questioning.” In this case, “the prosecutor’s remarks—and the trial court’s response—were far less egregious. The prosecutor’s questions about defendant’s lack of a license and insurance, though likely improper, were very brief. Further, unlike Robinson, the trial court in this case correctly responded to defense counsel’s objection by instructing the prosecutor to ask more appropriate questions.” The court held that the brief mention of his “lack of a license or insurance, in light of the admissible evidence at trial, did not prejudice defendant so much as to deny him his right to a fair trial.” He also claimed “the prosecutor’s ‘outburst’ improperly denigrated defense counsel ‘by making it seem like defense counsel was asking absurd questions.’” The court found that he mischaracterized the prosecutor’s statements. The “exchange occurred after defense counsel repeatedly asked [a witness] questions about his possible sentence had he not entered into a plea deal with the prosecution. The prosecutor objected to these questions about ‘possible sentences’ countless times, and the trial court repeatedly instructed defense counsel that his questioning was improper because it oversimplified the extensive considerations that go into sentencing a criminal defendant. This ‘outburst,’ as defendant calls it, was the result of defense counsel’s decision to disobey the trial court’s instructions.” Nothing about this exchange suggested “the prosecutor was trying to denigrate defense counsel.” While the court found “the prosecutor’s rebuttal argument included an improper appeal to the jury’s civic duty” it concluded the “brief remark was insufficient to overcome the overwhelming evidence of defendant’s guilt that was properly presented to the jury.”
Ineffective assistance of counsel for failing to provide proper notice of the affirmative defense of involuntary intoxication; People v Caulley; Notice of intent to raise the defense; MCL 768.20a(1); Failure to make a meritless argument; Sentencing; Scoring of OV 5 (serious psychological injury); MCL 777.35(1)(a); Effect of the fact treatment has not been sought; MCL 777.35(2); People v Calloway; Scoring of OV 6 (intent to kill or injure); MCL 777.36(1)(b) & (c); Great weight of the evidence; Second-degree murder; Voluntary manslaughter; Heat of passion; People v Yeager; Intent; Malice
Holding that defendant was not denied the effective assistance of counsel, that he was not entitled to resentencing, and that the verdict was not against the great weight of the evidence, the court affirmed his convictions and sentence. He was convicted of second-degree murder and related gun offenses for the fatal shooting of his partner, H. The trial court sentenced him as a fourth offense habitual offender to 40 to 100 years. On appeal, the court rejected his argument that defense counsel was ineffective for failing to provide proper notice of the affirmative defense of involuntary intoxication. “While defense counsel acknowledged he failed to provide sufficient notice of the defense, we agree with the trial court that [defendant] failed to prove, by a preponderance of the evidence, that his intoxication was a result of taking prescribed medications alone.” Defendant’s affirmative “defense of involuntary intoxication would have failed even if defense counsel had provided sufficient notice of his intent to raise the defense 30 days before trial.” The court also rejected his claim that the trial court erred when it assigned 15 points to OV 5 and 25 points to OV 6. It noted evidence was presented at trial that the children were in the house when he killed H. As to OV 5, the record “‘provided a reasonable basis for the [trial] court to conclude that [H’s] family members suffered serious psychological injury.’ Indeed, ‘[p]oints are also properly assessed when the serious psychological injury may require professional treatment in the future, regardless of whether the victim’s family member presently intends to seek treatment.’” The trial court also did not err in scoring 25 points for OV 6 as defendant “was convicted of second-degree murder, triggering the required scoring of OV 6.” The facts met “the standard enumerated in MCL 777.35(1)(b) because [he] acted with unpremeditated intent to kill or created a very high risk of bodily harm.” Finally, the court rejected his great weight of the evidence challenge to his second-degree murder conviction. He claimed he did not intend to harm H, “but could not remember retrieving the gun or shooting her. [He] called 911 and remembered informing the operator he shot [her]. As a result, the record” showed that his actions killed H, and that he killed her with malice.
Ineffective assistance of counsel; Failure to argue defendant should have been charged & sentenced as a juvenile; Automatic waiver; MCL 764.1f(1); Failure to sufficiently prepare witnesses for trial & to utilize certain evidence; Failure to provide the correct plea offer; Failure to call an expert witness; Motion for new trial
Concluding that defendant was not denied the effective assistance of counsel and that the trial court did not abuse its discretion in denying his motion for new trial, the court affirmed. He was convicted of CSC I, CSC II, and assault with intent of sexual penetration. He first asserted “that his trial counsel was ineffective because he failed to argue that defendant should have been charged and sentenced as a juvenile, not an adult, because he was under 14 years old when he committed the acts in support of his convictions.” The court noted that the case involved the automatic waiver process. “The prosecutor automatically waived the family division’s jurisdiction by filing a felony complaint and jurisdiction was vested in the criminal division of the circuit court.” Defendant’s acquittal of a CSC I charge “under MCL 750.520b(2)(b) did not strip the criminal division of its jurisdiction. Once jurisdiction has properly attached, ‘there is a presumption against divesting a court of its jurisdiction . . . and any doubt is resolved in favor of retaining jurisdiction.’” The court noted that the “criminal division had jurisdiction to sentence defendant as an adult for his convictions. Moreover, testimony at trial established that defendant was 14 years of age or older when the offense occurred. Trial counsel was not ineffective for failing to advocate for a meritless position.” The court also rejected his other ineffective assistance claims. Finally, defendant argued “that the trial court abused its discretion by denying his motion for new trial.” But considering the evidence presented and witness-TH’s “recantation testimony, the trial court did not err by concluding that TH’s testimony would not make a different result probable on retrial. Accordingly, the trial court did not abuse its discretion when it denied defendant’s motion for new trial.”
Determination of whether a location is within the special maritime & territorial jurisdiction of the U.S.; Taking judicial notice instead of submitting the question to the jury; Apprendi v New Jersey; United States v Gaudin; Whether the question of a location’s jurisdictional character is a legislative or an adjudicative fact; Juror bias; Voir dire; FedRCrimP 24(a)(1)
In an issue of first impression in this circuit, the court held that whether the U.S.’s special maritime or territorial jurisdiction existed is a legislative, not an adjudicative fact, and thus, the jurisdictional issue is a legal one. As a result, the district court did not err by taking judicial notice that Fort Campbell was within the U.S.'s special maritime and territorial jurisdiction rather than submitting the question to the jury. Defendant-Silvers was convicted of killing his wife, an active member of the Army, while she was on Fort Campbell military base. He was sentenced to life in prison. He first argued on appeal “that the district court erred in taking judicial notice of the fact that Fort Campbell was within” the U.S.’s special maritime and territorial jurisdiction. He asserted that the issue should have instead been submitted to the jury. The court found that the jurisdictional element of crimes such as those at issue in this case include “two separate inquiries: first, whether the parcel of land falls within the United States’ special maritime and territorial jurisdiction; and second, whether the alleged offense occurred within that area.” It agreed with Silvers “that the second inquiry is a question of fact that, under Gaudin and Apprendi, must be submitted to the jury and proven beyond a reasonable doubt. But the first inquiry—the pure question of a location’s jurisdictional character—is a legal question, one which turns on legislative, not adjudicative, fact.” Thus, a district court may “direct a jury to take judicial notice of the existence of that jurisdiction without violating the constitutional command set forth by Gaudin and Apprendi.” Turning to Silvers’s claim that a juror who had not revealed that he once served in the Navy was biased, the court was not convinced that the district court abused its discretion in “finding that Juror 5—who had never worked for the Army, and therefore did not answer in the affirmative when asked if he had worked for the Army—answered the [district] court’s questions honestly[.]” The court rejected Silvers’s contention that the voir dire questioning “was constitutionally inadequate. The district court asked a detailed question about potential jurors’ prior involvement with the Army in order to expose any impermissible bias in favor of the victim due to her status as an active-duty member of the Army. That [its] question focused on the particular branch of the military in which ]the victim] served was not an abuse of the district court’s broad discretion in conducting voir dire.” Finally, the court held that Silvers’s mandatory life sentence was “constitutional under binding Supreme Court precedent[.]” Affirmed.
Homeowner’s insurance coverage dispute; Whether the trial court relied on admissible evidence in ruling on a summary disposition motion; Hearsay; Latits v Phillips; Video footage; Statements from a police report; Intentional-acts policy exclusion; Insurance contract interpretation; Allstate Ins Co v McCarn (McCarn II); Allstate Ins Co v Keillor (On Remand); Distinguishing the policy at issue in McCarn II; Whether the policy was ambiguous
The court held that the trial court did not err in relying on surveillance video footage in ruling on plaintiff-insurer’s (Meemic) summary disposition motion and that any error in relying on hearsay-within-hearsay in a police report was harmless. It further concluded there was no genuine dispute of fact “that bodily injury could reasonably be expected from” defendant-insured’s (Metiva) act of placing a nonparty (M) “in a headlock and dragging him to the ground[.]” It found that the terms of the homeowner’s policy at issue were not ambiguous and precluded coverage here. Thus, it affirmed summary disposition for Meemic. When Metiva and M fell to the ground, they landed on defendant-Fitzgerald, injuring her, and she sued Metiva. Meemic then brought this action for declaratory relief, asserting among other things that “the incident fell within the policy’s intentional-acts exclusion.” On appeal, Fitzgerald asserted “that the trial court impermissibly relied on hearsay evidence” in the form of surveillance footage and a police report in reaching its decision on Meemic’s summary disposition motion. But the court noted that surveillance “video evidence is not hearsay because it is not a statement, and generally admissible assuming it is relevant, not otherwise prohibited by law, and is authenticated pursuant to MRE 901” The footage here “captured the altercation between Metiva and [M] without any audio, or any postincident interview footage with eye witnesses. Further, no party in this matter disputes the surveillance footage’s authenticity” and Metiva authenticated it. Further, because the footage supported the trial court’s descriptions of what occurred, and it “could have reached the same conclusion reviewing the surveillance footage alone, any error made in” relying on the police report was harmless. The court applied “an objective standard, not McCarn II’s subjective standard” in interpreting the policy contract and also noted that there was “a meaningful distinction between the policy in McCarn II and the policy at issue” here. The court agreed with the trial court that, “objectively, Metiva’s act of placing someone in a headlock and pulling them to the ground could reasonably be expected to cause bodily injury.” Thus, the trial court did not err in determining that the exemption in § (II)(1)(A) of the policy applied.
Failure to act on a use variance; Comparing Norman Corp v City of E Tawas; Whether a use variance is a vested property right; Nonconforming use; Relief from judgment; MCR 2.612(C)(1)(d) & (e); Moot issues as to a motion for civil contempt for failure to obey a court order; MCL 600.1701(g); MCL 600.5801(4); Zoning Board of Appeals (ZBA)
Holding that a zoning use variance is a vested property right only if the variance is acted upon by the applicant, the court reversed the trial court’s order and remanded. Defendant-ZBA denied plaintiff’s application for variances on his property. After remand by the trial court, the ZBA “moved to ‘grant the minimum variances necessary to accommodate a commercial building not to exceed 3,352 square feet total.’” Plaintiff never obtained a building permit, and construction never started. Five years later, the Township Board adopted an ordinance providing that “the ZBA was no longer authorized ‘to grant use variances.’” Plaintiff sought to have the court ordered variances granted because the prior variances granted by the ZBA were ineffective under the new ordinance. The trial court found that plaintiff possessed “a vested right in the use variances previously granted” and remanded to the ZBA. On appeal, the court agreed with the ZBA that the trial court erred by denying its motion for relief from judgment as it fulfilled the requirements of the trial court’s earlier order by granting the variances, that “those variances expired and became null and void” through no fault of the ZBA, and that it no longer had legal authority to grant plaintiff the requested use variances. “The ZBA carried out the trial court’s mandate by granting to plaintiff the requested variances . . . , and no further action was required to comply with the order.” In addition, “plaintiff had one year from the time his zoning use variance was granted to obtain a building permit, and the variance did not take effect, i.e. it did not vest, until a building permit was issued.” As in Norman, “because plaintiff never acted upon the variances granted to him” in 2012, he never acquired a vested property right. “Under the plain language of the applicable zoning ordinance, the approval of the variances expired and became null and void, and plaintiff never timely requested the ZBA to extend the time period to secure a building permit. It is undisputed the variances became ineffective as a result.” The court concluded it was “bound to apply the zoning ordinance as amended,” and the ZBA cannot reissue the variances. Finally, the court found moot the ZBA’s contention that the trial court erred by granting plaintiff’s motion for civil contempt, noting the trial court did not explicitly hold the ZBA in contempt.
Guardian removal; The Estates & Protected Individuals Code (EPIC); Changing proceedings from a modification of the guardianship to a removal of the guardian; Notice; MCL 700.5311; Failure to perform a suitability analysis before removing appellant as guardian; In re Redd Guardianship; MCL 700.5310; Plain error review; Appointment of a professional guardian; MCL 700.5106(1) & (2); Individuals with priority; MCL 700.5313(2) & (3); In re Gerstler Guardianship
The court held that the probate court’s apparent shifting of the proceedings from guardianship modification to removal at the start of the hearing was inconsistent with the notice requirements of MCL 700.5311. Further, a “probate court needs to determine a guardian’s unsuitability” and the court concluded the findings in this regard here were “unconvincing.” In addition, it agreed with appellant that the probate court erred “by appointing a professional guardian without first establishing on the record that no other individuals with priority were either willing or suitable to serve.” Thus, the court reversed the “order removing him as guardian of his wife, AMS, an incapacitated person, and appointing appellee to be AMS’s professional guardian” and remanded. Appellant argued “that the probate court abused its discretion by changing the proceedings from a modification of the guardianship to a removal of the guardian without providing him and AMS with the notice required by statute.” The court determined that reversal was mandated based on this issue. “The notice of the hearing issued to the appellant and AMS indicated a modification rather than a removal. It was only upon the commencement of the hearing that the probate court appeared to shift the proceedings from modification to removal. This deviation was not consistent with MCL 700.5311(1). Furthermore, there is no evidence to suggest that AMS received personal service in accordance with MCL 700.5311(2). Such requirements are mandated, as underscored by the use of the term ‘must.’” On remand, AMS and appellant “must receive the necessary notice prior to convening a removal hearing.” The court also concluded the probate court plainly erred in “not engaging in the proper analysis” as to appellant’s unsuitability and this error affected his “substantial rights because he was removed as AMS’s guardian. . . . On remand, the probate court must follow the EPIC and determine whether appellant was suitable before removing him as guardian.” In addition, the “probate court neglected to consider whether there were other competent, suitable, and willing individuals with priority, such as AMS’s two daughters and sister.” It must make the necessary findings on remand before appointing a professional guardian.
Tender-years hearsay exception; MCR 3.972(C)(2); In re Archer; Burden of proof; Termination under §§ 19b(3)(b)(i), (j), & (k)(ix); Child’s best interests; MCL 712A.19b(5); Failure to investigate potential relative placements; MCL 722.954a(2); Plain error review
The court held that the trial court did not abuse its discretion in admitting testimony under the tender-years hearsay exception or in finding statutory grounds to terminate both respondents-parents’ parental rights. But it conditionally reversed the trial court’s findings that termination was in the child’s (DN) best interests due to the “DHHS’s failure to comply with its statutory duty under MCL 722.954a(2) to investigate relative placements,” and remanded. As to the admission of a teacher’s testimony about four-year-old DN’s statements, the court noted that “the tender-years hearsay exception does not require that the child’s statements be made in a recorded interview or as a result of a forensic interview.” Further, the record suggested that DN’s “statements were spontaneous. She was not being interviewed for the purpose of ascertaining whether she was being sexually abused. Rather, she was being asked to explain her behavior.” In addition, “the majority of her terminology was unexpected of a” child her age. The court also found that her “history of inappropriate behavior at school” supported a finding of reliability. And later statements supported the inference “her initial disclosure was reliable and that, after being coached while in the care of her grandmother, she tried to hide the abuse in order to be returned to” her parents. Further, there was “no indication that DN had any motive to fabricate the allegations.” Respondent-mother mentioned that the “DHHS failed to investigate potential relative placements before placing DN with an unrelated foster family.” While neither respondent argued that this was an independent basis for reversal, the court reviewed the issue for plain error. It found it was “plain that DHHS did not comply with its statutory duty” and further that failing to even try “to keep DN from being separated from her biological family seriously affects the fairness, integrity, and public reputation of judicial proceedings.” The court additionally concluded “given that the child’s rights are also directly impacted by the failure to consider relative placement, it is appropriate to consider whether the failure affected the child’s substantial rights.” It could not determine on the existing record whether DN “would or would not have been placed with relatives if DHHS had not ignored its statutory duties.” Affirmed in part, conditionally reversed in part, and remanded.
Termination under § 19b(3)(b)(i); Child’s best interests; In re White; Parent-child bond; In re Olive/Metts Minors; Physical abuse; In re Schadler; Nonaccidental abusive head trauma (AHT)
Holding that § (b)(i) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated after a medical exam confirmed the child’s injuries were consistent with AHT rather than an accidental fall from the bed. On appeal, the court rejected his argument that a statutory ground for termination was not met. On the basis of the evidence, including the medical evidence, the court held that the trial court did not err by finding respondent caused the child’s “injuries and there was a reasonable likelihood of injury in the foreseeable future.” Because the child “suffered nonaccidental injuries while in respondent’s care, there was clear and convincing evidence to establish statutory grounds for termination under” § (b)(i). The court also rejected his claim that termination was not in the child’s best interests. The child “suffered serious injuries while in respondent’s care.” And he “was uncooperative with the DHHS investigation by refusing to answer questions regarding” the child’s injuries. His explanation for the “injuries was incongruent with the medical diagnosis. This abuse amounted to aggravating circumstances under MCL 722.638(1) and (2).” Further, respondent did not provide the “DHHS with verification of income, or allow a home assessment.” Meanwhile, the child “was doing well in his placement. He was meeting his developmental milestones and receiving continued medical care.”