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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Discovery; Recording of the victim’s police interview; Evidence related to defendant’s prior CSC III conviction; MCL 768.27b; Unfair prejudice; MRE 403; Sentencing; Scoring of OVs 3, 4, & 10; The Sex Offenders Registration Act’s (SORA) requirements; Amended felony information
The court held that the “trial court did not err by declining to sanction the prosecution for its incidental discovery violation because the prosecution acted in good faith and because defendant received the relevant materials well in advance of trial.” It also did not err in admitting evidence about his prior CSC III “conviction because the evidence was authorized by statute and did not cause any unfair prejudice.” Further, the “sentencing guidelines were properly scored, and the trial court did not engage in any fact-finding when it ordered SORA registration.” Finally, there “were no defects with the habitual offender notice in defendant’s information.” He was convicted of CSC III and sentenced to 120 to 180 months. He argued “that a discovery violation warranting reversal occurred when he was not provided the recording of” an officer’s interview of the victim. The court found that the “evidence established that the prosecution made a good-faith attempt to mail the relevant material within the required timeframe, but the material was returned due to insufficient postage. While the flash drive that ultimately did make it to the prison was not usable, there is nothing in the record suggesting that this was intentional. Further, defendant still obtained the material months in advance of trial. Therefore, the trial court did not abuse its discretion by declining to sanction the prosecution.” Further, he did not even suggest “on appeal that his defense was impacted by the delayed discovery.” Defendant also asserted that the trial court should not have allowed his police interview from his prior CSC III “case to be played for the jury.” His argument mainly focused “on his contention that this was character evidence that painted him as a serial rapist. However, the Legislature specifically exempted this category of character evidence from the general prohibition when it enacted MCL 768.27b, so categorizing the interrogation video as character evidence does not impact its admissibility.” Defendant conceded that the “evidence was admitted pursuant to MCL 768.27b but” emphasized it was “subject to MRE 403. This limitation notwithstanding,” he did not attempt “to distinguish the prior offense from the current one such that the evidence of it would result in unfair prejudice.” He further argued “that the video should have been excluded because it made him look like a liar. However, the Legislature has allowed admission of this sort of evidence ‘for any purpose for which it is relevant,’” and evidence relating to a party’s credibility “‘is always relevant.’” The prosecution’s theory “was that defendant lied to the police about a sexual assault, so evidence that [he] previously lied to the police about a sexual assault was an incredibly probative attack against his credibility.” Thus, the court held that “the trial court did not abuse its discretion by admitting the video of defendant’s interrogation from his prior” CSC III conviction. Affirmed.
Sentencing; Scoring of OV 14; MCL 777.44(1)(a); Multiple offender situation; “Leader”; People v Dickinson; Ineffective assistance of counsel; Failure to raise a futile objection to the scoring; Presentence investigation report (PSIR)
The court held that the trial court did not err in scoring 10 points for OV 14 given the evidence “of a multiple-offender situation, i.e., a situation in which both defendant and” his codefendant (S) “violated the law together, and that between the two, defendant acted as the leader[.]” Further, defense counsel was not ineffective for failing to object to the scoring. Thus, the court affirmed defendant’s 120 to 240-month sentence for possessing meth with intent to deliver. It concluded the evidence supported that his “entire criminal transaction was a multiple-offender situation.” The trial court noted that on the day “officers searched defendant’s property, he lived with” S, his girlfriend. The trial court also read the description of the offense from the PSIR, “including that officers found large quantities of methamphetamine in the house where defendant and [S] cohabitated. Throughout the property, officers also located other drugs, drug paraphernalia, guns, and ammunition.” The trial court found that S, at a minimum, “‘helped store the drugs that were sold, knowing why the drugs were there, and again, admittedly possessing them prior to the sale.’ Accordingly, ‘[a]t a minimum, it was [S] who was part of the group who were violating the law, a multiple offender situation.’ This finding is supported by a preponderance of the evidence outlined in the PSIR and recited by the trial court.” As to the determination “that defendant acted as the leader in the multiple-offender situation,” given that he admitted “he had a large quantity of methamphetamine in his house and that he sold it, and [S] lived in that house and ‘struggle[d] with’” meth abuse, this finding did “not create a definite and firm conviction that the trial court made a mistake.” As to his ineffective assistance claim, the court concluded he failed to articulate “a reasonable probability that defense counsel’s objection would have changed the sentencing outcome because the trial court almost certainly would have overruled the objection.”
Ineffective assistance of counsel; Advice based on a misunderstanding of the law; Failure to accurately describe the terms of a Cobbs agreement; Motion to withdraw a plea; Aiding & abetting
The court held that defendant was entitled to withdraw his plea because it was clear that he was given ineffective assistance of counsel that rendered his plea unknowing and involuntary. Thus, it reversed his armed robbery convictions and remanded. He pled guilty pursuant to the terms of a Cobbs agreement. The case arose from the armed robbery of a coffee shop. It was “undisputed that defendant drove his two codefendants that day, that he dropped them off near the coffee shop, that they robbed the coffee shop at gun point, and that he drove them away. The central dispute pertains to defendant’s knowledge and intent.” The court noted that while he “clearly admits to being an accessory after the fact, assisting his codefendants after learning that they committed some sort of an armed robbery is not enough to establish aiding and abetting.” It determined that what he described (a plan to take someone’s money for a drug purchase and flee without providing the drugs) was “an intent to aid and abet a larceny, and there does not appear to be any authority suggesting as a matter of law that armed robbery inherently is a natural and probable consequence of larceny.” The court found “that the proper approach is to examine the intended crime, examine the actual crime, and then determine whether the actual crime was a natural and probable consequence of the intended crime. When viewed in this light, robbing a coffee shop at gunpoint clearly is not a natural and probable consequence of swindling a would-be drug buyer.” The court concluded that “if a jury believed defendant was credible, it appears highly likely it would acquit. However, trial counsel advised defendant to accept the Cobbs agreement because he did not believe defendant could succeed at trial.” The court found that “trial counsel advised defendant that he could not prevail at trial on the basis of a misunderstanding of the law, defendant pleaded guilty without understanding that he had been describing a scheme to commit larceny rather than robbery, and trial counsel did not accurately describe the terms of the Cobbs agreement until immediately before defendant pleaded guilty.”
Ineffective assistance of counsel; Confrontation clause; Distinguishing Hammon v Indiana; Right to a properly instructed jury; MCR 2.512(D)(2); MCR 2.513(N)(1); People v Rodriguez; M Crim JI 3.3; Sentencing; Scoring of OV 19 (interference with the administration of justice); MCL 777.49(c)
The court held that defendant was not denied the effective assistance of counsel and that the trial court did not err by assessing 10 points for OV 19. He was convicted of AWIM and felony-firearm in the nonfatal shooting of the victim. The trial court sentenced him to consecutive terms of 30 to 60 years for the former and 2 years for the latter. On appeal the court rejected his argument that defense counsel rendered ineffective assistance by failing to object to the admission of the child’s statement that he was the shooter, noting the evidence was not objectionable. It found Hammon "lends no support to defendant’s argument that a spontaneous description of a crime, not made in response to a question, becomes testimonial if the same information was given earlier in response to questions from a different police officer." While the court agreed with defendant that defense counsel erred by failing to ensure that the jury was instructed it could not draw adverse inferences from his decision not to testify, reversal was not warranted because he could not show that this error affected the outcome of the trial. "[T]here are three reasons why defendant cannot establish prejudice. First, the evidence against [him] was overwhelming." Second, defense counsel "discussed this issue at length with the venire during the jury selection process, explaining that defendant did not have to testify and that the jury could not hold his decision not to testify against him." Third, the "totality of the [trial] court’s instructions adequately apprised the jury of who bore the burden of proof and what the appropriate considerations were." Finally, the court rejected his claim that he was entitled to resentencing because the trial court erred in scoring OV 19 as the evidence supported an inference that he "attempted to evade police, threw his gun out the window to keep the police from finding it, and told the van’s driver not to give the police any information."
Employment dispute implicating the Veterans Preference Act (VPA) (MCL 35.402) & the Whistleblower’s Protection Act (WPA) (MCL 15.362); Whether a military veteran comes within the protection of the VPA; DeGraaf v City of Allegan; "First deputy"; Cremer v Board of Rd Comm’rs of Alger Cnty; Whether the VPA was violated; Sherrod v Detroit; Whether termination was justified; In re Grant; WPA claim; West v General Motors Corp.; A plaintiff's motivation; Whitman v City of Burton
The court held that the trial court erred by granting defendants (city and officials) summary disposition of plaintiff's (a military veteran) VPA and WPA claims. Plaintiff sued defendants alleging violations of the VPA and WPA after his employment as assistant to the city manager was terminated. On appeal, the court agreed that the trial court erred by granting summary disposition for defendants. First, although “it was not erroneous for the [trial] court to recognize the necessity of addressing the question whether the” VPA applied, “there was conflicting evidence on the issue of whether or not plaintiff was a ‘first deputy.’” It was “not possible to resolve this question at this stage because doing so would require impermissible fact finding by the [trial] court on summary disposition.” The trial court “concluded that plaintiff was not a ‘first deputy’ by making fact finding and credibility determinations, basing its decision primarily on its finding that the opinions of” the former city manager were credible. Further, “it was undisputed that plaintiff was given both an oral and written indication that his employment was terminated . . . before he received any type of hearing under the VPA. Thus, there is no question of material fact that the VPA was violated.” And because the trial “court’s decision was based on fundamental misunderstandings of the legal framework, impermissible judicial fact finding on summary disposition, and its failure to properly apply the substantial evidence test,” the court vacated the trial court’s rulings as to the VPA. As to the WPA, the court noted that the trial “court’s assessment attempted to resolve the factual ambiguities that appear in the email conversation, which is improper on summary disposition.” Vacated and remanded.
Action by a healthcare provider seeking reimbursement of attendant care services; MCL 500.3112; Whether charges have been incurred; MCL 500.3107(1)(a); Douglas v Allstate Ins Co
Holding that plaintiff-healthcare provider failed to present evidence that defendant-insurer’s insured incurred the attendant care expenses for which plaintiff sought reimbursement, the court affirmed the trial court’s grant of summary disposition for defendant. Plaintiff sought reimbursement for attendant care services it provided to defendant’s insured, who was injured in a car crash. The trial court granted defendant summary disposition. In a prior appeal, the court affirmed. The Supreme Court remanded, finding that the court had “erred by applying the pre-amendment version of MCL 500.3112 to attendant care services that were provided after the effective date of the amendment of that statute.” On remand, applying the present version of the statute, the court again affirmed. It rejected plaintiff’s argument that it was entitled to collect the unpaid costs of the insured’s attendant care services, and, thus, the trial court erred when it granted defendant summary disposition. It found that while plaintiff was entitled to “commence a direct cause of action against [defendant] to recover overdue benefits payable for” its insured’s attendant care charges, it “could only seek reimbursement for charges actually incurred by” the insured. For plaintiff “to potentially collect $34 per hour from [defendant] for the attendant care services, it had to have charged [the insured] $34 per hour for the services. The fatal flaw in [its] action in this case is that it presented no documentary evidence, as necessary to create a genuine issue of material fact, that [the insured] was ever charged $34 per hour, or that she ever became obligated or liable to pay $34 per hour, for attendant care services.”
Claims for personal injury protection (PIP) benefits under a negligence/agent errors & omissions theory; Zaremba Equip, Inc v Harco Nat’l Ins Co; Special relationship; Harts v Farmers Ins Exch; MCL 500.2005(a); Haji v Prevention Ins Agency, Inc; Misrepresentation & innocent misrepresentation; Kassab v Michigan Basic Prop Ins Ass’n; M&D, Inc v McConkey; The No-Fault Act (NFA)
The court held that plaintiff’s claim for PIP benefits due to negligence based on an agent’s errors and omissions failed as a matter of law because “there was no special relationship between plaintiff and defendant’s agent giving rise to a duty to advise plaintiff” about the adequacy of her coverage. And her misrepresentation and innocent misrepresentation claims failed for the same reasons. Thus, the court affirmed summary disposition for defendant. After an auto accident, plaintiff claimed PIP benefits from defendant under her policy, but defendant denied them based on “her failure to maintain insurance in accordance with the” NFA. She sued “for ‘negligence/errors and omissions,’ and for ‘misrepresentation and innocent misrepresentation,’ with regard to defendant’s agent’s alleged failure to properly advise [her] about ‘the nature and extent of the coverage’ that defendant offered and provided.” She asserted that three of the special circumstances identified in Harts were created during a “phone conversation between herself and defendant’s agent, giving rise to a special relationship engendering defendant’s agent’s duty to plaintiff to advise her” on the adequacy of her coverage. But the court concluded the undisputed record evidence showed “that no special relationship was established creating a duty for defendant’s agent to advise plaintiff on the adequacy of her” policy. The “agent did not misrepresent the nature or extent of the coverage, plaintiff did not make any ambiguous request or statement calling for clarification, defendant’s agent did not offer [her] unsolicited advice, and the advice given was not inaccurate. . . . There was no evidence that defendant’s agent provided plaintiff with any false or otherwise misleading statements” about her policy. The court noted there was no indication she “notified the agent that her car was registered in Michigan, only that she had an existing California insurance policy with a California residential address.” Further, the record did not indicate that she “asked for, or ordered, an insurance policy that defendant’s agent failed to deliver; she asked only if she could ‘drive safely’ in Michigan under her policy. [The] agent answered that her existing policy was sufficient to cover her during her stay in Michigan, and, under the circumstances known to the agent, this was not false or otherwise misleading information.”
§ 19b(3)(j); Child’s best interests; Guardianship
Concluding that the trial court made sufficient factual findings as to termination under § (j) and that termination of respondent-mother’s parental rights was in the child’s (SJ) best interests, the court affirmed. “At the adjudication, the trial court found that respondent was a victim of her stepfather’s sexual abuse when she was a minor, was aware of her stepfather’s prior CSC conviction arising out of the abuse of his seven-year-old stepson, and had received warnings from CPS about her duty to protect SJ from her stepfather.” The trial court “found that respondent had created safety plans with CPS in which she was not to leave SJ unsupervised with her stepfather, but respondent failed to follow those plans and left SJ with her stepfather unsupervised despite her knowledge of his history and her suspicions that he had been sexually abusing SJ for several years.” It also found that she “struggled with her mental health and struggled to care for her children as a result, noting respondent’s testimony that she relied on SJ to help care for her other child.” The trial court further found that “respondent struggled to maintain her home during her depressive episodes, and . . . that [she] had previously struggled with financial and housing insecurity. In addition to its factual findings made at the adjudication, the trial court articulated other factual findings at the initial disposition.” It noted that respondent “continued to rely on and engage with her family and it found that respondent’s limited participation in services had not benefited her.” It also found “there was a history of domestic violence in respondent’s family household, noting an instance in which [her] brother pointed a shotgun at her.” It further found that she “had not remediated her mental-health issues that caused her to make decisions resulting in SJ’s abuse, and it found that the evidence did not suggest that respondent would make better decisions moving forward regarding SJ’s care.” The totality of the evidence amply supported “that there was a reasonable likelihood that SJ would be harmed if returned to respondent’s care based on respondent’s conduct.” Thus, the court was “not left with a definite and firm conviction that the trial court clearly erred by terminating respondent’s parental rights under” § (j). Also, her “argument that the trial court erred by failing to consider a guardianship for SJ” was without merit.