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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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42 USC § 1983 action as to a wrongful conviction; Whether the court had jurisdiction to review defendant’s claim that Heck v Humphrey prevented review of plaintiff’s vacated conviction; Chaney-Snell v Young; Whether the court had jurisdiction to review the denial of qualified immunity on the Brady v Maryland claim; Clark v Louisville-Jefferson Cnty Metro Gov’t; Collateral estoppel; Peterson v Heymes; Qualified immunity on the “suggestive identification” claim
[This appeal was from the ED-MI.] The court held that it lacked jurisdiction to review defendant-Detective Olsen’s claim that plaintiff-Salter’s conviction was not properly vacated under Heck. Further, to the extent it had jurisdiction over his challenge to Salter’s Brady claim, the court rejected it. Finally, it held that he “was not entitled to qualified immunity on Salter’s suggestive identification claim.” Salter wrongfully served 15 years in prison for a shooting. He brought this civil rights case against defendant-City and the lead investigator on the criminal case, Olsen, for violating his constitutional rights by withholding exculpatory evidence under Brady, and by conducting a photo identification with the only witness that was unduly suggestive. The district court denied Olsen’s motion for summary judgment based on qualified immunity. On appeal, the court first addressed the issue of jurisdiction, holding that it did not have interlocutory jurisdiction over several aspects of Olsen’s appeal. As to his claim that Salter’s conviction was not properly vacated under Heck, in Chaney-Snell the court held that it lacked jurisdiction to review a Heck challenge from a denial of qualified immunity on a § 1983 claim on interlocutory appeal. Olsen also argued he was improperly denied qualified immunity on Salter’s claims that his rights were violated by Olsen’s failure to turn over evidence implicating another individual, in violation of Brady, and by using only a single-photo show-up during the investigation. The court held that it also largely lacked jurisdiction to review his arguments as to the Brady claim where there were mixed questions of law and fact. It noted that in Clark, it “recently clarified that, in the Brady context, we lack jurisdiction to consider such mixed questions in an interlocutory qualified immunity appeal.” However, to the extent that it could have jurisdiction, it allowed the claim to go to the jury. As to Olsen’s collateral estoppel argument, based on the fact that the state court in the criminal case had found that the show-up was not impermissibly suggestive, the court held that Michigan law provides that “a vacated criminal conviction and the interlocutory rulings supporting it have no preclusive effect[,]” even if it is vacated by stipulation. As for the due process claim regarding the “unnecessarily suggestive” identification procedure, the court held that “[b]ased on binding precedent, a reasonable officer would have known the single-person show-up would not produce a reliable identification[,]” and thus Olsen was not entitled to qualified immunity on this claim. Affirmed in part and dismissed in part for lack of jurisdiction.
Probable cause to issue a search warrant; Admission of blood-test results without testimony from the phlebotomist who conducted the blood draw; Exclusion of expert witness testimony about ketoacidosis; Jury instructions; Opportunity for questions or objections on the record before the instructions were read; Exclusion of M Crim JI 15.5(1); Inclusion of M Crim JI 4.16; Proximate cause instruction; Sentencing; Scoring of 20 points for OV 18; Presumption required by MCL 769.34; Imposing jail time; Cumulative effect of alleged errors
The court held “that a reasonably cautious person could have concluded that the affidavit provided a substantial basis for the finding of probable cause in this case.” Also, it found that while “the phlebotomist did not testify at trial, the testimony admitted at trial was sufficient to ensure that the blood tested was defendant’s and that the sample was reliable.” Further, the trial court “did not prohibit defendant from presenting his own witness or establishing a defense” regarding ketoacidosis. The court also found that any error related to the jury instructions was harmless and rejected his sentencing challenges. He was convicted of OWI causing serious impairment and sentenced to 45 days in jail and 3 years of probation. As to the issue of probable cause for a search warrant, the court noted that “the officer explained the following reasons for believing that defendant was under the influence: (1) that defendant smelled strongly of intoxicants, and (2) that [he] hit a stopped vehicle at a rate of speed fast enough to leave the other vehicle overturned roughly 50 yards away from the intersection.” The court held “that the strong odor of intoxicants, combined with the physical facts of the collision, could have led a reasonably cautious person to have concluded that there was a substantial basis for the finding of probable cause” here. Defendant specifically argued “that because diabetes can explain both the accident and the odor of intoxicants, there was not enough information in the affidavit to allow a reasonable person to find probable cause. But, the magistrate was responsible for making ‘a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” The court concluded that because “the information in the affidavit could have led a reasonably cautious person to conclude that there was a fair probability that defendant was operating under the influence—regardless of whether the information could have also led a reasonably cautious person to conclude that there was a fair probability that [he] was suffering from a health complication—the magistrate did not err.” Affirmed.
Whether MCL 768.37 (barring defendants from asserting voluntary intoxication as a defense) violates the constitutional right to present a defense; Montana v Egelhoff; People v Soriano (Unpub); “Flight” jury instruction; Sentencing; Scoring of OVs 9 & 14; Whether resentencing was required after the trial court changed the OV 9 score; “Leader in a multiple offender situation”; MCL 777.44(1)(a)
In these consolidated cases arising from an armed confrontation, the court held that defendant-Daniel could not establish plain error as to his right to present a defense. Also, it found that “the trial court did not abuse its discretion by reading the flight instruction to the jury.” As to defendant-David, the court rejected his sentencing challenges. Daniel argued “that MCL 768.37, which bars defendants from asserting voluntary intoxication as a defense, violates his constitutional right to present a defense.” The court noted that this issue was unpreserved. Thus, for him to prevail, it had to “not only conclude that the 1963 Michigan Constitution offers greater due process protection than its United States counterpart regarding the defense of voluntary intoxication; we also must determine that such a conclusion is not subject to reasonable dispute.” The court held that the “trial court’s failure to sua sponte declare MCL 768.37 unconstitutional in spite of the United States Supreme Court’s contrary holding in Egelhoff cannot be described as a clear or obvious error.” It noted that the fact that it recently, in Soriano, “rejected the same argument against the statute’s constitutionality further cements our conclusion that, at a minimum, Daniel’s contention is ‘subject to reasonable dispute.’” The court found that Soriano was “particularly persuasive because the issue is not whether the previous panel was correct but whether its conclusion was reasonable.” Thus, he could not establish plain error. David challenged the scoring of 10 points for OVs 9 and 14. But at a hearing on his “postconviction motion to correct an invalid sentence, the prosecution agreed that OV 9 should have been assessed at zero” and the trial court accepted the parties’ stipulation to do so. This change “lowered David’s guidelines range, as a fourth habitual offender, from 12 to 48 months, to 10 to 46 months, . . . However, the trial court declined to resentence David because the 30-month minimum sentence actually imposed remained within the adjusted guidelines range, and [it] stated it would issue the same sentence despite that adjustment. ‘Thus, resentencing is not required because the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.’” The court also held that the record supported the trial court’s finding that he was a leader for purposes of OV 14. Affirmed.
Sentencing; Mandatory 25-year minimum sentence for CSC I; People v Benton; Lifetime sex-offender registration; The Sex Offenders Registration Act (SORA); Lifetime electronic monitoring (LEM); Cruel or unusual punishment; People v Stovall; People v Kiczenski; People v Hallak; People v Lockridge; 10-year departure from the mandatory minimum; Proportionality
The court rejected defendant’s claim that the mandatory minimum sentence for CSC I, lifetime sex-offender registration, and LEM constituted cruel or unusual punishments. And it held that the trial court’s 10-year departure in imposing a 35-year minimum sentence for his CSC I conviction was not disproportionate to the offense and offender. He was also convicted of CSC II and indecent exposure. He first argued “that SORA’s lifetime registration requirement for tier III offenders is facially unconstitutional.” But the court held in Kiczenski “‘that the 2021 SORA does not constitute punishment as applied to’” CSC I offenders. Because he is a CSC I “offender, SORA is not a punishment as applied to him. If a statute can survive any as-applied challenge, then it necessarily follows that it can survive a facial challenge because prevailing on a facial challenge requires a showing ‘that there is no set of circumstances under which the statute is valid.’” As to the LEM requirement, the court rejected defendant’s cruel or unusual punishment argument in Hallak. While the Supreme Court in Lockridge partially reversed Hallak, its analysis as to LEM “was left wholly undisturbed” and remains binding. As to his facial challenge to the 25-year mandatory minimum, the court rejected his argument that “Benton is distinguishable because it involved an as-applied challenge whereas he is bringing a facial challenge.” It again noted that “the existence of any unsuccessful as-applied challenge necessarily defeats any subsequent facial challenge because a facial challenge requires a showing that the statute can never be applied constitutionally.” As to his proportionality argument, the court found the record supported the trial court’s determination that the “10-year departure was proportionate. The [trial] court emphasized the impact that” defendant’s offense had on the victim (AA), “including the loss of her childhood, the impact on her relationships, and the impact on her marriage.” It emphasized his “lack of remorse, his extensive propensity for this type of offense, and the influence these factors have on his potential for rehabilitation. Lack of remorse and low potential for rehabilitation are both appropriate considerations for departure sentences.” The court concluded the trial “court was justified in believing that it was highly unlikely [he] could be rehabilitated, and this belief supported the departure sentence.” Affirmed.
Divorce; Child custody; The statutory best-interest factors (MCL 722.23); Factors (d), (e), & (f); Fletcher v Fletcher; Property division; Sparks v Sparks; Spousal support; Woodington v Shokoohi; Whether the trial court essentially impermissibly divided Veterans Administration (VA)-disability benefits as marital property; Applicability of the Uniformed Services Former Spouses’ Protection Act; 10 USC § 1408; Mansell v Mansell; The anti-attachment clause (38 USC § 5301(a)(1)); Rose v Rose
The court held that the trial court’s findings on best-interest factors (d) and (e) were not against the great weight of the evidence, and while it erred as to factor (f), this was harmless. It also rejected plaintiff-ex-husband’s challenges to the trial court’s division of the parties’ marital property and spousal support award to defendant-ex-wife. The trial court awarded defendant primary physical custody of the parties’ child (E), the marital home, two of their “vehicles, her personal checking and savings account, her personal retirement accounts, and half of plaintiff’s military pension that accumulated during the” marriage. Defendant was made “responsible for the marital property’s mortgage and her student loan debt. The trial court also awarded [her] $1,500 a month in spousal support for eight years.” As to E’s custody, the court concluded that the trial court correctly found factor (d) “favored defendant because [she] planned to stay in [E’s] current home, while plaintiff’s new home would disrupt the continuity of [E’s] living arrangement.” While the trial court made a clear error on factor (e) as to the location of an apartment plaintiff kept, it “did not ultimately abuse its discretion in concluding this factor favored defendant. Plaintiff testified that he had an over two-hour commute to his employment” in either direction. The trial court’s ruling on this factor was based on its conclusion that his “four-hour daily commute and his work hours would make it difficult for [him] to maintain permanency in his new home.” As to factor (f), the record showed “that plaintiff was a loving and appropriate father.” Defendant testified that he “had a good relationship with [E] and that she had no concerns about her in his care.” But while the trial court abused its discretion in finding that this factor favored defendant, its custody decision was based on its findings that factors (d), (e), (f), and (h) favored her “and all other factors were either equal or inapplicable.” Plaintiff did not challenge its finding on factor (h). As to the property division, there was no doubt it “favored defendant over plaintiff[,]” but the court was not convinced it “was inequitable in light of the facts[,]” including the parties’ income disparities and plaintiff’s hiding marital assets from defendant. As to the spousal support award, among other things it concluded that “the trial court did not err in considering plaintiff’s VA-disability funds . . . .” Affirmed.
Whether the court had jurisdiction to review the denial of petitioner’s "hardship waiver"; 8 USC §§ 1182(a)(9)(B)(v) & (i)(1); § 1252(a)(2)(B); Application for adjustment of status; § 1255(a); Whether petitioner was “admissible” into the country; Inadmissibility for “fraud” (§ 1182(a)(6)(C)(i)); Inadmissibility for seeking readmission within 10 years of a prior removal after having unlawfully lived here for over a year (§ 1182(a)(9)(B)(i)(II)); The “safe harbor” provision (§ 1252(a)(2)(D)); Board of Immigration Appeals (BIA or the Board); Immigration judge (IJ)
The court held that it lacked jurisdiction to review the BIA’s decision affirming the IJ’s ruling that petitioner-Rahman was not entitled to a waiver of inadmissibility based on “extreme hardship” to her spouse where “Congress committed the hardship inquiry to agency discretion in the waiver context.” Rahman, who was born in Bangladesh, is married to an American citizen and they had five children here. She stayed in the country after her visa expired. When she visited Bangladesh in 1998, she was unable to reenter the U.S. for a time and lived in Bangladesh between 1998 and 2000. After one of her attempts to reenter, she was placed in removal proceedings and an IJ ordered her removed in her absence. Around the same time, her husband successfully sought a green card for her. She became a permanent resident and then applied to become a citizen. Her husband was convicted of financial crimes and Rahman pled “guilty to using a social security number that she had procured by providing false information to the Commissioner of Social Security.” Removal proceedings were initiated against her in 2008. In 2019, an IJ ordered her “removed to Bangladesh and denied her requests for relief.” The IJ denied her hardship waivers, and the BIA dismissed her appeal. The parties agreed that Rahman was inadmissible because she had received her permanent-residency status by fraud and because she “had sought readmission into the country within ten years of her prior removal after having unlawfully lived in this country for over a year[.]” The IJ had the Attorney General’s authority to waive these two grounds if an immigrant’s qualifying spouse would suffer “extreme hardship.” While Rahman asked the court to review the denial of these two waivers, the court found that it largely lacked “jurisdiction to review her arguments.” She mostly challenged the BIA’s “ultimate hardship decision on the ground that the Board placed too much emphasis on some evidence at the expense of other evidence. Yet the text of the waiver clauses leaves this evidentiary balancing for the Board.” And while she contended that the IJ “committed a ‘purely legal’ error” in finding her not credible, “the Supreme Court has held that ‘credibility’ determinations qualify as ‘unreviewable’ findings of fact.” The court denied her petition for review.
Motion to terminate an ex parte nondomestic PPO; MCL 600.2950a(1); MCL 750.411h (stalking); MCL 750.411i (aggravated stalking); MCL 750.411s (online stalking); Service of the motion to terminate; MCR 2.119(C); Due process
The court concluded that (1) petitioner was not entitled to relief on due-process grounds and (2) the trial court did not abuse its discretion in granting respondent’s motion to terminate the ex parte nondomestic PPO. Petitioner asserted “that respondent’s ‘falsified service’ and her failure to properly serve petitioner with” the motion to terminate constituted a violation of her due-process rights. While the court found that it was clear “respondent failed to abide by the notice provisions iterated under MCR 2.119(C)(1)(a), as she did not serve a copy of her subject motion on petitioner within the pertinent timeframe[,]” it disagreed with petitioner’s claim that she was denied due process as a result. “After the parties reviewed the pertinent documents during the motion hearing, the trial court” asked petitioner if she was prepared to proceed to show why she needed a PPO. She “responded affirmatively. The parties continued to testify and present their respective proofs before the trial court issued its ruling. Petitioner was present during the motion hearing, she advanced testimony regarding her alleged need for the continued institution of the PPO, offered evidence of respondent’s alleged improper conduct, and contested respondent’s arguments.” Thus, the court determined that her procedural due process rights were not violated. It added that, when she was provided “the opportunity to postpone the hearing as a result of the defects in service, petitioner opted to proceed.” She had notice of the hearing, “the opportunity to be heard at the hearing, and her subsequent challenges were addressed by the trial court.” As to the trial court’s decision to grant the motion, it “did not rely on the allegedly fabricated proofs presented by respondent when reaching its decision; rather, [it] determined petitioner failed to allege, and [it] failed to find, two or more separate and noncontinuous acts as required by the stalking statute to justify maintaining the PPO.” Affirmed.
Tender-years hearing; Reliability of a statement; MCR 3.972(C)(2)(a); In re Archer; Videorecording; MCL 712A.17b(5); Termination under §§ 19b(3)(b)(i), (g), (j), & (k)(iii); §§ 19b(3)(a)(ii), (h), & (m); § 19b(3)(c)(i); Children’s best interests; Children’s Advocacy Center (CAC)
In Docket No. 370510, respondent-KS (mother) failed to establish any errors warranting reversal as to “the tender-years hearing, the statutory grounds for termination, or best interests” as to JV, SZ, and BS. In Docket No. 370513, respondent-ZZ (father) raised the same meritless arguments as to SZ. In Docket No. 370511, respondent-JVS (father) failed to establish any errors warranting reversal as to the statutory grounds for termination as to JV. In Docket No. 370694, respondent-NW (father) failed to establish any errors warranting reversal as to the statutory grounds for termination or best interests as to BS. KS and ZZ argued that the trial court erred by admitting testimony as to statements that the children made to other people. They contended that the 5/23 “pretrial hearing was improper because the [trial] court did not take testimony or properly review evidence concerning the trustworthiness of the children’s statements.” The record established that the trial “court made its decision” as to reliability with Archer’s guidance. “KS and ZZ seem to imply that the people to whom the statements were made needed to testify at the tender-years hearing, but the court rule does not require as much. Rather, it merely requires that the court conduct a hearing prior to trial.” They also argued that the trial court erred by not viewing the CAC recording. The court held that the “failure to admit the CAC recordings at the first tender-years hearing was erroneous. However, the error was harmless because the [trial] court subsequently viewed the 10 hours of recordings and ruled anew on the motion to admit the children’s statements.” The court concluded that it was “not inconsistent with substantial justice to refrain from reversing the trial court’s termination orders on the basis of this issue given that [it] did eventually view the recordings.” KS and ZZ argued that the DHHS failed to establish §§ (b)(i), (g), (j), and (k)(iii). The court held that the “evidence of pervasive and severe abuse perpetrated by both KS and ZZ against all three children overwhelmingly established each of these grounds for termination. This case initially came to CPS on the basis of allegations that ZZ taped and chained BS to a chair in his automobile body shop. It came to light that ZZ also put BS in a garbage can in the bed of a pickup truck and then hoisted the truck up on a vehicle lift. Further, ZZ dragged JV across the floor of the body shop, causing scratches on his back. As the case progressed, evidence was uncovered regarding numerous instances of physical abuse by both KS and ZZ.” In addition, there was “evidence of an ongoing pattern of sexual abuse perpetrated by KS and ZZ against all three children.” Affirmed.