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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Action to remove alleged encroachments; Trespass; Easement for a utility pole
The court held that the trial court did not err in denying plaintiff’s motion for summary disposition in this trespass case. It alleged that defendant-DTE had encroached upon plaintiff’s property. Plaintiff did “not squarely confront the trial court’s conclusion that the 2001 aerial photograph” confirmed that Lycaste Street (which is owned by defendant and runs along the eastern border of plaintiff’s property) “had already been widened by that time, fatally undercutting plaintiff’s position.” Instead, it argued “that the trial court erred because, at the time that the trial court decided [its] motion for summary disposition, there was no genuine question of material fact on the then-existing record about whether defendant had trespassed on plaintiff’s property.” The court found that the “evidence at the time of plaintiff’s motion did not conclusively show if or when Lycaste Street had been expanded or the walls had been constructed. Nor did the evidence conclusively show that defendant had moved the utility pole beyond the scope of the easement. The 2004 survey showed that an encroachment existed, and [a principal surveyor for defendant] noted that some measurements on the survey were unclear. Even if the road was widened or the walls constructed after 2004, there was no definitive evidence about when (e.g., 2005? 2007?).” Further, the surveyor “testified that the road did not appear wider in the 2021 survey than the 2004 survey, although there may have been more asphalt.” As to the green steel wall, defendant’s manager of corporate real estate “testified that it had been in place by the time that he began to work for defendant in 1994. Thus, there was a question of fact on the record as it existed when the trial court ruled on the parties’ first round of dispositive motions.” Plaintiff pointed to a “2021 e-mail that indicated that the green steel wall was intended to stop the glare of headlights. This e-mail did not, however, specify who built the wall or when, or if the wall was inconsistent with any preexisting easement.” Although it “argued that the glare would only be a problem once the housing units were built, which did not begin until 2006, defendant argued that the housing developer would have been more likely to install the wall due to the glare of lights. Either way, the e-mail did not conclusively show a lack of genuine issue of material fact.” Affirmed.
Whether the exclusion of a threat against defendant was outcome-determinative under People v Lukity; Self-defense; Jury instructions regarding the threat
The court concluded “that the Court of Appeals majority erred by holding that the trial court’s ruling was not outcome-determinative under Lukity. The threat” excluded by the trial court “was central to defendant’s self-defense theory.” Thus, it reversed the judgment of the Court of Appeals and remanded the case to the trial court for a new trial. The issue was “whether the trial court’s failure to admit defendant’s testimony that her partner threatened to kill her was more probably than not an outcome determinative error under” Lukity. Central to her “self-defense theory was the reason she retrieved a firearm.” The court held that “the trial court erroneously interrupted defendant’s testimony and sustained the prosecution’s objection that such a statement was improper hearsay. Defendant later made the statement on recross-examination. However, the trial court provided jury instructions that likely left the jury confused on whether they could consider this testimony.” The court concluded “that the trial court’s failure to allow defendant to present this testimony about her self-defense theory, coupled with the jury’s likely confusion regarding whether it could consider the statement at all, amount to errors that more probably than not were outcome-determinative under Lukity that require reversal.” Justice Cavanagh fully concurred in the court’s decision to remand this case for a new trial, but wrote “separately to emphasize a concern that has previously been raised, but not directly addressed” by the court: “whether [our] interpretation of the standard of review for preserved, nonconstitutional errors under MCL 769.26 that we announced in” Lukity “should be revisited given its apparent inconsistency with the standard of review for ineffective assistance of counsel under Strickland v Washington.” Dissenting, Justice Zahra and Chief Justice Clement agreed “that the trial court erred by excluding defendant’s testimony regarding her partner’s alleged threat as hearsay on direct examination.” The prosecution conceded this error. They nonetheless disagreed with the majority’s “decision to reverse the judgment of the Court of Appeals and remand the case for a new trial. A new trial is not warranted because it is not more probable than not that this error was outcome-determinative under MCL 769.26 and” Lukity.
Other acts evidence; MRE 404(b); Proper, noncharacter purposes; Relevance; Identity; Common plan or scheme; Opinion testimony; MRE 701; Cumulative effects of alleged errors
The court concluded that the trial court abused its discretion by admitting testimony from defendant-James’s ex-girlfriend under MRE 404(b) but reversal was not warranted. Also, the trial court properly admitted the opinion testimony of the officer who took victim-A’s report about the assault. Finally, it held that given “that this is not a case involving multiple errors, reversal on the basis of cumulative error is not warranted.” Defendant was convicted of AWIGBH. The first step in the inquiry was “whether the prosecution ‘has articulated a proper noncharacter purpose’ for admission of evidence that the defendant committed a prior bad act.” The court noted that “the prosecution provided a laundry list of permissible purposes for the evidence, asserting that it was being offered to show identity, intent, lack of accident or mistake, to disprove self-defense, and to show that James had a plan, system, or scheme. Each of the recited purposes are proper, noncharacter purposes for which other-acts evidence may be deemed admissible.” The court found that the trial court took no “vigilant inquiry into the relevance of the evidence to each of the ‘proper purposes’ recited by the prosecution.” The court first considered the prosecution’s claim that the other acts “evidence is logically relevant to prove identity.” The court noted that it “was unrefuted that James and [A] engaged in a physical altercation.” The disputed issue was who initiated it. “Thus, evidence that James was fighting [A] would not have been indicative of James’s guilt or innocence and would not have shed light on any material point.” Likewise, the other acts “evidence was not relevant to proving lack of accident or mistake given that neither is an element of the charge brought against James and given that he was not raising a defense of accident or mistake.” The prosecution contended “that the evidence was relevant and admissible to show that James was acting under a common plan or scheme.” The court noted that “the common features between the other acts and the charged act are that James was consuming alcohol and drugs with a woman, he got into a dispute with her over a physical object, and he responded to the argument by physically assaulting her. That similarity is indicative of a similar spontaneous act, not the existence of a plan to physically assault women who make him angry while he is under the influence of illicit substances.” Next, the prosecution maintained “the evidence is relevant and admissible to show James’s ‘intent.’” The court held that “although the prosecution provided a laundry list of permissible purposes for the evidence, . . . the evidence was not relevant and admissible under any of the theories recited.” Thus, the trial “abused its discretion by admitting the evidence[.]” But the court found that in “light of the properly admitted evidence and the fact that the [trial] court did not draw a forbidden inference from the other-acts evidence, the error in admitting the other-acts evidence is not outcome determinative.” Affirmed.
Ineffective assistance of counsel; Failure to request a specific unanimity jury instruction; People v Cooks; Prejudice; Failure to present expert testimony on child memory; Failure to present exculpatory lay witness testimony; Failure to impeach the victim using prior inconsistent statements; Failure to object to the victim’s testimony about his own prior statements; Admission of defendant’s confession; The corpus delicti rule; Prosecutorial misconduct; Appeal to the jury’s sympathies & sense of civic duty; Cumulative effect of errors
Holding that defense counsel’s performance in failing to request a specific unanimity jury instruction fell below an objective standard of reasonableness and “that defendant was prejudiced by counsel’s deficient performance[,]” the court reversed his conviction and remanded for a new trial. He was convicted of CSC I. The court concluded the trial court erred in ruling after a Ginther hearing “that defense counsel was not ineffective for failing to request a specific unanimity instruction because” one was unnecessary. The jury had the option of convicting on the single CSC I “count based on either the penile penetration or the digital penetration. The prosecutor repeatedly reminded the jury of that. Thus, the prosecution offered two separate acts, each of which would satisfy the actus reus of the” one CSC I charge. “But those two acts were materially different, . . . and defendant interposed two entirely separate defenses to the prosecutor’s claim that each of those acts constituted a crime. The evidence regarding penile penetration came largely from the victim’s testimony[.]” The court noted that defendant “did not dispute that the digital penetration occurred, but argued that it was not sexual in nature.” The court found that the alleged alternative acts were “conceptually distinct, and the competing parties offered materially distinct proofs regarding the two alternatives.” It noted that no “negative consequence would flow from” requesting a specific unanimity instruction, and failing to do so “introduced the risk that the jury would convict defendant even if [it] could not agree on which penetration [he] committed. In that respect, defense counsel’s performance fell below an objective standard of reasonableness.” Further, defendant was prejudiced. Due to “the manner in which the case was charged and how the jury was instructed, we cannot determine whether the jury convicted [him] on the basis of the penile penetration, the digital penetration, or both.” As a result, the court could not “determine whether the jury was unanimous on which penetration was established beyond a reasonable doubt. There exists the possibility that some jurors convicted defendant based on the penile penetration only, while other jurors convicted [him] based on the digital penetration only.” Thus, the court concluded “that a specific unanimity instruction was required[.]” It also found that defense counsel was ineffective related to the failure to present expert testimony and to present a lay witness’s exculpatory testimony, and that the cumulative effect of the errors “undermined confidence in the reliability of the verdict.”
Child custody; Proper cause or a change of circumstances; MCL 722.27(1)(c); Kessler v Kessler; Established custodial environment (ECE); The statutory best-interest factors; MCL 722.23
The court held that the trial court did not err in addressing all of the best-interest factors before awarding sole physical and legal custody of the parties’ children to their father (Mosley). Mosley sought custody of the children based on the mother’s (Brock) conduct after she drove drunk and attempted suicide. After considering the best-interest factors, the trial court found that awarding Mosley sole physical and legal custody of the children served their best interests. On appeal, the court rejected Brock’s argument that the trial court erred by failing to adequately address all of the best-interest factors before modifying the former custody award and awarding sole physical and legal custody to Mosley. It noted that the trial court correctly found that factors (a)-(d), (f), (g), and (j) weighed in Mosley’s favor. “The trial court did not explicitly refer to factor (e). But, [it] appears to have considered it when it stated that Mosley’s home ‘is a permanent family home where the children’s needs are being met . . . .’” It also “did not consider factor (i), instead finding that ‘[t]he children are of a very young age for the Court to take into account . . . the reasonable preference of the children.’” But any error was harmless. In sum, the “trial court adequately addressed all of the best-interest factors . . . and did not abuse its discretion by awarding Mosley sole physical and legal custody of the children.” Affirmed.
Wrongful death action under the Wrongful Death Act; MCL 600.2922; The wrongful-conduct rule; Orzel v Scott Drug Co; Stopera v DiMarco; Use of a controlled substance; MCL 333.7404(1); People v Robar
The court held that the trial court did not err by granting defendants (minor-Andrew and parents) summary disposition of plaintiffs’ wrongful death action for failure to state a cause of action. Plaintiffs sued defendants for the death of their son, Ian, after he purchased pills from Andrew that contained fentanyl. The trial court granted summary disposition for defendants, finding the claim was barred by the wrongful-conduct rule. On appeal, the court rejected plaintiffs’ argument that there was an “insufficient causal nexus between Ian’s wrongful conduct of seeking to purchase and use Percocet and the fentanyl overdose that caused his death.” It noted that “Ian’s conduct involving the possession and use of a Schedule 2 controlled substance was conduct that is ‘prohibited or almost entirely prohibited under a penal or criminal statute,’ and his death resulted from this prohibited serious misconduct, thus making the wrongful-conduct rule applicable to this situation.” And as “to causation, if Ian had not illegally possessed and used the controlled substance that he obtained from Andrew, he would not have died.” Further, contrary “to plaintiffs’ contentions on appeal, the effect of the wrongful-conduct rule is not to immunize individuals who illegally sell dangerous controlled substances. Rather, that side effect is merely a result of the overriding public policy justifying the wrongful-conduct rule, which is ‘that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.’” Because plaintiffs “cannot establish their cause of action without relying at least in part on Ian’s illegal conduct, the trial court did not err by determining that plaintiffs’ action was barred by the wrongful-conduct rule and granting summary disposition” on that basis. Affirmed.
Assumption of jurisdiction over the children; MCL 712A.2(b)(1) & (2); Termination under §§ 19b(3)(b)(i), (b)(ii) & (j); Children’s best interests; In re White; Effect of a relative placement; In re Olive/Metts
The court held that there was sufficient evidence for the jury to find a statutory basis for the trial court to assume jurisdiction over respondent-mother’s children (CM and JT) under MCL 712A.2(b)(1) and (2). And while it erred in finding that termination was warranted under § (b)(i), it did not err in finding that §§ (b)(ii) and (j) were established by clear and convincing evidence. But the court vacated its best-interests determination and remanded because the trial “court failed to consider the children’s best interests in light of their relative placement.” Ample record evidence supported “the jury’s verdict and the trial court’s assumption of jurisdiction under MCL 712A.2(b)(1) and (2), specifically, that respondent failed to provide proper care and the home was unfit.” She conceded that her live-in boyfriend (T) “sexually abused CM on more than one occasion. Even without this concession, the testimony overwhelmingly supported this finding.” Further, there was sufficient evidence for the jury to conclude that she “failed to protect JT and CM from [T’s] physical abuse.” As to termination, the “most compelling evidence that respondent would be unwilling or unable to protect her children from known risks of harm in the future was her continued insistence, despite compelling evidence to the contrary, that she did nothing wrong. In addition, [her] serious past failure to protect [them] showed a concerning lack of insight, awareness, or judgment necessary to protect a child from harm. Further, there was testimony that [her] cognitive deficits, mental health issues, and lack of suitable housing would preclude her from safely parenting” them. But as to their best interests, the trial court did not “explicitly address the children’s relative placement as required by” Olive/Metts. Failing to do so rendered “the factual record inadequate to make a best-interest determination” and made remand necessary. The DHHS contended that “because the children were similarly situated despite their age gap, the trial court was not required to address the fact that [they] were placed with relatives. This” was incorrect and unsupported by legal authority. However, contrary to respondent’s claim, the trial court did not have “to address each child’s best interests separately.” Affirmed in part, vacated and remanded in part.