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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Ineffective assistance of counsel; Failure to call witnesses whose testimony would have impeached the victim & established that defendant did not have violent propensities; Trial strategy; Prejudice
Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of AWIM, assault by strangulation, interference with electronic communications, and domestic violence. He argued “that defense counsel was constitutionally ineffective for failing to call three witnesses whose testimony would have impeached the victim and established that defendant did not have violent propensities toward the victim.” Defendant could not “overcome the presumption that counsel’s decision to avoid calling these witnesses was sound trial strategy.” As the prosecution correctly noted, “some of the witnesses’ proposed testimony would have been inadmissible at trial. For example, evidence of a person’s character or character trait is generally inadmissible for the purpose of proving conformity on a particular occasion, MRE 404(a), and defendant does not identify an applicable exception. Any statements allegedly made by the victim to the proposed witnesses would additionally be inadmissible hearsay if presented for the truth of the matter asserted.” Further, the court found that “to the extent that such statements might have been admissible under a hearsay exception or for purposes of impeachment, defense counsel may well have made a sound strategic decision not to call these witnesses in an effort to avoid opening the door to the further admission of evidence of specific instances of conduct by defendant. Had such evidence been admitted, it could have proved particularly damaging, given that the record indicates that defendant has been accused of domestic violence by others besides the victim.” The court held that defendant “failed to establish that counsel’s decision to not call the three proposed witnesses fell below an objective standard of reasonableness.” Even if the court “were to agree that defendant established the factual predicate for his claim, he cannot establish that he was prejudiced by defense counsel’s decision.” The court concluded that given “the breadth of the evidence in the record supporting defendant’s guilt, it is unlikely that calling any of the now proffered proposed impeachment witnesses would have led to a more favorable outcome in this matter.”
Prosecutorial misconduct; Voir dire; MCR 6.412(C); People v Sawyer; Curative instruction; Lay opinion testimony; MRE 701; Expert opinion testimony; MRE 702; Character testimony; MRE 404(a)(1)
The court held that the prosecution did not commit misconduct and a detective (S) did not provide improper testimony. Defendant was convicted of second-degree murder, CCW, FIP, and felony-firearm for shooting and killing the victim during an altercation in Kalamazoo. On appeal, the court rejected his argument that the prosecution improperly injected the issue of gun violence in Kalamazoo during voir dire, its examination of S, and closing argument. “Taken in full context, the prosecutor’s questions regarding gun violence and defendant’s role in it were asked to elicit the jurors’ biases, not to invoke the jurors’ biases. That conclusion is reinforced by the fact that the prosecutor’s questions and the trial court’s follow-up questions resulted in the excusal of a juror who expressed bias against someone accused of gun violence.” Further, even if “the prosecutor’s voir dire questions and comments invoked some bias against defendant, reversal would not be warranted. Any potential prejudice was mitigated by the trial court’s instructions, which emphasized that the jury’s ‘sole responsibility’ was to base its verdict on the evidence and the law.” In addition, “the prosecutor did not engage in misconduct by asking [S] when and how he became the lead investigator in the case.” Defendant failed to show that the “questioning was anything other than a good-faith effort to introduce relevant evidence. Further, after [S] mentioned the volume of gun violence in Kalamazoo, the prosecutor promptly redirected questioning to the four detectives working on the case.” Moreover, the statements made during closing argument established that the prosecutor “was addressing the evidence regarding defendant’s intent to kill” the victim and countering his self-defense claim. “The prosecutor did not explicitly urge the jury to convict as a civic duty.” And any “potential prejudice was cured when the trial court instructed the jury to base its verdict ‘only on the evidence and [the trial court’s] instructions on the law.’” Finally, the court rejected defendant’s claim that S “provided improper expert opinion testimony, gave impermissible character and profile testimony, and invaded the province of the jury while narrating” video footage. It found that the testimony “was proper lay testimony under MRE 701.” His statements “were based on his perceptions of the video and experience investigating violent crimes.” And his “testimony did not require scientific, technical, or specialized knowledge[.]” In addition, it “was helpful to the determination of a fact” in issue and did not invade the province of the jury. Further, the prosecution did not use it to prove that defendant “acted in conformance with the traits of violent felons or any of the other people who” S previously surveilled. Affirmed.
Respondeat superior; Scope of employment; Negligent hiring, training, management, or supervision
Concluding “that the security guard was not acting within the scope of his employment when he shot plaintiffs,” the court reversed “the trial court’s denial of summary disposition of plaintiffs’ respondeat superior claim.” But it determined “that the trial court did not err when it denied summary disposition of plaintiffs’ claim of negligent hiring, training, management, or supervision,” so it affirmed that part of the trial court’s order and remanded. A security guard who was working for defendant-Greenfield Joy, “doing business as U.S. Quality Food Super Market, shot a customer and her boyfriend just outside defendant’s store.” Defendant contended “that the security guard’s actions in shooting plaintiffs were not within the scope of his employment, so defendant cannot be held vicariously liable for the shooting under the doctrine of respondeat superior.” The court agreed. It found that no evidence indicated “that, by the time of the shooting, the security guard was acting within the scope of his employment.” No evidence reflected that when he “shot plaintiffs, he was ‘engaged in the service of his master, or while about his master’s business,’ or that the security guard ‘accomplished the [shooting] in furtherance, or the interest, of the employer’s business.’” Conversely, evidence revealed that he “was acting to further his individual interest, i.e., to prove a personal point, self-defense, and to get revenge for [plaintiff-]McElrath threatening him. All the evidence about the security guard’s motive for the shooting reveals that he was motivated by purely personal reasons.” The evidence reflected “that the shooting was solely intended to further the security guard’s individual interests, and therefore was not within the scope of his employment.” Thus, the court found “no genuine issue of material fact as to whether [he] was acting within the scope of his employment with defendant when he shot plaintiffs, so defendant is entitled to summary disposition under MCR 2.116(C)(10). The trial court erred when it held otherwise.” As to plaintiffs’ claim of negligent hiring, training, management, or supervision, the court concluded that a “genuine issue of material fact exists as to the foreseeability that the security guard would shoot a customer in the midst of an altercation at the store. Despite telling the security guard that he could not carry the gun at work, defendant failed to take any further action aimed at preventing [him] from bringing the gun to work. This resulted in defendant employing a security guard who defied the request of his employer and insisted on carrying a gun, and who had received no training about the use of the gun. Thus, the trial court did not err by denying defendant’s motion for summary disposition of” this claim.
Uninsured motorist (UM) benefits; Policy requirement that the other driver was negligent; Effect of a driver leaving the scene of a collision; Johnson v Austin; Whether there was sufficient evidence that the other driver was speeding
Finding that this was “not an ‘atypical’ case in which the other driver’s flight created a presumption of negligence,” the court concluded that given “the lack of evidence that the other driver was negligent, the trial court did not err by dismissing plaintiff’s claim” for UM benefits despite that driver’s flight. Thus, it affirmed summary disposition for defendants-insurers. There did not appear to be any “dispute that plaintiff’s insurance policy required the other driver to have been negligent in order for plaintiff to receive benefits.” The trial court’s ruling “was based upon a lack of evidence that the other driver was negligent.” Plaintiff argued that there was a genuine issue of material fact as to the other driver’s negligence. The only evidence supporting her contention that the other driver was speeding was her “testimony that she did not see the other car before the collision[.]” But the court found that the “inference that the other car was speeding is merely speculation[.]” Plaintiff asserted “that, because the other driver fled the scene of the collision, the trial court should have drawn the inference that the other driver was negligent, which would have precluded summary disposition. Some evidence indicated that the other driver left the scene of the collision.” In Johnson, the Michigan Supreme Court discussed the relevance of a driver leaving the scene of an accident. Even “assuming that the other driver fled, that alone does not establish that the other driver was negligent because there was other evidence of the circumstances of the collision.” Plaintiff provided testimony about the circumstances. “There were also two other witnesses to the collision, i.e., the two passengers in [her] Jeep, but it is unclear whether they could provide any information about” it because the record did not contain any affidavits or testimony from them. Here, the inference drawn from the other driver’s “flight can be weighed with the circumstances of the collision as one of the factors in determining the other driver’s negligence.” The court concluded that, taking “the evidence in the light most favorable to plaintiff, there is insufficient evidence that the other driver was speeding.”
Rezoning; PC or “planned community” zoning; Ordinance, § 7.301(B); Spot zoning; Whether a genuine issue of material fact existed on the basis of the affidavits
Concluding that ultimately, defendant-Superior Township Board of Trustees’s (the Board) “legislative decision to rezone the property was not arbitrary or unreasonable[,”] the court held that the trial court did not err by granting summary disposition to defendants. Plaintiffs (who own land near the property in question) contended that the Board’s decision to rezone the Dixboro property violated defendant-Superior Charter Township’s zoning ordinance. Plaintiffs first argued that “the rezoning did not meet the proper criteria required for PC zoning, per the Zoning ordinance’s language.” The court held that the “findings of fact, which the Board relied on when making its legislative determination to rezone the Dixboro property, were adequately supported by the record, which contains extensive documentation submitted by [intervening defendant-Garrett’s Space (GS)] regarding its plans for the site.” The court saw “no cause to disturb the [Planning) Commission’s findings in this matter.” Also, it found that it bore “repeating that the Commission found, and the Board agreed, that rezoning the property would be rationally related to the goals set forth in the Township’s Master Plan.” Plaintiffs had failed to present a genuine issue of material fact in relation to the Township’s adherence to the “zoning ordinance that would lead us to conclude that the trial court’s ruling should be reversed.” They next contended “that the Dixboro property failed to meet the criteria applicable to PC zoning districts set forth in Superior Charter Township Zoning Ordinance, § 7.301(B).” Their complaints as to “§ 7.301(B) are unsupported by the record, and again only show that ‘legitimate difference[s]’ of opinion exist as to whether the Dixboro property should have been rezoned.” But plaintiffs had “again failed to show that the Board’s decision to rezone the property from A2 to PC zoning was invalid by presenting evidence that the zoning amendment was arbitrary or unreasonable.” Ultimately, they “have neither presented a compelling argument as to why this Court should not defer to the findings of the Commission, the Board, and the trial court,” nor did they show “a genuine issue of material fact warranting reversal[.]” Affirmed.
Quiet title action; Express easement; Termination of an easement due to impossibility; Distinguishing MacLeod v Hamilton; Construing the terms of a conveyance; Choals v Plummer
Holding that the trial court did not err by finding a valid express easement existed, but did err by expanding its geographic scope beyond what the chain of title supported, the court affirmed in part and reversed in part. The trial court entered an order quieting title in plaintiff to an easement one rod wide along the southeast border of “Parcel 1,” owned by defendant. On appeal, the court rejected defendant’s argument that the easement over Parcel 1-1909 terminated due to impossibility, and that even if an easement exists, it does not provide plaintiff access to St. Joseph Avenue. Distinguishing MacLeod, the court noted that defendant provided no evidence that plaintiff’s need for access to its parcel is any less real today than it was when the easement was created in 1909. “No alternative route to the parcel exists, meaning—under the MacLeod test—that the purpose for the creation of the easement is as present as ever. That contrasts MacLeod, where the ‘easement ha[d] been dormant and renounced by the county in the establishment of the drainage elsewhere.’” However, the court agreed with defendant regarding Parcel 1-1924, finding the 1953 conveyance did “not adequately communicate an intent to confer an easement across” it. The “history of the conveyances does not indicate an intent to create an express easement across what was formerly Parcel 1-1924.” In light of the “historical context,” the court found it “unlikely that the 1953 conveyance is evidence of an intention to expand the existing easement beyond its existing geographic boundaries.” While the “1909 conveyance unambiguously created an express easement across Parcel 1-1909, the 1953 conveyance does not unambiguously extend that easement across Parcel 1-1924. Given that ambiguity, the trial court erred in holding that plaintiff has an express easement across Parcel 1-1924.”
Adverse possession; “Hostile”; Clear & cogent proof; Doctor v Turner; “Claim of right”; Smith v Feneley; Prescriptive easement
Concluding that plaintiff failed “to allege that her possession of the land was under a claim of right that was hostile to the record titleholder[,]” the court held that the trial court erred in granting her summary disposition to quiet title based on adverse possession. Further, for the same reason, she failed to allege a prescriptive easement and the trial court erred in granting her one. According to the complaint, she “was given permission ‘to permanently affix a trailer to the said property.’ While the trial court made much of the fact that ‘[p]ermission to affix a trailer is vastly different than digging out a basement and constructing a home’ because ‘[a] trailer can be moved right off,’ that reasoning overlooks the fact that the permission granted was to permanently affix the trailer.” In addition, and regardless of whether her “subsequent improvements to the property exceeded the scope of that permission—plaintiff’s complaint overtly recognizes” defendant’s superior title. “It says that she and her husband ‘improved this property over the years on the promise that [her husband’s grandmother] would convey the property’ to them. [It] similarly acknowledges that, upon the passing of plaintiff’s grandmother-in-law, the title passed to plaintiff’s father-in-law, who ‘continued to honor his mother’s promise to convey the property’ but that plaintiff ‘understood that this conveyance could not happen until’ a mortgage was first paid off. In other words, [her] complaint explicitly acknowledges that her possession of the land was not under a claim of right that was hostile to that of the record owner. Rather, she alleges that [it] was consistent with the record owner’s plan to retain ownership until a future conveyance. For the same reason, plaintiff also did not allege a prescriptive easement.” The prescriptive easement claim was “inextricably linked to her claim of adverse possession. She asserts that she and her husband used a portion of the parent parcel ‘for purposes of ingress and egress’ to the claimed parcel. However, because her complaint acknowledges that defendant’s title is superior and that she used the property with permission by the terms of a previous family arrangement, she has not pleaded any claim of right.” Reversed and remanded for entry of an order granting defendant summary disposition.
Jurisdiction over the child; “Abandonment”; MCL 712A.2(b)(1); “Desertion”; “Proper custody or guardianship”; MCL 712A.2(b)(2); Unfit home environment; Distinguishing In re Ernst & In re Baham; Reasonable efforts to prevent removal
Noting that “the term ‘abandoned’ is not statutorily defined and there is no binding caselaw defining the word in the context of MCL 712A.2(b)[,]” the court held that the act of abandonment under the statute “must be an intentional act on the part of the parent to give up his or her rights to the child.” It concluded that the record supported the trial court’s finding that there were no statutory grounds for jurisdiction here. Thus, it affirmed the order declining to exercise jurisdiction over respondents’ child. Petitioner-DHHS suggested that “‘abandonment’ is synonymous with ‘desertion,’ which has been defined as an intentional and willful act.” But the court did not agree “the Legislature intended for ‘abandonment’ and ‘desertion’ to be used interchangeably in MCL 712A.2(b). Unlike MCL 712A.19b(3), which uses both ‘abandonment’ and ‘deserted’ in different subdivisions setting forth the statutory grounds for termination of a parent’s parental rights, MCL 712A.2(b)(1) only uses the word ‘abandoned.’ ” Thus, the court only considered “whether the child was abandoned by respondents, not whether he was deserted.” It concluded “that the trial court did not clearly err by finding that jurisdiction was not warranted on the basis that” either respondent “intended to abandon the child.” As to the proper custody or guardianship claim, the court held that while “respondents may not have made the best decisions, the grandparents unilaterally removed the child to Michigan—without clear evidence of legal authority to do so—and little effort was made by petitioner to reunify the family.” The trial “court found that removing a child without legal authority and failing to provide respondents with assistance to retrieve the child could not support the exercise of jurisdiction. That decision was not clearly erroneous.” As to the unfit home environment claim, the DHHS “failed to present conclusive evidence regarding substance abuse after the child’s birth.” Finally, the court noted that the “trial court’s acknowledgement of petitioner’s failure to make reasonable efforts to prevent removal . . . came after it had already determined that the evidence presented did not support any of the cited statutory grounds to exercise jurisdiction under MCL 712A.2(b).” And even if it “improperly considered the lack of reasonable efforts to prevent removal as part of the decision, that error was not outcome determinative given that [its] findings that there were not statutory grounds for jurisdiction were amply supported by the record in this case.”