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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Prosecutorial misconduct; Alleged Fifth Amendment violations; Commenting on prearrest & postarrest silence & demeanor during closing argument; Ineffective assistance of counsel; Failure to object to the prosecutor’s comments; Alleged Sixth Amendment violations; Right to maintain innocence; Sentencing; Scoring of OVs 6, 9, 17, & 18; Blood alcohol content (BAC)
The court concluded that the prosecutor did not comment on defendant-Keith’s silence in violation of her Fifth Amendment rights. Also, trial counsel did not provide ineffective assistance, “and Keith was not denied her right to maintain her innocence at trial.” Finally, the trial court properly scored her sentencing guidelines. Her convictions stemmed from a car accident that occurred after she ran a red light. A five-year-old passenger in her car died after he was ejected from the vehicle. A few hours after the accident her BAC was 0.332. She was convicted of involuntary manslaughter, OWLS causing death, second-degree child abuse, and OWI with an occupant less than 16 years old. She was sentenced to 8 years and 4 months to 15 years for the involuntary manslaughter and OWLS causing death convictions, 5 years and 11 months to 10 years for each second-degree child abuse conviction, and 180 to 365 days for each of the OWI convictions. Keith asserted “that the prosecutor violated her Fifth Amendment rights by discussing during closing argument Keith’s failure to provide information to the police before the police arrested her.” The record did not show that her failure to “respond to Officer [K’s] questions was attributable to her invocation of her Fifth Amendment privilege against self-incrimination.” The court found that K “was clearly ‘reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation.’” The court held that because “Keith’s prearrest silence was not constitutionally protected, she has not shown that the prosecutor violated her Fifth Amendment rights.” Further, it concluded that “because no plain error occurred, defense counsel did not render ineffective assistance of counsel by failing to object to the prosecutor’s remarks.” Keith also argued “that the prosecutor violated her Fifth Amendment protections by using her postarrest, pre-Miranda silence and conduct against her. She asserts that she was undoubtedly under arrest at [the hospital] because she was handcuffed and informed numerous times that she was in custody, yet she was not Mirandized.” But the record showed “that Keith was not subjected to custodial interrogation at the hospital.” It also showed “that the prosecutor did not comment during closing argument that Keith was silent at the hospital or otherwise use her silence against her. Further, to the extent that Keith maintains that her conduct was testimonial or communicative in nature, and therefore protected under the Fifth Amendment, her argument lacks merit.” The court found that the “officers did not compel Keith’s conduct and no evidence indicates that [her] conduct was in response to statements that they made to her. Rather, the evidence showed that [she] ignored their attempts to communicate with her.” Affirmed.
Sufficiency of the evidence; Possession of meth (MCL 333.7403(2)(b)); FIP of a gun & ammunition (MCL 750.224f); Waiver of alleged jury instruction error
The court held that there was sufficient evidence to support defendant’s convictions of meth possession and FIP, and that he waived review of his claim that the trial court erred in instructing the jury on the meth possession charge. He was also convicted of resisting or obstructing a police officer and felony-firearm. On appeal he challenged the sufficiency of the evidence as to the meth possession and FIP of a gun and ammunition convictions only. The court concluded that the evidence established his guilt of meth possession beyond a reasonable doubt. He suggested “that what he describes as a ‘trace amount’ of meth[] found on the digital scale cannot sustain his conviction. But” he did not contest an expert’s findings “that the visible residue on the digital scale contained meth[]. Under MCL 333.7214(c)(ii), ‘[a]ny substance which contains any quantity of meth[]’ meets the requirement for a violation of the law.” The court further found that the trial evidence “allowed the jury to reasonably infer that defendant had control over the basement area where the digital scale with meth[] residue was found. During surveillance conducted before the” search warrant was executed, the police observed him “at the house approximately one hour before the search took place. [He] escaped through a basement window in an effort to avoid arrest.” In the basement, “there was a pathway to a small seating and sleeping area. In that area, officers found the digital scale with meth[] residue along with two debit cards and mail bearing defendant’s name.” He also admitted in a police statement that the house was his residence on the date of the search, and did not deny he owned the digital scale. The court concluded that his “challenges, including reliance on the witness whose testimony he presented, do not affect the sufficiency of the evidence.” It noted that the “jurors heard the testimony of the defense witness, and defense counsel presented arguments that relied on the defense witness’s testimony, but the jury nonetheless returned a guilty verdict on the” meth possession charge. It was “entitled to believe or disbelieve the defense witness’s testimony[.]” The court also held that that the evidence “supporting constructive possession of the meth[] residue on a scale in the basement likewise establishes defendant’s constructive possession of the gun and the ammunition in the basement.” Affirmed.
Personal protection insurance (PIP) benefits under the No-Fault Act; Amendment to affirmative defenses; Rescission; Personal representative (PR); Defense medical examination (DME)
The court concluded that decedent-Richardson “made a material misrepresentation when she applied for her insurance policy.” While defendant-insurer (Integon) “unduly delayed asserting rescission as an affirmative defense, the trial court did not abuse its discretion by allowing Integon to amend its affirmative defenses because” plaintiff-PR was unable to show prejudice due to the delay. Further, the court found that the trial court did not err by granting Integon summary disposition “on the basis of the misrepresentation and declaring the policy void ab initio.” The case concerned a claim for PIP benefits. Plaintiff argued “that Integon’s delay in asserting rescission as an affirmative defense was prejudicial because it denied Richardson an opportunity to conduct discovery with the defense ‘in mind.’” Plaintiff referred “specifically to Richardson’s deposition testimony and contends that Integon’s ‘sandbagging’ prevented Richardson from providing detailed testimony concerning the insurance-application process to counter [insurance agent-A’s] testimony about the process. A review of Richardson’s deposition testimony, however, shows that she was unable to recall details about the insurance-application process.” Plaintiff also argued “that Integon failed to pursue rescission of the policy ‘with any sense of fair-minded litigation or integrity’ because Integon represented in its answers to interrogatories in [9/20] that it denied Richardson’s claim solely on the basis of the DME notwithstanding that Integon’s defense focused on rescission by that time.” The court agreed. “Although Integon undeniably aimed to pursue a rescission defense at the time that it answered the interrogatories, it failed to indicate as such when specifically asked ‘each defense’ that it intended to assert. Integon’s failure to alert plaintiff of the defense was dishonest and lends credence to plaintiff’s claim of ‘sandbagging.’” Nonetheless, plaintiff could not “establish prejudice within the meaning of MCR 2.118(C)(2) because she has failed to demonstrate an inability to respond to the defense that she would not have suffered if Integon had raised [it] sooner.” The court held that while “Richardson is now deceased, her deposition testimony shows that she did not recall the details of the insurance-application process about which she was asked other than the fact that [A] filled out the application.” Plaintiff failed “to indicate other questions that Richardson could have been asked to challenge Integon’s claim that rescission was warranted.” In short, plaintiff did not “indicate with any specificity what would have been done differently if Integon had moved to amend its affirmative defenses sooner. Accordingly, the trial court did not abuse its discretion by allowing Integon to amend its affirmative defenses to add rescission as an affirmative defense.” Affirmed.
Trespass & tree removal; Treble damages; MCL 600.2919(1); Corrective documents; Subject-matter jurisdiction; Ruling in a prior quiet title action; Salyer v Walker (Unpub); Effect of a stay of proceedings on the trial court’s authority to issue a contempt order; Contempt sanction; Attorney fees; Whether certain documents were “in issue” in this case; Frivolous claims; Personal representative (PR)
The court held, among other things, that defendant-Salyer “failed to state a valid defense to the trespass claim, and the” trial court properly granted plaintiff-PR (Walker) summary disposition. Further, where it was undisputed that Salyer intentionally trespassed on the 79-acre parcel and removed trees without Walker’s permission, he was properly held liable under MCL 600.2919(1) for treble damages. Salyer took issue with the trial “court’s conclusion that he committed trespass on the 79-acre parcel.” It was undisputed that he “intentionally intruded on the 79-acre parcel and that he did so without Walker’s permission.” Further, he did “not dispute that he intentionally entered the 79-acre parcel with the aim to have the lumber company cut and remove trees under their contract.” However, he contended “that Walker did not have the right of exclusive possession because Walker failed to produce a deed transferring the 79-acre parcel from Salyer to the Estate. This Court’s prior decision in Salyer, however, resolves this issue, where we observed that Salyer had admitted that he intended to transfer the 79-acre farm to Evelyn via the 2015 quitclaim deed.” Salyer’s claim “that he did not trespass because he owned the parcel is merely an attempt to relitigate a matter that has been finally decided.” In the prior action, he failed to respond to Walker’s interrogatories and requests for admissions, which were deemed admitted. As the court “explained in Salyer, ‘[o]nce a matter is admitted, it is “conclusively established unless the court on motion permits withdrawal or amendment of an admission.”’” The court noted that “Salyer never moved to withdraw or to amend.” Thus, his “admission that he deeded the 79-acre parcel to Evelyn negated the need for Walker to produce a transfer deed, and established that Walker had exclusive possession of the land. Accordingly, Walker demonstrated the requisite elements of trespass and was entitled to summary disposition.” Among other things, the court also held that the trial court had authority to issue its civil contempt order despite a stay of proceedings and it did not abuse its discretion in awarding Walker $2,500 in attorney fees. Affirmed.
Petition to modify the guardianship over the incapacitated individual; The Estates & Protected Individuals Code; Claim that a guardian is no longer suitable; MCL 700.5310; Distinguishing In re Redd Guardianship
The court held that the probate court did not clearly err in finding that appellants (the Rankins) failed to show, by a preponderance of the evidence, that appellee-Botsford, the guardian of the legally incapacitated person (VA), “was not qualified or was unable to provide for VA’s care, custody, and control.” Thus, it concluded the probate court did not abuse its discretion in denying appellants’ petition to modify the guardianship. VA has five adult daughters, including appellee, who lives in Michigan, and appellant-Kari Rankin, who lives in South Carolina. Appellants’ petition “sought to have VA move to their residence in South Carolina and to have VA’s social security payments assigned to them.” They argued that appellee was “no longer suitable as guardian because she refused to allow VA to move to” their home. The court found that they “presented evidence of their preference to have VA live with them, citing to VA’s alleged previously asserted wish to live with family, as well as historical familial conflicts, but none of that evidence supported their assertion that Botsford was unsuitable to act as guardian.” While they cited the court’s decision in Redd “in support of their appeal, the facts of Redd are readily distinguishable from the present case.” Although there was also “a years-long contentious intra-family dispute” here, in contrast to “Redd, where the guardian was impeding the ward’s access to other family members, the evidence in this case suggests that the parties who moved the probate court to modify the guardianship, the Rankins, were the family members who had a history of impeding VA from socializing with family members. [They] inappropriately removed VA from her residence in Michigan and then limited her communication, at times, with some of her daughters. In contrast, there was no evidence that Botsford limited communications between VA and her family.” Thus, the court found that, “unlike in Redd, where the guardian was actively impeding the ability of the ward to socialize with family, the guardian in this case has allowed VA to communicate freely with her family.” In addition, the evidence offered “at the hearing otherwise established the degree to which Botsford had attentively carried out her duties as VA’s guardian.” Affirmed.
A child’s foster care placement; MCL 722.954a; In re COH, ERH, JRG, & KBH; Whether terminating parental rights was in the child’s best interests; MCL 712A.19b(5); In re White
The court rejected respondent-mother’s claims that the trial court erred in (1) declining to remove the child (PG) “from his nonrelative foster care placement and return him to his former relative foster care placement where his sibling resided” and (2) finding that terminating her parental rights was in PG’s best interests. Thus, it affirmed the termination order. She suggested “the trial court should have given preference to PG’s maternal grandparents, and” that this should have led it “to return PG to their home.” The court disagreed. Under MCL 722.954a, the “DHHS must consider and prioritize relative placement as part of the initial case service plan, but ultimately the issue is the child’s best interests.” It found that the DHHS complied with the statute “by placing PG with his maternal grandparents as part of his initial case service plan upon removal. DHHS removed PG from [their] home after they expressed that they were not willing to care for him on a permanent basis. By the time respondent moved to review and modify PG’s foster care placement, circumstances had changed such that returning PG to his maternal grandparents’ home no longer served his best interests.” The court noted that the Supreme Court has explained that MCL 722.954a’s requirements “‘are intended to guide [DHHS’s] initial placement decision[]’ and apply ‘before any placement decision is made[.]’” Thus, the court disagreed with the argument “that the trial court should have given preference to PG’s maternal grandparents and that such preference should have led it to return PG to their home.” As to his best interests, the record showed “that PG, who was eight years old on the date of termination, shared a bond with respondent but wished to remain in the” care of his foster parents (the Ls). He called them “‘mom and dad’ and told the assigned caseworker that he ‘never had a bond like that before.’ [They] met PG’s needs and were willing to care for him on a permanent basis. The assigned caseworker also reported that PG improved in school, appeared happier, and appeared more rested since moving to the [Ls’] home. In contrast, respondent lacked suitable housing and employment. She failed to substantially comply with her case service plan or benefit from the offered services and consistently tested positive for amphetamine and” meth. Thus, the trial court did not clearly err in its best-interest determination.