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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Jury instructions on resisting & obstructing a police officer; People v Kowalski; Ineffective assistance of counsel; Strickland v Washington
In an order in lieu of granting leave to appeal, the court reversed Part III(B) and vacated Part III(D) of the Court of Appeals judgment (see eJournal # 79831 in the 7/26/23 edition) as it related to the jury instruction on resisting and obstructing a police officer. It held that the Court of Appeals erred in ruling that the jury instruction given “‘fairly presented the issues to be tried and adequately protected the defendant’s rights.’” The court noted that, as “recognized by the Model Criminal Jury Instructions, a jury cannot meaningfully assess whether an officer acted lawfully without ‘detailed legal instructions regarding the applicable law governing the officer’s legal authority to act.’” The court found that the instructions here “correctly advised the jury that the prosecution must show that the police were acting lawfully, then stated ‘[i]t is up to you to determine whether the officers’ actions were legal according to the law as I have just described it to you,’ without describing the legal standard applicable to these facts. Leaving the jury without a legal framework for assessing whether the officers’ actions were lawful does not ‘fairly present[] the issues to be tried and adequately protect[] the defendant’s rights.’” The court remanded the case to the Court of Appeals to consider “whether trial counsel’s failure to request such an instruction was ‘representation [that] fell below an objective standard of reasonableness’” that prejudiced defendant. It denied leave to appeal in all other respects because it was not persuaded it should review the remaining questions presented. Dissenting, Justice Zahra (joined by Justice Viviano) concluded that while defendant had “a colorable argument that the quoted jury instruction was flawed,” she did not consider the fact “that she was also arrested for disturbing the peace.” He found that because the actions related to that charge were “not associated with defendant’s ensuing arrest, and the jury convicted defendant of this offense, the jury must likewise have concluded that the police had probable cause to lawfully arrest defendant for disturbing the peace.” As a result, her “arrest was lawful on this basis, and her application should be denied.”
Scope of forfeiture under Michigan’s Controlled Substances Act; Whether defendant-vehicle was subject to forfeiture under the terms of MCL 333.7521(1)(d); Transportation & purpose; “Transport”
The court concluded “that MCL 333.7521(1)(d) requires that a vehicle be used or intended to be used for the transportation of materials specified within the statute for the purpose of their sale or receipt before a forfeiture may be effected.” Because it found “that the facts presented here, even considered in a light most favorable to plaintiff, do not support an inference that the defendant vehicle was used or intended to be used to transport illicit materials for their sale or receipt,” the court held that claimant’s vehicle was not subject to forfeiture under MCL 333.7521(1)(d). Thus, it reversed the judgment of the Court of Appeals and reinstated the trial court’s grant of summary disposition in favor of claimant. The court concluded “that not all of the elements of MCL 333.7521(1)(d) were fulfilled concurrently.” The testimony of Sergeant R was that claimant drove her passenger, Smith, “to a known 'drug house' on [L] Street where Smith intended to purchase and did purchase heroin, then claimant drove away with Smith and the heroin in the defendant vehicle, which was pulled over by [R] shortly thereafter.” The court held that a “reasonable fact-finder might credit this narrative and conclude that claimant did indeed drive Smith in the defendant vehicle to the [L] Street address to buy drugs, fulfilling the conveyance, use, and property elements of MCL 333.7521(1)(d), but there is no reasonable suggestion that the defendant vehicle was being used to transport or facilitate the transportation of drugs at that time.” Also, a “reasonable fact-finder might also accept that Smith bought drugs via a hand-to-hand transaction while seated in the defendant vehicle, but this transaction cannot reasonably be said to involve transportation. Notwithstanding the apparent absence of drugs in the defendant vehicle, a reasonable fact-finder could even conclude that claimant’s vehicle transported drugs down the road some distance before being pulled over.” However, the court concluded that this transportation could not “be said to have been for the purpose of sale or receipt of the drugs. The only intended sale in plaintiff’s theory of the case was concluded in front of the house on [L] Street, when Smith received the drugs before claimant drove away. Because the evidence presented demonstrated that the drugs were for Smith’s personal use, there could be no further purpose of sale or receipt.” Dissenting, Justice Viviano questioned whether the majority’s narrow interpretation of the word “receipt” in MCL 333.7521(1)(d) was correct. He “would not resolve the difficult interpretive issues presented under Subsection (1)(d), however, because claimant’s vehicle was clearly subject to forfeiture under MCL 333.7521(1)(f).” As a result, he would affirm the Court of Appeals on other grounds.
Exclusion of evidence; Relevance; MRE 401 & 402; MRE 403; Harmless error; Child sexually abusive material (CSAM)
While the court found the trial court erred in excluding evidence that a flash drive belonged to someone else, it concluded the error was not outcome-determinative and reversal was unwarranted. Defendant was convicted of multiple counts of aggravated CSAM and using a computer to commit aggravated CSAM, as well as indecent exposure. Two tips indicated that CSAM was connected to his name and address. He “lived with his mother, a roommate, and a romantic partner, TR. After a search warrant was executed, CSAM files were found to have been accessed by defendant’s computer and downloaded onto” the flash drive. Photos from the 2004 funeral of TR’s grandmother “had at one time been downloaded onto the flash drive . . . .” They were deleted before it “was seized, and officers were unable to determine when [they] had been downloaded onto the flash drive. Defense counsel” unsuccessfully sought to introduce evidence of the photos “to prove that the flash drive belonged to TR[.]” The court held that the trial court abused its discretion in considering their remoteness when deciding whether to admit them. Further, “it was unclear how long ago they had been deleted.” As to their relevance, “evidence of who owned the flash drive—and the downloaded CSAM within—was material because defendant’s knowing possession of the CSAM was directly at issue.” The photos also “had a tendency—however slight—'to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without’” them. The court found this “evidence, along with the testimony that TR lived at defendant’s house and occasionally slept in the bed that the flash drive was located next to, could have led a reasonable juror to determine that the flash drive—and its contents—belonged to TR.” Thus, the trial court erred in finding the evidence was not relevant. Further, any prejudice “did not substantially outweigh” its probative value. But the court found that, “considering all the evidence together, it does not affirmatively appear, more probable than not, that” its exclusion undermined the verdict’s reliability. Among other things, “defendant wrote two confession letters indicating that he had downloaded CSAM onto a flash drive” to frame TR. Affirmed.
Sentencing; Reasonableness & proportionality; People v Posey
The court held on remand that defendant failed to meet his burden of showing his within-guidelines sentence was unreasonable or disproportionate. He was convicted of AWIM for a nonfatal stabbing at a trailer park. The trial court explained that it was following the PSIR sentencing recommendation, which fell in the middle of the guidelines, sentencing defendant to 40 to 80 years in prison, consecutive to a sentence he was serving in another case. In a prior appeal, the court affirmed, but the Supreme Court later remanded for reconsideration in light of Posey. On remand, the court reached the same result. It rejected his argument that “compared to other cases with the same charge, the offense was far from serious.” It noted his brief on appeal did “not establish that he shows any of the remorse that the trial court noted was lacking at sentencing.” That the victim “did not die does not take away from the seriousness of [his] actions but, instead, is exactly the conduct AWIM prohibits.” The court also rejected his claim that his sentence was disproportionate because some defendants convicted of second-degree murder receive lesser minimum sentences, noting this argument “directly conflicts with the trial court’s requirement to impose a sentence proportionate to the seriousness of this offense and offender.” The trial court “witnessed all of the trial testimony in addition to defendant’s statement at sentencing.” It found he was “manipulative, dangerous, and did not conform his behavior to society’s expectations.” It also noted he “intended to murder a person and sent a message stating that the person needed to die.” The trial court explained that defendant stabbed the victim, did not show remorse, and relied on his “criminal history and status of being on parole at the time of the offense.” Nothing in the record showed that “the trial court failed to consider the offense and offender when imposing defendant’s sentence.” He was not entitled to resentencing. Affirmed.
Motion to admit other acts evidence; MCL 768.27b; MRE 403; People v Cameron; People v Watkins
In this interlocutory appeal, the court held that the trial court did not abuse its discretion in ruling other acts evidence admissible under MCL 768.27b. Defendant is charged with, among other things, CSC I and III in this case. He argued that the evidence at issue should have been excluded under MRE 403. The court disagreed. While there were “some dissimilarities between the level of force used in the two cases, both cases involve domestic relationships in which defendant is alleged to have taken advantage of his close proximity to his victim in order to commit acts of sexual assault.” In this case, complainant claimed he “sexually assaulted her while she was living with him. At the time, she was staying with [him] because she had nowhere else to live. In the other case, defendant,” then 33 years old, was “alleged to have engaged in at least 10 instances of sexual penetration of” a teenage female relative. “Notably, [he] also lived in the same house as” the young girl involved in that case “when the assaults took place. Assuming the truth of these allegations, one could reasonably infer that” he used his proximity to his young relative “to sexually assault her.” Thus, the other acts evidence showed his “propensity to manipulate his domestic relationships in order to commit acts of sexual assault against vulnerable victims. The trial court also found that the temporal proximity between the other acts and the allegations in the present case, as well as the frequency with which the other acts occurred, weighed in favor of admitting the evidence. The acts alleged in the other case” took place less than a year before the actions alleged here. Defendant was charged with 10 CSC I counts “in the other case, suggesting that the frequency with which he allegedly assaulted” that girl “was not so limited as to favor exclusion.” While he asserted the evidence was “unreliable because he has not been convicted of” those offenses, this ignored “that MCL 768.27b does not indicate that a defendant has to be convicted of a particular offense in order for it to be admissible under the statute.” The trial court did not abuse its discretion in finding “that the Watkins factors weighed in favor of admitting this evidence because its probative value is not substantially outweighed by its potential prejudicial effect.” It also did not appear at this stage that admitting “this evidence will be overly confusing to the jury or waste time at trial.” Affirmed.
First-party no-fault action; Personal protection insurance (PIP) benefits; Whether defendant was certified in Michigan under MCL 500.3163; MCL 500.3113; Waiver of a noncertification defense for failure to plead it as an affirmative defense; Leave to amend; MCR 2.118; Weymers v Khera; Bad faith; Prejudice
The court held that the trial court did not abuse its discretion by granting defendant-insurer’s motion for leave to amend its affirmative defenses. And, because no genuine issue of material fact existed that defendant was not certified in Michigan, defendant was not liable to provide plaintiff with PIP benefits. Plaintiff, an Illinois resident, sought PIP benefits for injuries she sustained in a car crash in Michigan. Defendant asserted that it had no duty to pay the benefits as it was not certified in Michigan under MCL 500.3163. The trial court agreed and granted its motion for summary disposition. In a prior appeal, the court reversed, agreeing with plaintiff that defendant waived its noncertification defense by failing to plead it in its affirmative defenses. The Supreme Court denied leave. Defendant later filed its amended affirmative defenses, specifically pleading that plaintiff was not eligible for PIP benefits because it had not filed a certification. Plaintiff filed an interlocutory application from the trial court’s order granting defendant’s motion to amend its affirmative defenses, which was denied. The Supreme Court also denied interlocutory review. The trial court ultimately granted defendant’s motion for summary disposition. In the present appeal, the court rejected plaintiff's argument that the trial court abused its discretion “by granting defendant leave to amend its affirmative defenses nearly four years after defendant first learned of its failure to properly plead its noncertification defense.” It found that, under the circumstances, there was “no indication that defendant’s delay in amending its affirmative defenses was somehow undue or nefarious and such delay, alone, was not sufficient to deny its motion for leave to amend.” In addition, plaintiff “did not suffer the loss of these claims that she would have otherwise had if defendant filed the affirmative defense earlier. Rather, plaintiff could have pursued these sources of coverage and she simply did not.” Affirmed.
§ 19b(3)(c)(i); Child’s best interests
Concluding that § (c)(i) existed and the trial court did not clearly err by finding that termination of respondent-mother’s parental rights was in her child's (IL) best interests, the court affirmed. She argued “that she was not given sufficient opportunity to correct her deficiencies and behavior, suggesting that the trial court therefore clearly erred by finding that a statutory ground for terminating her parental rights was proven by clear and convincing evidence.” The court held that the record supported the trial court’s findings that the 182 day requirement of § (c) “was satisfied, the conditions that led to adjudication continued to exist, and there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering IL’s age. The conditions that led to adjudication were the physical abuse of IL, the lack of insight regarding IL’s needs, the inability to understand IL’s cues, and the inability to communicate effectively with IL.” While the mother participated in “services, she failed to demonstrate any benefit from them so as to rectify the conditions that led to adjudication.” The caseworkers and service providers frequently had to intervene during her parenting time to ensure that IL was safe. Despite regular reminders from service providers, she “was often unable to understand what IL needed and wanted, or recognize when a situation was unsafe for IL.” The court noted that the mother “also repeatedly ignored or dismissed service providers’ redirection on how to meet IL’s needs or appropriately act around him.” The DHHS had not allowed her “to have unsupervised parenting time with IL since IL’s removal.” Also, her “psychological evaluation indicated that she was prone to engaging in high-risk relationships and could not provide safety for IL while he was in the care of respondent-father, who the psychologist had determined could not function as a safe parent. Further, even after months of intensive services, respondent-mother’s Infant Mental Health specialist could not determine whether additional time would improve” the mother’s parenting skills. The court held that the “trial court did not clearly err by concluding that there was no reasonable likelihood that [she] would rectify the conditions that led to adjudication within a reasonable time.”
Jurisdiction over a child; MCL 712A.2(b)(1) & (2); Factual findings
After remand for the ‘“appropriate findings of fact’ and for ‘articulation of a jurisdictional analysis that is amenable to appellate review’ of the [trial] court’s denial of jurisdiction in this child protective proceeding,” the court concluded that the issues and evidence were not properly before it. “Ultimately, the trial court considered the record evidence (or lack thereof) and assessed the credibility of the witnesses presenting conflicting stories before concluding grounds to take jurisdiction over the children were lacking.” The court had “no ground to interfere with those factual findings and” thus affirmed. It advised “the DHHS that it may file a new petition if warranted after gathering evidence to be presented to the” trial court.