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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Other acts evidence; Speedy trial; People v Williams; People v Smith; Prejudice; Ineffective assistance of counsel; Plea-agreement negotiations; Sentencing; Scoring OV 6 at 50 points; Habitual offender; People v Gardner
Holding that there were no errors warranting reversal, the court affirmed defendant-Curry’s convictions and sentence. He was convicted of AWIM, felony-firearm, and FIP. He was sentenced as a fourth-offense habitual offender to 480 months to 100 years for AWIM, 60 months to 100 years for the FIP, and 5 years for felony-firearm to be served consecutive to his sentences for the other convictions. He first argued that the trial court abused its discretion by admitting other acts evidence suggesting that he was a drug dealer. The court concluded that because no other acts evidence was admitted, there was no factual basis for his claim that the trial court abused its discretion by admitting such evidence. Curry next argued that he was denied his constitutional right to a speedy trial. Because the delay was more than 18 months, it was presumed that he was prejudiced. The trial court properly found that factor one favored him. Here, as in Smith, the court held that “it was ‘the extenuating circumstances brought about by the pandemic’ that prevented the prosecution from trying Curry in a speedy fashion. Thus, the trial court did not clearly err by declining to attribute the reason for the delay to the prosecution.” The court noted that the “third factor considers when the defendant first asserts his or her right to a speedy trial.” It found that “Curry first asserted his right to a speedy trial in [10/20], which is approximately 15 months after his arrest in” 7/19. He reasserted his right in 7/21. The trial court did not clearly err by weighing factor three in his favor. “The final factor considers prejudice to the defendant.” The court held that “two of the Williams factors were neutral and two weighed in favor of Curry.” Despite its neutral weight, the trial “court found that the most important factor in this case was the reason for the delay. Indeed, given the unprecedented nature of the COVID-19 pandemic and the response to it, holding a trial was impossible. Considering that there was no prejudice to the defense, a finding that this factor overwhelmed the factors favoring the defense is not clearly erroneous. Thus, balancing all the relevant factors, we conclude that Curry did not establish a violation of his right to a speedy trial.” Also, Curry could not “establish that his secondary lawyer provided constitutionally deficient assistance.” Finally, the trial court did not err by finding that his conduct was premeditated and scoring OV 6 at 50 points.
Search & seizure; Search incident to arrest; Ineffective assistance of counsel; Failure to move to suppress; Futility; Denial of a motion to adjourn; MCR 2.503(B)(1); People v Lawton; Sentencing; Reasonableness; People v Posey; Effect of a within-guidelines sentence
The court held that there was no basis to suppress the evidence because a “valid search incident to arrest resulted in the discovery of the baggie” containing meth in defendant’s pocket. As a result, his claim that his trial counsel was ineffective for failing to move to suppress the meth also failed. Further, the trial court did not abuse its discretion in denying his motion to adjourn the trial. But the trial court failed to “provide sufficient reasoning” for the court to conduct the reasonableness review mandated by Posey. Thus, it affirmed defendant’s conviction of meth possession, second offense and his guidelines range calculation but remanded for justification of his sentence or for resentencing. He was sentenced as a fourth-offense habitual offender to 46 months to 20 years. He argued on appeal that there was no probable cause supporting his arrest for possessing a stolen motorcycle and thus, “the officers had no basis to conduct a search incident to that arrest.” As he failed to challenge the arrest or the search in the trial court, the court reviewed the issue for plain error. It held that the record established probable cause to arrest him “for possessing a stolen motorcycle.” A police officer received trustworthy information that the motorcycle in the driveway “was likely stolen, that defendant had ridden the motorcycle into the driveway of a home that was not his, and that [he] had offered to sell the motorcycle to” a witness for $200. This “evidence supported an inference that [he] possessed a stolen motorcycle, which was sufficient to establish probable cause.” As a result, his warrantless arrest was permissible and “the officers were not obligated to supply any additional justification for searching defendant incident to his arrest.” The court concluded he did not show “any error at all, much less a plain error that affected his substantial rights.” As to his motion to adjourn, his argument focused “on the fact that the laboratory report was not released until three days before trial. But defendant did not make diligent efforts to obtain independent testing at any point during the three months when the evidence was in the locker.” He also could not show he was prejudiced by the denial of an adjournment. He offered no support for his claim the substance would not test positive for meth “if it underwent independent testing.”
Scope of a custody order; Parenting time restrictions; Motion for judicial disqualification; MCR 2.003(D)(2); Evidence; Gender discrimination; Consideration of a parent’s mental health in deciding custody issues; Accusations against a child’s guardian & the guardian ad litem (GAL); Consideration of a psychological evaluation
Holding among other things that the trial court did not err in relying on a doctor’s (S) psychological evaluation in restricting petitioner-father to supervised parenting time with his child (AE), the court affirmed the probate court’s order denying his various motions. AE was placed with his paternal grandmother, who was granted a full guardianship without objection by either parent. At issue here was the denial of petitioner’s motions to disqualify the trial court judge, to remove the child’s GAL, “to compel discovery, to suppress evidence, to reinstate parenting time, and his ‘petition regarding legal violations.’” As an initial matter, the court took issue with his “repeated characterizations of the results below as ‘terminating’ his parental rights, ending the ‘parent-child relationship’ generally, or ending his parenting time with AE in particular.” The trial court did not terminate his parental rights or his right to parenting time – it “merely restricted [him] to supervised parenting time in the child’s local area with no overnights, then to supervised telephonic contact, pending father’s engaging in, and benefiting from, mental-health treatment.” As to his motion to disqualify, the court did not need to consider his substantive arguments because the motion was denied on the basis petitioner “failed to follow the pertinent pleading requirements.” He did not dispute this. As to his evidentiary issues, he did not cite any “authority for the proposition that a GAL or guardian may not include hearsay in nontestimonial offerings, such as written or oral reports to the court. Nor does he identify precisely what grandmother or the GAL said that constituted slander or speculation, or identify any lay opinion testimony that the [trial] court accepted that should have been the exclusive province of experts.” Thus, he did not “show that the trial court relied on any improper evidence.” The court further concluded he failed “to identify any specific statutory or regulatory provision prohibiting a court from considering a parent’s mental health when deciding child-custody matters.” And he did not offer any “authority that would limit a court’s use of such information.” He also offered no analysis as to what particular authorities “were violated in connection with [S’s] evaluation, or the actions allegedly taken by [S] (other than the vague reference to reliance on Zoom), grandmother, or AE’s GAL, that resulted in such violations.”
Medical malpractice; Standard of care (SOC) requirements for expert medical testimony; MCL 600.2169; Woodard v Custer; “Specialist” & “specialties”; “Matching”; American Board of Medical Specialties (ABMS); American Osteopathic Association (AOA); American Board of Physician Specialties (ABPS)
Concluding “Woodard was in part wrongly decided and must be overruled in part[,]” the court held that as “to medical malpractice claims filed against physicians, the words ‘specialist’ and ‘specialties’ as used in MCL 600.2169(1) are defined as the specialties recognized by the” ABMS, the AOA, the ABPS, “or other similar nationally recognized umbrella-based physician certifying entities.” It also held that MCL 600.2169’s matching requirement “follows the listed general board certifications, which are the baseline ‘specialties’ recognized by such entities for certification purposes. The statute does not require matching of subspecialties.” Two cases were involved in this appeal, one referred to as Swofford and the other as Selliman. The court determined that the test adopted in Woodard “regarding the evaluation of specialists in medical malpractice actions is inconsistent with” MCL 600.2169’s language. “Specifically, Woodard incorrectly conflated the terms ‘specialty’ and ‘subspecialty’ in a manner that is inconsistent with the plain language of the statute, and it essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under Subsection (1).” The court emphasized “that a trial court must ensure that experts with matching specialties under MCL 600.2169(1) meet other criteria set forth in MCL 600.2169(2) and that MCL 600.2169(3) provides trial courts with broad discretion in assessing experts.” In the cases on appeal, it found that while “the Court of Appeals reached the correct result in” the Swofford case, “it relied on Woodard. Thus, it erred by concluding that the relevant specialty was neuroradiology and that” plaintiff’s SOC expert (Dr. B) “was therefore qualified because he spent a majority of his time as a neuroradiologist. Instead, [B] was qualified because the relevant specialty was diagnostic radiology and his subspecialty of neuroradiology was subsumed within that broader specialty.” As a result, the court affirmed in part and reversed in part the Court of Appeals judgment in that case, and remanded to the trial court. In the Selliman case, the Court of Appeals ruled that plaintiff’s proposed SOC expert (Dr. A) “was not qualified to give [SOC] testimony under MCL 600.2169. But it relied on Woodard when assessing the time spent by defendant and [A] on both otolaryngology and facial plastic and reconstructive surgery—treating both as specialties.” Thus, the court reversed the Court of Appeals judgment and remanded to the trial court.
Dissenting, Chief Justice Clement (joined by Justices Zahra and Viviano) disagreed “with the majority’s substantive arguments” on Woodard’s merit. She believed “Woodard correctly defined ‘specialty’ as including ‘subspecialty’ and did not effectively negate Subsections (2) and (3) of § 2169.” Further, she “would not overrule Woodard in part, as the majority now does, due to stare decisis concerns. Woodard’s rules are more administrable than those the majority now puts forward, and” as a result, she believed Woodard was “worth keeping.” She would affirm the Court of Appeals in both cases.
Tax foreclosure; Whether an easement was excepted from the effects of a judicial tax foreclosure under MCL 211.78k(5)(e); Penrose v McCullough; Principle that an easement in gross is an alienable (and thus transferable) property right; Heydon v MediaOne; Whether leasehold interests were extinguished by the foreclosure; Effect of assignments; Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co; Fixtures; Ottaco, Inc v Gauze; Michigan Nat’l Bank v Lansing; Global Signal Acquisitions IV, LLC (GSA)
The court held that the trial court did not err by finding the easement at issue was excepted from the effects of the judicial tax foreclosure, but did err by finding that the leasehold interests in the foreclosed property survived the foreclosure. It also held that the trial court properly found the cell tower at issue was not a fixture. The property here was subject to a judicial tax foreclosure. Plaintiffs-GSA and American Tower sought to quiet title. Defendant-Adamo filed counterclaims and a third-party complaint asserting numerous theories to challenge the validity of the interests held by each party. The trial court denied Adamo’s motion for summary disposition and granted summary disposition for GSA and American Tower. On appeal, the court rejected Adamo’s argument that the trial court erred by finding the easement was excepted from the effects of a judicial tax foreclosure under MCL 211.78k(5)(e). “Because Michigan recognizes exclusive easements when there is a clear intent to create such an interest, the mere fact that GSA had the right to use the easement area to Adamo’s exclusion does not render the easement invalid or otherwise affect its ability to survive judicial forfeiture.” In addition, “there was no evidence presented that GSA has attempted to transfer the easement to anyone; rather, it has merely continued leasing the easement area to third parties, consistent with its rights under the grant of easement.” The easement was “clearly visible inasmuch as the cell tower and ground-level equipment in the easement area are enclosed by a fence with a no-trespassing sign and secured with padlocks bearing American Tower’s name and contact information. The easement was also indisputably recorded in 2008, long before the judicial foreclosure.” But the court agreed with Adamo that the trial court erred by holding that the leasehold interests of other parties in the foreclosed property survived the judicial foreclosure. “Because GSA’s assignor could not have shielded the leases from the effects of the judicial tax foreclosure, neither could GSA through its easement.” Finally, the court rejected Adamo’s contention that the cell tower was a fixture and thus, ownership of the tower passed to Adamo when it acquired title to the property. The trial court “did not err by holding that the cell tower failed the third element of the fixture test, i.e., ‘intention to make the article a permanent accession to the freehold.’” Affirmed in part, reversed in part, and remanded.
Termination under § 19b(3)(c)(i); Failure to make any meaningful change; In re Williams; Principle that a parent must both participate in services & demonstrate sufficient benefit from the services; In re Atchley; Best interests of the child; MCL 712A.19b(5); In re Medina; A parent’s substance-abuse history; In re Rippy; The risk of harm to the child if returned to the parent’s care; In re VanDalen; Relative placement; In re Gonzales/Martinez
Holding that § (c)(i) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. The child was removed after respondent left him in a car during a drive-by shooting while she took shelter. Her rights were later terminated primarily on the basis of her failure to participate in regular drug screens, substance abuse treatment, and individual therapy. On appeal, the court rejected her argument that a statutory ground for termination was not met. “In this case, the record supports the trial court’s finding under [§ (c)(i)] that more than 182 days had elapsed after the issuance of the first dispositional order, the conditions that led to the adjudication continued to exist, and there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child’s age.” The court disagreed “that respondent made meaningful progress on her treatment plan. [She] was given almost four years to rectify the issues that led to the adjudication before her parental rights were terminated, but [she] failed to obtain suitable housing, failed to demonstrate regular income, failed to participate in the court-ordered drug screening, failed to address her substance use, failed to benefit from her parenting classes, failed to attend individual therapy, and failed to visit” the child or to provide for the child in any way. “Respondent failed to rectify any of the conditions that led to the adjudication during the nearly four years she was given to rectify those issues.” The court also rejected her claim that termination was not in the child’s best interests. “[R]espondent made no progress in her treatment plan. [She] failed to obtain suitable housing, and therefore failed to provide a stable and permanent home for the child. [Her] untreated drug use also indicates [she] was not progressing in the treatment plan and that termination was in” the child’s best interests. “Respondent also frequently missed visits with the child, which upset” him and caused her bond with him to deteriorate. “By contrast, the willingness of [the child’s] relative caregivers to adopt him weighed in support of termination; almost four years had passed since his removal from respondent’s care, and [he] needed permanence, stability, and finality.” The child’s “success in his placement with his relative caregivers also weighed in support of termination.”
§§ 19b(3)(b)(i), (j), (k)(ii), & (k)(ix); Sexual abuse; Reasonable reunification efforts; Child’s best interests
The court held that §§ (b)(i), (j), (k)(ii), and (k)(ix) existed. Also, because the trial court found that aggravated circumstances existed, the DHHS was not obligated to make reasonable efforts to reunify respondent-father with his child, E. Finally, the trial court did not clearly err by finding that termination of his parental rights was in E’s best interests. He contended “that the trial court erred by finding that sufficient evidence was introduced to warrant termination of his parental rights under” §§ (b)(i), (j), (k)(ii), and (k)(ix) because the allegations of sexual abuse were false. As to § (b)(i), E “testified that respondent attempted to penetrate her vagina with his penis, put his penis on her wrist, and told her to suck his penis while he drove her home. [E] disclosed this abuse to her therapist and later to CPS workers. In the clinical evaluation, [E] told interviewers that she thought respondent ‘might do it again.’ The trial court" determined her testimony was “credible. The sexual abuse occurred shortly after respondent began visiting with [E], supporting the conclusion that if he were to resume contact with [her], there is a reasonable likelihood that she would suffer similar abuse by respondent in the foreseeable future.” Thus, the trial court did not err by finding termination was warranted under § (j). “In the clinical evaluation, [E] told interviewers that she thought respondent ‘might do it again.’ [E’s] credible allegations of sexual abuse demonstrate a reasonable likelihood, based on respondent’s conduct, that respondent would sexually abuse [E] if she continued visiting him.” Also, the court noted that E “testified that respondent attempted to penetrate her vagina with his penis and attempted to compel her to perform fellatio on him. [E’s] description of respondent’s actions meets the definition of sexual abuse involving attempted penetration." Thus, the court concluded “the trial court did not clearly err when it found clear and convincing evidence to terminate his parental rights under” §§ (k)(ii) and (k)(ix). Affirmed.