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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Video interview; Discovery violations; People v Banks; Harmless error; Expert testimony; Daubert v Merrell Dow Pharm, Inc; People v Muhammad; MRE 702; Prejudice & relevance; MRE 401-403; Ineffective assistance of counsel; Failure to object to statements as to delayed disclosures
The court concluded that “the trial court abused its discretion when it allowed the video into evidence because it had not been timely disclosed to defendant; however, the error was harmless.” The trial court did not abuse its discretion when it admitted an expert’s testimony about the pathophysiological effects of strangulation under Daubert and MRE 702. Finally, defendant was not denied the effective assistance of counsel. He was convicted of second-degree child abuse and AWIGBH by strangulation or suffocation. He argued “the trial court violated his due-process rights when it allowed the prosecution to present portions of the video of his police interview after the defense had rested, despite the fact that the prosecution failed to produce a copy of the video to defendant until after the first day of trial, and the trial court’s remedy was insufficient to address this violation.” The court held that “the discrepancy between the video and defendant’s trial testimony was not relevant to prove any of the prosecution’s theories of the case; rather, it was used solely as impeachment on an issue that was not an element of any of the charges brought against defendant.” As such, it found “that the trial court abused its discretion by allowing the prosecution to introduce the video as evidence.” It next turned to the question “of whether the trial court’s error, in allowing production of the evidence, was harmless.” Based on the record, the court was not persuaded that it was “more probable than not that the trial court’s error in admitting the video clips was outcome determinative, i.e., we do not believe the admission of that evidence undermined the reliability of the verdict because, even without the subject video, the weight and strength of the evidence supporting the charges against defendant at trial was overwhelming.” It found that after “considering all of the evidence in its totality, including the testimony of defendant’s wife,” the two child victims, and other witnesses, including two experts, “as well as various admissions made by defendant during his testimony at trial, it would not be reasonable to hold that the outcome would have been different had the trial court refused to admit the 56 seconds worth of video into evidence.” Affirmed.
Admission of preliminary exam testimony; Unavailable witness; MRE 804(b)(1) & (a)(5); Due diligence; Distinguishing People v Bean & People v Dye; Relevance; Evidence of defendant’s statements to a witness; Evidence of defendant’s custodial status; Ineffective assistance of counsel; Failure to make a futile objection; Sufficiency of the evidence for a jury instruction on the lesser included offense of second-degree murder
The court held that the trial court did not err in ruling that a witness (B) was unavailable and admitting her preliminary exam testimony at trial. It also did not err in admitting portions of B’s testimony about defendant’s statements to her and about his custodial status, and his trial counsel was not ineffective for failing to make a futile objection. Finally, there was no error in giving a second-degree murder jury instruction because a rational view of the evidence supported it. Defendant was convicted of second-degree murder and felony-firearm. B was his girlfriend when the crimes were committed. He argued “the prosecution did not make diligent, good-faith efforts to produce” B at trial, relying on Bean and Dye. But the court found those cases factually distinguishable. There was no evidence here “that the prosecution had information that [B] had intended to leave this state or that she had, in fact, left” the state. While a detective (F) “acknowledged that he did not stay in close touch with [B] before trial, he testified that [B] assured him that she would appear and testify at defendant’s trial. [F] testified that he initially did a workup to find any information that would aid him in locating [B]. He went to five addresses, called four phone numbers associated with [B], and” tried unsuccessfully to contact her through her email and social media accounts. F also found B’s mother’s address. “He contacted the leasing office and spoke to neighbors, who denied seeing [B].” In addition, F monitored B’s “Bridge Card activity from the three months before trial to see if he could ‘catch a pattern of grocery stores or gas stations’ frequented by” B but was unsuccessful. Unlike in Bean, there was no evidence that F had information as to B’s possible or likely whereabouts “and simply failed to follow leads that could have led him to locate her. He also spoke to the prosecutor regarding a detainer, which the trial court issued shortly before trial.” The court rejected defendant’s suggestion that “due diligence was not exercised because [F] did not check hospitals and homeless shelters or contact any government assistance programs in his attempt to locate” B. The court also found defendant’s “statements to [B] about ‘having his back’ were relevant because they” showed his attempt to influence B’s “willingness to testify against him and were suggestive of his consciousness of guilt.” Affirmed.
Validity of a guilty plea; MCR 6.302; MCR 6.402(B); Plain error review
The court concluded “that the trial court plainly erred by accepting defendant’s guilty plea to” second-degree murder but disagreed that he was “entitled to relief on this basis.” He argued “that the trial court erred by accepting his guilty plea to second-degree murder because the factual basis set forth at the plea hearing was inadequate to establish that the plea was accurate.” He contended “that the factual basis set forth at the plea hearing did not establish that a death occurred, nor did it establish who died.” Defendant did “not challenge the malice element of second-degree murder.” The court held that the “trial court erred by accepting defendant’s guilty plea to second-degree murder because the factual basis set forth at the plea hearing was inadequate to establish that the plea was accurate.” It concluded he “established both that the trial court committed error by accepting his plea, and that the error was plain, i.e., clear or obvious.” Notwithstanding the trial court’s error, he was “not entitled to relief on this basis because he has not established that the plain error affected his substantial rights.” Defendant’s argument amounted “merely to an assertion that the trial court did not strictly comply with MCR 6.402(B).” Considering he did not dispute that the victim “died as a result of defendant’s conduct, defendant has not established that he was prejudiced by the trial court’s error in accepting his plea, i.e., he has not established that the error affected the outcome of the lower court proceedings.” Further, even if he had established prejudice, he did not establish “that the error ‘resulted in the conviction of an actually innocent defendant’ or ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s innocence.’” The court noted that at the hearing, he “acknowledged the charges to which he was pleading included murder in the second degree, and defendant does not argue on appeal that his conduct did not result in the victim’s death.” Thus, he did not establish “that the plain error affected his substantial rights, and is not entitled to relief on this basis.” Affirmed.
Search & seizure; Motion to suppress evidence obtained after a traffic stop; Probable cause; Effect of the smell of marijuana; Michigan Regulation & Taxation of Marijuana Act (MRTMA); People v Jones; People v Armstrong; A drug-sniffing dog’s alert; People v Clark; A defendant’s nervousness; Distinguishing United States v Saperstein (6th Cir); Sentencing; Proportionality
Concluding that “the trial court properly denied defendant’s motion to suppress” and that his “sentence was not disproportionate or unreasonable,” the court affirmed. He was convicted of delivery or manufacture of meth (3.9 grams) and resisting or obstructing a police officer. He was sentenced to 51 to 240 months for the delivery or manufacture of meth and 121 days for each resisting or obstructing a police officer conviction. Defendant argued “his arrest and subsequent search” violated the Fourth Amendment. He claimed that the facts here, “considered under the totality of circumstances, were insufficient to establish probable cause.” Specifically, defendant argued “that the smell of marijuana no longer provides probable cause to search after the enactment of the” MRTMA. In support of this argument, he asserted that Jones “is no longer a binding precedent.” The court disagreed. It concluded that it “need not decide what, if any, effect the passage of the MRTMA had upon the precedent set by Jones, because the holding in Jones” was not pertinent to defendant’s argument. Although “the trial court noted that Jones stands for the proposition that a canine sniff is not a search as it applied to the circumstances in Jones, whether or not Jones remains a binding precedent does not have any effect on the analysis of the argument that defendant has raised on appeal.” He also relied on Armstrong. But he did “not demonstrate the canine smelled marijuana in this case.” The record showed “the canine alerted twice on the vehicle and that meth[] was found to be possessed by defendant and another passenger.” Finally, he argued “his nervousness was not grounds, on its own, to establish probable cause.” However, his situation was distinguishable from that in the case on which he relied, Saperstein. The court held the record provided “evidence the officers, considering the totality of the circumstances, had a reasonable belief drugs were in the car or on defendant.” Given that they “had enough evidence to establish probable cause, the arrest and subsequent search of defendant was lawful.”
Sentencing; Armed Career Criminal Act (ACCA); Whether defendant’s prior drug offenses qualified as “separate” predicate offenses occurring on three separate “occasions”; 18 USC § 924(e)(1); Whether the Fifth & Sixth Amendments require the government to charge the separateness of the ACCA predicates in an indictment & prove the supporting facts to a jury; Erlinger v United States; Apprendi v New Jersey; Alleyne v United States; Conditions of supervised release; § 3563(b)(22); The “risk notification” condition; USSG § 5D1.3(c)(12); Whether the condition’s language was “vague”; Whether it was an unconstitutional delegation of judicial authority
In an amended opinion (see e-Journal # 79971 in the 8/17/23 edition for the original opinion), the court reconsidered whether the district court erred in enhancing defendant-Campbell’s sentence by judicially determining whether his drug offenses were committed on three separate “occasions.” Under the recent case of Erlinger, it held that this was a matter for the jury. But it also held that the error was harmless. Thus, it again affirmed his sentence. Campbell challenged the district court’s conclusion that the prior offenses were committed on three separate “occasions,” which resulted in three ACCA predicate offenses. Erlinger settled “whether the district court violated the principles of Apprendi and Alleyne in sentencing Campbell[.]” Thus, the court turned to the issue of the “appropriate remedy for that underlying constitutional error.” As the violation, “a sentencing enhancement resulting from judicial findings concerning ACCA’s occasions clause—is part and parcel with the errors in Apprendi and Alleyne,” the court joined its sister circuits by holding that “the failure to submit the occasions clause question to the jury is subject to harmless error review.” It concluded that it could “‘confidently say,’ based on the ‘whole record,’ that the government has shown that the constitutional error at issue here was ‘harmless beyond a reasonable doubt.’”
Divorce; Property division; Whether property was marital or separate; Distinguishing Reeves v Reeves, Woodington v Shokoohi, & Gates v Gates; Tenancy by the entirety; Canjar v Cole; Spousal support; Elahham v Al-Jabban
The court held that the trial court erred in ruling that certain real property (the 13 Mile Road property) that was deeded to both parties “during their marriage as tenants by the entirety, was not marital property.” And its spousal support award, which granted plaintiff-ex-wife (Sharease) “extra equity in the marital home as alimony-in-gross, . . . is inextricably tied to its property division.” Thus, the court reversed the trial court’s ruling as to the 13 Mile Road property, vacated in part the divorce judgment as to property division and spousal support, and remanded. While defendant-ex-husband’s (Terry) mother (R) “testified that she wanted Terry to inherit the property, she also testified that she intended to gift the property to both Sharease and Terry, and there” was no dispute that R deeded it via a quitclaim deed to both as tenants by the entirety, subject to her life estate. The court concluded that R’s “testimony that she intended for the property to be Terry’s inheritance does not change the legal effect of the deed. [R] executed the deed while Sharease and Terry were married, and gave them an interest in the property reserved exclusively for married couples.” The fact that she deeded “the property in this manner showed [R’s] clear intent to grant both Sharease and Terry ownership of the 13 Mile Road property. And by the nature of their tenancy, neither Sharease nor Terry had a separate interest in” it. The court noted while their later “divorce was likely not anticipated by [R] at the time, it does not change the interest in the property that [R] gave the couple. The plain language of the deed suggests that the property was a gift to both Sharease and Terry, not that it was intended for Terry alone as his inheritance from [R] upon her death.” Thus, the trial court’s ruling that the property was Terry’s separate property was clearly erroneous. The court found the cases on which Terry relied – Reeves, Woodington, and Gates – were distinguishable. On “remand, the trial court should reconsider both the spousal support award and its property division in light of” the court’s holding as to the 13 Mile Road property. After reconsidering the property division, if it “continues to believe that spousal support is appropriate, it should order spousal support that is fair and equitable.”
Order requiring mental health treatment; The Mental Health Code (MHC); “Person requiring treatment”; MCL 330.1401(1)(a) & (c); “Mental illness” (MCL 330.1400(g)); Clear & convincing evidence; In re ASF
Holding that the probate court did not err in finding “respondent was a person requiring treatment under MCL 330.1401(1)(a)” and (c), the court affirmed the “order requiring that she receive treatment for mental illness pursuant to” the MHC. As to subsection (a), at the petition hearing, a clinical psychologist (Dr. A) testified “that respondent’s particular disorder can significantly impair her judgment, behavior, capacity to recognize reality and ability to cope with the demands of life. He also stated: ‘[T]his hospitalization began because [respondent] was expressing suicidal ideation with plans to harm herself, saying that she wanted to die.’” He additionally “testified that, within the near future, if she did not receive treatment, she could reasonably be expected to either intentionally or unintentionally injure herself or another and also testified that her impaired judgment and lack of understanding presented a substantial risk of physical harm to herself or others. He agreed that the treatment she was receiving was necessary to prevent relapse or harmful deterioration of her condition.” While A thought respondent “would probably be able to get out of the hospital sooner than the full 60 days, he believed that 60 days was the appropriate recommendation, just in case it was needed, due to her extensive mental health history and the fact that she had already been hospitalized three times that year.” The court concluded the facts here “produced a firm conviction that respondent could reasonably have been expected within the then near future to intentionally or unintentionally seriously physically injure herself or another individual.” As to subsection (c), there was testimony that she “refused ‘to see a psychiatrist or physician’” and refused medications when not hospitalized. The court found “that the facts produced a firm conviction that respondent was a person requiring treatment; indeed, her judgment was so impaired by . . . mental illness, her lack of understanding of the need for treatment had caused her to demonstrate an unwillingness to voluntarily participate in treatment that was necessary, per competent clinical opinions, to prevent a relapse or harmful deterioration of her condition, and she presented a substantial risk of significant physical or mental harm to herself or others.”
Class certification; FedRCivP 23; A common question of law or fact under Rule 23(a)(1) to support certification; In re Ford Motor Co, Doster v Kendall; Whether common questions predominated over individual ones under Rule 23(b)(3); Reliance on plaintiffs’ expert when granting class certification; Daubert v. Merrell Dow Pharms Inc
In this case in which the district court certified plaintiffs-Nissan purchasers’ 10 statewide classes, the court vacated and remanded for reconsideration of whether (1) there was a common question of law or fact to support certification and (2) common questions predominated over individual ones. It also joined the majority of other circuits and held that if “challenged expert testimony is material to a class certification motion, the district court must demonstrate the expert’s credibility under Daubert.” The putative class members purchased Nissans and claimed that the cars’ automatic alert for nearby vehicles or obstacles was activating at the wrong times. They sued, asserting various state-law claims, including warranty breach, fraud, consumer protection violations, and unjust enrichment. They argued that a “single radar problem” caused the defect and presented an expert report from a control systems engineer “who identified the radars as the ‘root cause’ of the” problem. Nissan asserted that there were multiple consumer claims alleged, and many versions of distinct products involved. On appeal, the court found “two over-arching flaws” in the district court’s ruling. “One turns on the distinct software upgrades created for different model cars. The other turns on the failure to analyze the elements of each state law claim to determine which, if any, elements would yield common yes-or-no answers. In fairness to the district court, it did not have the benefit of” the court’s Ford decision when it certified the classes here. The lack of a common answer to the threshold factual question of “which version of the software was included in the car each consumer drove” by itself justified “vacating this order under Ford.” Turning to the question of predominance, the court found that commonality issues tainted this “inquiry from the get-go” and that a “second look” by the district court was required for it to “consider, and account for, some of the ‘individualized determinations’ that might be ‘ill-equipped for classwide proof.’” The court then addressed whether, when “challenged expert testimony is relevant to class certification, must a district court perform a Daubert analysis of the evidence?” It agreed with a majority of circuits that the answer is yes.
Child’s best interests; In re White; In re Olive/Metts Minors; Failure to provide a respondent with more intensive mental health services; A respondent’s responsibility to participate in offered services
The court held that the evidence supported the trial court’s finding that termination was in the child’s (LAY) best interests, and that the trial court did not clearly err in failing to provide respondent-mother with more intensive mental health services. Thus, it affirmed the termination order. In that order, “the trial court explicitly found that termination was in LAY’s best interests because of respondent’s on-going mental health issues, housing and income instability, noncompliance with her service plan, and failure to visit with the child since” 12/22. It additionally “found that LAY was bonded to her foster family and that they were willing to adopt her.” The court concluded the record supported the trial court’s decision. As to respondent’s argument that the trial court’s failure to “provide her with more intensive mental health services” meant that it necessarily erred in terminating her rights, she “objected to the service plan for the first time at termination—about two years later after receiving the plan; thus, there was no opportunity for the trial court to order additional services or make any accommodations. But even if she had timely challenged her services, respondent must still ‘establish that she would have fared better if other services had been offered.’” The court noted that throughout the case, she “often refused to participate in court-ordered services, including not attending therapy for more than a year prior to the hearing, and failed to complete any of her court-ordered services. She also stopped visiting with LAY, and the caseworkers were unable to get in contact with her. Importantly, respondent had ‘a commensurate responsibility . . . to participate in the services that are offered.’” The court found that in light of her “outright refusal to cooperate with almost any aspect of her treatment plan,” she failed to show “she would have fared better if other services had been offered.”