Ineffective assistance of counsel; Failure to investigate alibi; People v Russell; Closing argument concession; People v Wise; Cross-examination discrepancy; People v Thurmond; Failure to call a specific witness; Speedy trial; People v Williams; Missing-witness instruction; MCL 767.40a; People v Eccles; Expert cell-site testimony; MRE 702; People v Bowden

The court held that defendant failed to show ineffective assistance of counsel on any asserted ground, and that none of the alleged trial errors warranted relief. He was convicted of second-degree murder, FIP, and felony-firearm for shooting and killing the victim in the parking lot of an after-hours club. On appeal, the court rejected his argument that counsel inadequately investigated an alibi, noting he showed no additional steps counsel should have taken and offered no proof that an alibi witness would have testified favorably. Without such a showing, “counsel’s alleged failure to investigate [did not] undermine confidence in the trial’s outcome.” The court upheld counsel’s strategic concession in closing that defendant was at the club, given the “overwhelming evidence” placing him there. Acknowledging the inevitable can lessen the impact and defense counsel focused the defense on misidentification. The jury was instructed that lawyers’ arguments are not evidence. The court found no prejudice in counsel’s choice not to press a minor discrepancy between “brown-skinned” and “dark complexion,” observing that credibility and more significant inconsistencies were fully explored. Declining to call a particular witness was reasonable strategy and the evidence was presented in another way. The court also rejected his speedy-trial claim, noting that although the 32-month delay was presumptively prejudicial, the reasons (COVID-19 trial suspensions, counsel withdrawals, plea discussions, and a courthouse fire) were not attributable to the prosecution. Further, any prejudice to the defense was minimal given multiple other eyewitnesses and corroborating evidence. A motion to dismiss would have been futile. As to the missing-witness instruction, the prosecutor exercised due diligence in trying to produce endorsed witnesses, and even if an instruction had been requested, there was no reasonable probability of a different outcome in light of the remaining evidence. Finally, the court found no basis to exclude the cell-site expert’s opinions, noting they were “based on sufficient facts and data,” reflected reliable methods, and were properly applied to the case, satisfying MRE 702. Affirmed.

Sufficiency of the evidence for a resisting or obstructing a police officer (R&O) conviction; MCL 750.81d(1); People v Corr; “Obstruct” (MCL 750.81d(7)(a))

Holding that the evidence was sufficient to allow “a reasonable juror to conclude, beyond a reasonable doubt, that defendant committed the offense of R&O because, at minimum, he failed to follow a lawful command[,]” the court affirmed. He was also convicted of third-degree fleeing and eluding and misdemeanor domestic violence. The case arose from an incident in which a county park ranger (D) attempted to stop defendant’s vehicle after being asked for help by a woman who had exited that vehicle. She told D that defendant had a gun. On appeal, defendant only challenged the sufficiency of the evidence for his R&O conviction, asserting the prosecution did not show that he heard D’s verbal command to stop. D “testified that the window on his patrol vehicle was lowered, and so was the window on defendant’s vehicle. He further testified that defendant drove his vehicle very slowly past the patrol vehicle, coming within six or seven feet. While defendant was passing the patrol vehicle,” he was looking right at D, who instructed him “to stop. But defendant did not stop his vehicle.” He instead drove it into a liquor store parking lot. D made “a U-turn, maneuvered behind defendant’s vehicle, and activated his overhead lights. Defendant fled in his vehicle, so [D] activated his siren and engaged in a pursuit. Defendant eventually stopped” and was arrested. Given D’s testimony, the court rejected defendant’s claim that the record did not contain sufficient evidence to support his R&O conviction.

Probable cause for traffic stop; People v Kavanaugh; Objective-reasonableness standard; Whren v United States; Vehicle lacking valid insurance; MCL 500.3102(2); Ordering a driver out; Pennsylvania v Mimms; Protective search of the passenger compartment; Michigan v Long; Extension of stop; People v Williams; Second Amendment argument; CPL requirement for pistols in vehicles; MCL 750.227; People v Langston

The court held that the firearm discovered under the driver’s seat was admissible because the vehicle search fell within Long and the stop was otherwise lawful. Officers ran defendant’s plate at a gas station. When LEIN showed no insurance, they lawfully stopped the car. After ordering defendant out, an officer saw an empty holster on defendant’s waist. Defendant then said a registered gun was “where it was supposed to be” in the car but did not produce a CPL. On these facts, the trial court denied his motion to suppress. On appeal, the court rejected defendant’s argument that the search was premised on marijuana transport rules, noting “‘[s]ubjective intentions play no role,’” and an officer’s action is valid “‘so long as the circumstances, viewed objectively, justify that action.’” Given the empty holster and statement about a gun in the car, the officers had a reasonable belief defendant was dangerous and “‘may gain immediate control of weapons,’” authorizing a limited search of areas “‘in which a weapon may be placed or hidden[.]’” The search under the driver’s seat fit Long and did not impermissibly extend the stop because a “‘new set of circumstances’” justified the brief expansion under Williams. Finally, the court rejected the Second Amendment claim, noting it has held the requirement “‘that a person must possess a valid CPL in order to carry a pistol in an automobile does not violate the Second Amendment.’” Affirmed.

Evidence of other acts of domestic violence; MCL 768.27b(1); MRE 403; People v Watkins; Sufficiency of the evidence for a domestic violence conviction; MCL 750.81(2); People v Cameron; Assault & battery; Ministerial correction of the judgment of sentence (JOS) & the presentence investigation report (PSIR)

The court held that the trial court did not abuse its discretion in admitting other acts evidence and that there was sufficient evidence to support defendant’s domestic violence conviction. The other acts evidence concerned “five other acts of domestic violence.” The court found that his “argument that recantation by the victim and her son undermined the reliability of the” other acts evidence revealed “the primary purpose that the trial court envisioned for that evidence. [It] observed that the evidence of defendant’s prior acts of domestic violence would shed light on ‘the relationship between the defendant and a victim,’ and it would ‘help the jury explain why a witness may recant.’” The court agreed “that such evidence, even if prejudicial, served an important purpose in assisting the jury in its assessment of the credibility problem arising from the recantations of the victim and her son at trial.” As to his assertion that “the conduct underlying two of the prior acts was factually dissimilar” the court noted that he did not “contest (or even acknowledge) the prosecutor’s contention that the ‘majority’ of the five prior acts involved some form of hair pulling. Because each instance of domestic violence involved the same victim and usually included similar violent actions,” the court did not believe that his “prior acts of domestic violence were insufficiently like the allegations in” this case to justify exclusion of the evidence under MRE 403. And “the trial court properly instructed the jury about the proper use of the” other acts evidence. Defendant also contended “that any evidence of hair pulling indicated a mere ‘tug’ insufficient to establish domestic violence.” The court determined that this contention was misplaced “because a conviction of domestic violence does not require proof of a threshold degree of physical injury. . . . Whether [he] pulled the victim’s hair, and, if so, whether the ‘tug’ rose to the level of a harmful or offensive touching were questions of fact pertinent to establishing the elements of the charged offense. Although the jurors were presented with conflicting evidence on those points, . . . there was sufficient evidence of aggressive hair pulling to support [its] resolution of that conflict by finding defendant guilty.” The court affirmed his conviction and sentence but remanded for the ministerial correction of the JOS and the PSIR.

Attorney misconduct in closing; Badiee v Brighton Area Sch; Golden-rule violation; May v Parke, Davis & Co; Curative instructions; Unfair prejudice; MRE 403; Judicial notice & bias; Waiver; Joint & several liability; Nuisance damages

Holding that no reversible error occurred and that the nuisance damages verdict stood, the court affirmed. Plaintiff-neighbor obtained a $45,000 verdict against defendants-brothers for nuisance. The judgment imposed joint and several liability. On appeal, the court rejected the claims by one of the defendants of attorney misconduct, noting counsel’s isolated comments (e.g., “put yourself in this position”) were cured because the trial court instructed the jury “closings are not evidence” and jurors were also told not to let “sympathy or prejudice” influence them. In addition, defendant’s challenges to judicial comments failed under the raise-or-waive rule. In any event, remarks such as “women are smarter” were innocuous. Defendant further waived objections to the verdict form and joint and several liability by approving the instructions and the form. Counsel told the court, “we’re good.” Finally, the damages challenge failed as the record showed destroyed landscape timbers and an heirloom bench, security costs, anxiety, and moving, which was adequate proof where “‘the adequacy of the amount of damages awarded is ordinarily within the province of the jury[.]’”

Immunity under the Emergency Medical Services Act (EMSA); Scope; “Treatment” under MCL 333.20965(1); Bartalsky v Osborn; Whether omissions can occur “in the treatment of a patient”; Gross negligence standard; MCL 691.1407(2)(c); Jennings v Southwood; Admissibility of evidence; MRE 801(d)(2)(A); MRE 803(2)

Holding that the EMSA applied, but that a fact question remained as to gross negligence, the court affirmed in part, reversed in part, and remanded. Plaintiff’s decedent (Dale) tested positive for COVID-19. EMS personnel from defendant-emergency medical services corporation responded on 10/3/21 and 10/5/21 but did not administer oxygen or transport him. He died on 10/7/21. On appeal, the court first held the EMSA’s limited immunity governed because defendants’ interactions with Dale were “treatment.” They assessed him, took vitals, and gave medical advice, and the statute expressly covers “acts or omissions.” The court explained that reading the statute otherwise “would render half of the phrase ‘act or omission’ nugatory.” It reiterated Bartalsky’s conclusion that “to qualify for immunity, a defendant must show . . . that the act or omission occurred ‘in the treatment of a patient.’” The court next held the trial court erred in removing the case from the jury on gross negligence. Applying Jennings and MCL 691.1407(2)(c), it concluded that a jury could find conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” It noted disputed evidence about whether Dale actually refused treatment and transport, including mismatched time-stamps and misspellings on refusal signatures and a document examiner’s opinion that he did not sign. It also noted the potentially admissible content of a 911 call as an excited utterance and party-opponent admissions. The caller noted: “We slept out here because the ambulance has been here two days this week and they kept leaving him here and not taking him to the hospital,” and “they said the hospital was full.” Because these statements could well be substantively admissible under MRE 803(2) and MRE 801(d)(2), there was a “plausible basis” for admission at trial and they could be considered at summary disposition. The court declined to affirm on an intervening-cause theory not addressed below.

Immunity under the Emergency Medical Services Act (EMSA); Scope; “Treatment” under MCL 333.20965(1); Bartalsky v Osborn; Whether omissions can occur “in the treatment of a patient”; Gross negligence standard; MCL 691.1407(2)(c); Jennings v Southwood; Admissibility of evidence; MRE 801(d)(2)(A); MRE 803(2)

Holding that the EMSA applied, but that a fact question remained as to gross negligence, the court affirmed in part, reversed in part, and remanded. Plaintiff’s decedent (Dale) tested positive for COVID-19. EMS personnel from defendant-emergency medical services corporation responded on 10/3/21 and 10/5/21 but did not administer oxygen or transport him. He died on 10/7/21. On appeal, the court first held the EMSA’s limited immunity governed because defendants’ interactions with Dale were “treatment.” They assessed him, took vitals, and gave medical advice, and the statute expressly covers “acts or omissions.” The court explained that reading the statute otherwise “would render half of the phrase ‘act or omission’ nugatory.” It reiterated Bartalsky’s conclusion that “to qualify for immunity, a defendant must show . . . that the act or omission occurred ‘in the treatment of a patient.’” The court next held the trial court erred in removing the case from the jury on gross negligence. Applying Jennings and MCL 691.1407(2)(c), it concluded that a jury could find conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” It noted disputed evidence about whether Dale actually refused treatment and transport, including mismatched time-stamps and misspellings on refusal signatures and a document examiner’s opinion that he did not sign. It also noted the potentially admissible content of a 911 call as an excited utterance and party-opponent admissions. The caller noted: “We slept out here because the ambulance has been here two days this week and they kept leaving him here and not taking him to the hospital,” and “they said the hospital was full.” Because these statements could well be substantively admissible under MRE 803(2) and MRE 801(d)(2), there was a “plausible basis” for admission at trial and they could be considered at summary disposition. The court declined to affirm on an intervening-cause theory not addressed below.

Tenant injury; Notice; Statutory claim under MCL 554.139; Allison v AEW Capital Mgmt, LLP; Premises liability; Albitus v Greektown Casino, LLC; Lowrey v LMPS & LMPJ, Inc

Holding that MCL 554.139 does not include a notice requirement, the court affirmed the trial court’s denial of defendants’ motion for summary disposition of plaintiff-tenant’s statutory claim. But it reversed as to her premises liability claim because she failed to prove that they had notice of the defect. The case arose after plaintiff injured her ankle when a step to her back patio collapsed beneath her. She had never used the back patio before the incident and did not know about any issues with the steps. Defendants argued that they were entitled to summary disposition because she failed to prove that they had notice of the defect. The court agreed as to the premises liability claim but disagreed as to the MCL 554.139 claim. There was no indication they had actual knowledge of the danger, and plaintiff “failed to provide evidence displaying how long the dangerous condition had existed. She included photographs of other steps in the apartment complex, taken approximately 16 months after she was injured, but that evidence was insufficient to demonstrate that defendants had constructive knowledge of an unreasonable risk of harm posed by [her] patio steps at the time of the incident.” Thus, no genuine question of material fact existed as to whether they “had notice of the dangerous condition of the steps” and as a result, the trial court should have granted them summary disposition of her premises liability claim. But the fact defendants did not have notice of the defect was immaterial to her claim under MCL 554.139. Given the absence of published case law “holding that a lessor must have notice of unfit conditions to be liable under MCL 554.139,” and that the statute does not include a notice requirement, the court declined to “engage in judicial legislation by adding language to the statute and requiring notice under MCL 554.139. Indeed, grafting a constructive or actual notice requirement into MCL 554.139 is both inappropriate and unnecessary because, according to the statute’s clear and unambiguous language, defendant owed plaintiff a statutory duty at all times.” Affirmed in part, reversed in part, and remanded with instructions to grant defendants’ summary disposition motion as to plaintiff’s premises liability claim and for further proceedings.

Attorney misconduct in closing; Badiee v Brighton Area Sch; Golden-rule violation; May v Parke, Davis & Co; Curative instructions; Unfair prejudice; MRE 403; Judicial notice & bias; Waiver; Joint & several liability; Nuisance damages

Holding that no reversible error occurred and that the nuisance damages verdict stood, the court affirmed. Plaintiff-neighbor obtained a $45,000 verdict against defendants-brothers for nuisance. The judgment imposed joint and several liability. On appeal, the court rejected the claims by one of the defendants of attorney misconduct, noting counsel’s isolated comments (e.g., “put yourself in this position”) were cured because the trial court instructed the jury “closings are not evidence” and jurors were also told not to let “sympathy or prejudice” influence them. In addition, defendant’s challenges to judicial comments failed under the raise-or-waive rule. In any event, remarks such as “women are smarter” were innocuous. Defendant further waived objections to the verdict form and joint and several liability by approving the instructions and the form. Counsel told the court, “we’re good.” Finally, the damages challenge failed as the record showed destroyed landscape timbers and an heirloom bench, security costs, anxiety, and moving, which was adequate proof where “‘the adequacy of the amount of damages awarded is ordinarily within the province of the jury[.]’”

Adverse possession; Houston v Mint Group, LLC

Holding that plaintiff’s evidence did not “establish the essential elements of adverse possession, particularly the” required hostile nature of possession, the court affirmed summary disposition for defendant. The parties are brothers. Defendant owns the property. Plaintiff sued to quiet title to it. He represented himself on appeal. The court first found that he “misconstrues the record by contending that defendant’s motion for summary disposition was granted on the strength of a single affidavit.” He also contended “that summary disposition was improper because he met his burden, as the adverse party, to present evidence showing a genuine issue for trial.” However, simply “meeting the burden to proffer evidence in opposition to a motion for summary disposition does not automatically guarantee that the motion will be denied and that the matter will” go to trial. If the proffered evidence does not create a genuine issue as to “‘any material fact, the moving party is entitled to judgment as a matter of law.’” Plaintiff’s evidence included a sworn affidavit from a neighbor (G) that the court found particularly significant. It was “evident from the context provided by [G] that defendant knew plaintiff was living on the land. This is corroborated by the emails presented by defendant suggesting that he was aware that plaintiff was using the property in 2016. [G’s] affidavit, when considered along with the rest of the evidence submitted to the [trial] court, directly undermines the hostile possession requirement and creates a presumption that defendant permitted plaintiff to occupy the land.” The court found that plaintiff’s other evidence also failed to establish a question of fact as to ownership. The deeds “and defendant’s affidavit entirely contradict plaintiff’s own argument by confirming defendant’s legal right to the property.” Plaintiff’s affidavit only reiterated his claim “that defendant did not properly inherit the property. This claim” was not supported by the “deeds, which indicate that defendant was deeded the property in 1976 and was declared the fee simple owner of [it] in an order to quiet title entered in 1999.” And the photos “showing debris on the land and the invoice for building materials also provide little support for plaintiff’s claim.”

Reasonable reunification efforts; MCL 712A.19a(2)(a); Whether aggravated circumstances existed; MCL 722.638(1); “Serious physical harm” (MCL 750.136b); The clear & convincing evidence standard

Holding that the trial court’s finding that aggravated circumstances existed pursuant to MCL 712A.19a was clearly erroneous, the court vacated the order terminating respondent-father’s parental rights and remanded for further proceedings, including reasonable reunification efforts. While he pled “no-contest to biting, pinching, and squeezing the child, he” asserted the abuse “did not include a fractured rib.” Specifically, he argued “that evidence admitted in the trial court did not constitute clear and convincing evidence that he caused the rib fracture suffered by the child. Thus, [he] essentially argues that the allegations to which he pleaded no-contest, biting, pinching and squeezing the child, none of which required medical treatment, do not meet the requirements for aggravating circumstances under MCL 712A.19a(2)(a).” One such circumstance is “serious physical harm.” The court noted that under “MCL 750.136b, a broken rib falls within the definition of ‘serious physical harm.’” But it concluded that the DHHS here “did not prove with clear and convincing evidence that respondent caused the child’s broken rib.” It noted that the “only evidence of a causal link between the rib fracture and” respondent’s behavior came from the testimony of a doctor, “who said, in his opinion, the rib fracture was caused by abuse and all the abuse was most likely caused by the father. That testimony, by itself, does not meet the burden of clear and convincing evidence.” Even if the DHHS did not prove “that respondent caused the rib fracture, if all of the evidence, considered together, constituted clear and convincing evidence of aggravating circumstances under MCL 712A19a(2)(a), [the court] would be required to affirm the trial court’s finding in that regard.” But the court was “left with the definite and firm conviction that a mistake was made.” Considering the totality of the circumstances, including the injuries respondent admitted “to causing as a result of biting, squeezing, and pinching the child (none of which required any medical treatment),” the court found that aggravated circumstances did not exist in this case, “meaning reasonable efforts towards reunification should have been made by the trial court, including the ordering of services.”