Admission of defendant’s police statements; Post Miranda warnings; Two-stage interrogation; Oregon v Elstad; Deliberate use of the technique as opposed to it being unintentional; Missouri v Seibert; The “Marks doctrine”; Marks v United States; Voluntarily, knowing, & intelligent; Sufficiency of the evidence; First-degree home invasion; Right to confrontation; Ineffective assistance of counsel

The court clarified “that, in Michigan courts, the general voluntariness standard of Elstad controls on whether a statement made post-Miranda warnings must be suppressed, unless police deliberately used the two-stage interrogation technique to undermine the Miranda warnings, in which case the effectiveness of the warnings must first be evaluated under the totality of the circumstances.” It held that defendant’s police statements were properly admitted and that there was sufficient evidence to support his first-degree home invasion conviction. It also rejected his confrontation and ineffective assistance claims. While in custody, he “confessed to home invasion after he received Miranda warnings. He did so, however, only after being questioned first, before he received the warnings. This situation is called a ‘two-stage interrogation,’ and statements made by a defendant post-Miranda warnings will sometimes need to be suppressed as a violation of the constitutional right against self-incrimination.” The court held that officers “subjected defendant to a two-step interrogation, but” it agreed “with the trial court that they did not deliberately use that technique to undermine [his] Miranda warnings. Given this, his post-Miranda warnings statements need not be suppressed.” It joined “the significant number of other federal and state courts in recognizing Justice Kennedy’s concurring opinion in Seibert as the controlling one under the Marks doctrine.” As a result, because “the officers did not engage in intentional misconduct to undermine defendant’s Miranda warnings,” it turned to the question of whether his “statements made post-Miranda warnings satisfied Elstad.” As an initial matter, it held that he “validly waived his right against self-incrimination.” It further determined that his “post-Miranda warning statements were voluntary, knowing, and intelligent in accordance with Elstad. These statements were admissible, and the trial court committed no error by allowing them to be used at trial.” It also concluded that, considering the evidence in the light most favorable to the verdict, he failed to show there was insufficient evidence for the jury to “find beyond a reasonable doubt that he was the perpetrator.” Affirmed.

Sixth Circuit Pattern Criminal Jury Instructions §§ 1.07B (law enforcement officer testimony) & 14.05 (conspiracy); Admission of evidence of defendant’s gang affiliation, disciplinary records, & a phone conversation; Authentication of a recording under FRE 901(a); Sufficiency of the evidence for a conviction of drug conspiracy under 21 USC § 846

The court held that changes to the Pattern Jury Instruction on conspiracy that were made after defendant-Bailey’s trial did not entitle him to a new trial where the amendment made “no substantive change” to the instruction. And “the district court did not err, let alone plainly so, by failing to give a specific instruction, sua sponte,” as to the credibility of law enforcement witnesses. The court also rejected his evidentiary challenges. A jury convicted Bailey of conspiracy to possess with the intent to distribute illegal narcotics, and he was sentenced to 300 months. The district court denied his motions for a judgment of acquittal and new trial. On appeal, he challenged its jury instruction on the elements of conspiracy and its failure to give an instruction on law enforcement officer testimony. Bailey argued that these alleged errors stemmed “from amendments to this circuit’s pattern jury instructions, made after his trial ended but while his motion for a new trial was pending.” As to the conspiracy instruction, the court noted that the two elements in the instruction given by the district court “mirror[ed] the elements of Pattern Instruction 14.05” in effect at the time of the trial. Even though the Pattern Instructions were amended after his trial, “the amendment merely recast the same substantive requirements as three elements instead of two.” As for an instruction on law enforcement officer testimony, Bailey never requested one, and while § 1.07B was not adopted until after his trial, nothing prevented him “from requesting a similar instruction.” The court noted that “trial courts in our circuit had given instructions nearly identical to Pattern Instruction § 1.07B long before Bailey’s trial.” Further, his “jury was instructed using language that tracked Pattern Instruction § 1.07, which was applicable at the time of” his trial. The court next held that the “district court did not err in admitting evidence of Bailey’s gang affiliation.” It also did not abuse its discretion in admitting disciplinary records related to infractions he committed while imprisoned or admitting a phone call. It further held that “[a]mple evidence showed the three essential elements for a conviction under § 846: ‘an agreement to violate the drug laws,’ Bailey’s knowledge of it, and his ‘decision to voluntarily join (or “participate in”) it.’” Affirmed.

Sufficiency of the evidence; Possession of cocaine with intent to distribute; Knowingly using or carrying a firearm during & in relation to a drug trafficking crime; Whether defendant waived his sufficiency arguments by failing to renew his FedRCrimP 29 motion; Admission of jail calls; FRE 401; Sentencing; Substantive reasonableness

The court held (addressing an issue for the first time in a published case) that defendant-Curry “did not waive his sufficiency claims by failing to immediately renew his Rule 29 motion after declining to present any defense because” once the government rested, “the ‘close of all of the evidence’ necessarily occurred . . . . ” It also upheld the admission of jail calls and rejected his substantive reasonableness challenge to his sentence. Police found Curry unconscious behind the wheel of a parked vehicle, which contained firearms, a quantity of drugs, and drug paraphernalia. Police later recorded two telephone calls Curry made from his jail cell to the vehicle’s registered owner, in which he implicated himself. Excerpts were introduced at trial, over Curry’s objections. A jury convicted him of possession of cocaine with the intent to distribute (Count II); use or carrying of a firearm during and in relation to a drug trafficking crime (Count V); and FIP. Curry argued that there was insufficient evidence to convict him of Count II or Count V. On appeal, the court first considered whether Curry waived his sufficiency claims. Its “previous decisions send conflicting signals regarding a defendant’s obligation to renew a Rule 29 motion in such a scenario.” It noted that it has recognized the “‘traditional rule is that when the defendant moves for judgment of acquittal at the close of the government’s case-in-chief, and defense evidence is thereafter presented but the defendant fails to renew the motion at the close of all of the evidence, he waives objection to the denial of his earlier motion.’” And its sister circuits follow this same principle, holding that defendants do not have to renew their Rule 29 motions in order to preserve their challenges where they did not present evidence. Thus, the court held likewise here. It added that the government’s evidence was sufficient to support his convictions of Counts II and V no matter which standard it applied. As to his intent for Count II, the evidence that “approximately one ounce, or 28 grams, of cocaine was found along with Curry in the vehicle” was sufficient. Further, his “close proximity to the drugs and the loaded firearm, including the drum magazine for the firearm, lends sufficient evidence to support his conviction” of Count V. The court next found that the jail calls “were relevant to showing Curry’s control of the vehicle and were therefore admissible.” Lastly, it held that his sentence to 154 months and three years of supervised release was substantively reasonable, concluding that the district court adequately addressed Curry’s mental and physical health conditions. Affirmed.

Medical malpractice; Vicarious liability; Cox v Board of Hosp Managers for City of Flint; Amendment of pleadings; MCR 2.116(I)(5); Weymers v Khera; Affidavit of merit; Relation back; MCR 2.118(D); Legion-London v Surgical Inst of MI Ambulatory Surgery Ctr, LLC

The court held that the trial court properly granted summary disposition on plaintiff’s original complaint, but abused its discretion by denying leave to amend the complaint and affidavit of merit on futility grounds. Plaintiff, as personal representative of the decedent’s estate, sued defendants-ACH and Dr. Parker after the decedent died in jail from pneumonia and the flu, alleging malpractice and negligence. Defendants moved for summary disposition because Dr. Parker was out of town during the relevant period and had no involvement in the decedent’s care. The trial court agreed, dismissed the claims, and denied plaintiff’s request to amend the complaint and affidavit of merit to pursue a theory of nursing malpractice against ACH. On appeal, the court held that the original complaint did not state a nursing-malpractice claim because it alleged no specific facts showing how the nurses’ conduct was negligent and instead indicated that the case was based on Dr. Parker’s alleged malpractice. The court next held, however, that amendment was not futile. It explained that a medical provider may be “‘vicariously liable for the negligence of its agents,’” so plaintiff did not need to sue the nurses individually in order to pursue ACH on a nursing-malpractice theory. The court also held that plaintiff could seek to amend the affidavit of merit with one signed by a nursing expert, and that such an amended affidavit could relate back under MCR 2.118(D). Because the trial court denied amendment on erroneous legal grounds, the court vacated that ruling and remanded for reconsideration, leaving defendants free to argue prejudice, delay, bad faith, or other proper grounds against amendment.

Medical malpractice; Vicarious liability; Cox v Board of Hosp Managers for City of Flint; Amendment of pleadings; MCR 2.116(I)(5); Weymers v Khera; Affidavit of merit; Relation back; MCR 2.118(D); Legion-London v Surgical Inst of MI Ambulatory Surgery Ctr, LLC

The court held that the trial court properly granted summary disposition on plaintiff’s original complaint, but abused its discretion by denying leave to amend the complaint and affidavit of merit on futility grounds. Plaintiff, as personal representative of the decedent’s estate, sued defendants-ACH and Dr. Parker after the decedent died in jail from pneumonia and the flu, alleging malpractice and negligence. Defendants moved for summary disposition because Dr. Parker was out of town during the relevant period and had no involvement in the decedent’s care. The trial court agreed, dismissed the claims, and denied plaintiff’s request to amend the complaint and affidavit of merit to pursue a theory of nursing malpractice against ACH. On appeal, the court held that the original complaint did not state a nursing-malpractice claim because it alleged no specific facts showing how the nurses’ conduct was negligent and instead indicated that the case was based on Dr. Parker’s alleged malpractice. The court next held, however, that amendment was not futile. It explained that a medical provider may be “‘vicariously liable for the negligence of its agents,’” so plaintiff did not need to sue the nurses individually in order to pursue ACH on a nursing-malpractice theory. The court also held that plaintiff could seek to amend the affidavit of merit with one signed by a nursing expert, and that such an amended affidavit could relate back under MCR 2.118(D). Because the trial court denied amendment on erroneous legal grounds, the court vacated that ruling and remanded for reconsideration, leaving defendants free to argue prejudice, delay, bad faith, or other proper grounds against amendment.

Mandamus; McCoy v Berrien Cnty Clerk; Motion to compel a county water resources commissioner to clean & maintain an alleged county drain; Elba Twp v Gratiot Cnty Drain Comm’r; Whether the drain was an existing county drain under the commissioner’s jurisdiction

Finding no reversible error in the trial court’s conclusion “that the alleged drain was not within” defendant-county water resources commissioner’s jurisdiction, the court affirmed the dismissal of plaintiff’s complaint for mandamus and other relief. He sought an order requiring defendant “‘to undertake the necessary steps to finance, engineer, clean and maintain Helmer Creek and its branches for the foreseeable future of at least 76 years.’” The heart of the parties’ dispute was “whether Helmer Creek is an existing county drain under defendant’s jurisdiction.” The court noted that plaintiff’s “proofs largely consisted of topographical maps and photos of Helmer Creek and the surrounding area, showing its varying conditions over the centuries. But none of these proofs specifically addressed whether Helmer Creek, or the ‘Williams Drain,’ had previously been established as a county drain under the legal requirements of the Drain Code.” Defendant, on the other hand, “put forth proofs demonstrating that no drain was ever legally established in the area.” Among these proofs was a 2/53 “order issued by the Calhoun County Probate Court in which the court invalidated all existing and subsequent proceedings related to the Williams Drain because no statutorily mandated ‘application to locate, establish and construct any such drain known as Williams Drain ha[d] been filed,’ and so ‘there [wa]s no such existing drain[.]’” The court noted that it was “clear from the record that, for years prior to his 2023 submission, plaintiff had been consistently informed that no drain had been established.” This included a formal legal opinion letter he received “from attorneys in defendant’s office that Helmer Creek, or the ‘Williams Drain,’ was not an established county drain.” While he may disagree with this conclusion, as the trial court recognized, nothing he offered was “sufficient to cast meaningful doubt upon it.” And the court held that the trial court’s findings in support of its decision were sufficiently clear to facilitate its review of the issue. As there was “no existing drain under defendant’s jurisdiction, the remainder of plaintiff’s related arguments—which are premised on requirements and remedies fundamentally contingent on the existence of an already-established drain—necessarily fail.”