Impeachment of witness with a prior disciplinary matter; MRE 403 & MRE 608(b); People v Brownridge; Unavailable witness; Former testimony; MRE 804(a)(5) & MRE 804(b)(1); People v Bean; Jury unanimity instruction; People v Chelmicki; Ineffective assistance of counsel; People v LeBlanc

The court held that the trial court did not commit reversible error in its evidentiary rulings or jury instructions and therefore, it affirmed defendant’s convictions for resisting or obstructing a police officer. The case arose after three officers approached defendant in an apartment-building parking lot. He refused repeated commands to exit his vehicle, pressed the reverse button, injured two officers when the car moved backward, fled, and then exchanged gunfire with police before being apprehended nearby. Although defendant was charged with multiple offenses, the jury convicted him only of the three resisting-or-obstructing counts. On appeal, the court held that the trial court properly excluded evidence of Officer-B’s unrelated disciplinary matter because, even if arguably relevant under MRE 608(b), the prior incident would have created a “side show” and “possible jury confusion” that “substantially outweighed the probative value of such evidence.” The court next held that Officer-R was properly deemed unavailable because the prosecutor made “‘diligent good-faith efforts’” to secure his attendance, and his preliminary-exam testimony was admissible because defense counsel had “a prior opportunity to cross-examine” him with a “similar motive” focused on the same critical events. Finally, the court held that no special unanimity instruction was required because the evidence involved “one continuous sequence of events” and “one transaction,” so there was no need for a specific instruction to prevent juror confusion. Because no such instruction was required, counsel was not ineffective for failing to request one.

Self-defense jury instruction on FIP & felony-firearm charges; Distinguishing People v Dupree (Dupree I & II); The Self-Defense Act; MCL 780.972(2); Motion for a mistrial; Statements about defendant’s potential drug use; Waiver

The court held that the trial court did not (1) abuse its discretion in denying defendant’s request for a self-defense instruction on the FIP and related felony-firearm charges or (2) err in denying his motion for a mistrial based on statements about his potential drug use. He was convicted of FIP, felony-firearm, having possession of metallic knuckles, and CCW. The case arose from an incident involving an argument with his wife. He admitted at trial that he had held “the gun but asserted that it was in self-defense.” Unlike in Dupree, the undisputed evidence here was “that it was defendant, a convicted felon, who brought the gun onto the premises.” His wife testified that he told her that the woman with whom he was having an affair “and her family were threatening her and defendant, and that that was the reason he brought the gun to their house on Thursday night. She said she never touched the weapon, and that he pointed it at her, told her during the argument that he brought it to protect her, and simply made up the story about her pointing it at him. Defendant’s wife’s testimony is corroborated by a video admitted as evidence at trial in which [he] can be heard saying ‘I brought a gun here. I brought a gun here. So f*****g what.’ Defendant denied during the trial that he pointed the gun at her. But he never even attempted to rebut the evidence indicating that he brought the gun onto the premises. Thus,” he could not meet Dupree I’s second prong – he could not show “that he did not negligently place himself in a situation where he or she would be forced to engage in criminal conduct when he illegally brought a gun onto the premises. As a result, under the facts of this case,” he did not offer sufficient evidence to support a self-defense instruction. As to his wife’s comment at trial about his drug use, the “trial court’s instruction is presumed to cure any potential error arising from” that testimony, and the jury was presumed to have followed the instruction. As to police officer witnesses’ statements about his potential drug use, the statements “were ‘unresponsive, volunteered answers to a proper question’ and are not grounds for a mistrial.” If he had asked for a curative instruction as to their “statements about ‘white residue,’ ‘white powder,’ and ‘using,’ then any error could have been cured.”

Motion to withdraw a guilty plea; FedRCrimP 11(d)(2)(B); Denial of a hearing on the motion; Distinguishing United States v Woods & United States v Triplett; Whether defendant raised “factual disputes”; Due Process Clause & ineffective assistance of counsel claims

The court vacated the district court’s denial of defendant-Clark’s motion to withdraw his guilty plea without a hearing, concluding fact questions remained as to whether his plea was “knowing and voluntary” or based on ineffective assistance of counsel. Clark pled guilty to drug and firearm charges. During the proceedings, he had four different lawyers. His third attorney left the practice of law several days after his plea, because of a pending disciplinary action. Clark moved to withdraw his plea based on ineffective assistance of counsel. But the district court denied the motion without a hearing. On appeal, the court found Triplett and Woods instructive. It explained that unlike those cases, Clark actually “requested a hearing” and had raised “factual disputes bearing directly on the knowing and voluntary nature of his plea that are not clearly dispelled by the record.” These disputes arose from the government’s assertions about “statements allegedly made by a now-absent attorney, which assertions contradict Clark’s account. And these disputes bear on the validity of Clark’s guilty plea because they concern whether he had full knowledge of the plea and the evidence in his case, and whether he had proper assistance from counsel.” The court found that the “unresolved factual disputes in the record, coupled with Clark’s multiple attorneys for short periods of representation interspersed with no representation at all, and his representation by an attorney who was undergoing disciplinary proceedings related to his legal practice, ‘bear directly’ on whether the [district] court should have granted Clark’s motion to withdraw.” The court also noted that he was “appealing the district court’s denial of his motion to withdraw his plea and also asserting constitutional claims, arguing that his plea was not valid under the Due Process Clause and that he was denied effective assistance of counsel.” Under the “unusual circumstances, not holding an evidentiary hearing constituted an abuse of discretion.” Remanded for an evidentiary hearing.

Emergency Medical Treatment & Labor Act (EMTALA); Prima facie claim under 42 USC § 1395dd; Cleland v Bronson Health Care Group, Inc (6th Cir); Causation & expert testimony; MCR 2.116(C)(10); Galuten v Williamson Cnty Hosp Dist (Unpub 6th Cir)

The court held that plaintiff stated a prima facie EMTALA claim, so summary disposition under MCR 2.116(C)(8) was improper. However, if found that summary disposition under MCR 2.116(C)(10) was proper because plaintiff failed to create a factual question that the alleged EMTALA violation caused Mr. O’Brien’s death. Mr. O’Brien arrived at defendant-Trinity’s emergency department with a Type A aortic dissection, was accepted for transfer to Trinity Ann Arbor, and then had to be transferred again to the University of Michigan after Trinity’s vascular surgeon became unavailable, but he died during that transfer. The trial court dismissed the suit on multiple grounds, including failure to state an EMTALA claim and lack of factual support. On appeal, the court first held that the complaint was legally sufficient because a prima facie EMTALA stabilization-or-transfer claim requires allegations that the hospital was covered by EMTALA, the patient sought treatment, the hospital had actual knowledge of an emergency medical condition, the hospital committed “one or more EMTALA violations,” and the plaintiff suffered “personal harm as the result of the hospital’s EMTALA violation[.]” The court next held, however, that plaintiff failed on causation at the summary-disposition stage because the key question was whether the physician’s erroneous certification that Mr. O’Brien was stabilized, while otherwise transferring him under a statutory exception, “caused Mr. O’Brien to die, as opposed to the aortic dissection itself.” The court explained that a causation opinion on this issue “would require familiarity with the medical conditions, timing, and treatment issues,” that it turned on “questions of medical judgment beyond a jury’s common knowledge,” and that plaintiff offered “no evidence of causation, let alone expert testimony of same.” Because of that failure, the court affirmed dismissal under MCR 2.116(C)(10). Affirmed in part and reversed in part.

Emergency Medical Treatment & Labor Act (EMTALA); Prima facie claim under 42 USC § 1395dd; Cleland v Bronson Health Care Group, Inc (6th Cir); Causation & expert testimony; MCR 2.116(C)(10); Galuten v Williamson Cnty Hosp Dist (Unpub 6th Cir)

The court held that plaintiff stated a prima facie EMTALA claim, so summary disposition under MCR 2.116(C)(8) was improper. However, if found that summary disposition under MCR 2.116(C)(10) was proper because plaintiff failed to create a factual question that the alleged EMTALA violation caused Mr. O’Brien’s death. Mr. O’Brien arrived at defendant-Trinity’s emergency department with a Type A aortic dissection, was accepted for transfer to Trinity Ann Arbor, and then had to be transferred again to the University of Michigan after Trinity’s vascular surgeon became unavailable, but he died during that transfer. The trial court dismissed the suit on multiple grounds, including failure to state an EMTALA claim and lack of factual support. On appeal, the court first held that the complaint was legally sufficient because a prima facie EMTALA stabilization-or-transfer claim requires allegations that the hospital was covered by EMTALA, the patient sought treatment, the hospital had actual knowledge of an emergency medical condition, the hospital committed “one or more EMTALA violations,” and the plaintiff suffered “personal harm as the result of the hospital’s EMTALA violation[.]” The court next held, however, that plaintiff failed on causation at the summary-disposition stage because the key question was whether the physician’s erroneous certification that Mr. O’Brien was stabilized, while otherwise transferring him under a statutory exception, “caused Mr. O’Brien to die, as opposed to the aortic dissection itself.” The court explained that a causation opinion on this issue “would require familiarity with the medical conditions, timing, and treatment issues,” that it turned on “questions of medical judgment beyond a jury’s common knowledge,” and that plaintiff offered “no evidence of causation, let alone expert testimony of same.” Because of that failure, the court affirmed dismissal under MCR 2.116(C)(10). Affirmed in part and reversed in part.

Intentional infliction of emotional distress (IIED); Negligent infliction of emotional distress (NIED)

Holding that the trial court properly granted defendant summary disposition of plaintiff’s IIED and NIED claims, the court affirmed. Plaintiff “purchased a vehicle service contract (VSC) from defendant for” his vehicle. Defendant later refused to pay his claim for repairs on the basis they were excluded from coverage under the VSC. His breach of contract claim in small-claims court was dismissed and the dismissal affirmed by the district court. Plaintiff then filed the complaint in this case pro per. On appeal, the court found that his IIED claim did “not allege any conduct by defendant that would rise to a level of outrageous and extreme to support” such a claim. “The only conduct committed by defendant and alleged by plaintiff is defendant’s denial of plaintiff’s claim for benefits under the VSC. Regardless of whether plaintiff had a good-faith argument about whether there was a preexisting condition precluding payment, defendant’s refusal to pay under the VSC amounts to, at most, an ordinary contract dispute. If defendant’s actions were held to be extreme and outrageous, then it is hard to imagine what contract dispute would not likewise qualify, and that is plainly not the law.” As to his NIED claim, the negligent injury he alleged was “the payment his father made for the repairs and the financial difficulty that resulted. This is clearly not the type of significant and material injury contemplated for this cause of action.”

Whether the petition was stale; Jurisdiction under MCL 712A.2(b)(1); Effect of an incarcerated parent; In re SR; Children’s best interests; In re White

Rejecting respondent-father’s argument that the petition should have been dismissed as stale, and holding that the trial court did not clearly err in finding that termination was in the children’s best interests, the court affirmed the order terminating his parental rights. It noted that he raised the staleness issue after he pled “no contest to jurisdiction and statutory grounds.” The petition alleged that jurisdiction of his “children was proper under MCL 712A.2(b)(1), which includes jurisdiction for children who are subjected to a substantial risk of harm to their mental well-being. Based on the evidence, the trial court did not err when finding that jurisdiction was proper. According to the petition, one of respondent’s children witnessed her father hurting at least three of his girlfriend’s children. And according to the investigation report, which was the basis of respondent’s plea, both children witnessed their father hurting his girlfriend’s children and did not feel safe with [him]. These reports were supported by the girlfriend’s children, who also reported abuse by respondent.” He asserted “that ‘when you have an incarcerated parent at any stage of the proceedings, there is a presumption that there does not exist a risk of harm,’ relying on” SR. But the court there “‘recognized that the fact of incarceration, plus the child’s safe placement with another parent, does not eliminate the possibility of mental or emotional harm to a child victimized by the incarcerated parent.’” The court found that here, “there was evidence of mental or emotional harm to respondent’s children based on their reports.” As to their best interests, it concluded that even if he “did not physically harm the children in this case, there was enough evidence for the trial court to find emotional or mental harm based on the events that occurred and” their reports. Further, while “the trial court should weigh all the available evidence, and must consider relative placement, all of the other best-interest factors are discretionary[.]” The court noted that the trial court’s best-interest findings were “extensive and considered a number of factors, including respondent’s history of domestic violence, the children’s” relative placement, and his bond with them.

Petition for removal; Proper custody or guardianship under MCL 712A.2(b)(1) & MCL 712A.13a(9); In re Ferranti; Adjudication; Jurisdiction under MCL 712A.2(b)(1); In re Baham; Reasonable reunification efforts; Mental-health services; In re MJC; Termination under § 19b(3)(c)(i); Continuing conditions of adjudication; In re Atchley; Best interests; Relative placement & guardianship; In re Lombard

The court held that 1) the trial court did not err in authorizing the children’s removal, 2) it properly exercised jurisdiction, 3) the DHHS made reasonable reunification efforts, 4) clear and convincing evidence supported termination, and 5) termination was in the children’s best interests. Respondent-mother had a long history of bipolar I disorder with manic and psychotic features, repeated involuntary psychiatric hospitalizations, and numerous prior removals of children from her care. This case arose after another psychiatric crisis and a jail stay. Respondent again became unable to care for the children. On appeal, the court held that removal and adjudication were proper because the children were left “without proper custody or guardianship” when respondent had not actually placed them with their aunt when needed, and because her repeated “detachments from reality, escalated behavior, hallucinations, delusions, and disorganized thinking created a substantial risk of harm to the children’s physical and mental well-being[.]” The court next held that the DHHS made reasonable efforts because respondent’s parent-agency agreement plainly required psychiatric care, the agency “regularly communicated with [her] about her mental-health services,” and she “refused to engage in psychiatric care or take any psychiatric medications.” The court also held that § (c)(i) was proven because she “did not address her severe mental-health problems,” the case had remained pending for “more than 1,000 days,” and there was “no reasonable probability that [she] would rectify her mental health within a reasonable time considering the children’s ages.” Finally, although the children were in relative care, the court held that termination was in their best interests because the children “thrived in their aunt’s home,” their behaviors “improved dramatically,” and adoption would provide them permanency and stability. Affirmed.

Children’s best interests; In re White; Relative placement; In re Mason; Effect of a child having already been placed in nonrelative foster care; In re DMAN

The court held that termination of respondent-mother’s parental rights was in the child’s best interests because the record showed inconsistent and infrequent visitation, and limited commitment to parenting. It also held that the trial court was not required to consider relative placement because this child was already placed in nonrelative foster care. The child was removed at birth after testing positive for marijuana. Respondent’s two older children were already in the DHHS’s care because of prior neglect concerns, including leaving them with the maternal grandmother for two months and another child testing positive for marijuana at birth. On appeal, respondent challenged the trial court’s finding that termination was in the child’s best interests. The court noted that once statutory grounds are established, best interests are decided by a preponderance of the evidence, and the inquiry should focus on “the child, rather than” the mother. The relevant factors to be considered include “the child’s bond to respondent[], respondent[‘s] parenting ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home over” respondent’s home, as well as respondent’s “compliance with the case service plan” and “visitation history[.]” It emphasized that she completed only 31 of 158 possible supervised visits and only 8 of 50 ordered drug screens, which supported the trial court’s concern about her “lack of commitment to parenting the child.” The court also rejected her relative-placement argument, explaining that “the trial court was not required to consider relative placement” because “the child in this case was placed in nonrelative foster care[.]” Affirmed.

The Estates & Protected Individuals Code (EPIC); MCL 700.2405(1); Whether bequests constituted a “general” or “specific” devise; In re Corby’s Estate; Morrow v Detroit Trust Co; Distinguishing In re Guise Estate (Unpub); “Otherwise sufficient”; Exempt-property allowance under MCL 700.2404; Whether a life insurance policy & a vehicle were trust assets; Membership interest in an LLC; MCL 450.4504

The court held that the probate court erred in ruling that a devise in the decedent’s (Neal) will to his ex-wife (appellant-Paula) was a general, rather than a specific, devise. “Because the devise was specific,” if Neal’s estate is “otherwise sufficient” under MCL 700.2405(1), his “children may not select items from the devise to fulfill their exempt-property allowance.” The court concluded the probate court properly ruled that a life insurance policy on Paula’s life and a vehicle were assets of Neal’s trust. Thus, it reversed in part, affirmed in part, and remanded for the probate court to “determine whether Neal’s estate was otherwise sufficient[.]” Under MCL 700.2405(1), if the “estate is otherwise sufficient, property specifically devised shall not be used to satisfy rights to homestead allowance or exempt property.” The court noted that while “EPIC defines the term ‘devise,’ it does not define ‘specific devise’ or ‘general devise.’” But when EPIC was enacted, these terms had common-law meanings, and those meanings are consistent with the dictionary definitions. Here, “Neal did not devise to Paula a quantity of property payable from his estate’s general assets. Rather, he bequeathed to Paula specific items and used the term ‘my’ preceding the list of items he left” her. Under Morrow, “the word ‘my’ is indicative of a specific devise. Moreover, nothing indicates that Neal intended Paula to receive something of equal value in lieu of the items listed. The fact that the items were listed in categories does not indicate that the devises were general instead of specific.” It appeared from his will that Neal “intended Paula to have all his personal property included in the categories of items he left her.” The court held that, if the “estate is otherwise sufficient as stated in MCL 700.2405(1), Paula is entitled to the gun collection, University of Michigan memorabilia, insurance proceeds in the amount of $9,100, and the bedroom furniture.” It rejected her claim “that the children waived their right to their exempt-property allowance by failing to timely assert the right. MCL 700.2405 does not provide a limitations period for asserting a right to exempt property.” As to the policy, if the divorce property settlement entitled Paula to it, she did not timely assert her claim. The vehicle was owned by Neal’s LLC, and his LLC membership interest poured over into his trust.