Preemption & the Michigan Regulation & Taxation of Marihuana Act (MRTMA); 25 CFR 1.4; 25 CFR 1.4(b); White Mountain Apache Tribe v Bracker; Cannabis Regulatory Agency (CRA); Little Traverse Bay Band of Odawa Indians (LTBB)

In this appeal involving preemption and the MRTMA, the court affirmed the trial court’s order granting summary disposition under MCR 2.116(C)(8) (failure to state a claim). Plaintiff “adopted an ‘opt out’ ordinance that prohibits all marijuana establishments within Bear Creek Township.” Before the MRTMA’s effective date, the LTBB asked the U.S. “Department of the Interior to accept in trust two parcels of land located within Bear Creek Township. The LTBB subsequently leased the parcels held in trust to defendant, a company that sells adult-use recreational marijuana. Plaintiff expressed its opposition[.]” The CRA “issued two licenses to defendant authorizing it to operate a retail marijuana facility on the parcels. Plaintiff initiated this action seeking a declaratory judgment that the CRA lacked the authority to issue licenses to defendant.” The trial court agreed with defendant, finding “that federal law preempted plaintiff’s attempt to regulate or control the use of the land in question.” On appeal, plaintiff argued “against giving 25 CFR 1.4(a) preemptive effect by characterizing its argument as one not seeking to enforce its ordinance, but instead as one seeking to exercise its statutory rights under the MRTMA.” Plaintiff’s argument lacked merit. The court found that “it is the ordinance that plaintiff passed pursuant to MCL 333.27956 that necessarily underlies plaintiff’s claims.” It explicitly argued “on appeal that its ordinance and the MRTMA, ‘when taken together, foreclose [defendant’s] ability to lawfully obtain licenses to operate a retail establishment on the LTBB’s land[.]’ By its own admission, plaintiff seeks to control or regulate, through its ordinance, the use of leased Indian land held in trust by the United States. This situation falls squarely within those preempted by 25 CFR 1.4(a), and plaintiff has presented no evidence that the Secretary of the Interior has said otherwise, 25 CFR 1.4(b).” Plaintiff also argued “against preemption by citing federal caselaw providing carve outs for state regulation of activities of nontribal individuals on tribal land.” Specifically, plaintiff argued that, under Bracker, “a more ‘particularized inquiry’ is required for addressing the actions of a nontribal entity like defendant on tribal land.” Plaintiff misconstrued Bracker. Its “emphasis on the need for a more ‘particularized inquiry’ is misplaced, because such an inquiry is necessary only when the federal enactment is ‘vague or ambiguous[.]’” The court noted that the “language of 25 CFR 1.4(a) is neither. By its plain terms, 25 CFR 1.4(a) prohibits states and their political subdivisions from regulating or controlling the use of leased Indian property held in trust by the United States.” Plaintiff sought “to control the use of such land through its ordinance; it may not do so.” Moreover, the court noted that “25 CFR 1.4(b) provides the only exception to this rule, and nothing in the record or parties’ arguments indicate it applies.”

Sufficiency of the evidence for first-degree premeditated murder convictions; Identity; People v Davis; Other acts evidence; MRE 404(b)(1); MRE 403; A defendant’s prior statement; Medical examiner’s (ME) manner-of-death testimony; People v McFarlane; Whether the testimony invaded the jury’s province; People v Doan; People v Drossart

The court held that (1) there was sufficient evidence of identification to support defendant’s first-degree murder conviction; (2) the trial court did not abuse its discretion in admitting other acts evidence, including his threats to the victim and photos of a gun; and (3) the ME’s manner-of-death testimony did not invade the jury’s province. He was convicted of first-degree premeditated murder, AWIM, and felony-firearm. The court found that, if believed by the jury, a witness’s “eyewitness identification of defendant as the shooter alone was sufficient to prove identity. Moreover, that evidence was coupled with the circumstantial evidence of a feud between defendant and the victim, defendant’s occupancy of the apartment in the near vicinity of the victim’s shooting, defendant’s possession of a gun that was similar to the shooter’s weapon, and [his] departure from the apartment building within minutes of the shooting. Together, the evidence presented at trial was sufficient to establish defendant’s identity” as the perpetrator. As to the other acts evidence, the court concluded that “the trial court did not abuse its discretion by admitting the communications between defendant and the victim.” It noted that, to the extent he challenged “his own statements threatening the victim, a prior statement by a defendant ‘does not constitute a prior bad acting coming under MRE 404(b) because it is just that, a prior statement and not a prior bad act.’” And his prior statements threatening “to hurt or assault the victim for having a relationship with defendant’s aunt and lying to defendant about it are clearly relevant to his state of mind and motive. Further, the probative value of [his] threats directed at the victim was not substantially outweighed by the danger of unfair prejudice. To the extent that [his] messages mentioned assaulting another, such evidence fell within the ambit of MRE 404(b); however, any error in its admission was harmless.” As to the messages, photos, and video of the 9-millimeter gun, the court found that they showed he “acquired the potential means to commit the shooting eleven days before it occurred.” Finally, it held that he did not show plain error as to the manner-of-death testimony. The ME simply “opined that a homicide occurred, i.e., a killing of the victim.” Affirmed.

Great weight of the evidence; Convictions of CSC I under MCL 750.520b(1)(a) & CSC II under MCL 750.520c(1)(a); Credibility; People v Solloway; Ineffective assistance of counsel; Impeaching witnesses; Failure to move to review counseling records; Failure to request a specific unanimity jury instruction; Deficient performance; Prejudice

The court held that defendant’s CSC I and II convictions were not against the great weight of the evidence because a reasonable jury could find the victim’s (TS) testimony credible. It also found that defendant’s trial counsel was not ineffective related to impeaching TS and her mother or failing to move to inspect TS’s counseling records. But it concluded that his trial counsel was ineffective for failing to request a specific unanimity instruction on the CSC II charge, and that defendant was prejudiced as a result. Thus, while it affirmed his CSC I conviction, it vacated his CSC II conviction and remanded for further proceedings on that count only. As to his great weight of the evidence argument, the court noted that no evidence contradicted TS’s testimony “that defendant committed several sexual acts constituting CSC I, i.e., fellatio, or CSC II, such as making TS touch defendant’s penis, touching TS’s genitals, and rubbing [his] penis against TS’s vagina.” Thus, defendant could “only rely on the argument that TS’s credibility was undermined by impeachment. Credibility issues undermine a verdict only when the ‘testimony contradicts indisputable facts or laws,’ is ‘patently incredible or defies physical realities,’ is ‘material and . . . so inherently implausible that it could not be believed by a reasonable juror,’ or ‘has been seriously impeached and the case is marked by uncertainties and discrepancies.’” The court found that TS’s testimony did “not even approach any of those stringent standards.” It also rejected most of his ineffective assistance of counsel claims. But it agreed with the trial court “that defendant’s trial counsel provided deficient representation” by failing to request a specific unanimity instruction on the CSC II count. While the trial court determined that defendant was not prejudiced by the deficient performance, the court concluded otherwise. The trial court instructed the jury that, to convict defendant of CSC II, the jurors “had to find that defendant ‘intentionally touched [TS’s] genital area or intentionally made [TS] touch his genital area.’ Those two options did not include fellatio, which was mentioned only in the explanation of the” CSC I charge (Count 1). Given that “jurors are presumed to follow their instructions, . . . the jury could not have convicted” him of CSC II based on the same evidence that supported his CSC I conviction.

Sentencing; Whether defendant was entitled to a retroactive two-level reduction in his offense level under USSG § 4C.1.1(a); Whether § 4C1.1(a)(7)’s reduction exception for defendants who possessed a firearm “in connection with” their offense made him ineligible for the reduction; United States v Hanson

In an issue of first impression in this circuit (interpretation of § 4C1.1(a)(7)’s “in connection with” clause), the court held that defendant-Tajwar was not entitled to a reduced sentence under this retroactive amendment because he possessed a firearm “in connection with” his money laundering offenses. Tajwar sought a reduction in his sentence for his money-laundering convictions based on the addition of § 4C1.1 to the Sentencing Guidelines, which retroactively granted a defendant with no criminal history a two-level decrease in offense level, subject to certain exceptions. The district court denied the request, ruling that he was ineligible under § 4C1.1(a)(7)’s exception for defendants who possessed a firearm “in connection with” their offense. Tajwar argued that the firearm (found in his vehicle) was not used in connection with his offense but was only for self-defense. The court noted that with drug-related offenses, it often infers “that a defendant’s firearm could or would ‘be used to protect . . . drugs or otherwise facilitate a drug transaction’ when the defendant keeps the weapon close to his drugs or drug paraphernalia.” Here, as “part of the conspiracy, Tajwar drove to various cities around the country picking up drug money that he would then transport and launder. [He] brought his gun to each one of these courier runs.” During a traffic stop, two bags of drug money were found behind the driver’s seat. The unloaded firearm (which Tajwar admitted belonged to him) and a loaded magazine were found in a gun box in the van’s third row of seats. “The ‘close proximity’ between Tajwar’s gun and the drug money along with [his] ‘easy access’ to the weapon should he need to protect those monies were ‘indicative of a connection’ between the gun and Tajwar’s money laundering activities.” Additionally, he admitted “he brought the gun for protection while carrying out the offenses.” In any event, his “placement of the gun supports the district court’s nexus finding.” Affirmed.

Child custody; Established custodial environment (ECE); MCL 722.27(1)(c); The statutory best-interest factors (MCL 722.23); Failure to actually enter or serve a default; MCR 3.210(B)(2); MCR 2.603(A); Required factual findings & conclusions of law

Holding that the trial court erred in not properly evaluating the child’s (JS) ECE and best interests before making its custody and parenting-time decisions, the court vacated the order granting plaintiff-father joint custody and establishing a parenting-time schedule. The trial court entered the order “without making any of the requisite factual and legal determinations” about JS’s ECE and best interests, apparently based on its conclusion that defendant-mother “defaulted after failing to respond to plaintiff’s complaint. This amounted to clear legal error warranting relief.” The record showed “that—among other procedural deficiencies—no default was ever entered against or served on defendant.” The court added that, even if one “had been properly entered and served, we fail to see how that fact alone would have relieved the trial court of its obligation to make and set forth findings of fact and conclusions of law regarding custody and parenting time before issuing its order. Indeed, it is well established that the trial court has a duty to serve a child’s best interests when fashioning an award of custody and parenting time and cannot modify custody without first doing so.” Before it could issue its custody and parenting time order, it “was required to determine: (1) if an [ECE] existed with one or both parties . . . ; (2) whether the requested custody and parenting-time arrangement would alter an [ECE] . . . ; and (3) whether the proposed arrangement was in the child’s best interests under the applicable factors and standard of proof[.]” The trial court here “committed clear legal error by failing to make and articulate the requisite findings of fact and conclusions of law concerning JS’s [ECE] and best interests. And there is nothing in the scant record” indicating the “error was somehow harmless.” The court remanded for the trial “court to conduct a new hearing on plaintiff’s motion for custody and parenting time and to make and set forth on the record proper findings of fact and conclusions of law regarding JS’s [ECE], whether the custody and parenting-time requested by plaintiff would alter [it], and whether the proposed arrangement would be in JS’s best interests.” It must consider up-to-date information in making its decisions.

Medical malpractice, Exclusion of evidence; “HEART score” (a patient’s history, electrocardiogram, age, risk factors, & troponin levels); Relevance; MRE 402; MRE 401; Evidence as to the decedent’s mother’s cause of death; MRE 803(19) hearsay exception; Lay witness; The decedent’s statements about chest pain; MRE 803(3); Cumulative effect of the alleged errors; Personal representative (PR)

Concluding that the trial court did not err by excluding evidence offered at trial, the court affirmed. Plaintiff-PR’s decedent, Stacey Jenkins, was taken to the ER of defendant-Ascension St. John Hospital (the Hospital) because of chest pains. She stayed in the ER “for several hours for testing and observation, but she was discharged that day and left the Hospital. Early the next morning, she died. An autopsy revealed that she suffered from severe blockage of several coronary arteries.” On appeal, plaintiff contended “that the trial court erred by excluding testimony about what Jenkins’s HEART score might have been, Jenkins’s mother’s cause of death, and statements that Jenkins allegedly made.” The court concluded that plaintiff’s standard-of-care expert witness “clearly stated that the HEART score was a tool available to treating physicians, but the use of it is not even part of the standard of care when examining a patient complaining of chest pain. Plaintiff’s contention that the trial court’s exclusion of Jenkins’s hypothetical HEART score took away a theory of how [defendant-]Dr. Yatooma’s treatment fell below the standard of care is misplaced. Because the calculation of Jenkins’s HEART score was immaterial to whether Dr. Yatooma’s care constituted medical malpractice, the trial court did not commit an abuse of discretion by excluding testimony about the HEART score.” Also, the court found that lacking “personal knowledge of Jenkins’s mother’s cause of death, the exception in MRE 803(19)” did not apply to testimony from family members that the mother died of a heart attack. Further, “the jurors heard sufficient testimony about Jenkins’s mother’s health by virtue of the trial court’s narrowly tailored ruling on the evidentiary issue, which neither constituted an abuse of discretion nor ‘appears to [this Court to be] inconsistent with substantial justice.’” Finally, Jenkins’s statement about her chest pain satisfied “MRE 803(3)’s exception to the hearsay rule, so the trial court abused its discretion” in excluding her sister Tanya’s “testimony about it. A correct decision overruling the hearsay objection would not have changed the result of the trial, however, because witnesses other than Tanya Jenkins testified about Jenkins’s claim of chest pain. Thus, plaintiff is not entitled to relief on the basis of the trial court’s one abuse of discretion.”

Uninsured motorist (UM) benefits; Hearsay; MRE 801(c); Admission of a party-opponent; MRE 801(d)(2)

The court held that it did not see “any error in the trial court’s ultimate conclusion that plaintiff failed to provide plausibly admissible evidence” showing that both defendants-Podolan and Whiteside “were uninsured at the time of the collision.” Thus, it found “no grounds to disrupt the trial court’s award of summary disposition to defendants.” The parties did “not dispute that, under the terms of her insurance policy, plaintiff must show that both Whiteside and Podolan were uninsured at the time of the collision in order to sustain her claim for UM benefits.” On appeal, plaintiff argued that two “pieces of evidence created a genuine issue of material fact regarding Whiteside’s and Podolan’s uninsured status: (1) plaintiff’s own affidavit attesting that Podolan told her, in Whiteside’s presence, immediately after the collision that they did not have insurance, which was admissible as an admission of a party-opponent under MRE 801(d)(2); and (2) certain entries in the police report indicating a lack of insurance, which could also be properly considered for purposes of summary disposition.” The court disagreed “that this evidence was sufficient to defeat defendants’ motion for summary disposition under MCR 2.116(C)(10), as plaintiff has failed to demonstrate its content was plausibly admissible.” As to her “affidavit, plaintiff’s account of the post-collision statement made by Podolan falls within the general definition of hearsay.” Plaintiff maintained “that Podolan’s statement is not hearsay, and is thus admissible, because it was an admission by a party-opponent under MRE 801(d)(2). As defendants point out, however, caselaw indicates that the mere fact that Podolan is adverse to plaintiff in this case does not mean that Podolan’s statements are admissible against defendants.” The court held that beyond “a general and conclusory citation to MRE 801(d)(2), plaintiff has not offered, below or on appeal, any legal support for the proposition that Podolan’s statement is admissible against defendants under that court rule. Nor has [she] argued on appeal that the statement is potentially admissible on some other basis.” Thus, she did not “show that her account of Podolan’s statement was plausibly admissible such that it can be properly considered for purposes of summary disposition.” The court also found that her “reliance on the content of the police report” fell short. The record was “inadequate to demonstrate the plausible admissibility of the specific content of the report at issue.”

Medical malpractice, Exclusion of evidence; “HEART score” (a patient’s history, electrocardiogram, age, risk factors, & troponin levels); Relevance; MRE 402; MRE 401; Evidence as to the decedent’s mother’s cause of death; MRE 803(19) hearsay exception; Lay witness; The decedent’s statements about chest pain; MRE 803(3); Cumulative effect of the alleged errors; Personal representative (PR)

Concluding that the trial court did not err by excluding evidence offered at trial, the court affirmed. Plaintiff-PR’s decedent, Stacey Jenkins, was taken to the ER of defendant-Ascension St. John Hospital (the Hospital) because of chest pains. She stayed in the ER “for several hours for testing and observation, but she was discharged that day and left the Hospital. Early the next morning, she died. An autopsy revealed that she suffered from severe blockage of several coronary arteries.” On appeal, plaintiff contended “that the trial court erred by excluding testimony about what Jenkins’s HEART score might have been, Jenkins’s mother’s cause of death, and statements that Jenkins allegedly made.” The court concluded that plaintiff’s standard-of-care expert witness “clearly stated that the HEART score was a tool available to treating physicians, but the use of it is not even part of the standard of care when examining a patient complaining of chest pain. Plaintiff’s contention that the trial court’s exclusion of Jenkins’s hypothetical HEART score took away a theory of how [defendant-]Dr. Yatooma’s treatment fell below the standard of care is misplaced. Because the calculation of Jenkins’s HEART score was immaterial to whether Dr. Yatooma’s care constituted medical malpractice, the trial court did not commit an abuse of discretion by excluding testimony about the HEART score.” Also, the court found that lacking “personal knowledge of Jenkins’s mother’s cause of death, the exception in MRE 803(19)” did not apply to testimony from family members that the mother died of a heart attack. Further, “the jurors heard sufficient testimony about Jenkins’s mother’s health by virtue of the trial court’s narrowly tailored ruling on the evidentiary issue, which neither constituted an abuse of discretion nor ‘appears to [this Court to be] inconsistent with substantial justice.’” Finally, Jenkins’s statement about her chest pain satisfied “MRE 803(3)’s exception to the hearsay rule, so the trial court abused its discretion” in excluding her sister Tanya’s “testimony about it. A correct decision overruling the hearsay objection would not have changed the result of the trial, however, because witnesses other than Tanya Jenkins testified about Jenkins’s claim of chest pain. Thus, plaintiff is not entitled to relief on the basis of the trial court’s one abuse of discretion.”

Preemption & the Michigan Regulation & Taxation of Marihuana Act (MRTMA); 25 CFR 1.4; 25 CFR 1.4(b); White Mountain Apache Tribe v Bracker; Cannabis Regulatory Agency (CRA); Little Traverse Bay Band of Odawa Indians (LTBB)

In this appeal involving preemption and the MRTMA, the court affirmed the trial court’s order granting summary disposition under MCR 2.116(C)(8) (failure to state a claim). Plaintiff “adopted an ‘opt out’ ordinance that prohibits all marijuana establishments within Bear Creek Township.” Before the MRTMA’s effective date, the LTBB asked the U.S. “Department of the Interior to accept in trust two parcels of land located within Bear Creek Township. The LTBB subsequently leased the parcels held in trust to defendant, a company that sells adult-use recreational marijuana. Plaintiff expressed its opposition[.]” The CRA “issued two licenses to defendant authorizing it to operate a retail marijuana facility on the parcels. Plaintiff initiated this action seeking a declaratory judgment that the CRA lacked the authority to issue licenses to defendant.” The trial court agreed with defendant, finding “that federal law preempted plaintiff’s attempt to regulate or control the use of the land in question.” On appeal, plaintiff argued “against giving 25 CFR 1.4(a) preemptive effect by characterizing its argument as one not seeking to enforce its ordinance, but instead as one seeking to exercise its statutory rights under the MRTMA.” Plaintiff’s argument lacked merit. The court found that “it is the ordinance that plaintiff passed pursuant to MCL 333.27956 that necessarily underlies plaintiff’s claims.” It explicitly argued “on appeal that its ordinance and the MRTMA, ‘when taken together, foreclose [defendant’s] ability to lawfully obtain licenses to operate a retail establishment on the LTBB’s land[.]’ By its own admission, plaintiff seeks to control or regulate, through its ordinance, the use of leased Indian land held in trust by the United States. This situation falls squarely within those preempted by 25 CFR 1.4(a), and plaintiff has presented no evidence that the Secretary of the Interior has said otherwise, 25 CFR 1.4(b).” Plaintiff also argued “against preemption by citing federal caselaw providing carve outs for state regulation of activities of nontribal individuals on tribal land.” Specifically, plaintiff argued that, under Bracker, “a more ‘particularized inquiry’ is required for addressing the actions of a nontribal entity like defendant on tribal land.” Plaintiff misconstrued Bracker. Its “emphasis on the need for a more ‘particularized inquiry’ is misplaced, because such an inquiry is necessary only when the federal enactment is ‘vague or ambiguous[.]’” The court noted that the “language of 25 CFR 1.4(a) is neither. By its plain terms, 25 CFR 1.4(a) prohibits states and their political subdivisions from regulating or controlling the use of leased Indian property held in trust by the United States.” Plaintiff sought “to control the use of such land through its ordinance; it may not do so.” Moreover, the court noted that “25 CFR 1.4(b) provides the only exception to this rule, and nothing in the record or parties’ arguments indicate it applies.”