Successive motion for relief from judgment; OV 3; MCL 777.33(2)(b) (100-point score); Death resulting from commission of a crime; Factual causation; People v Laidler; First-degree murder acquittal; Acquitted conduct at sentencing; People v Beck

The court held that defendant’s acquittal of first-degree murder did not preclude the trial court from scoring OV 3 at 100 points based on a death resulting from the criminal conduct underlying his AWIM convictions, and Beck did not prohibit that scoring. On remand from the Supreme Court, the court considered whether the murder acquittal resolved whether the victim’s death “result[ed] from the commission of a crime” under MCL 777.33(2)(b), whether OV 3 could be scored at 100 points, and whether Beck applied. Defendant had been acquitted of first-degree murder but later convicted of two counts of AWIM arising from the same shooting episode. The court explained that OV 3 requires a factual-causation inquiry. Under Laidler, the relevant question was whether defendant’s criminal conduct was a but-for cause of the death. The murder acquittal established only that the prosecution failed to prove the elements of first-degree murder beyond a reasonable doubt. It “does not establish that the victim did not die or resolve whether defendant’s criminal conduct was a factual cause of his death.” The record supported the trial court’s finding that defendant was the shooter and that the victim was fatally shot during the same episode in which defendant committed the offenses of which he was convicted. The court also determined that Beck was inapplicable. Beck prohibits a sentencing court from finding by a preponderance that a defendant committed conduct of which the jury acquitted him. Here, the trial court did not find that defendant committed first-degree murder or rely on the elements of that offense. Instead, it relied on “the undisputed fact that the victim was fatally shot during the commission of the crimes of which defendant was convicted” and found those criminal acts were a but-for cause of the death. Thus, OV 3 was properly scored at 100 points. Affirmed.

Anonymous jury claim; People v Hanks; People v Williams; Referring to jurors by number; Lack of a cautionary instruction; Other acts evidence; MCL 768.27b; People v Cameron; “Domestic violence” (MCL 768.27b(6)(a)(i)); MRE 403; Due process challenge; People v Watkins; People v Mack; Prosecutorial error; Opening statement; Drawing negative inferences from defendant’s exercise of his rights to a trial & to remain silent; Eliciting evidence not included in the MRE 404(b) & MCL 768.27b notice; Ineffective assistance of counsel; Failure to object; Plain error review

The court held that defendant failed to establish plain error as to his anonymous jury and prosecutorial error claims, and it rejected his related ineffective assistance of counsel claims. It also held that the trial court did not err in admitting the challenged other acts evidence under MCL 768.27b, and that his due process challenge to that statute had no merit. Thus, it affirmed his convictions of felony murder, first-degree child abuse, concealing the death of an individual, and third-offense aggravated domestic violence. The case arose from the death of his 16-month-old son. As to his anonymous jury claim, the jurors were identified by numbers, but he did “not allege that any information about [them] was withheld from the parties, and the record is clear that both parties conducted extensive voir dire.” The court concluded that the jury here “was anonymous only in a literal sense; therefore, none of the dangers of an ‘anonymous jury’ were implicated[.]” As to the admission of evidence under MCL 768.27b, the court determined that it “was relevant, and any prejudicial effect did not substantially outweigh the evidence’s probative value.” The evidence concerned injuries sustained by a 23-month-old child who had been left in defendant’s care. The court found that it (1) clearly met “the definition of ‘domestic violence’ under MCL 768.27b(6)(a)(i), (2) occurred within 10 years of the charged offense as required by MCL 768.27b(4), and (3) was highly relevant to show defendant’s tendency to assault a young child left in his care. MRE 403 did not preclude admission of this evidence because its presentation was brief and not nearly as graphic or violent as the presentation of evidence regarding the charged offenses.” The trial court also minimized its prejudicial effect with jury instructions. Finally, defendant failed to show that any prosecutorial “error affected his substantial rights or denied him a fair trial[,]” or any prejudice from his trial counsel’s failure to object.

Motion to suppress defendant’s tether location data; Applicability of the good-faith exception to the exclusionary rule; People v Goldston; People v Lucynski

Holding that the good-faith exception to the exclusionary rule applied, the court concluded that the trial court did not err in denying defendant’s motion to suppress his tether location data and for a new trial. In these consolidated appeals he challenged his convictions of AWIM, felonious assault, and felony-firearm in one case, and AWIM, first-degree home invasion, felony-firearm, and intentional discharge of a firearm at a dwelling in the other. The court previously remanded for an evidentiary hearing to determine whether the good-faith exception “applied to permit the use of defendant’s tether location data at trial.” It now found that the trial court, relying on the evidentiary hearing testimony, did not err in finding that the good-faith exception applied. While one of the victims (P) told a police sergeant (E) and officer (C) “that defendant had been released from his tether, neither officer had any verification that [P’s] statement was true or additional information indicating that the tether was inactive.” Further, as the trial court noted, C and E “were tasked with stabilizing the victim and providing care as needed.” Nothing in the record suggested that their “failure to relay the information from [P] to other officers [was] an attempt to conceal the information; in other words, nothing from the record” showed any wrongful police conduct. The record supported “the trial court’s finding that their failure to communicate [P’s] statement resulted from their immediate need to secure the scene and administer aid to” another victim, who was bleeding after being repeatedly shot. There was also no evidence that the detective “who requested the tether location data, or” the sergeant (L) “who performed the search, knew that defendant’s tether condition had been dismissed.” The detective was in fact “told that the tether was still active when he submitted his warrant request to the Wayne County Tether Unit. [L] also confirmed that he did not learn defendant had been released from his tether condition until after defendant’s arrest.” Affirmed.

Ineffective assistance of counsel; Failure to identify statute-of-limitations issue as to dismissed strangulation charge; Other acts of domestic violence; MCL 768.27b(1); MRE 403; Alleged vouching; Hearsay & prior consistent statements; MRE 801(d)(1)(B); Other acts of sexual abuse; MCL 768.27a; People v Watkins; Confrontation Clause; Admission of Arizona interview video; Davis v Washington; Cumulative error; Cruel or unusual punishment; Lifetime Sex Offenders Registration Act (SORA) registration; People v Kardasz; Lifetime electronic monitoring (LEM); People v Hallak; Unreasonable search

The court held that defendant failed to establish ineffective assistance of counsel and rejected his constitutional challenges to lifetime SORA registration and electronic monitoring. He was convicted of two counts of CSC I and one count of CSC II involving a victim under 13 and received concurrent prison terms, lifetime Tier III SORA registration, and LEM. After the trial court denied his postjudgment motion, defendant raised several ineffective assistance claims on appeal. The court agreed that counsel performed deficiently by failing to identify the statute-of-limitations problem with a strangulation charge that was ultimately dismissed, but found no prejudice because the victim’s testimony about the strangulation remained admissible. It explained that the incident “was relevant to the jury’s evaluation of whether the victim was telling the truth about the alleged sexual misconduct,” and ultimately concluded that objections to the victim’s testimony concerning the strangulation, a separate slap, and domestic violence against her mother “would have been properly overruled.” Counsel’s failure to object to a friend’s alleged vouching was reasonable trial strategy because it avoided drawing further attention to the testimony. As to challenged hearsay from the friend and a former boyfriend, the court found no reasonable probability of a different result even assuming some testimony was objectionable. It likewise concluded that testimony by the victim’s mother and defendant’s former fiancée about domestic violence was admissible under MCL 768.27b(1) and MRE 403, while defendant’s sister’s testimony about prior sexual abuse was admissible under MCL 768.27a and MRE 403. Defendant’s Confrontation Clause claim concerning his Arizona interview also failed because “the only testimonial statements were by defendant, not the Arizona officers.” The court found no reversible cumulative error. Turning to punishment, it rejected defendant’s SORA challenge because his as-applied claim was “hardly distinguishable from that rejected in Kardasz.” It also rejected the LEM challenge because “Hallak is binding precedent, and defendant offers no convincing way to distinguish this case from it.” Finally, under Hallak, LEM was not an unreasonable search given defendant’s reduced privacy interest and the public interest in monitoring offenders convicted of CSC against young children. Affirmed.

Elliott-Larsen Civil Rights Act (ELCRA); Age discrimination; MCL 37.2202(1)(a); Bullard-Plawecki Employee Right to Know Act; MCL 423.502; Direct evidence; Circumstantial evidence; McDonnell Douglas Corp. v Green; Prima facie case; Younger replacement; Similarly situated comparators; Pretext; Promissory estoppel; Salary guarantee

The court held that defendant-employer was entitled to summary disposition because plaintiff-former employee failed to establish age discrimination under the ELCRA or the elements of promissory estoppel. Plaintiff, a 63-year-old agricultural machinery salesman, remained employed after defendant acquired his former employer and began transitioning salespeople from salary-based compensation to commissions. Defendant guaranteed that salespeople would receive at least their base salaries through 2022 if their commissions fell short, but plaintiff understood that the guarantee applied only while they remained employed. After three incidents defendant deemed insubordinate, it terminated plaintiff in 11/21. He sued for age discrimination and promissory estoppel, and the trial court granted defendant summary disposition. On appeal, the court declined to resolve plaintiff’s argument that personnel records produced after defendant’s initial Bullard-Plawecki response should have been excluded because summary disposition was proper without relying on them. As to discrimination, plaintiff’s evidence did not constitute direct evidence, and he failed to establish the fourth element of a prima facie case because he did not show that defendant replaced him with a younger employee or treated a similarly situated younger employee differently for comparable conduct. The court further held that the claim independently failed for lack of pretext. The evidence did not show that defendant’s stated reasons “had no basis in fact,” “were not the actual factors motivating the decision,” or “were insufficient to justify his termination.” Plaintiff admitted the underlying conduct, and defendant identified insubordination as the reason for discharge. Finally, the promissory-estoppel claim failed because “there is simply no evidence of the promise” he claimed defendant made, namely an unconditional promise to pay his 2022 salary regardless of whether he remained employed. Plaintiff admitted that he understood he had to work for defendant in 2022 to earn that salary and that he worked no days that year. Affirmed.

Elliott-Larsen Civil Rights Act (ELCRA); Age discrimination; MCL 37.2202(1)(a); Bullard-Plawecki Employee Right to Know Act; MCL 423.502; Direct evidence; Circumstantial evidence; McDonnell Douglas Corp. v Green; Prima facie case; Younger replacement; Similarly situated comparators; Pretext; Promissory estoppel; Salary guarantee

The court held that defendant-employer was entitled to summary disposition because plaintiff-former employee failed to establish age discrimination under the ELCRA or the elements of promissory estoppel. Plaintiff, a 63-year-old agricultural machinery salesman, remained employed after defendant acquired his former employer and began transitioning salespeople from salary-based compensation to commissions. Defendant guaranteed that salespeople would receive at least their base salaries through 2022 if their commissions fell short, but plaintiff understood that the guarantee applied only while they remained employed. After three incidents defendant deemed insubordinate, it terminated plaintiff in 11/21. He sued for age discrimination and promissory estoppel, and the trial court granted defendant summary disposition. On appeal, the court declined to resolve plaintiff’s argument that personnel records produced after defendant’s initial Bullard-Plawecki response should have been excluded because summary disposition was proper without relying on them. As to discrimination, plaintiff’s evidence did not constitute direct evidence, and he failed to establish the fourth element of a prima facie case because he did not show that defendant replaced him with a younger employee or treated a similarly situated younger employee differently for comparable conduct. The court further held that the claim independently failed for lack of pretext. The evidence did not show that defendant’s stated reasons “had no basis in fact,” “were not the actual factors motivating the decision,” or “were insufficient to justify his termination.” Plaintiff admitted the underlying conduct, and defendant identified insubordination as the reason for discharge. Finally, the promissory-estoppel claim failed because “there is simply no evidence of the promise” he claimed defendant made, namely an unconditional promise to pay his 2022 salary regardless of whether he remained employed. Plaintiff admitted that he understood he had to work for defendant in 2022 to earn that salary and that he worked no days that year. Affirmed.