Search & seizure; Investigatory stop; Terry v Ohio; Reasonable suspicion; Scope of detention; De facto arrest; Probable cause; Search incident to arrest; Search warrant for blood draw; Custodial interrogation; Miranda v Arizona; Ineffective assistance of counsel; Jury instructions; Unanimity; Cumulative error; Sentencing; Refusal to admit guilt; People v Pennington

The court held that defendant’s detention and arrest were lawful, the search of his wallet and the warrant for his blood draw were valid, and his remaining claims involving Miranda, jury instructions, ineffective assistance of counsel, cumulative error, and sentencing did not warrant relief. He was convicted of OWI, third offense, resisting or obstructing, and driving with a suspended license after a single-vehicle crash. Trooper-B encountered him walking alone away from the direction of the crash on a rural road in below-freezing weather. He was staggering, smelled strongly of alcohol, and repeatedly tried to leave. On appeal, the court concluded the initial detention was supported by reasonable suspicion. The trooper “possessed a reasonable suspicion that defendant had been driving while intoxicated, which justified a temporary seizure to verify or dispel the suspicion of criminal activity.” Although handcuffing defendant and placing him in the patrol vehicle made the detention more restrictive, “the increase in both the length of the stop, and the necessity of more restrictive methods for accomplishing it, are primarily attributable to defendant.” Even if the detention became an arrest, the facts “were sufficient to warrant a prudent person in believing that defendant had been driving while intoxicated and there was probable cause to arrest.” The wallet search was consequently “a valid search incident to arrest,” and the blood-warrant affidavit supported a finding that evidence of his blood-alcohol content would be discovered. The court deemed his Miranda claim abandoned because he focused on custody while “completely ignoring the equally important issue of ‘interrogation.’” His requested unlawful-police-conduct instructions were likewise abandoned, while a specific unanimity instruction was unnecessary because “the alternative acts were part of the same course of conduct and were not materially distinct.” Finally, the sentencing court “was not chastising defendant for exercising his right to have a jury trial” but was reacting to his efforts to assert innocence “in a disingenuous and dishonest manner.” Affirmed.

Judicial bias; People v Stevens; Exercise of reasonable control over the mode & order of interrogating witnesses & presenting evidence; People v Biddles; MRE 611(a); Trial court’s witness questioning; Plain error review; Expert testimony; MRE 702; Waiver; Prosecutorial error; Ineffective assistance of counsel; Factual predicate; Great weight of the evidence; CSC II under MCL 750.520c(2)(b); People v DeLeon; Sexually transmitted diseases (STDs)

The court rejected defendant’s claims of judicial bias, prosecutorial error, and ineffective assistance of counsel. It concluded that he waived the issue of a doctor’s (H) qualification as an expert, and even if the trial court erred in qualifying other witnesses as experts, he could not establish plain error affecting his substantial rights because H’s expert testimony was properly admitted. Finally, the court held that defendant’s CSC II conviction was not against the great weight of the evidence. He first took issue with the trial court’s instruction to the prosecutor to ask the victim more questions on a topic. But the “instruction was within its discretion to control the trial proceedings because it is clear the trial court’s goal was to effectively determine the truth from the victim’s testimony. Initially, [it] interjected to clarify the victim’s testimony, as is appropriate. [It] then noted it did not want to invade the prosecutor’s role, but instructed the prosecutor to continue clarifying that testimony. There is no indication the trial court was motivated by bias against defendant, especially considering [it] would have been within its rights to continue questioning the victim.” Its clarifying questions to a prosecution witness during cross-examination were also not inappropriate. Next, apart from the waiver, the court found that defendant’s argument as to H failed on the merits. H had been an ER “pediatrician for 14 years and was board-certified in pediatrics and pediatric emergency medicine. [H] explained that he was trained to treat sexually transmitted infections as part of his pediatric training and received specific training for sexual abuse and physical abuse as part of the national training for board-certified pediatric emergency medicine physicians. [H] was experienced in pediatric STDs and estimated that he had performed over 20 sexual assault” exams. Thus, his “knowledge, training, and experience qualified him to testify regarding how gonorrhea is transmitted.” As to defendant’s conviction under MCL 750.520c(2)(b), the victim (who was six years old at the time of the offense) testified that “defendant’s genital area touched her genital area underneath her underwear.” He was the only adult in her “life to test positive for gonorrhea.” Thus, the trial court’s finding in the bench trial “that the victim contracted gonorrhea from a sexual contact with defendant was reasonably supported by the evidence.” Affirmed.

Petition for review of an order affirming an asylum officer’s negative reasonable-fear determination; The court’s jurisdiction; 8 USC § 1252; “Final order of removal”; Riley v Bondi; Orders addressing Convention Against Torture (CAT) relief & withholding relief; Nasrallah v Barr; Johnson v Guzman Chavez; Abrogation of Kolov v Garland

Concluding that Riley abrogated its contrary holding in Kolov, the court held that it lacked jurisdiction to hear petitioner-Castro-Fuentes’s petition for review challenging an IJ’s no-reasonable-fear finding because he did not challenge his final order of removal. Thus, it dismissed his petition. The court noted that it has “subject matter jurisdiction to review final orders of removal.” Three recent Supreme Court decisions have “explained what qualifies as a ‘final order of removal’ under” § 1252. Pursuant to those decisions, such “orders are those ‘concluding that the alien is deportable or ordering deportation.’” Importantly for this case, “Riley instructed that orders addressing withholding and CAT relief do not meet that definition because neither affects ‘the validity of a previously issued order of removal.’” The no-reasonable-fear finding petitioner challenged was “a procedural precursor to statutory withholding and CAT relief. Because a challenge to a denial of statutory withholding and CAT relief (or a precursor to such relief) is not a challenge to a ‘final order of removal’ or to an order that ‘affect[s] the validity of the final order of removal,’” the court lacked jurisdiction to hear this petition for review under Riley. This holding departed from its “precedent, which for some time has permitted ‘review of BIA orders on withholding-only and CAT relief.’” The court noted that at least three other circuits, relying “on similar, post-Riley reasoning,” have agreed with the conclusion it reached here.

Expert testimony, injunctive relief/water drainage

Motion to strike an expert witness’s testimony; MRE 702; Causation; Temporal relationship; Trespass claim related to water moving between properties; Final injunctive relief; Adoption of a drainage-solution plan proposed by an independent expert; Wiggins v City of Burton; Denial of a preliminary injunction barring further property grading; Contempt; Testimony from a witness not disclosed before the hearing  

In this case arising from water moving between the parties’ properties, the court held that the trial court did not abuse its discretion by failing to strike defendant’s expert witness (R), or in denying plaintiffs summary disposition of defendant’s trespass counterclaim. It also did not abuse its discretion in adopting the independent expert’s (P) proposed drainage-solution plan, or err in not issuing a preliminary injunction barring plaintiff-Coan from doing further property grading. Finally, the trial court did not abuse its discretion in finding defendant in contempt. As to R’s testimony, he “did not rely solely on soil borings in reaching his conclusions but also relied on topographical maps and aerial photography. Plaintiffs contend that, for his testimony to have any value, [R] needed to have calculated the volume of water flowing between the properties. However, even the fact of a redirection of water was something that would ‘assist the trier of fact to understand the evidence or to determine a fact in issue[.]’ Photographic evidence or testimony from other witnesses could then go toward the issues of the exact direction of the water and the water volume.” The court next found that defendant presented “sufficient evidence of causation” as to his trespass counterclaim to survive plaintiffs’ summary disposition motion. Both sides took issue with the trial court’s adoption of P’s drainage-solution plan in granting final injunctive relief. The court concluded that “the trial court gave adequate reasons why” plaintiffs’ proposed “plan, which relied on sloping and an infiltration zone, was not feasible.” And while they asserted that P’s “plan forces parties to install pipes potentially against their will, contrary to the holding in Wiggins[,]” it was clear here that the trial court “was going to force the parties to make some alterations to their properties to resolve the long-running dispute at issue in this case. Indeed, that was the entire point of the bench trial.” Defendant contended that P’s plan was not supported by sufficient evidence, but P stated that he met twice with R “and with plaintiffs’ expert to understand the current drainage conditions and reviewed topographical surveys, site information, and plans depicting the drainage for both parcels.” Affirmed.

Sua sponte dismissal as a sanction; MCR 2.504(B)(1); Schell v Baker Furniture Co; Dismissal with prejudice; Relevant factors; Vicencio v Ramirez; Mistaken understanding of MCR 2.202(A)(1)(b); Personal representative (PR)

The court held that the trial court had authority to sua sponte dismiss the action as a sanction, but that it abused its discretion by doing so “with prejudice without adequately considering the relevant circumstances and available lesser sanctions.” Plaintiff alleged that she slipped and was injured while shopping at an Aldi store in 2020. There were discovery problems in the case, and discovery remained outstanding when she died on 1/2/25. Months later, the trial court dismissed the action with prejudice, relying “on counsel’s failure to file a notice of death or seek substitution within the applicable time frames, plaintiff’s refusal to engage in meaningful discovery, and counsel’s failure to appear when ordered to do so.” On appeal, the court considered the merits despite the absence of an order substituting the estate’s PR as plaintiff. It rejected the argument that “the trial court lacked authority to dismiss the action sua sponte.” While plaintiff relied on Schell, “MCR 2.504(B)(1) was amended after Schell and now expressly authorizes a trial court to act sua sponte.” The question was whether “dismissal with prejudice was a proper exercise of that authority[.]” The court concluded the record left “little doubt that substantial sanctions were warranted.” And it noted that the “record may ultimately support dismissal with prejudice[.]” But the trial court had to “evaluate the available alternatives on the record and explain why dismissal with prejudice is just and proper under the circumstances.” As the record did not show it “made that discretionary determination, remand” was required. The court vacated the dismissal order and remanded “for the trial court to reconsider the appropriate sanction. On remand, [it] may consider the entire history of the proceedings, including plaintiff’s discovery violations, counsel’s conduct following plaintiff’s death, [its] prior efforts to secure compliance, and the prejudice to defendants.” The court expressed no opinion on which sanction should be imposed, directing only that the trial court make a record showing “that the sanction selected is just and proper under the circumstances.”

Expert testimony, injunctive relief/water drainage

Motion to strike an expert witness’s testimony; MRE 702; Causation; Temporal relationship; Trespass claim related to water moving between properties; Final injunctive relief; Adoption of a drainage-solution plan proposed by an independent expert; Wiggins v City of Burton; Denial of a preliminary injunction barring further property grading; Contempt; Testimony from a witness not disclosed before the hearing  

In this case arising from water moving between the parties’ properties, the court held that the trial court did not abuse its discretion by failing to strike defendant’s expert witness (R), or in denying plaintiffs summary disposition of defendant’s trespass counterclaim. It also did not abuse its discretion in adopting the independent expert’s (P) proposed drainage-solution plan, or err in not issuing a preliminary injunction barring plaintiff-Coan from doing further property grading. Finally, the trial court did not abuse its discretion in finding defendant in contempt. As to R’s testimony, he “did not rely solely on soil borings in reaching his conclusions but also relied on topographical maps and aerial photography. Plaintiffs contend that, for his testimony to have any value, [R] needed to have calculated the volume of water flowing between the properties. However, even the fact of a redirection of water was something that would ‘assist the trier of fact to understand the evidence or to determine a fact in issue[.]’ Photographic evidence or testimony from other witnesses could then go toward the issues of the exact direction of the water and the water volume.” The court next found that defendant presented “sufficient evidence of causation” as to his trespass counterclaim to survive plaintiffs’ summary disposition motion. Both sides took issue with the trial court’s adoption of P’s drainage-solution plan in granting final injunctive relief. The court concluded that “the trial court gave adequate reasons why” plaintiffs’ proposed “plan, which relied on sloping and an infiltration zone, was not feasible.” And while they asserted that P’s “plan forces parties to install pipes potentially against their will, contrary to the holding in Wiggins[,]” it was clear here that the trial court “was going to force the parties to make some alterations to their properties to resolve the long-running dispute at issue in this case. Indeed, that was the entire point of the bench trial.” Defendant contended that P’s plan was not supported by sufficient evidence, but P stated that he met twice with R “and with plaintiffs’ expert to understand the current drainage conditions and reviewed topographical surveys, site information, and plans depicting the drainage for both parcels.” Affirmed.

Termination at initial disposition; Required judicial determination; MCL 712A.19a; §§ 19b(3)(c)(i) & (j); Failure to challenge an alternative statutory ground; Children’s best interests; Reasonable reunification efforts; Department of Health & Human Services (DHHS)

The court held that the trial court erred by terminating respondent-mother’s parental rights to her two youngest children at initial disposition without making the judicial determination required by MCL 712A.19a, but it did not err in terminating her rights to the six older children or in finding that the DHHS made reasonable reunification efforts. The six older children were removed after concerns involving unsafe housing, including respondent’s decision to live with her father, who had sexually abused her as a child. The twins were born during the proceedings and became subject to a separate petition. On appeal, the court sua sponte determined that termination as to the twins was erroneous because “[n]either the trial court’s order nor findings made at the termination hearing include the judicial determination required by law” concerning reasonable efforts or whether such efforts were unnecessary. As to the six older children, respondent challenged § (c)(i) but not § (j). Because “[o]nly one statutory ground is required for termination,” her failure to challenge § (j) independently defeated her statutory-grounds argument. The court nonetheless found no error as to § (c)(i), concluding that the trial court’s finding “that the conditions leading to the adjudication continued to exist and there was no reasonable likelihood that they would be rectified within a reasonable time is supported by factual findings made based on the record as a whole.” Her housing remained inadequate, she had not sufficiently benefited from counseling or parenting services, and she continued to have limited parenting abilities. Those circumstances also supported the best-interest determination because “there was no evidence that respondent-mother significantly benefited from the services in which she participated.” Finally, the court rejected her reasonable-efforts challenge. The DHHS offered psychological evaluation, counseling, parenting services, supportive visitation, and other assistance, and her “failure to fully comply with counseling was not a failure of the DHHS.” The court affirmed termination as to the six older children, vacated as to the twins, and remanded for reasonable reunification efforts unless the trial court properly determines they are not required.