Attorney fees in a domestic relations action; MCR 3.206(D)(2)(b); Colen v Colen; Refusal to comply with court order; Child support arrearage; Richards v Richards; Reasonableness hearing; Kernen v Homestead Dev Co; Abandoned issue; Cassidy v Cassidy

The court held that the trial court did not abuse its discretion by ordering defendant to pay plaintiff’s attorney fees incurred because of his failure to comply with the child-support order. After the divorce judgment and support order were entered, defendant fell more than $51,000 behind in child support, and was found in contempt. The trial court later determined after an evidentiary hearing that he had the ability to pay the arrearage in a lump sum. On appeal, the court held that attorney fees were proper under MCR 3.206(D)(2)(b) because that subrule applies when fees “were incurred because the other party refused to comply with a previous court order, despite having the ability to comply[.]” The court emphasized that MCR 3.206(D)(2)(b) focuses on “‘a party’s behavior, without reference to the ability to pay[,]’” and exists to “‘shift the costs associated with wrongful conduct to the party engaging in the improper behavior[.]’” Because defendant did not dispute that he violated the child-support order, had exhausted appellate remedies on the contempt order, and did not challenge the evidentiary-hearing ruling except as to fees, the requirements of the rule were satisfied. The court also held that no separate evidentiary hearing on reasonableness was required because defendant never objected to plaintiff’s bill of particulars, never requested a hearing, and argued only financial hardship rather than that the fees were unreasonable. The uncontested billing materials were sufficient to support the award. Affirmed.

Sentencing; The 2011 iteration of Michigan’s Sex Offenders Registration Act (SORA); Ex post facto punishment; Whether People v Betts applies retroactively

Holding that Betts applies retroactively to defendants on collateral review, the court reversed the Court of Appeals’ decision that reversed the trial court’s order granting defendant’s motion for relief from judgment, and remanded. Defendant was convicted of or adjudicated for CSC III in 2004 and sentenced as a juvenile. Under the version of SORA then in effect, he was required to register as a sex offender and notify law enforcement of any change of address within 10 days. In 2015 he was planning to move into a new home. He notified law enforcement and updated his address, but the tenant occupying the property did not leave as scheduled. As a result, defendant’s “address was incorrect for a total of 19 days” and he pled guilty to failure to comply with the 2011 SORA’s registration requirements. In 2022, he moved for relief from judgment based on Betts, which held that the 2011 version of SORA constituted “unconstitutional ex post facto punishment pursuant to the federal and state Constitutions[.]” He sought to vacate his 2015 conviction for failing to register under the 2011 SORA. The trial court vacated his conviction and sentence. Reversing, the Court of Appeals held “that the trial court erred in failing to give the prosecutor appropriate time to respond and in holding that Betts applied retroactively.” On defendant’s appeal, the court concluded that Betts is retroactively applicable under “both federal and state retroactivity principles[.]” It determined “that Betts announced a new rule” of law, and further concluded “that the rule announced in Betts was substantive in nature.”

Sufficient evidence for convictions of first-degree premeditated murder & assault causing death to a fetus or embryo; MCL 750.316(1)(a); MCL 750.90b(a); Waiver of right to counsel during a police interview; Plain error review; Outcome-determinative error

The court held that there was sufficient evidence to support defendant’s convictions of first-degree premeditated murder and assault causing death to a fetus. While it found that whether she waived her right to counsel during a police interview was a close question, even if she did not, the evidence was sufficient to support her convictions without relying on the interview. The case arose from “a love triangle between defendant, the victim, and a man” (S) with whom both women were involved. She argued “there was evidence that contradicted the prosecutor’s theory of the shooting, including the witness’s identification of the shooter as a man and the victim’s familiarity with the area where the shooting occurred. But” the court noted that a prosecutor does not have “to ‘disprove every reasonable theory consistent with innocence[.]’” Defendant repeatedly sent S “angry text messages regarding his romantic involvement with the victim. Days before the murder, defendant purchased a burner phone, and that phone was used to call the victim within minutes of when the murder occurred. And after the murder, defendant’s other phone recorded internet searches including the victim’s name, ballistics, various news outlets, questions about death, and the” county morgue. While “the witness identified the shooter as male, the witness also believed the victim was male, which was a mistake. Regardless of that mistake, the witness identified the shooter’s vehicle as a silver Malibu, which is the same style of vehicle defendant drove. A silver Malibu was also seen on video driving in the area, and defendant admitted to being in the area that night.” The court determined that the evidence was sufficient for the jury to find beyond a reasonable doubt that she was guilty of the crimes. She also contended that she did not voluntarily waive her right to counsel during her police interview. The record indicated that she “asserted her right to counsel one minute but then reinitiated the conversation and waived that right in the next, over and over again.” Applying plain error review, the court concluded that regardless of whether she waived her right, any error was not outcome-determinative. She “did not admit guilt or knowledge about the victim’s death during the interrogation.” And the evidence other than the portions of the video interview shown at trial was sufficient to convict her. Affirmed.

Testimony & comment on defendant’s prearrest silence; People v Schollaert; Alleged vouching testimony; Prosecutorial misconduct; Plain error review; Rebuttal evidence; Constitutionality of MCL 768.27b; Due process; Case law on similar challenges to MCL 768.27a; People v Watkins; People v Muniz; Procedural safeguards; MRE 401 & 403

Concluding that defendant’s prearrest silence was not entitled to constitutional protection, the court rejected his claim that the prosecution impermissibly elicited testimony of and commented on his prearrest silence. It also held that a police witness’s (A) challenged testimony was not improper vouching, and it found no prosecutorial misconduct. Finally, it concluded there was no merit in defendant’s claim that MCL 768.27b violates the right to due process. He was convicted of first-degree premeditated murder, FIP, felony-firearm, and CCW. The prosecution’s theory was “that jealousy and anger caused defendant to kill his on-again, off-again girlfriend and her new boyfriend.” Defendant argued that the prosecution “impermissibly used his silence as substantive evidence of his guilt by creating an inference that if defendant had nothing to hide, he would have contacted the police when he knew they wanted to talk to him.” The court reviewed Schollaert, in which it held that the admission of a defendant’s silence before custodial interrogation and before the giving of Miranda warnings does not violate a defendant’s constitutional rights. The court determined that Schollaert was instructive and applied here. And it found that an argument could “be made that evidence of defendant’s prearrest conduct was relevant to his consciousness of guilt and to rebut [his] assertion that the lead investigator did not properly investigate the case.” Rather than referencing “defendant’s conduct so that the jury could conclude [he] was guilty[,]” the prosecution’s “comment was no more than a response to defendant’s suggestion that the law enforcement conducted a sloppy investigation.” As to A’s alleged vouching, nowhere in her testimony did she “offer an opinion that defendant was the perpetrator of the murders or that [witness-M] was being truthful.” The court added that defendant’s trial counsel “invited the testimony” by setting up a “sequence of questions that led to [A] eventually giving her opinion that [M’s] viewing of defendant’s picture on the television did not ‘corrupt’ the subsequent identification of defendant during the photographic lineup.” As to the prosecutorial misconduct claim, the court found that the “prosecutor was simply attempting to respond to defendant’s theory, and the elicited testimony was for a proper purpose.” Affirmed.

Ineffective assistance of counsel; Advice not to testify; Strickland v Washington; Trial strategy; People v Trakhtenberg; Common-law self-defense; People v Dupree; Credibility findings; People v Johnson; Prejudice

The court held that defendant was not denied the effective assistance of counsel where trial counsel advised him not to testify in support of a self-defense theory. Defendant was convicted of first-degree murder, AWIM, FIP, and felony-firearm after he shot four people outside his townhouse, killing three. After a Ginther hearing, the trial court credited trial counsel’s testimony that defendant had told him a different version of events than the one defendant later gave, and the trial court gave “no weight or credibility” to defendant’s testimony because it was contradicted by prior statements, physical evidence, and eyewitness testimony. On appeal, the court held that this credibility determination was not erroneous because defendant’s statements changed over time, including whether he was sober, whether he personally saw a gun being passed around, and whether a victim pointed a gun at him. The court next held that counsel’s advice not to testify was reasonable trial strategy because defendant’s testimony would have opened the door to impeachment with inconsistent statements to police and mental-health professionals. Although defendant’s testimony might have strengthened self-defense, it also carried serious risks, including undermining whether his belief of imminent danger was reasonable. The court further held that defendant could not show prejudice because strong physical and eyewitness evidence showed that only defendant’s gun fired the recovered bullets and shell casings, and another gun was found still in a victim’s holster. Affirmed.

CSC; Alibi defense; MCL 768.20; People v Bennett; Notice of charges; MCL 767.45(1)(b); People v Bailey; Forensic-interviewer testimony; Vouching; Distinguishing People v Douglas; Impeachment; Prior inconsistent statement; MRE 613(b); Barnett v Hidalgo; Confrontation Clause; Cross-examination limits; People v Gaines; Judicial impartiality; People v Stevens; Cruel or unusual punishment; MCL 750.520b(2)(b); People v Benton

The court held that defendant was not entitled to relief from his CSC convictions or his mandatory minimum sentences. Defendant was convicted of CSC I and CSC II involving a child under 13. He challenged the amended charging period, exclusion of an alibi witness, forensic-interviewer testimony, impeachment limits, cross-examination limits, judicial conduct, and the 25-year mandatory minimum CSC I sentences. On appeal, the court first held that the alibi ruling did not warrant reversal because, although “the prosecutor now concedes that, under controlling caselaw, the notice was timely,” defendant still presented the substance of the testimony, and it “failed to establish that defendant lacked access to [the victim] throughout the charged timeframe.” The court also held that the amended information gave adequate notice because “in child CSC cases, time is not of the essence,” and the two-year date range was permissible where the child testified that the offenses occurred when she was 10 or 11. The court next held that counsel was not ineffective for failing to object to the forensic interviewer’s (T) testimony because T “did not testify to the substance of any statements made by” the victim, and she did not opine that the child was truthful. The court agreed that defense counsel should have been allowed to lay a foundation to impeach the child with prior statements to her mother, but held that the error was not outcome-determinative because there was circumstantial corroboration and an explanation that she “was trying to tell her mother everything” but stopped after seeing her mother’s reaction. The court also upheld limits on questioning about explicit images because the defense theory was “speculative,” and the proposed inquiry was “marginally relevant.” The court further held that the trial judge did not pierce the veil of impartiality because the comments reflected “permissible control of the proceedings rather than advocacy or partiality.” Finally, relying on Benton, the court held that defendant’s challenge to MCL 750.520b(2)(b) failed because that decision remains binding. Affirmed.

CSC; Prior inconsistent statement; MRE 613(b); People v Williams; Impeachment evidence; Discovery sanction; MCR 6.201(J); Fair trial; Dowling v United States; Prosecutorial argument; People v Thomas; Ineffective assistance of counsel; Limiting instruction; People v Kelly

The court held that the trial court did not abuse its discretion by allowing the prosecution to use and admit a Facebook Messenger message for impeachment and that defendant was not denied the effective assistance of counsel. Defendant was convicted of two counts of CSC III after the victim, HP, testified that he sexually assaulted her in her apartment while his cousin, W, was elsewhere in the apartment. Before trial, the court excluded the late-produced Facebook message from the prosecution’s case-in-chief but allowed use for impeachment. On appeal, the court first held that this ruling did not bar impeachment use because the trial court “specifically stated that the prosecution could use Exhibit 8 during cross-examination for impeachment purposes[.]” The court next held that the message was properly admitted under MRE 613(b) because W denied sending it, was given an opportunity to explain, and defendant had an opportunity to examine him about it. The court found an adequate foundation because the message came from an account with W’s “profile picture and profile name,” reflected his point of view, referenced specific details about the case, and showed knowledge of defendant’s upcoming court proceedings. Even assuming error, the court held that defendant failed to show a miscarriage of justice because HP testified to nonconsensual digital and penile penetration, and W’s credibility was already weakened by other inconsistent testimony. The court also rejected defendant’s challenge to the prosecutor’s closing argument because the prosecutor used the message to attack W’s credibility and “never informed the jury” it could be used substantively. Finally, the court held that counsel was not ineffective for failing to request an immediate limiting instruction because the trial court gave a general final instruction on prior inconsistent statements and no reasonable probability of a different outcome existed. Affirmed.

Motion for judgment of acquittal; Sufficiency of the evidence; FIP; 18 USC §§ 922(g)(1) & 924; Actual & constructive possession of a firearm; Constructive possession of Schedule II substances with the intent to distribute; 21 USC § 841(a)(1); Knowing possession a firearm “in furtherance of” a drug trafficking crime; Evidence of a prior conviction; FRE 404(b); Conflict of interest; Whether the district court should have conducted a post-verdict juror interview; FRE 606(b)

The court held that there was sufficient evidence to convict defendant-London on his drug and firearm charges, and that the district court did not err by admitting evidence of a prior conviction under FRE 404(b) or by not conducting a post-verdict interview of a juror. A jury convicted London of FIP, knowingly and intentionally possessing multiple Schedule II substances with the intent to distribute, and knowingly possessing a firearm in furtherance of a drug trafficking crime. He argued that the government failed to establish the firearm charges because there was no evidence that he “knowingly possessed” the recovered gun. But the court agreed with the government that there was both actual and constructive possession. As to actual possession, the “discovery of the gun in open view on the driver’s seat that London had vacated less than two minutes before shows that he had immediate access to and control of the weapon.” Constructive possession was also established where he had “dominion and control” over the car where the gun was discovered. The constructive possession analysis also applied to his claim that he did not knowingly possess the drugs. The large amount of cash and two cell phones that were found on his person also supported possession with intent to distribute. The court further held that there was sufficient evidence that London possessed the firearm in furtherance of that crime where the gun was “strategically located” on the driver’s seat for easy access and was loaded. Next, it agreed with the district court that the defense “opened the door” as to London’s prior conviction when it asked a witness why he believed that the defendant may be armed. The court rejected London’s conflict of interest claim. Finally, he claimed the district court should have conducted a post-verdict interview of a juror. The court concluded the district court “did not abuse its discretion by invoking Rule 606(b) to deny London’s motion.” Affirmed.

Attorney fees in a domestic relations action; MCR 3.206(D)(2)(b); Colen v Colen; Refusal to comply with court order; Child support arrearage; Richards v Richards; Reasonableness hearing; Kernen v Homestead Dev Co; Abandoned issue; Cassidy v Cassidy

The court held that the trial court did not abuse its discretion by ordering defendant to pay plaintiff’s attorney fees incurred because of his failure to comply with the child-support order. After the divorce judgment and support order were entered, defendant fell more than $51,000 behind in child support, and was found in contempt. The trial court later determined after an evidentiary hearing that he had the ability to pay the arrearage in a lump sum. On appeal, the court held that attorney fees were proper under MCR 3.206(D)(2)(b) because that subrule applies when fees “were incurred because the other party refused to comply with a previous court order, despite having the ability to comply[.]” The court emphasized that MCR 3.206(D)(2)(b) focuses on “‘a party’s behavior, without reference to the ability to pay[,]’” and exists to “‘shift the costs associated with wrongful conduct to the party engaging in the improper behavior[.]’” Because defendant did not dispute that he violated the child-support order, had exhausted appellate remedies on the contempt order, and did not challenge the evidentiary-hearing ruling except as to fees, the requirements of the rule were satisfied. The court also held that no separate evidentiary hearing on reasonableness was required because defendant never objected to plaintiff’s bill of particulars, never requested a hearing, and argued only financial hardship rather than that the fees were unreasonable. The uncontested billing materials were sufficient to support the award. Affirmed.

Discovery sanction; MCR 2.313(A)(6); Dean v Tucker; Striking an affirmative defense; MCR 2.313(B)(2)(b); Citizens United Reciprocal Exchange (CURE)

Holding that the trial court abused its discretion in striking defendant-CURE’s rescission defense as a sanction for violating its discovery order, the court vacated and remanded. The suit was filed by a now deceased insured for unpaid benefits under an auto insurance policy obtained from CURE. During discovery, plaintiff filed a motion to compel CURE to produce two adjusters and an underwriter for deposition. The trial court ordered that an underwriter and one of the adjusters be deposed. A dispute then arose as to one of the individuals produced (S) because he was not the underwriter who “actually made the decision to rescind” the policy. The trial court granted plaintiff’s sanction motion. On appeal, the court disagreed with CURE’s position “that the trial court was required to consider each Dean factor because striking the rescission defense was akin to dismissal or an entry of default.” It determined that, under the “circumstances, striking just one defense as a sanction was not a functional equivalent to entering a default judgment against CURE. Therefore, the trial court did not abuse its discretion just because it failed to make specific findings under each Dean factor. It was only required to consider the totality of the circumstances to determine whether the sanction was appropriate.” But the court concluded that in doing so, “the trial court reached a decision that fell outside the range of reasonable and principled outcomes because it was based on several clearly erroneous findings of fact.” The court held “that the trial court’s finding that [S] was unable to sufficiently answer plaintiff’s questions was clearly erroneous.” It also found “there was little evidence to support the trial court’s finding that CURE was ‘playing hide the ball’ in this matter.” In addition, the trial court “overlooked CURE’s history of compliance with plaintiff’s other discovery requests.” The court further found that the decision to produce S “for the underwriter deposition had no prejudicial effect on plaintiff and did not deprive him of notice about CURE’s intent to introduce evidence of a material misrepresentation at trial.” Reviewing the totality of the circumstances, the court concluded “a less severe sanction would have been more appropriate.”

Alleged misrepresentations made in house purchase negotiations; Fraudulent misrepresentation; Silent fraud; Principle that a seller’s agent generally owes no duty of disclosure to the buyer; Alfieri v Bertorelli; Motion to amend the complaint; Futility; Historic District Commission (HDC); Seller’s Disclosure Statement (SDS)

The court held that another defendant’s alleged affirmative misrepresentation could not be imputed to defendants-listing real estate broker and agent here and thus, plaintiff-home buyer’s fraudulent misrepresentation claim failed as a matter of law. So did his silent fraud claim. Thus, it affirmed summary disposition for the broker and agent. Because the house was located in an historic district “in Detroit, it was subject to ‘historic review’ by Detroit’s” HDC. The court noted that “plaintiff never alleged that defendants made any affirmative misrepresentations.” Rather, the seller’s owner, defendant-Howard, “allegedly represented in the [SDS] that he had not performed any modifications or repairs without the necessary permits. Plaintiff alleged that defendants represented that Howard’s statement was accurate when they provided the” SDS to plaintiff. He asserted they “knew that the statement regarding permits was false and that [he] would be responsible for the HDC violations.” The court noted that real “‘estate brokers and salesmen are the agents of the seller, their principal.’” It also noted that the SDS, “which was attached as an exhibit to the complaint, specifically stated, ‘The following are representations made solely by the Seller and are not the representations of the Seller’s Agent(s), if any.’ Furthermore, defendants did not prepare or sign the [SDS]. As the seller’s agent, they were required to relay the [it] to plaintiff when they received it from Howard and” defendant-SRH Homes, “but they did not adopt those statements as their own just by providing” him a copy. As to his silent fraud claim, he “did not adequately plead that defendants had a legal duty to disclose” the HDC violations. Even “if the fact that the renovations violated the HDC’s requirements was a form of newly acquired information,” he failed to sufficiently explain how it “affected the accuracy of the statement that that there were no ‘[s]tructural modifications, alterations, or repairs made without necessary permits . . . .’” In addition, he “never alleged that he expressed a particular concern with the earlier owners’ compliance with HDC requirements, nor did he allege that defendants had a reason to know that [he] was particularly concerned with” this. The trial court also did not err in denying plaintiff’s motion to amend the complaint on the basis the proposed amendment was futile.

Alleged misrepresentations made in house purchase negotiations; Fraudulent misrepresentation; Silent fraud; Principle that a seller’s agent generally owes no duty of disclosure to the buyer; Alfieri v Bertorelli; Motion to amend the complaint; Futility; Historic District Commission (HDC); Seller’s Disclosure Statement (SDS)

The court held that another defendant’s alleged affirmative misrepresentation could not be imputed to defendants-listing real estate broker and agent here and thus, plaintiff-home buyer’s fraudulent misrepresentation claim failed as a matter of law. So did his silent fraud claim. Thus, it affirmed summary disposition for the broker and agent. Because the house was located in an historic district “in Detroit, it was subject to ‘historic review’ by Detroit’s” HDC. The court noted that “plaintiff never alleged that defendants made any affirmative misrepresentations.” Rather, the seller’s owner, defendant-Howard, “allegedly represented in the [SDS] that he had not performed any modifications or repairs without the necessary permits. Plaintiff alleged that defendants represented that Howard’s statement was accurate when they provided the” SDS to plaintiff. He asserted they “knew that the statement regarding permits was false and that [he] would be responsible for the HDC violations.” The court noted that real “‘estate brokers and salesmen are the agents of the seller, their principal.’” It also noted that the SDS, “which was attached as an exhibit to the complaint, specifically stated, ‘The following are representations made solely by the Seller and are not the representations of the Seller’s Agent(s), if any.’ Furthermore, defendants did not prepare or sign the [SDS]. As the seller’s agent, they were required to relay the [it] to plaintiff when they received it from Howard and” defendant-SRH Homes, “but they did not adopt those statements as their own just by providing” him a copy. As to his silent fraud claim, he “did not adequately plead that defendants had a legal duty to disclose” the HDC violations. Even “if the fact that the renovations violated the HDC’s requirements was a form of newly acquired information,” he failed to sufficiently explain how it “affected the accuracy of the statement that that there were no ‘[s]tructural modifications, alterations, or repairs made without necessary permits . . . .’” In addition, he “never alleged that he expressed a particular concern with the earlier owners’ compliance with HDC requirements, nor did he allege that defendants had a reason to know that [he] was particularly concerned with” this. The trial court also did not err in denying plaintiff’s motion to amend the complaint on the basis the proposed amendment was futile.

Deed restrictions; “Private dwelling”; Eager v Peasley; Restrictive covenants; Aldrich v Sugar Springs Prop Owners Ass’n, Inc; ; Short-term rentals; Waiver by acquiescence; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Changed neighborhood character; Taylor Ave Improvement Ass’n v Detroit Trust Co; Laches; Affirmative defense waiver; Rowry v University of MI

The court held that defendant’s short-term rental use violated the subdivision’s unambiguous deed restriction limiting lots to use as a private dwelling house, and that plaintiffs had not waived their right to enforce the restriction. Plaintiffs and defendant were neighbors in the Silver Shores Subdivision, whose plat provided that “[n]o buildings to be erected on any of said lots shall be used otherwise than as a private dwelling house.” Defendant did not regularly reside at his property, but renovated it, registered it with the township as a short-term vacation rental, and listed it on Airbnb. On appeal, the court first held that the restriction was enforceable because, when it was adopted, a “private dwelling” meant “a dwelling occupied by but one family,” and Eager established that “short-term rentals are not a permitted use for properties restricted as private dwellings.” The court rejected defendant’s attempt to distinguish Eager on the ground that the restriction here did not expressly prohibit commercial use because Eager clearly held “that short-term rental usage violated the private-dwelling restriction independently of any restriction against commercial use[.]” The court next held that plaintiffs did not waive enforcement by failing to object to a DNR boat launch or antique store in the subdivision. Defendant did not show reliance, those uses did not establish “‘a general abandonment of the restrictions,’” and defendant’s adjacent Airbnb imposed a “more serious” violation on plaintiffs through increased risk of noise, traffic, and disruptive behavior. Finally, the court held that defendant waived the laches affirmative defense by failing to raise it in responsive pleadings or a timely motion. Affirmed.

Child’s best interests; Doctrine of anticipatory neglect; Scope of remand; The law-of-the-case doctrine

Holding that the trial court did not clearly err on remand in finding that terminating respondent-father’s parental rights was in the child’s best interests, the court affirmed. It previously remanded for “the trial court to readdress the best interests of the child, specifically the child’s placement with a relative.” The trial court determined that termination “was in the child’s best interests, despite the child’s placement with his mother.” It weighed the evidence, including a “caseworker’s testimony and the original clinical report. The trial court recognized that the child may be harmed by ‘forced’ parenting time with respondent, who the trial court found to have sexually abused the child’s half-sibling by clear and convincing evidence. Although the allegations did not claim that the child in this case was sexually abused,” the court noted that under the doctrine of anticipatory neglect, “‘how a parent treats one child is certainly probative of how that parent may treat other children.’” The court concluded the “trial court did not err when it weighed the factors and considered the child, the placement with his mother, and the possible harm of a relationship with respondent based on the clear and convincing evidence of respondent’s sexual abuse.” Respondent also argued that there was insufficient evidence of statutory grounds to terminate his rights. But this issue was not properly before the court due to “the scope of the remand and the law-of-the case doctrine.” In the prior appeal, it affirmed the trial court’s ruling as to statutory grounds and remanded “only for reconsideration of best interests.”