Motion for a mistrial; Prosecutorial misconduct; Harmless error; Dismissal of a juror & replacement with an alternate; People v Tate; Right to a fair, impartial, & unanimous jury; Jury instructions after the replacement; MCR 6.411; MCL 768.18(1); Distinguishing People v Hunter; Failure to give an alternate juror instruction consistent with M Crim JI 3.11a

The court held that defendant did not establish outcome-determinative error related to the denial of his motion for a mistrial. Further, it concluded that the trial court did not abuse its discretion in dismissing a juror during deliberations due to her scheduling conflict. Finally, while it erred in regard to instructing the jury afterward, defendant was not entitled to reversal due to lack of prejudice. He was convicted of second-degree murder, FIP, CCW, and felony-firearm. His motion for a mistrial followed the prosecutor questioning defendant’s wife about whether she conducted a Google search about removing gunpowder residue from hands. The court determined that it did not have to “decide whether the prosecutor erred by asking the question, because” defendant did not establish that it “caused outcome-determinative prejudice.” It noted that only one “question was asked, it was isolated and did not lead to further related inquiry, it was never actually answered, and it was not referenced in the prosecutor’s closing arguments.” It further found that “the weight of the properly admitted evidence makes it unlikely that the question affected the outcome. This was not a particularly close case. Two witnesses who knew both defendant and the victim identified defendant in the surveillance footage that showed the shooting, [his] vehicle resembled the one in the surveillance video, and photographs by a license plate reader and cell-tower mapping data placed [him] and his vehicle near the scene of the” murder. He also “sent a video of the shooting to a friend and told other friends that he needed to ‘disappear ASAP,’ which was evidence of consciousness of guilt.” As to the excused juror, MCL 768.18(1) permits a juror to be excused “from service ‘[s]hould any condition arise during the trial of the cause which in the opinion of the trial court’ justifies excusal.” Juror two disclosed her plans to attend a birthday party in New York “during voir dire and, in response to questioning by the trial court, stated that she could not change her plans or make alternate arrangements.” Defendant failed to show prejudice. As to instructing the newly constituted jury, “jurors were given an alternate juror instruction directing deliberations to begin anew,” and they deliberated for about “an hour before reaching a unanimous verdict[.]” Affirmed.

Resisting or obstructing a police officer (R&O); Jury instructions; Lawfulness of warrantless arrest; Probable cause; M Crim JI 13.5; Waiver; Express approval of jury instructions; Ineffective assistance of counsel; Prejudice; Collective knowledge of police; People v Nguyen

The court held that defendant waived his challenge to the R&O jury instructions by expressly approving them and failed to establish ineffective assistance of counsel based on counsel’s failure to request a probable-cause instruction. Police went to his apartment to arrest him based on a woman’s allegations of sexual assault. Defendant refused to exit his vehicle because the officers did not have an arrest warrant, and after approximately 20 minutes of unsuccessful attempts to obtain his compliance, officers broke a window and removed him using a taser. The jury acquitted defendant of the CSC charges but convicted him of R&O. He argued that the jury should have been instructed that it had to determine whether the officers had probable cause for the warrantless arrest and should have received M Crim JI 13.5 defining probable cause. But defense counsel expressly agreed to the instructions, which constituted an affirmative approval and “waived any claim of error regarding the jury instructions, precluding judicial review.” His ineffective-assistance claim also failed on prejudice. Before trial, the trial court found probable cause based on the collective knowledge of the officers investigating the sexual-assault allegations, and evidence concerning those allegations was presented to the jury. Although the jury ultimately acquitted defendant of the underlying CSC charges, the court emphasized the substantial difference between probable cause and proof beyond a reasonable doubt. The record gave no reasonable basis to conclude that the jury would have found the arrest unsupported by probable cause had M Crim JI 13.5 been given. Defendant therefore failed to show a reasonable probability of a different outcome. Affirmed.

Second-degree child abuse; Void for vagueness challenge to MCL 750.136b(3); People v Lawhorn; People v Gregg; Sufficiency of the evidence for a witness intimidation conviction; MCL 750.122; Unanimity jury instruction; People v Chelmicki; People v Cooks; Statute providing alternative means of committing an offense; People v Gadomski; Instructions on second-degree child abuse; Deviation from M Crim JI 17.20a & 17.20b; Ineffective assistance; Failure to raise a futile objection

The court held that the second-degree child-abuse statute (MCL 750.136b(3)) is not unconstitutionally vague, and that there was sufficient evidence to support defendant’s witness intimidation conviction. It also rejected his challenges to the jury instructions and his ineffective assistance of counsel claims. His 11-year-old son was the victim. The court noted that it “addressed and rejected the argument that the term ‘reasonable force’ is unconstitutionally vague under MCL 750.136b” in Gregg and Lawhorn. It held in Gregg “that the child-abuse statute was not unconstitutionally vague and clearly provides fair notice to persons of ordinary intelligence of the conduct proscribed, namely, an act that causes serious physical or mental harm to a child or an act that is cruel to the child.” The court further found that defendant’s claim the statute was unconstitutional as applied to him failed “because his actions of pulling the child off the bed and repeatedly beating the child with a belt, causing severe bruising, clearly falls within the conduct prohibited under MCL 750.136b(3).” As to witness intimidation, “viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to support defendant’s conviction under MCL 750.122 because [he] intimidated the child as an attempt to prevent him from speaking truthfully to the DHHS and police about defendant’s abuse.” Defendant’s jury instruction arguments also failed. The court determined that a specific unanimity instruction was not required where “the prosecution presented a single incident, and the jury was not required to make a unanimous decision on what theory the incident fell under.” Thus, the trial court did not err in only giving a general unanimity instruction. As to the second-degree child abuse instructions, it “was under no obligation to follow the model jury instructions verbatim” and it fully instructed the jury on the applicable law and theories of the offense “in an understandable manner that was not confusing or duplicative.” Finally, defense counsel was not ineffective for failing to raise futile objections to the instructions. Affirmed.

No-fault personal protection insurance (PIP) benefits; Insurance medical examination physician testimony; MCL 500.3151(2)(a); MCL 600.2169; Photograph testimony; MRE 401, 402, & 701; Harmless error; MCR 2.613(A); Partial directed verdict; Physical-therapy bills; Causation

The court held that MCL 500.3151 did not bar defendant-insurer’s orthopedic expert from testifying at trial. Although his testimony about a photograph of plaintiff’s vehicle was inadmissible, the error was harmless, and any error in the partial directed verdict on physical-therapy bills was also harmless. Plaintiff-insured sought PIP benefits for chiropractic treatment, physical therapy, and medical mileage following an auto accident. Defendant stopped paying benefits after an orthopedic surgeon (Dr. D) examined plaintiff and concluded that she had not sustained a new injury or aggravation of a preexisting condition in the accident. Plaintiff argued that MCL 500.3151 barred his trial testimony because he did not share the same specialty as the providers whose treatment was at issue. The court rejected this argument because “nothing in the plain language of MCL 500.3151 speaks to what evidence or testimony is or is not admissible at trial.” The statute governs the qualifications of physicians conducting insurance medical examinations, while MCL 600.2169 expressly governs expert testimony in medical-malpractice cases. The court next agreed that Dr. D’s testimony that the lack of visible vehicle damage suggested an “extremely minor event” was inadmissible. Although it constituted lay rather than expert opinion, it was not helpful in determining a fact at issue and was irrelevant. But the error was harmless given the photograph itself was admitted, the brevity of the testimony, the lack of reliance on it in closing argument, and contrary testimony from plaintiff’s expert. Finally, the jury found that plaintiff’s injury did not arise from the ownership, operation, maintenance, or use of a motor vehicle. Thus, because causation remained lacking, “any error by the trial court with regard to what bills were compensable was harmless.” Affirmed.

No-fault personal protection insurance (PIP) benefits; Insurance medical examination physician testimony; MCL 500.3151(2)(a); MCL 600.2169; Photograph testimony; MRE 401, 402, & 701; Harmless error; MCR 2.613(A); Partial directed verdict; Physical-therapy bills; Causation

The court held that MCL 500.3151 did not bar defendant-insurer’s orthopedic expert from testifying at trial. Although his testimony about a photograph of plaintiff’s vehicle was inadmissible, the error was harmless, and any error in the partial directed verdict on physical-therapy bills was also harmless. Plaintiff-insured sought PIP benefits for chiropractic treatment, physical therapy, and medical mileage following an auto accident. Defendant stopped paying benefits after an orthopedic surgeon (Dr. D) examined plaintiff and concluded that she had not sustained a new injury or aggravation of a preexisting condition in the accident. Plaintiff argued that MCL 500.3151 barred his trial testimony because he did not share the same specialty as the providers whose treatment was at issue. The court rejected this argument because “nothing in the plain language of MCL 500.3151 speaks to what evidence or testimony is or is not admissible at trial.” The statute governs the qualifications of physicians conducting insurance medical examinations, while MCL 600.2169 expressly governs expert testimony in medical-malpractice cases. The court next agreed that Dr. D’s testimony that the lack of visible vehicle damage suggested an “extremely minor event” was inadmissible. Although it constituted lay rather than expert opinion, it was not helpful in determining a fact at issue and was irrelevant. But the error was harmless given the photograph itself was admitted, the brevity of the testimony, the lack of reliance on it in closing argument, and contrary testimony from plaintiff’s expert. Finally, the jury found that plaintiff’s injury did not arise from the ownership, operation, maintenance, or use of a motor vehicle. Thus, because causation remained lacking, “any error by the trial court with regard to what bills were compensable was harmless.” Affirmed.

Special land use application; Whether the application was complete under the Zoning Ordinance (ZO); Mandamus; Clear, legal right requirement; Applicability of an amended ZO; Bad faith; Rodney Lockwood & Co v City of Southfield; Willingham v Dearborn; Validity of the amended ZO; Compliance with MCL 125.3205 (extraction of natural resources); Metamora Twp v American Aggregates of MI, Inc (Unpub)

The court held that the trial court did not abuse its discretion in denying plaintiff a writ of mandamus because plaintiff failed to show it had a clear, legal right to a public hearing. There was also no error in concluding that the amended ZO applied to its special land use “application because the amendments were not made in bad faith and were consistent with MCL 125.3205.” Plaintiff wanted to develop and operate a gravel mine on property in defendant-Grant Township. It sought a writ of mandamus directing defendant-Township Zoning Administrator to process its special land use application and directing defendant-Grant Township Planning Commission to hold a hearing and make a determination on the application pursuant to the prior version of the Township ZO. On appeal, the court first held that “the trial court did not err in finding that necessary items were missing from plaintiff’s application and it was incomplete.” Among other things, the reclamation plan did “not include the necessary information on phasing or timing. The lack of this required information alone was sufficient to deem the application incomplete and not ready for immediate public hearing under the original” ZO. Because it was incomplete under the ZO then in effect, plaintiff did not show a clear legal right to its requested relief. The court also concluded that the record did not support its claim that the amended ZO was enacted in bad faith. The Township had last “received an application for a special use permit for earth removal, quarrying, gravel processing, and mining” in 2003. MCL 125.3205 was amended in 2011 “to limit local governments’ zoning authority over mining projects unless very serious consequences would result.” The Township sought the advice of counsel after receiving plaintiff’s initial application, and was advised that the ZO “should be amended to better conform with the law.” The fact that “plaintiff’s application was a catalyst for” the decision to amend the ZO did “not establish bad faith.” The court noted that the amended ZO provided “a clearer process” for considering applications, and expressly addressed the changes in the law. Finally, the court agreed with the trial court that the amended ZO “was valid and complied with MCL 125.3205.” Affirmed.

Due process; Advice of appellate rights; MCR 3.965(B)(15) & 3.973(G)(2)-(4); Parenting time suspension; MCL 712A.13a(13); Notice of the termination trial & goal change to adoption; Reasonable reunification efforts; Accommodation of a parent’s intellectual disability & of mental-health conditions; Lack of substance-abuse services; Termination under § 19b(3)(j); Child’s best interests; In re White

The court held that (1) respondent-mother did not show plain error as to her due process violation claims, (2) the DHHS made reasonable reunification efforts as to both parents, (3) § (j) was established as to respondent-father, and (4) terminating his rights was in the child’s best interests. Thus, it affirmed the termination order as to both parents. Among her due process claims, the mother asserted that “the trial court did not properly advise her of her appellate rights following” two hearings. The record showed that after a preliminary hearing on 8/21/24, it entered an order that authorized the DHHS’s petition, stated that the child was placed in the DHHS’s “care, and stated that the placement ‘shall continue pending [] resumption of the preliminary hearing.’ Included with that order was a notice that advised respondents of their right to appeal ‘any order removing [their] child[] from [their] care and custody.’” This document showed that, “in compliance with MCR 3.965(B)(15), the trial court advised [the] mother of her right to appeal following the removal of the child from her care. And nothing in MCR 3.965(B)(15) requires that such notice be given more than once following the child’s removal, even if the preliminary hearing proceeds over multiple dates.” The record also showed that, after the 12/24 hearing, “the trial court’s order of disposition was accompanied by a notice advising respondents of their right to appeal ‘an initial order of disposition following adjudication[,]’” and their other “appellate rights in compliance with MCR 3.973(G)(2)-(4).” The court further held that, given the extensive trial testimony about the accommodations made in the services provided to the mother, “the trial court did not clearly err by finding that the steps” the DHHS took to facilitate reunification were reasonable. As to the father, without his “full participation in mental-health services and corresponding demonstrated benefit from” them, the DHHS “was limited in the services it could aid [him] with, even with accommodations.” And given his “insistence that he relied on marijuana to ensure the safety of those around him and his unwillingness to fully engage in other mental-health services, it” was not clear he would have “engaged in, let alone benefited from, substance-abuse services had” they been offered.

Special land use application; Whether the application was complete under the Zoning Ordinance (ZO); Mandamus; Clear, legal right requirement; Applicability of an amended ZO; Bad faith; Rodney Lockwood & Co v City of Southfield; Willingham v Dearborn; Validity of the amended ZO; Compliance with MCL 125.3205 (extraction of natural resources); Metamora Twp v American Aggregates of MI, Inc (Unpub)

The court held that the trial court did not abuse its discretion in denying plaintiff a writ of mandamus because plaintiff failed to show it had a clear, legal right to a public hearing. There was also no error in concluding that the amended ZO applied to its special land use “application because the amendments were not made in bad faith and were consistent with MCL 125.3205.” Plaintiff wanted to develop and operate a gravel mine on property in defendant-Grant Township. It sought a writ of mandamus directing defendant-Township Zoning Administrator to process its special land use application and directing defendant-Grant Township Planning Commission to hold a hearing and make a determination on the application pursuant to the prior version of the Township ZO. On appeal, the court first held that “the trial court did not err in finding that necessary items were missing from plaintiff’s application and it was incomplete.” Among other things, the reclamation plan did “not include the necessary information on phasing or timing. The lack of this required information alone was sufficient to deem the application incomplete and not ready for immediate public hearing under the original” ZO. Because it was incomplete under the ZO then in effect, plaintiff did not show a clear legal right to its requested relief. The court also concluded that the record did not support its claim that the amended ZO was enacted in bad faith. The Township had last “received an application for a special use permit for earth removal, quarrying, gravel processing, and mining” in 2003. MCL 125.3205 was amended in 2011 “to limit local governments’ zoning authority over mining projects unless very serious consequences would result.” The Township sought the advice of counsel after receiving plaintiff’s initial application, and was advised that the ZO “should be amended to better conform with the law.” The fact that “plaintiff’s application was a catalyst for” the decision to amend the ZO did “not establish bad faith.” The court noted that the amended ZO provided “a clearer process” for considering applications, and expressly addressed the changes in the law. Finally, the court agreed with the trial court that the amended ZO “was valid and complied with MCL 125.3205.” Affirmed.