Prosecutorial misconduct; Victim’s credibility; Appealing to the jury’s sympathy; Jury instruction; Ineffective assistance of counsel; Failure to object to the prosecutor’s questioning & closing argument; Sentencing; MCL 769.12(1)(a); Cruel or unusual punishment; People v Burkett; People v Stovall; People v Lorentzen; People v Bullock; Proportionality

The court concluded that the prosecutor did not commit misconduct, and defendant was not denied the effective assistance of counsel. Finally, he “failed to present any unusual circumstances” rendering his sentence disproportionate. Thus, the court held that “the 25-year minimum mandatory sentence requirement is not unjustifiably disproportionate under the circumstances of this case.” He was convicted of CSC III and IV. He was sentenced as a fourth-offense habitual offender to 25 to 50 years for each CSC III conviction and 3 to 15 years for the CSC IV conviction. The trial court ordered the “sentences to be served concurrently with each other, but consecutively to a prison sentence that defendant was already serving.” He argued, among other things, that the prosecutor improperly vouched for the victim’s credibility. Although he took “issue with the prosecutor’s line of questioning, the record indicates that defense counsel initially cross-examined the victim about discrepancies in her trial testimony, as well as in her statements during the preliminary examination and the forensic interview. Defense counsel asked the victim, ‘Isn’t it true that you and your mother are lying about this incident?’ and the victim responded, ‘[N]o.’ ‘Under the doctrine of invited response, the proportionality of the response, as well as the invitation, must be considered to determine whether the error, which might otherwise require reversal, is shielded from appellate relief.’” The court held that reviewing “the comments in context, the prosecutor proportionately responded to defense counsel’s questioning of the victim’s honestly and credibility by asking if she was being honest in her testimony. The questioning was proper and the prosecutor did not suggest that he had special knowledge of the victim’s honesty.” Defendant did not show “plain error in the challenged testimony.” He next argued “that the prosecutor improperly asked the jury to sympathize with the victim in his closing argument.” The court noted that while “the prosecutor used the term ‘dragged’ to describe the victim needing to be brought in to testify, a prosecutor does not need to use the blandest terms possible to argue the case.” It found that even if the prosecutor had committed plain error, “the trial court instructed the jury that the lawyers’ statements and arguments were not to be considered” evidence. The trial court also “instructed the jury on its responsibility to determine the facts of the case, to apply the law as given by the court, and to not let sympathy or bias influence their decision.” Defendant did not provide “proof that the jury disregarded the court’s instructions or that it convicted him out of sympathy for the victim. He has thus failed to show that he was prejudiced by the prosecutor’s statements.” Affirmed.

Motion to vacate convictions; Whether the admission of subsequently suppressed evidence was harmless beyond a reasonable doubt; People v Anderson

Holding that the admission of subsequently suppressed evidence was not harmless beyond a reasonable doubt, the court reversed the trial court’s denial of defendant-Chapel’s motion to vacate his convictions, and remanded for a new trial. He was convicted of first-degree premediated murder, conspiracy to commit first-degree murder, discharge of a firearm from a vehicle causing death, discharge of a firearm at a building causing death, AWIM, discharge of a firearm at an occupied building, and felony-firearm. The court previously “remanded to the trial court for an evidentiary hearing related to the search and seizure of” his cell phone. On remand, the trial court found that the evidence found on his phone “was seized in violation of the Fourth Amendment and so it suppressed the evidence.” But it denied his motion to vacate his convictions because it “determined that the error was harmless beyond a reasonable doubt[.]” But on appeal, the court found that “the suppressed evidence was the strongest and most compelling evidence linking Chapel to his phone. It was also the strongest and most direct evidence indicating that he had traveled a direct route from Grayton Street to Nashville Street in a moving vehicle, that the vehicle stopped on Nashville Street, and that he then traveled on a direct route back to Grayton Street.” A witness’s “cell tower analysis did not come close to this level of specificity and, by his own admission, was incapable of providing such a specific location analysis. Additionally, the suppressed evidence was the only evidence that Chapel had access to a gun that was consistent with at least one of the guns used in the shooting and that he had searched eleven times for news articles related to the shooting. And, given that the prosecution relied heavily upon the suppressed evidence in her closing and rebuttal argument, we cannot say beyond a reasonable doubt that there is no reasonable possibility that the suppressed evidence may have contributed to Chapel’s convictions.”

Whether a party who assigned their claims for PIP benefits to a third party may still sue to recover those benefits; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp; Real party in interest; MCL 600.2041; One year-back rule; MCL 500.3145(2); Standing; MCL 500.3112; Andary v USAA Cas Ins Co; Relation-back doctrine

In these two cases, the court held that a “plaintiff who has assigned away their claim is not the real party in interest. However, defects in real party in interest status are not necessarily fatal to a lawsuit. The plaintiff may fix such a problem by joining or substituting the proper party, amending their complaint, seeking and obtaining the equitable remedy of rescission, or taking other actions during litigation to cure a real party in interest defect. A plaintiff seeking PIP benefits who cures a real party in interest defect is still subject to the one-year-back rule.” Thus, it affirmed the Court of Appeals’ judgment and disposition in one of the cases, C-Spine, on alternate grounds and remanded “the case to the trial court for proceedings consistent with this opinion.” It noted that its ruling was “without prejudice to either party seeking resolution of other legal issues on remand that have yet to be litigated.” In the other case, Wallace, it vacated the Court of Appeals’ “conclusion that if the ‘mutual rescissions’ were revocations, Wallace’s claims would be barred by the one-year-back rule.” It remanded “to the trial court to consider whether Wallace’s assignments should be equitably rescinded in the first instance.” The issue in these cases was “if and when a patient or medical provider who assigned their claims for [PIP] benefits to a third party may still file a lawsuit to recover those benefits.” The court concluded that (1) both plaintiffs-C-Spine (a medical provider) and Wallace (patient) had standing under MCL 500.3112 “to file their respective lawsuits; however, they were not real parties in interest at the time they filed suit because they had previously assigned away their claims for PIP benefits; (2) defects in real party in interest status may be cured after the filing of a lawsuit; and (3) the one-year-back rule, MCL 500.3145(2), does not affect whether a plaintiff is a real party in interest—though it may bar recovery.” In C-Spine, the court disagreed “with the Court of Appeals’ conclusion that C-Spine remained the real party in interest after assigning away its claims” but it held “that the ‘counter-assignments’ returned C-Spine’s real party in interest status—though they did not alone cure the real party in interest defect in this case.” In Wallace, the court agreed “with the Court of Appeals’ conclusion that Wallace was no longer the real party in interest after assigning away her claims” but it reversed the Court of Appeals’ “opinion to the extent that it held that it would not have been possible for Wallace to rectify this issue.”

Justice Welch concurred fully in the majority opinion but wrote separately to note her “continued belief that several of this Court’s recent no-fault decisions are inconsistent with the reasoning of Andary[.]”

Dissenting, Justice Zahra agreed with two of the majority’s holdings but disagreed with its “holding that defects in the real party in interest may be cured after the filing of a lawsuit.” Thus, he would have affirmed the Court of Appeals in Wallace and reversed it in C-Spine.

Whether a party who assigned their claims for PIP benefits to a third party may still sue to recover those benefits; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; Wallace v Suburban Mobility Auth for Reg’l Transp; Real party in interest; MCL 600.2041; One year-back rule; MCL 500.3145(2); Standing; MCL 500.3112; Andary v USAA Cas Ins Co; Relation-back doctrine

In these two cases, the court held that a “plaintiff who has assigned away their claim is not the real party in interest. However, defects in real party in interest status are not necessarily fatal to a lawsuit. The plaintiff may fix such a problem by joining or substituting the proper party, amending their complaint, seeking and obtaining the equitable remedy of rescission, or taking other actions during litigation to cure a real party in interest defect. A plaintiff seeking PIP benefits who cures a real party in interest defect is still subject to the one-year-back rule.” Thus, it affirmed the Court of Appeals’ judgment and disposition in one of the cases, C-Spine, on alternate grounds and remanded “the case to the trial court for proceedings consistent with this opinion.” It noted that its ruling was “without prejudice to either party seeking resolution of other legal issues on remand that have yet to be litigated.” In the other case, Wallace, it vacated the Court of Appeals’ “conclusion that if the ‘mutual rescissions’ were revocations, Wallace’s claims would be barred by the one-year-back rule.” It remanded “to the trial court to consider whether Wallace’s assignments should be equitably rescinded in the first instance.” The issue in these cases was “if and when a patient or medical provider who assigned their claims for [PIP] benefits to a third party may still file a lawsuit to recover those benefits.” The court concluded that (1) both plaintiffs-C-Spine (a medical provider) and Wallace (patient) had standing under MCL 500.3112 “to file their respective lawsuits; however, they were not real parties in interest at the time they filed suit because they had previously assigned away their claims for PIP benefits; (2) defects in real party in interest status may be cured after the filing of a lawsuit; and (3) the one-year-back rule, MCL 500.3145(2), does not affect whether a plaintiff is a real party in interest—though it may bar recovery.” In C-Spine, the court disagreed “with the Court of Appeals’ conclusion that C-Spine remained the real party in interest after assigning away its claims” but it held “that the ‘counter-assignments’ returned C-Spine’s real party in interest status—though they did not alone cure the real party in interest defect in this case.” In Wallace, the court agreed “with the Court of Appeals’ conclusion that Wallace was no longer the real party in interest after assigning away her claims” but it reversed the Court of Appeals’ “opinion to the extent that it held that it would not have been possible for Wallace to rectify this issue.”

Justice Welch concurred fully in the majority opinion but wrote separately to note her “continued belief that several of this Court’s recent no-fault decisions are inconsistent with the reasoning of Andary[.]”

Dissenting, Justice Zahra agreed with two of the majority’s holdings but disagreed with its “holding that defects in the real party in interest may be cured after the filing of a lawsuit.” Thus, he would have affirmed the Court of Appeals in Wallace and reversed it in C-Spine.

Premises liability; Kandil-Elsayed v F & E Oil, Inc; Trip over a construction barricade leg; A dangerous condition; The law of the case doctrine; Locricchio v Evening News Ass’n

The court held that defendant-Consumers Energy was correctly granted summary disposition because the evidence did not “create a genuine issue of material fact that Consumers breached its duty to plaintiff” in this case arising from her trip over the leg of a construction barricade. The case was before the court for a third time. The trial court on remand “recognized—consistent with the prior appellate rulings in the case—that Consumers owed plaintiff a duty as a premises possessor, and then found no genuine issue of material fact that [it] had not breached that duty.” The court agreed. Even assuming she was Consumers’ invitee “at the time of her fall and was thus owed ‘the highest level of protection under premises liability law,’” Consumers was entitled to judgment as a matter of law. She offered several photos of the barricade and described its exact location in her deposition, “but consistent with the trial court’s findings, nothing in the” photos or her description suggested “the barricade was broken, defective, concealed, or placed in such a way as to create an inherently dangerous condition.” Rather, the photos and her description indicated that she “encountered a large, brightly colored construction barricade that was situated parallel and very near to a building with partial overlap on the concrete portion of the sidewalk. At the time of plaintiff’s fall, it was approximately 12:30 pm on a clear and sunny day, and [she] admitted during her deposition that neither the barricade nor its legs were concealed at that time.” While she submitted a photo “taken sometime after her fall that depicted a partial shadow on a leg of the barricade, much of the leg is untouched by the shadow in the photograph, and plaintiff testified during her deposition that she did not recall seeing any shadows obscuring the legs of the barricade at the time of her fall. Consistent with” the court’s prior determinations, all the evidence indicated that she “was confronted with a ‘typical construction barricade’ when she tripped and fell,” and she did not “show how [it] may have constituted a ‘dangerous condition’ that posed an ‘unreasonable risk of harm’ in this case or how Consumers may have breached its duty to protect her from such[.]” The court also found “no colorable basis for disregarding the law-of-the-case doctrine here” and revisiting whether her “claim sounds in premises liability or ordinary negligence.” Affirmed.

Diversity-of-citizenship jurisdiction; US Const art III, § 2; 28 USC 1332(a); Personal jurisdiction; Beydoun v Wataniya Rests Holding, QSC; Due process concerns as to the exercise of jurisdiction; “Specific” jurisdiction; Whether defendants “purposefully availed themselves of the privilege of acting in” the state where they were sued; Calder v Jones; Walden v Fiore; Blessing v Chandrasekhar; The Emerging Technology Association (ETA); The Open Source Standards Association (OSSA)

The court held in this diversity action that the district court lacked personal jurisdiction over defendants-ETA, OSSA, and various individuals where plaintiff-Carbone failed to establish that there were sufficient contacts between defendants and the forum state (Ohio) to satisfy the Due Process Clause. The presence of ETA and OSSA’s servers (which hosted their websites) there did not constitute “purposeful availment” of the privilege of acting in Ohio where, among other things, “ETA and OSSA contracted with third parties who independently chose to locate the servers in Ohio.” Carbone, who lives in Connecticut, sued ETA and OSSA, two Swiss cryptocurrency organizations, and individual defendants who live in California, Illinois, and Switzerland, for defamation. He alleged that the individual defendants made false statements about him resulting in his removal from the organizations. He filed suit in Ohio because ETA and OSSA maintain websites with servers located there. The district court dismissed his suit for lack of personal jurisdiction. Carbone argued that it had personal jurisdiction over defendants because they “‘transacted business in Ohio, engaged in business acts in Ohio and/or caused a tortious injury through events occurring in Ohio[,]’” through the organizations’ websites. The court first explained the requirements for personal jurisdiction in a diversity action include that exercising it must be “‘in accordance with the Due Process Clause of the Fourteenth Amendment.’” It held that the district court lacked jurisdiction in this case because Carbone did not establish that exercising personal jurisdiction over defendants satisfied due process. He failed to establish specific jurisdiction over them where he did not show that they “purposefully avail[ed] themselves of the privilege of acting in Ohio[.]” They did not live there and never visited the state or contacted anyone in it. Further, the complaint did “not allege that anyone in Ohio read the defamatory statements, and [their] allegedly tortious actions never targeted anyone in Ohio.” The court also found that “mere transmission of information through a server has little, if any, effect in Ohio.” In addition, he failed to show that defendants “themselves created any connections with Ohio.” The court concluded that they “never created a substantial connection with Ohio.” Affirmed.

Moratorium on applications for commercial wind project special land use permits (SLUPs); Mootness; Amendment under the Michigan Zoning Enabling Act (MZEA); Writ of mandamus

In this case involving a moratorium on applications for commercial wind project SLUPs, the court dismissed the appeal as moot. Defendant-Township of Speaker challenged the trial court’s grant of a writ of mandamus to plaintiff (doing business as Liberty Power), “requiring that its SLUP application be considered by Speaker by a date certain, as well the trial court’s holdings that the moratorium should have been passed by amendment to Speaker’s zoning ordinance, and did not advance a legitimate governmental purpose.” Speaker asserted “that the trial court erred in: (1) holding that the moratorium required an amendment under the MZEA; (2) determining the moratorium did not advance a legitimate governmental purpose; and (3) issuing the writ of mandamus.” Among other things, Liberty asserted that the appeal was moot. The court failed “to see any actual case or controversy with regard to whether Speaker lawfully enacted its initial moratorium for a legitimate governmental purpose. Speaker heard and denied Liberty’s SLUP application, and just days later, enacted a moratorium by referendum in accordance with the MZEA, which is what Liberty claimed was required.” Thus, it was “unclear what legal effect a ruling on these issues would have on the existing controversy.” Speaker argued the issue was not moot, asserting “that it expects Liberty to appeal the denial of its SLUP application[.]” But the court noted that “any potential appeal of Speaker’s denial of Liberty’s application does not alter this Court’s decision, as we should only consider the effect of our ruling on the existing controversy.” Speaker also asserted “that, even if moot, the issue of whether a police power moratorium is valid in these circumstances is one of public significance that is likely to recur, yet evade judicial review, citing the fact that Liberty raised the issue in another lawsuit[.]” However, merely “stating that municipalities often adopt moratoria outside of zoning ordinance amendments, citing to a federal district court case in which a municipality used its police power to adopt a moratorium and to the fact that Liberty has previously made this argument, has not convinced us that recurrence is likely, as opposed to simply possible. Michigan caselaw, albeit unpublished, has addressed this issue, and as Speaker argues, this issue may arise in a subsequent appeal of the decision denying the SLUP application.” The court was also not convinced “that this is a matter of public significance.” Likewise, it found Speaker’s argument as to the writ of mandamus moot.

Premises liability; Kandil-Elsayed v F & E Oil, Inc; Trip over a construction barricade leg; A dangerous condition; The law of the case doctrine; Locricchio v Evening News Ass’n

The court held that defendant-Consumers Energy was correctly granted summary disposition because the evidence did not “create a genuine issue of material fact that Consumers breached its duty to plaintiff” in this case arising from her trip over the leg of a construction barricade. The case was before the court for a third time. The trial court on remand “recognized—consistent with the prior appellate rulings in the case—that Consumers owed plaintiff a duty as a premises possessor, and then found no genuine issue of material fact that [it] had not breached that duty.” The court agreed. Even assuming she was Consumers’ invitee “at the time of her fall and was thus owed ‘the highest level of protection under premises liability law,’” Consumers was entitled to judgment as a matter of law. She offered several photos of the barricade and described its exact location in her deposition, “but consistent with the trial court’s findings, nothing in the” photos or her description suggested “the barricade was broken, defective, concealed, or placed in such a way as to create an inherently dangerous condition.” Rather, the photos and her description indicated that she “encountered a large, brightly colored construction barricade that was situated parallel and very near to a building with partial overlap on the concrete portion of the sidewalk. At the time of plaintiff’s fall, it was approximately 12:30 pm on a clear and sunny day, and [she] admitted during her deposition that neither the barricade nor its legs were concealed at that time.” While she submitted a photo “taken sometime after her fall that depicted a partial shadow on a leg of the barricade, much of the leg is untouched by the shadow in the photograph, and plaintiff testified during her deposition that she did not recall seeing any shadows obscuring the legs of the barricade at the time of her fall. Consistent with” the court’s prior determinations, all the evidence indicated that she “was confronted with a ‘typical construction barricade’ when she tripped and fell,” and she did not “show how [it] may have constituted a ‘dangerous condition’ that posed an ‘unreasonable risk of harm’ in this case or how Consumers may have breached its duty to protect her from such[.]” The court also found “no colorable basis for disregarding the law-of-the-case doctrine here” and revisiting whether her “claim sounds in premises liability or ordinary negligence.” Affirmed.

Prescriptive easement; Astemborski v Manetta

The court held that the trial court did not err by finding plaintiffs established a prescriptive easement over the driveway between the parties’ homes and in determining its scope. On appeal, the court rejected defendants’ argument that the easement only included the use of the driveway to drive to and from the lake, and that parking and exiting the vehicles exceeded that scope. Testimony from plaintiffs and their neighbor established that “the driveway had been in use by plaintiffs and their predecessors for at least 31 years, and that plaintiffs had previously parked their cars on the land as a driveway with the ability to get in and out of their vehicles.” In addition, “entering and exiting a vehicle were incidental uses of the driveway easement because the easement can be informed by the customary use of the easement holder. The trial court was empowered to make these and other fact-based findings, and we must defer to those findings so long as they have evidentiary support, which they did here.” Affirmed.

Moratorium on applications for commercial wind project special land use permits (SLUPs); Mootness; Amendment under the Michigan Zoning Enabling Act (MZEA); Writ of mandamus

In this case involving a moratorium on applications for commercial wind project SLUPs, the court dismissed the appeal as moot. Defendant-Township of Speaker challenged the trial court’s grant of a writ of mandamus to plaintiff (doing business as Liberty Power), “requiring that its SLUP application be considered by Speaker by a date certain, as well the trial court’s holdings that the moratorium should have been passed by amendment to Speaker’s zoning ordinance, and did not advance a legitimate governmental purpose.” Speaker asserted “that the trial court erred in: (1) holding that the moratorium required an amendment under the MZEA; (2) determining the moratorium did not advance a legitimate governmental purpose; and (3) issuing the writ of mandamus.” Among other things, Liberty asserted that the appeal was moot. The court failed “to see any actual case or controversy with regard to whether Speaker lawfully enacted its initial moratorium for a legitimate governmental purpose. Speaker heard and denied Liberty’s SLUP application, and just days later, enacted a moratorium by referendum in accordance with the MZEA, which is what Liberty claimed was required.” Thus, it was “unclear what legal effect a ruling on these issues would have on the existing controversy.” Speaker argued the issue was not moot, asserting “that it expects Liberty to appeal the denial of its SLUP application[.]” But the court noted that “any potential appeal of Speaker’s denial of Liberty’s application does not alter this Court’s decision, as we should only consider the effect of our ruling on the existing controversy.” Speaker also asserted “that, even if moot, the issue of whether a police power moratorium is valid in these circumstances is one of public significance that is likely to recur, yet evade judicial review, citing the fact that Liberty raised the issue in another lawsuit[.]” However, merely “stating that municipalities often adopt moratoria outside of zoning ordinance amendments, citing to a federal district court case in which a municipality used its police power to adopt a moratorium and to the fact that Liberty has previously made this argument, has not convinced us that recurrence is likely, as opposed to simply possible. Michigan caselaw, albeit unpublished, has addressed this issue, and as Speaker argues, this issue may arise in a subsequent appeal of the decision denying the SLUP application.” The court was also not convinced “that this is a matter of public significance.” Likewise, it found Speaker’s argument as to the writ of mandamus moot.