Right to speedy trial; Barker v Wingo factors; Other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Authentication of Snapchat messages; MRE 901; Cumulative error; Mandatory life without parole (LWOP); MCL 750.520b(2)(c); Cruel or unusual punishment; People v Parks; People v Taylor; Prior-conviction exception to the general Apprendi v New Jersey rule; Almendarez-Torres v United States

The court held that defendant’s approximately 26-month pretrial detention did not violate his speedy-trial rights, that the trial court properly admitted his prior CSC II conviction and Snapchat messages, and that his mandatory LWOP sentences did not violate the state or federal constitutions. He was convicted of six counts of CSC I and accosting a child for an immoral purpose based on sexual conduct with a child under 13. On appeal, the court applied the Barker factors to his speedy-trial claim. The length of the delay favored defendant and created a presumption of prejudice. But the reasons for delay and his assertion of the right weighed against him, while the prejudice factor weighed slightly against him because he did not show impairment of his defense. The court concluded that “several delays were outside of the prosecution’s control, defendant complained about delays but did not file a motion, and he then requested new counsel on the eve of trial.” Thus, the prosecution overcame the presumption of prejudice. As to defendant’s 2002 CSC II conviction involving another child under 13, the court held that it was admissible under MCL 768.27a. Although approximately 20 years separated the offenses, defendant spent 12 of those years incarcerated, and the prior and current offenses shared relevant similarities. The prior conviction “may have been prejudicial, but it was not unfairly so,” particularly because the jury did not hear inflammatory details of the earlier offense. The Snapchat messages were also sufficiently authenticated under MRE 901 through the victim’s testimony and their content. The “prosecution ‘made a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be,’” while disputes about whether defendant actually sent the messages went to weight rather than admissibility. Because defendant established no errors, his cumulative-error claim failed. Finally, the court declined to extend Parks and Taylor to invalidate his mandatory LWOP sentences. Although the qualifying prior CSC offense occurred when defendant was approximately 18, the six sentencing offenses occurred when he was about 37 or 38. “The concerns for adolescent brain development expressed in Parks and Taylor simply do not apply here when defendant was in his late 30s when he committed the sentencing offense.” The statute enhanced punishment for his adult conduct rather than imposing LWOP for the adolescent offense itself. His federal challenge also failed under the prior-conviction exception to Apprendi, and the prior conviction itself necessarily established that its victim was under 13. Affirmed.

Self-defense jury instructions; M Crim JI 7.16 (duty to retreat); Lack of evidence to support the instruction; Ineffective assistance of counsel; Failure to request M Crim JI 7.16; Futile requests; Admission of a to-do list found in defendant’s car; Whether the list constituted other acts evidence; Prior statement of defendant’s intent; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; Moot issue as to a no-contact order; Failure to include the order in the judgment of sentence; MCR 6.427(9); Sentencing; Acquitted conduct; People v Beck; People v Brown; Unlawfully driving away a motor vehicle (UDAA)

The court held that the trial court did not plainly err in its jury instructions on self-defense and not giving M Crim JI 7.16 or 7.16a because they were not supported by the evidence. Further, it did not abuse its discretion in failing to exclude the to-do-list found in defendant’s car, and it did not improperly rely on the acquitted armed robbery charge in sentencing him. Thus, the court affirmed his second-degree murder and UDAA convictions, and his sentences of 37 to 60 years for murder and 5 years for UDAA. As to the jury instructions, “providing M Crim JI 7.16 on the duty to retreat was not supported by defendant’s own testimony.” While self-defense and whether he “had a duty to retreat was arguably applicable when the victim” (C) approached the driver’s side of defendant’s girlfriend’s (G) “vehicle with a knife and defendant confronted him, [C] then dropped his weapon and retreated to his own vehicle after being stabbed by defendant. From that point forward, defendant had no reasonable belief that he or [G] was in danger of being killed or faced imminent great bodily harm. Based on defendant’s own testimony about what happened that evening, after [C] retreated, [G] pursued him, she entered [his] vehicle, and defendant then pulled [C] from his own vehicle. [G] then stabbed [C] to death. On these facts, an instruction on the duty to retreat was inappropriate and, even if given, very likely would not have benefited defendant at trial.” Further, defense counsel was not ineffective for failing to make a futile request for the instruction. As to the admission of the to-do list, the court first concluded that it did not constitute other acts evidence and thus, the trial court did not abuse its discretion in failing to exclude it under MRE 404(b). Next, while it did not name C, it “was relevant to defendant’s motive. The statements in the to-do list suggested that [he] had a motive to kill both [G] and individuals with whom she was ‘sliding,’ i.e., having sex.” The court concluded that a “reasonable jury could easily infer that if defendant was willing to kill a person and [G] for having consensual sex, then [he] would similarly be motivated to kill a person who allegedly raped” G. Thus, the list “was highly probative of defendant’s motive for murder, and” the court found “that it was not unfairly prejudicial.”

Double jeopardy; AWIGBH & second-offense aggravated domestic violence; No-contest plea; Separate acts; Abstract-legal-elements test; MCL 750.84(3); Retroactivity; Sentencing; OV 1; MCL 777.31(1)(d); OV 4; MCL 777.34(1)(a); OV 7; MCL 777.37(1)(a); OV 8; MCL 777.38(1)(a); OV 12; MCL 777.42(1)(d)

The court held that defendant’s convictions for AWIGBH and second-offense aggravated domestic violence did not violate double-jeopardy protections, MCL 750.84(3) did not apply retroactively, and the challenged OV scores were proper. He pled no contest to the offenses following a violent assault on his wife. On appeal, defendant argued that the prosecution improperly divided a single domestic-violence incident into two crimes. The court disagreed, finding record evidence of separate assaults. Witnesses saw defendant first punch the victim in the face and knock out a tooth, conduct supporting aggravated domestic violence. He then dragged her away and, “with a new intent,” continued assaulting her, including with a shoe, supporting AWIGBH. Even assuming a single act, there was no double-jeopardy violation. AWIGBH required an intent to inflict great bodily harm that aggravated domestic violence did not, while aggravated domestic violence required a serious injury and domestic relationship that AWIGBH did not. “Because each offense requires an element that the other does not, defendant’s conviction did not violate double-jeopardy protections.” The court further held that MCL 750.84(3), which expressly permits punishment for other offenses arising from the same conduct, did not apply to these pre-amendment offenses. Because the provision “affects an individual’s substantial rights[,] [it] is not remedial, and courts should not apply it retroactively.” As to sentencing, 10 points for OV 1 were supported because defendant used a shoe as a weapon. Ten points for OV 4 were proper given evidence that the victim suffered nightmares, fear, social difficulties, and underwent counseling “for years.” The 50-point OV 7 score was supported by excessive brutality where defendant “beat the victim well beyond what was necessary to support the conviction.” Fifteen points for OV 8 were proper because he dragged her away from people who could intervene and into greater danger. Finally, five points for OV 12 were warranted because he contemporaneously committed unlawful imprisonment by restraining the victim to facilitate the AWIGBH. Affirmed.

Sentencing; Procedural reasonableness; 18 USC § 3553(a); Five-level pattern enhancement (USSG § 2G2.2(b)(5)); United States v Surratt; Reliance on Guidelines commentary; Harmless error; Alleged speculation that defendant would reoffend; Consideration of defendant’s jail messages; Substantive reasonableness; Imposition of the statutory maximum; Effect of a within-Guidelines sentence; Sentence exceeding the government’s recommendation

The court held that any error in the district court applying the pattern enhancement in sentencing defendant-Dodd was harmless “given the unique circumstances” of this case, and that the district court did not abuse its discretion in considering his “messages describing how he would abuse” the infant victims upon release. It also rejected his substantive reasonableness challenge to his statutory maximum, within-Guidelines 50-year sentence. He was convicted of possessing and conspiring to produce child pornography. In calculating his Guidelines, “the district court included a five-level enhancement for engaging in a ‘pattern of activity involving the sexual abuse or exploitation of a minor’”— § 2G2.2(b)(5). Challenging the procedural reasonableness of his sentence, he argued that the district court improperly relied on Guidelines commentary. But the court concluded that it did not need to decide whether the district court erred in doing so because any such error was harmless here. “Dodd’s Guidelines range did not change with the addition of the pattern enhancement.” And the district court’s decision to apply it “did not mean that it considered information about Dodd that otherwise would have been off limits.” As part of his procedural reasonableness challenge, he also asserted “the district court abused its discretion by improperly considering the risk Dodd posed to the infant victims upon his release[,]” contending that this was improper speculation. As part of § 3553(a)(2), “the district court properly considered whether the record demonstrated if Dodd is likely to commit further crimes.” It interpreted messages he sent while already in prison “expressing his desire to sexually abuse these infants, combined with the fact that he actually did coerce [a woman] into abusing them, as an indicator that he poses a risk to the public. And it did not abuse its discretion by considering that factor at sentencing.” His substantive reasonableness challenge also failed. His within-Guidelines sentence was presumed to be substantively reasonable, and “the district court explained that several aspects of Dodd’s offense made it particularly concerning.” Further, it did not abuse its discretion in imposing “a higher sentence than the government recommended.” Affirmed.

Medical malpractice; Nursing standard of care; Expert witness qualification; MRE 702; MCL 600.2169(2); Local standard of care; Cox v Board of Hosp Managers for City of Flint; Decker v Rochowiak; Directed verdict

The court held that the trial court did not abuse its discretion by disqualifying plaintiff’s proposed nursing expert and properly granted defendant-nursing home a directed verdict after plaintiff was left without expert testimony establishing the applicable standard of care (SOC). Plaintiff’s decedent fell and hit her head while attempting to use the bathroom without assistance during a short-term rehabilitation stay at defendant’s facility and later died. Plaintiff sought to qualify M, an Indiana RN who had worked primarily in pediatric hospital settings and had never worked in a nursing home. On appeal, the court first rejected plaintiff’s assertion that expert testimony was unnecessary for some of her theories because “‘[t]he standard of care required of a nurse must be established by expert testimony’” where an ordinary layperson cannot evaluate the skill and competence required. It also held that plaintiff waived her argument for application of a national rather than local SOC. As to M’s qualifications, the court concluded that the trial court erred to the extent it differentiated the applicable standard based simply on whether nurses worked in a hospital or nursing home. The applicable SOC “is based on the locality in which the alleged malpractice occurred, not the type of facility.” But that error did not require reversal because M failed to demonstrate familiarity with the relevant local standard. She conceded that she had “done virtually nothing to familiarize [herself] with the standard and ordinary practices in nursing homes anywhere,” had “virtually no familiarity with nursing practices in nursing homes,” and had no knowledge of nursing-home practices in Michigan. She also did not compare the Indiana communities in which she practiced with Southfield, where defendant’s facility was located. As a result, M “could not establish any familiarity with the local [SOC] and thus could not reliably testify about the [SOC] applicable to this case.” Without qualified expert testimony, plaintiff could not establish her malpractice claim and the directed verdict was proper. Affirmed.

Medical malpractice; Nursing standard of care; Expert witness qualification; MRE 702; MCL 600.2169(2); Local standard of care; Cox v Board of Hosp Managers for City of Flint; Decker v Rochowiak; Directed verdict

The court held that the trial court did not abuse its discretion by disqualifying plaintiff’s proposed nursing expert and properly granted defendant-nursing home a directed verdict after plaintiff was left without expert testimony establishing the applicable standard of care (SOC). Plaintiff’s decedent fell and hit her head while attempting to use the bathroom without assistance during a short-term rehabilitation stay at defendant’s facility and later died. Plaintiff sought to qualify M, an Indiana RN who had worked primarily in pediatric hospital settings and had never worked in a nursing home. On appeal, the court first rejected plaintiff’s assertion that expert testimony was unnecessary for some of her theories because “‘[t]he standard of care required of a nurse must be established by expert testimony’” where an ordinary layperson cannot evaluate the skill and competence required. It also held that plaintiff waived her argument for application of a national rather than local SOC. As to M’s qualifications, the court concluded that the trial court erred to the extent it differentiated the applicable standard based simply on whether nurses worked in a hospital or nursing home. The applicable SOC “is based on the locality in which the alleged malpractice occurred, not the type of facility.” But that error did not require reversal because M failed to demonstrate familiarity with the relevant local standard. She conceded that she had “done virtually nothing to familiarize [herself] with the standard and ordinary practices in nursing homes anywhere,” had “virtually no familiarity with nursing practices in nursing homes,” and had no knowledge of nursing-home practices in Michigan. She also did not compare the Indiana communities in which she practiced with Southfield, where defendant’s facility was located. As a result, M “could not establish any familiarity with the local [SOC] and thus could not reliably testify about the [SOC] applicable to this case.” Without qualified expert testimony, plaintiff could not establish her malpractice claim and the directed verdict was proper. Affirmed.

Termination under §§ 19b(3)(b)(i) & (k)(ix); Ineffective assistance of counsel; In re Casto; Jurisdiction over the child; MCL 712A.2(b)(1) & (2); Doctrine of anticipatory neglect; In re Pacyga; Child’s best interests

The court held that respondent-father failed to show that he was deprived of the effective assistance of counsel in the trial court, and that sufficient evidence established statutory grounds for jurisdiction. Further, the trial court did not clearly err in finding that §§ (b)(i) and (k)(ix) justified terminating his parental rights, or in relying on the doctrine of anticipatory neglect. Finally, it did not clearly err in finding that termination was in the child’s (J) best interests. Thus, the court affirmed the termination order. It first determined that the “trial court did not err by concluding that respondent did not establish that trial counsel’s performance fell below an objective standard of reasonableness.” The record showed “that trial counsel, after conducting a reasonable and thorough investigation of the case guided by her unique experience in forensic-interview protocols, chose to pursue a strategy of challenging the veracity of” the child’s half-brother’s (C) “statements by vigorously cross-examining” the forensic interviewer. The court also found no merit in respondent’s ineffective assistance claim related to redaction of the medical records. It was “clear that trial counsel did object to the admission of the documents” but the trial court denied the objection. And trial “counsel’s decisions regarding the redaction of the medical records stemmed from legitimate trial strategy.” As to jurisdiction under MCL 712A.2(b)(2), C “confirmed that [J] was made to watch pornography with” him and someone else. Further, J’s mother testified to finding bruising on J’s labia, and that when J returned to her after a 10-day visit with respondent, J “had a ‘huge bruise’ on the left side of her face” that looked like she had been punched and her lip was bleeding. A CPS supervisor’s testimony could have also allowed the jury to find “that respondent was neglectful and would not provide proper or necessary support” to J under MCL 712A.2(b)(1). As to the statutory grounds for termination, the “evidence established that respondent had physically abused [J] and sexually abused [C] and it was reasonably likely that [J] would be sexually abused in the foreseeable future if placed in respondent’s home.”