Right to counsel; McCoy v Louisiana; Florida v Nixon; Defense counsel’s concession of defendant’s guilt; Whether defendant told defense counsel he did not want to concede guilt; Trial strategy where defendant refuses to communicate with counsel; Sentencing; Reasonableness & proportionality; People v Posey

The court held that trial counsel’s concession of guilt as to defendant’s trespassing charge did not violate his right to counsel, and his sentences were neither unreasonable nor disproportionate. He was convicted of resisting or obstructing an officer and trespass, arising out of his eviction from his grandmother’s home after she died. He was given concurrent sentences of 24 months to 15 years for each resisting and obstructing, and 90 days for trespass. On appeal, the court rejected his argument that he was denied his right to counsel when trial counsel conceded his guilt as to the trespassing charge during closing argument. “[D]efendant never expressly told counsel that he did not want to concede guilt. Indeed, trial counsel testified that defendant was virtually ‘nonresponsive’ by the time of trial.” His refusal “to communicate with trial counsel forced counsel to defend [him] in a manner that he believed was in defendant’s best interests.” Because he “did not express a contrary instruction, trial counsel properly exercised his discretion in implementing what he reasonably believed was the most prudent trial strategy.” The court noted “defendant acknowledged that he, despite the eviction order, and despite receiving the eviction notice, knowingly remained on the property. [He] made a generalized claim of ownership of the home, but provided no factual support for this claim other than his testimony that his grandmother intended for him to inherit [it] and that he owned a separate property with” her. As such, “trial counsel’s concession was not contrary to defendant’s assertion of innocence because defendant limited communication with counsel and did not ‘vociferously insist[] that he did not engage in the charged acts[.]’” As to his sentences, the court found the trial court’s “lengthy on-the-record reasoning for the sentence it imposed either directly or indirectly addressed, and dispensed with, nearly all” of his claims. It also noted that (1) his modest resistance did not rebut the presumption of proportionality given to his within-guidelines sentence; (2) he “did not appear so distraught as to provide a reasonable explanation for his resistance”; (3) the trial court found his aggressive statements to police were a threat; and (4) the MDOC’s sentence recommendation was not a proper consideration for the court. It also rejected his remaining arguments and noted that the trial court “was not required to sentence defendant to the lowest conceivable term that may satisfy the punishment goal for sentencing, particularly in light of all the other considerable factors in this case.” Affirmed.

Sentencing; Proportionality; People v Posey; Effect of a within-guidelines sentence; “Unusual” circumstances

Concluding nothing in the record suggested defendant’s within-guidelines sentence violated the principle of proportionality, the court held that he was not entitled to resentencing. He was sentenced to 16 to 24 months for resisting a police officer. The statutory maximum for his offense is two years. His minimum guidelines range was 5 to 23 months. The court found that the trial court considered his individual circumstances in sentencing him. “Although a trial court is not required to consider substance-abuse issues when imposing a sentence,” the record here indicated “that the trial court did consider defendant’s individual history of alcohol abuse, as well as the specific circumstances of his offense, including his intoxication. Defendant’s PSIR contained many references to his intoxication at the time of the offense, as well as his history of alcohol addiction. Additionally, defense counsel stated during the sentencing hearing that alcohol was involved in the majority of defendant’s prior offenses. And defendant spoke about his struggle with alcohol addiction and his desire for sobriety. The trial court reviewed the PSIR ‘a couple times’; listened to the remarks from defendant and his counsel during the sentencing hearing; and stated that it was premising defendant’s sentence on ‘the record, and what has occurred in this particular case.’” Thus, the court determined that defendant failed to present “any unique or rare circumstances to rebut the presumptively proportionate sentence handed down by the trial court.” The court further noted (as did the trial court) that his “complete criminal history includes nine felonies and 22 misdemeanors. The trial court acknowledged that defendant’s plea agreement precluded a habitual-offender enhancement, but it also stated that [his] record was ‘very bad,’ such that his ‘guideline range is still five months to 23 months.’” While defendant was correct “that his parole agent recommended that [he] serve 24 months of probation, the trial court has the exclusive power to render a sentence.” Affirmed.

Ineffective assistance of counsel; Whether defendant was denied counsel at a critical stage; People v Cronic; Counsel’s duty to conduct pre-trial investigation; People v Hieu Van Hoang; Prejudice; Woods v Donald; Satterwhite v Texas; Failure to subject the prosecution’s case to meaningful adversarial testing; Bell v Cone; Trial strategy; Inconsistent verdicts; People v Ellis; Felonious assault; People v Nix; Felony-firearm; People v Jackson; Acquitted conduct; People v Brown

The court held that defendant was not denied the effective assistance of counsel, and the trial court in his bench trial did not render inconsistent verdicts. He was convicted of felonious assault and felony-firearm for chasing the victim with a gun. On appeal, defendant first claimed he “was constructively denied assistance of counsel because, following the death of his retained counsel, substitute appointed counsel failed to contact or communicate with [him] for months before trial.” The court noted that although he was in fact “deprived of counsel during a critical stage of the lower court proceedings—the period of pretrial preparations after the passing of” his original counsel, “the presumption of prejudice and form of relief contemplated in Cronic are inapplicable here.” Considering the lack of activity in the case between the passing of original counsel and the appointment of substitute counsel, the postponement of the bench trial, and the subsequent retention of another counsel, “any error resulting from the denial of counsel during the pretrial phase was harmless beyond a reasonable doubt.” Defendant also argued that his third attorney’s “minimal preparation for trial resulted in her failure to subject the prosecution’s case to meaningful adversarial testing.” The court disagreed. “While defendant advances that counsel . . . failed to adequately investigate the underlying matter in the three weeks preceding trial, counsel . . . thoroughly examined complainant, reviewed the video exhibits presented by the prosecution, highlighted discrepancies in complainant’s testimony in her closing argument, and presented a witness to corroborate defendant’s narrative of the incident.” In any event, to the extent that counsel’s “performance was deficient, defendant has failed to establish that ‘but for counsel’s deficient performance, a different result would have been reasonably probable.’” The court also rejected his contention that the trial court rendered inconsistent verdicts when it convicted him while acquitting his codefendant of identical offenses. “The quantum and quality of evidence against defendant was greater than that” inculpating his codefendant, “particularly considering there was admitted video evidence capturing defendant’s threatening and derogatory statements against” the victim and his pursuit of him. And the victim “repeatedly reiterated that defendant was the sole party chasing him after the parties’ initial interaction at the car show,” and followed him “for approximately three blocks, all while filming the matter and allegedly holding a firearm.” Affirmed.

Due process; Defendant’s appearance on a police interview video recording; People v Horton; Ineffective assistance of counsel; Testimony as to forensic interview protocols; People v Dunifin (Unpub); Other acts evidence; MCL 768.27a; MRE 403; People v Watkins

The court held that defendant did not show “that plain error occurred because of how he appeared on the video recording of his police interview, and he has failed to establish that his trial counsel was ineffective for not raising proper objections to the recording.” The court also rejected his challenges to the admission of testimony about forensic interview protocols and other acts testimony under MCL 768.27a. He was convicted by a jury of CSC I and II. After viewing the entire recording, in which defendant wore clothing provided by the jail, the court found that “at most there was a brief portion where writing on the back of the shirt might have been visible, as the attorneys acknowledged during the first trial.” For most of the recording, he was “shown primarily from the base of his neck up so any identifying information on his shirt is not visible. The trial court found, when ruling on defendant’s motion for a new trial, that the writing was not visible enough for the jury to conclude that it identified defendant as a jail inmate. If the jury saw a portion of the shirt defendant wore and believed that it contained writing identifying [him] as a jail inmate, under Horton,” there was no basis for granting him relief. The record did “not show that plain error occurred when there is no reason to believe that the jury would have known that defendant was wearing a jail uniform at the time of his interview.” Alternatively, he argued “that his counsel was ineffective for not objecting to the recording shown to the jury.” The court noted that defense “counsel likely did not object or raise this issue because he also agreed with defendant’s first attorney that the jury would not be able to view the writing on the back of the shirt that briefly appeared on the recording. For this reason, defendant has not shown that his counsel was ineffective for not objecting. An objection would have been futile on these facts.” The court added that even “if defense counsel had objected, it is apparent that the result would not have been affected when the trial court found nothing wrong with the recording as admitted. The [trial] court would not have ruled that the recording was inadmissible if defense counsel had objected.” Affirmed.

Medical malpractice; Total hip replacement; “Proximate cause”; Craig ex rel Craig v Oakwood Hosp; Ykimoff v Foote Mem’l Hosp; Martin v Ledingham; Credibility; Effect of incomplete discovery; Stringwell v Ann Arbor Pub Sch Dist; Intervening cause; Taylor v Wyeth Labs, Inc; Meek v Department of Transp; Affidavit of merit (AOM); Standard of care (SOC)

Concluding a genuine issue of material fact existed as to proximate cause, the court found that the trial court erred in granting defendants-Dr. Lawrence, Greater Michigan Orthopedics, and Greater Flint Sports Medicine Center summary disposition in this medical malpractice case. The case arose from plaintiff-Bonnie Jones’s total hip replacement. The evidence supported that “hip dislocation, like the one suffered by Bonnie, is a known and accepted complication of hip replacement surgery. However, in a postoperative note, Dr. Lawrence described the femoral stem used in the first surgery as ‘suboptimal.’ [He] also noted there was ‘an increased risk of dislocation which could cause the cup to spin out [and] the hip to dislocate and [require a] second surgery.’” The court noted that he “agreed the use of the size-seven, standard femoral implant could have been a factor in the hip dislocation, which occurred one day after the first surgery. Dr. Lawrence opined ‘the main reason’ for the dislocation occurring was ‘the [unsafe] position’ Bonnie ‘was put in at the time of the fall or the fall itself.’” There was testimony that physical therapists “failed to follow protocol. Nonetheless, as noted by plaintiffs on appeal, ‘[p]roximate causation in a malpractice claim is treated no differently than in an ordinary negligence claim, and it is well-established that there can be more than one proximate cause contributing to an injury.’” And the trial court “was not permitted to grant summary disposition based on a determination that Dr. Lawrence’s account of what happened was credible.” As to defendants’ argument that “plaintiffs failed to present ‘sufficient expert testimony which establishes proximate causation,’ discovery had not yet closed” when the summary disposition motion was filed and oral arguments on it were heard. Further, additional “discovery stood a reasonable chance of uncovering factual support for plaintiffs’ claims against Dr. Lawrence.” An AOM cited in and attached to their response to the summary disposition motion was before the trial court and “supported Dr. Lawrence breached the [SOC] in several ways and his actions, or inactions, directly and proximately caused Bonnie’s injuries.” The court added that “any allegedly negligent medical care on the part of the [physical therapists] would not necessarily absolve Dr. Lawrence of liability.” Reversed and remanded.

Breach of contract & unjust enrichment action involving a trust; Whether summary disposition was appropriate under MCR 2.116(C)(6) (another action has been initiated between the same parties involving the same claim); Planet Bingo, LLC v VKGS, LLC; Whether an action remains “pending”; Whether the parties were the same in both actions; Dairyland Ins Co v Mews; Principle that all issues need not be identical between the two cases; JD Candler Roofing Co, Inc v Dickson

The court held that based on the evidence the parties produced supporting their summary-disposition arguments, “the trial court did not improperly grant summary disposition to defendant under MCR 2.116(C)(6).” Plaintiff sued defendant, a trust, for breach of contract and unjust enrichment. Before this action was filed in circuit court, related actions were filed in probate court. The circuit court ultimately granted defendant’s motion for summary disposition, “reasoning that the probate court had exclusive jurisdiction over plaintiff’s claims, and it would be practical for the probate court to decide the issues raised in the circuit court action.” On appeal, the court rejected plaintiff’s argument that the circuit court “failed to conduct any analysis under MCR 2.116(C)(6) and simply concluded that the probate court would be a better forum for plaintiff’s claims from a practicality standpoint. While the circuit court included little direct analysis of the merits of summary disposition under MCR 2.116(C)(6) in its oral ruling or written order,” the court found “on de novo review that summary disposition was appropriate.” The court concluded that the probate court action remained “pending for purposes of MCR 2.116(C)(6).” The evidence showed that “the probate court action was pending at the time the circuit court granted defendant summary disposition, and plaintiff has provided little meaningful argument or evidence otherwise. The evidence also demonstrate[d] that plaintiff’s circuit court action involves the same parties and the same claims as the consolidated probate court action for purposes of MCR 2.116(C)(6).” In addition, while “not identical, the parties in the probate court actions included” plaintiff-O’Dovero “as well as individual trustees on behalf of” the trust. “Thus, the parties are the same for purposes of MCR 2.116(C)(6).” Further, there was no merit to plaintiff’s argument that the claims in his circuit court action are not substantially the same as the claims at issue in the probate court action. Affirmed.

Medical malpractice; Total hip replacement; “Proximate cause”; Craig ex rel Craig v Oakwood Hosp; Ykimoff v Foote Mem’l Hosp; Martin v Ledingham; Credibility; Effect of incomplete discovery; Stringwell v Ann Arbor Pub Sch Dist; Intervening cause; Taylor v Wyeth Labs, Inc; Meek v Department of Transp; Affidavit of merit (AOM); Standard of care (SOC)

Concluding a genuine issue of material fact existed as to proximate cause, the court found that the trial court erred in granting defendants-Dr. Lawrence, Greater Michigan Orthopedics, and Greater Flint Sports Medicine Center summary disposition in this medical malpractice case. The case arose from plaintiff-Bonnie Jones’s total hip replacement. The evidence supported that “hip dislocation, like the one suffered by Bonnie, is a known and accepted complication of hip replacement surgery. However, in a postoperative note, Dr. Lawrence described the femoral stem used in the first surgery as ‘suboptimal.’ [He] also noted there was ‘an increased risk of dislocation which could cause the cup to spin out [and] the hip to dislocate and [require a] second surgery.’” The court noted that he “agreed the use of the size-seven, standard femoral implant could have been a factor in the hip dislocation, which occurred one day after the first surgery. Dr. Lawrence opined ‘the main reason’ for the dislocation occurring was ‘the [unsafe] position’ Bonnie ‘was put in at the time of the fall or the fall itself.’” There was testimony that physical therapists “failed to follow protocol. Nonetheless, as noted by plaintiffs on appeal, ‘[p]roximate causation in a malpractice claim is treated no differently than in an ordinary negligence claim, and it is well-established that there can be more than one proximate cause contributing to an injury.’” And the trial court “was not permitted to grant summary disposition based on a determination that Dr. Lawrence’s account of what happened was credible.” As to defendants’ argument that “plaintiffs failed to present ‘sufficient expert testimony which establishes proximate causation,’ discovery had not yet closed” when the summary disposition motion was filed and oral arguments on it were heard. Further, additional “discovery stood a reasonable chance of uncovering factual support for plaintiffs’ claims against Dr. Lawrence.” An AOM cited in and attached to their response to the summary disposition motion was before the trial court and “supported Dr. Lawrence breached the [SOC] in several ways and his actions, or inactions, directly and proximately caused Bonnie’s injuries.” The court added that “any allegedly negligent medical care on the part of the [physical therapists] would not necessarily absolve Dr. Lawrence of liability.” Reversed and remanded.

Governmental immunity; MCL 691.1407; Intentional torts; Using reasonable force on students; MCL 380.1312(5); Gross negligence; MCL 691.1407(8)(a); Good faith; Vicarious liability

Concluding that MCL 691.1407 and 380.1312(5) entitled defendants to immunity from plaintiff-QC’s guardian’s tort claims, the court affirmed. QC’s guardian alleged that defendant-Lukes’s (Dean of Students) conduct against QC “constituted ‘the torts of assault and battery’ and gross negligence.” Plaintiff later filed an amended complaint adding defendant-school district, “asserting that it was liable for Lukes’s torts on a respondeat superior theory, and adding a new claim against Lukes alleging excessive force and unlawful search and seizure.” Defendants successfully moved for summary disposition based on immunity under “MCL 691.1407 (Lukes’s conduct did not arise to statutory gross negligence, nor as to the intentional torts, was his conduct in bad faith) and MCL 380.1312(5) (providing immunity to school personnel who use reasonable force to maintain control in the school).” On appeal, the court disagreed “with plaintiff’s argument that whether Lukes’s use of force was reasonable is a question of fact for a jury.” It held that in “light of the circumstances facing Lukes, which required immediate action to quell a large, on-going and chaotic situation (of which QC was a significant player), his grabbing and ‘taking down’ QC while she was struggling with him to get away (and to potentially get to her target, another student), was a reasonable, good faith judgment to use this physical force. No reasonable juror could conclude otherwise given these facts, particularly so because of the required deference that must be given to Lukes under MCL 380.1312(7) (‘deference shall be given to reasonable good-faith judgments made by that person’).” The court noted that certainly “other actions could have been taken by Lukes, but given QC’s repeated attempts to engage with the other student, her disregard of Lukes’s instructions, her attempts to get out of his control, the seemingly similar size between QC and Lukes, and the chaotic and dangerous situation ongoing in front of him, Lukes’s forceable action towards QC was reasonable, and entitles him to immunity on the negligence and assault and battery claims for his use of reasonable force.” Plaintiff also argued “that whether Lukes was grossly negligent and whether his conduct was the proximate cause of QC’s injury are questions of fact for a jury and” the trial court erred in granting defendants summary disposition. But neither argument could “succeed under these facts.” The court held that “reasonable minds could not differ as to whether Lukes’s conduct constituted gross negligence that was the proximate cause of QC’s injury,” and there was “no factual dispute on this question.” Finally, it concluded that “reasonable minds could not differ as to whether Lukes was acting in good faith,” and the trial court did not err by holding that he “was entitled to governmental immunity as to plaintiff’s claims of assault and battery.”

Governmental immunity; MCL 691.1407; Intentional torts; Using reasonable force on students; MCL 380.1312(5); Gross negligence; MCL 691.1407(8)(a); Good faith; Vicarious liability

Concluding that MCL 691.1407 and 380.1312(5) entitled defendants to immunity from plaintiff-QC’s guardian’s tort claims, the court affirmed. QC’s guardian alleged that defendant-Lukes’s (Dean of Students) conduct against QC “constituted ‘the torts of assault and battery’ and gross negligence.” Plaintiff later filed an amended complaint adding defendant-school district, “asserting that it was liable for Lukes’s torts on a respondeat superior theory, and adding a new claim against Lukes alleging excessive force and unlawful search and seizure.” Defendants successfully moved for summary disposition based on immunity under “MCL 691.1407 (Lukes’s conduct did not arise to statutory gross negligence, nor as to the intentional torts, was his conduct in bad faith) and MCL 380.1312(5) (providing immunity to school personnel who use reasonable force to maintain control in the school).” On appeal, the court disagreed “with plaintiff’s argument that whether Lukes’s use of force was reasonable is a question of fact for a jury.” It held that in “light of the circumstances facing Lukes, which required immediate action to quell a large, on-going and chaotic situation (of which QC was a significant player), his grabbing and ‘taking down’ QC while she was struggling with him to get away (and to potentially get to her target, another student), was a reasonable, good faith judgment to use this physical force. No reasonable juror could conclude otherwise given these facts, particularly so because of the required deference that must be given to Lukes under MCL 380.1312(7) (‘deference shall be given to reasonable good-faith judgments made by that person’).” The court noted that certainly “other actions could have been taken by Lukes, but given QC’s repeated attempts to engage with the other student, her disregard of Lukes’s instructions, her attempts to get out of his control, the seemingly similar size between QC and Lukes, and the chaotic and dangerous situation ongoing in front of him, Lukes’s forceable action towards QC was reasonable, and entitles him to immunity on the negligence and assault and battery claims for his use of reasonable force.” Plaintiff also argued “that whether Lukes was grossly negligent and whether his conduct was the proximate cause of QC’s injury are questions of fact for a jury and” the trial court erred in granting defendants summary disposition. But neither argument could “succeed under these facts.” The court held that “reasonable minds could not differ as to whether Lukes’s conduct constituted gross negligence that was the proximate cause of QC’s injury,” and there was “no factual dispute on this question.” Finally, it concluded that “reasonable minds could not differ as to whether Lukes was acting in good faith,” and the trial court did not err by holding that he “was entitled to governmental immunity as to plaintiff’s claims of assault and battery.”

Termination under § 19b(3)(f); Child’s best interests; Estates & Protected Individuals Code (EPIC)

Concluding that § 19b(3)(f) existed and termination of respondent-mother’s parental rights was in the child’s (PCE) best interests, the court affirmed. It was undisputed that petitioner was appointed guardian of PCE under the EPIC. Respondent “was ordered to pay $67 each month in child support beginning in” 9/21. From 9/21 “to the date of the termination hearing, respondent made only three support payments.” She did “not dispute that she did not comply with the support order for more than two years, but argues that she was unable earlier to make payments because of her addiction and incarceration. She admitted, however that she was only incarcerated for part of the time petitioner was guardian of PCE, that the incarceration was of short duration, and her support obligation therefore was not deferred.” Thus, the trial court did not err by finding that § 19b(3)(f)(i) was met. “MCL 712A.19b(3)(f)(ii) is met when a parent, who has the ability to communicate, visit, or contact the child, fails to do so for two years or more.” Respondent did “not dispute that she has not visited PCE since early 2021, and did not maintain contact with PCE after moving out of petitioner’s mother’s home in early 2020.” Respondent argued “she could not maintain contact with PCE because she was in jail and had a strained relationship with petitioner.” Respondent did “not dispute, however, that she met with PCE only twice in 2021, and that petitioner attempted to arrange meetings between PCE and respondent.” Thus, the trial court did not clearly err by holding that § 19b(3)(f)(ii) “had been met, and that termination of respondent’s parental rights therefore was warranted under” § 19b(3)(f).

Breach of contract & unjust enrichment action involving a trust; Whether summary disposition was appropriate under MCR 2.116(C)(6) (another action has been initiated between the same parties involving the same claim); Planet Bingo, LLC v VKGS, LLC; Whether an action remains “pending”; Whether the parties were the same in both actions; Dairyland Ins Co v Mews; Principle that all issues need not be identical between the two cases; JD Candler Roofing Co, Inc v Dickson

The court held that based on the evidence the parties produced supporting their summary-disposition arguments, “the trial court did not improperly grant summary disposition to defendant under MCR 2.116(C)(6).” Plaintiff sued defendant, a trust, for breach of contract and unjust enrichment. Before this action was filed in circuit court, related actions were filed in probate court. The circuit court ultimately granted defendant’s motion for summary disposition, “reasoning that the probate court had exclusive jurisdiction over plaintiff’s claims, and it would be practical for the probate court to decide the issues raised in the circuit court action.” On appeal, the court rejected plaintiff’s argument that the circuit court “failed to conduct any analysis under MCR 2.116(C)(6) and simply concluded that the probate court would be a better forum for plaintiff’s claims from a practicality standpoint. While the circuit court included little direct analysis of the merits of summary disposition under MCR 2.116(C)(6) in its oral ruling or written order,” the court found “on de novo review that summary disposition was appropriate.” The court concluded that the probate court action remained “pending for purposes of MCR 2.116(C)(6).” The evidence showed that “the probate court action was pending at the time the circuit court granted defendant summary disposition, and plaintiff has provided little meaningful argument or evidence otherwise. The evidence also demonstrate[d] that plaintiff’s circuit court action involves the same parties and the same claims as the consolidated probate court action for purposes of MCR 2.116(C)(6).” In addition, while “not identical, the parties in the probate court actions included” plaintiff-O’Dovero “as well as individual trustees on behalf of” the trust. “Thus, the parties are the same for purposes of MCR 2.116(C)(6).” Further, there was no merit to plaintiff’s argument that the claims in his circuit court action are not substantially the same as the claims at issue in the probate court action. Affirmed.