e-Journal

The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), and select published opinions of the U.S. Sixth Circuit.

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Cases appear under the following practice areas:

Criminal Law (5)
Insurance (1)
Litigation (1)
Tax (1)
Termination of Parental Rights (1)

Criminal Law

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Issues: Right of confrontation; Admission of an allegedly "hearsay" statement; Proof of a conspiracy to commit armed robbery; People v. Mass; People v. Justice (After Remand); MRE 801(d)(2)(E); People v. Martin; Elements of armed robbery; People v. Chambers; Sufficiency of the evidence to support the defendant's armed robbery and conspiracy to commit armed robbery convictions; Motion for a directed verdict; People v. Mayhew; Circumstantial evidence and reasonable inferences; People v. Akins; Aiding and abetting; MCL 767.39; People v. Moore; People v. Turner

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hillier

e-Journal Number: 53862

Judge(s): Per Curiam – Ronayne Krause, Cavanagh, and Boonstra

The court held that the co-conspirator's (M) statement made during the course and in furtherance of the conspiracy to commit armed robbery was properly admitted under MRE 801(d)(2)(E). Further, the trial court properly denied the defendant's motion for a directed verdict because there was sufficient evidence to support his armed robbery and conspiracy to commit armed robbery convictions. He argued on appeal that he was denied his right of confrontation when M's statement to the victim that he would shoot her if she did not release her purse was admitted into evidence because, other than the statement, there was insufficient proof of a conspiracy to commit armed robbery. The court disagreed. The evidence included that defendant and M "were together when they targeted a vulnerable victim, they were together when the victim was approached, they were together when defendant grabbed the victim's purse," and M "watched the violent struggle between the victim and defendant, which resulted in the victim being thrown to the ground where she continued to fight defendant. Defendant still did not stop the assault." After defendant had the purse, he and M fled the scene, running together in the same direction to a motel room in defendant's name where the contents of the purse were examined. The court held that while there was no direct proof, the circumstances, acts, and conduct of defendant and M established by a preponderance of the evidence, independent of M's statement to the victim, that they agreed to commit an armed robbery. Circumstantial evidence together with reasonable inferences led to the conclusions that defendant and M agreed to - "target a vulnerable victim, approach the victim together in an intimidating manner, and employ brute force, violence, and convincing grievous threats of injury by a dangerous weapon to accomplish their criminal objective, armed robbery." Thus, M's statement was properly admitted into evidence. The court also held that, viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude beyond a reasonable doubt that an armed robbery was committed by M, defendant assisted in its commission, and he intended to commit the armed robbery or at least knew that M intended to commit an armed robbery at the time that he aided and encouraged the crime. Further, a reasonable jury could conclude beyond a reasonable doubt that defendant and M conspired to commit armed robbery. Affirmed.

Full Text Opinion

Issues: Motion to exclude Exhibit 19 (documents obtained by subpoena from the Department of Licensing and Regulatory Affairs (DLRA)); Whether the information in Exhibit 19 was obtained in violation of MCL 333.26426 and Mich Admin Code, R 333.121; People v. Brown; People v. Malone; People v. Stevens (After Remand); Whether a LEIN inquiry is the sole method by which law enforcement can verify the validity of the Michigan Medical Marihuana (MMMA) (MCL 333.26421 et seq.) registry cards; "Registry identification card" defined; MCL 333.26423(3)(i); Whether the information provided exceeded what was permissible under the statute and rule; MCL 333.26426(h)(3); Rule 333.121(3); Applicability of the "exclusionary rule"; People v. Hawkins; Whether MCL 333.26426(h)(4) and Rule 333.121(4) demonstrate a legislative intent to exclude from criminal prosecutions evidence obtained in violation of the MMMA; People v. Oswald; Whether the admission of the letter from a DLRA employee would be a violation of defendant's Sixth Amendment right of confrontation because it was testimonial in nature under Crawford v. Washington; Premature argument; People v. Yost

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hinzman

e-Journal Number: 53879

Judge(s): Per Curiam – Wilder, Meter, and Gleicher

Holding, inter alia, that the trial court properly ruled that information contained in Exhibit 19 complied with the requirement in both the statute and the administrative rule to avoid disclosure of more information than reasonably necessary, the court concluded that the trial court properly denied defendant's motion to exclude Exhibit 19. The case originated from testimony defendant gave at an evidentiary hearing in another criminal case in which she and her husband were charged as codefendants with illegally delivering/manufacturing marijuana in violation of MCL 333.7401(2)(d)(ii). During the evidentiary hearing, defendant testified, inter alia, that on 5/25/10, she was a registered medical marijuana caregiver to three patients. In order to verify this testimony, the prosecutor obtained a subpoena from the trial court, directed to the DLRA, for the production of documents related to defendant's asserted status as a registered medical marijuana caregiver. In response to the subpoena, C, the Compliance Section Manager of the Health Regulatory Division in the DLRA, gathered and provided the information. During trial in the illegal delivery/manufacture case, the prosecutor marked as Exhibit 19 all of the documents obtained by subpoena from the DLRA, and sought their admission into evidence. Defendant challenged the admission of this evidence, arguing that the information produced under subpoena was illegally produced and, alternatively, that the information produced was beyond the scope of information permitted to be disclosed by MCL 333.26423(i). The trial court denied the motion to exclude this evidence, and the court affirmed on appeal. As a result of the information obtained and identified as Exhibit 19 in the prior case, the prosecutor charged defendant with one count of perjury in this case. Prior to trial, defendant moved to exclude Exhibit 19. She argued that the evidence was obtained by unlawful means and that admission of C's letter into evidence would violate the Confrontation Clause. At oral argument on the motion, defendant also argued that the documents in Exhibit 19 disclosed more than was permitted by MCL 333.26423(i), and that the exclusionary rule required the suppression of the improperly obtained information. Defendant argued that the information provided exceeded what was permissible under the statute and rule. The court concluded that Exhibit 19 did not disclose more information than necessary to determine the authenticity of defendant's registry card and caregiver status as of 5/25/10. The only identifying information disclosed in the records were defendant's name, date of birth, home address and telephone number, social security number, and driver's license number. All the information relating to her patients was redacted. Each document was necessary to determine whether defendant was, in fact, a registered caregiver for three patients on 5/25/10. Affirmed.

Full Text Opinion

Issues: Search and seizure; Motion to suppress evidence; Whether the defendant's arrest was lawful; People v. Lewis; People v. Dagwan; Terry v. Ohio; People v. Jenkins; A Terry "investigatory stop"; People v. Williams; United States v. Hensley; Whether the detention was reasonable in scope and duration; People v. Zuccarini; Florida v. Royer; People v. Yeoman; Motion for a mistrial; People v. Schaw; People v. Haywood; Remarks made by police witnesses; People v. Holly; Inference that defendant may have a criminal record; People v. Steiner; "Prejudice"; People v. White

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mpofu

e-Journal Number: 53863

Judge(s): Per Curiam – Sawyer, Markey, and M.J. Kelly

Based on the totality of the "'specific and articulable facts,'" the court found no clear error in the trial court's ruling that the officer (C) had reasonable suspicion to make an investigatory stop or in its conclusion that the detention was reasonable in duration and scope. Thus, the court rejected the defendant's claim that his arrest was unlawful and the trial court erred in denying his motion to suppress evidence. He was convicted of OUIL, third offense and DWLS. He was observed in the driver's seat of a parked vehicle. A door was open, and the motor was running. He smelled of alcohol, was unresponsive, and there were intoxicants in his car. When he was roused, he walked away from the scene. The police detained and arrested him. The record showed that C was aware that - (1) "'there was a male in a vehicle who was unresponsive or passed out and [a] witness had said that it smelled like he had been drinking,'" (2) the suspect was then running away from the scene, (3) defendant matched the description of the suspect given to her by dispatch, and (4) C noticed that he had bloodshot eyes and smelled of intoxicants. Further, contrary to defendant's assertions that being handcuffed, frisked, and placed in C's police vehicle violated his Fourth Amendment rights, "handcuffing a person does not necessarily transform a reasonable investigatory detention into an arrest." C handcuffed defendant because "'he fled the scene.'" The court held that in light of the surrounding circumstances, "handcuffing defendant and placing him in the back of the police vehicle so he could not flee was the 'least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.'" Further, as to the approximately 30-minute duration of the detention, C testified that she met with and took statements from several witnesses shortly after she placed defendant in her vehicle and had a fellow officer check to see if keys found on defendant matched the vehicle in which he was originally found. Based on information C gathered during this time, she placed defendant under arrest. Because C "was diligently pursuing a means of investigation to confirm or dispel her suspicion," the trial court did not err in finding that the duration and scope of the stop were reasonable. The court also rejected defendant's claim that the trial court erred in denying his motion for a mistrial, concluding that the challenged testimony by C only raised an inference that defendant may have a prior criminal record and that he was unable to show prejudice because the evidence of his guilt offered at trial was "overwhelming." Affirmed.

Full Text Opinion

Issues: Ineffective assistance of counsel for failing to retain an expert in forensic psychiatry who was also a neurologist, for failing to pursue an insanity defense, and failing to request a duress instruction; U.S. Const., amend. VI; Const. 1963, art. 1 § 20; People v. LeBlanc; People v. Frazier; People v. Odom; Trial strategy; People v. Strickland; People v. Payne; People v. Hyland; Funds for an expert for an indigent defendant; People v. Tanner; Defense of insanity; People v. Mette; MCL 768.21a; MCL 768.21a(1); Failing to argue a meritless position; People v. Fonville; "Duress"; People v. Ramsdell; People v. Dittis; State v. Mannering (WA App.); Claim that defendant was entitled to resentencing because the trial court did not have "substantial and compelling" reasons for its departure from the guidelines on his attempted murder conviction; Mootness; People v. Watkins; Center for Forensic Psychiatry (CFP)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Preston

e-Journal Number: 53859

Judge(s): Per Curiam – Jansen, Sawyer, and Fort Hood

The court held, inter alia, that the defendant was not denied the effective assistance of counsel. T apparently decided to kill her parents when they stopped her from seeing her then boyfriend, K. The victims were viciously attacked in their bed. T's father was killed and T's mother suffered roughly 25 stab wounds. An investigation led to K and defendant, who was K's associate. The investigation also lead to discovery of a map of the neighborhood and a note containing tips on how to break into T's house and commit the murders. Cell phone records showed text messages between T, K, and defendant that indicated the planning of the crimes. During a police interview, defendant said that K had threatened to kill him if he did not help K to kill T's parents. Defendant initially denied stabbing anyone, but later admitted to stabbing T's father at least three times. The jury found him guilty of first-degree murder, attempted murder, and conspiracy to commit murder. Defendant argued that counsel was ineffective for failing to retain an expert in forensic psychiatry who was also a neurologist, and for failing to pursue an insanity defense. He argued that his history of concussions should have been explored more fully to determine the effect of his brain trauma on his actions. Counsel filed a notice of intent to claim an insanity defense and defendant was referred to the CFP for a criminal responsibility evaluation. Dr. S performed the evaluation and determined that an insanity defense would be unsupported. S was aware of defendant's concussions, but found that he had an appreciation for his actions and their consequences at the time of the incident. She also determined that he was in control of his actions at all legally relevant times and made a number of deliberate choices and decisions. Defendant argued that S was not adequately qualified to determine the effect of his concussions on his actions because she was not a neurologist. Defendant submitted the affidavit of Dr. M. M averred that, in his opinion, post-concussion syndrome could possibly cause an individual to lose cognitive and behavioral control and defendant may have suffered from such a syndrome. The court held that defendant did not made a sufficient showing of a nexus between the facts and the need for an expert to support his position that an appointed expert was necessary. He offered no conclusive proof that he actually suffered from post-concussion syndrome or that it affected his actions at the time of the crimes. Also, he did not offer any evidence to prove that he could not safely proceed to trial absent an independent expert. "When evaluated, defendant denied any wrongdoing." Because he could not have claimed insanity in the first instance, he could not establish that an expert was necessary to safely proceed to trial and he could not show that counsel was ineffective for failing to pursue an insanity defense. "Given the information available to counsel at the time of trial, insanity would not have been a viable defense. Counsel was not ineffective for failing to argue a meritless position."

Full Text Opinion

Issues: Sentencing; Whether MCL 257.625(9)(c)(ii) mandated that the five habitual offenders be imprisoned in the county jail for not less than 30 days; Statutory interpretation; People v. Flick; People v. Underwood; People v. Pennebaker

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Sherman

e-Journal Number: 53856

Judge(s): Per Curiam – Ronayne Krause, Cavanagh, and Boonstra

The court agreed that MCL 257.625(9)(c)(ii) mandated that the 5 defendants (habitual offenders) be imprisoned in the county jail for not less than 30 days. The offenders were placed in the county's nontraditional work release tether program, which allowed them to return home after work, not the county jail, contrary to the clear mandate of MCL 257.625(9)(c)(ii). As in the Pennebaker case, here MCL 257.625(9)(c) provides that, if the defendant is convicted of violating MCL 257.625(1) and has two or more prior convictions, the defendant "shall" be sentenced to either of the following - (i) imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years, or (ii) probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. "Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively." Thus, at minimum, the five defendants were required to be sentenced to "imprisonment in the county jail for not less than 30 days," in addition to probation and community service. Placement in the in-home electronic monitoring work-release program violated the clear mandate set forth in MCL 257.625(9)(c)(ii). Reversed and remanded for resentencing.

Full Text Opinion

Insurance

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This summary also appears under Litigation

Issues: First-party no-fault benefits; Dismissal as a sanction for refiling the case in one county knowing that venue was previously transferred to another county; The trial court's "inherent authority" to impose sanctions on the basis of misconduct by a party or an attorney; Persichini v. William Beaumont Hosp.; Whether the plaintiff had "standing" to appeal the monetary sanction assessed against his attorney; Manuel v. Gill; Federated Ins. Co. v. Oakland Cnty. Rd. Comm'n; Ford Motor Co. v. Jackson (On Rehearing)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Doyle v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53858

Judge(s): Per Curiam – Jansen, Sawyer, and Fort Hood

The court concluded that because the plaintiff failed to address an issue that necessarily must be reached to reverse the trial court, he was not entitled to relief on appeal as to the trial court's dismissal of his complaint. He also lacked standing to raise the issue of whether the trial court erred in imposing a monetary sanction against his attorney. Thus, the court affirmed the trial court's order dismissing the complaint and assessing sanctions of $1,500 against plaintiff's counsel in this action for first-party no-fault benefits. In 4/08, plaintiff sued the defendant in the Wayne Circuit Court seeking first-party no-fault insurance benefits for injuries sustained in a 5/07 auto accident. In 6/08, the trial court granted defendant's motion to change venue to Oakland County. Plaintiff did not appeal that decision. The parties appeared for trial in Oakland County on 3/8/11. However, at that time, they agreed to dismiss the case in order to pursue alternative dispute resolution. Pursuant to the parties' agreement, the case was dismissed without prejudice and the order of dismissal specified that if the case was not resolved, plaintiff could "re-file his action" no later than 5/7/11. On 5/6/11, he filed this action in the Wayne Circuit Court, again seeking no-fault benefits in connection with the 5/07 auto accident. Defendant again moved for change of venue. It also moved for sanctions. The trial court ruled that plaintiff acted improperly by filing the action in Wayne County given that his prior case was filed in Wayne County, venue was changed to Oakland County, and he then obtained a voluntary dismissal of that case. While plaintiff argued on appeal that venue was proper in Wayne County, the court noted that the trial court dismissed the case as a sanction because it determined that plaintiff's counsel acted improperly by refiling the case in Wayne County knowing that venue was previously transferred from Wayne County to Oakland County. "The trial court has inherent authority to impose sanctions on the basis of misconduct by a party or an attorney," and for violations of a court order, and this includes the authority to dismiss the case. Plaintiff failed to address this aspect of the trial court's ruling. He lacked standing to raise the monetary sanction issue "because he was not personally aggrieved by that aspect of the order."

Full Text Opinion

Litigation

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This summary also appears under Insurance

Court: Michigan Court of Appeals (Unpublished)

Case Name: Doyle v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53858

Judge(s): Per Curiam – Jansen, Sawyer, and Fort Hood

Full Text Opinion

Tax

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Issues: Whether the Michigan Tax Tribunal (MTT) had jurisdiction to adjust the taxable values (TVs) of the property at issue for the 2008 and 2009 tax years; Michigan Props., LLC v. Meridian Twp.; Toll Northville Ltd. P'ship v. Northville Twp.; Effect of the petitioner's failure to address the issue before the board of review (BOR)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Universal Wholesale/Anita, L.L.C. v. Township of Royal Oak

e-Journal Number: 53855

Judge(s): Per Curiam – Sawyer, Markey, and M.J. Kelly

Holding that the MTT erred in finding that it lacked jurisdiction to adjust the TVs of the property at issue for the 2008 and 2009 tax years, the court reversed the MTT's order denying the petitioner's motion for summary disposition and granting summary disposition to the respondent, and remanded the case. The MTT found that the property was incorrectly uncapped in the 2007 tax year. However, it concluded that it did not have jurisdiction over the 2007 tax year because petitioner did not file an appeal of the 2007 TV within 35 days of receipt of the 12/07 tax bill, there was no evidence that petitioner protested to the July or December BOR about the uncapping claim, and there was no evidence that respondent's assessor took the issue to the July or December BOR. Thus, it concluded that it could not recalculate the TVs for the 2008 and 2009 tax years. The court noted that respondent did not appear to dispute the MTT's finding that the TV for the 2007 tax year was erroneous because it should not have been uncapped. The court held that under Michigan Properties, the MTT has the authority to correct a previous TV in order to adjust the current TV. "This authority arises once the jurisdiction of the MTT is properly invoked." Thus, the MTT had the authority to correct the TV of the property for the 2007 tax year in order to adjust the TVs for the 2008 and 2009 tax years if the MTT had jurisdiction over the 2008 and 2009 tax years. Petitioner asserted that it properly invoked MTT's jurisdiction over the 2008 tax year when it filed its petition on 5/28/08. Respondent did not dispute that the MTT had jurisdiction to resolve disputes for the 2008 tax year and subsequent years. While the MTT could not adjust the 2007 TV, as petitioner did not timely appeal that value, it could adjust the 2008 and 2009 TVs. "The MTT committed an error of law and adopted a wrong principle when it found that it did not have jurisdiction" to adjust the TVs for the 2008 and 2009 tax years. The court rejected respondent's argument that petitioner's failure to address the issue before the BOR precluded review of the uncapping issue, concluding that petitioner was not required to address the issue before the BOR. The MTT had jurisdiction over the 2008 and 2009 tax years and could adjust the TVs for those years, even if petitioner did not address the issue before the BOR.

Full Text Opinion

Termination of Parental Rights

Issues: Termination under §§ 19b(3)(b)(i), (g), (j), and (k)(iii); Matter of Jackson; In re Rood; In re Hudson; The children's best interests; In re LE; In the Matter of Olive/Metts Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Barylski

e-Journal Number: 53882

Judge(s): Per Curiam – Talbot, Jansen, and Meter

The court held that the trial court properly terminated the respondent-father's parental rights to the two minor children where the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. Given the physical abuse of CB and given the evidence of a pattern of abuse, the trial court did not commit clear error when it determined that § 19b(3)(b)(i) applied. The trial court heard testimony that respondent had abused a child on at least three separate occasions. First, the children's mother, TW, referred to an incident during which respondent was involved in some form of abusive altercation with a 12-year old girl. Although the details as to this incident were unclear, TW answered "[y]eah" when the trial court asked her, in regard to this incident, "You say you may have admitted that there was a history of child abuse?" Further, B witnessed respondent pick up CB (only two years old at the time) by his arms, slam CB on the counter, and hit CB's head against the glass that separated customers from workers. B then witnessed respondent "backhand" CB across his face and hit his head against a hard surface. B told the police that respondent had told CB, "I'm going to smack the sh-t out of you," before respondent "backhanded" the child. When he inspected CB, B discovered "old bruising." A little over one year later, TW left CB with respondent while she worked. Upon returning home, she discovered that CB had a handprint on the side of his face, and he told her "daddy slapped me because I pooped." The court also held that given respondent's negative attitude toward remedial services, as well as his history of an unwillingness or inability to alter his bad and illegal behaviors, the trial court did not commit clear error when it found that § 19b(3)(g) was established by clear and convincing evidence. Based on the threat of physical and emotional harm posed by respondent's presence, the court further held that the trial court did not clearly err when it found that § 19b(3)(j) was established. Finally, given respondent's treatment of CB, the court could not find that the trial court committed clear error in finding that § 19b(3)(k)(iii) was established by clear and convincing evidence. Affirmed.

Full Text Opinion