Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Admissibility of proffered evidence as to prior accusations of rape; In camera evidentiary hearing; People v Hackett
In this interlocutory appeal, the court held “that the Court of Appeals erred by analyzing the admissibility of defendant’s proffered evidence [as to prior accusations of rape] without first ordering the trial court to conduct the in camera evidentiary hearing required by Hackett.” Thus, it vacated the decisions of the Kalamazoo Circuit Court and the Court of Appeals and remanded to the Court of Appeals. On remand, while retaining jurisdiction, the Court of Appeals shall remand the case to the Kalamazoo Circuit Court for an in camera evidentiary hearing under Hackett. Defendant “and his two codefendants are charged with five counts of first-degree criminal sexual conduct and one count of first-degree home invasion, arising from an alleged sexual assault on the complainant, KQ, in 2009.” Defendant admitted “to engaging in sexual activity with KQ but maintains that it was consensual. Defendant and his codefendants moved for admission of evidence regarding a previous sexual assault allegation that KQ had made against two individuals in November 2008, a few months before the alleged assault in this case.” The court held that the “accused individuals’ and other witnesses’ statements made to the police during the 2008 investigation and the 2019 follow-up interviews provided at least some apparently credible and potentially admissible evidence that the prior allegations were false. Accordingly, the Court of Appeals erred to the extent it held that defendant’s offer of proof was insufficient.” The court determined that because “we believe that the offer of proof was sufficient, we next conclude that the trial court erred by failing to conduct an in camera evidentiary hearing before granting admission of the evidence and that the Court of Appeals also erred by analyzing the ultimate question of admissibility without requiring the trial court to conduct an evidentiary hearing. Once a sufficient offer of proof is made, the in camera evidentiary hearing is not optional.” In short, the court concluded that “defendant’s offer of proof was sufficient, but an evidentiary hearing is required under Hackett before the trial court may admit the evidence.”
Registration under the Sex Offenders Registration Act (SORA) in juvenile cases; MCL 712A.28(3); Registration for a “listed offense”; MCL 28.723(1)(a); CSC III as a listed offense; MCL 28.722(i) & (v)(iv); MCL 750.520d; “Convicted”; MCL 28.722(a)(iii)
The court held that the trial court erred by ordering respondent-juvenile to register under SORA and by denying his motion to strike the SORA registration requirement. He pled guilty to CSC III in exchange for dismissal of a subsequent CSC I charge and was ordered to register under SORA. The trial court denied his motion to strike the order requiring him to register under SORA. On appeal, the court agreed with both parties that respondent was not statutorily required to register under SORA. “According to MCL 712A.28(3), in cases involving juveniles,” beginning on 1/1/21, “‘records of a case brought before the court are not open to the general public and are open only to persons having a legitimate interest.’” Pursuant to the applicable statutory provisions, “individuals must register under SORA if they are ‘convicted’ of a listed offense after” 10/1/95. “The definition of ‘convicted’ under SORA for juvenile proceedings only refers to orders of disposition that are open ‘to the general public.’” As of 1/1/21, “records in juvenile cases, including orders of disposition, are not open to the general public.” Here, the petition concerning respondent was filed after 1/1/21. Thus, “the records in his case are not open to the general public. Because the records . . . are not open to the general public, [his] disposition does not constitute a ‘conviction’ under SORA.” And because he “was not ‘convicted,’ MCL 28.723(1)(a) does not require him to register under SORA.” Vacated and remanded.
Ineffective assistance of counsel; Strickland v Washington; Failure to retain & call an expert witness; The Michigan Indigent Defense Commission’s (MIDC) minimum standards for guaranteeing the delivery of indigent criminal defense services; Oakland Cnty v Michigan; Matters of trial strategy; Failure to investigate; Failure to challenge a juror who had babysat for the prosecutor; People v Johnson; Aggravated possession of child sexually abusive material (CSAM)
While the court found that defense counsel’s failure to retain an expert to rebut expert testimony from a police witness (B) fell below an objective standard of reasonableness, it held that defendant was not entitled to relief because he failed to show prejudice. It rejected his ineffective assistance claim alleging failure to investigate, and also determined defense counsel was not ineffective for failing to challenge a juror who had babysat for the prosecutor. Thus, it affirmed defendant’s convictions of using a computer or the internet to communicate with another to commit a crime and of CSAM. He argued that “defense counsel was ineffective for (1) failing to retain an expert witness to rebut the prosecution’s expert witness on electronic data; (2) failing to educate himself and investigate before trial about the electronic data at issue in the case; and (3) failing to challenge” the former babysitter as a biased juror. As to the failure to retain an expert, the court noted Standard 3 of the MIDC’s minimum standards for guaranteeing the delivery of indigent criminal defense services “‘provides that counsel must request the assistance of experts when reasonably necessary and that reasonable requests must be funded as required by law.’” Defense counsel’s only proffered reason “for not obtaining a rebuttal expert was financial difficulty. Given the funds available in such circumstances, this decision was not objectively reasonable, nor was it sound trial strategy, because the reasoning was not rooted in strategy at all.” But defendant failed to explain how a hypothetical defense expert could have rebutted B’s testimony. “Defense counsel extensively cross-examined [B], and highlighted various flaws in [B’s] reasoning and findings without a separate expert.” As to the failure to investigate claim, because there was “no evidence defense counsel was unable to understand the electronic data of this case, there is no evidence his performance fell below the objectively reasonable standard required, nor is there any evidence of prejudice.” Finally, while the court was concerned about “defense counsel’s failure to exercise any for-cause or preemptory challenges[,]” defendant did not identify any prejudice he sustained due to this decision. “The juror at issue on appeal confirmed she could remain impartial despite her prior relationship with the prosecutor, and there is no evidence in the record indicating she failed to act accordingly.”
Other acts evidence; MRE 404(b)(1); People v VanderVliet; Right to a fair trial; Admission of Facebook messages; Principle that statements of general intent do not constitute other acts evidence; People v Goddard; Authentication; MRE 901; Relevance; MRE 401; Unfair prejudice; MRE 403
The court held that the trial court did not violate defendant’s right to a fair trial by admitting Facebook messages into evidence. Police found meth in his possession when he was arrested on an unrelated warrant. He was convicted of possession of a controlled substance with intent to deliver. On appeal, the court rejected his argument that the trial court erred by admitting Facebook messages, which denied him his right to a fair trial. “[T]he messages concern defendant’s general intent to sell narcotics, and they do not contain information indicating that [he] committed other acts involving the sale of those narcotics or the propensity to do so.” In addition, even if the messages constituted other acts evidence, MRE 404(b) allowed their admission “for any relevant purpose other than to establish propensity, and this evidence went to, for example, both ‘intent’ and ‘scheme, plan, or system.’” The court also rejected his claim that the trial court erred because the Facebook messages were not authenticated as the police did not investigate or interview the other participants of the messages and they were not dated. “Defendant ignores that the statement, ‘This is Joe’s phone,’ was etched on the back of the phone that the police found in the vehicle that defendant was driving. Further, the Facebook messages on that phone came from an account named ‘Joe-Joe.’ The evidence indicated that the phone and messages belonged to defendant.” Finally, the court rejected his contention that the messages did not mention meth and, thus, were not relevant to the charge. The police found meth in his vehicle and on his “person, with the phone that contained the Facebook messages. The content of those messages indicated [he] had the intent to deliver drugs, even if the type of drugs was not mentioned specifically. This was demonstrated by the testimony offered by the prosecutor’s witnesses.” The messages showed “a general intent to deliver narcotics, the authenticity of the messages was confirmed by the surrounding evidence . . . , and the messages were material and probative to the charge of possession of” meth with intent to deliver. “Further, the probative value of the messages demonstrating defendant’s intent to deliver narcotics was not outweighed by any alleged unfair prejudice indicating that [he] was selling drugs.” Affirmed.
Constitutional right to a fair trial; Whether a police witness’s testimony encroached on the province of the jury; MRE 602 & 701; Prosecutorial misconduct; Questioning defendant on cross-examination about his experience with the criminal justice system; Whether the trial court pierced the veil of judicial impartiality; People v Stevens; Denial of a jury instruction on larceny from the person as a necessarily included lesser offense of armed robbery; People v Nickens; Sentencing; Scoring of OVs 1, 2, 8, & 10; Mootness; MCL 777.31(2)(e); MCL 777.38(1)(a)
Holding that defendant was not denied his constitutional right to a fair trial and was not entitled to resentencing, the court affirmed his convictions and sentences for armed robbery and unlawful imprisonment. He was sentenced as a fourth-offense habitual offender to concurrent terms of 24 to 40 years for armed robbery and 12 to 30 years for unlawful imprisonment. He argued that he was deprived of his right to a fair trial by, among other things, testimony from one of the investigating officers (K) that “encroached on the province of the jury.” But the court found that the trial court properly admitted K’s testimony about “the surveillance video footage and defendant on the day of his arrest under MRE 701 because it was rationally based on his perceptions and it assisted the jury in understanding his investigation and the conclusions he drew from the evidence collected during that investigation.” As to defendant’s prosecutorial misconduct argument, the court concluded that under the circumstances, “the prosecution reasonably attacked defendant’s credibility by eliciting testimony during cross-examination of his experience with law enforcement to reasonably suggest to the jury that defendant would not easily fall for manipulative tactics that law enforcement employed. Such questioning did not constitute prosecutorial misconduct.” The court also disagreed with his claim that the trial court’s comments about a defense exhibit “pierced the veil of judicial impartiality.” As to the jury instructions, “a rational view of the evidence did not support a finding of guilt for larceny from the person because evidence established that defendant used force during the commission of the robbery.” Thus, he was not entitled to an instruction on that lesser offense. As to his sentencing claims, his arguments as to the scoring of OVs 2 and 10 were moot. Because “the restroom was a location ‘away from the presence or observation of others,’ . . . it constituted a place of greater danger under” OV 8, and the trial court did not err in scoring that OV at 15 points. While the prosecution conceded OV 1 was erroneously scored at 5 points, subtracting these points did not alter his guidelines range.
Ineffective assistance of counsel; Failure to strike or challenge for cause three jurors; Failure to object to the prosecutor’s notice of intent to introduce other acts evidence & to admission of evidence not included in the notice; Failure to effectuate timely service of a subpoena on a witness; Failure to object to part of the prosecutor’s closing argument; Cumulative error; Sentencing; The 25-year mandatory minimum sentence under MCL 769.12(1)(a); Cruel or unusual punishment
The court concluded defendant was not entitled to relief based on ineffective assistance of counsel and there was no cumulative prejudicial effect to consider. He also “failed to present unusual circumstances that would overcome the presumptive proportionality of his legislatively mandated minimum sentence, which was not unconstitutionally cruel or unusual. He was convicted of assault by strangulation and domestic violence. He first argued “that defense counsel was ineffective for failing to strike or challenge for cause three jurors who were allegedly biased or expressed doubts regarding defendant’s presumption of innocence.” The court held that none of the jurors’ answers to “counsel’s questions indicated bias or a mindset that prevented the jurors from fairly deciding the case on the basis of the evidence that would be presented at trial. Although the jurors agreed to varying degrees with the notion that defendant may have been involved in some type of incident, they did not express a preconceived view that he was guilty of the charged offenses." And their answers "reflected a willingness to apply the presumption of innocence and fairly consider the evidence presented at trial.” Thus, the court could not “conclude that a challenge for cause would have succeeded for any of the three jurors, and defense counsel’s failure to raise a meritless argument does not constitute ineffective assistance.” It also could not conclude that “counsel’s failure to use his one remaining peremptory challenge on any of the three jurors was objectively unreasonable.” Nothing suggested “counsel would have believed anything other than ‘that he had attained a reasonable, fair, and honest jury.’” Moreover, “counsel used four of his five peremptory challenges, and it would have been reasonable trial strategy if [counsel] deemed it prudent to not use a peremptory challenge on any of the at-issue jurors so as to keep one peremptory strike in reserve for a potentially less favorable prospective juror. Similarly, it would have been reasonable trial strategy if defense counsel deemed it prudent to not use his last peremptory challenge on any of the at-issue jurors out of fear that the juror who replaced the struck juror would be less favorable to the defense.” The court also found counsel was not ineffective for failing to object to the prosecutor’s notice of intent to introduce other acts evidence and for failing to object to the admission of such evidence that was not included in the notice, noting the failure to object "was not objectively unreasonable because (1) an objection would have been futile and (2) not objecting to [it] constituted reasonable trial strategy under the circumstances.” Further, defendant “failed to show a reasonable probability of a different outcome but for” the failure to object. Finally, he failed to establish that “counsel’s performance was constitutionally deficient with respect to the attempt to serve the subpoena on” a potential witness. Affirmed.
Child custody; Order directing the child to attend a particular school; Principle that because a child’s placement in a particular school district is an important decision affecting the child’s welfare, both parents must agree on that decision; Bowers v VanderMeulen-Bowers; Best-interest factors; MCL 722.23; Lombardo v Lombardo; The capacity & disposition of the parties involved to give the child love, affection, & guidance & to continue the education & raising of the child in his or her religion or creed, if any; MCL 722.23(b); Great weight of the evidence; Comparative quality of the schools
The court held that the trial court did not abuse its discretion by ordering the parties’ child to enroll in public school and its factual findings were not against the great weight of the evidence. The trial court ordered the parties to enroll their child in public school, despite plaintiff-father’s proposal that the child attend private school. On appeal, the court rejected his argument that the trial court abused its discretion by ordering the child to be enrolled in public school because its order was based on a misinterpretation of MCL 722.23(b). “The trial court found, under factor b, that both parties were vested in [the child’s] education and in raising [the child] in their religion or creed.” As such, it “found that that factor was equal between the two school choices.” To the extent that it “erred, its error was in believing MCL 722.23(b) applies to school-choice decisions and was a neutral factor. The trial court should have determined that that factor was not relevant to the determination of the school at which” the child should be enrolled. The school the child “should attend has no impact on the parenting time or custody of either party, so MCL 722.23(b) has no bearing on the decision about” the school. Thus, the court was “not persuaded by plaintiff’s assertion that the trial court’s decision “was an abuse of discretion because it misinterpreted MCL 722.23(b).” The court also rejected plaintiff’s argument that the trial court’s factual findings were against the great weight of the evidence. “Many of the facts plaintiff emphasizes on appeal—that [the child] would know her classmates, that she was familiar with the campus, and that not all students there are Catholic—have no bearing on the quality of the two schools.” And the record does not “clearly preponderate in favor of plaintiff’s claim that” the private school “offered more opportunities.” Affirmed.
Custody; Change of circumstances warranting review of an existing custody arrangement; Clear & convincing evidence that modifying the children’s established custodial environment was in their best interests; The statutory best-interest factors (MCL 722.23); Factors (b), (g), (h), (j), & (l); Claim that applying the Child Custody Act’s (CCA) best-interest factors to determine custody violated the substantive due process right to parent; Robertson v Robertson (Unpub); The parens patriae interest
The court concluded the trial court did not err in determining that a change of circumstances existed warranting review of the parties’ existing custody arrangement. Further, none of the trial court’s findings as to the challenged best-interest factors were against the great weight of the evidence. Finally, finding Robinson persuasive and adopting it, the court likewise rejected plaintiff-mother’s claim that applying the CCA’s best-interest factors to decide “custody violated her substantive due process right to parent[.]” The parties, who were never married, entered into a consent judgment for custody of their two children in 2020. At issue on appeal was the trial court's later “order denying plaintiff’s objections to the referee report and recommendation that sole legal and physical custody be awarded to defendant.” The court first determined that a “medical report established a change in circumstances” (suspected physical abuse) “occurred after the last custody order.” It then considered plaintiff’s challenges to the trial court’s findings on best-interest factors (b), (g), (h), (j), and (l). The trial court focused on the parties’ parenting skills in concluding (b) slightly favored defendant. In light of “the testimony and exhibits presented during the evidentiary hearing,” this finding was not against the great weight of the evidence. The same was true as to the determination (g) favored him, given that “the trial court’s finding that mother’s health issues were more serious than father’s health issues was supported by the record[.]” Further, the finding that (h) favored him “was not against the great weight of evidence because father, though understandably so, was indeed more involved in the children’s doctor appointments than mother.” As to (j), the referee’s finding that plaintiff denied defendant “parenting time out of anger or spite, was supported by father’s fiancée’s testimony that mother would often come up with an excuse to withhold the children from father if she was upset with him.” The court noted “the trial court was in the best position to assess witness credibility, and apparently found” the fiancée credible. Finally, the finding that (l) favored defendant was likewise not against the great weight of the evidence. While “both parents had substantiated allegations for improper supervision,” plaintiff’s led to one child’s “serious burn injury, and the children generally incurred more injuries while in” her care. Affirmed.
No-fault action; Whether a stipulated order was ambiguous; Motion for relief from judgment
The court held that the stipulated order at issue unambiguously dismissed defendant-Progressive from the case, and the trial court did not abuse its discretion by denying plaintiff-Sursely’s motion for relief from judgment. Sursely argued that the stipulation was “ambiguous, and extrinsic evidence shows that it only was intended to dismiss Progressive from Sursely’s claim for PIP benefits.” But the court found that the stipulated order was an unambiguous contract. The order stated “that Progressive ‘shall be and is hereby dismissed from this matter, with prejudice.’ Under the plain and ordinary meaning of the contractual language, the stipulated order completely dismissed Progressive from the case. Nothing in the language of the stipulation suggests that Progressive’s dismissal was limited to Sursely’s PIP claim.” The contract was “not capable of conflicting interpretations because it clearly states that Progressive is ‘dismissed from this matter, with prejudice.’ The stipulated order thus dismissed Progressive from the entire matter, not just from some of Sursely’s claims.” He also argued that the trial court erred by denying the motion for relief from judgment. “The parties unambiguously agreed that Progressive would be dismissed from the case. If Sursely mistakenly understood the contract to only dismiss Progressive from Sursely’s PIP claim, this was a unilateral mistake that does not justify relief.” Further, although fraud may justify relief from judgment, nothing in the record suggested “that the straightforward contents of the one-page stipulated order were somehow misrepresented to Sursely by Progressive.” Affirmed.
Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts; Children’s best interests
Holding that (1) §§ (c)(i) and (j) existed, (2) the trial court properly found reasonable efforts were made to reunify the children with respondent-father, and (3) it did not clearly err by finding terminating his parental rights was in their best interests, the court affirmed. The trial court found termination proper under § (c)(i) “because, although he made progress toward his parenting-skills barrier, he did not make progress ‘as to the other issues, domestic violence, substance abuse, and emotional stability . . . .’” Although the father “was offered reasonable services, the record indicates that he failed to benefit. Therefore, even if he made some progress, the evidence established that he only minimally progressed and the conditions that led to adjudication continued to exist.” In addition, “182 or more days had elapsed since the issuance of an initial dispositional order. The trial court found that respondent’s earliest release date from prison could be May 2026, a period ‘too long for the children to wait’ for [him] to address his barriers and be able to provide permanency, stability, and finality for the children.” At the time of the termination hearing, they “had already been in a foster home for approximately one year—the children were three years old, two years old, and one year old at the time of the” hearing. Thus, even if he “rectified his barriers, by his earliest release date from prison, the children would remain without permanence and stability for four additional years. Considering the time that had passed since the opening of the case, respondent’s incarceration, and his failure to rectify his barriers to reunification, the trial court did not clearly err by finding that he would not be able to rectify the conditions that led to adjudication in a reasonable time.” Respondent appeared “to argue that, because he completed the provided services, and his progress was still classified as poor, the services offered were inadequate.” The court found no merit to this argument. “The trial court explained that, although respondent appropriately participated in services,” he failed to show “that he benefited from them.” Evidence established his “failure to benefit from the services: (1) he continued contact with the mother despite a no-contact order, (2) he lacked understanding of how domestic violence between himself and the mother could negatively impact the children, (3) he continued to deny drug use despite positive drug screenings, and (4) he made continuous interruptions in the trial court proceedings demonstrating his lack of self-control and inability to manage his anger issues. The trial court did not clearly err by finding that reasonable” reunification efforts were made. Finally, “the trial court considered the applicable factors” in determining the children’s best interests.