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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Action seeking enforcement of attorneys’ charging liens in a divorce case; Kysor Indus Corp v DM Liquidating Co
The court held that the trial court did not abuse its discretion by declining to enforce appellant-law firm’s (Szymanski) and cross-appellant-attorney’s (Nichols) respective charging liens. After a judgment of divorce was entered, defendant-ex-husband was uncooperative with orders directing him to disburse assets to plaintiff-ex-wife. As such, a receiver was appointed. Szymanksi and Nichols later sought charging liens for unpaid legal services. The trial court ultimately denied their motions. On appeal, the court rejected their argument that the trial court erred in doing so. It noted that “while the trial court’s use of the word ‘dismissed’ may have been imprecise, [it] reasonably may be understood as declining to enforce the charging liens.” The trial court “did not abuse its discretion in that regard.” While it was true that plaintiff “received a substantial amount of money following the . . . divorce judgment, this fact would weigh in favor of enforcing the charging liens, as it may be inferred that doing so would not leave her destitute.” However, plaintiff “was owed hundreds of thousands of dollars that she likely would never recover. In addition, the post-divorce proceedings had been ongoing for over 25 years, and when the trial court decided the case, the parties were arguing about services provided over a decade prior. The passage of time arguably rendered it difficult for the trial court to even provide a principled decision at this stage of the case.” The court added that, while not “the complete amounts they seek, Szymanski was paid about $100,000 in attorney fees, and Nichols was paid about $10,000 in attorney fees.” As such, “declining to enforce the charging liens would not result in the attorneys being unpaid for their legal services.” In light of these facts, “as well as the fact that this is a divorce case—which other state courts have recognized as perhaps weighing against a charging lien—we conclude that the trial court did not abuse its discretion by declining to enforce the charging liens.” Affirmed.
Request for the jury to view the crime scene; Manslaughter instruction; Rebuttable presumption for the instruction; M Crim JI 7.16a; MCL 780.951; Motions for a directed verdict, JNOV, or new trial; Self-defense; Great weight of the evidence
The court held that the trial court did not abuse its discretion in denying “defendant’s motion for a jury view of the crime scene.” It also concluded the trial court did not abuse its discretion by giving the jury an instruction on manslaughter. Additionally, “MCL 780.951 did not apply and M Crim JI 7.16a was not supported by the evidence.” Further, the trial court properly declined to grant his motions for a directed verdict or a new trial. Finally, the manslaughter verdict was not against the great weight of the evidence. The case arose out of the shooting death of victim-L. Defendant and L had two children together. He was convicted of manslaughter and felony-firearm. Defendant argued, among other things, that the trial court erred by denying his request for the jury to view the crime scene. Although he argued “that it was necessary for the jury to view the crime scene to feel how small the areas in the house felt in person, there was ample evidence of the size and dimensions of the crime scene through photos, diagrams, videos, and descriptions.” Further, although defendant argued “that the trial court’s decision prevented him from being able to adequately present his defense of self-defense, a jury view would not have aided the jury in making that determination. Defendant showed videos of how fast a person could walk or run to get a gun from the computer room to retrieve a gun and return to the kitchen, and how fast a person could retrieve a knife from the kitchen. The evidence presented showed that defendant left the kitchen for between a few seconds and a minute and a half before he returned to shoot” L. Defendant “did not explain how an in-person view of the scene would have given additional information to the jury, apart from the ‘feeling’ of closeness. Further, it was undisputed that the kitchen had knives within easy reach. However, the two eyewitnesses, defendant’s children, both testified that [L] dropped the knife that she had and never reached for another.” Further, the court noted that “defendant’s son testified that he thought that the fight was over when defendant was in the computer room, and he, his sister, and [L] were getting ready to leave the house when defendant came back with the gun to shoot” L. In other words, defendant did not show “that his theory of self-defense failed because the jury lacked an understanding that the rooms were small and close together.” Rather, a reasonable inference from the evidence was “that the jury concluded that defendant did not honestly believe that [L] continued to pose a threat to his life after she dropped the knife, and that he was able to leave the kitchen, [L] did not follow him, there was no further yelling or fighting, and the witnesses believed that the fight was over.” Affirmed.
Admissibility of the victim’s out-of-court statements; Statements made for purposes of medical treatment or diagnosis (MRE 803(4)); Present sense impressions (MRE 803(1)); Excited utterances (MRE 803(2)); Right of confrontation; Whether statements to a police officer were testimonial; Prejudice; Ineffective assistance of counsel; Failure to object; Other acts evidence; MRE 404(b)(1); Harmless error; MCL 769.26; Sufficiency of the evidence; Torture; Unlawful imprisonment; Possession of less than 50 grams of a controlled substance; Felonious assault; FIP; Witness intimidation; Felony-firearm (second offense); Missing witness jury instruction; Due diligence; Emergency medical technician (EMT)
The court held that the trial court did not abuse its discretion in admitting the victim’s (D) out-of-court statements to neighbors and an EMT under MRE 803(4), (1), and (2). While D’s statements to an officer (R) were testimonial and their admission violated defendant’s right of confrontation, he failed to show prejudice as required under plain error review. He also did not establish his ineffective assistance of counsel claim, and the court found that an error in admitting other acts evidence was harmless. It further held that there was sufficient evidence to support his convictions of torture, unlawful imprisonment, possession of less than 50 grams of a controlled substance, felonious assault, FIP, witness intimidation, and felony-firearm (second offense). Lastly, it found that the trial court did not abuse its discretion in denying defendant’s request for a missing-witness instruction. The case arose from D’s being held captive in the basement of a house. Defendant first challenged the admission of D’s statements to an EMT who arrived on the scene. In the process of the EMT administering medical aid, D “described his injuries and how they occurred. His statements explaining the origin of his injuries were reasonably necessary to a diagnosis of his condition and a determination of his need for medical treatment.” Thus, the statements in the EMT’s report fell “squarely within the scope of MRE 803(4)[.]” The court further held that D’s statements to two individuals in a nearby home “were admissible as present sense impressions and excited utterances.” As to R, to the extent he “provided testimony that referred to various statements made by the victim, it was not done with a primary purpose of establishing the truth of the statements. Moreover, the limited testimony was cumulative of properly admitted testimony from” the other witnesses. As to the other acts testimony, given “the weight and strength of the properly admitted evidence, defendant” did not show it was more probable than not that the trial’s outcome would have been different if it had not been admitted. The court also held that R’s efforts to locate D and another witness were reasonable given the information he had about them. “Thus, the trial court did not abuse its discretion by finding that [R] made reasonable, good-faith efforts to procure” their attendance at trial. Affirmed.
Voluntariness of a confession; Custodial interrogation; People v Cortez; Right against self-incrimination; Waiver; People v Barritt; Totality of the circumstances test; Ineffective assistance of counsel for failure to file a motion to suppress; Failure to make a futile objection; Prejudice; Improper vouching; People v Dobek; Other acts evidence involving a minor; MCL 768.27a; Unfair prejudice; MRE 403; Consecutive sentencing; Proportionality
The court held that there were no errors requiring reversal, but that remand was required for the trial court to articulate its reasoning for imposing consecutive sentences. Defendant was convicted of CSC I for sexually abusing KG. He began sexually abusing her sometime between the ages of three and five and continued to do so until she was 16. KG estimated that during this time she engaged in 1,500 to 1,600 sexual acts with defendant. The trial court sentenced him to 25 to 60 years for the first two CSC I convictions, and 210 to 720 months for the third and fourth counts. It sentenced him to serve the first three counts concurrently, but to serve the fourth count consecutive to the third count. On appeal, the court rejected his argument that his inculpatory statements were involuntary and trial counsel was ineffective for failing to object to their admission. “Each factor was either neutral or favor[ed] a determination that defendant was not in custody. Considering the totality of the circumstances, [he] was not in custody.” As such, the officer “was not required to read him his Miranda rights, and defendant’s inculpatory statements did not need to be suppressed.” In addition, the “totality of the circumstances surrounding [his] inculpatory statements supports the conclusion that they were freely and voluntarily made.” And defendant “cannot establish that his counsel’s performance fell below an objective standard of reasonableness.” The court also rejected his claim that one of the prosecution’s expert witnesses impermissibly vouched for KG at trial when she testified that “around 90 percent of kids are sexually touched by someone they know and love.” The prosecution referred to the expert’s testimony “to dispel the notion that a delayed disclosure and flat affect were inconsistent with a child experiencing sexual abuse. She did not refer to [it] to contend that KG was a victim because she had a flat affect or because she delayed disclosure.” The court next rejected his challenge to the constitutionality of MCL 768.27a and his contention that other-acts evidence admitted under that statute should have been excluded under MRE 403. “Because the trial court adhered to binding authority when it admitted other-acts evidence under MCL 768.27a, no error was committed.” Further, while it “was prejudicial to defendant, . . . it was not so unduly prejudicial that it outweighed the probative value.” Finally, the court and the prosecution agreed with defendant that he was entitled to remand as the trial court failed to articulate its reasoning for sentencing him consecutively. It “only stated that it had the authority to” do so, leaving the court “to speculate regarding the trial court’s rationale, and thus, unable to determine whether the trial court abused its discretion.” But the trial court did not err by relying on “victim closure” as a ground for sentencing. Affirmed, but remanded.
Habeas corpus; 28 USC § 2244; Antiterrorism & Effective Death Penalty Act (AEDPA) time bar (§ 2244(d)); “Actual innocence” exception to the time bar; Whether petitioner offered new reliable evidence that more likely than not would have exonerated him; Schlup v Delo; Request for remand for an evidentiary hearing
[This appeal was from the ED-MI.] The court held that petitioner-Hubbard failed to show he was entitled to application of the “actual innocence” exception to the AEDPA’s one-year time limitation where he failed to offer new reliable evidence that exonerated him. Thus, it affirmed the district court’s denial of his habeas petition. Hubbard filed the petition over 20 years after he was convicted of first-degree murder. He sought relief under the AEDPA’s equitable actual innocence exception to the time bar. The district court dismissed his petition as untimely but certified his actual innocence claim for appeal. To support his claim, Hubbard had to show that “new reliable evidence” would make it “more likely than not” that a reasonable juror would not have convicted him. His new evidence consisted of a news article involving coerced confessions that named the officer who had questioned him; an affidavit of a fellow prisoner claiming to have seen another man shoot someone at the crime scene; affidavits from various witnesses naming the other man as the shooter based on the “word on the street”; a witness (C) who recanted his accusations and testimony as “coerced”; polygraph and FOIA evidence; and an affidavit claiming that C had admitted lying about Hubbard’s involvement in the murder. The court explained that to succeed under this theory, a petitioner must do more than just undermine the government’s case — “he must demonstrate that he factually did not commit the crime.” It held that a petitioner is required to “show the probability of his innocence, rather than merely impeach the State’s case. This means that a defendant must put forth some type of reliable evidence that is exonerative in nature.” The evidence does not have to “conclusively prove his exoneration to make the gateway showing, but it must, at minimum, go towards his innocence.” The court concluded that C’s recantation was not “reliable” where he had repeatedly changed his story. Further, it did not find the affidavits implicating another man to be reliable, noting that there was no corroborating evidence. It also determined that an evidentiary hearing would not help Hubbard’s claim and denied his request for remand for this purpose.
Medical malpractice; Statute of limitations; Tolling; Administrative Order No. 2020-3 (AO 2020-3); Administrative Order No. 2020-18 (AO 2020-18); Application & validity of the AOs; Carter v DTN Mgmt Co
In this medical malpractice case, the court held that the “trial court erred by failing to exclude the 102-day stay period” under the Supreme Court’s AOs “from its calculation of when the applicable limitations period expired.” Also, it found no merit in defendants’ claim that the Supreme Court lacked the authority to toll the statute of limitations. Thus, the court reversed the trial court’s order granting defendants summary disposition and remanded. The case arose from defendant-Dr. Shaird’s allegedly negligent treatment of plaintiff-estate’s decedent, Walsh. Plaintiff’s claim of medical malpractice accrued on 3/2/17, “the last date that Walsh was treated by Dr. Shaird. Pursuant to MCL 600.5805(8), the limitations period for plaintiff’s claims would have expired on [3/2/19] because the statutory period of limitations for plaintiff’s claim is generally two years. However, because Walsh died before the period of limitations had run, and the letters of authority were issued to Walsh’s estate on [12/27/18], the period of limitations was extended to” 12/27/20. Plaintiff filed this complaint on 2/26/21, “which ordinarily would be outside even this extended limitations period.” However, on 3/23/20, the Michigan Supreme Court issued AO 2020-3. This order was rescinded effective 6/20/20 by AO 2020-18. Thus, “‘the exclusion period at issue” was 102 days. The court concluded that the “trial court misapplied AO 2020-3 by failing to exclude the 102-day tolling period from its calculation of plaintiff’s filing deadline.” It found that “AO 2020-3 clearly and unambiguously tolled all limitations periods pertaining to case initiation, and the trial court, therefore, erred by limiting AO 2020-3’s applicability.” Further, the court’s binding case law, Carter, counseled it “to conclude that AO 2020-3 was constitutional.” Defendants argued here “that recognizing plaintiff’s interpretation of AO 2020-3 would mean that the Supreme Court impermissibly invaded the province of the Legislature by altering statutes of limitations. This is precisely the argument this Court rejected in Carter; therefore, we reject it again.”
Motion to reopen removal proceedings; Motions to reopen based on “changed circumstances”; 8 CFR § 1003.2©(3)(ii); Whether the Board of Immigration Appeals (BIA or the Board) failed to compare the evidence submitted with a motion to reopen to the country-conditions evidence presented with the application for relief under the Deferral of Removal under the Convention Against Torture (DCAT); Whether the changes in country conditions were “material”; Whether the BIA was required to consider the evidence as to the risk of torture “in the aggregate”; Marqus v. Barr; Matter of J-R-G-P- (BIA); Whether the BIA articulated a reasoned basis for concluding petitioner did not establish a reasonable likelihood of torture; Whether errors were “harmless”; Immigration & Naturalization Service (INS); Immigration judge (IJ)
The court held that the BIA erred by failing to compare the evidence of conditions in Iraq submitted with petitioner-Abdulahad’s motion to reopen with his application for DCAT relief and instead comparing it to the country-conditions evidence presented in his prior motions. As a result, it applied the incorrect legal standard. And in an issue of first impression in this circuit, the court formally adopted the “aggregate” risk of torture standard announced in Marqus and Matter of J-R-G-P-. Abdulahad, who was born in Iraq, secured permanent resident status in the U.S. He was found guilty of attempting to transport cocaine in Aruba, and the INS instituted removal proceedings. He was ordered removed in absentia and has since remained in the country under supervision. He successfully had his case reopened in 2017, where his claim was based upon changed conditions in Iraq. But the IJ rejected his claim of future torture as a Chaldean Christian or based on his ties to the U.S. He unsuccessfully moved to reopen in 2018. In 2021, he filed a new motion to reopen, along with a supplement with updated reports on the conditions in Iraq. It was ultimately denied. Because his motion was filed outside the 90-day limit, he was required to meet the requirement of showing changed country circumstances. He argued that the Board failed to compare the evidence he submitted with his motion to reopen to the country-conditions evidence presented with his application for DCAT relief, and instead compared it to evidence in his other motions to reopen. The court agreed, explaining that the Board “incorrectly disregarded most of Abdulahad’s evidence as cumulative or not new.” Because the Board “explicitly compared the wrong evidence throughout its decision[,] . . . [it] abused its discretion by applying the incorrect legal standard.” The court also found that the Board failed to adequately explain whether persecution of Christians had escalated since Abdulahad’s original proceeding. And the court held that “if a petitioner invokes more than one independent source of or reason for the risk of torture, the Board must consider the petitioner’s risk of torture in the aggregate.” Abdulahad also argued the Board erred by failing to articulate a reasoned basis for concluding he did not establish a reasonable likelihood of torture. “The Board abuses its discretion if it explicitly considers some but not all of the critical bases of a petitioner’s claim.” The court concluded “the Board abused its discretion by not articulating a reasoned basis for its decision that addressed the relevant information.” It rejected the government’s argument that any error was harmless. The court granted the petition for review, vacated the Board’s decision, and remanded.
Motion to terminate a personal protection order (PPO); Due process; Right to be heard; Waiver
Concluding there was no remedy it could offer petitioner, the court affirmed the trial court’s order granting respondent’s motion to terminate the PPO she had obtained against him. After respondent filed his motion, “petitioner was personally served an ‘Electronic Hearing Notice’” (the Notice) with the motion and a 7/11/23 notice of hearing attached. The Notice stated “the time and location of the hearing that would be conducted on Zoom. [It] included detailed instructions that specified how and where to navigate on the Zoom website. The Notice also stated that failure to appear for the hearing could result in the trial court granting respondent’s motion to terminate the PPO. Petitioner did not appear in the court room for the hearing.” The court noted she did not offer any “evidence, as part of the record or otherwise, that the trial court had information that petitioner was waiting in the wrong Zoom waiting room.” It concluded it could not offer her any remedy under the circumstances. The issues she raised as to “violations of her right to due process, her failure to receive timely notice, the lack of personal jurisdiction, and the Notice being confusing and ambiguous, are all issues that cannot be raised for the first time on appeal.” There was no record evidence supporting “error or negligence by the trial court or its staff.” As a result, it had “no basis to reverse the trial court’s order or order the trial court to hold another hearing or change or vacate its prior order,” and it held that the trial court did not abuse its discretion in granting “respondent’s motion. Petitioner may file a new petition for a PPO against respondent, assuming there is still a basis to do so.” The court noted “that if the allegations in petitioner’s verified statement is true, it is clear that the [trial] court and its staff failed to ensure [her] due-process rights were protected.” It appeared that no one asked her “which virtual courtroom she was waiting in or whether she needed assistance finding the correct one. The responses she did allegedly receive were misleading and not helpful. If what petitioner claims happened is true, such failure by the [trial] court and its staff is unacceptable.” However, it is not within the court’s “purview to make such determinations in the first instance, which squarely rests with the trial court.”