Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Ineffective assistance of counsel; People v. Pickens; Duty to investigate; People v. Shahideh; People v. Trakhtenberg; A substantial defense; People v. Kelly; Failure to pursue information that the client neglected to provide; People v. McGhee; Self-defense; People v. Dunigan; People v. Riddle; The Self-Defense Act (MCL 780.971 et seq.); MCL 780.972(1)(a); Principle that self-defense is not a defense to carrying a concealed weapon; People v. Townsel; Felon in possession; People v. Dupree; People v. Guajardo; Matters of trial strategy; People v. Rockey; People v. Dalessandro; People v. Ortiz; Arguing one defense over another; People v. Hedelsky; People v. Vaughn; Failure to request an inapplicable jury instruction; People v. Truong (After Remand); Alleged conflict of interest; Cuyler v. Sullivan; Freund v. Butterworth (11th Cir.); Principle that counsel may not assist defendant in presenting false evidence; Nix v. Whiteside; Inconsistent claims & defenses; People v. Cross; Failure to move to disqualify the assistant prosecutor; People v. Doyle; People v. Davenport; Failure to pursue a futile motion; People v. Brown; Sentencing; Accurate information; Judicial fact-finding; People v. Lockridge; OV 3; People v. Dillard; Assault with intent to do great bodily harm (AWIGBH)
The court rejected the defendant’s ineffective assistance of counsel claims and his claim that an attorney with whom he consulted had a conflict of interest. Further, while he showed a Sixth Amendment violation as to judicial fact-finding in the scoring of OV 3, he was not entitled to appellate relief. Thus, it affirmed his AWIGBH conviction and his sentence as a second-offense habitual offender to 3 to 15 years. It found that the record did not support his ineffective assistance claim as to attorney B, noting that defendant never asserted self-defense during the time B represented him “and counsel ‘cannot be found ineffective for failing to pursue information that his client neglected to tell him.’” Further, even if B should have known that defendant wanted to pursue this defense rather than one of mistaken identity, defendant was not prejudiced as he was able to pursue his self-defense claim at trial. His primary claim as to attorney K was that K did not request a self-defense instruction. However, the court held that while defendant testified that he acted in self-defense, the law did not support this claim at the time of trial. Trial counsel is not ineffective for failing to request an inapplicable jury instruction. The court held that attorney L, who never represented him, did not have a conflict of interest when he consulted with defendant. L later represented defendant’s girlfriend, who testified for the prosecution after she was implicated in the procurement of false affidavits. It noted that even Freund, an Eleventh Circuit Court of Appeals case that suggested a conflict of interest could arise where counsel was consulted but not retained, involved a scenario where “the defendant was represented by the lawyer who had been consulted by the witness.” As to sentencing, the court agreed that the scoring of OV 3 at 10 points was based on judicial fact-finding and its scoring increased the floor of his guidelines range. However, the trial court already re-evaluated defendant’s sentence in light of Lockridge when it considered his post-sentencing motion and found that it would not have imposed a different sentence if it had known the guidelines were only advisory.
Search & seizure; The “knock-and-talk” doctrine; People v. Bolduc
Holding that the trial court erred by not granting the defendant’s motion to suppress statements he made to police, the court reversed the ruling, vacated his conviction, and remanded. Detectives C and R went to a home owned by S, where defendant was renting part of the garage. C was carrying a digital recording device that was turned on and recording. The garage door was open so they knocked on a door to the house located inside the garage. Defendant answered and agreed to speak with the detectives inside the garage. Several times during the interview, he stated his need for an attorney, but the detectives continued their questioning. He eventually told them he had entered L’s home, where he worked as a caretaker for the property, and took money from the freezer. The trial court denied his motion to suppress the statements he made to the detectives. He was convicted of second-degree home invasion. On appeal, the court found that the situation “went beyond a simple ‘knock and talk.’” It noted that the differences between this case and Bolduc were not enough for the case to fall outside Bolduc’s parameters. “The police, on defendant’s rented property, employed coercive interrogation techniques despite the unequivocal expression of the desire for an attorney.” Given that they “continued with pressurized questioning after an unequivocal request for an attorney . . . a person in defendant’s situation would understand that his requests to terminate the encounter, like in Bolduc, were going unheard. Indeed, defendant, by requesting an attorney, was expressing the desire to terminate the encounter, on his property, but the police persisted.” Thus, pursuant to Bolduc, “the incriminating statements resulted from an unconstitutional expansion of a proper ‘knock-and-talk’ procedure.”
Whether a witness was unavailable; MRE 804(a); People v. Dye; People v. Bean; People v. James (After Remand); Whether there was good cause to allow the prosecution to delete the witness from its witness list; MCL 767.40a(4); People v. Perez; People v. Cook; People v. McGraw; Assault with intent to do great bodily harm less than murder (AWIGBH)
The court held that the trial court did not abuse its discretion by allowing the prosecution to delete a witness from its witness list. The defendant was convicted of AWIGBH, assault with intent to maim, and felonious assault. He contended that S was “a crucial eyewitness,” and that his daughter’s (R) testimony as to his inability to attend trial for medical reasons was biased and uncorroborated testimony by a lay witness. He claimed the prosecution did not make a sufficient showing that S was physically or medically unable to attend the trial. The court noted that “this was not a case where the prosecution could not locate the witness and asked that the witnesses’ prior testimony be read to the court.” As such, MRE 804(a)(4) did not come into play, and neither did the cases applying it. Instead, the proper question was “whether there was good cause to allow the prosecution to delete” S from its witness list. It found that defendant failed to provide “any argument addressing the ‘good cause’ standard, other than to argue the ‘unavailability’ standard under the inapplicable MRE 804.” The court concluded that the prosecution complied with the statute by seeking leave to delete S from its witness list, and the trial court did not abuse its discretion in allowing the prosecution to do so as good cause was established through R’s testimony. It noted that at the conclusion of her testimony “the prosecutor was granted permission to question [her] about her father’s absence from trial.” She testified that S, who was 82, had been taken to the hospital the week before, was dehydrated, had a virus, and was weak, and was thus unable to come to court. Defendant cross-examined her, “and established that although [S] was in the hospital overnight the week before, he was not currently dehydrated.” Although “it would have been preferable for the trial court to have obtained some independent and objective evidence as to” S’s condition, its reliance on R’s testimony and the prosecution’s representations that S was too frail to come to court and testify were not unreasonable, “especially when defendant did not produce any evidence that put into question” her testimony, and the fact that R “was also the victim was patently clear to the trial court, and could have been taken into account in its ruling on this issue.” Affirmed.
Motion to vacate under 28 USC § 2255; Ineffective assistance of counsel; The role deportation consequences should play in evaluating prejudice under Strickland v. Washington; Whether it would have been “rational” to risk a longer prison sentence in order to avoid deportation; Hill v. Lockhart; Pilla v. United States; Delgadillo v. Carmichael; Kovacs v. United States (2d Cir.); United States v. Akinsade (4th Cir.); United States v. Kayode (5th Cir.); Jury nullification; United States v. Orocio (3d Cir.); DeBartolo v. United States (7th Cir.); Strickland’s admonition as to jury nullification or happenstance; Harrington v. Richter
Petitioner-Lee, who pleaded guilty to drug possession with intent to distribute after his counsel mistakenly advised him that a guilty plea would not result in deportation, could not obtain relief under § 2255 based on ineffective assistance because he did not show that the attorney’s alleged deficient performance prejudiced his defense. Lee could not establish “‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” The court held in Pilla that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.” The court rejected the decisions of other circuits and held that jury nullification may not “be considered when evaluating whether a petitioner has shown Strickland prejudice.” Nothing here suggested that Lee would have been acquitted at trial, or would have secured a conviction for a crime that did not require deportation. The court noted that Strickland contains an “admonition that courts may not consider jury nullification or happenstance when deciding whether a petitioner has demonstrated prejudice.” Thus, it joined “the Second, Fourth, and Fifth Circuits in holding that a claimant’s ties to the United States should be taken into account in evaluating, alongside the legal merits, whether counsel’s bad advice caused prejudice.” Lee’s problem was that he lacked any bona fide defense, even a weak one. Thus, while he had very strong ties to the U.S., he could not show prejudice. Accordingly, the court affirmed the district court’s order denying his § 2255 motion to vacate his conviction and sentence.
Suppression of evidence seized during the search of the defendant’s home; U.S. Const. amend. IV; Payton v. New York; United States v. Berry; “Nexus” between the place to be searched & the evidence sought; United States v. Carpenter; Illinois v. Gates; United States v. Frazier; Florida v. Harris; Zurcher v. Stanford Daily; “Good faith exception” to exclusion for an invalid search warrant; Illinois v. Krull; United States v. Leon; Confidential informant (CI)
[This appeal was from the ED-MI.] In an amended opinion (see e-Journal # 60792 in the 9/17/15 edition for the original opinion), the court vacated defendant-Brown’s drug and firearm convictions because the warrant affidavit lacked probable cause to search his home. Brown was arrested for attempted delivery of heroin, and 22 days later, the police applied for a warrant to search his residence. Marijuana and firearms were found, and he was convicted of marijuana and firearms offenses. Brown moved to suppress the evidence, claiming that the warrant affidavit lacked probable cause. The district court denied the motion, but the court reversed, finding that “the search warrant affidavit contained no evidence that Brown distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there.” It also did not suggest that a reliable CI “had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence.” Even though the car parked outside the home that tested positive for drugs was registered to Brown’s address, this “was too vague and generalized a nexus to support the search warrant.” His status as a “known drug dealer” by itself did not create a fair probability that drugs would be found on the premises. The court requires “facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.” The probable-cause inquiry is fact intensive. Moreover, the evidence purportedly establishing that Brown was a drug dealer was inadequate. Thus, the affidavit lacked the necessary nexus between the place to be searched and the evidence sought. Further, the good faith exception to the exclusionary rule did not protect the evidence from suppression where the affidavit failed to “draw some plausible connection to the residence.” Reversed and remanded for a new trial.
Action for a writ of mandamus to declare votes void; Hanlin v. Saugatuck Twp.; A clear legal right; Rental Props. Owners Ass’n of Kent Cnty. v. Kent Cnty. Treasurer; MCL 62.7(2); MCL 62.4; Option of initiating a quo warranto action; Davis v. Chatman
Holding that the plaintiff could not show a clear legal right and that she had the option of filing a quo warranto action instead of seeking a writ of mandamus, the court affirmed the trial court’s order denying her complaint for a writ of mandamus relating to an election. Plaintiff held the office of village president before the election at issue. She lost the election to another candidate (D). After the election was certified, she filed suit seeking a writ of mandamus directed at the defendants (one of which was the county board of canvassers) to compel them to declare the votes for D void on the ground that he received votes “while in default on property tax and water bill debts to the village.” The court first noted that the facts as to D’s alleged debts to the village were controverted. Defendants disputed that he had defaulted on any debts to the village. Further, the trial court properly concluded that after the village election votes were counted and D became the village president, plaintiff had the option of bringing a quo warranto action against him, instead of this action for a writ of mandamus. Given that a quo warranto action was available, and pursuant to Davis, was the legal remedy for plaintiff to pursue when she filed her challenge, she did not show that no other equitable or legal remedy existed that may achieve the same result, which is a prerequisite for a writ of mandamus.
Adoption dispute; Whether the superintendent’s decision to withhold consent was arbitrary & capricious; MCL 710.45(7) & (8); In re Cotton; In re CW; In re Keast
The court held that the trial court did not err in holding that the superintendent’s decision to deny the petitioners-grandparents’ petition to adopt their grandchild was not arbitrary and capricious. They sought to adopt the child after their son, the child’s father, died. The child’s mother’s parental rights were previously terminated. Placement was precluded because the grandmother’s name had been placed in the Child Abuse and Neglect Registry in 1991 and 1994. She took steps to have her name expunged from the registry, including contacting an attorney. The superintendent denied their petition, noting that the child’s foster parents had shown a strong ability to meet his needs, that the child had formed a strong psychological attachment to them, and that “even though the grandmother’s name had been expunged from the central registry,” it raised questions about her suitability to parent the child. The trial court affirmed the decision, finding petitioners had not met their burden of demonstrating that the superintendent’s decision was arbitrary and capricious. On appeal, the court held that the trial court’s decision was not erroneous, noting that the psychological evaluation supported the superintendent’s testimony, and that the “significant regression” the child experienced upon resuming visitation with the grandparents was “evidenced in record documentation, which mention[ed] a lack of structure and inappropriate comments at the grandparents’ home.” The court also rejected their argument that the DHHS and the trial court erred in failing to follow a statutory preference for placement of the child with a relative, despite numerous other relatives having come forward with a desire to care for the child. “This appeal involves a section 45 hearing, which involves determining whether the agency’s decision to withhold consent to adopt was arbitrary and capricious.” It was not. “The other relatives mentioned by petitioners were involved in the protective custody case and were not parties to the section 45 hearing at issue. They were free to attempt to adopt and to file their own requests for a section 45 hearing if the attempt was unsuccessful.” Affirmed.
Insurance priority dispute; Liability to pay for no-fault personal injury protection (PIP) benefits; The “innocent third party” rule; Hammoud v. Metropolitan Prop. & Cas. Ins. Co.; Bazzi v. Sentinel Ins. Co.; The “easily ascertainable” rule; Titan Ins. Co. v. Hyten
The court held that the trial court erred in granting summary disposition for plaintiff-Farm Bureau because its recent ruling in Bazzi held that Titan abrogated the innocent third-party rule. Plaintiff-AR Therapy sought PIP benefits for therapy services rendered to C, an innocent third-party, who was injured while a passenger in D’s automobile, which was insured by defendant-Progressive, in light of Progressive’s decision to rescind the policy ab initio due to alleged fraud by D. The district court granted summary disposition for Farm Bureau, holding that Progressive could not rescind the policy with respect to C and ordering that Progressive, as the insurer with the highest priority, was required to reimburse Farm Bureau. The circuit court affirmed. On appeal, the court reversed and remanded in light of its decision in Bazzi where it concluded that Titan abrogated the innocent third-party rule. Thus, “if Progressive is able to establish fraud in this case, they may declare the policy void ab initio and are not obligated to pay PIP benefits for” C.
Tortious interference with a contract claim against the defendant-city; Governmental immunity; MCL 691.1401 et seq.; Ross v. Consumers Power Co. (On Rehearing); Governmental functions; Moraccini v. Sterling Heights; Burden on the plaintiff to plead in avoidance of governmental immunity; Hannay v. Department of Transp.; A proprietary function; Harris v. University of MI Bd. of Regents
Holding that the defendant-city’s actions in this case were clearly governmental functions and thus, the proprietary function exception did not apply, the court concluded that the trial court should have granted the city’s summary disposition motion on the basis of governmental immunity. The city contracted with defendant-Upright Wrecking & Demolition for demolition work. Upright later entered into a verbal subcontract with plaintiff, under which plaintiff hauled debris from the houses demolished by Upright. They entered into an agreement that, when the city paid Upright, it would write the check out to plaintiff and Upright jointly. The city was not part of that agreement, and it issued the check solely to Upright, which cashed the check and did not pay plaintiff. “Upright later filed for bankruptcy.” Plaintiff asserted tortious interference with the contract between plaintiff and Upright due to the city's failure to write the check out to plaintiff and Upright jointly. The court noted that a plaintiff has the burden of pleading in avoidance of governmental immunity and that, given the case involved the demolition of buildings, the only potentially applicable exception to governmental immunity was the proprietary function exception. “Activities conducted pursuant to constitutions, statutes, local charters, ordinances, or other laws are governmental functions” and not proprietary functions. The city charter authorized the city to abate and prohibit dilapidation and any other condition adversely affecting the city residents’ safety and welfare. Because plaintiff did not plead in avoidance of governmental immunity, the city was entitled to summary disposition. Reversed and remanded for entry of summary disposition in the city’s favor.
Intentional interference with a business relationship; Dalley v. Dykema Gossett; BPS Clinical Labs. v. Blue Cross & Blue Shield of MI (On Remand); Feldman v. Green; Bonelli v. Volkswagen of Am., Inc.; Whether a genuine issue of material fact existed as to whether the decision to terminate plaintiff was based on a statement allegedly made by defendant’s employee to his employer (SET Environmental, Inc. (SET)); Alar v. Mercy Mem’l Hosp.; Derderian v. Genesys Health Care Sys.; Karbel v. Comerica Bank; Exclusion of evidence about defendant’s oil spill remediation efforts; MRE 403; McDonald v. Stroh Brewery Co.; Rock v. Crocker; Witness credibility; Lysogorski v. Bridgeport Charter Twp.; Skinner v. Square D Co.; Intentional infliction of emotional distress (IIED); Doe v. Mills; Hall v. Pizza Hut of Am., Inc.
The trial court did not err in granting summary disposition to the defendant because (1) plaintiff failed to establish a genuine issue of material fact as to whether his employer’s (SET) decision to terminate him was based on a statement allegedly made by defendant’s employee to an SET employee, and (2) plaintiff’s evidence and allegations did not support the conclusion that reasonable minds could differ as to whether conduct attributable to defendant was extreme and outrageous for the purpose of his IIED claim. Plaintiff was hired by SET as a clean-up worker and worked on the remediation of a ruptured oil pipeline belonging to defendant. He “alleged that he was directed by defendant, SET, and other contractors to illegally hide and spread out the oil, as opposed to properly removing it.” He told M, a site supervisor for defendant, about his reports to the media and the EPA. He asserted that defendant, through M, interfered with his relationship with SET and that his interference was improper because M “should not have been able to tell SET that he wanted plaintiff off the work sites, i.e., that defendant wanted plaintiff to be fired.” The trial court grounded its decision to grant defendant summary disposition on the conclusion that plaintiff failed to provide any evidence that “linked” M’s alleged statement to SET’s decision to terminate plaintiff. A careful review of the deposition testimony revealed that the trial court did not err in finding that plaintiff failed to meet his burden to “establish the existence of a genuine issue of material fact for trial” on the issue. His investigatory activities began well before he initiated contact with M. Plaintiff’s claim that the individuals who decided to terminate him from SET based their decision on a directive from defendant was speculative at best, and speculation and conjecture do not establish a genuine issue of material fact sufficient to survive a summary disposition motion. The court also held that the trial court did not abuse its discretion in excluding evidence as to the adequacy of defendant’s remediation efforts.
Termination under §§ 19b(3)(a)(ii), (c)(i), (c)(ii), (g), (j), & (k); Reasonable efforts to reunify; In re Trejo Minors; In re Hudson; In re Ellis; In re Fried; In re Mason; In re Frey; In re Plump
The trial court’s factual finding that the DHHS provided the respondent-mother with services and made reasonable efforts to reunify her with the children was not clearly erroneous. Thus, the court affirmed termination of her parental rights to the children. The only issue was whether the trial court erred in finding that the DHHS made reasonable efforts to reunify her with the children. She argued that reasonable efforts were not made because her file was serviced by three different foster care workers. More specifically, respondent took issue with the fact that she was not informed in 5/15 that social worker-B would no longer be servicing her case, and was not contacted by the new social worker, S, for several weeks after B’s departure. While there was a transitional period before S took over respondent’s file, S testified that services were still being offered during the transitional period, but respondent was not attending or benefiting from those services. S attempted to assist her when she referred respondent, for a third time, to parenting classes, individual and family therapy, and substance abuse treatment in 8/15. Despite numerous services offered over the course of approximately one year, she failed in her own responsibility to participate in, and benefit from, the services offered.
Termination under §§ 19b(3)(b)(i), (g), & (j); In re Moss Minors; Absence of definitive proof as to the identity of the abuser; In re VanDalen; Principle that the DHHS does not have to provide services when the permanency goal is termination; In re HRC; Children’s best interests; In re White; Effect of relative care; In re Olive/Metts Minors
Holding that the trial court did not err in finding that §§ (b)(i), (g), and (j) were established by clear and convincing evidence, or in determining that termination was in the children’s best interests, the court affirmed the order terminating the respondent-mother’s parental rights. A doctor (G) testified that he saw both children in the ER, and concluded that their injuries were nonaccidental. DL’s injuries were healing and did not appear to be new. G did not see any recent wounds on the child. The other child (TD) told G “that respondent hit her with a broom and a mop. Respondent had custody of the children before they were removed from her care, and the children’s grandmother took them to the hospital in connection with the injuries a couple of days after they were placed in her care.” Thus, the evidence indicated that respondent had custody of them when their injuries were inflicted. While she asserted on appeal that she produced evidence that the children were not injured, the court concluded that there was ample evidence of their injuries given G’s testimony and the photos admitted into evidence showing their injuries. Further, although she claimed that she did not cause the injuries, termination under §§ (g) and (j) “has been upheld even in the absence of definitive proof regarding the identity of the abuser, where the evidence has shown that the parent either caused the injuries or failed to protect the children.” The court also noted that the children were discovered during a traffic stop of respondent’s car lacking proper booster or car seats. She also spent almost a month in jail and failed to provide a suitable placement for them. As to their best interests, the trial court addressed their placement with their maternal grandmother, the fact that the grandmother and respondent had a “tumultuous relationship,” and the evidence that they were doing well in the grandmother’s care. The trial court did not err in relying on testimony from a caseworker and a psychology expert to conclude that giving respondent additional services and more time was unlikely to result in her being able to provide proper care for the children.
Termination under §§ 19b(3)(a)(ii), (g), & (j); In re Mason; In re White; In re Moss Minors; In re Powers Minors; In re JK; In re Laster; In re Gonzales/Martinez; In re Utrera; Children’s best interests; In re AH; Parent agency plan (PAP)
The trial court properly terminated the respondent-mother’s parental rights to the children where the statutory grounds for termination were established by clear and convincing evidence and it was in their best interests. Section (a)(ii) was supported by evidence that she failed to see her children throughout the pendency of the case—a period stretching almost a year. Moreover, she failed to participate in any services or classes required as part of her PAP. Also, she failed to offer any financial support for the children throughout the duration of the case. Her complete failure to see them and participate in the plan for almost a year easily satisfied § (a)(ii). The court in Laster held as much even where the parent actually made some contact by phone with his children. It held that § (a)(ii) was satisfied where the respondent-father failed to see his children or provide any support for them, despite the existence of “some phone contact.” In this case, termination under § (g) was also supported by the evidence that respondent failed to see her children and to participate in her plan for almost one year. Such conduct established that she failed to provide proper care or custody, and that there was no reasonable expectation that she could do so within reasonable time considering their ages. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Trejo Minors; In re McIntyre; In re Gazella; In re Jacobs; Children’s best interests
The trial court properly terminated the respondent-father’s parental rights to the children where at least one statutory ground was established by clear and convincing evidence and it was in their best interests. As to § (c)(i), the record showed that he was provided with much help in finding housing. However, he rejected the affordable housing that had been presented to him because he did not like the neighborhood. Then he became involved with a reverend who promised him cheap housing in return for work, but that turned out to be a scam. This latter factor held up the DHHS’s efforts to find him appropriate housing. Nevertheless, he was expected to take some initiative to use the information that had been provided to him and to maintain contact with the workers that were attempting to help him. After over two years, he did not have a suitable home where he could bring his children. Thus, the trial court properly found that the “conditions that led to the adjudication continued to exist and there was no reasonable expectation that they would be rectified within a reasonable time considering the children’s ages.” Affirmed.