Claim for retaliation in violation of the Worker’s Disability Compensation Act (WDCA); MCL 418.301(13); Cuddington v United Health Servs, Inc; Claim for retaliation in violation of the Persons with Disabilities Civil Rights Act (PWDCRA); Whether an injury qualified as a disability rather than a temporary medical condition

Concluding that plaintiff could not show that defendant-former employer fired him for claiming workers’ compensation benefits, the court affirmed summary disposition for defendant on his claim for retaliation in violation of the WDCA. Further, he waived the issue of his PWDCRA retaliation claim, and the court found that it failed in any event. He “was a truck driver who was injured in a work-related incident. Defendant paid plaintiff’s workers’ compensation claim in full and” held his job open for 10 months until “he returned to work without any restrictions from his doctor.” There was a dispute as to whether the first truck defendant provided him when he returned had a manual or automatic transmission. But the parties agreed that it “was not drivable and that the substitute truck defendant provided for plaintiff had a manual transmission. While waiting for this new truck, plaintiff left work and claimed he was going out to eat breakfast. In reality, however, plaintiff returned home and refused to return to work after learning that he would have to drive a manual-transmission truck that day.” The facility manager (O) assured him “that he could drive an automatic-transmission truck the next day, but plaintiff refused to return to work and drive the manual-transmission truck.” O interpreted this refusal to return “as plaintiff quitting. Even if [O] viewing plaintiff as quitting by refusing to return to work amounted to [O] firing plaintiff, this act clearly was not retaliation for plaintiff claiming worker’s compensation benefits. Rather, any retaliation was a response to plaintiff refusing to perform his job responsibilities.” Thus, his WDCA retaliation claim failed. The court noted that he first raised his PWDCRA retaliation claim in his motion for reconsideration, making it unpreserved. Further, even if it addressed the issue, plaintiff abandoned it “by failing to cite to adequate legal authority to support his position.” The court also found that the claim failed “on the merits because his hip injury did not qualify as a disability. Plaintiff has not established that his hip injury was anything other than a temporary medical condition to which the PWDCRA does not apply.”

Court costs; Constitutionality of MCL 769.1k(1)(b)(iii); Due process; People v Johnson; Tumey v Ohio; Dugan v Ohio; Ward v Village of Monroeville, OH; Separation-of-powers doctrine; Const 1963, art 3, § 2; People v Cameron

Holding that MCL 769.1k(1)(b)(iii) is not unconstitutional because it does not violate criminal defendants’ due-process rights or the separation-of-powers doctrine, the court affirmed. Defendant pled guilty to unlawful discharge of a firearm from a vehicle causing injury and felony-firearm. She was “sentenced to prison terms and ordered to pay $1,300 in court costs under MCL 769.1k(1)(b)(iii).” She challenged only the constitutionality of the court costs, arguing that “the statute is unconstitutional because it undermines criminal defendants’ due-process right to appear before a neutral judge.” She claimed that “MCL 769.1k(1)(b)(iii) creates ‘dual roles’ for trial judges that are incompatible and similar to the due-process violations in Tumey and Ward.” However, the facts here were “most similar to those in Dugan because the statute ‘do[es] not indicate where the money flows after the costs have been imposed on and paid by a convicted defendant,’ and does not order any portion of the money collected from criminal defendants to go directly to judges.” The court found that there “is no due-process concern, and no evidence that judges are pressured to impose certain costs, when judges do not have discretion over the costs they are imposing.” Defendant argued that “trial court judges’ financial interest in ‘keeping trial courts open and running’ is sufficient to show that the statute is unconstitutional as a violation of due process.” But, like the defendant in Johnson, she failed “to show the ‘direct nexus between a judge’s compensation and any fees or costs imposed that was present in Tumey.’” Her separation of powers argument also failed. Because she did not “establish the nexus needed in showing how a judge will benefit, she has not shown that trial court judges have a ‘direct, personal, substantial pecuniary interest’ as a result of the statute.” She could not “prove that every trial court judge should be disqualified because of the statute. . . .”

Shackling; Ineffective assistance of counsel; Remand for an evidentiary hearing

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 75085 in the 4/8/21 edition) and remanded the case to the trial court for an evidentiary hearing as to whether (1) the trial court properly considered defendant’s request to remove his “shackles at trial; (2) the physical restraints were visible to any jurors; and (3) the defendant’s trial counsel rendered constitutionally ineffective assistance by failing to object to the admission of the entire body camera video, failing to make an effective challenge to a juror who had previously experienced domestic violence, and failing to make a closing argument.”

Motion for discovery of personnel records of the officer who was first to respond to the scene; In camera review pursuant to MCR 6.201(C)(2); People v Laws; People v Stanaway

The court held that defendant established “a good-faith belief” there was a reasonable probability the personnel file of the officer who was first on the scene was “likely to contain material information bearing on the officer’s credibility that is necessary to the defense such that defendant is entitled to have the trial court conduct an in camera inspection of the records.” Thus, in this interlocutory appeal it reversed the order denying his motion for discovery of the personnel records, and remanded. He offered “a news article explaining that the officer had been found to have violated the policies and oath of the department, the public trust, and the trust of other officers. The article also stated that an investigator had questioned the officer’s honesty related to the investigation.” Defendant asserted that information in the “personnel file related to the officer’s discipline, termination, and statements is discoverable because it is necessary to prepare for” the officer’s cross-examination and for defendant’s defense. The court noted that whether the information in the file was admissible at trial did not control whether it was discoverable. The Michigan Supreme Court ruled in Stanaway that where “a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense.” Only after the trial court conducts this review “and is satisfied that the records reveal evidence necessary to the defense is the evidence to be supplied to defense counsel.” The Supreme Court further “explained that the inquiry to determine whether to actually provide information to defense counsel is ‘similar, but not identical’ to the inquiry to determine whether in camera review is warranted[.]” The court concluded that in camera review here “will balance the interest of confidentiality in the records sought with ‘the possibility that there may be exculpatory evidence in such records necessary to prevent the conviction of an innocent person.’”

Court costs; Constitutionality of MCL 769.1k(1)(b)(iii); Due process; People v Johnson; Tumey v Ohio; Dugan v Ohio; Ward v Village of Monroeville, OH; Separation-of-powers doctrine; Const 1963, art 3, § 2; People v Cameron

Holding that MCL 769.1k(1)(b)(iii) is not unconstitutional because it does not violate criminal defendants’ due-process rights or the separation-of-powers doctrine, the court affirmed. Defendant pled guilty to unlawful discharge of a firearm from a vehicle causing injury and felony-firearm. She was “sentenced to prison terms and ordered to pay $1,300 in court costs under MCL 769.1k(1)(b)(iii).” She challenged only the constitutionality of the court costs, arguing that “the statute is unconstitutional because it undermines criminal defendants’ due-process right to appear before a neutral judge.” She claimed that “MCL 769.1k(1)(b)(iii) creates ‘dual roles’ for trial judges that are incompatible and similar to the due-process violations in Tumey and Ward.” However, the facts here were “most similar to those in Dugan because the statute ‘do[es] not indicate where the money flows after the costs have been imposed on and paid by a convicted defendant,’ and does not order any portion of the money collected from criminal defendants to go directly to judges.” The court found that there “is no due-process concern, and no evidence that judges are pressured to impose certain costs, when judges do not have discretion over the costs they are imposing.” Defendant argued that “trial court judges’ financial interest in ‘keeping trial courts open and running’ is sufficient to show that the statute is unconstitutional as a violation of due process.” But, like the defendant in Johnson, she failed “to show the ‘direct nexus between a judge’s compensation and any fees or costs imposed that was present in Tumey.’” Her separation of powers argument also failed. Because she did not “establish the nexus needed in showing how a judge will benefit, she has not shown that trial court judges have a ‘direct, personal, substantial pecuniary interest’ as a result of the statute.” She could not “prove that every trial court judge should be disqualified because of the statute. . . .”

Other acts evidence; MRE 403; Whether MCL 768.27b is unconstitutional; Prosecutorial error; Vouching for the credibility of witnesses; Sentencing as an habitual offender; Proof of service; MCL769.13; People v Head

The court held that the trial court did not abuse its discretion by admitting the other acts evidence, and it rejected defendant’s argument that MCL 768.27b is unconstitutional. Further, it found no error in the prosecutor’s argument and thus, also rejected his contention that his trial counsel was ineffective for failing to object. Finally, it held that the prosecution’s failure to file the proof of service as to an habitual offender enhancement was harmless error. He was convicted of CSC I and AWIGBH. He was sentenced as a fourth-offense habitual offender to 300 to 456 months in prison. Defendant contended that “the trial court erred by admitting evidence under MCL 768.27b that he sexually assaulted” other acts witness-SS. He argued that “the evidence should have been excluded under MRE 403 because it was unduly prejudicial.” The court concluded that he did not show the evidence of the assault on SS was inadmissible.” Victim-CC asserted that “while at defendant’s apartment, defendant engaged in sex with her while she was incapacitated and without her consent, and that during sex defendant choked her without her consent. SS testified to a very similar assault by defendant seven months later, also at defendant’s apartment, in which she described waking up to find defendant having sex with her and choking her without her consent.” The court held that “SS’s testimony was relevant to support CC’s credibility,” and to demonstrate “defendant’s propensity to commit a sexual assault in the manner described by CC. The evidence also indicated a common plan or scheme for selecting victims and committing sexual assaults while the victims were unable to resist. In addition, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.” The court concluded that the “evidence did not invite the jury to consider matters extraneous to the case, such as the jury’s bias, sympathy, anger, or shock, nor was the jury invited to give marginally probative evidence undue or preemptive weight.” The probative value of the evidence “was not substantially outweighed by the danger of unfair prejudice under MRE 403.” Therefore, the trial court did not abuse its discretion by admitting it. Affirmed.

Motions to withdraw guilty pleas; MCR 6.310(C); People v Brinkley; Whether the plea agreements were illusory; People v Stovall

Holding that defendant’s pleas were not illusory, the court concluded that the trial court did not abuse its discretion by denying her motions to withdraw her guilty pleas. She argued that her right to due process was violated by the denial of her motions to withdraw her guilty pleas because the plea agreements were illusory. Defendant was charged with CSC I, producing child sexually abusive activity or material, using a computer to commit a crime, distribution or promotion of child sexually abusive material, conspiracy to commit first-degree murder, conspiracy to commit CSC I, and conspiracy to commit kidnapping. She argued that she received no benefit from pleading guilty to CSC I, conspiracy to commit CSC I, and “conspiracy to commit kidnapping because the trial court was unable to sentence her to consecutive terms of imprisonment on these charges.” She was sentenced to 25 to 50 years for CSC I and conspiracy to commit CSC I, and to 70 months to 25 years for conspiracy to commit kidnapping. The court held that the trial court could have sentenced her to more than a minimum term of 25 years “and could have imposed consecutive sentences had” she been convicted of CSC I, producing child sexually abusive activity or material, and using a computer to commit a crime. “Defendant ‘receive[d] many benefits for the plea[s],’ and we conclude that the bargains were not illusory and that defendant’s right to due process was not violated.” Affirmed.

Motion for relief from judgment based on ineffective assistance of counsel; “Good cause”; Sufficient justification for imposing consecutive sentences; Actual prejudice

Concluding that trial counsel was ineffective and this established good cause for defendant’s motion for relief from judgment, the court vacated his sentences, reversed the order denying his motion for relief from judgment, and remanded. He pled guilty to possession of heroin with intent to deliver, second offense, resisting and obstructing a police officer, and fourth-degree fleeing and eluding. He was sentenced to 76 to 900 months for the possession conviction and 46 to 180 months each for the other two. The trial court ordered all three sentences be served consecutively. Defendant argued that “he had good cause for failing to challenge his sentences because his trial and appellate counsel were ineffective.” He also argued that “his sentences were invalid because the trial court failed to justify the consecutive feature of his sentences.” The court held that the trial court “made three errors” in sentencing him. First, it failed to order him “to serve his fleeing-and-eluding sentence first to permit other sentences to be consecutively stacked on that one. Second, [it] failed to identify the proper statutory authority that permitted resisting and obstructing a police officer to be a consecutive sentence. And, third, [it] failed to provide a sufficient explanation of why it imposed consecutive sentences instead of concurrent” ones. Further, there was “no strategic rationale for not objecting on the basis of those three errors.” While counsel argued “at sentencing that the trial court should not impose consecutive sentences, trial counsel did . . . not object when the trial court failed to identify the proper legal authority for the consecutive sentences or to provide a sufficient explanation for why” they were warranted. Thus, the court held that counsel’s performance was deficient. In addition, “defendant was clearly prejudiced by the trial court not specifying that his fleeing-and-eluding sentence had to be served first. Without that specification, the trial court could not stack any of the other sentences on the fleeing-and-eluding one.” The failure to identify statutory authority for imposing a consecutive sentence for the resisting and obstructing “conviction also prejudiced defendant because, without that statutory basis, this sentence could not be served consecutively.” And, as to the third error, he “was prejudiced because an appellate court would have been left without an adequate record to review the appropriateness of his sentences."

Ineffective assistance of counsel; Failure to investigate & present evidence about a prior incident; Self-defense theory; Failure to obtain & offer a police report about the prior incident; MRE 801(c); Failure to adequately advise as to the prosecutor’s plea offer; Lafler v Cooper

Concluding that defendant was not denied the effective assistance of counsel, the court affirmed his convictions of AWIGBH, felonious assault, felony-firearm, and reckless use of a firearm. He maintained that he shot H, who was having an affair with defendant’s wife, D, in self-defense. Defendant argued, among other things, that “counsel was ineffective for failing to investigate and present evidence regarding a previous incident when [H] had allegedly pulled a gun on defendant, in order to show that he honestly and reasonably believed that deadly force was necessary at the time he acted.” But the court was “not persuaded that information about an additional prior incident would have led to a different outcome at trial, particularly in light of undisputed evidence already in the record about the turbulent relationship between [H] and defendant. Any additional such evidence would have been cumulative. What was missing from the record was any evidence supporting defendant’s self-serving claim that [H] was armed, and even pulled a gun on him, before defendant shot him. [H] denied that he was armed that day, and the persons standing right next to him during the shooting—[D] and one of her coworkers—testified that they never saw” H with a gun. According to H, “defendant was not responding to a perceived threat from him, but rather drove toward [H] with the gun pointed at him.” Further, H claimed that “he did not reach for anything, but was instead merely holding a bottle of alcohol and a beverage. Without evidence supporting defendant’s account of facing an imminent threat of death or great bodily harm at the time of the shooting, the evidence of additional past conflicts between [H] and defendant would have been cumulative with regard to the existence of some personal tensions between them, and would not have changed the outcome of the trial.” For these reasons, he failed to show that counsel was ineffective for failing to further develop the self-defense theory.

Claim for retaliation in violation of the Worker’s Disability Compensation Act (WDCA); MCL 418.301(13); Cuddington v United Health Servs, Inc; Claim for retaliation in violation of the Persons with Disabilities Civil Rights Act (PWDCRA); Whether an injury qualified as a disability rather than a temporary medical condition

Concluding that plaintiff could not show that defendant-former employer fired him for claiming workers’ compensation benefits, the court affirmed summary disposition for defendant on his claim for retaliation in violation of the WDCA. Further, he waived the issue of his PWDCRA retaliation claim, and the court found that it failed in any event. He “was a truck driver who was injured in a work-related incident. Defendant paid plaintiff’s workers’ compensation claim in full and” held his job open for 10 months until “he returned to work without any restrictions from his doctor.” There was a dispute as to whether the first truck defendant provided him when he returned had a manual or automatic transmission. But the parties agreed that it “was not drivable and that the substitute truck defendant provided for plaintiff had a manual transmission. While waiting for this new truck, plaintiff left work and claimed he was going out to eat breakfast. In reality, however, plaintiff returned home and refused to return to work after learning that he would have to drive a manual-transmission truck that day.” The facility manager (O) assured him “that he could drive an automatic-transmission truck the next day, but plaintiff refused to return to work and drive the manual-transmission truck.” O interpreted this refusal to return “as plaintiff quitting. Even if [O] viewing plaintiff as quitting by refusing to return to work amounted to [O] firing plaintiff, this act clearly was not retaliation for plaintiff claiming worker’s compensation benefits. Rather, any retaliation was a response to plaintiff refusing to perform his job responsibilities.” Thus, his WDCA retaliation claim failed. The court noted that he first raised his PWDCRA retaliation claim in his motion for reconsideration, making it unpreserved. Further, even if it addressed the issue, plaintiff abandoned it “by failing to cite to adequate legal authority to support his position.” The court also found that the claim failed “on the merits because his hip injury did not qualify as a disability. Plaintiff has not established that his hip injury was anything other than a temporary medical condition to which the PWDCRA does not apply.”

Quiet title; Adverse possession; Exclusive & continuous possession; Boundary lines; McQueen v Black; DeGroot v Barber; Privity; “Open, notorious, & hostile”; “Actual & visible”; Whether defendant “repossessed” the gap parcel from plaintiff

The court held that “the trial court’s factual findings were not clearly erroneous, and it did not err by quieting title to the” property at issue in plaintiff based on adverse possession. Defendant contended that the trial court erred by finding that plaintiff established adverse possession. Defendant argued that “plaintiff failed to establish that it had exclusive and continuous possession of” the 193-square-foot parcel (referred to as the gap parcel), which was “between two pieces of property owned, or formerly owned, by plaintiff, and abutting property owned by defendant.” However, the court concluded that the evidence “clearly and cogently established that plaintiff had exclusive, continuous possession of the gap parcel for a period of at least 15 years.” Defendant’s July 2000 letter (requesting that gravel be removed from the gap parcel) did not interrupt plaintiff’s adverse possession of the parcel, as the evidence showed the gravel was not removed, plaintiff continued to use the parcel for its business, “and defendant did nothing to prevent that use until he placed the concrete blocks on the” parcel in 8/20. In addition, “plaintiff and its predecessors were in privity, thereby allowing tacking of the periods of adverse use.” Defendant relied on “his workers’ labor on the gap parcel to claim that plaintiff did not have exclusive, continuous possession of the gap parcel throughout the 15-year statutory period.” However, this reliance was mistaken as “‘occasional trespasses do not suffice to defeat a claim of exclusivity[,]’” and none of the workers “performed their respective landscaping duties during the relevant statutory period.” Thus, their testimony was essentially irrelevant. Affirmed.