Plaintiff-prisoner’s complaint for a writ of mandamus ordering the Michigan Department of Corrections (MDOC) to give the prosecuting attorney the notice required by MCL 780.131(1) (the 180-day rule)

Holding that the trial court did not abuse its discretion in denying plaintiff-prisoner mandamus relief requiring the MDOC to give the prosecuting attorney the notice required by MCL 780.131(1), the court affirmed the dismissal of his complaint. Almost “20 years ago, in case number 02-047915-FC, a jury convicted plaintiff of armed robbery and he was sentenced to” 30 to 90 years. He argued in his direct appeal in that case that the 180-day rule was violated. The court disagreed and affirmed his conviction. The Michigan Supreme Court held that there was no 180-day rule violation because he failed to show “that the MDOC provided the prosecuting attorney with the notice required by MCL 780.131(1).” He filed this action for a writ of mandamus in 2020, unsuccessfully “requesting that the MDOC be ordered to provide the prosecuting attorney with the notice required by MCL 780.131(1) in case number 02-047915-FC.” Plaintiff contended on appeal that he was entitled to such “relief because it was never discussed during his trial or direct appellate process that it was his burden to show that the MDOC provided the prosecuting attorney with the notice required by MCL 780.131(1).” He asserted that defendants had a clear legal duty to give this notice and he had a clear legal right to their performance of that duty. The court disagreed. It instead agreed with the trial court that there was “no ‘untried warrant, indictment, information, or complaint’” pending against him that required “notice under the 180-day rule.” As a result, defendants had “no clear legal duty to issue such notice.” It added that his claim was moot as “such notice would serve no purpose.”

Excluded evidence; Unavailable witness; Right of confrontation; Jury instructions on self-defense; Sentencing; Scoring of OV 9 at 10 points; Ineffective assistance of counsel; Jurisdiction; Prosecutorial misconduct; Other acts evidence

The court concluded that the trial court did not abuse its discretion by excluding evidence from the witnesses at issue as irrelevant, and that defendant’s right to confrontation was not violated by the admission of an unavailable witness’s preliminary exam testimony. Further, there was no plain error affecting a substantial right as to the jury instructions on self-defense, the trial court properly scored OV 9 at 10 points, and he was not denied the effective assistance of counsel. The court also rejected his jurisdictional, prosecutorial misconduct, and other acts evidence challenges. He was convicted of FIP, CCW, and felony-firearm, second offense. He “was apprehended and two firearms were found concealed on his person” after an altercation with his girlfriend, G, and her son. He argued, among other things, that the trial court abused its discretion by excluding the testimony of LD, NL, and a records keeper at a gun store that he claimed was relevant to his defense because it would have shown the guns at issue belonged to G and not him. He claimed that he was acting in self-defense by possessing them after he took them from her purse. But LD could not testify that G possessed a gun “during the events in question. [LD’s] testimony was not about a time in close proximity to the events” here. Also, two of the incidents that NL would have testified about occurred at least eight years before G was involved with defendant. “Additionally, because defendant was not aware of the incidents, the evidence did not tend to establish that he was aware of and afraid of [G] shooting him with a gun at that time.” While NL also described a more recent incident during which he believed he saw the outline of a gun in G’s purse, this “evidence was simply not definitive evidence that [G] possessed a gun at the time of the incident. And, even to the extent that [NL’s] testimony may have tended to make it more likely that [G] did, in fact, possess a gun on the night of the incident, [NL’s] testimony also would have contradicted defendant’s theory of self-defense because [NL] would have testified that defendant did not fear [G] and had no concerns about a potential gun.” Defendant argued that the testimony of the records keeper about G’s purchase of a shotgun would have showed that G owned guns. But defendant’s self-defense theory was that the guns he took from G were in a purse. He made no mention of being fearful that G “would harm him with a shotgun, and a shotgun was not involved in the events related to” his trial.

Prosecutorial misconduct; Alleged knowing presentation of false identification testimony; Conflicts between the testimony of different witnesses; Sufficiency of the evidence; Identity; Search & seizure; Retrieval of clothing & a cell phone at the hospital where defendant was treated after the shooting; Harmless error; Cell phone records obtained pursuant to a court order instead of a search warrant; Motion to suppress based on Carpenter v United States; The Stored Communication Act; Ineffective assistance of counsel; Stipulating to allow a witness to provide cell phone data testimony; Factual predicate; Failure to retain an expert; Failure to object; Whether the trial court should have ordered a new trial based on trial counsel’s failure to investigate & raise an alibi defense

The court concluded that an eyewitness’s (W) mistake about who approached her did not equate to the prosecution presenting false testimony, and that there was sufficient evidence of defendant’s identification as the shooter to support his convictions. Further, the admission of his clothing and a cell phone retrieved from a hospital was harmless error, and the trial court did not err in denying his motion to suppress his cell phone records on the basis they were obtained pursuant to a court order rather than a search warrant. The court also rejected his ineffective assistance of counsel claims, and upheld the trial court’s denial of his motion for a new trial after a Ginther hearing. He was convicted of first-degree premeditated murder, AWIM, CCW, and felony-firearm. The court noted that there was no indication W testified falsely. It appeared, given other witnesses’ testimony, that she was “mistaken that, after defendant left the barbershop, he approached her for a ride to the hospital.” Rather, it appeared to have been another man who did so as defendant left the scene in another vehicle. W testified that she initially had no intention of testifying as she “lived by the ‘street code’ that what occurred was none of her business,” but changed her mind after being contacted by a relative who knew the victim’s family. She was able to describe defendant’s appearance, and the jury was entitled to find that she positively identified him “as the shooter in light of the fact that he stopped immediately in front of her, pulled a gun, and began firing.” As to the failure to obtain a warrant for the clothing and cell phone, the court noted that these items “were not the pivotal evidence that secured defendant’s convictions.” W’s identification of him “as the shooter, the testimony that the victim fired his weapon back at his assailant, the testimony by eyewitnesses that defendant was injured as he fled the barbershop and bled from his side, defendant’s presence at his employer’s home shortly after the shooting and the home’s proximity to the barbershop (regardless of any cell phone data), the vehicle and defendant’s arrival at the hospital that” was preserved on video, together with his “need for medical treatment for a gunshot wound were the key pieces of evidence that resulted in” his convictions. Affirmed.

Sufficiency of the evidence; Insanity defense; Expert testimony; Guilty but mentally ill of first-degree murder; Premeditation & deliberation; Great weight of the evidence; Diminished capacity; Judgment of sentence (JOS) clerical error

The court held that sufficient evidence supported that defendant-Tyson was not legally insane at the time of the crimes and supported her conviction of guilty but mentally ill of first-degree murder as to victim-W. There was evidence to support the trial court’s finding that she premeditated and deliberated in shooting W, and its verdict of guilty but mentally ill was not against the great weight of the evidence. Thus, the court affirmed, but remanded for the ministerial task of correcting the JOS. Among other things, Tyson argued that the trial court should have relied on the testimony from her expert, Dr. Z. She contended that Z “had a great deal more experience” than the prosecution’s expert, Dr. B. But Tyson selectively focused on the last five years of B’s long career. The testimony showed that B “had been practicing in her field for more than 50 years and was qualified as an expert without objection. She had completed more than 500 evaluations for various courts during her time at the Center for Forensic Psychiatry, and she had trained 150 to 200 other personnel.” Thus, although Tyson pointed to testimony that B “may have only performed 10 criminal responsibility evaluations within the past five years, her argument ignores [B’s] extensive experience and knowledge . . . .” Tyson also argued that there was insufficient evidence to support the trial court’s ruling that she premeditated and deliberated in W’s murder. One of the witnesses “heard the first gunshot and then saw Tyson walk up to [W] and shoot her in the head. An investigating police officer testified that it took approximately six seconds to get from” the location of another victim (J) to W’s location. “There is no time limit for premeditation and deliberation” and there was evidence showing she “had at least six seconds to make a conscious decision to walk to [W], point the gun at her head, and shoot her point blank. Such conduct was evidence against a ‘sudden impulse’ negating premeditation and, instead, could be seen as evidence that Tyson had the opportunity for a ’second look’ at her actions.” The court found no error in the trial court’s determination that this was so. Further, she “was described as being calm, which could be construed as evidence of premeditation and deliberation. Tyson also stated something to the effect of ‘I’m not here for you’ to one of the witnesses” and B believed this indicated Tyson targeted J and W. Similarly, her “actions of tossing the weapon into the bushes could be construed as evidence of trying to cover up her involvement.”

Divorce; Property division; DeMay v DeMay; Sparks v Sparks; Valuation; Olson v Olson; Spousal support; MCL 552.23(1); Loutts v Loutts; Consideration of a spouse’s unexercised ability to earn if income is voluntarily reduced to avoid paying alimony; Knowles v Knowles; Principle that a spouse is not required to liquidate property awarded to meet daily needs when spousal support can be made available; Gates v Gates; Harmless error; MCR 2.613(A)

The court held that the trial court did not err in its property division and spousal support determinations. The parties divorced after 30 years of marriage. The trial court found that a 55/45 split of the marital estate, and an award of spousal support for plaintiff-ex-wife, were appropriate. The court rejected defendant-ex-husband’s argument that the trial court erred because it relied on DeMay. Contrary to his “argument, DeMay does not allow a trial court to divide marital property on the basis of a party’s unfounded hopes.” As such, “plaintiff’s intent to purchase waterfront property reflected her standard of living and established plan for retirement rather than a baseless wish.” In addition, the record supported the “finding that defendant’s long-term infidelity caused the breakdown of the marriage, and the trial court did not place undue emphasis on this factor.” The court also rejected his claim that the trial court made erroneous findings as to his “earning ability, possibility of promotion, and the income potential and value of” the parties’ lake property, which he received by stipulation. “Given the absence of evidence supporting defendant’s claims that his most recent annual income was not representative of what he will make in the future,” it did not err in this regard. While it did err “by relying on his eligibility for a promotion in evaluating the property division and spousal support” factors, it was not reversible error as the trial court did not actually impute income to him. As to his contention it erred by finding the lake property was income producing, there were “no grounds to conclude that the [trial] court’s limited reference to the income producing potential of the . . . property requires reversal, particularly when [it] did not impute a particular amount of income to defendant from the property and it acknowledged [his] testimony that he would no longer rent out the cabin.” There was also no error in finding an “appraisal was somewhat reliable and averaging the value of” two appraisals. The court further rejected his argument that the property division was “grossly excessive and impermissibly punitive” because the equalization payment required him to raise substantial cash from his real estate and retirement account, finding he “had ample assets to sell or mortgage that would enable him to afford” the payment. Finally, given “the length of the marriage, defendant’s fault in causing the divorce, the substantial discrepancy in the parties’ earning abilities, and plaintiff’s needs,” the award of $5,000 a month until he turns 65, and $1,500 a month after, was not an abuse of discretion. Affirmed.

Alleged violation of a township blight ordinance; Circuit court jurisdiction; MCL 600.605; District court jurisdiction over an alleged violation of a township ordinance; MCL 41.183(6); A circuit court’s subject matter jurisdiction to issue an injunction; Cherry Growers, Inc. v Michigan Processing Apple Growers, Inc; A circuit court’s handling of nuisance claims; MCL 600.2940(1); A district court’s lack of jurisdiction over equitable actions; MCL 600.8315; Waiver; Harboring error as an appellate parachute; Competent, material, & substantial evidence; City of Romulus v Michigan Dep’t of Envtl Quality; VanZandt v State Employees’ Ret Sys; “Junk”; Effect of “or”; Paris Meadows, LLC v Kentwood

The court held that the circuit court did not err by ordering defendant to clean up his property and pay a court-appointed receiver. Plaintiff-township filed an action alleging defendant was in violation of its blight ordinance. Meanwhile, the township’s board met and adopted a resolution finding that both of defendant’s properties were in violation of the ordinance. It then filed an amended complaint. The circuit court eventually entered its final order, requiring defendant to pay the receiver and clean up the properties as directed. On appeal, the court rejected his argument that the circuit court lacked subject matter jurisdiction because the township was actually pursuing an ordinance violation over which the district court had exclusive jurisdiction. While MCL 41.183(6) provides district courts jurisdiction over “violation of a township ordinance, it does not divest the circuit court of jurisdiction over actions for the abatement of a nuisance and for injunctive relief.” The court also rejected his claim that the blight ordinance was invalid because the township failed to properly enact it, noting that “although technically ‘raised’ before the circuit court, the argument was abandoned when the first motion raising the issue was withdrawn by [defendant] and the second was dismissed without prejudice.” Finally, the court rejected his contention that the circuit court erred by affirming the township board’s resolution finding his properties violated the blight ordinance. Although defendant would have preferred the board credit his evidence, “there was an abundance of evidence upon which the [b]oard could base its decision to find that the objects, vehicles, and structures on the property were visible from the roadway or off-site, as required by the blight ordinance.” In addition, given that “semi-trailers, like campers, can become worn-out, unusable, or discarded, the mere fact that the trailers lack a motor does not immunize them from being considered junk under the plain language of the blight ordinance.” Thus, the court found “no basis to overturn the circuit court’s order finding that the [b]oard’s decision was supported by competent, material, and substantial evidence.” Affirmed.

Alleged violation of a township blight ordinance; Circuit court jurisdiction; MCL 600.605; District court jurisdiction over an alleged violation of a township ordinance; MCL 41.183(6); A circuit court’s subject matter jurisdiction to issue an injunction; Cherry Growers, Inc. v Michigan Processing Apple Growers, Inc; A circuit court’s handling of nuisance claims; MCL 600.2940(1); A district court’s lack of jurisdiction over equitable actions; MCL 600.8315; Waiver; Harboring error as an appellate parachute; Competent, material, & substantial evidence; City of Romulus v Michigan Dep’t of Envtl Quality; VanZandt v State Employees’ Ret Sys; “Junk”; Effect of “or”; Paris Meadows, LLC v Kentwood

The court held that the circuit court did not err by ordering defendant to clean up his property and pay a court-appointed receiver. Plaintiff-township filed an action alleging defendant was in violation of its blight ordinance. Meanwhile, the township’s board met and adopted a resolution finding that both of defendant’s properties were in violation of the ordinance. It then filed an amended complaint. The circuit court eventually entered its final order, requiring defendant to pay the receiver and clean up the properties as directed. On appeal, the court rejected his argument that the circuit court lacked subject matter jurisdiction because the township was actually pursuing an ordinance violation over which the district court had exclusive jurisdiction. While MCL 41.183(6) provides district courts jurisdiction over “violation of a township ordinance, it does not divest the circuit court of jurisdiction over actions for the abatement of a nuisance and for injunctive relief.” The court also rejected his claim that the blight ordinance was invalid because the township failed to properly enact it, noting that “although technically ‘raised’ before the circuit court, the argument was abandoned when the first motion raising the issue was withdrawn by [defendant] and the second was dismissed without prejudice.” Finally, the court rejected his contention that the circuit court erred by affirming the township board’s resolution finding his properties violated the blight ordinance. Although defendant would have preferred the board credit his evidence, “there was an abundance of evidence upon which the [b]oard could base its decision to find that the objects, vehicles, and structures on the property were visible from the roadway or off-site, as required by the blight ordinance.” In addition, given that “semi-trailers, like campers, can become worn-out, unusable, or discarded, the mere fact that the trailers lack a motor does not immunize them from being considered junk under the plain language of the blight ordinance.” Thus, the court found “no basis to overturn the circuit court’s order finding that the [b]oard’s decision was supported by competent, material, and substantial evidence.” Affirmed.

Termination under § 19b(3)(c)(i); Reasonable reunification efforts

The court held that plain error did not occur when the trial court concluded that the DHHS made reasonable efforts to reunify respondent-mother with her children. Also, § (c)(i) existed to terminate her parental rights. She asserted that the DHHS failed to provide tailored services to address her mental health, lack of transportation, lack of access to a telephone or computer, medical concerns, and domestic violence concerns. Although the DHHS “created a service plan that was meant to facilitate the children’s return to respondent’s home, respondent failed to fulfill her commensurate responsibility to participate in the services that were offered.” The DHHS made reasonable efforts to provide mental health services. The record reflected that “respondent was referred to mental health professionals, engaged in mental health services for a period of time, and was prescribed medication. However, respondent failed to participate in the services on a regular basis and lost access to her medication as a result.” Further, the DHHS made reasonable efforts to provide housing and employment services. Also, it made reasonable efforts to foster respondent’s parenting skills. In sum, she was “offered services meant to address her mental health needs, inadequate housing, and inadequate parenting ability, but respondent failed to fulfill her commensurate responsibility to participate in the services that were offered to her.” Affirmed.

Best interests of the children; MCL 712A.19b(5); In re Olive/Metts Minors; Relative placement; MCL 712A.19a(8)(a); In re Mason

Holding that termination of respondent-mother’s parental rights to the children was in their best interests, the court affirmed the trial court’s termination order. On appeal, the court rejected her argument that the trial court erred because, when it determined that termination was in the children’s best interests, it did not consider that they were being placed with a relative. “In this case, the children were not being ‘cared for by relatives’ at the time termination proceedings were initiated; rather, the children were in foster care. Contrary to respondent’s apparent argument, the case of In re Mason . . . does not address the children’s anticipated placement with a relative. In that case, the children were already in the care of relatives when termination proceedings were initiated.” Respondent in this case “did not attempt to provide proper care and custody for the children by granting legal custody to relatives or by successfully placing her children with relatives before termination proceedings were initiated; rather, the children were in foster care.” Thus, her reliance on Mason was misplaced.