Hearsay; MRE 803A; Ineffective assistance of counsel

Rejecting defendant’s claims of alleged hearsay admitted in violation of MRE 803A and concluding that he failed to show that trial counsel’s performance was deficient or that he was prejudiced by any evidentiary error, the court affirmed his convictions of CSC I and II, conspiracy to commit CSC I, and assault with intent to commit CSC involving sexual penetration. He contended that there were “six instances of alleged hearsay in one way or another” that violated MRE 803A. As to three of the statements, nothing in the record indicated that they “were manufactured or not spontaneous.” The court rejected defendant’s apparent assertion “that the statements were automatically unspontaneous and manufactured because they were made during forensic interviews.” He additionally argued that “the statements were not made immediately after the sexual abuse and that ‘[n]othing in the record excuse[d] the delay as having been caused by fear.’” Under MRE 803A(3), the declarant must “have made the statement immediately after the incident unless a delay was excusable ‘as having been caused by fear or other equally effective circumstance[.]’” However, to the extent the victim (AA) did not make the statements right after the sexual abuse, the record clearly supported a finding “that any delay was excusable because AA was terrified of defendant. AA’s teacher . . . testified that AA once ‘curled up into a fetal position’ and begged not to be sent home. AA’s therapist . . . testified that AA ‘was terrified to go home.’ And AA’s adoptive mother . . . testified that AA was still suffering from anxiety related to the abuse at the time of trial—11 years after the sexual assaults.” Next, the court noted that “the prohibition against more than one corroborative statement relates to a singular ‘incident.’ Defendant’s own reference to the alleged hearsay statements reflects that they did not all pertain to the same incident.” He appeared to believe, wrongly, “that any and all incidents of sexual abuse committed against a young child are treated as a singular incident for purposes of MRE 803A and the bar against multiple corroborative statements. Examining the six specific instances of alleged hearsay upon which defendant relies, while there are similarities between some of the disclosed sexual acts, even then there are variations in what AA told the witnesses.”

Motion to suppress evidence; Search & seizure; People v Mead; Exceptions to the warrant requirement; People v Kazmierczak; The automobile exception; People v Levine; Probable cause; People v Cohen

Holding that the initial search of defendant’s vehicle for alcohol and the subsequent search for narcotics or controlled substances were supported by probable cause, the court affirmed the trial court’s denial of his motion to suppress. He was arrested after the traffic stop and charged with possession of meth. He unsuccessfully moved to suppress the meth seized during the stop, claiming police lacked probable cause to search his car. On appeal, the court rejected his argument that the trial court erred by denying his motion because the deputy did not have probable cause to search the vehicle. It noted that the deputy knew defendant’s passengers (two 17-year-old girls) “had a history of underage drinking.” In addition, defendant and the girls “gave inconsistent accounts about where they were coming from, although defendant admitted that he had just purchased alcohol at a store, and one of the underage girls said that the alcohol was between the driver’s seat and the front passenger seat.” Under the circumstances, “a reasonable person would have a substantial basis to infer a fair probability that evidence of defendant’s furnishing alcohol to minors would be found in the minivan.” The court also rejected his claim that even if the deputy had probable cause to search his vehicle for alcohol, he did not have probable cause to search for narcotics. Based on his experience, the deputy determined “there was a substantial chance the pills” in an unlabeled prescription bottle between the driver’s seat and the front passenger seat “were narcotics or controlled substances.” As a result, he “had a substantial basis for inferring a fair probability that he would find additional narcotics in the vehicle, and he could therefore search all containers within the vehicle reasonably likely to contain narcotics. This includes the pack of cigarettes found on the floor behind the driver’s seat, which held the meth[].”

Admission of text messages; Hearsay; A party’s own statements; MRE 801(d)(2)(A); Waiver; Ineffective assistance of counsel

Noting that defendant’s text messages and statements did not constitute hearsay and were admissible under MRE 801(d)(2)(A), the court concluded that he waived any appellate challenge to the admission of all the text messages at issue. Further, even “assuming a hearsay violation and the absence of a waiver” as to the text messages, he could not show prejudice. The court also rejected his ineffective assistance of counsel claim. Defendant was convicted of first-degree premeditated murder, AWIM, felony-firearm, third-degree fleeing and eluding, and CCW. The case arose from the shooting death of R, with whom he lived. The text messages were between R and a co-worker, and between R and defendant. They established that R was involved romantically with her co-worker. They also showed that defendant knew of the relationship, that R and the co-worker knew he was aware of it, that he was trying to accept it but was struggling with it, and that he did not want it “thrown in his face at his home.” The court first held that the trial court did not err in “admitting defendant’s text messages or statements, and defense counsel was not ineffective for failing to raise a futile or meritless objection to the evidence.” The prosecution also admitted evidence of a phone call between defendant and a 911 operator, during which he “effectively spoke to the subject matter covered by the text messages.” He told the 911 operator that he had asked R for her cell phone, and “whether she had set up a date with” the co-worker. He stated that she had left with the cell phone and the children to take the children to the bus stop for school, and she “came back with a happy face, that defendant ‘was trying to be cool with’ [R] going on a date, that [R] was supposed to leave the relationship or affair at work and outside the home but failed to do so, that [R] could be found dead in the bathroom, and that defendant ‘just remember[ed] looking at the phone.’” There was also testimony by his friend showing “that defendant knew about the relationship between” R and her co-worker before her death. The court found that it was clear from the record defense counsel used the text messages in an effort to show defendant killed R “in the heat of passion under adequate provocation and without premeditation and deliberation.” Affirmed.

Other acts evidence admitted under MCL 768.27a; Whether the other acts evidence may have confused jurors as to the nature of the charged offenses; Whether any such confusion outweighed the evidence’s probative value; MRE 403; Whether the child forensic interviewer’s testimony entitled defendant to a new trial under People v Thorpe

On remand from the Supreme Court, while the court rejected defendant’s claim as to the other acts evidence admitted under MCL 768.27a, it held that the child forensic interviewer’s (B) testimony ran afoul of Thorpe. Thus, it reversed, vacated defendant’s CSC II convictions and sentences, and remanded for a new trial. The court reconsidered whether admission of other acts evidence may have confused jurors as to the nature of the charged offenses, and if so, this outweighed the evidence’s probative value, and whether B’s testimony entitled defendant to a new trial under Thorpe. He argued that the other acts evidence “was confusing, and therefore unfairly prejudicial under MRE 403.” However, he did not specify the “testimony that ostensibly confused the jury[.]” The court held that where “defense counsel expressly declined to ask for any clarifying instructions,” this issue was waived for appellate review. Regardless, defendant was entitled to a new trial on an alternative ground. As the court concluded “that clarification would have been helpful,” it cautioned “the trial court and the parties on remand to consider carefully differentiating evidence of sexual contacts offered to establish the factual bases for the criminal charges from evidence of sexual contacts offered for other reasons.” It next held that B’s testimony itself, as well as the prosecutor’s argument relating to her “testimony, constituted improper bolstering of the complainant’s credibility. Under the guidance provided by Thorpe, this was plain error, and because the prosecution’s case against defendant overwhelmingly depended on the complainant’s credibility, the improper bolstering seriously affected the fairness or integrity of the proceedings.” 

Divorce; Claim that the property division & spousal support award considered together constituted an impermissible “double dip”; Loutts v Loutts; Sparks v Sparks; Olson v Olson; Child support; Whether income should have been imputed to a party; Attorney fees

Concluding that it was unclear from the record “whether the trial court engaged in an inequitable ‘double-dip,’” the court found that remand was necessary as to the property division and spousal support award. It also remanded as to attorney fees. But it rejected defendant-ex-husband’s claim that the trial court should have imputed income to plaintiff-ex-wife related to calculating child support. The trial court awarded the parties their respective businesses, “estimating the value of plaintiff’s business at $9,500 and the value of defendant’s business” (Fortified Coatings) at $302,000. In addition, it ordered defendant to pay $1,666 a month in spousal support for 5 years and to pay the balance of a credit card. It referred the issue of child support to the FOC with the provision that plaintiff’s income was “nominal” and defendant’s income was $75,000. While it “apparently accepted the expert evaluator’s testimony by valuing Fortified Coatings at $302,000, the trial court did not explain how it calculated spousal support.” Because it failed to make factual findings on “the relevant factors outlined in Sparks or Olson, or make findings concerning what was just and reasonable under the circumstances,” the court could not determine the equity of its decision. “On remand, the trial court must consider the relevant factors as they pertain to the parties and make specific findings of fact that justify the court’s ultimate award of spousal support and division of property.” It must also make specific factual findings as to the value of plaintiff’s business. In addition, specific findings were needed as to whether she should be required to refinance the mortgage on the marital home in her name. Further, while the trial court ordered that each party was responsible for their own attorney fees, it ordered that defendant was responsible for the balance on a credit card that plaintiff had used to pay her attorney. As it was “unclear whether the order for defendant to pay the entirety of the card’s balance also encompassed plaintiff’s attorney fees,” the court vacated the portion of the order and the judgment requiring him to pay the balance of the card. “On remand, the trial court shall determine whether the parties shall continue to be responsible for payment of their own attorney fees and calculate the payment of the . . . credit card consistent with that determination.” Affirmed in part, vacated in part, and remanded.

Quiet title action; Acquiescence to a boundary line for the statutory period; Killips v Mannisto

Concluding that the trial court did not err in its factual findings and that those findings supported its ruling that “plaintiff and defendants’ predecessors in title acquiesced to the northern and western extended property lines of plaintiff’s parcel[,]” the court affirmed the order determining title in her favor as to both boundaries. Defendants’ 79-acre parcel surrounds plaintiff’s one-acre parcel on three sides. She occupies an area extending “approximately 43 feet beyond the legally-described boundary lines on both the northern and western boundaries of her parcel.” She contended “she had exercised dominion and control over these areas for” over 15 years. As to the northern boundary, she offered documentary evidence in support of her summary disposition motion showing she had occupied the “disputed area since at least 1989 by locating a wood shed, clothes line, and a play house on this area, had used the area with her family for recreation from at least 1998, and that defendants’ predecessors in title treated the northern boundary of the northern disputed area as the true property line, just as plaintiff had.” While defendants disagreed, they did not present documentary evidence creating a genuine issue of fact as to whether plaintiff and their “predecessors in title treated the northern boundary of the disputed area as the boundary for at least 15 years.” Their claim that she “leased hunting rights on the 79 acres does not negate the fact that defendants’ predecessors in title treated the extended northern boundary as the true boundary of plaintiff’s parcel.” Thus, the trial court did not err in granting plaintiff summary disposition as to the northern boundary. The court also concluded that photos and witness testimony supported the trial court’s “finding that plaintiff and defendants’ predecessors in title treated the mowed line as the true boundary line in the western disputed area, and that the acquiescence to that boundary began at least as early as 1999. There was no evidence of any objection to plaintiff’s claim to the disputed area until after defendants purchased the 79-acre parcel in 2017, which occurred well after the 15-year statutory period for acquiescence had occurred.” Thus, the trial court did not err as to this boundary either.

Termination under § 19b(3)(j); Reasonable reunification efforts; MCL 712.19a(2); Principle that reunification efforts are not required where termination is the DHHS’s goal; MCR 3.977(E); In re Moss Minors; Reaching the right result for the wrong reason; Demski v Petlick; Best interests of the children; In re Mason

The court held that respondent-father was not entitled to reunification services, that termination of his parental rights was not premature, and that termination was in the child’s best interests. Respondent was charged with murder in the death of his girlfriend (the child’s mother). He later pled no contest to the existence of a statutory ground for termination of his parental rights—that the child was reasonably likely to be harmed if placed in his care. His rights were subsequently terminated. On appeal, the court rejected his argument that the DHHS failed to provide reasonable reunification services, noting that “reunification efforts are not required ‘when termination of parental rights is the agency’s goal’ from the outset.” Because the DHHS sought termination of respondent’s parental rights in the initial petition, he “was not entitled to reunification services.” It also rejected his claim that termination was premature, finding that clear and convincing evidence supported that he “killed the child’s mother in the child’s presence. A jury ultimately might determine that this evidence is insufficient to establish beyond a reasonable doubt that respondent committed murder. But that could not prevent a civil court from finding termination appropriate.” Finally, it rejected his claim that termination was not in the child’s best interests, noting that, in its ruling, the trial court explicitly discussed the child’s “placement with her maternal grandparents and concluded that [her] need for stability and the risk of harm to [the child] because of respondent’s involvement in her mother’s death outweighed the relative placement factor.” Affirmed.