Robert J. Adams Helen Joan Brish Julie A. Cohen Margaret Erdeen Davis Judith Bach Dixon Michael L. Dobra Matthew Scott Essenburg John E. Gates Jr. Stephen A. Gatto Stephanie T. Goecke Clyde C. Goodwin Jr. William J. Hassett John R. Hayes Robert L. Hindelang Joseph J. Jerkins Donald L. Johnson David A. King Suzanne Marie Krohn John R. Marquis Michael E. Mccarty Donna Mckneelen William P. O’leary Cameron H. Piggott Margaret L. Pittman John G. Posa Nancy M. Rade Edmund J. Sikorski Jr. Anne L. Sruba Robert D. Stalker Mary Wickens Clayton E. Wittman
Robert S. Bick Andrew T. Blum Butzel Cloie Y. Chidiac Nancy Samir-Haddad Derleth Debra A. Geroux Charlie Goode Brandon J. Hayes Ingham County Bar Association Courtney A. Lavender Bushra A. Malik MDTC James J. Murray Courtney L. Nichols Shanika A. Owens Reginald A. Pacis Erin Pawlowski Adomas N. Rauckis Richard Warren
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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The Fair Debt Collection Practices Act (FDCPA); Whether 15 USC § 1692f(8) contains a “benign language” exception; Strand v. Diversified Collection Serv., Inc. (8th Cir.); Goswami v. American Collections Enter., Inc. (5th Cir.); Preston v. Midland Credit Mgmt., Inc. (7th Cir.); Statutory interpretation; Avoiding absurd results; Ambiguity; Standing; Macy v. GC Servs. LP; Risk of public disclosure of status as a purported debtor; Douglass v. Convergent Outsourcing (3d Cir.)
In an issue of first impression in this circuit, the court held that the plain text of FDCPA § 1692f(8) forecloses a “benign language” exception, and it concluded that plaintiff-Donovan plausibly alleged that defendant-FirstCredit’s debt-collection letter violated the provision. Thus, it reversed the district court’s order granting FirstCredit judgment on the pleadings. FirstCredit sent Donovan a letter demanding payment of a purported medical debt. Her name and address were visible through one of the envelope’s glassine window, and through the other, a checkbox could be seen with the words, “Payment in full is enclosed” and sometimes the phrase, “‘I need to discuss this further. My phone number is _______,’ is visible directly below the first.” She sued under § 1692f(8), which limits the amount of information a debt collector may use on an envelope when communicating with a consumer through the mail. The court first found that she had standing, concluding that her “allegation that FirstCredit violated § 1692f(8) ‘is sufficient in and of itself to constitute concrete injury’ without the further allegation of an ‘additional harm beyond the one Congress has identified.’” As to the merits, FirstCredit argued that § 1692f(8) contains a “benign language” exception that applied here. Donovan asserted that it does not contain such an exception. There is a split among circuits on this issue. The district court followed the line of cases supporting the exception interpretation. The court agreed with the Seventh Circuit’s contrary conclusion, holding that § 1692f(8)’s “plain text … forecloses a ‘benign language’ exception.” It rejected FirstCredit’s absurd-result argument, concluding that the “provision’s blanket prohibition is best understood as forbidding ‘any language or symbol’ on the envelope other than ‘language or symbols to ensure the successful delivery of the communication[.]’” The court found that the symbols and the language on FirstCredit’s envelope “played no role in ensuring the successful delivery of the letter, nor were they FirstCredit’s address or an allowable business name.” Thus, under the plain text of the statute, the allegations in Donovan’s complaint stated a claim. Remanded.
Resentencing of a defendant convicted of first-degree murder committed when he was a juvenile; Miller v Alabama; Ineffective assistance of counsel; Failure to present expert witness testimony about adolescent brain development; Denial of postjudgment request for funds to retain an expert; Whether life imprisonment without parole (LWOP) for a juvenile offender violates the federal & state constitutional prohibitions on cruel & unusual punishments; People v Carp
The court held that the trial court did not abuse its discretion in resentencing defendant-Clemons to LWOP, that he was not denied the effective assistance of counsel, and that an LWOP sentence for a juvenile offender does not violate the constitutional prohibitions on cruel and unusual punishment. He was convicted as a juvenile of felony murder and felony-firearm. He was sentenced to a mandatory LWOP sentence for the first-degree felony murder conviction, to be served consecutively to a term of two years for the felony-firearm conviction. After Miller and other legal developments, the prosecution moved to resentence him. It sought a LWOP sentence while defendant unsuccessfully sought a term-of-years sentence. He argued that the trial court abused its discretion by resentencing him to LWOP and erred by holding that his “age and family and home environment were not mitigating factors.” The court held that “although defendant’s family and home environment was a mitigating factor, the evidence and testimony regarding defendant’s age, the circumstances of the homicide offense, defendant’s ability to interact with police officers and attorneys, and the possibility of rehabilitation did not support that defendant’s crime reflected his transient immaturity.” It determined that the “trial court considered the Miller factors and applied the law to the facts here before imposing the” LWOP sentence, and that this “sentence was within the range of principled outcomes.” Affirmed.
Ineffective assistance of counsel; Cross-examination of the victim & a cell phone expert; Questioning witnesses as a matter of trial strategy; Failure to develop the defenses by adequately impeaching prosecution witnesses; Prosecutorial misconduct; Improper comments; People v Abraham; Search & seizure; Motion to suppress cell phone evidence; Reasonableness of a search; People v Mullen; Particularity requirement; People v Unger; The “good-faith” exception to the exclusionary rule
Rejecting defendant’s ineffective assistance of counsel and prosecutorial misconduct claims, and holding that the trial court did not err in denying his motion to suppress cell phone evidence, the court affirmed his convictions. He was convicted of AWIM, carrying a dangerous weapon with unlawful intent, FIP, and felony-firearm related to shooting victim-S. He asserted ineffective assistance of counsel as to the cross-examination of S and a cell phone expert (B). The questioning of B appeared “to have elicited testimony that was helpful to defendant. Trial counsel highlighted that law enforcement did not have access to GPS (global positioning systems) data to precisely track defendant’s phone. Also, [B] acknowledged that there was a failure rate of cell phone data to map a sector, and a possibility of calls made from outside a sector showing as if they were made in” it. The court found it significant that “trial counsel relied on the information that was elicited on cross-examination to argue in closing that there was a reasonable doubt” as to defendant’s guilt. The court held that he did not show that trial counsel’s performance in cross-examining B was deficient given that he employed reasonable trial strategy. As to the cross-examination of S, the court concluded that trial counsel used a reasonable trial strategy in trying to discredit him. He asked S questions “that produced testimony that could be used to argue in closing that [S] was not credible.” Defendant failed to identify any of S’s “testimony that trial counsel failed to attempt to discredit. That some of the questions became repetitive and increasingly detailed does not establish deficient performance.” As to the prosecutorial misconduct claim, “while the specific comment did not state that it was based on the evidence—that the jury should send defendant a message based on the evidence—it was clear from the context of the remark that it was tied to the evidence of the charges and was in response to defendant’s theory of the evidence.” Finally, the court found that there was probable cause for the search warrant, that it was not a general warrant, and that even “if the three-month period was overly broad, any defect in the warrant would not require the application of the exclusionary rule because the officer relied on the warrant in good faith.”
Hearsay; MRE 801(c); A statement offered to show why police officers acted as they did; People v Chambers; Right of confrontation; Admission of a lab report; MCR 6.202(C)(1) & (2); Sentencing; Enhancement under MCL 333.7413(1) (second or subsequent drug offense); Ineffective assistance of counsel; Failure to make a futile objection; Confidential informant (CI)
Holding that the challenged statements by a police officer were not hearsay, and that defendant was not denied his right to confrontation by admission of a lab report, the court affirmed his delivery of meth conviction. It also affirmed his 12 to 40-year sentence for a second or subsequent drug offense, concluding that it was “clear that the trial court did not mistakenly believe that the sentence enhancement was mandatory.” Finally, his ineffective assistance of counsel claims also failed. The three statements he challenged “were that: (1) officers had received tips that defendant was selling narcotics and that the CI could purchase meth from defendant; (2) the CI initially stated that he could purchase marijuana from defendant and then that he could purchase meth; and (3) that the [CI] contacted the officer and stated that he could purchase meth from defendant. In other words, all three statements generally were to the same effect. Critically, they were all made in the context of explaining the background to why and how the officers decided to set up the controlled purchase. Considering the statements in the context of the prosecutor’s questions, they were clearly not offered to prove that defendant was selling narcotics. Rather, they were offered to explain why the officers attempted to make a controlled buy from defendant.” The court has held that such statements are not hearsay. As to the lab report, the prosecution gave defendant proper notice of its intention to use it “at trial pursuant to MCR 6.202(C)(1), and defendant made no written objection to the report pursuant to MCR 6.202(C)(2). Thus, the report was ‘admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.’” The court added that, even if admitting it “had been erroneous, which it was not, defendant suffered no prejudice as a result.” He could not have been surprised by it given that he was properly notified and received a copy of the report over two months before trial, and the jury was already aware from testimony that the substance was field-tested and found to be meth. Lastly, the trial court explained on remand that it knew the MCL 333.7413(1) enhancement was discretionary and that it exercised its discretion in imposing it due to “defendant’s extensive criminal history and pattern of reoffending in the same manner.”
Sufficiency of the evidence; First-degree premeditated murder; MCL 750.316; People v Oros; Motion for a new trial based upon newly discovered evidence; People v Cress; Motion to suppress eyewitnesses’ identification; Evidence of the “no snitch code”; Relevance; MRE 401; Unfair prejudice; MRE 403
The court concluded that the evidence was sufficient to support defendant-Highshaw’s first-degree murder conviction. Further, it was not left with a definite and firm conviction that a mistake was made in the trial court’s denial of his motion for a new trial based upon newly discovered evidence. Finally, the trial court did not abuse its discretion by admitting evidence of the “no snitch code” where it “had significant probative value because it explained why the witnesses waited several months before identifying Highshaw as the shooter.” There also was nothing on the record indicating it was unfairly prejudicial. As to the sufficiency of the evidence, similar to Oros, in this case the evidence of premeditation and deliberation included more than just the number of wounds inflicted on victim-R. Specifically, although there was evidence that R and Highshaw were having a loud argument before the shooting, the record lacked any evidence suggesting that R was the initial aggressor. Instead, the record reflected that “during a verbal dispute, Highshaw drew a firearm, aimed it at [R] and fired the gun multiple times. Based on that, the jury could infer that Highshaw had an opportunity to take a second look after drawing his gun and aiming it. They could also infer an opportunity to take a second look based on the fact that after [R] fell to the ground, Highshaw stood over him and continued to shoot him.” Moreover, considering that five of the shots were to R’s head, it was “reasonable to infer that Highshaw was not firing blindly. He took the time to ensure that each shot hit where he intended.” Affirmed.
Whether a Confrontation Clause violation (allowing an expert witness to testify by video) was harmless error; People v Mass; Coy v Iowa; MCR 6.006(C); Admissibility of an expert’s report; MCR 6.202; Melendez-Diaz v Massachusetts
On remand, the court held that the Confrontation Clause violation in this case was harmless beyond a reasonable doubt. It also concluded that the violation of MCR 6.006(C) was susceptible to harmless-error review, that the standard for that review in this case was the same as for preserved, nonconstitutional error, and the violation was harmless. Defendant was convicted of CSC I. In a prior appeal, the court affirmed. However, the Supreme Court reversed on two issues related to an expert’s (C) testimony and remanded for a harmless error analysis. On remand, the court found the testimonial error was harmless and again affirmed. “Because defendant never filed a written objection to prosecutor’s notice of intent to use [C’s] report as evidence at trial, the report was admissible. Defendant waived his right to confront” C about his report. As such, the report was part of the remaining evidence, and to the extent C “merely testified to matters that were in his report, that testimony was cumulative.” The court then concluded that the violation of MCR 6.006(C) was susceptible to harmless-error review, that MCL 769.26 provided the standard for determining whether the error was harmless, and that the error was harmless.
Motion for a directed verdict on a first-degree premeditated murder charge; People v Aldrich; People v Bass; Prosecutorial misconduct; People v Dobek; Measuring provocation for voluntary manslaughter under the “reasonable person standard”; People v Sullivan; Admission of a photo of the crime scene; Relevance; MRE 401-402; MRE 403; Unfair prejudice; People v Anderson
Concluding that the prosecution offered sufficient evidence for a rational trier of fact to find the essential elements of first-degree murder were proven beyond a reasonable doubt, the court held that the trial court did not abuse its discretion in denying defendant’s motion for a directed verdict. While it found that the prosecutor’s challenged comments as to the reasonable person standard were improper, it held that they did not merit reversal. Finally, the trial court did not abuse its discretion in admitting a photo that showed the crime scene. Defendant was convicted of first-degree murder, felonious assault, domestic violence, and felony-firearm. He argued that because his anger was directed at his ex-girlfriend (S), there was no premeditation shown as to the victim, S’s best friend. But the evidence revealed “that defendant had emotional instability and was jealous of males that [S] would talk with, that defendant was highly upset that [S] was with the victim a few hours after she and defendant broke up, that defendant pulled [S] out of the car to yell at her for being with the victim, and that” he returned to his home to get his gun. The testimony also showed that he ran up behind S, pointed the gun at her, but did not shoot and then ran to the back of the car. In addition, he allowed S and the other friend to get in the car and he “waited for the victim to come outside to enter the car. It was not until the victim entered the driver’s seat that defendant came up to the driver’s-side window to initiate shooting. All this evidence taken together could establish that defendant intentionally waited for the victim to enter the car, that [he] thought about what he would do once the victim entered the car, and that [he] deliberated his choice to wait for the victim.” The court concluded that the prosecutor’s “remarks about the jurors themselves being the reasonable person appears to be error. Such remarks may have injected into each juror the responsibility to decide whether” he or she would have killed the victim, and if they would not, then they “could not convict defendant of voluntary manslaughter.” But pursuant to the trial court’s instructions, it was presumed “the jury correctly applied the reasonable person standard instead of injecting itself into the role of defendant when it” found inadequate provocation. In addition, overwhelming evidence suggested premeditation and deliberation. Affirmed.
Sentencing; Scoring of 10 points for OV 4; Whether the victim suffered severe psychological injury requiring professional treatment
Holding that the trial court did not err in concluding that there was sufficient evidence the victim “suffered a serious psychological injury that could require professional treatment” to support a 10-point score for OV 4, the court affirmed. Defendant, who was convicted of CSC III, argued “there was insufficient evidence to prove by a preponderance of the evidence that the victim suffered severe psychological injury requiring professional treatment.” The victim stated that she felt an inability to trust others, even those closest to her, as a result of the sexual assault. Her statements as to “the impact of defendant’s actions in causing her inability to trust others supported a finding that the victim suffered a psychological injury.” Also, although she “admitted that she did not attend counseling, she stated that she thought about participating in counseling and believed that she should have sought counseling. Despite the victim’s decision not to seek counseling, the fact that she considered counseling as a treatment for her personality change in being unable to trust those around her supports a finding that she suffered a serious psychological injury that could require professional treatment.”
Sentencing; Scoring of 10 points for OV 4 (serious psychological injury to a victim); Scoring of 25 points for OV 13; MCL 777.43(1)(c) (continuing pattern of criminal behavior)
The court held that because neither OV 4 nor OV 13 was scored in error, defendant was not entitled to resentencing. Thus, his sentence to concurrent prison terms of 4 to 10 years for bank robbery, and 10 to 20 years for armed robbery, with credit for 191 days served, were affirmed. As to OV 4, the court noted that at the preliminary exam, S “testified that, as a result of the incident, she was scared, very frightened, and afraid of being shot. Defense counsel asked her whether she had, since the time of the bank robbery, ‘sought any counseling of any sort,’ to which [S] responded, ‘Yes.’” Defendant argued that S “did not explicitly testify that her counseling was related to the bank robbery.” But the trial court’s determination that “the counseling was related to the bank robbery was a reasonable and appropriate inference in light of the context of the questioning. The trial court’s factual findings were supported by a preponderance of the evidence and were not clearly erroneous.” As to OV 13, defendant argued that, “because his convictions for armed robbery and bank robbery arose from a single criminal act, and because his only other felonious criminal activity against a person in the previous 5 years was one count of unarmed robbery, the trial court erred by determining that 25 points could be assessed under MCL 777.43(1)(c).” He was mistaken. “MCL 777.43(1)(c) requires that the pattern of felonious criminal activity involve ‘3 or more crimes against a person’; it does not require that each of those crimes against a person arise from a separate criminal act.” Both felonies here are crimes against a person. “Defendant undisputedly committed ‘more than one felonious act’ during the 5 year-period that encompasses the sentencing offense, having committed a total of four felonies in three separate felonious acts: one felony for the act in 2016, one felony for the act in March 2018, and two felonies for the act in June 2019.” The court held that this “pattern of felonious activity involved three crimes against a person: one unarmed robbery, one armed robbery, and one bank robbery.” The plain language of MCL 777.43(1)(c) requires no more. The court declined “defendant’s invitation to read into the statute a requirement that a defendant have committed three or more separate criminal acts in addition to three or more crimes against a person.” It concluded that such “a judicial gloss on statutory language is neither required nor permitted.”
Termination of a defined-benefit plan; ERISA; Whether 29 USC § 1342(c) requires a judicial adjudication to terminate a pension benefit plan; Jones & Laughlin Hourly Pension Plan v. LTV Corp. (2d Cir.); In re UAL Corp. (7th Cir.); Pension Benefit Guar. Corp. v. Alloytek, Inc.; Allied Pilots Ass’n v. Pension Benefit Guar. Corp. (DC Cir.); In re Syntex Fabrics, Inc. Pension Plan (3d Cir.); Procedural due process; Leary v. Daeschner; Board of Regents of State Colls. v. Roth; Duncan v. Muzyn; Nachman Corp. v. Pension Benefit Guar. Corp.; Matter of Defoe Shipbuilding Co.; § 1322(b)(3); Whether defendant-Pension Benefit Guaranty Corporation’s (PBGC) decision to terminate the plan was arbitrary & capricious; Pension Benefit Guar. Corp. v. Kentucky Bancshares, Inc. (Unpub. 6th Cir.); 5 USC § 706(2)(A); Pension Benefit Guar. Corp. v. LTV Corp.: National Ass’n of Home Builders v. Defenders of Wildlife; Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.; §§ 1342(a) & 1302(a)
[This appeal was from the ED-MI.] In an amended opinion (see e-Journal #73765 in the 9/3/20 edition for the original opinion), the court again joined other circuits and held that § 1342(c) of the ERISA does not require a judicial adjudication to terminate a pension-benefit plan. Rather, a plan may be terminated by an agreement between defendant-PBGC and the plan administrator. In the amended opinion, the court clarified its ruling that plaintiffs-retirees’ due-process claim failed where neither ERISA nor the Salaried Plan document gave them “a legitimate claim of entitlement to the entire amount of their vested, but unfunded, pension benefits.
Medical malpractice; Whether a party-physician is an expert witness under MCL 600.2169(1); Rock v Crocker; Standard of care (SOC); MCL 600.2169(1)(b); Whether precluding him or her from offering testimony about the applicable SOC would prevent him or her from being able to present an adequate defense
The court held that MCL 600.2169(1) applied to defendant-doctor and that he did not qualify under MCL 600.2169(1)(b) to testify as to the applicable SOC. Also, this did not prevent him from adequately defending himself. Plaintiff sued defendant (who had board-certified specialties in cardiology and internal medicine) for medical malpractice after plaintiff’s decedent died from a pulmonary embolism while under defendant’s care. On appeal, defendant argued that “MCL 600.2169(1) does not apply to a party-physician and if it does, the statute prevents him from presenting an adequate defense.” He first argued that he was “qualified to testify on his own behalf under MCL 600.2169(1) because the qualifications of a proposed expert are determined on the basis of the qualifications of the defendant. Although the experience of an expert witness under MCL 600.2169(1)(a) directly corresponds to the experience of the party against whom or on whose behalf the testimony is offered, this argument ignores the additional requirements of MCL 600.2169(1)(b), which requires that the specialist must have devoted a majority of his or her professional time to active clinical practice or instruction of the specialty. Defendant testified that he practiced the majority of the time within the year immediately preceding the alleged occurrence of malpractice in his cardiology specialty, not internal medicine.” Thus, the court held that he did not qualify under MCL 600.2169(1)(b). Defendant next argued that a party-physician is not an expert witness under MCL 600.2169(1). But the court noted that nowhere in MCL 600.2169 “does the Legislature distinguish a party witness from a nonparty witness.” The court pointed “out that MCL 600.2169(1) very specifically directs that ‘a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets [the specified statutory] criteria.’ If the Legislature intended to make a specific exception for a party-physician who chooses to testify as an expert witness regarding the applicable [SOC], it could have done so, but has not.”
Uninsured motorist coverage (UIM); Collateral estoppel; Radwan v Ameriprise Ins Co; Mutuality of estoppel; Monat v State Farm Ins Co
The court held that collateral estoppel precluded plaintiff-estate from relitigating the amount of compensatory damages it could recover from defendant-Sandy, and as a result of the amount, no UIM benefits remained available to plaintiff under the terms of the decedent’s (Parks) insurance policy. Thus, the court reversed the order granting plaintiff’s motion to reinstate a UIM claim against defendant-Pioneer, and remanded for entry of an order dismissing plaintiff’s UIM claim against Pioneer. Parks was struck by a vehicle driven by Sandy and died of her injuries. Plaintiff sued Sandy and “Pioneer, alleging that Parks had a UIM policy with a provision for a $250,000 maximum limit and that Sandy was ‘underinsured for residual tort liability.’ Because Sandy’s insurance policy’s maximum limit for bodily injury liability was $100,000, plaintiff sought to recover from Pioneer any damages in excess of $100,000.” A jury found that “Sandy was negligent, that Parks was 50% comparatively negligent, and that plaintiff’s damages were $200,000. Thus,” after reducing the damage award “to account for Parks’s comparative negligence, the jury’s verdict represents a finding that the compensatory damages that plaintiff is ‘legally entitled to recover’ from Sandy is $100,000. Because Sandy’s bodily injury liability policy limit was $100,000, following entry of the $100,000 judgment against Sandy, plaintiff successfully recovered the exact amount of compensatory damages that it was legally entitled to recover against Sandy.” However, plaintiff now sought “a second trial, this time against Pioneer” apparently in the hope of receiving “a verdict indicating that the amount of compensatory damages that it can recover from Sandy will be in excess of Sandy’s $100,000 policy, thereby allowing plaintiff to collect additional money under the UIM policy.” The parties disputed whether the third requirement for collateral estoppel was met – mutuality of estoppel. But the Supreme Court concluded in Monat “that when ‘collateral estoppel is being asserted defensively against a party who has already had a full and fair opportunity to litigate the issue, mutuality is not required.’” That was the situation here. The court rejected plaintiff’s efforts to distinguish Monat, finding the distinctions were “not meaningful.”