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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Claims under 42 USC § 1983; Whether a prosecutor was entitled to absolute immunity; Imbler v. Pachtman; Buckley v. Fitzsimmons; Failure to raise qualified immunity; 600 Marshall Entm’t Concepts, LLC v. City of Memphis
[This appeal was from the ED-MI.] The court held that the district court properly denied defendant-assistant prosecutor Healy absolute immunity on plaintiff-Watkins’s claims of constitutional and common law malicious prosecution and falsification of evidence, concluding that his alleged actions were those of an “investigator” and not of an “advocate.” Watkins’s 1976 murder conviction was based on the testimony of one individual, H, and a strand of hair found on the victim, which matched a sample from Watkins. After Watkins was convicted, H repeatedly recanted, blaming his former testimony on alleged police coercion. In 2017, Watkins introduced evidence that the hair analysis was flawed, and the state court dismissed the case without prejudice. Watkins then sued Healy and others under § 1983, alleging fabrication of evidence, malicious prosecution, and civil conspiracy. The court concluded that it had “appellate jurisdiction to review the district court’s denial of absolute immunity for” Healy, but it found that the collateral-order doctrine did not allow it to consider his other five issues. Looking to federal precedent, it held that none of the acts Healy was accused of would be covered by absolute immunity. Watkins accused Healy of participating in H’s interrogation; threatening H with murder charges; promising immunity to H if he testified at Watkins’s trial, even though H said that Watkins was not involved; and conspiring with a police officer to coerce H into testifying against Watkins. All of these actions took place “before any probable cause hearing, . . . before any arrest warrant was sought, . . . or before a grand jury was convened[.]” Thus, the court determined that Healy was not acting as an advocate preparing for trial but was instead acting as an investigator, and was not entitled to absolute immunity. The court also found that he forfeited the issue of qualified immunity at this stage by failing to properly assert it in his Rule 12(b)(6) motion. It agreed with the district court that the issue could be raised in a motion for summary judgment. Affirmed and remanded.
Sufficiency of the evidence; Felony-firearm; MCL 750.227b(1); Possession; Credibility
The court held that the prosecution presented sufficient evidence for a rational trier of fact to find defendant guilty of felony-firearm beyond a reasonable doubt. First, there was sufficient evidence he “knew the location of the firearms. A police officer who executed the search warrant testified that defendant told him, at the scene, that defendant lived at the home and the firearms belonged to him. Additionally, in his written and oral statements with the police, defendant admitted that he lived at the searched home and owned the firearms that police found in the rafters. His admission that he lived in the home was corroborated by two pieces of mail sent to him at that address.” Second, there was sufficient evidence that the firearms were reasonably accessible to him. “When the police officers executed the search warrant, defendant was in the basement of the house. The firearms were found in the basement ceiling rafters. Viewed in a light most favorable to the prosecution, a rational juror could reasonably find that defendant had constructive possession of the firearms.”
Sentencing; OV 3 (physical injury to a victim); MCL 777.33(1)(d); OV 4 (psychological injury to a victim); MCL 777.34(1)(a); Ineffective assistance of counsel; Failure to specifically object to the consideration of acquitted conduct when the trial court was assessing the OVs; People v Beck; Unlawfully driving away an automobile (UDAA)
The court held that because the trial court could not consider defendant-Hult’s acquitted conduct, it erred by assessing 10 points for OV 3. Also, because the record contained “no evidence—let alone a preponderance of it—to support that the victim suffered a serious psychological injury as a result of Hult’s commission of UDAA,” the assessment of 10 points for OV 4 was erroneous. But counsel was not constitutionally ineffective for failing to specifically object to consideration of acquitted conduct while the trial court was assessing the OVs given that Beck had not yet been decided. The court vacated his sentence and remanded. He was sentenced as a fourth-offense habitual offender to 6 to 30 years. The “victim testified that her head and back were hurt after Hult pushed her down in the parking lot. Evidence supported that the victim was hospitalized and received prolonged medical attention as a result of her injuries. The victim’s impact statement in the” PSIR referenced injuries she “suffered as a result of the ‘attack,’ which the victim indicates consisted of Hult pushing her to the ground and pulling the lanyard that was around her neck.” However, the alleged assault was part and parcel of carjacking. By acquitting him of this crime, the jury necessarily found that he “did not take possession of the victim’s vehicle ‘either by force or violence, by threat of force or violence, or by putting the [victim] in fear.’” Thus, the trial court’s decision that “the victim suffered physical injury during the sentencing offense improperly took into account acquitted conduct, as the crime of UDAA does not require proof that Hult assaulted the victim.” In addition, “after defense counsel objected to the scoring of OV 4 at the sentencing hearing, the trial court read from the victim’s impact statement in the” PSIR before declining to rescore OV 4. However, her “impact statement only refers to the emotional issues that resulted from the alleged ‘assault[],’ the alleged ‘car jack[ing],’ and Hult’s alleged attempt to ‘rob[]’ the victim of her purse. The impact statement did not attribute any psychological injury to Hult’s taking of the vehicle in the victim’s presence.” Thus, it was clear that the trial court impermissibly relied on acquitted conduct in assigning points to OV 4.
Sufficiency of the evidence for CSC I & II convictions under MCL 750.520b(1)(a) & (2)(a) & MCL 750.520c(1)(a) & (2)(b); Effect of a victim’s testimony alone; MCL 750.520h; People v DeLeon; “Sexual penetration”; MCL 750.520a(r); “Sexual contact”; MCL 750.520a(q); Principle that the prosecution does not have to prove specific acts of sexual abuse occurred on specific dates in cases involving young children; People v Dobek
Holding that the victim’s (his daughter) testimony provided sufficient evidence to support defendant’s CSC I and II convictions, the court affirmed. She disclosed the abuse to her foster mother when she was seven years old. As to his CSC I convictions, while defendant noted there was no medical evidence supporting her testimony, under MCL 750.520h, a victim’s testimony does not need to be corroborated to support a CSC conviction. In addition, the court found that the victim explicitly described penile penetration. She “specifically asserted in a note that defendant put his ‘pepe’ into her vagina and anus. [She] confirmed the accuracy of the note at trial. [She] could not describe how far defendant’s penis traveled, but” the court noted that this was of no consequence. Under MCL 750.520a(r), sexual penetration is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body . . . .” Further, any inconsistency in her “testimony was for the jury to resolve,” not the court. It also held that sufficient evidence supported his CSC II conviction. The victim testified that he “touched her every night at bedtime with his penis, hands, and fingers on her ‘pee pee and butt.’ This touching was in addition to the penetration” she described. He asserted that she had “to describe acts separate and distinct from” those underlying the CSC I charges to support separate CSC II convictions. The court noted that he was only charged with “six acts of sexual assault despite that the abuse purportedly occurred almost every night over a six-month period.” It found no reason to believe that each CSC II “charge arose from the same individual incidents that led to the” CSC I charges. It also noted that the prosecution did not have to “cite, let alone prove, that specific acts of sexual abuse occurred on specific dates in” a case involving a young child.
Ineffective assistance of counsel; People v Sabin (On Second Remand); Failure to reasonably investigate a case; People v Trakhtenberg; Failure to call witnesses; People v Dixon; Sufficiency of the evidence; Credibility; People v Dendel
The court held that defendant was not denied the effective assistance of counsel. She was convicted of felonious assault and sentenced to 2-1/2 years’ probation after she accelerated her vehicle toward the victim, a pedestrian, who jumped out of the way. On appeal, the court rejected her argument that she was entitled to a new trial because her trial counsel provided ineffective assistance by failing to investigate and present scientific evidence that would have demonstrated the victim’s allegations were implausible. It found she failed to show she was prejudiced by her trial counsel’s performance. The trial court found the victim to be credible and defendant not to be credible. In addition, the court had no reason to believe that if Dr. B, an accident reconstruction expert, “had testified at trial, the trier of fact would have given more weight to his testimony than that of the victim.” Because B’s testimony “does not disprove that those events occurred,” defendant did not establish “a ‘reasonable probability’ that the outcome of trial would have been different if” B had testified. Affirmed.
CSC IV under MCL 750.520e(1)(b)(v); Motion for a directed verdict of acquittal; “Sexual contact”; MCL 750.520a(q); Buttocks as an intimate part; MCL 750.520a(f); Effect of the victim’s testimony; MCL 750.520h; Credibility
Holding that a rational jury could have found from the evidence “that defendant, through concealment or the element of surprise, intentionally touched the clothing covering the victim’s buttock[,]” the court affirmed his CSC IV conviction under MCL 750.520e(1)(b)(v). It rejected his claim that the trial court violated his right to due process by denying his motion for a directed verdict of acquittal on the charge. He argued that the prosecution did not produce sufficient evidence to allow “a rational jury to find beyond a reasonable doubt” that he grabbed her buttock. He asserted that the video evidence “proved that he did not grab the victim’s buttocks. The jury had the opportunity to view the video, and, even if it does not show defendant grabbing the victim’s buttocks, it supports a finding that defendant could have committed the crime as described by the victim and her coworker at trial because his hands, while not in view of the camera, were in a position where he could have grabbed the victim’s buttocks. Moreover, the victim and her coworker both testified that defendant grabbed the victim’s buttocks as he passed by her.” The court noted that a victim’s testimony by itself can be sufficient evidence to support a CSC conviction. In addition, “defendant’s ‘just the tip’ remark and later sexual noise could support the conclusion that defendant touched the victim’s buttocks for a sexual purpose or that his touching could have been reasonably construed as being for the purpose of sexual arousal or gratification.”
Burden of proof; Whether the established custodial environment (ECE) was altered by the change of school districts; Whether the referee properly applied a preponderance-of-the-evidence standard to the best-interests analysis; Best interest & parenting time factors (d), (e), (i), (j), & (l); MCL 722.23; MCL 722.27a(7)
The court held that because the ECE was not altered by the change of school districts, the referee properly applied the preponderance-of-the-evidence standard when reviewing the best-interest and parenting-time factors. Further, the decision to weigh best-interest factors (d), (i), (j), and (l) in favor of plaintiff-mother was not against the great weight of the evidence. And, although the referee made a legal error by weighing best-interest factor (e) in her favor, it was harmless, so reversal was not warranted. Finally, because the referee properly found that parenting-time factor (e) weighed slightly in her favor, reversal was not warranted on that basis. Thus, the court affirmed the trial court’s order granting plaintiff’s motion to change the children’s school district. Defendant-father argued that the referee’s finding that the proposed change did not alter their custodial environment was against the great weight of the evidence and thus “plaintiff was required to prove by clear and convincing evidence rather than a preponderance of the evidence that a change in schools and the accompanying change in the parenting-time order was in” their best interests. Defendant believed that their ECE “was altered because his parenting time was significantly reduced and because the ‘day-to-day role with his children [could not] simply be made up by adding an occasional fifth weekend or one week in the summer of parenting time.’” Although he received less parenting time under the trial court’s final order than under the judgment of divorce, he “testified that he was unable to dedicate the amount of time he would have liked to each child during his midweek parenting time because he had to balance his time with each child. Therefore, as the referee suggested, the increase in the frequency of overnights along with extra time during the summer would allow defendant to spend more meaningful, quality time with the children.” Because the modification in parenting time would not change their ECE, “the referee properly applied a preponderance-of-the-evidence standard to the best-interests analysis.”
Professional (accounting) malpractice; Broz v Plante & Moran, PLLC (On Remand); Standard of care (SOC)
Although the trial court should have granted defendants summary disposition because plaintiff failed to present expert testimony on the SOC and whether defendants had breached it, the error was harmless because the trial court granted their summary disposition motion under MCR 2.116(C)(10) on other grounds. The court held that the trial court erred in concluding that plaintiff did not need to provide expert testimony establishing the SOC, and that it should have granted defendants summary disposition on the basis of her failure to do so. Plaintiff explicitly acknowledged that defendant-Richards’s “professional relationship with her extended beyond that of ‘the norm for an accountant in Manistee.’ Richards also testified that his business relationship with plaintiff was ‘an unusual situation from day one.’ The business arrangements here were both complex and ill-defined. Defendants represented plaintiff in her business affairs, which apparently were not conducted through a legal entity. They sought to manage her personal and business debt, including under a land contract. Defendants also represented” an LLC that was solely owned by another party in the case. “They were involved in the day to day operations of a specialized business requiring special licensure. They assisted in managing the finances of the business, both on behalf of plaintiff and on behalf of the LLC. And all of their actions were carried out amidst a confusing array of relationships between plaintiff, her unincorporated business,” other parties and the LLC. “Because of the complex nature of defendants’ professional representations, expert testimony was required to establish the [SOC] required of an accountant in the same or similar localities because the [SOC] and breach was not ‘so obvious as to be within the common knowledge and experience of an ordinary layman.’” For these reasons, the court held that the trial court erred in deciding that “expert testimony was not required and when it denied defendants’ motion for summary disposition on that ground. Without establishing the appropriate [SOC], plaintiff could not establish a genuine issue of material fact” as to whether defendants breached it. Affirmed.
Premises liability; Allegedly defective step; Actual or constructive notice; Lowrey v LMPS & LMPJ, Inc
Concluding that plaintiff failed to show a genuine issue of fact as to whether defendant had actual or constructive notice of the allegedly defective step on which she fell, the court affirmed summary disposition for defendant. Plaintiff was injured at one of defendant’s facilities “when she fell while descending a set of stairs.” She asserted that she and a co-worker were walking side-by-side down the stairs, and when the co-worker “stepped on the left side of the last step, the metal plate covering the concrete step flexed which caused plaintiff to lose her balance and fall. Plaintiff had never used the stairs previously. Plaintiff alleged that the step was defective because the metal plate came loose from the step.” The court noted that she did not assert “that defendant had actual notice of the allegedly defective step. Rather, in” opposing its summary disposition motion, she only contended “that the stairs were located in a high-traffic area so constructive notice of the defect should be inferred.” However, the court could not agree. It noted that plaintiff did not provide “evidence of any accidents, incident reports, complaints, or maintenance records related to the allegedly defective step. And plaintiff provided no evidence from which it could be inferred that defendant should have known about the condition considering its character or how long it had existed. To the contrary, plaintiff admitted that the defect was not readily observable, that she had not seen it, that she did not know when it arose, and that the metal strip that caused her to lose her balance only flexed because” the co-worker stepped on it when plaintiff was also stepping on it.
Trespass to land; “Right to exclusive possession”; Trespass to personal property; Conversion; A “wrongful” act of dominion; Tax foreclosure; MCL 211.78k; Motion to amend the complaint to add a wrongful eviction claim; Futility
Holding that plaintiff did not have a “right to exclusive possession” of the property after the tax foreclosure and that there was no “wrongful” act of dominion, the court affirmed summary disposition for defendant on plaintiff’s trespass to land, trespass to personal property, and conversion claims. Defendant purchased the property from the county treasurer after the judgment of foreclosure was entered and the county treasurer took title to the property. Plaintiff asserted that the trial court erred in dismissing her “claims because she had superior possessory rights over defendant and did not abandon her property.” The court disagreed. To recover for trespass to land, a “plaintiff must prove an unauthorized intrusion onto land over which the plaintiff has a right to exclusive possession.” She was not the owner when defendant entered the property – the county was the undisputed title owner and had been for six months. “Defendant did not need plaintiff’s permission or authorization to enter onto the property. And defendant was authorized to enter onto the property after purchasing” it from the county. Thus, the trespass to land claim failed as a matter of law. As to the trespass to personal property and conversion claims, “liability does not arise when an actor is entitled to the personal property at issue, i.e., the act of dominion is not ‘wrongful.’” The court concluded that plaintiff could not “show that defendant wrongfully exercised dominion or control over plaintiff’s personal property when defendant proceeded to clean out the real property he purchased from” the county. It noted that she “had sufficient time to remove her personal property from the subject real property between the time of the show cause hearing” and the time of the judicial foreclosure hearing two weeks later. Further, from the time the county “acquired the property to the time it sold the property to defendant, plaintiff made no effort to remove her personal property. Thus, as the trial court held,” she abandoned it. Finally, amending the complaint to add a wrongful eviction claim would be futile.
Termination under §§ 19b(3)(g) & (j); Reasonable reunification efforts; MCL 712A.19a(2); In re Rippy; Principle that no efforts at reunification must be made if there is a judicial determination the parent subjected the child to aggravated circumstances as provided in MCL 722.638; Abandonment; In re Rood
The court held that the DHHS was not required to make reasonable reunification efforts and thus, termination of respondent-father’s parental rights to the child was not premature. It previously remanded to the trial court “to either order that reasonable services be provided to respondent, or articulate a factual finding by clear and convincing evidence that aggravated circumstances exist such that services are not required.” The trial court opined that respondent had abandoned the child and that under the totality of the circumstances, this abandonment “was an aggravating circumstance that relieved the [DHHS] of an obligation to provide a case service plan and services to respondent.” The trial court also noted that he “showed ongoing criminal conduct, most concernedly assaultive behaviors, even while he was imprisoned, which demonstrated a current risk of harm to” the child, that he “voluntarily terminated his parental rights to another child following the initiation of a child protective proceeding,” that he failed to “rectify the conditions that led to the prior termination of parental rights,” and he neglected and abandoned the child. The court agreed with the trial court that abandonment was established by clear and convincing evidence, and found that the trial court “made an appropriate judicial determination that respondent subjected [the child] to aggravating circumstances” and was thus, reasonable efforts to reunify them were not required. Affirmed.