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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Jurisdiction; Effect of failure to sign the information; MCL 767.40; MCR 6.112(D) & (H); People v Thomas; Harmless error; MCL 769.26; MCR 6.112(G); United States v Mechanik; Distinguishing In re Bail Bond Forfeiture; Ineffective assistance of counsel; People v Fyda; Jury instructions; Legal insanity & involuntary intoxication; M Crim JI 7.10(3) & (4); MCL 768.21a(1); People v Caulley; People v Conrad; Principle that a person is not considered legally insane solely on the basis of being under the influence of voluntarily consumed alcohol; MCL 768.21a(2); Distinguishing People v Wilkins
The court held that defendant was not entitled to reversal of his conviction on the basis of the prosecution’s failure to sign the information. It also held that he was not denied the effective assistance of counsel, and that the trial court did not err by denying his request to instruct the jury on involuntary intoxication and insanity. He was convicted of first-degree premeditated murder, AWIM, UDAA, felonious assault, and felony-firearm for murdering his friend, L, shooting at a second victim, K, and unlawfully driving away L’s vehicle. On appeal, the court rejected his argument that his case should be dismissed on jurisdictional grounds because the prosecution failed to sign the information, noting that “although the prosecution undoubtedly erred by failing to sign the information, that failure did not divest the trial court of jurisdiction when an arraignment was held, and defendant was aware of the charges that he faced.” In addition, he “received thorough notice of the charges that he faced and has not established that he was prejudiced by the lack of a signed information.” The court also rejected his claim that he was denied effective assistance of counsel on the basis of defense counsel’s failure to object to the unsigned information, finding he failed to show defense counsel’s performance was deficient or that he was prejudiced. Finally, the court rejected his contention that the trial court erred by denying his request to instruct the jury on involuntary intoxication and insanity. “Although it may be unexplained and surprising that defendant shot at [K] and fatally shot [L], there was no evidence that [he] was anything other than voluntarily intoxicated and that he should not have reasonably known that he would become intoxicated or impaired.” And, again, any error was not outcome-determinative. Affirmed.
Jury instruction; Waived issue; Ineffective assistance of counsel; Failure to request a proper instruction on the definition of constructive possession for purposes of the FIP charges; Jail credit; Due process
The court concluded that defendant was not denied the effective assistance of counsel. Also, he was not entitled to credit under MCL 769.11b, and the trial court did not plainly err when it sentenced him. Finally, he did not meet his burden to show that his sentence violated due process. He was convicted of FIP, FIP of ammunition, and felony-firearm. Defendant argued that his trial counsel provided ineffective assistance by failing to request a proper jury instruction. He claimed the instruction given was inadequate to inform the jury of the definition of constructive possession for purposes of FIP because it did not articulate the element of “dominion and control.” The instructions “on actual and constructive possession were derived from M Crim JI 11.34, the instructions for felony-firearm.” Even assuming the instruction “did not adequately convey the notion of an intent to exercise control over the weapon, and that counsel’s failure to request a more accurate instruction constituted deficient performance, any error was not outcome-determinative because the jury reasonably concluded defendant actually possessed a firearm on the date of the offense. A security guard testified that he saw defendant holding a gun and that defendant dropped the gun while fleeing from him.” While defendant testified that “he never touched the gun, he previously admitted to the police that he picked up the gun and fired two shots toward the victim. Defendant also admitted to police that when the security guard approached him, he dropped his gun and fled.” Other than his “own self-serving and contradictory testimony, which was inconsistent with his former statements and statements from witnesses, the record was bereft of evidence upon which the jury could have based a finding that defendant had constructively possessed a weapon.” He claimed the jury’s question “during deliberations—'Is being in the vicinity of others with guns being in possession[?]’—[wa]s evidence the jury believed defendant only constructively possessed the firearm and was confused by the trial court’s instruction. It may be that the jury was inclined to only convict defendant on the basis of constructive possession of the handgun. It may also be, however, that the jury wanted to understand all of the different elements in their entirety before rendering a verdict.” The court could not “state on the basis of the question alone the jury only believed defendant constructively possessed the handgun.” Affirmed.
Child custody; Request for a custody hearing; Involuntary dismissal; MCR 2.504(B)(2); Proper cause or a change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Great weight of the evidence; MCL 722.28; Whether the trial court followed its remand instructions; Judicial bias; In re Contempt of Henry; Request for disqualification; MCR 2.003(C)(1)(a)
The court held that the trial court did not err by denying defendant-father’s request for a full custody hearing concerning the parties’ daughter. After a variety of claims and court hearings, defendant filed a motion for a custody hearing. The trial court denied his motion, finding he failed to establish “by a preponderance of the evidence proper cause or a change of circumstances that would warrant a custody hearing.” It then entered an order granting plaintiff-mother’s motion for involuntary dismissal. On appeal, the court rejected defendant’s argument that the trial court erred in applying MCR 2.504(B)(2) to resolve his motion. It noted that when he “moved to modify the custody award that was originally made in the judgment of divorce, he in effect became the plaintiff in a new custody action for purposes of applying MCR 2.504(B)(2).” As such, the trial court did not err by finding it could assess the evidence he “presented in support of his motion and resolve that motion under MCR 2.504(B)(2).” The court also rejected his claim that the trial court failed to follow the court’s instructions on remand and was biased against him. “The record shows that the trial court fully complied with the panel’s instructions to hold an evidentiary hearing to determine whether [defendant] had established by a preponderance of the evidence grounds for holding a full custody hearing.” In addition, the record showed “the trial court was courteous and professional throughout the pretrial and two days of evidentiary hearings.” It gave defendant “the opportunity to present his proofs and carefully applied the rules of evidence to his submissions.” The fact that the trial court ultimately determined he “had not met his burden of proof did not establish that the trial court held a bias against” him. Finally, the court rejected his contention that the trial court erred when it determined he did not establish proper cause or a change of circumstances warranting a full custody hearing. It declined his “invitation to evaluate the weight and credibility of the evidence and make [its] own findings.” Affirmed.
Premises liability; Trip over an uneven patch of asphalt that defendant had applied to repair a portion of the sidewalk; Open & obvious; Special aspects; Whether the asphalt patch was effectively unavoidable
The court concluded that the condition of the asphalt-patched sidewalk in front of the defendant-restaurant was open and obvious as a matter of law. Thus, the trial court erred in holding that a genuine issue of material fact existed as to the open and obvious nature of the condition. Also, it erred in holding that there was a question of fact whether the dangerous condition on the land had special aspects. Thus, the court reversed and remanded for entry of summary disposition for defendant. The decedent “tripped over an uneven patch of asphalt that defendant had applied to repair a portion of sidewalk in front of the only public entrance to its restaurant.” At issue was whether the patch was open and obvious, and if so, whether it had any special aspects. Defendant argued that the condition "was open and obvious as a matter of law.” The photos provided by the parties were “unambiguous and clearly show that the asphalt patch was a different color and texture from the surrounding area.” Also, they clearly showed “the patch was slightly elevated. Although plaintiff contended that the patch was less obvious in person than it was in the photographs, he nevertheless conceded that the pictures were fair and accurate representations of the condition on the day of the incident.” The court held that “whether the decedent was using reasonable care at the time or had any actual knowledge of the patch is not relevant. Even presuming the photographs make the patch more readily apparent than the patch would be in person, they still demonstrate it is ‘reasonable to expect that the invitee would discover the danger[.]’” Plaintiff also argued that even if the court “determines the asphalt patch was open and obvious, it should still affirm because the trial court properly concluded there was a question of fact whether the dangerous condition on the land had special aspects.” The court concluded that although a grave tragedy occurred, it was “not persuaded that the asphalt patch was unreasonably dangerous.” Plaintiff argued that it was effectively unavoidable. The photos “unambiguously show that although the asphalt patch was long, it did not span the entire length of the sidewalk.” Rather, there was “ample room to walk around the patch between the entrance of the restaurant and the parking lot. Because an alternative path is clearly available, the asphalt patch is not effectively unavoidable.”
Principal residence exemption (PRE); MCL 211.7cc(1); Estate of Schubert v Department of Treasury; MCL 211.7dd(c); “Occupy”; Effect of a driver’s license & voter registration; Drew v Cass Cnty; Petitioners’ reliance on Rentschler v Melrose Twp; Tax Tribunal (TT)
Holding that the TT did not err in concluding petitioner-Karen Ellsworth had not occupied the property at issue (the South Shore Drive property) as her principal residence, the court affirmed the denial of a PRE for the property. Petitioners jointly own two Michigan homes. They asserted petitioner-Peter Ellsworth lived in their Okemos property “and spent weekends, holidays, and some vacations at the” South Shore Drive property, while Karen had lived at that “property year-round since 2005[.]” They contended the TT “adopted a wrong legal principle when it determined that Karen’s ‘legal intent’ was to establish the Okemos property as her principal residence because the statutes governing the PRE do not require ‘legal intent.’ Although MCL 211.7dd(c) does not use the exact phrase ‘legal intent,’ it provides, in relevant part, ‘“Principal residence” means the 1 place where an owner of the property has his or her true, fixed, and permanent home to which, whenever absent, he or she intends to return . . . .’” The court concluded the TT did not err in considering her “intent to return to the Okemos property because her intent to return to the South Shore Drive property was a requirement for her to establish it as her principal residence.” It also noted the TT did not rule that “Karen was not entitled to a PRE merely because she used the Okemos address for purposes of her driver’s license and voter registration. It stated that the totality of the substantial evidence demonstrated that Karen had never occupied the South Shore Drive property as her principal residence. [It] noted the legal effect of using an address on a driver’s license or voter registration, and that Karen also renewed her driver’s license with the Okemos address and voted using that address after she filed the PRE claim.” Further, it “specifically referenced the holding in Drew that such evidence was not conclusive.” The court also noted that showing "a person lived at a property for a majority of the year does not mean that they are entitled to a PRE.” After summarizing the evidence, the TT found that respondent’s evidence “was entitled to greater weight, citing the potential legal penalties for voting in the wrong district or improperly registering one’s car at the incorrect address.” The court held that the TT’s “decision was supported by competent, material, and substantial evidence” and thus, was conclusive.
Termination under §§ 19b(3)(a)(ii), (c)(i), (c)(ii) & (j); Child’s best interests; Another planned permanent living arrangement (APPLA)
Holding that the trial court did not clearly err in finding that terminating respondent-mother’s parental rights to the child (C) was in C’s best interests, the court affirmed the termination order. On appeal, respondent only challenged the trial court’s best-interest determination. She contended C wanted to return to her care at the time of the termination. But the court concluded the record did not support that they had a healthy bond. C “was removed from respondent’s care because respondent refused to participate in services to avoid removal.” There was evidence that they “had engaged in physical altercations before removal occurred and that respondent had failed to adequately provide for [C]. Respondent did not attend the preliminary hearing despite being provided with notice, and a CPS worker testified that respondent indicated that she did not ‘want’ [C].” After being taken into care, C refused contact with respondent for a time. While C later agreed to visitation, respondent participated in only 5 of 42 offered visitations, 15 of which “did not occur because [C] refused to see respondent, and [C] sometimes had panic attacks when confronted with the possibility of returning to respondent’s care. Respondent ceased contact with DHHS and [C] for extended periods of time during the proceeding and, at the time of termination, respondent had not had ‘authorized parenting times’ with” C for approximately eight months. In addition, she had shown an inability to provide stability for C and there was no indication that she would be able to effectively parent C, “who had mental health issues and who considered respondent to be a friend.” The court noted that “respondent refused to address any of her issues during the 17-month proceeding and denied substance use despite testing positive for amphetamines and” meth. The record showed that C “was doing well in her placement.” She bonded with her foster parents, whom she referred to as “mom” and “dad.” She had been placed with them “for a majority of the proceeding, and they expressed a desire to adopt” her. While respondent contended “a guardianship or APPLA was in” C’s best interests, the court disagreed. “The trial court found that these options were not appropriate, and this was not an erroneous conclusion.”