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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Witness identifications; Impermissibly suggestive pretrial identification procedure; Ineffective assistance of counsel; Failure to call an identification expert; First time in-court identification; Joinder; Motion to sever shooting & weapons charges; Whether double jeopardy barred retrial; Search warrant; Motion to suppress; Cumulative effect of errors
The court held that “the trial court did not err in finding that the procedures used in this case were not unduly suggestive to support suppressing the identifications made by” witnesses-S and H. Also, “defense counsel was not ineffective for failing to call an” eyewitness identification expert witness. Further, the record supported witness-SH “having an independent basis for identifying defendant.” And the court concluded the trial court did not abuse its discretion in allowing “the prosecutor to try defendant in one trial for the shooting and weapons charges.” Finally, his double jeopardy, search warrant, and cumulative error claims also failed. He was convicted of numerous crimes following a drive-by shooting. The court concluded that despite “the apparent distinctions between some of the” photos, it could not “say that the trial court erred in ruling that the array as a whole did not single out defendant or cause his photograph to stand out to” S and H. The photo array contained eight photos, “which were all separate, and [S and H], were told that the person who did it may or may not be included in the array.” At trial, both S and H “denied having discussed the photo array amongst themselves prior to making their independent identifications. The detective who produced the photo array also explained that while the software program the police department used to select photographs was not properly working when he prepared the lineup, he still tried to find photographs that were similar to those of the suspect’s description. To do this, [he] entered defendant’s photograph into the system and it produced the photographs that he could select from to use in the array. The trial court correctly recognized that some photos included were dissimilar to defendant, but also noted that the most unique photos were not of [him] and therefore did not stand out in a manner to suggest the identification of” him. Thus, he had “not shown that the trial court clearly erred with regard to its findings on the similarities among the photographs.” Further, the court found that given both SH’s “previous observations of defendant, along with this second encounter with him, the record supports [her] having an independent basis for identifying defendant.” Affirmed.
Sentencing; Doubling a defendant’s guidelines pursuant to MCL 333.7413(1); People v Lockridge; People v Hines
On remand from the Supreme Court, the court held that the trial court erred in doubling defendant’s “guidelines to determine his minimum sentence pursuant to MCL 333.7413(1).” Thus, it vacated his sentences for his four drug-related convictions and remanded “for resentencing under the framework set forth in Hines.” He was also convicted of firearms offenses. After the court previously affirmed his convictions and sentences, the Supreme Court issued an order remanding the case to allow defendant to file a supplemental brief as to whether, in light of Lockridge, “‘a court can double an individual’s sentencing guidelines pursuant to MCL 333.7413(1).’” That statute gives a trial court “the discretion to impose a sentence of imprisonment ‘for a term not more than twice the term otherwise authorized’ on a defendant convicted of a second or subsequent drug offense as defined by the statute.” In Lockridge, the Supreme Court ruled that Michigan’s “sentencing guidelines violated the Sixth Amendment’s fundamental right to a jury trial to the extent that [they] required ‘judicial fact-finding beyond facts admitted by the defendant or found by the jury to score . . . (OVs) that mandatorily increase the floor of the guidelines minimum sentence range’” (the mandatory minimum sentence). In Hines, the court determined that post-Lockridge, “‘the minimum allowed sentence is no longer limited to twice the sentencing guidelines range. Rather, the enhanced minimum could be up to ⅔ of the new statutory maximum.’” The court found that the Hines defendant “was entitled to resentencing because the trial court erroneously doubled the guidelines to determine the defendant’s minimum sentence even though [it] had adequately explained its reasons for doubling the defendant’s statutory maximum sentence pursuant to MCL 333.7413(1).” The court concluded that the trial court made the same error in this case.
Action arising from high tap water lead levels; MCR 2.116(C)(7) summary disposition standard for notice/limitations defenses; MCL 600.6431(4) six-month filing/notice requirement for property damage & personal injury claims against the state; Fraudulent concealment tolling under MCL 600.5855; Accrual & reasonable diligence in discovering a claim; Mays v Snyder
The court held that the Court of Claims properly considered plaintiffs’ allegations and properly concluded that defendants’ evidence did not eliminate the questions of fact that arose from plaintiffs’ claims. In consolidated class-action appeals arising from elevated lead levels in Benton Harbor’s tap water, defendants sought summary disposition under MCR 2.116(C)(7), arguing plaintiffs missed the six-month deadline in MCL 600.6431(4). The court affirmed denial, emphasizing that a (C)(7) motion “ultimately presents a question of law,” and that “‘the contents of the complaint must be accepted as true unless specifically contradicted by the affidavits or other appropriate documentation submitted by the movant.’” Considering defendants’ submissions, the Court of Claims “properly considered the evidence” and it did not “fully contradict plaintiffs’ contentions that their claims were not time barred.” Thus, dismissal was inappropriate where “‘a question of fact exists so that factual development could provide a basis for recovery[.]’” The court also held that fact questions remained on fraudulent concealment tolling, noting tolling requires “an affirmative act or misrepresentation” because silence by itself is not enough, and the defendant must use “some artifice planned to prevent inquiry or escape investigation, and to mislead or otherwise hinder the acquisition of information disclosing a right of action.” Applying those standards and citing the Flint water-crisis case law framework, the court described “the essence of plaintiffs’ argument” as that until 10/21 defendants told residents the lead problem was being addressed and recommended flushing and filters, but did not advise stopping drinking the water. Because defendants’ evidence “offered no facts to disprove this characterization of defendants’ public messaging up to late” 10/21, plaintiffs’ allegations supported that what they knew from 2018 to early 10/21 “was not enough to charge them with knowledge of the existence of plaintiffs’ constitutional claims.” With fact questions remaining, “the Court of Claims properly denied” summary disposition. Affirmed.
Motion to change children’s domicile; MCL 722.31(4); Rains v Rains; Statutory best-interest factors (MCL 722.23)
Concluding the trial court did not err in “finding that the balance of the MCL 722.23 best-interest factors favored” plaintiff-mother and her proposed change of domicile, the court affirmed the order granting her motion to change the children’s domicile. As there was no argument raised as to the trial court’s findings that plaintiff satisfied the first three steps of the Rains process, the court addressed the fourth step, whether the MCL 722.23 factors supported that the change in domicile would be in the children’s best interests. It concluded that the trial court’s findings on those “factors were not against the great weight of the evidence.” Factor (a) was found to favor plaintiff because defendant-father, “on at least a few occasions, appeared to unnecessarily delay seeking help for the children in school or health matters because doing so might give him the upper hand in his relationship with plaintiff. This undermined his parenting abilities. Factor (b) also favored plaintiff because there was testimony that defendant had consumed alcohol on more than one recent occasion despite his history of multiple legal issues that were alcohol-related.” The trial court found this “may have an adverse effect on his future parenting abilities.” It determined that “factor (g) favored plaintiff because defendant seemingly did not accept [her] relationship with her new husband, which may suggest a mental-health issue that requires counseling. On the other hand, factor (h) slightly favored defendant because” the county where the parties had been living prior to plaintiff’s move to Wisconsin had been the children’s “‘community of record[.]’” Factor (j) favored plaintiff because “the record did not indicate that defendant was willing to co-parent with [her]. Rather, he engaged in certain hostile and difficult behaviors that made [her] attempt to parent their children unnecessarily difficult. Factor (k) slightly favored plaintiff because there was some evidence of domestic violence by defendant years ago[.]” Factors (c), (d), (e), and (f) favored neither party, the trial court did not expressly state whether factor (l) favored either party, the court treated factor (i) as neutral. It found that all the trial court’s findings “were supported by the record” and that “its overall decision to grant plaintiff’s motion to change domicile” was not an abuse of discretion.
Divorce; Reimbursement order for the amount a party paid to clear a lien on the marital home; Reliance on appeal on an attorney’s statements at a hearing; Abandoned claim
Concluding that defendant-ex-husband failed to show that the trial court erred in ordering him to reimburse plaintiff-ex-wife for the amount she paid to clear a lien on the marital home, the court affirmed. The parties agreed to a consent judgment of divorce, under which plaintiff “took sole possession of their marital home and agreed to remove” defendant’s name from the mortgage. When she “went to refinance the mortgage, she discovered defendant’s former attorney placed an attorney’s charging lien on the home a few months before the entry of the” divorce judgment for defendant’s outstanding legal bills. She “paid the lien so she could obtain clear title and refinance the mortgage as required by the” judgment, and then obtained the order at issue on appeal. Defendant asserted that the order violated the Bankruptcy Code’s automatic stay provision “and was otherwise erroneous because he did not have interest in the home at the time” she paid the lien. He relied “solely on his counsel’s statements made at the hearing on” plaintiff’s motion. “‘But it is well settled that an attorney’s statements and arguments are not evidence.’” And the court was not obligated “to comb the lower court file searching for facts supporting an appellant’s argument on appeal.” In addition, defendant’s appellate brief did “not sufficiently present authority demonstrating his entitlement to relief, further representing an abandonment of his claim on appeal.”
Uninsured (UM)/Underinsured (UIM) benefits; Summary disposition standard; MCR 2.116(C)(10); Kandil-Elsayed v F & E Oil, Inc; Burden shifting; MCR 2.116(G)(4); McCoig Materials, LLC v Galui Constr, Inc; Credibility determinations; White v Taylor Distrib Co, Inc
The court held that the trial court erred by granting partial summary disposition to defendant insurer on plaintiff’s UM/UIM claims because the record, viewed in the light most favorable to plaintiff, created a genuine issue of material fact whether the vehicle owner was insured at the time of the accident. Plaintiff was injured in a crash when defendant-driver, operating defendant-owner’s vehicle, struck plaintiff’s car, and a passenger was ejected and died. The trial court granted partial summary disposition to the insurer “solely on the basis of deposition testimony” that the vehicle owner had insurance, then denied reconsideration. On appeal, the court held that plaintiff rebutted the motion because numerous “facts in the record contradicted” the insurer’s assertion the owner was insured at the time of the accident, including a carrier discovery report showing the purported policy was “cancelled,” documentation showing a prior policy “expired,” and insurer letters stating the owner had no policy with them on the relevant date. The court also noted evidence supporting disbelief of the owner’s account, including that he “could not provide the name of his insurance agency,” had “no income to pay for such insurance,” and “no insurance was produced at the accident scene,” which “raises a credibility issue that a jury must decide.” The court rejected the insurer’s framing that plaintiff had to definitively prove lack of insurance, explaining plaintiff only had to raise a fact question, and concluded there was a genuine issue of material fact as to whether the owner had insurance at the time of the accident. Reversed and remanded.
Governmental immunity; 120-day postinjury notice of a highway defect; MCL 691.1404(1); “Exact location”
The court found that because “plaintiff’s notice did not satisfy MCL 691.1404(1), the trial court erred by denying defendant’s motion for summary disposition on the basis of governmental immunity.” Thus, it reversed and remanded for entry of an order granting defendant summary disposition. The question was “whether the two written notices sent by plaintiff’s counsel to defendant in about August or September 2022 explaining that her injury occurred ‘at Alfred Street near Shed 5 of the Eastern Market’ while she ‘was walking across Alfred Street near Shed 5, when suddenly and without warning she was caused to fall due to uneven cement/roadway,’ satisfied MCL 691.1404(1).” In light of the applicable authorities, the court concluded “that the notice was insufficient to satisfy the statute’s requirement that ‘[t]he notice shall specify the exact location and nature of the defect . . . .’” It found that the notice “did not specify ‘the exact location’ of her alleged injury for the purposes of MCL 691.1404(1), and it was legally insufficient as a result.” It was “unclear from the notice whether the alleged defect was a pothole, an inclined part of the highway, a bump or gap, a divot, or any other non-parallel aspect of the highway that might fairly be considered ‘uneven.’”
Termination under § 19b(3)(k)(ix); The doctrine of anticipatory neglect; Alleged deficiencies in petition; Aggravated circumstances; MCL 722.638(1)(a)(ii)
Concluding that (1) § (k)(ix) existed to terminate respondent-father’s parental rights to the children (ES and PS), and (2) “the petition adequately identified aggravated circumstances for purposes of MCL 722.638(1)(a)(ii)—i.e., criminal sexual conduct involving penetration of the children’s sibling, KRF[,]” the court affirmed. Respondent did “not contest the accuracy of the exhibits on which the trial court relied, nor that he sexually abused KRF.” Instead, he claimed “the evidence did not demonstrate a risk of harm to PS and ES if returned to his care, emphasizing the differences between KRF and his children.” Though respondent did “not identify it by name, this argument implicates the doctrine of anticipatory neglect[.]” As an initial matter, his argument suggested that the only risk of harm contemplated by § (k)(ix) “is a physical one of the type inflicted on the sibling— here, sexual abuse. But the statute contains no such limiting language.” The court saw “no reason that the harm contemplated under [§ (k)] would not likewise include emotional harm. With this understanding, the record evidence demonstrates a risk of harm to PS and ES if returned to respondent’s care.” Not only did he “sexually abuse his children’s half-sibling, he did so while one of his children slept in the same room, and the rest of the family slept in the same apartment.” The court found respondent failed “to explain how the trial court’s conclusion that this behavior risked emotional or physical harm to ES or PS was clearly erroneous.” His plain disregard for the children’s well-being, “both of whom resided in the same household and one of whom was in close physical proximity to the sexual abuse when it occurred, supports use of the presumption of anticipatory neglect in this case.” Also, the court disagreed that “the underlying petition did not adequately set forth aggravating circumstances allowing DHHS to seek termination at the initial disposition.” It contained specific allegations as to “respondent’s sexual penetration of KRF[.]”