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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Admission of preliminary exam testimony; MRE 804(b)(1); “Unavailable” witness; MRE 804(a)(3); Lack of memory; Right of confrontation; Foundation for admission of a photo; MRE 901; The “best-evidence rule”; Whether testimony implied the use of a polygraph; Ineffective assistance of counsel; Failure to object; Prejudice; Expert testimony; Distinguishing People v Smith & People v Harbison; Hearsay; MRE 703; Whether error was outcome-determinative; Prosecutorial misconduct; Sentencing; Scoring of OVs 3 & 4; MCL 777.33(1)(d) & 777.34(1)(a)
The court held that the trial court did not err in ruling the child victim (AB) was unavailable due to lack of memory and in admitting her preliminary exam testimony, and that defendant was not denied his right of confrontation. It also rejected his challenge to the foundation for admission of a photo, and claim that a police witness’s testimony implied he had failed a polygraph. It found he was not entitled to relief based on his ineffective assistance of counsel claims, and that there was no plain error in the admission of a doctor’s expert testimony. His prosecutorial misconduct claim also failed, and the court upheld the scoring of 10 points each for OVs 3 and 4. He was convicted of CSC I and sentenced as a fourth-offense habitual offender to 50 to 90 years. As to the admission of AB’s preliminary exam testimony, she “was seven years old at the time of trial and was asked to recall events that happened one to two years” earlier. When she “repeatedly answered that she could not remember, the prosecutor did not give up, but pressed the child by reminding the child that she promised to tell the truth. The prosecutor asked AB not only about the actual events for which defendant was charged but about surrounding events aimed at triggering the child’s memory. The fact that these multiple attempts failed led to the request to declare the witness unavailable. Contrary to defendant’s position on appeal,” nothing in the evidentiary rule or any legal authority that he identified required “the trial court to make an independent inquiry of a witness before declaring that she is unavailable on account of a lack of memory.” Further, the record did not suggest that additional “questioning or actions by the trial court might have enabled AB to recall those events for which she lacked memory.” Thus, it did not clearly err in determining that she had a lack of memory as to the subject matter of her prior statement, or abuse its discretion in admitting her preliminary exam testimony. As to the foundation for admission of a photo of AB’s genital area, defendant’s only objection was that absent a digital date stamp on the photo, “there was no way to tell when it actually was taken.” However, he conceded that MRE 901 “does not require anything more than a witness’s testimony to establish the requisite foundation, and AB’s mother fulfilled that requirement.” Affirmed.
Ineffective assistance of counsel; People v Head; Trial strategy; Failure to pursue a futile motion; Search warrant; Particularity requirement; People v Hampton; Counsel’s duty to make reasonable investigations; Ineffective assistance in the plea-bargaining process; People v Douglas; Failure to preserve evidence; Brady v Maryland; Deactivation of police body cameras; Arizona v Youngblood; Self-incrimination; Prosecutorial misconduct; Reference to a defendant’s invocation of his right to remain silent; People v Shafier; Relevance; MRE 401; Unfair prejudice; MRE 403
The court held that defendant was not denied the effective assistance of counsel, due process, or his right against self-incrimination, and he was not denied a fair trial. He was convicted of possession with intent to deliver less than 50 grams of cocaine, FIP of a firearm, FIP of ammunition, and felony-firearm, arising out of a raid on a drug house, which uncovered a gun and various drug paraphernalia. The court rejected his argument that trial counsel was ineffective for, among other things, failing to move to suppress evidence due to a defective search warrant and being unprepared for trial. First, “the particularity requirement was satisfied, and a motion to suppress would have been futile.” In addition, the record suggested defense counsel “was highly prepared for trial as he thoroughly cross-examined the prosecution’s witnesses, presented multiple witnesses on behalf of defendant, raised numerous objections to the prosecution’s evidence, moved for a directed verdict, and was prepared to potentially present evidence that the” police unit that executed the warrant was being investigated for corruption. Moreover, the record was “adequate to reject defendant’s argument that his trial counsel failed to pursue a plea deal without additional factual development.” As to the police officers’ deactivation of their body cameras in violation of department policy, he could not show prejudice. The court was “unable to find that the officers’ conduct rose beyond carelessness, misjudgment, or possibly inadequate training.” He also contended that he was deprived of his right against self-incrimination because the police continued to interrogate him after he invoked his right to remain silent, and the prosecutor improperly referred to his decision to invoke this right. But the court noted he provided “no basis upon which to conclude that the trial court admitted evidence of statements [he] made to the police after invoking his right to remain silent.” And it could not be said that any “inappropriate reference to defendant’s invocation of his right to remain silent affected the outcome of the trial.” Finally, the court rejected his argument that he was denied a fair trial because the trial court excluded evidence that the arresting unit was being investigated for corruption, noting the probative value was weak. Affirmed.
Whether the use of new monitor-defibrillators was subject to mandatory collective bargaining; Duty to bargain under the Public Employment Relations Act (PERA); MCL 423.210(1)(a), (b), & (e); MCL 423.215(1); Alleged unfair labor practice (ULP); Port Huron Educ Ass’n, MEA/NEA v Port Huron Area Sch Dist; Notice; St. Clair Intermediate Sch Dist v Intermediate Educ Ass’n/MI Educ Ass’n; Michigan Employment Relations Commission (MERC); Administrative law judge (ALJ); Collective bargaining agreement (CBA)
The court held that the MERC erred by adopting the ALJ’s finding that respondent-city’s fire department engaged in a ULP against members of charging party-union under the PERA by using data generated by newly-purchased monitor-defibrillators to discipline and discharge two employees for neglect of duty when providing emergency medical treatment to a patient. The union asserted that using the data for disciplinary purposes was improper because such use was subject to mandatory collective bargaining that had not occurred, thereby resulting in an impermissible unilateral alteration of the CBA. MERC adopted the ALJ’s recommendation that the city be ordered to bargain with the union on the use of the data as an investigative and disciplinary tool and to cease and desist using the data for disciplinary purposes until completion of the bargaining obligation. The court disagreed. “The record is clear that with respect to CPR, the two [u]nion members who lost their jobs were disciplined and discharged for failing to timely perform CPR and that the punishment had nothing to do with the quality of CPR. This undermines the entire premise of” the union’s argument. The record was “equally clear that the conclusion that no CPR was performed could have been determined by examining EKG and other data from” an old monitor. And there was no argument that data from an old monitor “could not be used in disciplinary proceedings under PERA.” As such, the court concluded that “no ULP occurred under the circumstances. Indeed, were we to rule otherwise, we would essentially be punishing the [d]epartment and the [c]ity for simply using new technology that plainly improved patient care. Yet the improvements in the technology that allowed for the recovery of data not previously available and that improved patient care were ultimately not used against the discharged employees.” Thus, the court held that the use of the monitor data “to discipline the employees for failure to perform CPR did not implicate mandatory collective bargaining.” It also found it “unnecessary to determine whether mandatory collective bargaining arises when [the] data is used to discipline an employee for not properly or adequately performing” CPR. The court noted that the MERC’s ruling “completely ignored the facts of record that data from” an old monitor, like data from one of the new monitors “could be used to establish that no CPR was performed in a given case. The important distinction here is that this was not a case that involved the quality of CPR. MERC’s factual findings to the contrary were not supported by competent, material, and substantial evidence on the whole record.” Reversed and remanded for entry of an order concluding that the city and the department did not engage in a ULP.
Premises liability; Slip & fall in the parking lot; Whether defendant was a premises owner or “in possession & control of” the premises; Duty; “Control”; Ordinary negligence; Duty under contract; Meridian Mall Limited Partnership (MMLP)
The court held that plaintiffs failed to identify any duty defendant-ERMC (doing business as Meridian Mall (the Mall)) owed plaintiff-Sharron at the time of her fall. Also, “plaintiffs, as non-contracting third parties, could not maintain a claim in tort against ERMC.” Thus, the court reversed the trial court’s order denying ERMC’s motion for summary disposition. Sharron allegedly slipped and fell in the parking lot of the Mall. ERMC argued it was neither the premises owner nor in possession and control of the premises where she fell. ERMC argued there was “no genuine issue of fact that ERMC owed Sharron no legal duty when she fell in the parking lot.” The evidence tended “to establish that ERMC was not the owner of the premises, and that the owner was MMLP.” The court concluded there was “no evidence that the contract between MMLP and ERMC allowed ERMC to exercise direction over, dominate, regulate, or command in relation to the parking lot. Instead, under the terms of the contract, ERMC was merely to maintain the parking lot in a reasonably prudent manner by doing things like repairing potholes or parking spaces when necessary.” In sum, nothing in ERMC’s contract with MMLP suggested that “ERMC possessed and controlled the parking lot such that ERMC could be liable for failing to keep the parking lot reasonably safe under a theory of premises liability. Plaintiffs, for their part, [did] not offer any additional evidence to suggest that ERMC possessed and controlled the parking lot, but instead merely point to the contract provided by ERMC and assert that ERMC was ‘responsible for parking lot maintenance.’” Plaintiffs did not provide “caselaw or other authority to support their apparent assertion that this would expose ERMC to liability under a theory of premises liability. Indeed, . . . this contract did not ‘loan’ sufficient possession and control to ERMC such that ERMC could be liable under a theory of premises liability.”
Prescriptive easement; Hostility or adversity; Plymouth Canton Cmty Crier, Inc v Prose; A license; Kitchen v Kitchen
The court affirmed the trial court’s judgment of no cause of action on the basis that defendants were not liable for trespass or nuisance because they held a prescriptive easement. Nonparty-Groak originally owned all the property. He retained the parcel abutting Higgins Lake (the servient estate) and sold the other two to Howard and Mable Diehl and to Lyle and Yvonne Scott (predecessors in interest to two defendants). “Groak granted a 20-foot-wide easement across his parcel ‘for access to Higgins Lake[.]’” A dock that extended from the easement was installed and used “by the Diehls, Lyle, and Yvonne, as well as their family and guests.” They moored boats, installed boat hoists, and used the easement for other recreational activities. There was no evidence they were given permission to engage in these activities. Robert and Mary Ann Russom, the original plaintiffs, purchased the servient estate. They informed defendants that the easement language only allowed access to Higgins Lake and no other uses of the easement or the area extending from it would be permitted. They later sold the property to plaintiffs. The court concluded that the evidence established “the Russoms did not provide Lyle and Yvonne with permission to use the property in any manner other than to access Higgins Lake.” Although it supported that “the Russoms believed that Howard represented Lyle and Yvonne’s interests, there is no evidence that Howard had authority to negotiate on their behalf. Rather, as noted by the trial court, it was merely the Russoms’ impression that this was the case.” Further, there was no indication that “Howard had informed them of the ‘deal’ that he had made with Robert.” Howard, Lyle, and Yvonne did not testify. “Even more importantly, Robert and Mary Ann clarified that they did not have an explicit verbal agreement with either Lyle or Yvonne.” Thus, the trial court did not clearly err by concluding that “the permission granted to Howard by the Russoms did not extend to Lyle and Yvonne and that Lyle and Yvonne therefore continued to utilize the easement in an adverse or hostile manner after Robert and Howard discussed” its use in 1981. Although the evidence supported that Robert gave Howard “permission to place a dock and moor boats in the area extending from the easement and to store the dock on the easement, the trial court found that this amounted to an oral license and that Howard’s permission was revoked” upon the transfer of the Diehls’ property in 1993. “This was not in error.”
Whether termination was in the children’s best interests; In re Olive/Metts Minors; In re White; Parent-agency agreement (PAA)
Holding that the trial court did not clearly err in determining that termination was in the children’s best interests, the court affirmed the order terminating respondent-father’s parental rights. He did not challenge its finding of statutory grounds on appeal. Rather, he asserted termination was not in his children’s best interests because the trial court failed to consider their bond with him, his parenting ability, “the permanency and stability created if he were to move into” the home of their paternal grandmother (C), where they were placed, or termination alternatives. But the record showed that “the referee conducted a thorough analysis” of the children’s best interests. As to their bond with respondent, while the referee acknowledged one of the children missed his father, it was also noted that one of the children was born while respondent was incarcerated and thus, had no bond with him. The referee found that respondent loved his children, but that “‘his actions have caused harm to them and has led to his incarceration, which has deteriorated the parent-child bond.’” As to his moving into C’s home, the court found that, if anything, this “would cause instability to the children’s lives based on respondent’s history. For example, respondent failed to screen for drugs after” 9/20, a condition of his PAA, “and never provided verification of his income. Respondent also has a lengthy history of criminal conduct, and a recent no-contest plea to second-degree child abuse involving a minor living in his home at the time. The referee noted that” the children were well cared for by C during the “proceedings and that she was willing to adopt them. The referee explicitly stated that this factor weighed against termination. But the referee ‘believe[d] that the children’s need for safety outweigh[ed] the fact that they [were] placed with a relative.’” As to termination alternatives, “the referee ruled in favor of termination over guardianship because the children are safe and comfortable in [C’s] home, and are bonded, but advised DHHS to extensively discuss the expectations and consequences of adoption with” C.