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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Motion to suppress; Scope of consent to search a vehicle for weapons; The plain-view or plain-feel exception to the warrant requirement; People v Champion; Remand for an evidentiary hearing
The court held that the officer (D) “lawfully searched the center console of defendant’s vehicle because doing so was within the scope of defendant’s consent to search [it] for weapons.” But as to the search and seizure of the glass tube evidence defendant moved to suppress, the court remanded for an evidentiary hearing. Defendant was charged with possession of a controlled substance after D found a glass tube containing meth in defendant’s vehicle. It was undisputed that he “freely and voluntarily consented to a search of his vehicle for weapons.” The trial court concluded that D’s “search of the center console did not exceed the scope of” that consent “because a reasonable person would have understood that consenting to search a vehicle for weapons included consent to search any location in [it] that a weapon could be concealed, such as the center console.” The court agreed. As to “the search and seizure of [the] glass tube itself, the trial court reasoned that it was justified by the plain-view or plain-feel exception to the warrant requirement.” But it was unclear from the stipulated facts whether D “observed the glass tube before picking it up, and, notably, the prosecution never claimed that” he did. Based on the record, the court could “only conclude that the prosecution failed to carry its burden of establishing that [D] saw the glass tube before seizing it, which necessarily means that the trial court erred by holding that [D’s] seizure of the glass tube was permissible under the plain-view exception to the warrant requirement. The second problem with” its ruling was that there was no record evidence “to support that the incriminating nature of the glass tube would have been immediately apparent to [D] on the basis of his training and experience.” The court found that remand was necessary for the trial court to “hold an evidentiary hearing in which it can hear from [D] and determine whether he had training and experience that would have made the incriminating nature of the glass tube immediately apparent.” If it then concludes the tube was illegally seized, it can “decide whether the exclusionary rule should apply.” It will also “presumably be able to ascertain whether [D] saw the glass tube before seizing it, and thus decide whether the plain-view or the plain-feel” exceptions apply. Vacated and remanded.
Right to confrontation; The Confrontation Clause; Whether statements made to the police were testimonial; Davis v Washington; Hammon v Indiana; Michigan v Bryant; Primary purpose of the interrogation; Whether there was an ongoing emergency
The court concluded that the declarant’s statements to Officer S “were testimonial because the primary purpose of [S’s] interrogation of the declarant was to establish or prove past events, and the declarant’s statements were an obvious substitute for live testimony.” Thus, they were subject to the Confrontation Clause. The “case arose after defendant allegedly assaulted his ex-girlfriend, the declarant.” The court found that this “case bears similarities to Davis, Hammon, and Bryant, but is also distinguishable from each case in significant ways.” For instance, it involved “domestic violence like Davis and Hammon, but the perpetrator here, like the perpetrator in Bryant, possessed a gun and his location was unknown when the declarant spoke to the police.” But the court found that “these similarities and dissimilarities are ultimately beside the point because, as Bryant teaches, determining the primary purpose of an interrogation is highly context dependent.” Thus, it turned “to the context in which the declarant made her statements to” S. Based on the facts, the court thought “it obvious that the primary purpose of this interrogation was ‘to establish or prove past events potentially relevant to later criminal prosecution.’” This conclusion was “buttressed by the formality of [S’s] interrogation of the declarant.” The court also disagreed “with the trial court’s conclusion that there was an ongoing emergency.” While it agreed “that defendant posed an ongoing (hypothetical) threat to the declarant, he did not pose an immediate threat to her.” Rather, the court noted that “when the declarant spoke with [S], she was inside a residence, removed from defendant, and protected by police.” And while it was “also true that defendant was armed like the defendant in Bryant, defendant here, unlike the defendant in Bryant, was ‘a known and identified perpetrator’ who was accused of domestic violence against the declarant.” The court concluded that nothing about the “facts, when viewed objectively, suggest that defendant posed a risk to public safety, even considering that [he] was armed. Indeed, the trial court did not reason that defendant posed a danger to public safety; it reasoned that [he] posed a risk to ‘the public’ in the sense that he posed a hypothetical risk to anyone around the declarant. But, as Bryant counsels, it is simply not the case ‘that an emergency is ongoing in every place or even just surrounding the victim for the entire time that the perpetrator of a violent crime is on the loose.’” Reversed.
Exclusion of evidence as “sexual conduct” under the rape-shield statute (MCL 750.520j); People v Masi; People v Amenitsch (Unpub); Rights to present a defense & to a fair trial; Right of confrontation; Sufficiency of the evidence for convictions of CSC I & II under MCL 750.520b (multiple variables) & MCL 750.520c(1)(b) (same household); Lack of corroboration; Witness credibility; Ineffective assistance of counsel; Sentencing; Scoring of OV 8; MCL 777.38(1)(a)
The court held that defendant’s rights were not violated by the trial court’s exclusion of certain evidence he wanted to present on the basis that it violated the rape-shield statute. It also held that there was sufficient evidence to support his CSC I and II convictions, and it rejected his ineffective assistance of counsel claims. Finally, it found that the trial court properly scored 15 points for OV 8. Thus, the court affirmed his convictions and his sentences of concurrent terms of 15 to 30 years for the CSC I conviction and 10 to 15 years for the CSC II conviction. Defense counsel asked the victim (GR) at trial if “she was forbidden from possessing a cell phone and laptop because she sent nude photographs to men. GR answered: ‘Yes.’ The prosecutor objected, contending the testimony was inadmissible sexual conduct under the rape-shield statute.” The trial court sustained the objection. The court noted that while the Legislature did not define the term “sexual conduct” for purposes of MCL 750.520j, the Supreme Court interpreted it in Masi. Defendant asserted here that the evidence at issue “showed ‘age inappropriate sexual knowledge that was not learned from [] [d]efendant,’ or that GR had a ‘motive to make false charges.’ But because the evidence related to sexual conduct by GR, the trial court did not abuse its discretion in excluding it under the statute.” The court noted that a “similar factual scenario was presented” in an unpublished opinion, Amenitsch. The trial court there ruled “the evidence ‘was inadmissible under the rape-shield statute, and the’” court held that it properly did so. “The facts in this case are similar to those presented in Amenitsch, and the evidence regarding GR sending nude photographs to unknown adult men was similarly inadmissible.” As to defendant’s sufficiency of the evidence challenges, GR testified about, among other things, an incident at a cabin when she was 14 years old in which she “‘gave him a blow job’” and he “ejaculated ‘on the floor.’ This specific evidence was more than sufficient to allow a jury to conclude beyond a reasonable doubt that” he committed CSC I against GR. As to CSC II, she testified about another visit to the cabin when she “was 15 years old, where defendant sucked on one of GR’s breasts and fondled the other in exchange for defendant giving GR the new WiFi password at home.”
Equal protection challenge to 8 USC § 1326 (unlawfully reentering the United States after prior removals); The Undesirable Aliens Act; The Immigration & Nationality Act (INA); Whether § 1326 violated the Fifth Amendment’s Due Process Clause; Whether defendant could establish “a disparate impact”; Whether defendant showed that “a discriminatory purpose was a motivating factor for its enactment”; Village of Arlington Hts v Metropolitan Hous Dev Corp
[This appeal was from the ED-MI.] Joining several other circuits in rejecting constitutional challenges to § 1326 (unlawfully reentering the country after prior removals), the court held that § 1326 does not violate the equal-protection guarantee of the Fifth Amendment. The district court denied defendant-Myrie’s motion to dismiss his indictment for violating § 1326 on the baiis the statute “violates the equal-protection guarantee of the Fifth Amendment by discriminating against Mexican and other Latino immigrants.” He alleged that the statute’s predecessor—the Undesirable Aliens Act of 1929—was enacted with discriminatory intent, and that § 1326, first codified as part of the INA of 1952, was simply a “recodification” of the 1929 Act. The court noted that eight of its sister circuits had considered and rejected similar constitutional challenges to § 1326. As a facially neutral statute, § 1326 would only violate “the Fifth Amendment if it produces a disparate impact and if a discriminatory purpose was a motivating factor for its enactment.” Myrie offered no supporting evidence for his theory that § 1326 was merely a recodification of the 1929 Act—“no historic background, no sequence of events leading up to the passage of §1326, no departures from normal procedural sequence, no substantive departures, and no legislative or administrative history.” The court rejected his reasoning that Congress is required to “expressly disavow racism when it reenacts a prior law that was shown or assumed to be racist in origin and enforcement.” It noted that “the Supreme Court has specifically held that a future legislature has no ‘duty to purge its predecessor’s allegedly discriminatory intent.’” It also noted that even “if § 1326 has a disparate impact on ‘Mexicans and other Latinos,’ that is not sufficient to state a plausible equal-protection claim.” Affirmed.
Divorce; Custody/parenting time; Jurisdiction to hear the case; The Family Support Act; MCL 552.455; Seybold v Seybold
The court held that the “Bay Circuit Court did not err by denying defendant’s custody/parenting time motion and directing him to file motions in the Gladwin Circuit Court because it lost jurisdiction once the Gladwin Circuit Court entered the” divorce judgment. It correctly applied MCL 552.455. The court noted that to “the extent defendant wishes to address parenting time in the future, he must proceed in the divorce case in Gladwin County through a proper postdivorce judgment motion[.]” The primary issue was “whether the Bay Circuit Court lost its jurisdiction to resolve the parties’ custody dispute under” the Family Support Act after entry of the divorce judgment in Gladwin Circuit Court. Defendant argued that it “maintained exclusive jurisdiction over the child-custody issues, and that jurisdiction circumscribed the Gladwin Circuit Court’s authority to issue orders concerning those issues. However, the express language of MCL 552.455 provides that any subsequent judgment of divorce renders null and void any previous order entered under the Family Support Act if the court issuing the judgment of divorce exercised personal jurisdiction over the parties involved.” The court noted that this “also holds true under the court rules, as MCR 3.205 provides that a prior order remains in effect until it is superseded by a subsequent order entered by a court also having jurisdiction of the minor[.]” The court found that under “the clear terms of MCL 552.455, once the Gladwin judgment of divorce became effective, the prior family support order from Bay Circuit Court became null and void. Because it no longer had an order in place, the Bay Circuit Court properly closed the case and denied defendant’s motion for parenting time. At that point, the motion was proper in Gladwin Circuit Court.” The court found that nothing “remained for the Bay Circuit Court to perform.” Affirmed.
Order for mental-health treatment; Involuntary mental-health proceedings as civil proceedings; In re Londowski; Waiver of the right to a jury trial; Const 1963, art 1, § 14; MCR 5.740 (B); MCL 330.1458; The Mental Health Code (MHC)
The court held that because neither respondent nor her counsel demanded a jury trial, her right to one was automatically waived “pursuant to the plain language of Const 1963, art 1, § 14, MCR 5.740 (B) and MCL 330.1458[.]” She appealed the probate court’s order for her involuntary mental-health treatment, arguing that it erred by failing to ensure on the record that she waived her right to a jury trial. The court noted that involuntary “mental-health proceedings, or civil commitment proceedings, are civil proceedings.” Article 1, § 14 of the Michigan Constitution “provides that, ‘[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.’” In civil commitment proceedings, MCR 5.740(B) “provides that, ‘An individual may demand a jury trial at any time before testimony is received at the hearing for which the jury is sought.’” Thus, the court found that the “Constitution, the [MHC], and the applicable court rules all clearly provide that a right to a jury trial is only available if a demand is made. If a respondent fails to make a proper demand, then the Michigan Constitution provides that the right to a jury trial is automatically waived.” That was the case here. And “because neither the Michigan Constitution nor the [MHC] require a formal waiver of this right, the probate court did not err.” Respondent argued that due to “the similar liberty interest implicated by involuntary commitments and criminal prosecutions, the formal waiver that is required in criminal proceedings should be required in civil commitment proceedings.” But neither the court, the Michigan Supreme Court, nor the U.S. “Supreme Court has ever held that civil commitment proceedings require the same procedural protections as criminal proceedings. In fact, [they] have indicated quite the opposite.” Affirmed.
Uninsured motorist benefits; “Occupying” the covered vehicle; Rohlman v Hawkeye-Sec Ins Co; Rednour v Hastings Mut Ins Co; Westfield Ins Co v Ken’s Serv
The court held that “plaintiff was not ‘occupying’ the” insured vehicle when the accident occurred and thus, “was not an ‘insured’ under the uninsured-motorist portion of” the policy issued by defendant-Federated Mutual Insurance Company. As a result, it affirmed summary disposition for Federated on his claim for uninsured motorist benefits. The case arose from an “accident in which plaintiff was standing outside of a tanker truck when he was struck by a vehicle driven by” defendant-Brown. Plaintiff’s employer owned the tanker truck, which was insured by Federated. The relevant portion of the policy defined the word occupying “as ‘in, upon, getting in, on, out or off.’” The court noted that this “policy language has been interpreted by Michigan appellate courts multiple times[,]” including in Rohlman, Rednour, and Westfield. After reviewing these cases, the court found that “plaintiff was obviously not ‘in’ the tanker truck when the accident occurred, nor was he getting in, getting on, getting out of, or getting off the tanker truck when he was hit by Brown’s vehicle.” This meant that the only question was whether he “was ‘upon’ the tanker truck so as to be ‘occupying’ it. Despite the lack of definitive guidance as to what ‘upon’ means when used to define ‘occupying,’” the court held that, given how it and the “Supreme Court have construed the term when used in this context, there is no genuine issue of material fact that plaintiff was not ‘upon’ the tanker truck so as to be ‘occupying’ it when he was struck by Brown’s vehicle. The parties agree that, when the accident occurred, plaintiff was outside of the tanker truck with both feet planted on the ground, with only his hand touching” it. As explained in Rednour, physical contact alone does not “‘establish that a person is “upon” a vehicle such that’” he or she is “occupying” it. The court also noted that “plaintiff here was even less ‘upon’ the tanker truck than the plaintiff in Westfield was ‘upon’ his tow truck” where the plaintiff there “‘had both hands on [the tow truck] and was leaning against [it] for balance and support at the moment of impact.’” The court was “bound to follow Westfield even if it was wrongly decided,” and that case only strengthened its “conclusion that plaintiff was not ‘occupying’ the tanker truck at the time of the accident.”
Whether a devisee under a will was a real party in interest; MCL 700.3101; Personal representative (PR)
Concluding that the “trial court erred when it determined there was no dispute of material fact that plaintiff was not a real party in interest” as to her claims involving the property at issue, the court vacated summary disposition for defendants and remanded. The case concerned “a parcel of property (the Property) owned by” the decedent, who was plaintiff’s mother and defendant-Kashat’s grandmother. Plaintiff (now deceased) was the PR of the decedent’s estate. The estate’s only asset is the property. Plaintiff “allegedly signed a quitclaim deed, transferring the Property from decedent’s estate to plaintiff and Kashat, with rights of survivorship.” She brought the case in her individual capacity, not as a PR of the estate. The trial court concluded “there was no dispute of fact that plaintiff was not a real party in interest. It relied on [her] admission that if the” deed was determined “to be fraudulent, the Property would return to the decedent’s estate.” On appeal, the court noted that decedent’s “will established that plaintiff was the devisee of the Property. A real party in interest” is someone who has a vested right of action on a claim. “Further, devisees are proper parties to litigation concerning a decedent’s real estate.” Thus, the trial court erred. The court noted that the “trial court did not address the substantive arguments regarding defendants’ motion for summary disposition under MCR 2.116(C)(10) with respect to plaintiff’s claims of: (1) quiet title; (2) slander of title; (3) statutory slander of title; (4) conversion; and (5) ‘eviction.’” As a result, the court remanded. Because it reversed “the grant of summary disposition, plaintiff may revisit her argument that discovery was concluded prematurely as well as her request to amend her complaint.”
Personal injury; Trip over a depression in a street surface; Immunity under the Governmental Tort Liability Act (GTLA); Whether the “highway exception” (MCL 691.1402) applied to the parking lane where plaintiff was allegedly injured
Agreeing that “the ‘highway exception’ to governmental immunity does not apply to the parking lane where plaintiff was allegedly injured[,]” the court reversed and remanded for entry of an order granting defendant’s motion for summary disposition. “Plaintiff tripped over a depression in the surface of Gratiot Avenue in Detroit, suffering leg injuries. Gratiot Avenue is a two-way street with three travel lanes on each side delineated by white paint markings, a center lane delineated by yellow paint markings, and parallel-parking lanes on either side of the street nearest to the curbs.” Defendant argued “it submitted unrebutted evidence that the parallel-parking lane was not a dual-use lane or otherwise designed for vehicular travel and thus was outside of the highway exception to governmental immunity.” The court concluded that defendant “provided evidence that established that it was entitled to governmental immunity. Therefore, the burden shifted to plaintiff to demonstrate that a question of fact remains in order to avoid summary disposition.” But she “submitted no evidence that showed the lane in question was being used for travel. Nor did she offer other evidence to rebut defendant’s claim of immunity. Plaintiff did not meet her burden of demonstrating that a question of fact remains.” Thus, defendant was “entitled to governmental immunity, and the Court of Claims erred by denying defendant’s motion for summary disposition under MCR 2.116(C)(7).”