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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
42 USC § 1983; Eighth Amendment deliberate indifference claim based on a prison official’s failure to protect; Farmer v. Brennan; Qualified immunity; Michigan Department of Corrections (MDOC)
[This appeal was from the ED-MI.] The court held that defendant-prison counselor (West) was entitled to qualified immunity on plaintiff-Reedy’s Eighth Amendment failure-to-protect claim where there was insufficient evidence that West failed to take measures to protect Reedy from assault at the hands of his prison cellmate (H). Reedy, a former prisoner of the MDOC, sued West and others under § 1983 after H used a rock to beat him while he was sleeping. West moved for qualified immunity, but the magistrate judge issued a report and recommendation denying the motion. The district court rejected the magistrate judge’s recommendation and granted West summary judgment based on insufficient evidence. The court first concluded that Reedy failed to establish the objective prong of a failure-to-protect claim where he could not show that he was “‘incarcerated under conditions posing a substantial risk of serious harm.’” The court noted that he admitted he and H had a mostly good relationship, and that H had no violent criminal history or record of prison violence. It held that the visit the two cellmates made to West’s office to request a separation was insufficient to establish an objective, “‘substantial risk of serious harm.’” The court also determined that the subjective element of a failure-to protect claim was not met were Reedy failed to show that West was deliberately indifferent to the risk of harm. West was not assigned to Reedy, and the court held that the two one-minute conversations he had with Reedy did not create “‘enough personal contact with [Reedy] to be subjectively aware’ of any risk [H] posed to his safety.” It further found that H’s demand to have Reedy removed from his cell or he would “do what he’s got to do” was insufficient where “‘threats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm.’” West believed that they were merely “two adult inmates with cohabitation issues to overcome.” Affirmed.
Ineffective assistance of counsel; Failure to file pretrial motions to suppress & to review physical evidence; Failure to make a meritless motion
Concluding that a motion to suppress would have been meritless, the court rejected defendant’s claim that his trial counsel was ineffective for failing to file such a motion. Further, his assertion that trial counsel did not inspect physical evidence was not supported by the record. Thus, the court affirmed his convictions of operating a chop shop, using a computer to commit a crime, receiving and concealing stolen property, receiving and concealing a stolen motor vehicle, and felony-firearm. It first noted that the record of a pretrial hearing indicated that defendant and his trial “counsel both were given the opportunity to examine the engine and the transmission” and thus, the record did not support his contention that trial counsel did not inspect them. As to his claim that trial counsel should have moved to suppress them, he appeared to argue that trial counsel should have successfully shown “that the evidence was false and should have succeeded in having the false evidence suppressed.” But this was more a challenge to the sufficiency of the evidence than a claim of ineffective assistance. He also framed as an ineffective assistance claim a challenge to an agent’s (L) “testimony that the engine was designated as stolen, asserting that [L] also testified that the engine was later designated in LEIN as recovered,” and that trial counsel should have used this to persuade the trial court to suppress the testimony. But he did not explain or offer supporting authority as to “how these challenges to the accuracy of the evidence, typically topics for cross-examination, would have enabled his trial counsel to successfully move to suppress the evidence.” As to his argument that trial counsel should have challenged “by motion the actions of officers who allegedly conducted a warrantless search at the time of” his arrest, the record supported the trial court’s findings that defendant gave them consent to enter the property and that his Fourth Amendment rights were not violated. An officer “testified that defendant invited him onto his property to view the engine and transmission and removed the tarp, believing [him] to be a potential buyer. Because defendant consented to the officers’ presence on his property and showed the officers the stolen auto parts, a motion to suppress the seized auto parts would have been meritless.”
Fourth Amendment search & seizure claim; Police failure to show the warrant before conducting the search; United States v Hector (9th Cir); Groh v Ramirez; Hudson v Michigan; Ineffective assistance of counsel; Failure to raise a futile theory in the trial court; Sentencing; Scoring of 25 points for OV 3; MCL 777.33(1)(c) & (d); “Life-threatening or permanent incapacitating injury”
The court held that defendant failed to establish any error, let alone plain error, affecting his substantial rights as to his Fourth Amendment claim. Also, he was not denied the effective assistance of counsel, and the trial court did not err by assessing 25 points for OV 3. He argued that the evidence seized should have been excluded from trial because the police failed to show him the warrant when conducting the search. He asserted that the police were required to do so “and provide him with the opportunity to produce the items described in the warrant, thereby enabling him to prevent the search and avoid further intrusion of his privacy.” The court held that this interpretation of the Fourth Amendment was not supported by legal authority. Review of Groh revealed that the U.S. Supreme Court noted it did not address “[w]hether it would be unreasonable to refuse a request to furnish a warrant at the outset of the search, when, as in this case, an occupant of the premises is present and poses no threat to the officers’ safe and effective performance of their mission . . . .” The court held that this was “hardly the case here given the police expectation that defendant retained possession of the firearm used to repeatedly shoot the victim.” In any event, Hector, citing Hudson, held “that ‘[t]he causal connection between the failure to serve the warrant and the evidence seized is highly attenuated, indeed non-existent’ because ‘[r]egardless of whether the police officers had actually shown Hector the search warrant, they would have executed it and recovered the drugs and firearms inside his apartment.’” The court found that the Hector “Court’s conclusion that failure to present the warrant did not affect the validity of the ensuing search also defeats defendant’s argument that evidence seized during the search was the fruit of an illegal search.” He asserted that “if he had seen the warrant from the onset, as he requested, he would have had the option of providing the officers with information on the location of the gun and phone, and, thereby limited the invasion of privacy. In either event, however, the officers would have seized the gun and phone.” Affirmed.
Right to an impartial jury; People v Jackson; Juror bias; MCR 2.511(D); Ineffective assistance of counsel; People v Gioglio (On Remand); Jury instruction on a necessarily included lesser offense; People v Cornell; Comparing CSC I & III; MCL 750.520b(1)(f) & 520d(1)(b); Principle that CSC III is a necessarily included lesser offense of CSC I; People v Mendoza; The decision to not request a jury instruction on a lesser-included offense as sound trial strategy; People v Sardy; People v Nickson; Failure of a chosen defense strategy; People v Petri
The court held that the trial court did not abuse its discretion by denying defendant’s motion to excuse a juror for bias, and that he was not denied the effective assistance of counsel. He was convicted of CSC I for raping his wife. On appeal, the court rejected his argument that his right to be tried by an impartial jury was violated when the trial court denied his request to disqualify a juror. In light of the juror’s “assurances that she would be fair and impartial and considering the extremely limited nature of the juror’s contact with the complainant (which consisted solely of exchanging pleasantries such as ‘hello, and how are you’ while the juror was in the check-out line),” the court was not left with a “definite and firm conviction that the trial court erred by finding the juror would be fair and impartial.” It also rejected his claim that his counsel was effective for failing to request the jury to be instructed on the lesser included offense of CSC III. Although an instruction on CSC III was available, “such an instruction was contrary to the defense that no crime had been committed. It was a reasonable trial strategy for the defense lawyer to proceed with an all-or-nothing defense as opposed to arguing to the jury that if it found nonconsensual sexual contact, it should convict of” CSC III rather than CSC I. Moreover, he “wholly failed to establish that he was prejudiced by the allegedly deficient performance by his lawyer.” Affirmed.
Motion for substitute counsel; People v Strickland; Sentencing; Habitual offender notice; MCL 769.13; People v Head; Ineffective assistance of counsel; Failure to inform defendant of a plea offer; Factual predicate
Holding that the trial court did not abuse its discretion in denying defendant’s motions for substitute counsel, and that he failed to establish the factual predicate for his claim counsel was ineffective for failing to inform him of a plea offer, the court affirmed his convictions. It also held that the prosecution’s failure to file a proof of service of its notice of intent to seek a fourth-offense habitual offender sentencing enhancement was harmless, and affirmed his sentences. He was convicted of FIP, CCW, felony-firearm, and resisting arrest. He was sentenced as a fourth-offense habitual offender to 4 to 20 years for FIP, consecutive and subsequent to 2 years for felony-firearm, as well as concurrent terms of 4 to 20 years for CCW and 46 to 180 months for each resisting arrest conviction. As to the denial of his pretrial and day-of-trial motions for substitute counsel, the court noted that his “pretrial motion made no specific request for relief from the trial court—e.g., to appoint substitute counsel, to allow defendant to substitute retained counsel, to allow defendant to represent himself. And on the first day of trial,” he did not request that the trial court appoint him a different attorney—instead, he appeared to seek more time “to obtain substitute, retained counsel. If defendant’s statements at trial were a request for the appointment of substitute counsel,” the court found that he did not show the required good cause or “that substitution would not unreasonably disrupt the judicial process.” His stated issues with counsel were that counsel “had not visited him enough, and that he was not provided with enough ‘paperwork’ from the case to prepare for trial.” The court determined that neither of his “stated grievances was a legitimate difference of opinion over a fundamental trial tactic.” It noted that defense counsel “stated in open court that he gave defendant the police report at his preliminary” exam, and that defense counsel allowed him “to pursue his theory that the warrant for his arrest was based on a false statement.” The court added that he could not show prejudice. As to the habitual offender notice, nothing in the record indicated that he and defense “counsel were unaware of the prosecution’s intent to seek habitual offender sentencing.”
Expert testimony; MRE 702; People v Thorpe; People v Peterson; Medical treatment or diagnosis hearsay exception; MRE 803(4); People v Meeboer (After Remand); Prosecutorial misconduct; Questioning of a witness
Finding no merit in defendant’s challenges to the admission of an expert’s (Dr. M) testimony, and rejecting her claims of prosecutorial misconduct in questioning M, the court affirmed her CSC I and II convictions in these consolidated appeals. It concluded that M did not vouch for the victim’s (A) “credibility either directly or impliedly.” M did not offer any opinions on the validity of A’s sexual abuse allegations, or state that A suffered such abuse, or make any “express or implied mention of defendant’s guilt.” Rather, M provided the jury with needed general information as to “child sexual abuse from which the jury could make informed determinations of fact in this case.” The court noted that M’s testimony about “the lack of physical evidence of sexual assault” supported defendant’s contention that she did not commit the charged offenses and A falsely accused her. M appropriately relied on A’s “explanation of her allegations of digital and penile penetration to guide her medical interaction with [her]. Based on A[]’s description of her allegations, [M] determined the necessity of conducting a physical examination of A[]’s genital area. [M] did not opine that the information provided to her constituted true and accurate information. Rather, she considered the information only for its diagnostic use and consideration of proper treatment.” Thus, it fell within MRE 803(4). In addition, M’s testimony about suicidal ideation was not objectionable because A had a history that M rightly considered to assess A’s ability to endure a physical exam “of her genital area so as not to inflict [her] with unnecessary and perhaps dangerous mental trauma.” M’s testimony about her knowledge of A’s “allegations of fondling also was not objectionable because the information was part of A[]’s history necessary for proper diagnosis and treatment, and the testimony generally enlightened the jury by clarifying that such conduct would not leave physical evidence of abuse or transmit sexually transmitted diseases. [M] did not testify that such conduct actually happened nor did she opine that defendant was guilty of such conduct.” The court held that M’s “testimony did not exceed the permissible limits of an expert witness in a case involving alleged sexual abuse.”
Dispute over PIP benefits; Fraud; Titan Ins Co v Hyten; Credibility; Bahri v IDS Prop Cas Ins Co; Meemic Ins Co v Fortson; “The innocent third party rule”; Sisk-Rathburn v Farm Bureau Gen Ins Co of MI; Principle that healthcare providers do not possess a statutory cause of action against no-fault insurers for recovery of PIP benefits; Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co; Collateral estoppel; William Beaumont Hosp v Wass; Res judicata; Garrett v Washington
Holding that the trial court erred by granting summary disposition for defendant-insurer on the basis of fraud by defendant’s insured, the court reversed and remanded. Plaintiff sought reimbursement for medical services it provided for defendant’s insured after she was involved in an accident. The trial court granted summary disposition for defendant on the basis of fraudulent statements she made in connection with her insurance claim. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding there was no genuine issue of material fact that the insured made fraudulent statements on her application for PIP benefits, noting she “fraudulently represented her prior medical history in her application for PIP benefits.” Moreover, the evidence was “sufficient as a matter of law to conclude [she] intended to make false statements on her application.” The court also agreed with the trial court that the innocent-third-party rule did not apply to plaintiff, as assignee of an insured. “Plaintiff, as an assignee, was subject to the same claims and possessed the same rights as” defendant’s insured. It further rejected plaintiff’s contention that collateral estoppel barred defendant from raising a fraud defense, noting the issue of whether the insured made false statements was not actually litigated in the lawsuit between her and defendant. However, the court ultimately held that defendant was barred from raising the issue of fraud against plaintiff, as its insured’s assignee, who possessed the same rights as its assignee, and who was "protected by res judicata from defendant’s fraud allegations.”
Criminal contempt for violating a domestic-relationship personal protection order (PPO); MCL 600.2950; Claim that the evidence was insufficient because only one biased witness testified & there was no physical evidence to support testimony showing that respondent entered onto petitioner’s property
Holding that the trial court did not clearly err by finding that respondent-ex-husband entered onto petitioner-ex-wife’s premises twice, and on one occasion attempted to remove the parties’ child from her home, the court affirmed the trial court’s order holding him in criminal contempt for violating a PPO. The trial court issued a PPO against respondent after he “engaged in conduct that included several assaults, batteries, and threats. Among a list of prohibitions, the PPO prohibited respondent from entering onto property where petitioner lived and removing a minor child from petitioner’s custody without a court order.” At a contested hearing, she testified that he violated the PPO on four different occasions. The gravamen of his “argument was that the evidence was insufficient because only one biased witness testified and there was no physical evidence to support her testimony showing that he entered onto her property.” She testified as to two separate instances when she saw him on her property. In the first instance, she testified that she saw him “leaving after her daughter was screaming that respondent tried to get her to come with him. Petitioner was able to see respondent’s face as he got in his car and drove away.” In the second instance, she testified that he entered onto her enclosed porch and knocked on her door. She saw his face as he was leaving, and called 911. In accordance with MCL 600.2950, the PPO prohibited him from entering onto her “property where she lived and from removing a minor child from petitioner’s legal custody.” The court held that petitioner’s “eyewitness testimony was sufficient to find beyond a reasonable doubt that respondent entered onto petitioner’s premises twice and attempted to remove their child on one of those occasions.” Although she was not able to admit any physical evidence, he could be convicted on her testimony alone. Further, his argument that she was a biased witness fell short. “The trial court addressed any issues of credibility in its ruling and had the opportunity to weigh petitioner’s testimony and credibility firsthand.”
Easement; Heydon v MediaOne; Creation of an easement; Rossow v Brentwood Farms Dev, Inc; Scope of an easement; Blackhawk Dev Corp v Village of Dexter; Terlecki v Stewart; Modification of an easement; Schadewald v Brule; Great Lakes Gas Transmission Co v MacDonald
The court held that the trial court did not err by granting partial summary disposition for plaintiffs-property owners and declaring that they had exclusive right to use a private road easement. Plaintiffs sought a declaration of their rights to a private road easement when defendants-developers began developing an abutting parcel. Defendants used the easement “to access the parcel for construction purposes and indicated their intention to extend the private road for use as a means of ingress and egress to” the new lots, even though the parcel had its own specified easement for ingress and egress. The court rejected defendants’ argument that the trial court erred in determining that the private road easement specified that it ended at plaintiffs’ furthest lot, and that it could not be expanded. It found there was no ambiguity that the private road easement attached to the already-developed lots alone, and no indication that it was contemplated that the “easement would be extended beyond its designated terminus to serve” the parcel at issue or any future lot. Any use of the easement beyond that which was specified in the controlling documents “does not comport with the express intent of the developer and the rights, privileges, and obligations contractually binding the parties. The trial court properly analyzed the controlling documents and correctly determined that the private road easement” serves only the already-developed lots. It “correctly held that no genuine issue of material fact exists in this regard.” The court concluded that defendants “may create new lots out of undeveloped land, but they may not alter the easement agreements memorialized in the” controlling documents. The trial court correctly determined that these documents “established the scope of the private road easement and that it did not benefit” the parcel at issue or any future lots. Affirmed.
Eligible Manufacturing Personal Property (EMPP) tax exemption; MCL 211.9m(2); MCL 211.9m(2)(a) & (2)(c); MCL 211.19(2); MCL 211.9m(3); Whether filing incorrect forms was a qualified error within the meaning of MCL 211.53b; MCL 211.53b(8)(h) & (g); Due process; Procedural safeguards; The Tax Tribunal’s (TT) subject-matter jurisdiction; MCL 205.735a
The court affirmed the TT’s order granting summary disposition under MCR 2.116(I)(2) in favor of respondent-Township, holding that respondent’s assessing official satisfied the statutory notice requirement as to petitioner’s claim for an EMPP tax exemption. Petitioner asserted, among other things, that its claim of EMPP “tax exemption was improperly denied because it received inadequate notice of the denial[.]” Petitioner argued that “the assessor was required under the provisions of MCL 211.19, MCL 211.9m, and MCL 211.9n to provide notice that it denied petitioner’s EMPP tax exemption, and that because no such notice was given, respondent failed to comply with the statutory requirements. The essence of petitioner’s claim is that respondent had a duty to notify petitioner that they filed the wrong claim form to secure an EMPP tax exemption.” While MCL 211.9m(3) and its companion statute “require that the assessor notify the taxpayer if it denies the taxpayer’s EMPP tax exemption claim . . . these provisions are only triggered when the taxpayer timely files the form claiming the exemption. In this case, because the proper form was not timely filed, these provisions—including the contained notice requirements—were not triggered, and do not apply.” The record indicated that “the assessing official complied with requirements MCL 211.19(2)(a) and (b), by sending forms that included the required notice.” Specifically, form L-4175 clearly stated, “in bold type: ‘NOTICE: DO NOT USE THIS FORM TO CLAIM AN EXEMPTION AS ELIGIBLE MANUFACTURING PERSONAL PROPERTY (EMPP) PURSUANT TO MCL 211.9m AND MCL 211.9n. To claim an exemption for EMPP, file Form 5278 with the local assessor where the personal property is located no later than’” 2/20/19. This satisfied the notice requirement of MCL 211.19(a). While petitioner contended that respondent did not “satisfy the requirement because it did not notify petitioner of its denial after the forms were filed[,]” this essentially added “a requirement that does not exist in any of the applicable statutes.”
Termination under §§ 19b(3)(g) & (j); In re Ellis; Reasonable reunification efforts; MCL 712A.19a(2); In re Rippy; Situations where reunification efforts are not required; Aggravated circumstances; MCL 722.638(1) & (2); MCR 3.977(E); Best interests of the child; MCL 712A.19b(5); In re Schadler; In re Olive/Metts Minors; Effect of a parent’s substance abuse; In re AH
Holding that the DHHS was not required to make reasonable reunification efforts, that §§ (g) and (j) were met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her parental rights were terminated based primarily on her “failure to abstain from substance abuse during her pregnancy with” the child. On appeal, the court rejected her argument that the trial court erred by terminating her rights because the DHHS failed to make reasonable reunification efforts. It noted that the trial court’s findings amounted to a judicial determination that she subjected the child to the aggravating circumstances, including severe physical abuse in the form of consuming marijuana and opiates while pregnant, “identified in the petition for termination and as provided in MCL 722.638(1) and (2),” and it “satisfied the requirements of MCR 3.977(E) necessary to terminate [her] rights without requiring” the DHHS to make reasonable efforts. The court also rejected her claim that the DHHS did not prove a statutory ground for termination, finding she failed to provide proper care or custody for the child and there was no reasonable expectation that she would be able to do so within a reasonable time considering the child’s age. In addition, there was a likelihood that her behavior would cause a risk of harm to the child. Finally, as to the child’s best interests, it noted that her bond with the child was weak, and that she was incapable of providing proper care. Moreover, her “hostile relationship with [the child’s] caregiver, inappropriate and impermanent housing situation, and failure to address longstanding substance abuse and mental health issues rendered her unable to provide the type of stability and permanence that would serve the” child’s best interests.
Termination under §§ 19b(3)(g) & (j); Children’s best interests
The court held that the trial court did not commit error requiring reversal when it concluded that termination of respondent-mother’s parental rights to her children (AS-1 and AS-2) was in their best interests. The DHHS presented evidence that AS-1 did not have a bond with respondent. It also presented evidence that respondent had not provided AS-1 with stability or permanency. Further, it presented evidence that she had not provided AS-2 permanency or stability. It presented evidence that the aunt’s home had advantages over respondent’s home. The DHHS also presented evidence that she failed to comply with her service plan. Further, it “presented evidence that AS-1 was doing well in her aunt’s care and had been in her aunt’s care for an extended period of time.” In addition, “the trial court considered the fact that AS-1 was placed with a relative and the possibility of a guardianship rather than termination. However, the trial court ultimately determined that termination of [respondent’s] parental rights was in AS-1’s best interests because of AS-1’s need for permanency and stability and [respondent’s] inability to provide permanence and stability.” The DHHS presented evidence that she did not comply with her service plan. Also, “the trial court considered the fact that AS-2 was placed with a relative and the possibility of guardianship as opposed to termination.” Reviewing the record, the court was not left with a “definite and firm conviction that the lower court made a mistake” in determining that termination of respondent’s parental rights was in AS-2’s best interests. Affirmed.