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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Ineffective assistance of counsel; Failure to request public funds for an expert; Hinton v Alabama; Prejudice; Ceasor v Ocwieja (6th Cir); Shaken baby syndrome cases; People v. Ackley
In an order in lieu of granting leave to appeal after having heard oral argument, the court reversed the Court of Appeals judgment (see e-Journal # 70597 in the 6/12/19 edition), vacated defendant’s first-degree child abuse conviction and sentence, and remanded the case to the trial court. The court held that his trial counsel performed deficiently by “failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for those funds because he had retained counsel[.]” It further concluded that, for the reasons the U.S. Sixth Circuit Court of Appeals stated in Ceasor v Ocwieja, defendant could show prejudice. Justice Clement concurred, concluding that it would not “have been a novel argument for counsel to contend that defendant qualified for public funds for an expert under MCL 775.15, the statute in use at the time, when the statutory language clearly applies to him.” It was clear that there was nothing in the statutory language “about an individual with retained counsel being ineligible for public funds to retain an expert.” Dissenting, Justice Welch (joined by Justice Zahra) agreed that prejudice was undisputed here, but dissented on the basis that in 2005, when the trial occurred, “the law was not clear that defense counsel could, let alone was obligated to, request expert-witness funds for clients who were not appointed counsel by the state.” The record indicated that at that time, defense attorneys in the county where the trial was held “generally understood that public funding for expert-witness fees was not available to clients who had not been declared indigent and who were represented by a retained attorney.”
Sentencing; Scoring of OVs 1 & 2; Acquitted conduct; People v Beck; People v Roberts (On Remand); Conduct designed to substantially increase the fear & anxiety of the victim; People v Dilling
The court held that held that the trial court did not err in scoring OVs 1 and 2. Defendant was convicted of CSC I for sexually assaulting the victim as she lay in bed between her two young children. After remand, the trial court resentenced him as a second offense habitual offender to 30 to 50 years. On appeal, the court rejected his argument that the trial court erred by scoring OVs 1 and 2 on the basis of acquitted conduct. Because it was “not constrained under Beck to presume [defendant] did not possess weapon and because the record supports the factual predicate for the trial court’s scoring decision with respect to OV 1,” it concluded that OV 1 was properly assessed 15 points. In addition, the record supported that his “conduct was designed to substantially increase the fear and anxiety of the victim so that [he] could accomplish his objective of forcing an act of criminal sexual conduct upon her.” Because the record supported “the factual predicate for the trial court’s scoring decision with respect to OV 2,” it concluded that OV 2 was properly assessed at 25 points. Affirmed.
Evidence; The reliability of a form of DNA-sorting evidence (STRmix) under FRE 702 & Daubert v. Merrell Dow Pharm., Inc.
[This appeal was from the WD-MI.] In this interlocutory appeal, the court reversed the district court’s ruling that a form of DNA-sorting software, STRmix, was inadmissible under Rule 702 and Daubert. Skin cells from three individuals were found on the gun in question. The crime lab used STRmix to determine that one person had contributed 68% of the DNA on the weapon—defendant-Gissantaner. He was charged with FIP. He challenged the reliability of the software under Daubert. After considering expert opinions, the district court ruled the evidence inadmissible. The court noted that the Michigan State Police crime lab has used this software for six years, and that the FBI currently uses it. “By accepted measures in the forensic community, a profile match of 1 in 49 million amounts to ‘very strong support’ that Gissantaner somehow contributed DNA to the mixture.” Using the multi-factor Daubert test, the court concluded that the method was “testable and refutable,” subject to peer review and publication (“more than 50 published peer-reviewed articles had addressed STRmix[]”), has a low “error rate,” and has attained “general acceptance” in the scientific community. In addition, “numerous courts have admitted STRmix over challenges to its general acceptance in the relevant scientific community.” The court held that “STRmix satisfies Rule 702 and the case law construing it. In the words of Rule 702, it is the ‘product of reliable principles and method.’” It further concluded that those principles were “‘reliability applied’ in this case[.]” Gissantaner offered no evidence to support the contention that the software was unreliable where there were low levels of DNA. The court determined that the district court had “framed several Daubert factors incorrectly[,]” and erred by focusing on the “self-interest” and profit motive in peer review. It also noted that, “[e]ven with the admission of STRmix, the government still must show ‘beyond a reasonable doubt’ that Gissantaner possessed the gun.”
Sanction of dismissal; MCL 600.611; MCR 2.504(B)(1); The dismissal-sanction factors; Vicencio v Ramirez; Woods v SLB Prop Mgmt, LLC
Concluding that the record showed the trial court failed to analyze the dismissal-sanction factors, the court vacated the order dismissing plaintiff’s case as a sanction and remanded for proper consideration of those factors. The trial court dismissed the case as a sanction for plaintiff’s “failure to properly and fully prepare a” preposed final pretrial order for its signature no later than seven days before trial, as ordered in a preliminary pretrial order. The court noted that a trial court must consider several factors “before taking the drastic step of dismissal” in sanctioning a party. While explicit findings on each factor are unnecessary, the record should contain some indication that it has considered those that were relevant. It was clear from the record that the trial court did not discuss those factors here, including an “evaluation of whether a lesser sanction would better serve the interests of justice.” Thus, the court remanded for it to do so and to determine the appropriate sanction. It clarified that it was “not ruling that dismissal was either appropriate or inappropriate;” rather, it directed the trial court to conduct “the correct analysis pursuant to the governing criteria and make a decision on that basis.”
Condominium bylaws; The Condominium Act (MCL 559.101 et seq); Tuscany Grove Ass’n v Peraino; An association’s authority to levy fines; MCL 559.206(c); Reasonableness of fines; Dunn v Lederle Labs; Distinguishing between assessments & fines; MCL 559.206 & 559.169; Elbadramany v Oceans Seven Condo Ass’n Inc (FL App); Foreclosure; MCL 559.208; Trademark Props of MI, LLC v Federal Nat’l Mtg Ass’n; Amendment of affirmative defenses; Judicial estoppel; Spohn v Van Dyke Pub Sch
The court held that plaintiff-condo association had authority to levy fines against defendant-property owner for violation of its bylaws, and that there was no question of fact that he violated them. However, it held that plaintiff could not seek foreclosure solely on the basis of unpaid fines. Plaintiff conveyed a condo unit lot to defendant with the understanding he would complete construction within 12 months. When he failed to do so, plaintiff began assessing fines, and eventually filed a lien to secure the unpaid fines. It later sued, seeking judicial foreclosure. The trial court initially granted summary disposition for defendant. In a prior appeal, the court reversed and remanded. On remand, the trial court granted summary disposition for plaintiff. On appeal, the court first concluded that defendant failed to offer “any specific facts regarding the timeline of the home’s construction that would allow a reasonable fact-finder to conclude that he did not violate plaintiff’s bylaws.” It next rejected his claim that plaintiff did not have authority to levy fines, noting plaintiff “had authority under the Condominium Act and its bylaws to levy fines for violation of the condominium documents. Its failure to promulgate rules and regulations regarding fines did not divest it of that authority.” But the court agreed with defendant that there was a question of fact whether the fees were reasonable, noting the trial court “did not make any express findings as to the reasonableness of the fines either at the motion hearing or in the order granting summary disposition. To the extent [it] impliedly determined this issue as a matter of law,” reasonableness must be determined at an evidentiary hearing. It also agreed with defendant that plaintiff lacked authority to foreclose on his property solely on the basis of unpaid fines. “While it is possible that a violation of the condominium documents may also result in costs and damages to the association, there has been no such showing in this case.” As such, the court agreed with defendant that “the fines levied against him may not be treated as assessments and therefore plaintiff did not have authority under its bylaws to file a lien against” him and seek foreclosure. MCL 559.208 also did “not authorize foreclosure in this case.” Finally, the trial court erred by refusing to consider his motion to amend his affirmative defenses before granting plaintiff’s summary disposition motion, but reversal on that basis was not warranted because his proposed amendment “was insufficient on its face[.]” Affirmed in part, reversed in part, and remanded.