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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Search & seizure; Motion to suppress evidence obtained after an investigatory stop; “Reasonable suspicion”; People v Champion
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 75960 in the 8/16/21 edition) and reinstated the trial court’s order granting defendant’s motion to suppress and dismissing the charges. The court held that the record did not support the determination that the officers knew defendant was the driver of the car when they made the traffic stop. Thus, a detective’s prior knowledge of defendant had “no bearing on whether the officers had a reasonable suspicion of criminal activity at the time the stop was made.” The court found that the majority of the Court of Appeals panel “clearly erred by considering that knowledge in concluding that reasonable suspicion existed.” The Court of Appeals majority also erred in relying on a deputy’s (P) “training and experience that hand-to-hand drug transactions were likely transpiring when the owner of the house was present because [P] did not discover that the owner was present at the time of the alleged drug transaction until after the traffic stop. Further, the majority’s reliance on the exchange of money in the driveway of a house known as a place where people sold drugs was flawed. As noted by” the dissenting Court of Appeals judge, Judge Shapiro, P conceded “he did not observe any other activity on that day indicative of drug activity. And despite the claim that it was known as a drug house, probable cause had never been established to search the home.” This left P’s observation of the car’s passenger “giving money to the driver of the car and the driver counting it. Without more,” this observation failed to “support a finding of reasonable suspicion of criminal activity. [P] did not observe the passenger take anything from the driver in return for the money.” As a result, his observation amounted to no “more than an inchoate or unparticularized suspicion or ‘hunch,’” and the trial court did not err in its ruling. Dissenting, Justice Viviano concluded that, considered as a whole, the evidence here gave “rise to a reasonable suspicion sufficient to justify a stop. While it is certainly true that the exchange of money outside a house might not otherwise be suspicious to a lawyer or judge, [P’s] testimony indicates that the manner of the exchange here would reasonably raise the suspicions of an experienced police officer. In light of the information the officers received that the house was being used for drug sales, the decision to stop defendant reflects ‘commonsense judgments and inferences about human behavior.’”
Hearsay; Expert opinion testimony; MRE 702; Lay witness opinion testimony; MRE 701; Prosecutorial misconduct; Other acts evidence; MRE 404(b)(1); Gambling & absenteeism; Relevance; MRE 401; Unfair prejudice; MRE 403; Cumulative effect of alleged errors; Ineffective assistance of counsel; Failure to raise all the alleged errors
The court held that the evidentiary error of allowing into evidence Police Chief S’s inadmissible hearsay testimony did not affect defendant’s substantial rights. Also, none of S’s opinion “testimony was overly dependent upon scientific, technical, or other specialized knowledge such that it was subject to MRE 702.” Further, the prosecution’s challenged remarks did not rise to the level of prosecutorial misconduct, and the failure to give defendant notice of the other acts “evidence was harmless and did not undermine the reliability of the verdict against” her. Finally, her cumulative error and ineffective assistance of counsel claims also failed. She was convicted of embezzlement by an agent or employee of $1,000 or more but less than $20,000 and illegal sale or use of a financial transaction device. The appeal arose from her “embezzlement from and inappropriate use of a company debit card belonging to her then-employer,” Stone Lodge. Defendant argued that S’s testimony was impermissible hearsay that did not fall under any of the hearsay exceptions. But only S’s “testimony about what the Stone Lodge owner and its two employees said was hearsay. The question” then became whether its erroneous admission affected defendant’s substantial rights. The court held that it did not. In light of other evidence against her, the error of admitting S’s “inadmissible hearsay testimony did not result in the conviction of an innocent person because, even without the inadmissible hearsay evidence, there was sufficient evidence to convict defendant of embezzlement and unlawful use of a financial transaction device. Further, the error of admitting the inadmissible hearsay testimony did not seriously affect the fairness, integrity, or public reputation of the trial or result.” While the prosecution conceded that defendant was not given proper notice of the other acts evidence, because the evidence was admissible, arguments against its admission before trial would been unsuccessful. The court also noted “that even without the evidence of defendant’s gambling and absenteeism from work, the evidence against defendant was overwhelming.” Affirmed.
Waiver of the right to counsel; People v Belanger; Probation revocation hearing procedures; MCR 6.445; Determining whether defendant was able to pay his restitution; MCL 769.1a(14); MCR 6.425(D)(3)
Holding that defendant knowingly and intelligently waived his right to counsel, the court concluded the trial court did not abuse its discretion in denying his motion to withdraw his probation violation plea. But its failure to analyze on the record relevant factors as to his ability to comply with the restitution order required the court to vacate that order and remand for specific findings under MCR 6.425(D)(3). He appealed the order revoking his probation based on his failure to pay restitution following his plea-based convictions of Medicaid fraud, healthcare fraud, and unauthorized practice of medicine. As to his waiver of counsel claim, the court found that the trial court complied with MCR 6.445’s requirements at the probation revocation plea and sentencing proceedings. Further, the factors cited in Belanger showed “that defendant’s waiver was knowingly and intelligently made.” At the time of the sentencing hearing, he was in his 60s; “he was highly educated and had a doctoral degree in medicine; and he had a criminal history involving” a felony mail fraud from 2003 and multiple “counts of medical fraud from 2015. These factors indicate that defendant had a high degree of familiarity with the criminal justice system.” In addition, nothing in the record indicated he “was pressured or induced to admit to these charges without the assistance of counsel, and the trial court even double-checked to ensure defendant wanted to proceed with his plea without the assistance of counsel.” As to the decision to sentence him to prison for failing to pay restitution, MCR 6.425(D)(3) required the trial court to “consider at least six factors in determining whether defendant could comply with the restitution order absent manifest hardship.” While the trial court did consider the willfulness of his “failure to pay, and employment history (at least generally), it did not discuss or address defendant’s earning ability, financial resources, basic living expenses or other relevant factors, despite there being some evidence relative to those factors in the record. It could well be that the court did consider this evidence and these factors, but it did not do so on the record, and thus failed to comply with the court rule, which also” hampered the court’s review.
Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA); Liability under 42 USC §§ 107 & 113 as an “arranger”; Liability under §§ 107(a)(1) & (2) as “successors” to prior responsible companies; Whether “bare bones" declaratory judgments of liability in prior litigation started CERCLA’s statute of limitations (SOL) for contribution claims running, making them time-barred; RSR Corp v Commercial Metals Co.; Georgia-Pacific (GP); Polychlorinated biphenyls (PCBs); Kalamazoo River Study Group (KRSG); International Paper (IP)
[This appeal was from the WD-MI.] In an issue of first impression, the court held that a “bare bones” declaratory judgment triggered the limitations period, barring plaintiff-GP’s contribution claim. Also, noting it had not directly addressed the issue beyond RSR, it held that § 113(g)’s SOL “should bar an action against a nonparty beyond the statutory period.” The EPA designated “the Kalamazoo River and Portage Creek as a high priority for cleanup” due to PCB-contamination. GP and two other paper companies formed the KRSG, which filed a cost-recovery action under CERCLA. Some of the defendants in that action countersued, and the district court “found the KRSG members—including GP—liable ‘for the PCB contamination of the [relevant site].’” It also found one defendant, Rockwell, liable and another defendant, Eaton, partially liable. In 2010, GP brought this action under §§ 107 and 113 against defendant-NCR as an “arranger” and against defendants-IP and Weyerhaeuser under § 107(a)(1) and (2) as “successors” to prior responsible companies. Defendants moved for summary judgment based on the three-year SOL for contribution claims, which “begins to run when a party receives a ‘judgment’ in a CERCLA action or enters an ‘administrative settlement’ concerning such an action.” The court concluded that although IP and Weyerhaeuser were not parties to the KRSG litigation, it “does not matter for § 113(g)’s purposes whether the particular contribution action is pursued against a party to the liability-assigning judgment, or against a non-party to that judgment.” The court then considered “whether the 1998 declaratory judgment’s bare-bones nature prevented it from beginning the running of § 113(g)(3)(A)’s” SOL. It noted that no circuit had decided a case concerning the start date for the running of the SOL "when a party faces a bare declaratory judgment of liability.” The court applied RSR’s rule for CERCLA’s SOL in the settlement context and held that “the 1998 bare declaratory judgment caused the limitations period to begin to run.” As it determined “in RSR, GP had received the responsibility to pay for ‘as-yet-unfinished’ remedial work. . . . The 1998 declaratory judgment on liability therefore started the contribution clock ticking.” The court found that § 113(g)(3) barred the contribution claims against both IP and Weyerhaeuser, “even though Weyerhaeuser dismissed its own appeal from the judgment” here. Further, GP “cannot pursue its § 107(a) claims for any costs that fall within the scope of the 1998 KRSG judgment.” Reversed and remanded.
Easement location; Findings of fact following a bench trial; Motion for new trial or for relief from judgment; MCR 2.611(A)(1)(f); MCR 2.612(C)(1)(b); Newly discovered evidence; Failure to conduct an evidentiary hearing as to alleged perjury; Williams v Williams
The court concluded that the trial court did not clearly err in holding the West Drive was the easement described in plaintiff’s deed. Also, it did not abuse its discretion in denying his motion for new trial or relief from judgment. Finally, the court held that the trial court did not abuse its discretion in determining the circumstances did not call for a formal hearing on his claim that one of the defendants committed perjury. The “parties—neighbors with adjoining properties—clashed over which of two driveways was plaintiff’s easement.” Plaintiff’s lot was landlocked, and he claimed his “easement to access the highway, Bryce Road, was a gravel driveway” (the Gravel Drive). The defendants-McPhails believed that his “easement was a two-track dirt trail that wound through the woods on” their property (the West Drive). Plaintiff argued only the Gravel Drive matched the deed descriptions of the easement. While he was “correct that the West Drive twists and turns as it runs its course, this does not mean it does not travel in a north to south direction.” All the aerial photos “introduced at trial show the West Drive runs south from Bryce Road and ends when it reaches plaintiff’s lot. Thus, the West Drive proceeds in a north to south direction.” Also, while plaintiff and his friend testified that “the West Drive was only 8 to 10 feet wide, the trial court was not obligated to find this testimony credible.” Additionally, aerial photos showed, “in many areas, the width of both driveways was about the same.” The court found no clear error on either point. Plaintiff was correct that “the trial court clearly erred in finding the Gravel Drive never ran to plaintiff’s property, as plaintiff’s 1990, 1995, and 2000 aerial photographs plainly depict the Gravel Drive running all the way through to” his property. However, this did “not render clearly erroneous the trial court’s ultimate factual finding that the West Drive was the intended easement. Even if the Gravel Drive did, at some point in time, run all the way to plaintiff’s lot, defendants still presented unrefuted evidence that occupants of plaintiff’s lot always used the West Drive rather than the Gravel Drive.” Defendants-Ronald and James “testified defendants only used the Gravel Drive to access their business. James also testified that his niece resided on plaintiff’s property and she exclusively used the West Drive to access it. Even more, plaintiff testified he used the West Drive to access his property for the first six months he resided there.” Affirmed.
Automobile negligence; Sudden emergency doctrine; Credibility; “Reasonably prudent person”
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 72957 in the 5/18/20 edition), holding that the majority of the Court of Appeals panel erred in concluding that defendant-driver’s testimony was credible. The court found that while there was some evidence supporting “defendant-driver’s testimony, only he could know what happened inside his truck that day or whether he had any reason to suspect that an imminent syncopal episode might warrant certain conduct. When ‘the credibility of a witness or deponent is crucial, summary judgment should not be granted.’” Given that his “credibility was crucial to the success of his sudden-emergency defense, summary disposition should not have been granted.” While the dissent emphasized that his testimony left no fact question for trial, the court noted Judge Gleicher was correct that “the fact-finder may determine whether the defendant-driver acted as a ‘reasonably prudent person would have done under all the circumstances of the accident . . . .’” The court remanded to the trial court for entry of an order denying defendants’ summary disposition motion except on the grounds conceded by plaintiff, and for further proceedings. Dissenting, Justice Viviano, joined by Justice Zahra, found that the trial court did not err in granting defendant-driver summary disposition. The dissent concluded that he “presented clear, positive, and uncontradicted evidence to overcome the presumption that he was negligent. Although some of that evidence comes in the form of his testimony, plaintiff has not provided evidence calling that testimony into doubt. The evidence” presented all supported defendant’s testimony. Thus, no question of fact remained for the jury, and he was entitled to summary disposition.
Termination under § 19b(3)(c)(i); Child’s best interests
Holding that § (c)(i) was established by clear and convincing evidence and termination of respondent-father’s parental rights was in the best interests of the child (JJC), the court affirmed. More than 182 days had elapsed since the initial dispositional order was entered. Also, the record supported that his “substance abuse, abandonment of JJC and lack of suitable housing and provisions for the child continued to exist at the time of the termination.” The testimony established that the father “did not participate in substance abuse therapy or any drug screens (save one), despite knowing that a missed screen constituted a positive test under” the DHHS policy. There was no evidence that he achieved sobriety. Further, he “missed 25 of the 28 scheduled visitations with JJC during a 20-month period and failed to provide any financial support for the child. Respondent also failed to adhere to the other requirements of his service plan, such as undergoing a psychiatric evaluation, continued individual therapy, continued parenting classes, maintaining consistent contact with the foster care worker, providing proof of income, and providing documentation of suitable housing. Respondent had ample time to make changes and take advantage of a variety of services that were available, but failed to do so.” Because the totality of the evidence amply supported that he did not "accomplish any meaningful change in the conditions existing at the time of the adjudication, the trial court did not clearly err in finding that termination was proper under” § (c)(i).
Termination under § 19b(3)(c)(i); Children’s best interests; In re White; Reasonable reunification efforts; Distinguishing In re Mason
The court held that § (c)(i) was established as to respondent-mother, and that the trial court did not clearly err in finding termination was in her children’s best interests. It also was not definitely and firmly convinced the trial court was mistaken in determining the DHHS made reasonable efforts to reunify respondent-father with his child, and it rejected any claim that the trial court improperly terminated his rights based on his incarceration. Thus, the court affirmed the orders terminating respondents’ parental rights. As to the mother’s challenge to the existence of a statutory ground for termination, the record showed it was “clear that, despite the DHHS’s extensive efforts to” help her with her substance abuse issues, she “failed to make significant progress towards rectifying the barrier. Every time” she appeared to be making progress, “she relapsed and was setback on her path to sobriety. By the last day of the termination hearing, the three oldest children had been in foster care for over two years and the youngest child had been in foster care for over 1½ years.” Given the mother’s track record, “the trial court did not clearly err by concluding that there was no reasonable likelihood that this condition would be rectified within a reasonable time considering the children’s ages.” Despite the lack of analysis in her appellate brief as to her claim that termination was not in their best interests, and the failure to include this issue in her statement of questions presented, the court addressed and rejected the claim. “The children had been together in the same foster home for a lengthy period. They were doing well and were ‘very happy’ there, and the foster mother, who had a large, stable home; a stable, flexible job; and family support, wanted to adopt all four” of them. It also addressed the father’s claim that the DHHS failed to make reasonable reunification efforts, despite finding it inadequately briefed. The court determined that the caseworkers who assisted him “appeared to do as much as they could under the circumstances.” He admitted one caseworker “sent him a letter inquiring about his plans for release, but he had not replied to that or certain other communications.” He had also been provided services at the start “of the case before his incarceration, but he did not adequately participate in them.” The court found Mason “readily distinguishable . . . ."
Termination under § 19b(3)(c)(i); Children’s best interests; Permanency & stability
Holding that § (c)(i) existed and termination of respondent-mother’s parental rights was in the children’s best interests, the court affirmed. The only questions were “whether the conditions that led to the adjudication continued to exist and whether there was a reasonable likelihood that the conditions would be rectified within a reasonable time considering the children’s ages. One of the conditions that led to the adjudication was the lack of suitable housing.” As of 5/21, this remained “an issue. After being evicted about a year before the termination hearing, respondent had been living in motels, and during the five months leading up to the termination hearing, respondent had lived in two different motels and had stayed with a family friend.” The foster-care worker, when assessing the prior motel home, determined that “it was otherwise safe, but it was not suitable because there was inadequate room for the children.” Another condition leading to the adjudication was the mother’s mental-health issues. At the time of the termination hearing, she “had not been participating in her mental-health treatment.” Further, considering her “inability to rectify these conditions during the extraordinary length of time the cases had been open (five years, four years, and two years), there was no reasonable likelihood that respondent would be able to rectify the conditions within a reasonable time given the ages of the children.” Thus, the trial court did not clearly err by finding that § (c)(i) was proven by clear and convincing evidence. As to the children’s best interests, the court agreed with the trial court that they “had waited long enough and needed stability and permanency.”
Validity of pleas entered during the adjudicative phase; Advice as to the consequences of the pleas; MCR 3.971(B); Distinguishing In re Ferranti; In re Pederson; Plain error review
Finding this case was similar to Pederson, the court held that respondents-parents did not establish plain error affecting their substantial rights. They could not show the trial court’s failure to advise them “their pleas could be used against them during a subsequent termination hearing” prejudiced them. Their only argument was that the order terminating their parental rights should be vacated because their pleas during the adjudicative phase were invalid. The court reviewed this unpreserved argument for plain error. While they cited Ferranti in asserting “that any deviation from the advice of rights identified in MCR 3.971(B) is a ground for automatic reversal[,]” the court found that Ferranti could not be read so broadly. And in contrast to this case, the facts there revealed “a wholesale failure to comply with the requirements of MCR 3.971(B).” The court found Pederson “more instructive because it addresses the situation where a trial court fails to fully advise a respondent of the consequences of a plea, MCR 3.971(B)(4), but substantially complies with the requirements of MCR 3.971 in all other respects, particularly MCR 3.971(B)(3).” It noted that the plea proceedings in this case “were slightly unconventional as they unfolded over the course of three hearings . . . .” However, as in Pederson, “respondents were advised of the rights set forth in MCR 3.971(B)(3),” and they did not challenge this. Their only issue was that the trial court did not inform them “their pleas could be used against them during a later termination hearing.” The record showed they were advised “consistent with the overwhelming majority of requirements of MCR 3.971(B). Most important to the adjudicative phase, the court fully complied with MCR 3.971(B)(3).” Similar to Pederson, they were advised “of all of the rights they would be waiving,” and also as in Pederson, the hearing transcripts showed they “fully discussed the case with their attorneys and had reviewed the allegations in the petition. Further, respondents confirmed that they were entering the pleas of their own free will.” And it was apparent that they understood “they were giving up a right to an adjudication trial before entering their pleas.” In addition, the record showed the trial court did not rely “on respondent-mother’s admission or respondent-father’s no-contest plea” in terminating their rights. Affirmed.