Robert J. Adams Helen Joan Brish Julie A. Cohen Margaret Erdeen Davis Judith Bach Dixon Michael L. Dobra Matthew Scott Essenburg John E. Gates Jr. Stephen A. Gatto Stephanie T. Goecke Clyde C. Goodwin Jr. William J. Hassett John R. Hayes Robert L. Hindelang Joseph J. Jerkins Donald L. Johnson David A. King Suzanne Marie Krohn John R. Marquis Michael E. Mccarty Donna Mckneelen William P. O’leary Cameron H. Piggott Margaret L. Pittman John G. Posa Nancy M. Rade Edmund J. Sikorski Jr. Anne L. Sruba Robert D. Stalker Mary Wickens Clayton E. Wittman
Robert S. Bick Andrew T. Blum Butzel Cloie Y. Chidiac Nancy Samir-Haddad Derleth Debra A. Geroux Charlie Goode Brandon J. Hayes Ingham County Bar Association Courtney A. Lavender Bushra A. Malik MDTC James J. Murray Courtney L. Nichols Shanika A. Owens Reginald A. Pacis Erin Pawlowski Adomas N. Rauckis Richard Warren
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Great weight of the evidence; People v. Lemmon; People v. Unger; People v. Lacalamita; People v. Musser; Sentencing; Scoring of OV 19; MCL 777.49(c); People v. Ericksen; Credibility; People v. Shipley; Judicial fact-finding; People v. Lockridge; Apprendi v. New Jersey; Alleyne v. United States
The court held that the jury’s verdict was not against the great weight of the evidence, and the trial court did not err in scoring OV 19, but did engage in judicial fact-finding in scoring the defendant’s OVs. He was convicted of first-degree murder and felony-firearm. However, the trial court granted his motion for a new trial on the ground that the jury’s verdict was against the great weight of the evidence. At his second trial, a jury convicted him of the lesser included offense of second-degree murder and felony-firearm. The trial court sentenced him to a prison term of 16-1/2 to 30 years for the murder conviction, and a consecutive 2-year term for the felony-firearm conviction. The trial court denied his motion for a new trial. On appeal, the court rejected his argument that the jury’s verdict was against the great weight of the evidence, finding the trial court “did not abuse its discretion in determining that the evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” It also rejected his claim that the trial court erred in scoring OV 19, noting that the trial court “assessed 10 points for OV 19 because there was evidence that defendant removed surveillance video equipment from the building” after the shooting, and although he contended that the testimony of a witness was not credible, the court noted it will defer to the trial court’s assessment of credibility. Finally, the court agreed with defendant that he was entitled to sentencing relief because judicial fact-finding at sentencing increased the sentencing guidelines range, noting “judicial fact-finding was necessary to the trial court’s assessment of” 15 points for OV 5, 10 points for OV 14, and 10 points for OV 19. “Moreover, the scoring of those variables placed defendant in OV Level III instead of OV Level II on the applicable sentencing grid for second-degree murder.” Affirmed but remanded for further sentencing proceedings in accordance with Lockridge.
The court held that there was sufficient evidence to justify the jury’s finding beyond a reasonable doubt that the defendant knew or had reason to know that the arresting officers were police officers. He was convicted of resisting and obstructing a police officer, possession of burglar’s tools, and breaking and entering a motor vehicle to steal less than $200. His convictions arose out of his breaking and entering of an officer’s personal vehicle. An off-duty, plain clothes officer spotted him during the incident and, with others, arrested him despite his resistance. On appeal, the court rejected his argument that there was not sufficient evidence to prove that he knew the arresting officers were police officers because they were wearing plain clothes and did not show him a badge. It noted that they “verbally identified themselves as police officers to defendant and told” him to wait for other officers to arrive, that one of them showed his badge during the struggle, and that a third officer who arrived on the scene “was readily identifiable as a police officer because he arrived in a fully marked police cruiser wearing his full police uniform.” As such, the court concluded “there was sufficient evidence for the jury to determine that while resisting or obstructing the officers, defendant had reasonable cause to believe the persons he was assaulting or obstructing were officers performing their duties.”Affirmed
The defendant did not show that he was entitled to relief under either a sufficiency of the evidence or great weight of the evidence theory. Also, it was not an abuse of discretion for the trial court to find that he was previously convicted of the felony of aggravated battery with a firearm, which constituted a third previous felony conviction and provided the basis for sentencing him as a fourth habitual offender. Further, he did not show that the victim provided perjured testimony that the prosecution failed to correct. Finally, he was not denied the effective assistance of counsel. He was convicted of assault with intent to commit sexual penetration and assault by strangulation. He was sentenced as a habitual offender (fourth offense) to serve concurrent sentences of 300 to 450 months in prison. He did not contest that any specific element of either crime was unsupported by sufficient evidence, but argued that victim-M’s testimony was not credible, whereas his version of events was accurate. Defendant testified that he grabbed M “by the neck and pushed her backwards after they argued when he discovered her looking through his pants pockets, and that he then left.” M testified that, “without provocation, defendant choked her and tried to hold her down on the couch while saying that he was going to have intercourse with her.” M “described wrestling with defendant as he continued to choke and push her, and as she was bent over the couch, pushed against the wall, and forced into a bathroom.” She further stated that “defendant unbuckled her pants while restraining her on the couch, and momentarily pulled down her pants as she was bent over the couch, and that she eventually escaped while brandishing a knife after taking advantage of defendant exposing himself.” M’s “testimony alone provided sufficient evidence to support defendant’s convictions.” Also, there was evidence of bruising around M’s neck, supporting her testimony. Finally, her “statements to her aunt and to police immediately following the incident were substantially consistent with her trial testimony.” Thus, the evidence was sufficient to support defendant’s convictions for both offenses. Affirmed.
Sufficiency of the Miranda warning; Miranda v. Arizona; United States v. Al-Cholan; United States v. Wysinger (7th Cir.); Significance of the "in court" language in the Miranda warnings; United States v. Tillman; Florida v. Powell; United States v. Castro-Higuero (8th Cir.); Evans v. Swenson (8th Cir.); United States v. Frankson (4th Cir.); United States v. Hernandez (10th Cir.); Whether the Miranda waiver was "knowing" & "voluntary"; Moran v. Burbine; Ledbetter v. Edwards; Garner v. Mitchell; Sufficiency of the evidence; United States v. Carter; United States v. Copeland; Felon in possession of ammunition; United States v. Kincaide; "Constructive possession"; United States v. Bailey; Conditional grant of a new trial; 18 USC § 3731; United States v. Lawrence; Adequacy of the search warrant; Knott v. Sullivan; United States v. Pelayo-Landero; United States v. Shamaeizadeh; "Probable cause"; United States v. Frazier; Independent corroboration of a confidential informant's tip; United States v. Coffee; United States v. Jackson; Search warrant procedure, Fed.R.Crim.P. 41(f)(1)(C); Frisby v. United States; "Prosecutorial misconduct"; Broom v. Mitchell
Holding that the property division was fair and equitable, but that remand was necessary for the trial court to recalculate the parties’ income and recalculate the child support award, the court affirmed in part, reversed in part, and remanded. The parties raised several issues as to whether certain property was separate property or marital property subject to division. The defendant-ex-wife argued that her premarital Gentex stock was erroneously classified as marital property. The trial testimony established that she acquired 72,000 shares of the stock before the marriage and that it was held in her sole name. “At that point, the Gentex stock was separate property.” However, the trial court accepted the plaintiff-ex-husband’s testimony, which established that “defendant transferred her Gentex stock to a joint account” so that they could sell it “to take advantage of lower capital gains tax rates and to have the necessary funds to make a down payment on a blueberry farm that was intended to be a marital investment.” Defendant contended that the stock “remained separate property because a mere change in title is not dispositive of whether an asset is separate or marital.” However, the facts indicated “more than just a mere change in title.” Plaintiff’s testimony showed that the “shares of Gentex stock were intended to be treated as marital property” because they were deposited “into a jointly held account to accomplish the marital goals of reducing their tax liabilities and purchasing a blueberry farm.” Thus, the “parties’ conduct—the clearest indicia of whether an asset is marital—indicates that the parties intended to treat the Gentex stock as marital property.” The trial court’s factual finding that the Gentex stock was marital property was not clearly erroneous. As to child support, the court concluded that the “trial court’s finding that plaintiff had an income of $75,000 was clearly erroneous” where he admitted that he had an income of $80,000. Further, because “the trial court failed to attribute the appropriate amount in dividend income each party will receive, the parties’ incomes do not accurately reflect the income each party has available for support.”
Holding that the plaintiff’s notice of his intent to sue was not insufficient for failing to include the name of a stranger as a known witness, the court affirmed the trial court’s order denying the defendant-city’s motion for summary disposition. Plaintiff was injured when he drove a motorized “minibike” into a pothole, causing him to summersault over the handlebars. Defendant contended that plaintiff’s notice was deficient in failing to provide the name of a known witness—the stranger. “In order for a person to be a known witness, the person first must be known to plaintiff, meaning that the plaintiff was aware of the witness.” Plaintiff was aware of the stranger. The stranger assisted him after he fell off his minibike, lent his cell phone, and even discussed the problematic potholes with plaintiff. Thus, there was no genuine issue of material fact as to whether the stranger was known to plaintiff. Although no genuine issue of material fact existed as to “whether the stranger was known to plaintiff, the stranger must have also been a witness. While the word ‘witness’ is not defined by statute,” plaintiff relied upon Rule as dispositive in determining whether the stranger was a witness for purposes of the notice requirements. The “necessary implication of Rule is that to be considered a witness for purposes of MCL 691.1404, the person must have seen (1) the accident and (2) what caused the accident.” The existing record revealed that the stranger did not see the accident. “Plaintiff testified that the stranger did not see him encounter the pothole and summersault over the minibike’s handlebars because the stranger was ‘doing something in his yard or in his driveway’ and ‘wasn’t watching the road and witness[ing] [plaintiff].’” While the evidence indicated that the stranger assisted plaintiff after the accident, nothing in the record indicated that the stranger actually saw the accident. Thus, under Rule, the stranger was not a witness, and plaintiff was not required to name the stranger in his notice.
The court held that no genuine question of material fact existed as to the absence of a common-law duty on behalf of the defendant as to the plaintiff’s boarding of the boat. Also, as to plaintiff’s statutory duty, the court held that as in Binno, defendant was not “operating” the boat at the time of plaintiff’s fall, and the trial court did not err in concluding that he owed plaintiff no duty under MCL 324.80145 or MCL 324.80147. It further held that having determined as a matter of law that plaintiff failed to show the existence of a duty, the trial court correctly granted summary disposition to defendant. Plaintiff was injured when she fell while attempting to board defendant’s boat from a dock. She argued that the trial court erred in finding that defendant owed no common-law duty of care to secure the boat before she boarded, or in the alternative that he undertook responsibility for her boarding and thus owed her a duty to avoid increasing the risk of harm to her. The court disagreed in both respects. Plaintiff urged the court to find that Stern was wrongly decided and decline to follow it under the principle of stare decisis. It was not free to do so. “Only the Supreme Court may overrule one of its decisions; until it does so, lower courts are bound to it regardless of their belief in the soundness of its reasoning or its age.” Nor did it find Stern “materially distinguishable as involving a passenger disembarking from a boat rather than, as here, boarding one. In both situations, the knowledge that ‘an element of danger and extra caution is required’ is implicated.” Thus, the court held that pursuant to Stern there was “no general common-law duty to secure a boat before passengers board it.” Further, the record was clear that “defendant did not actually undertake to assist plaintiff in boarding the boat. The common law does ‘impose an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies.’” However, plaintiff’s own deposition testimony indicated that “defendant did not attempt to aid her in boarding the boat; rather, he merely yelled rude remarks to her and berated her." She "admitted that she attempted to board the boat without any assistance from defendant. Further, although defendant at one point called upon her to ‘jump’ into the boat, she did not follow this suggestion, if in fact it was a serious one.” Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Moss Minors; In re Ellis; In re Hudson; In re HRC; In re Miller; In re JK; Children’s best interests; In re Olive/Metts Minors; In re Terry; Reasonable efforts at reunification in the context of respondents’ impairments under the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.)
The trial court properly terminated both respondents-parents’ parental rights to the children where the statutory grounds for termination were established by clear and convincing evidence and termination was in their best interests. The evidence showed that the respondent-mother “suffered from a cognitive impairment and could not care for herself without assistance. She received supplemental social security income, but could not handle money, and she had a payee.” Expert witnesses opined that she “could not care for the children independently, and that she could parent the children only if she lived with other adults who made decisions for her.” The mother “herself acknowledged that she needed assistance caring for the children. Her support from her family was inconsistent, and would disappear at times if she and her father and stepmother had a disagreement.” Significantly, no evidence established that a time would come when the mother “would not need considerable assistance caring both for herself and the children.” Also, her “statement that she would discontinue services if she regained custody of the children constituted evidence that the children would be at risk of harm if returned to her custody.” As to the respondent-father’s claim that the DHHS failed to make reasonable accommodations for his cognitive impairment under the ADA, the court held that the DHHS made reasonable efforts at reunification in the context of respondents’ impairments, thereby satisfying the ADA’s reasonable-accommodations requirement. Affirmed.