Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Hearsay; MRE 801(c); MRE 802; Hearsay exception for a statement against a declarant’s penal interest; MRE 804(b)(3); Unavailable declarant; MRE 804; Unavailability under MRE 804(a) (reliance on the Fifth Amendment to avoid testifying); People v Meredith; Admissibility of text messages; Authentication; MRE 901(a); Mitchell v Kalamazoo Anesthesiology, PC; Judicial misconduct; Whether the judge’s conduct pierced the veil of judicial impartiality; People v Swilley; People v Stevens
The court held that the trial court did not err by allowing the prosecution to introduce defendant’s co-defendant’s (A) statements to their mutual friend (B), or by admitting text-messages from the victim to defendant and A, and that the trial court’s conduct at trial did not pierce the veil of judicial impartiality. He was convicted of first-degree premeditated murder, armed robbery, and mutilation of a dead body. The trial court sentenced him to life imprisonment without parole for the first-degree murder conviction, 11 to 20 years for armed robbery, and 4½ to 10 years for mutilation of a dead body, to be served concurrently. On appeal, the court rejected his argument that the trial court erred by allowing the prosecution to introduce A’s statements to B under the hearsay exception for statements against the declarant’s penal interest because the prosecution failed to establish that A was unavailable to testify. Because of A’s “Fifth Amendment right against self-incrimination, the prosecution could not have called him as a witness and compelled his testimony. Moreover, defendant failed to object on grounds that the prosecution did not establish [A’s] unavailability, so the prosecution did not have the opportunity to fully develop this issue.” The court also rejected his contention that the trial court erred by admitting text messages from the victim to defendant and A at trial. The evidence showed that the phone numbers the victim sent his messages to, and received messages from, were numbers associated with defendant and A. Further, in the text messages themselves, the senders identified themselves as Moose (A’s nickname) and Drew (a name defendant used), and the victim likewise referred to them by these names. This evidence was sufficient to support a finding that the text-message exchanges were what the prosecution claimed them to be. Finally, the court rejected his argument that the trial court’s conduct throughout the trial pierced the veil of judicial impartiality and thereby denied him a fair trial. It found the challenged conduct did not involve “belittling defense counsel or biased commentary” in front of the jury, and the trial court’s choice of words did not convey “hostility, bias, or incredulity with regard to defense counsel or defendant.” In addition, the trial court’s scope of intervention was not unreasonable, it moved the proceedings along “evenhandedly” and expeditiously, and its jury instructions “were sufficient to protect defendant’s right to a fair trial.” Affirmed.
Expert testimony in a CSC case involving a child victim; MRE 702; People v Peterson; People v Thorpe; Prosecutorial misconduct; MRE 608(a); Vouching for the veracity of the victim’s allegations by eliciting testimony about her character for truthfulness & during closing argument; Making statements in closing argument as to defendant’s guilt; Ineffective assistance of counsel; Failure to object to the expert’s testimony, to witnesses’ testimonies as to the victim’s character for truthfulness, & to the prosecution’s statements during closing argument; Sentencing; Scoring of 15 points for OVs 8 & 10; Upward departure; Proportionality
The court concluded that the record did not support that the prosecution’s expert witness’s (A) improper testimony caused the jury to convict an innocent defendant, or that “her testimony affected the fairness, integrity, or public reputation of the proceedings.” Also, defendant failed to meet his burden as to his prosecutorial misconduct claim, and he was not denied the effective assistance of counsel. Finally, the trial court incorrectly assessed points for OV 8 but properly assessed 15 points for OV 10, and the court rejected his challenge to his departure sentence. He was convicted of three counts of CSC II involving his step-granddaughter. He was sentenced to concurrent terms of 7 to 15 years on each conviction. Defendant argued that the trial court erred by allowing the prosecution to elicit testimony from A about “how often children lie about sexual abuse and that those that do usually recant.” Under the principles articulated in Peterson and Thorpe, by testifying as to “the rarity of children who lie about sexual abuse and that those that do usually recant, [A] improperly vouched for” the victim’s credibility. Thus, the admission of this testimony was an obvious error. The court then considered whether defendant “proved that the plain error caused him prejudice by affecting the outcome of” the trial court proceedings. He bore the “burden of establishing that the jury convicted an actually innocent person, or that the error affected the judicial proceedings’ fairness, integrity, or public reputation independent of his innocence.” The court held that the record did “not establish that the trial court proceedings resulted in the conviction of an actually innocent person.” It reflected that the victim provided detailed testimony about the abuse, and that defendant “attempted to exonerate himself by suggesting that the victim lied about the sexual abuse. Nevertheless, after attempting to discredit the victim and calling into question the veracity of her allegations, defendant and the victim’s grandmother admitted that the victim generally had been a truthful child and that they knew of no reason for her to lie. In so doing, defendant and the victim’s grandmother undermined defendant’s attack on the victim’s credibility. Reasonable jurors could weigh the witnesses’ testimonies and determine for themselves whether the victim testified credibly and truthfully about being sexually abused by defendant.” The court was not persuaded, based upon the record, that it should exercise its discretion and reverse his convictions “because of the plain, forfeited error.” Affirmed.
Prosecutorial misconduct; People v Mullins; Special knowledge & vouching for a witness; Sentencing; Scoring of OV 11; Whether two or more criminal sexual penetrations occurred; MCL 777.41(1)(a); Scoring of additional instances of penetration extending beyond the sentencing offense; MCL 777.41(2)(b); Principle that the trial court must not score points for the penetration that forms the basis of a CSC I or III offense; MCL 777.41(2)(c); “Arising out of the sentencing offense”; People v Johnson
The court held that the prosecutor did not commit misconduct and defendant was not entitled to resentencing despite the trial court’s erroneous scoring of OV 11. He was convicted of CSC I and CSC II for his sexual abuse of a 10-year-old boy (D). The trial court sentenced him to 25 to 35 years for the former, and 5 to 15 for the latter. On appeal, the court rejected his argument that the prosecutor improperly implied he had special knowledge regarding D’s truthfulness, improperly vouched for D’s credibility, and improperly presented false testimony that the prosecutor was required to correct. “[T]he prosecutor explained that there were inconsistencies in [D’s] testimony and noted that [his] age may explain his inconsistencies.” The statements “did not suggest he was relying on past experience in other cases involving child victims, and his statements did not imply he had special knowledge” of D’s credibility. Instead, the prosecutor “encouraged the jury to determine for itself whether [D] was credible.” The court next found that although the trial court erred by assessing 50 points for OV 11, he was not entitled to resentencing because he was sentenced to a 25-year mandatory minimum sentence. “The trial court erred because it did not consider that it could only score ‘sexual penetrations of the victim by the offender arising out of the sentencing offense.’” However, “the guidelines’ minimum recommended sentence range had no impact on defendant’s sentence, and an error in the scoring would not warrant any relief.” As such, he was not entitled to a remand for resentencing. Affirmed, but remanded for the ministerial task of correcting defendant’s total OV score.
Physical custody; Established custodial environment (ECE); Best-interest factors
The court held that the trial court erred by granting the parties joint physical custody of their child, J, despite the trial court’s determination that an ECE existed solely with plaintiff-mother and that none of the best-interest factors favored defendant-father. Thus, it vacated the physical custody portion of the order and remanded. “The trial court determined, after the custody hearing, that an ECE had existed only with plaintiff since the parties’ separation in 2019.” Its temporary custody order had continued that status. “Because plaintiff had sole physical custody of [J] at the time of the custody hearing, the burden therefore fell on defendant to prove by clear and convincing evidence that a change in the child’s” ECE was in the child’s best interests. It was evident that the trial court stated its findings and conclusions as to each factor. The trial court determined that “three factors favored plaintiff, and that the remaining factors were neutral. Yet, despite these findings,” it ordered joint physical custody of J. The court held that the trial court abused its discretion by doing so. “In light of the court’s determination that none of the factors weighed in favor of defendant, and several factors weighed in favor of plaintiff, we find palpable error in its conclusion that a change in [J’s] ECE was in the child’s best interests.” Further, the court concluded that “because the trial court did not explicitly hold that defendant had proven by clear and convincing evidence that a change in the ECE was in [J’s] best interests, or in fact make any reference to the applicable evidentiary standard or allocation of the burden of proof, it appears that the trial court’s error was premised on a misapplication of the law.”
Denial of no-fault benefits; Rescission of an insurance policy based on fraud; Bazzi v Sentinel Ins Co
Holding that the trial court erred by finding there was a genuine issue of material fact as to whether plaintiff “was operating a business that qualified for her commercial automobile insurance policy,” and by denying defendant-insurer’s motion for summary disposition, the court reversed and remanded for entry of an order granting defendant’s motion. Plaintiff was injured in a car accident. Defendant denied her claims for no-fault benefits, and determined the policy should be rescinded because she “made a material misrepresentation or engaged in fraud when she indicated that the car was used for commercial purposes.” The court agreed with defendant that the trial court erred by denying its motion, concluding the material facts showed plaintiff made misrepresentations defendant relied upon in issuing the policy. As defendant argued, “plaintiff did not utilize the insured vehicle for the purpose of operating a business for profit; instead, plaintiff made this representation to obtain a reduced-premium policy.” Her deposition testimony, together with her interrogatory answers, established “that there was no genuine issue of material fact on that issue.” She also testified that she “predominantly used her vehicle to travel to and from her place of employment” and to attend school, “with only periodic trips to the store to get products and supplies for her business.” And she stated “in her interrogatory answers that she was not self-employed.” Taken together, there was “no evidentiary dispute that, while plaintiff does provide nail and cosmetic services on occasion, she was not, through this business, engaging in a commercial enterprise for profit.” In addition, although she suggested that any misrepresentation in her application “was innocent or not to her knowledge because the insurance agent completed the application, that does not refute [defendant’s] right to rescind since it relied on the misrepresentation in issuing the policy.” And her suggestion that any misrepresentation was defendant’s fault as the insurance agent’s principal was meritless. Thus, “a rational trier of fact could determine that no genuine issue of material fact existed as to whether plaintiff truly operated a business to qualify for a commercial automobile insurance policy, and therefore, summary disposition should have been granted. Because the nature and extent of plaintiff’s business was misrepresented in the application for commercial insurance—likely made to obtain a reduced-premium policy—the trial court” also erred in denying defendant’s request to rescind the policy.
Insurer priority for the payment of PIP benefits; MCL 500.3114(4)(a); “Owner”; MCL 500.3101(2)(k); Legal title holder; The Motor Vehicle Code (MVC); MCL 257.233(8); MCL 257.233a; Effective date of transfer; MCL 257.233(9); Perry v Golling Chrysler Plymouth Jeep, Inc; MCL 257.240; Secretary of State (SOS); Michigan Assigned Claims Plan (MACP)
In this priority dispute, the court concluded that the trial court should have entered a judgment of no cause of action in favor of defendant-Home-Owners Insurance because it fell outside of the priority rules and defendant-Nationwide was liable for the PIP benefits. Nonparty-G acquired a Jeep Cherokee and insured it through Home-Owners. She sold it to nonparty-M. He took possession and left with the title documents. He “did not apply for title to the vehicle with the [SOS], did not register it in his name, and did not acquire no-fault insurance coverage. [G] allowed her registration of the vehicle to lapse and removed” it from her Home-Owners policy. Plaintiff-Avila “suffered significant injuries” while driving the vehicle with M as a passenger. The MACP assigned the case to Nationwide. The only way “Home-Owners could be in the line of priority is if, pursuant to MCL 500.3114(4)(a),” G was found to be the vehicle’s owner at the time of the accident. Only the first clause of MCL 500.3101(2)(k)(iii) was relevant, as G “would be considered an ‘owner’ of the Jeep Cherokee if she held legal title to” it at the time of the accident. The parties disputed the effective date of the title transfer. “In answering Question No. 1, the jury determined that (1) [G] sold the jeep to ‘a purchaser,’ i.e., [M], (2) [G] signed the assignment of title to [M], and (3) [M] ‘signed the assignment of title all before’ the date of the collision. Under MCL 257.233(9) and Perry,” title transferred from G to M before the accident, and G “did not hold legal title to the vehicle and was, therefore, not an ‘owner’ under MCL 500.3101(2)(k)(iii).” Thus, the court held that “Home-Owners was not the insurer of an owner of the subject vehicle, and under former MCL 500.3114(4), it was not a higher priority insurer for Avila’s injuries.” Based on the jury’s answer to Question No. 1, a judgment of no cause of action should have been entered in Home-Owners’ favor. The court rejected an attempt by Nationwide to rely “on MCL 257.240 to suggest that a proper transfer of title under MCL 257.233(9) could be undone by [G’s] failure to” go to the SOS with M or keep proof of purchase for 18 months. Further, nothing in the statute suggests “the presumption of ownership created by MCL 257.240(4) is an absolute, irrefutable presumption.” Affirmed in part, reversed in part, and remanded for entry of a judgment of no cause of action for Home-Owners.
Wrongful-death dramshop action; MCL 436.1801(1); Rebuttable presumption; MCL 436.1801(7); “Visible intoxication”; Relief under MCR 2.604(A); MCR 2.612(C)(1)(f); MCR 2.119(F); Successor judge’s authority under MCR 2.613(B); Maple Lane Golf Club (MLGC); Buffalo Wild Wings (BWW)
While the court rejected defendant-MLGC’s procedural challenges to the successor judge’s (M) order setting aside a grant of summary disposition, it held that the trial court erred in doing so in the absence of evidence of visible intoxication. Thus, it reversed, concluding that MLGC and defendant-Bearcat Enterprises (doing business as BWW) were both entitled to summary disposition. Plaintiff’s decedent died after a vehicle driven by defendant-Dennis “crossed the center line and struck the decedent’s vehicle head on.” Dennis had earlier attended a charity golf outing at MLGC. He “consumed alcohol before, during, and after the dinner that concluded the charitable event at MLGC. After the dinner,” he went to a BWW restaurant, where he “consumed two glasses of beer and spilled a third glass . . . .” MLGC argued that plaintiff was not allowed “to move for relief under MCR 2.604(A) after having previously moved for reconsideration under MCR 2.119(F) and for relief from judgment under MCR 2.612.” It also contended that M, “as a successor judge, lacked the authority to set aside” the original judge’s (S) order under MCR 2.613(B). However, the court disagreed, concluding that M was allowed “to revisit the orders granting summary disposition under MCR 2.604(A)” and that MCR 2.613(B) authorized him “to revisit any prior orders entered by” S. But substantively, as to MLGC, none “of the eyewitnesses, including Dennis’s three golf companions and an MLGC bartender, testified that they observed visible intoxication on” his part, and the court saw no indications of it in the video evidence. Further, “plaintiff’s reliance on the amount of alcohol Dennis consumed during his approximately eight hours at MLGC is largely speculative and entirely circumstantial, and absent any direct evidence of visible intoxication, cannot sustain an action against MLGC, let alone an action whereby plaintiff must rebut with clear and convincing evidence the presumption that MLGC did not violate MCL 436.1801(1).” While the case against Bearcat was “a closer issue[,]” the court noted that “no witnesses testified to Dennis’s visible intoxication at BWW, nor does the video evidence indicate” it. One of his companions and the BWW server testified that the spilled beer “did not indicate to them at the time that Dennis was visibly intoxicated.”
Termination under §§ 19b(3)(b)(i), (c)(i), & (k)(ii); Children’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors
Holding that at least one statutory ground for termination was established, and that the trial court did not clearly err in finding that it was in the children’s best interests, the court affirmed the orders terminating respondent-father’s parental rights in these consolidated appeals. His rights were terminated under §§ (b)(i), (c)(i), and (k)(ii). One of the children (S) testified that when she would stay with respondent, “when he was drunk or his girlfriend was absent, he would touch her private parts and make her uncomfortable. . . . [S] testified that [he] touched her butt, touched her breasts outside her clothes, and when she was 10 or 11 years old, he penetrated her vagina with his penis and his finger. . . . On the second day of testimony, the prosecutor recalled [S] as a witness, and she again testified that respondent-father had penetrated her vagina with his penis and his finger, when she was younger than 13.” S’s adult sibling also “testified at the termination trial that respondent sexually abused her between ages 9 or 10 and 15.” A foster care worker (G) testified that, in counseling sessions, another of the children (E) had “‘said that her father has touched her . . . vaginal area with his mouth’ and that respondent had ‘wiggled his . . . penis in front of her’; similarly, [another of the children, P] had ‘said that . . . his father touched his penis and his butt hole.’ [G] further testified that both children had started to ‘act out sexually.’ Clear and convincing evidence supported the finding that respondent had sexually abused [S], [E], and [P], as well as [S’s] adult sibling when she was a child.” Thus, the court held that the trial court “did not clearly err by finding that respondent sexually abused the children or siblings of the children and that, if the children were returned, there was a reasonable likelihood of further abuse occurring.” As to their best interests, it concluded that there was “ample evidence” supporting the trial court’s determination that termination was in their “best interests. Three of the four children had alleged that respondent had repeatedly sexually abused them, while the fourth was an infant who had never resided with respondent. This abuse caused mental and emotional trauma and behavioral issues that were best treated in an environment in which the children had no contact with respondent and could feel safe and stable.”
Termination under §§ 19b(3)(f)(i) & (ii); Child’s best interests; Requirement that the trial court state its findings & conclusions as to the child’s best interests on the record or in writing; MCL 712A.19b(1); MCR 3.977(I)(1)
Holding that clear and convincing evidence supported termination under §§ (f)(i) and (ii), that it was in the child’s (T) best interests, and that the trial court made sufficient findings and conclusions as to those best interests, the court affirmed the order terminating respondent-mother’s parental rights. The evidence clearly showed that there was a guardianship in place for T, “and that respondent, by her own testimony, failed to provide regular and substantial support for [T] and failed to visit, contact, or communicate with him regularly over a period of two or more years before” the petition was filed. She only gave petitioner-guardian (T’s great-grandmother) money for T’s care “approximately twice during the two years preceding the filing of the petition. Respondent only bought [T] three pairs of shoes and an outfit before the termination proceedings. She admitted that she used to give petitioner money every month or two to buy clothes for [T] but, without good cause, she ultimately stopped doing that.” In addition, there was “clear and convincing evidence that respondent failed, without good cause, to contact, visit, or communicate regularly with [T] during the two years preceding the filing of the petition.” Petitioner testified that she and T initiated “contact with respondent. [T] had recently been in touch with respondent by phone, but in the past, months would pass by without any contact between” them. On the other hand, respondent testified she initiated contact with T “all the time, and that petitioner did not let her see [T] on several occasions. The trial court resolved this conflict in petitioner’s favor, and” the court gave its findings based on determination of witness credibility special deference. As to T’s best interests, “the trial court’s findings, supported in the record, were brief, definite, and pertinent findings and conclusions that sufficiently conveyed” its determination. T had been in petitioner’s care for about four years at the time of the termination hearing, “and needed permanency, stability, and finality. During those four years, respondent had done very little to provide support or establish a stable home for, or communicate with,” T, and she was staying at a hotel at the time of the hearing, with no certainty as to “when she would be able to obtain suitable housing.”