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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Legal malpractice; Simko v. Blake; Whether the attorney-client relationship was with the personal representative (PR); Steinway v. Bolden; Claim that the defendant-attorney’s obligation only extended to heirs of the estate; MCL 700.3703; MCL 700.1212; In re Baldwin Trust; Whether defendant negligently represented plaintiff and whether the negligence proximately caused the injury to plaintiff; MCL 700.3703(1); Whether defendant provided adequate notice of the hearing to distribute funds in the probate case to plaintiff; State Bar Grievance Adm’r v. Estes; Standard of care (SOC); Failure to disclose a conflict of interest & withdraw from representation; MRPC 1.7; McTaggert v. Lindsey; Statute of limitations; Scherer v. Hellstrom; Kloian v. Schwartz; Levy v. Martin
The trial court properly held that there was no genuine issue of material fact that the defendant-attorney acted as the attorney for the estate in the probate court. It rejected the contention that the PR and defendant “owed a fiduciary duty only to heirs of the estate, and not to defendant, a named beneficiary of the decedent’s life insurance policy, and a clear interested party to the estate.” Plaintiff alleged defendant failed to properly represent plaintiff’s interests as a beneficiary of the estate of her brother, Curtis Lee, Jr. Defendant claimed that “he did not commit legal malpractice because he did not have an attorney-client relationship with plaintiff” and that he represented only Curtis’s wife and PR of the estate (Lee). Defendant’s name was “listed as the attorney for the estate on the pleadings in the probate court. Most compellingly,” in his motion for disbursement in the probate case, he labeled himself "as the attorney for the estate." Further, in his answer to plaintiff’s complaint in this case, “he admitted that he represented the estate.” Based on his representations, the court concluded that the holding in Steinway applied. While it found that summary disposition was not appropriate as to whether defendant provided notice of the hearing to distribute funds in the probate case to plaintiff, the court agreed with the trial court that defendant violated the SOC by failing to disclose a conflict of interest and withdraw from representation. “Defendant admittedly represented both the estate along with Lee’s interests as a claimant, which was a conflict of interest.” Further, plaintiff’s claim was not barred by the statute of limitations. Defendant “continued to represent plaintiff and the estate” through 6/23/11, when the probate court entered an order vacating its 1/13/11 order to disburse funds. Thus, the statute of limitations for plaintiff’s malpractice case did not begin to run until well after 1/13/11. Affirmed.
Constitutional right to a speedy trial; People v. Rivera; People v. Williams; A delay of less than nine months; People v. Cain; Barker v. Wingo; Applicability of the “180-day rule” (MCL 780.131(1)); People v. McLaughlin; People v. Lown; Constitutional right to present a defense; People v. Hayes; Evidence that the victim had a prior carrying a concealed weapon (CCW) conviction; “Relevant evidence”; MRE 401; People v. Crawford; Ineffective assistance of counsel; People v. Swain; People v. LeBlanc; People v. Matuszak; MRPC 3.3; Decision to proceed with “an all or nothing defense” as a legitimate trial strategy; People v. Nickson; Suppression of an alleged plea deal; People v. Elston; Sentencing; Scoring of OVs 4 & 9; People v. McChester; MCL 777.34(1)(a) & (2); MCL 777.39(1)(c) & (2)(a); People v. Laidler; Whether defendant was entitled to resentencing; People v. Francisco; Judicial fact-finding; Alleyne v. United States; People v. Herron; Assault with intent to murder (AWIM)
The court concluded that the 180-day rule did not apply, and that the defendant could not establish plain error affecting his substantial rights as to his constitutional right to a speedy trial claim. Further, because the proposed evidence was not relevant, he was not denied his constitutional right to present a defense by the trial court’s refusal to allow him to introduce evidence that the victim had a prior CCW conviction. The court also rejected his ineffective assistance of counsel claims, and concluded that there was no support for his contention that the jury was misled about any alleged consideration a witness received for his testimony. Thus, the court affirmed his AWIM, felon in possession, and felony-firearm convictions. It also upheld his sentences, concluding that OV 4 was properly scored at 10 points and that any error in the scoring of OV 9 did not require resentencing. Given that the record showed defendant was awaiting trial in the county jail, the court held that the plain language of MCL 780.131(1) revealed that the 180-day rule did not apply. As to defendant’s constitutional right to a speedy trial, a “delay of less than nine months is not particularly lengthy or noteworthy.” He made no effort to argue that the delay was prejudicial, and the court concluded, after briefly considering the remaining Barker factors, that he could not establish plain error affecting his substantial rights. The “second factor—the reason for the delays—does not weigh heavily in favor of either defendant or the prosecution. Defendant was responsible for a portion of the delays in the proceedings, as was the prosecutor. Some of the delay can also be attributed to docket congestion, and should not be assigned significant weight.” As to the third factor, “defendant did not assert his right to a speedy trial prior to trial, nor did he express that he believed his right had been violated until his sentencing hearing.” The record showed that he consented to one adjournment and asked for another. He contended that he would have asserted his speedy trial rights if he had been given correct information as to when the 180 days expired. However, the record contained no indication that he would have asserted his right under different circumstances.
Claim that the trial court’s decision to permit the jury to see a transcript of the defendant’s police interview caused him prejudice because it convinced the jury to convict him of first-degree murder as opposed to second-degree murder; Houghton ex rel Johnson v. Keller; Claim that the transcript’s “inaccuracies” led the jury to convict him of first-degree murder instead of second-degree murder; Harmless error; People v. Lukity; People v. Gonzalez; People v. Kelly; Claim that the parties did not stipulate to the accuracy of a transcript; People v. Lester; Westland v. Kodlowski
The trial court’s decision to permit the jury to see a transcript of the defendant’s police interview did not cause him prejudice. Even if the court were to assume the transcript contained content that caused the jury to find defendant guilty of first-degree murder, as opposed to second-degree murder, the fact that the jury read the transcript would be harmless, because defendant failed to show that he would have been acquitted or convicted of a lesser crime had the transcript not been used. Also, although the parties did not stipulate to the accuracy of the transcript, the trial court “check[ed] the transcript against the tape, and found the transcript accurate.” He was convicted of first-degree premeditated murder and mutilation of a dead body. He confessed that he “strangled his girlfriend to death, and then dismembered her body.” He confessed in an interview with police and in a written confession. On appeal, he argued that the trial court erred when it provided the jury with a transcript of his police interview because “(1) the transcript contained unspecified errors that caused the jury to convict defendant for first-degree, instead of second-degree, murder; (2) the parties did not stipulate to the accuracy of the transcript.” The essence of his claim on appeal was “the trial court’s decision to permit the jury to see a transcript of his police interview caused him prejudice, because it convinced the jury to convict him of first-degree murder, as opposed to second-degree murder.” The court held that this claim, which was unsupported by law or evidence, had three flaws—(1) defendant did “not explain how the transcript’s alleged inaccuracies are related to his conviction for first-degree murder; (2) even assuming the transcript has inaccuracies that are related to his conviction for first-degree murder, there was overwhelming evidence, wholly unrelated to the transcript, that defendant committed first-degree murder; and (3) the trial court properly admitted the transcript under the procedures mandated by Michigan case law.” Affirmed.
Sufficiency of the evidence to support the defendant’s assault with intent to do great bodily harm (AWIGBH) and felony-firearm convictions; People v. Brown; People v. Moore; Aiding & abetting; People v. Robinson; Motive; People v. Unger; Ineffective assistance of counsel; People v. Lockett; People v. Grant; Failure to pursue a meritless position; People v. Mitchell; Matters of trial strategy; People v. Dunigan; People v. Payne; Failure to object to the scoring of OVs 4 & 13; People v. Hicks; People v. Williams; People v. McDonald; People v. Gibbs; People v. Bonilla-Machado; Failure to raise a futile objection; People v. Crews; Scoring of OV 14; People v. Rhodes (On Remand); Effect of a scoring error that does not alter the guidelines range; People v. Francisco
Holding that there was sufficient evidence to support the defendant’s AWIGBH and felony-firearm convictions under an aiding and abetting theory, the court affirmed her convictions. It also rejected her ineffective assistance of counsel claims, and upheld her sentences, concluding that any error in the scoring of OV 14 could not have altered the applicable guidelines range. It was undisputed that defendant’s passenger assaulted the victim (H) by shooting her. The evidence showed that defendant had a motive to harm H. She was extremely angry with her ex-boyfriend (W), who was H’s cousin and lived at H’s home. She “was so angry that she tried to hit [W] with her car and also tried to break out the windows of [H’s] home.” Even after W left, and the police were called, “defendant came back to the home, challenging [H] to a fight and threatening her.” It was undisputed that she “left in her car, only to return in it a short time later along with a man who carried a powerful ‘long gun’ capable of shooting ammunition that could pass through the home and its contents unabated. She threw a toy truck at the home, then ran back to her car.” When H came outside, “defendant’s passenger exited the vehicle and opened fire, shooting [H].” The court concluded that while circumstantial, there was sufficient evidence to support defendant’s conviction of AWIGBH under an aiding and abetting theory. “By taking affirmative steps to lure [H] outside so she could be shot, defendant performed acts or gave encouragement that assisted the commission of the assault, and she did so either intending to aid the assault or knowing her passenger intended to assault [H].” The trial court also reasonably inferred from the circumstantial evidence that defendant intentionally lured H outside, knowing her passenger intended to assault H with a high-powered firearm. By doing so, she aided and abetted a felony-firearm violation.
Admissibility of evidence; Relevance; MRE 401 & 402; People v. Powell; Lay witness opinion testimony; MRE 701; People v. Heft; People v. Bragdon; People v. Musser; Police officer testimony; People v. Oliver; "Hearsay"; MRE 801(c); The "state-of-mind" exception; MRE 803(3); People v. Moorer; Admission of a party opponent; MRE 801(d)(2); Whether “sleep talk” testimony violated the defendant’s Fifth Amendment right against self-incrimination; People v. Henry (After Remand); Ineffective assistance of counsel; Failure to make a meritless objection; People v. Ericksen; Prosecutorial misconduct; Principle that the prosecution may not inject issues into a trial that are broader than a defendant’s guilt or innocence; People v. Abraham; Principle that the prosecution may not appeal to the jurors’ sense of civic duty or attempt to persuade jurors based on the prestige of the office; People v. Cowell; Presumption that jurors follow their instructions; People v. Petri
The court held that the trial court did not err by excluding evidence of drug activity in the defendant’s neighborhood and that the police officers who testified did not opine as to his guilt or innocence. It also held that although the trial court erred by allowing a witness to testify as to the victim’s hearsay statements made to her two days before her death, the error was harmless. Finally, it held that the prosecution’s improper comments did not deny defendant a fair trial. He was convicted of first-degree premeditated murder, felon in possession, and felony-firearm for shooting and killing his live-in partner. On appeal, the court rejected his argument that the trial court abused its discretion by excluding evidence of drug activities in his neighborhood. “[T]here was no evidence suggesting that the shooting was related to any drug activity, or that either defendant or [the victim] had ever been threatened by, harassed, or were involved with any drug dealers. Without any such evidence, the mere existence of drug trafficking in the neighborhood did not have any tendency to explain defendant’s possession of a gun on the night of the offense, and did not make defendant’s kidnapping explanation more probable.” It also rejected his argument that three police officers were erroneously permitted to offer their opinion of defendant’s guilt. “None of the officers offered an opinion that he or she believed defendant was guilty." Their testimony related to matters "that, although probative of defendant’s guilt, did not involve an opinion regarding the ultimate issue" of his guilt. It further found that testimony about “sleep talk” statements defendant allegedly made while in jail were admissible as an admission of a party opponent. Finally, the court found that the prosecution’s improper statements did not deny defendant a fair trial, noting that it “did not offer the [improper] references as a reason for finding defendant guilty and there was overwhelming evidence of defendant’s guilt. In addition, the trial court instructed the jury that it was to ‘decide the case based upon the facts and the evidence and the law given to you by the Court and not your sympathies or prejudices,’ and that the lawyers’ statements and comments are not evidence.” The court also rejected the arguments made in defendant’s Standard IV brief. Affirmed.
Sufficiency of the evidence; People v. Meshell; People v. Bulls; Circumstantial evidence; People v. Carines; People v. Allen; Credibility; People v. Eisen; People v. Kanaan; Felonious assault; People v. Bosca; People v. Avant; Felon in possession; People v. Dupree; Felony-firearm; Actual & constructive possession; People v. Burgenmeyer; People v. Wolfe; People v. Harper; Possession with intent to deliver marijuana; People v. Williams; Ineffective assistance of counsel; People v. Trakhtenberg; People v. Heft; Presumption of effective assistance; People v. Solmonson; Trial strategy; People v. Sabin; People v. Unger; Failure to raise meritless or futile objections; People v. Moorer; Presumption that advising a defendant not to testify is sound trial strategy; People v. Tommolino; Principle that the ultimate decision whether to testify at trial remains with the defendant; People v. Bonilla-Machado; Evidentiary hearing; People v. McMillan
The court held that there was sufficient evidence to support the defendant’s convictions of felonious assault, felon in possession, felony-firearm, and possession with intent to deliver or manufacture less than five kilograms of marijuana. It also held that he was not denied the effective assistance of counsel, and that the trial court did not abuse its discretion by denying his motion for a Ginther hearing. The court rejected his contention that insufficient evidence was presented to convict him of felonious assault, felon in possession, and felony-firearm because he did not possess a gun. As to his felonious assault conviction, it found that “sufficient evidence was presented to establish defendant assaulted [the officer] with a .357 magnum revolver, a dangerous weapon.” As to his felon in possession and felony-firearm convictions, it noted that the parties stipulated that defendant had been previously convicted of a felony and “a rational trier of fact could find that defendant was in possession of a firearm and that” he was a convicted felon. Thus, sufficient evidence was presented to convict him of felon in possession, and because “sufficient evidence was presented to establish that defendant possessed a firearm during the commission of felonious assault and felon in possession, sufficient evidence was also presented to convict” him of felony-firearm. It also rejected his argument that insufficient evidence was presented to convict him of possession with intent to deliver or manufacture less than five kilograms of marijuana because no evidence was presented that he actually possessed the marijuana. “A rational trier of fact could find there was a sufficient nexus between the marijuana and defendant to conclude that defendant had constructive possession of the marijuana.” As to his argument that he was denied the effective assistance of counsel, it noted that defense counsel’s “decision not to pursue fingerprint analysis of the gun” was sound trial strategy because “the analysis could have potentially revealed that defendant’s fingerprints were, in fact, the only prints on the gun and marijuana, which would have certainly been more damaging to defendant’s case.” Next, defendant “failed to demonstrate that counsel’s performance fell below an objective standard of reasonableness for advising and convincing” him not to testify at trial. Further, he never established that a motion to suppress the gun would have been successful. Finally, the trial court did not abuse its discretion when it denied his motion for a Ginther hearing, as he failed to show “evidence of a factual dispute which might, if further developed,” possibly be resolved in his favor. Affirmed.
The court held that the defendant was not denied the effective assistance of counsel. It also held that his convictions were not against the great weight of the evidence and that there was sufficient evidence to support his convictions. He was convicted of felon in possession, felony-firearm, and CCW. On appeal, the court rejected his argument that his trial counsel was ineffective for failing to move for an evidentiary hearing on the validity of the initial police stop, noting that “even if counsel had successfully challenged the stop” the firearm would not have been suppressed. “In the absence of the ability to suppress the firearm, defendant cannot establish a reasonable probability that, if counsel had challenged the stop, the outcome of the trial would have been different.” It also rejected his claim that counsel was ineffective for failing to request an adjournment for fingerprint testing upon learning that the gun recovered from the scene was not tested for prints. It found that “counsel employed a reasonable trial strategy in citing the absence of fingerprint evidence in support of her argument that the prosecution had not sufficiently tied defendant to the firearm.” It further rejected his argument that counsel was ineffective for failing to call the prosecutor as a witness to determine whether the prosecutor had informed the police witnesses about the incorrect street name on the morning of trial, noting that his suspicion was unsupported and contradicted by the record. He also failed to show a reasonable probability that, but for counsel’s alleged failure, the outcome of the trial would have been different. The court next rejected his claim that his convictions were against the great weight of the evidence, finding that, to the extent there was testimony contradicting one witness’s version of events, “it did not deprive his testimony of all probative value or render it contradictory to indisputable physical facts or realities.” It also rejected his contention that the evidence was insufficient to demonstrate that he constructively possessed the recovered handgun, noting that the testimony that he “threw an object later determined to be a handgun into the bushes was sufficient to support a finding, beyond a reasonable doubt, that defendant possessed a firearm.” Finally, his convictions and sentences for felon-in possession and felony-firearm did not violate double jeopardy, as the Supreme Court expressly rejected this argument in Calloway. Affirmed.
Sentencing; “Law of the case”; Duncan v. Michigan; Kasben v. Hoffman; Scoring of OV 1; People v. Sargent; Distinguishing People v. Ball, People v. Lutz, & People v. Gary; Departure from the guidelines range; Scoring of OV 2; People v. Young; MCL 777.32(1)(b); “Incendiary device” defined (MCL 777.32(3)(d)); Applicability of OV 2 to crimes against property; MCL 777.22(2); Statutory interpretation; People v. Bemer; People v. McGraw; Principle that arson is “an inherently dangerous felony”; People v. Till
Holding that the trial court violated the law of the case as to the scoring of OV 1 and its departure from the guidelines, the court vacated the defendant’s sentence and again remanded for resentencing. In an issue not decided in the prior appeal, the court also agreed with the prosecution that the trial court erred in refusing to score OV 2 at 15 points. Defendant pleaded nolo contendere to arson of a dwelling house, arson of insured property, and arson of personal property valued between $1,000 and $20,000. In a prior opinion (Naccarato I), the court remanded for resentencing. On remand, the trial court sentenced him to the same sentences originally imposed – three years’ probation for all convictions, plus restitution. The court held in Naccarato I that “‘[b]ecause defendant used an incendiary device and there were victims as a result of the fire he started, 20 points should have been scored for OV 1’ instead of zero points.” Yet the trial court again assessed OV 1 at zero. No intervening change of law justified its decision to ignore the court’s “explicit instructions to assess OV 1 at 20 points.” Cases “involving the delivery of narcotics or ingredients for their manufacture, are plainly distinguishable from” this case. “The intentional use of gasoline to set fire to an apartment building in a populated area is quite different from the delivery of narcotics to a person who willingly ingests them; in this case, the tenants of defendant’s building, firefighters, and bystanders had no choice but to be exposed to the fire defendant set and the risk it posed.” Further, by resentencing him “outside of the guidelines range without explaining why the particular departure was more proportionate than a sentence” in the guidelines range of 30 to 50 months, “the trial court again disregarded the law of the case established in Naccarato I.” It also erred in its application of the law as to OV 2. “Defendant stipulated to the factual basis for his nolo contendere pleas,” including that he “possessed and used gasoline as an incendiary device” in his arson crimes.
Whether the parties’ labor dispute was a “major” or a “minor” dispute under the Railway Labor Act (RLA); 45 USC §§ 151a, 152, & 156; Elgin, J. & E. Ry. Co. v. Burley; Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n; Obligation to maintain the status quo; United Transp. Union v. Cuyahoga Valley Ry. Co.; Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union; Illinois Cent. R.R. Co. v. Brotherhood of Locomotive Eng’rs (7th Cir.); Brotherhood of Locomotive Engineers & Trainmen (BLET)
In this amended opinion (see e-Journal # 59738 in the 4/29/15 edition for the original opinion), the court held that the district court erred by finding that the economic dispute between plaintiff-Wheeling & Lake Erie Railway Company (the Railroad) and defendant-BLET was a “minor dispute” under the RLA. Thus, it reversed that holding and vacated the portion of the preliminary injunction granting relief to the Railroad on the parties’ dispute over using supervisors as conductors, and remanded. The primary issue was the Railroad’s proposal to eliminate the “crew consist” provision, a portion of the scope rule of the Trainmen Agreement that required the railroad to assign a union conductor to all freight trains. While the dispute was in mediation, BLET members began a strike against the Railroad, claiming that the Railroad violated the mediation “status quo” by continuing to operate trains without union conductors. The Railroad characterized the dispute as “minor,” and successfully filed for a preliminary injunction to end the strike. The court reversed the district court’s finding that the parties were engaged in a minor dispute, instead concluding that they were engaged in a “major” dispute under the RLA. “The scope rule of the Trainmen Agreement expressly requires the Railroad to assign a union conductor to every train. . . . To adopt the Railroad’s position would undercut the clear language of the crew consist rule—which was expressly bargained by the parties years ago—without requiring the Railroad to complete the Section 6 negotiations . . . to remove the crew consist rule from the Trainmen Agreement. . . . Disputes about the making of collective bargaining agreements are major disputes.” Because the dispute was “major” the “Railroad was obligated to maintain the working conditions the Trainmen Agreement required—the assignment of at least one contract conductor to each train—until the parties concluded the RLA’s major dispute process. Instead, the Railroad implemented the changes it sought and violated the status quo.”
The trial court’s determination that there was no change to the ECE was not against the great weight of the evidence and did not constitute an abuse of discretion. However, it erred when it failed to consider the child’s (TW) reasonable preferences. The case arose from a dispute between the parents as to TW’s elementary school. The plaintiff-mother argued that the trial court’s findings of fact as to whether the change in schools and modification in parenting time would change the ECE were against the great weight of the evidence, the trial court erred when it analyzed the best interest factors under a preponderance of the evidence standard, and the trial court’s decision to change the ECE was an abuse of discretion. The court disagreed. The trial court properly ruled that there was an ECE with both parents. It properly determined that TW “looks to both parents for guidance, discipline, the necessities of life, and parental comfort.” Plaintiff testified that TW “has a strong relationship with defendant and a very strong relationship with” her. There was also testimony that both parents provide TW with guidance, and that the defendant-father “provides for TW and paid child support.” He testified that TW “naturally looks to him for the necessities of life and parental comfort.” He also believed that TW “looks to plaintiff for guidance and discipline.” Defendant disciplines TW by “taking electronics away, by taking his allowance away, and by giving him more chores to do.” He believed that he had a very strong bond with TW and that his bond was the same as plaintiff’s bond with TW. He believed that plaintiff has TW’s best interests at heart. This evidence was sufficient for the trial court to find that there was an ECE with both parents because TW “looks to both parents for guidance, discipline, the necessities of life, and parental comfort.” The trial court did not abuse its discretion when it ruled that there was no change to the ECE, and its decision was not against the great weight of the evidence. It also did not err in applying the preponderance of the evidence standard as to the best-interest determination. However, “TW was old enough to express a preference on the issue” of his elementary school since he was nine years old. While he had not attended either school district, “TW’s preferences on the issue would not have been arbitrary or inherently indefensible solely because he has not attended the schools.” Vacated and remanded.