Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sentencing; People v. Lockridge; People v. Odom; Scoring of OVs & PRVs; People v. McFarlane; People v. Earl; People v. Kimble; People v. Hornsby; Scoring of OV 4; Psychological injury to a victim; MCL 777.34(1) & (2); People v. Lampe; People v. Calloway; People v. Armstrong; People v. Williams; Scoring of OV 10; Exploitation of a vulnerable victim; MCL 777.40(1)(b); People v. Cannon; People v. Johnson; “Vulnerability”; MCL 777.40(3)(c); People v. Huston; “Domestic relationship”; People v. Jamison; Reasonableness & proportionality; Principle that the appellate court must affirm a within-guidelines sentence absent a scoring error; People v. Schrauben; People v. Francisco; Ineffective assistance of counsel; Failure to make a futile objection; People v. Thomas; People v. Ericksen
The court held that the trial court did not err in scoring OVs 4 and 10, and that defendant’s sentences were not disproportionate. He was convicted of three counts of CSC I for sexually assaulting two young girls (ages nine and five at the time of the assaults) at the home where he and his mother were living. The trial court sentenced him as a third-offense habitual offender to concurrent prison terms of 30 to 60 years for each conviction. On appeal, the court rejected his argument that the trial court should have assessed zero points for OVs 4 and 10, or, in the alternative, that his counsel was ineffective for failing to object to the trial court’s assessment of 10 points for each OV. As to OV 4, it noted that the record supported the conclusion that, as a result of his assaults, the victims “suffered severe psychological injury requiring professional treatment.” As to OV 10, it noted that the record supported the conclusion that, in sexually assaulting the victims, he “exploited their youthful interest in games,” that their “youth and corresponding small stature increased their vulnerability to defendant’s exercise of physical control,” and that he resided with them and “took advantage of that fact to sexually assault them when he was left alone with them.” Because there was no error in scoring the OVs, “any objection made by defense counsel would have been futile.” The court also rejected defendant’s claim that he was entitled to resentencing because his sentences, although within the recommended guidelines range, were disproportionate. Because the trial court did not err in its assessment of 10 points for OVs 4 and 10, he failed to establish that it “relied on inaccurate information in determining his sentences.” Because he failed to overcome the “presumption that his sentences were proportional, he is not entitled to resentencing.” Affirmed.
Evidence of drug debt; Hearsay; MRE 801(c); MRE 802; MRE 804(b)(3); Sentencing; Scoring of OV 3; MCL 777.33(1)(c); Habitual offender notice; MCL 769.13(1) & (2); People v. Nix; Ineffective assistance of counsel; People v. Ackley; People v. Hoag; Trial strategy; People v. Dixon; Failing to move for severance; MCR 6.121; People v. Hana; Expert testimony on identification; Failure to present alibi testimony; Newly discovered evidence; People v. Rao; People v. Johnson; Extraneous influences on jury; People v. Fletcher; People v. Budzyn; Alleged violation of Brady v. Maryland; People v. Dimambro; People v. Chenault; Weight of the evidence; People v. Lemmon; Assault with intent to do great bodily harm less than murder (AWIGBH); Carrying a dangerous weapon with unlawful intent (CDWUI)
The court declined to remand for further factual development as to evidence of the victim’s drug debt, and found that no error was apparent as to the scoring of OV 3 for defendant-Castillo. Further, Castillo’s argument as to the habitual offender notice provided no basis for reversal. The court also rejected defendant-Conley’s argument that a witness’s affidavit and evidentiary hearing testimony constituted newly discovered evidence warranting a new trial, and both defendants’ ineffective assistance of counsel claims. They were convicted of AWIGBH, conspiracy to commit AWIGBH, CDWUI, and felony-firearm. The trial court applied a fourth-offense habitual offender enhancement to their sentences. The convictions arose from an attack on G, who had been dating Castillo’s mother, F. The prosecutor presented evidence that defendants beat G “about the head with blunt objects, and that Conley held a gun obtained from Castillo to [G’s] head and threatened his life.” They both argued, among other things, that the trial court erred by prohibiting the defense from exploring whether G owed money to drug dealers. They argued that they were unfairly deprived of the defense that drug dealers might have been G’s attackers. However, G said in response to a question from Castillo’s defense counsel that he did not owe people money for drugs. So the issue was raised during the trial. And defendants pointed to no instance during which they presented the trial court with evidence that G did. Also, a key part of F’s affidavit statement involved “people allegedly claiming—i.e., telling her—that [G] owed them money for drugs. In other words,” it involved hearsay. There was “no indication (1) that the supposed drug dealers were unavailable as witnesses, or (2) that [F’s] proposed testimony about their alleged statements that [G] owed them money was supported by ‘corroborating circumstances [that] clearly indicate the trustworthiness of the statement.’” Affirmed.
Sentencing; Judicial fact-finding; People v. Lockridge; People v. Biddles; Scoring of OV 5; Serious psychological injury to the victim’s family; MCL 777.35(1)(a); Crosby remand; United States v. Crosby (2d Cir.); Scope of remand; International Bus. Machs. Corp. v. Department of Treasury; People v. Jones; Principle that the appellate court must affirm a within-guidelines sentence; MCL 769.34(10); People v. Garza; People v. Anthony; Constitutional appellate challenges; People v. Powell; People v. Conley; Proportionality; People v. Bowling; People v. Milbourn; Assault with intent to commit murder (AWIM)
Holding that there were no errors in resentencing, the court affirmed defendant’s sentence. He was convicted of second-degree murder and AWIM for his involvement in the shooting of two security guards outside a nightclub. In a prior appeal, the court affirmed his convictions, but remanded for resentencing. On resentencing, the trial court imposed concurrent terms of 37½ to 75 years. In the present appeal, the court noted that, “at the resentencing hearing, the trial court discussed rehabilitation, noting that defendant’s criminal record spoke for itself.” He had 9 prior felony convictions and 13 prior misdemeanor convictions. The trial court “also cited deterrence as a basis for the sentence, noting that defendant, had he been a real friend to” his codefendant, “would not have allowed the situation to develop as it did.” There was evidence that he assisted “in setting up the shootings, acting in a manner that allowed [his codefendant] to get the ‘drop’ on the security guards. Considering defendant’s role in the killing of the security guard and given [his] abominable criminal record, the sentences . . . were proportional. And defendant certainly did not overcome the presumption of proportionality as he did not present any unusual circumstances that would have rendered the presumptively proportionate sentences disproportionate.”
Forfeiture; 21 USC § 853(a)(1)-(2); Substitution of other property; § 853(p)(1)-(2); Whether § 853 authorizes money judgments; United States v. Hampton; Honeycutt v. United States; “Proceeds”; United States v. Logan (Unpub. 6th Cir.); United States v. Bucci (1st Cir.); United States v. Heilman (3d Cir.); United States v. Olguin (5th Cir.); “Obtained”; United States v. Sexton; Sixth Amendment challenge; Principle that there is no right to a jury trial in criminal forfeiture proceedings; Libretti v. United States; United States v. McAuliffe; United States v. Hall; Apprendi v. New Jersey; Rodriguez de Quijas v. Shearson/Am. Express, Inc.; Effect of Southern Union Co. v. United States; United States v. Churn; Eighth Amendment challenge; United States v. Bajakajian
Concluding that Honeycutt did not displace Hampton, the court rejected defendant-Bradley’s claim that § 853 does not authorize money judgments such as the one entered here. It also reiterated that “‘proceeds’ in § 853(a) means gross receipts[,]” and thus, it was beside the point whether he kept the money or it was used to pay co-conspirators. The court found no clear error in the district court’s factual findings. Further, it rejected his Sixth Amendment challenge, determining that Libretti’s rejection of a jury right was not dicta and that Apprendi did not overrule Libretti. Finally, his claim that the forfeiture order violated the Eighth Amendment likewise failed. Thus, the court affirmed the order requiring Bradley to forfeit a million dollars, two cash payments, and four properties after he pled guilty to drug trafficking and money laundering charges. He contended that “Honeycutt said § 853 does not expand forfeiture beyond its traditional limits, and forfeiture did not traditionally include money judgments. But Honeycutt acknowledged that § 853 did expand traditional forfeiture in some ways. Forfeiture traditionally proceeded directly against the property rather than the property owner, but § 853 ‘adopt[ed] an in personam aspect to criminal forfeiture.’” The court also noted that Honeycutt “addressed the permissible scope of a money judgment under § 853.” Bradley next asserted that “proceeds” does not include money a defendant received from the offense but paid to other co-conspirators. However, “§ 853(a) holds defendants responsible for the ‘proceeds’ they ‘obtained’ through the conspiracy, no matter their eventual destination.” In an unpublished case, Logan, the court held that proceeds as used in this provision means gross receipts. “§ 853(a) refers to ‘profits or other proceeds,’ indicating ‘proceeds’ means more than just ‘profits.’ It means the gross receipts from the criminal activity. Other circuits agree.” The word obtained pointed in the same direction. As to his contention that the district court “had no business finding facts” in the criminal forfeiture proceeding, the court and the other circuits have ruled that the key statement in Libretti is a holding. Further, the court found in Hall that “Libretti survived Apprendi.”
Limitation on cross-examination; FRE 412; United States v. Willoughby; United States v. Cardinal; Harmlessness; United States v. Davis; United States v. Kilpatrick; United States v. Chavez; United States v. Freeman; Kotteakos v. United States; United States v. Lane; FRE 404(b)(2); Res gestae evidence; United States v. Churn; The enhanced penalties of 18 USC § 1591(b)(1); Jury instructions; United States v. Geisen; Whether the statute contains a scienter requirement as to the victim’s age; Presumption in favor of scienter; Rehaif v. United States; Elonis v. United States; United States v. Dado; Certain types of sex offenses against minors traditionally excepted from the background principle favoring scienter; United States v. X-Citement Video, Inc.; United States v. Thompson (2d Cir.); Constructive amendment of the indictment; United States v. Ford; United States v. Kuehne; “Useless averments”; United States v. Hathaway; Motions for a new trial & to dismiss the indictment under the void-for-vagueness doctrine; United States v. National Dairy Prods. Corp.; United States v. Krumrei
The court held that § 1591(b)(1)’s enhanced penalties do not require scienter as to the victim’s age and thus, the jury instructions accurately reflected the law. It also rejected defendant’s claim that the instructions and verdict form constructively amended the indictment, and found that any error in limiting his cross-examination of the victim (A) was harmless. He forfeited a dispositive component of his challenge to evidence admitted under FRE 404(b)(2). Finally, the court upheld the district court’s denial of his motions for a new trial and to dismiss the indictment on void-for-vagueness grounds. He was convicted of sex trafficking a child and of conspiracy to do the same. The court agreed with him that the district court erred in determining that FRE 412 prohibited him from cross-examining A about inconsistent statements she had allegedly made as to prior sexual assaults, where he sought to impeach her “credibility by showing that she had been untruthful regarding past allegations of sexual assault.” But the court held that the error was harmless under either the Kilpatrick or the Chavez standard. It found the corroborative evidence here “strikingly similar” to and “just as overwhelming” as that in Willoughby, which also involved an erroneous interpretation of FRE 412 and a defendant charged under § 1591(a) and (b). Defendant further argued that the instructions were flawed because they did not instruct the jury to find scienter. While he conceded that § 1591(b)(1) “does not ‘specifically reference’ a scienter requirement” as to the victim’s age, he asserted that the “presumption in favor of scienter” required the court to read such a requirement into the statute. It disagreed for two reasons. First, whether the victim was under the age of 14 is not a “‘crucial element’ separating innocent from wrongful conduct” such that a scienter provision must attach. Section 1591(b)(1) is simply a “penalty provision[.]” Second, the court noted that “certain types of sex offenses against minors have been ‘traditionally excepted from the background principle favoring scienter.’” It agreed with the Second Circuit Court of Appeals, which in Thompson rejected the very same argument defendant made here. Affirmed.
Divorce; Motion to set aside the judgment of divorce based on fraud; Heugel v. Heugel; Rory v. Continental Ins. Co.; Myland v. Myland; Auto Owners Ins. Co. v. Seils; “Exclude”; Krohn v. Home-Owners Ins. Co.; Klapp v. United Ins. Group Agency, Inc.; MCR 2.612(C); Kiefer v. Kiefer; Timeliness under MCR 2.612(C)(1)(f); “Reasonable time”; MCR 2.612(C)(2)
The court held that defendant-ex-husband’s motion to set aside the judgment of divorce based on plaintiff-ex-wife’s fraud was expressly permitted by the divorce settlement agreement. Thus, it vacated the trial court’s order denying his motion to set aside the judgment and its incorporated divorce settlement agreement and remanded to the trial court to decide whether it should exercise its equitable powers to find that his motion was truthful and accurate. The case arose “out of defendant’s allegations that plaintiff committed fraud by stealing $250,000 from him while they were married, using most of that money to buy a house with her boyfriend, [C], while she was still married to defendant, and then failing to disclose any of this information during the divorce proceedings. Defendant learned about plaintiff’s alleged actions in” 2017 when he deposed C in an unrelated case. Four months after learning about plaintiff’s alleged fraud, defendant filed a motion to set aside the judgment of divorce based on plaintiff’s fraud. The court held that even though the divorce settlement agreement permitted him “to bring his fraud claim, his motion to set aside the judgment of divorce was nevertheless required to be timely for the trial court to consider it.” His motion to set aside the judgment of divorce was only timely if the requirements of subrule (1)(f) were met. The trial court found that his motion “was untimely under MCR 2.612(C)(1)(f) because it determined that the mutual release clause prevented defendant from bringing his fraud claim.” However, this conclusion was erroneous.
Motion for a new trial; Burden on a party wishing to have a judgment set aside due to an erroneous ruling; Shinseki v. Sanders; Beck v. Haik; Kotteakos v. United States; Griffin v. Finkbeiner; Tamraz v. Lincoln Elec. Co.; Mike’s Train House, Inc. v. Lionel, LLC; FRE 103(a); Fed.R.Civ.P. 61; 28 USC § 2111; Expert testimony; FRE 702
The court concluded that to the extent Beck and other cases endorsed the Kotteakos standard as the rule governing harmless-error analysis in civil cases, this rule did not survive Shinseki, which held that “in a civil case, the tie goes to the verdict.” Thus, plaintiffs had to show that their substantial rights were affected by errors in the district court’s rulings, and the court held that they failed to do so. Thus, it affirmed the judgment for defendant-bus company. Plaintiffs’ son was hit by a vehicle “while riding his bicycle to school after he missed his school bus.” The jury found defendant negligent but also that plaintiffs were over 50% responsible for the accident. Under Tennessee law, this barred them from recovering. They unsuccessfully moved for a new trial. They challenged two evidentiary rulings by the district court – the exclusion of (1) defendant’s employee handbook or testimony about its internal policies and procedures and (2) testimony by plaintiffs’ expert witness. The court first considered who bore the burden of showing harm. Because this was a civil case, under Shinseki, plaintiffs, as “the party that ‘seeks to have a judgment set aside because of an erroneous ruling[,] carr[y] the burden of showing that prejudice resulted.’” Before Shinseki, the court in Beck affirmed the Kotteakos standard (used in criminal cases to assess the harm caused by non-constitutional trial errors) as the applicable rule in civil cases. But the Supreme Court in Shinseki “expressly rejected the idea of placing the burden of proving harmlessness on the appellee in a civil case, announcing that ‘we have placed such a burden on the appellee only when the matter underlying review was criminal.’” The court held that plaintiffs did not show “prejudice from the policies’ exclusion” or from the exclusion of their expert’s testimony about them. Relying on state law, they contended that his testimony would have helped them establish defendant’s greater comparative fault. But they did not offer his testimony for this purpose, and he “admitted that he did not consider any of the other parties’ roles in the accident, so he could not have opined directly on the comparative fault question.”
Reckless misconduct standard of care for coparticipants in a recreational activity; Ritchie-Gamester v. Berkley; Violation of an athletic competition rule; Behar v. Fox; Determining whether a risk is inherent in an activity; Bertin v. Mann
Holding that there was no genuine issue of material fact as to whether the defendant-teenager’s (TJ) conduct constituted reckless misconduct, the court affirmed summary disposition for him and his parents (also defendants). During a youth soccer game, plaintiff (then 12 years old) was playing goalie when he “collided knee to knee” with TJ (then 13 years old), who was playing forward on the other team. Due to the impact, “an ambulance was called and plaintiff was taken off the field. All of the witnesses, including the referees, agreed TJ and plaintiff went for the ball at the same time and collided in the air. The referee officiating the game testified in a deposition that under the rules of the game no foul had occurred because of the collision, and TJ was not penalized with a ‘red card’ or ‘yellow card.’” The court noted that “the risk of collision was an inherent, foreseeable risk of the game of soccer, and plaintiff consented to that risk. Plaintiff’s soccer coach and director of coaching testified that collisions are common in soccer, and that this type of collision in particular, between an attacking player and a goalie, also is common.” The court concluded that accepting plaintiff’s father’s version of events, “that TJ collided with plaintiff one to two seconds after plaintiff landed, this evidence still does not support a finding that TJ was ‘willing’ to injure plaintiff.” Considering the referee’s testimony, the court determined that the “factual circumstances of this case do not amount to recklessness by TJ. Rather, at most, TJ’s conduct could be considered to be a technical foul or rule violation.” The only evidence of recklessness by TJ was plaintiff’s father’s deposition testimony, which the court found insufficient to create a genuine issue of material fact. It was clear that his “subjective assessment of the events amounts to a potential soccer rule violation. His assessment has no relevance to an objective analysis of reckless conduct required by the legal standard set forth in Ritchie-Gamester. As such, the evidence presented in this case does not suggest factual questions for a jury upon which reasonable minds might differ.”
Termination under § 19b(3)(c)(i); In re Williams; Children’s best interests; In re Olive/Metts Minors; In re White; Effect of relative placement; In re Mason; Alleged violation of the U.S. Constitution’s Establishment Clause by ordering a respondent to participate in Narcotics Anonymous (NA); Weishuhn v. Catholic Diocese of Lansing; American Legion v. American Humanist Ass’n; Lemon v. Kurtzman; Scalise v. Boy Scouts of Am.
In these consolidated appeals, the court held that the trial court properly terminated respondent-father’s parental rights under § (c)(i), and that doing so was in the children’s best interests. It also rejected respondent-mother’s claim that the trial court violated her constitutional rights under the Establishment Clause by ordering her to participate in NA. Thus, the court affirmed the termination order as to both respondents. It noted that the trial court gave the father “considerably more than the 182-day statutory period to rectify the conditions that originally led to adjudication. More than two years had elapsed.” Yet at the termination hearing, he admitted “he continued to abuse alcohol and other drugs and that, under the circumstances, he would need to ‘just start all over again, start digging [his] way out of the hole.’” The court agreed with the trial court that it appeared unlikely change would occur in a reasonable time. In the months before the termination hearing, he tested positive for meth, “attempted suicide while extremely intoxicated, and was arrested for his third domestic violence offense.” As to the children’s best interests, while they were bonded with him, the trial court did not clearly err in concluding that their “need for permanency, stability, and finality ultimately weighed in favor of termination.” Further, the termination of the “mother’s parental rights did not implicate her constitutional rights under the Establishment Clause. To the extent that the DHHS encouraged or recommended, or the trial court ordered, that [she] participate exclusively in NA” instead of another program, there was no suggestion that her “parental rights were conditioned on participation in NA, the DHHS or the trial court had a non-secular purpose in recommending such participation, the primary effect of participation in NA was the advancement of religion” instead of overcoming her substance abuse issues, “or the recommendation was akin to an endorsement of religion.” She also could not show the prejudice required to establish plain error.
Termination under §§ 19b(3)(c)(i), (g) & (j); Whether the trial court made reasonable efforts to accommodate respondent’s depression, attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder (PTSD), & bipolar disorder pursuant to the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.); In re Hicks/Brown; In re Fried; Whether respondent benefitted from the services offered; In re TK; A parent’s commensurate responsibility to participate in the services offered; In re Frey
Holding that the DHHS made reasonable reunification efforts, the court affirmed termination of respondent-father’s parental rights. His parental rights were terminated based primarily on his violent behavior. On appeal, the court rejected his argument that the DHHS violated the ADA by failing to make reasonable efforts to accommodate his depression, ADHD, PTSD, and bipolar disorder. It noted that despite various referrals and services the DHHS provided, “respondent admitted that he simply did not care and did not take it upon himself to cooperate in these services.” Moreover, he failed to schedule a psychological evaluation, which would have allowed the DHHS to determine “what, if any, accommodations or additional services were necessary.” His attempt to establish that he “would have fared better with a psychological evaluation is not an identification of services that would have accommodated his special needs more; it is simply an identification of a service that was provided from the outset.” And he failed to identify “what services the DHHS should have provided to accommodate his specific needs.”
Termination under § 19b(3)(c)(i); In re Mason; Distinguishing In re Baham; Principle that only one statutory ground has to be established; In re Ellis; Child’s best interests; In re White; In re Moss Minors
Holding that the trial court did not err in finding that § (c)(i) supported termination and it was in the child’s (A) best interests, the court affirmed the order terminating respondent-father’s parental rights. Respondent was incarcerated after he was pulled over (with A in the vehicle) and police found meth residue in the vehicle, as well a gun, ammunition, and brass knuckles within A’s reach in the backseat. Evidence indicated that A “was diagnosed with PTSD and had other psychological issues as a result of neglect and violence she had witnessed.” During a therapy visit, she “played out scenes of arrests and domestic violence between her parents.” She did not want to talk about respondent, or want his letters read to her. Her “therapist testified that the child needed permanence and stability to resolve her behavioral issues.” The DHHS’s witnesses testified that respondent needed to take a “course to develop the parenting skills necessary to reunite with the child, and that it would take between six and nine months, at best, for him to complete” it. A’s therapist testified that it would be harmful for the child to have to wait that long while respondent tried to remedy his issues. Because A “had a significant need for permanence and stability, she had serious issues with interacting with” him, and he required “six to nine months to improve his parenting skills, the trial court did not clearly err” in finding that there was no reasonable likelihood the conditions leading to adjudication would be resolved in a reasonable time, considering A’s age and needs. The court noted that, unlike in Baham, respondent’s parental visitation was suspended, and while he intended to live with his father after he was released and “was interested in having his mother involved with [A], there was not the same level of family support” here. As to A’s best interests, she had serious issues with respondent and “negative emotional reactions whenever he was mentioned to her.” She needed permanence and stability, and her “foster family met her needs and was willing to adopt her.”