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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Prosecutorial error based on uncorrected false testimony; People v Smith; Voluntary-manslaughter instruction (heat of passion, adequate provocation, cooling time); People v Yeager; Self-defense imminence; MCL 780.972(1)(a); Ineffective assistance of counsel
The court held that there was no due-process violation, no instructional error, and no ineffective assistance. Defendant was convicted of first-degree murder, FIP, and felony-firearm after he chased the victim (the ex-boyfriend of his girlfriend, S) from an apartment complex, stopped the car, pursued on foot, and shot the victim. Defendant was later arrested with the murder weapon. S, who was charged with being an accessory after the fact to a felony, pled guilty to that charge before defendant’s trial. On appeal, the court rejected his claim that the prosecutor failed to correct false testimony about S’s plea agreement, noting S testified she pled guilty to accessory-after-the-fact and agreed to cooperate. When defense counsel suggested she received a reduced plea deal, “she stated this was incorrect.” The court noted that due process requires correction when testimony about consideration creates a false impression, but here S’s “testimony did not create a false impression regarding the terms of her plea agreement[.]” S was truthful that she pled guilty in exchange for her testimony, so no correction was required. The court also upheld the denial of a voluntary-manslaughter instruction, reasoning the record did not show adequate provocation. It explained that Yeager did not alter the outcome as the trial court denied the instruction “because there was no adequate provocation,” not because defendant’s passion had to be anger. Finally, the ineffective-assistance claims failed. As to the undisclosed plea paperwork, the record did not show deficient investigation. Counsel questioned S about consideration, and the plea terms were available on the public docket. As to the hearsay ruling when counsel asked what S told defendant about the victim, even assuming deficiency, defendant could not show prejudice because the proffered statements would not establish imminence for self-defense. “A defendant must still reasonably believe deadly force is necessary to prevent imminent death or great bodily harm,” and defendant “never saw [the victim] with a weapon,” fired while the victim was running away, and fired again while he was on the ground. Affirmed.
Sufficiency of the evidence for felonious assault (MCL 750.82) & felony-firearm (MCL 750.227b) convictions; Principle that a felonious assault conviction does not require an actual injury; People v Garnes; Physical evidence
Holding that there was sufficient evidence to support defendant’s felonious assault and felony-firearm convictions, the court affirmed. He argued there was no physical evidence to support his convictions. The court disagreed, concluding the “prosecution presented physical evidence and witness testimony to prove the elements of felonious assault and felony-firearm beyond a reasonable doubt. The victim testified that, during an argument between her and defendant, [he] put a small gun to her head and threatened her. The victim called 911.” Police detained defendant about 30 minutes later. He “admitted he had a gun in the car, and the police found a .22 caliber pistol in the car.” He contended on appeal that “the victim’s testimony was confusing and difficult to follow.” But the court found that her “testimony was clear that defendant put a gun to her head, and her testimony was consistent with what she told the police. The evidence established that defendant committed an assault with a gun without intending to commit murder or to inflict great bodily harm less than murder.” It also established that he “possessed a firearm when committing a felony.” Although he was “correct that the police did not test for DNA or lift fingerprints from the gun, that is not necessary for a jury to find defendant committed a felonious assault with the gun. The gun was found in” his possession 30 “minutes after the victim called 911 in response to the assault. The jury reasonably inferred that the gun found in defendant’s car was the same gun he assaulted the victim with.” He further argued “that because the prosecution did not introduce any evidence of an injury, there was insufficient evidence to convict him of felonious assault. However, injury is not an element of felonious assault, so the prosecutor was not required to introduce any evidence of an injury.”
Constitutional right to a speedy trial; People v Smith; Barker v Wingo; Whether defendant was prejudiced by the delay; Overcoming the presumption of prejudice due to an over 18-month delay
The court held that the trial court did not clearly err in ruling that, despite “the two-year delay between defendant’s arrest and trial, he was not prejudiced, and dismissal was not warranted.” He was convicted of second-degree murder and other crimes. The court previously “rejected some of his challenges but remanded to the trial court to determine whether he was deprived of his constitutional right to a speedy trial.” He now appealed the trial court’s order declining to dismiss the case. The first and third Barker factors were undisputed. Both weighed “in defendant’s favor, as the trial court found.” As to the second factor, the court rejected his claim that all the pretrial delay was attributable to the prosecution. While, as the trial court found, most of it was, “there was no evidence of bad faith. Indeed, defendant has never contended that any delay was because of bad faith, and at one point below, he even conceded that the prosecution was acting diligently. Furthermore, one of the delays was outside the control of the parties or the trial court because there was a judicial vacancy and no judge had been appointed. The trial court did not clearly err by weighing this factor only modestly in defendant’s favor.” As to the fourth, and most important, factor – whether the delay prejudiced defendant – the court held “that the trial court did not clearly err by finding” it did not. The record affirmatively showed that his “person was not prejudiced by the delay. When the victim was shot, defendant was on parole for other crimes, and he was incarcerated for violating that parole. The trial court found that ‘defendant likely would have been in prison during this period anyway,’ and that finding is not clearly erroneous.” The court also determined that given the trial court’s findings, which were not clearly erroneous, it “correctly concluded that defendant’s defense was not prejudiced. The practical issue of fact at trial was the identity of the shooter.” Only one witness could identify the shooter, and his identification “was supported by objective circumstantial evidence, including a cell phone, a gun case, and defendant’s fingerprints. This type of evidence was not the kind . . . that would decay.” The court noted that “the only potential prejudice was the absence of a witness who could not have helped the defense.” Thus, the record overcame the presumption of prejudice, and he did not carry “his ultimate burden of establishing prejudice.”
Whether defendant was adequately informed of his rights at the plea hearing under FedRCrimP 11(b); Alleged violation of Rule 11(b)(1)(N); Allowing the prosecutor to summarize the appeal waiver in the plea agreement; Omission of an explanation of the waiver’s exceptions; Whether the district court should have required the prosecutor to explain the waiver; Sentencing-enhancement arguments barred by the appeal waiver
[This appeal was from the WD-MI.] The court held that defendant-Thomas did not show plain error as to his claims that Rule 11 was violated during his plea hearing. The district court sentenced Thomas to 300 months after he pled guilty to conspiring to distribute meth and cocaine. He argued that during the plea hearing, the district court should have confirmed his “understanding of each particular right as [it] described them, rather than (as the court did) describing all the relevant rights and then asking Thomas whether he understood them.” But the court held that Rule 11(b)’s terms do “not require the seriatim approach” he called for and neither does the court’s caselaw. He also argued that the district court erred under Rule 11(b)(1)(N) by having the prosecutor fully explain the appeal waiver, contending “that the prosecutor violated the rule because he omitted an explanation of the waiver’s exceptions, and thus failed to explain the waiver ‘adequately and correctly.’” However, the court noted it has held that “the rule is not violated when the record shows a defendant was ‘informed of and understood his rights.’” And it found that Thomas did not claim “that he was not informed of, or did not understand, the appeal waiver. Moreover, ample evidence shows that he did understand it.” He acknowledged that he was provided with the agreement weeks before the hearing and had discussed it with his counsel. The prosecutor’s failure to specifically “explain the exceptions to the appeal waiver” and instead just referring to them did not constitute plain error where “Thomas confirmed that he understood the plea agreement in its entirety after the prosecutor summarized the waiver.” The court also rejected his claim that the district court should have required the prosecutor to explain the waiver where he neither argued nor showed “that he did not understand the plea agreement.” Lastly, the court held that his sentencing-enhancements arguments were barred by the plea waiver.
Preliminary injunction; Mootness; Entry of default judgment on the basis of discovery violations; MCR 2.313(B)(2) & (C)(1); Frankenmuth Mut Ins Co v ACO, Inc; Lack of an evidentiary hearing
The court concluded that the propriety of the trial court’s grant of a preliminary injunction was “of no consequence to the outcome of this appeal.” Also, it found that “the trial court did not abuse its discretion by entering the default judgment” based on discovery violations. Finally, it rejected defendants’ claim “that the trial court found them in contempt without first holding a required evidentiary hearing” where the record did not show they were found in contempt. As to their challenge to the preliminary injunction, the court held that “even if the trial court abused its discretion in entering the preliminary injunction, defendants were obligated to follow that order until it was overturned or vacated.” Further, it found that “any error in entering the preliminary injunction does not appear to have had an effect on the trial court proceedings.” In addition, it held that “challenges to the propriety of the preliminary injunction have been rendered moot.” The parties agreed “that defendants no longer have any boats with the subject features for sale, and the preliminary injunction terminated after the trial court concluded the case with the default judgment (which did not incorporate the terms of the preliminary injunction).” Defendants also argued “that the trial court abused its discretion by entering a default judgment on the basis of discovery violations.” The court concluded that each “of the Frankenmuth Mut Ins Co factors favored the trial court’s decision.” Among other things, defendants’ “failures at every stage of the discovery process continued for” months, and the trial court did not err in finding that they did not comply with discovery orders. The trial court also attempted, “and later considered, options other than default, and it did not appear to overlook any that would have been better suited to the occasion.” As to defendants’ contempt claim, the court concluded “the trial court resorted to default without needing or intending to resort to contempt.” Defendants’ claim that it “effectively found them guilty of criminal contempt is unconvincing.” They characterized “the default as punishing them for past behavior instead of attempting to nudge them into compliance, which suggests criminal instead of civil contempt.” Defendants were “correct that the trial court took that action in response to [their] past behavior, but that is always the case when sanctioning a party for prior discovery violations.”
Medical malpractice; Expert testimony on causation; Craig v Oakwood Hosp; Expert-qualification in medical malpractice; MCL 600.2169(2); Law of the case doctrine; Grievance Adm'r v Lopatin
The court held that summary disposition for defendants was proper because plaintiff lacked admissible expert causation testimony and the prior appellate ruling barring that testimony controlled under the law-of-the-case doctrine. Plaintiff alleged a gastroenterologist (Dr. Q) negligently failed to diagnose a sigmoid obstruction and refer him to surgery in 2/16, leading to a 5/16 sigmoidectomy with colostomy, reversal, and complications. After an interlocutory appeal, the court affirmed the trial court’s in limine ruling that plaintiff’s gastroenterology expert (Dr. D) was not qualified to opine what “a reasonable surgeon” would have done on referral. The trial court then granted defendants summary disposition. On appeal, the court explained that plaintiff’s “failure-to-refer” theory required expert proof of what a surgeon would have done and therefore needed admissible causation testimony. “[P]laintiff’s theory of ‘but for’ causation requires evidence regarding what a reasonable surgeon would have done had Dr. [Q] made a referral in” 2/16, and thus plaintiff “needed to offer expert testimony opining the necessity of performing surgery earlier than” 5/16. The court further held the earlier interlocutory decision foreclosed relitigation of Dr. D’s qualifications. The prior appeal “specifically resolved that Dr. [D] was not qualified as an expert witness to testify regarding what a surgeon would have done,” and under the law-of-the-case doctrine “the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case.” Because plaintiff offered no qualified expert on causation after Dr. D’s testimony was excluded, there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Affirmed.
Child’s best interests
The court held that the “trial court did not fail to consider the relevant factors regarding [child-]CW’s best interests, and did not clearly err by concluding that termination of respondent[-father’s] parental rights was in the best interests of the child.” He claimed “that the trial court erred by determining that termination was in CW’s best interests because it did not consider factors relevant to the child’s best interests.” The court noted that “the trial court considered respondent’s failure to comply with the case service plan, and particularly respondent’s failure to address his substance abuse. Respondent briefly participated in inpatient substance abuse treatment, but left the program without completing it. Thereafter, he failed to participate in outpatient substance abuse treatment; although he reported that he attended NA weekly, he continued to test positive for” meth. Respondent “attended parenting time and appeared to have a bond with CW, but failed to participate in parenting education.” He also “reported having housing, but apparently moved three times during the year the child was in care.” He further “reported having employment, but failed to provide proof of employment or other source of income; at the time of the termination hearing, he was anticipating starting a job but did not have proof of that employment. The trial court considered that during the approximately 14 months that the child was in foster care, he had received needed medical and dental care, had started school and, through the help of the foster parents, was catching up on the delay in education. He was gaining confidence by playing sports and being part of a stable family.” The trial court also “considered the child’s need for stability and permanency, which the foster home provided, the child’s bond with the foster parents, and the foster parents’ willingness to adopt CW.”