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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Relief from judgment; Grounds raised & rejected in a prior appeal; MCR 6.508(D)(2); Sufficiency of the evidence challenge; Credibility; Prosecutorial misconduct; Sequestration of a victim; MCL 780.761; Prejudice; People v Solak; Denial of reconsideration; Ineffective assistance of counsel; Waiver of the preliminary exam, failure to call witnesses defendant suggested, failure to impeach the victims during their testimonies, & failure to object to the prosecution’s introduction of other acts evidence
Finding no errors warranting reversal, the court affirmed the trial court’s denial of defendant’s motion for relief from judgment. He was convicted of CSC I. He alleged that “a police report showed the victims fabricated the claims of abuse and conspired against him because he ended his relationship with” their mother. The court found that defendant was “not entitled to relief from judgment because this ground was raised and rejected in the prior appeal.” In addition, he relied “on statements made by the victims as reported by others.” However, he failed to show “the police reports contained contradictory statements and that the police reports were admissible; in fact, they generally contain inadmissible hearsay.” Further, although he attached affidavits to his motion “opining that an incident of sexual abuse could not have occurred while the family attended a funeral, the attempt to create a dispute regarding location is not dispositive. First, the trier of fact has the right to disregard all, part, or none of the testimony of a witness.” Thus, the court concluded that “the jury could have found that the sexual abuse occurred even if the victims’ misidentified the location. Additionally, the information in the affidavits regarding location existed prior to trial, and defendant failed to demonstrate good cause for failing to raise such grounds on appeal.” The court also noted that the affidavits identified the location of the funeral in another county, “defendant was not charged for this offense, and it was offered as” other acts evidence. Accordingly, “because a convicted offense did not arise from the sexual abuse in Montcalm County, any challenge to jurisdiction was without merit and not a ground for relief from judgment. Moreover, defendant’s challenge to the credibility of the witnesses was thoroughly explored during trial and rejected by the jury and by this Court in his claim of appeal as of right.” As to the claim the prosecution violated a sequestration order by allowing the victims to be in the courtroom before they testified, he failed to establish prejudice. The court also rejected his ineffective assistance of counsel claims.
Whether reckless driving causing death (MCL 750.626(2) & (4)) is a necessarily included lesser offense of second-degree murder; Comment on defendant’s silence; People v McGhee; People v Collier; Harmless error; Cumulative error; Ineffective assistance of counsel
The court held that the trial court did not err in denying defendant’s request for a jury instruction on reckless driving causing death because it is not a necessarily included lesser offense of second-degree murder. Further, the prosecution did not violate his rights to due process and a fair trial by commenting on either his pre-arrest or his post-arrest, post-Miranda silence. Finally, defense counsel was not ineffective for failing to make futile objections. Thus, the court affirmed defendant’s first-degree premeditated murder conviction. It concluded that the “elements of reckless driving causing death are clearly not subsumed by the greater offense of second-degree murder. It is entirely possible to commit the greater offense of second-degree murder without committing the lesser offense of reckless driving causing death. Second-degree murder does not require driving a vehicle in a public space or using a motor vehicle as the instrument of the killing.” As a result, the trial court did not err in refusing to instruct the jury on the cognate offense. As to the prosecution’s use of defendant’s pre-arrest silence, most of the references were about his “pre-arrest conduct of evading police and not reporting [the victim’s] injuries to the 911 dispatcher.” Thus, his silence did not implicate “his Fifth Amendment right or reliance on Miranda warnings. Defendant’s pre-arrest and pre-Miranda silence was not constitutionally protected,” and the prosecution’s discussion of his silence as substantive evidence of his intent did not violate his constitutional rights. In addition, the prosecution’s arguments about his silence were “permissible to impeach defendant’s testimony.” The court further found that the only statement “that could be considered as a reference to defendant’s post-arrest, post-Miranda statements would be that ‘the first time defendant made any statements about this case at all’ was during the trial. Although the prosecutor later stated that defendant’s avoidance of police was evidence of his selfishness, this comment does not imply defendant’s guilt. The prosecutor was referencing the fact that police were not able to establish who the front passenger was during the crash.” Thus, the prosecution did not improperly use evidence of his “post-arrest, post-Miranda silence as direct evidence of his guilt.” The court added that any error would have been harmless.
Sentencing; Reasonableness & proportionality; People v Milbourn; Downward departure; Considering a defendant’s age, work history, & lack of criminal history; People v Davis
The court held that the trial court did not abuse its discretion in departing downward from the guidelines in sentencing defendant. The victim, a wealthy, middle-aged married man, and defendant, a substantially younger single woman, had been involved in an affair for years. She was convicted of AWIGBH, malicious destruction of personal property valued at less than $200, domestic violence, malicious destruction of a building between $200 and $1,000, felonious assault, and resisting or obstructing a police officer. The trial court opined that the guidelines’ recommendation was “quite high” for the AWIGBH conviction. It also noted that this “was not this the typical domestic-violence situation it encountered . . . .” After reviewing her OV scores, it noted that removing the effect of her resisting and obstructing offense, which it viewed as de minimus, the guidelines recommendation would be 5 to 23 months. It determined that this “was ‘far more reasonable . . . given the conduct in question.’” As such, it imposed an out-of-guidelines sentence of 2 years’ probation, with the first 5 months to be served in county jail, for the AWIGBH conviction. The prosecution appealed. “[T]here is no doubt that defendant assaulted and seriously injured the victim; she also destroyed the victim’s and his wife’s property. If this case involved only those facts, then the outcome might have been different. But there are mitigating circumstances.” It noted that this occurred “years into her relationship with the victim. And, although voluntary intoxication is not a defense for any of [her] actions, excessive alcohol use appears to have significantly diminished her self-control.” In addition, “on this particular weekend, [her] behaviors crossed the line after discovery of the item that led her to confront the victim. The victim himself recognized that defendant was ‘out of control’ and the victim’s wife reported that defendant was ‘incoherent’ during that weekend.” The victim indicated that he did not want her to go to prison. Shortly after these incidents, defendant “engaged in services with a therapist and psychiatrist. After many months of treatment, [her] therapist opined that defendant was stable, no longer drinking, and was not ‘a threat to anyone.’” Finally, the conduct underlying her “resisting or obstructing conviction was de minimis, but greatly impacted both the PRV and OV Levels.” Until 2019, defendant “essentially led a crime-free life and was employed.” Affirmed.
Inverse condemnation; Blue Harvest, Inc v Department of Transp; Hinojosa v Department of Natural Res; Replacement of culverts; A county road commission’s powers & duties; MCL 224.19 & 224.21(2); Claim under Part 17 of the Natural Resources & Environmental Protection Act (NREPA); Scheme for determining legal lake levels; Part 307 of NREPA; Yee v Shiawassee Bd of Comm’rs
The court held that plaintiffs-property owners failed to meet the elements of an inverse condemnation claim and that the gravamen of their NREPA claim was not for environmental damages but rather an effort to establish a legal lake level, which a circuit court lacks authority to be the first to determine. Thus, it reversed the denial of defendant-county road commission’s summary disposition motion and remanded for entry of an order granting it summary disposition. Defendant replaced three culverts diverting water from the lake that had been damaged and partially blocked with new but identical structures. An 18-inch decrease in the lake’s level followed. “Plaintiffs sued defendant for inverse condemnation, alleging a decrease in the value of their properties as a result of the lower water level.” They later added a claim under NREPA Part 17. While they asserted that “defendant’s replacement of the culverts constituted an abuse of its powers for purposes of inverse condemnation, defendant was statutorily responsible for culvert maintenance.” MCL 224.21(2)’s plain language establishes a “mandatory requirement that a constructed culvert shall be maintained in reasonable repair. Accordingly, in light of the statutory authorization and requirement that defendant repair the culverts, defendant did not abuse its powers by engaging in affirmative conduct.” In addition, the court found that “the associated removal of debris to fulfill that statutory duty and replace the culverts was not overt action by defendant directed at plaintiffs’ properties.” It was not the culvert replacement that caused the lower water level, but “rather the necessary removal of inappropriately placed debris . . . .” Defendant acted upon the culverts, not plaintiffs’ properties. They “had no right to the continued placement of debris in the culverts to alter the water level to their desired liking. Moreover, plaintiffs had the ability to petition the county commission to act regarding specific water levels under Part 307 of NREPA.” As to their claim under Part 17, the “Legislature enacted a comprehensive scheme for the establishment and maintenance of legal lake levels.” Under that scheme, proceedings may be initiated “before the county board of commissioners or its delegated authority.” Given that the Legislature placed the authority to determine lake levels with the county board, plaintiffs’ claim under Part 17 was not viable.
Custody; Inconvenient forum; MCL 722.1207(2); Established custodial environment (ECE); Child’s best interests
The court determined that the trial court did not abuse its discretion by exercising its jurisdiction over the child. Also, because the evidence did not clearly preponderate in the opposite direction, the trial court properly found that the child had an ECE with plaintiff-mother. Finally, the trial court’s findings as to the best interests of the child overall were not against the great weight of the evidence. Thus, the court affirmed the trial court’s order granting the parties joint legal custody of their child, but granting primary physical custody to plaintiff. Defendant-father contended that “the trial court erred by exercising jurisdiction over the child because Michigan was an inconvenient forum, and Florida was a more appropriate forum.” The court held that the trial court considered the statutory factors and properly concluded that “the convenience of Michigan and Florida as forums was roughly equal, with a slight advantage to Michigan as the more convenient forum.” It also observed that “although the statute requires the trial court to consider the statutory factors before determining whether Michigan was an inconvenient forum, the trial court was not required by the statute to give the factors any particular weight.” Thus, it held “as did the trial court, that consideration of the factors did not reveal Michigan to be an inconvenient forum, nor did it reveal Florida to be a more appropriate forum.”
Applicability of the Indian Child Welfare Act (ICWA) & Michigan Indian Family Preservation Act (MIFPA); “Indian child” (25 USC § 1903(4)); § 1914
Holding that the ICWA and the MIFPA did not apply, the court affirmed the trial court’s order terminating respondents’ parental rights. They argued on appeal that “they were denied due process because the ICWA is unconstitutional and denied them the right to participate in proceedings.” However, the court noted that the “the Cherokee Nation, United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians each determined that” respondents’ children were “not members of their respective tribe or eligible for membership. These determinations were provided in written correspondence to” a CPS investigator (R) in 2017, and again in early 2021, when the Cherokee Nation resolved its omission of one of the children from its 2017 correspondence to R. As a result, the children “are not ‘Indian’ children as defined in” § 1903(4). Thus, § 1914 did not apply to the facts here. Respondents contended that the ICWA is flawed, and questioned “the thoroughness of the search conducted by the Cherokee Tribes to determine” the children’s membership eligibility. They also asserted “that under ICWA, a parent is afforded the right to petition an Indian tribe. But respondents premise this assertion on the false notion that their minor children have Native American heritage.” Further, they failed to “cite any mandatory or persuasive authority in support of this alleged procedural right of parents claiming Native American heritage.” The court added that the record did not support their “claim that the tribes did not engage in a meaningful review of” the children’s possible tribal membership. “Respondents’ representation that the tribes merely confirmed receipt of [R’s] correspondence advising the tribes of the pending child protective proceedings is untrue. The Cherokee Nation, United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians each acknowledged receipt of [R’s] notice, stated that they had examined their tribal records, enrollment records, and tribal registries, and concluded that” the children were not Indian children.
Challenge to a tax adjustment; The four-year statute of limitations (SOL) involving an assessed “deficiency” under the Revenue Act (MCL 205.27a(2))
The court held that the trial court did not err by granting defendant-Treasury summary disposition of plaintiff-taxpayer’s challenge to a tax adjustment. Defendant audited plaintiff’s tax returns for tax years 2008-10. It finished the audit in 2017 and issued a final audit determination reflecting a total net credit of $966,462 along with a check for that amount. Plaintiff cashed the check, which mistakenly reflected and included a prior-year overpayment credit of $711,415 that plaintiff claimed in its 2011 return. Realizing its error, defendant formally adjusted plaintiff’s 2011 return. It sent plaintiff a formal notice in 2018 that it was disallowing the overpayment credit on the 2011 return. But the disallowance did not result in plaintiff having to pay additional monies related to the 2011 return – it “resulted in a much lower overpayment credit that could be carried forward.” Plaintiff challenged the adjustment in an informal conference, arguing defendant’s actions violated the four-year SOL involving an assessed “deficiency” under the Revenue Act. The referee disagreed, as did defendant. The trial court concluded that “the reduction of a credit that does not result in a tax deficit owed by the taxpayer cannot be a ‘deficiency’” under the Act, noting that “when the credit reduction results in a lower credit to carry forward to the next year, there is no deficiency to be paid by the taxpayer.” It also concluded that the “adjustment was not a collateral attack on the audit.” On appeal, the court agreed with the trial court that the 2018 adjustment “did not result in a ‘deficiency’ under MCL 205.27a(2).” Defendant disallowed the $711,415 claimed credit “that, in effect, offset [defendant’s] earlier payment of an amount ($966,462) that had included the value of that claimed credit ($711,415).” The disallowance “did not result in additional tax being owed, in the sense that [plaintiff] did not have to cut a check to pay a tax deficit.” As such, it was “inaccurate to characterize this as an assessment of a ‘deficiency,’ because whether or not there is a tax deficit to pay is merely a potential secondary effect of the disallowance of the credit.”