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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Warrantless seizure of clothing at a hospital; People v Moorman; Exceptions to the warrant requirement; Exigent circumstances; People v Chowdhury; Inevitable discovery; People v Hyde; Motion to suppres evidence; Harmless error; People v Jordan
The court held that although police violated the Fourth Amendment by seizing defendant’s bag of clothing from the hospital without a warrant and that neither exigent circumstances nor the inevitable-discovery doctrine justified the seizure, the error was harmless. He was convicted of second-degree murder, AWIM, first-degree home invasion, and felony-firearm after multiple masked assailants attacked two men in a home. Defendant, himself shot, was dropped at the hospital soon after the shooting, and hospital security observed ski masks and a handgun in the vehicle. On appeal, the court agreed with defendant that the clothing seizure violated his Fourth Amendment rights and found that no exception to the warrant requirement applied. The record contained “no evidence that the bag of clothing would have been destroyed before the police could have obtained a search warrant,” so exigency failed. And the inevitable-discovery doctrine could not apply because officers were not in the process of obtaining a warrant. “‘[T]o allow a warrantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement.’” The court concluded that the evidence “should have been excluded at trial.” Even so, it held that defendant was not entitled to relief. Given other evidence, such as his near-simultaneous arrival at the hospital with a codefendant from the scene who was also shot, security’s observation of ski masks and a firearm in the drop-off vehicle, and “4.3 septillion times more likely” DNA match tying defendant to a gun recovered at the scene, it was “‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[,]’” and the error was not “deliberately injected into the trial by the prosecutor” but flowed from a pretrial ruling, making it harmless under Jordan. Affirmed.
Judicial impartiality; People v Willis; The trial court’s control of the proceedings; MRE 611(a); Unfair prejudice; MRE 403; Curtailing cross-examination; Tone & demeanor of the trial judge; People v Swilley; Context & scope; People v Stevens; Direction of intervention; Curative instruction
Holding in these consolidated appeals that the trial judge’s interventions did not pierce the veil of judicial impartiality, the court affirmed defendant’s CSC convictions and sentences. Defendant-grandfather was tried on multiple CSC counts arising from each complainant’s allegations. During lengthy cross-examinations of both complainants, the judge repeatedly directed defense counsel to stop restating testimony and to ask new, non-repetitive questions. On appeal, the court rejected defendant’s claim that the judge’s conduct created the appearance of advocacy or bias, explaining that “‘a judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.’” The court emphasized that a trial court may reasonably limit cross-examination to avoid repetition and manage the proceedings, noting a trial “‘court has wide latitude to impose reasonable limits on cross-examination to ensure relevancy or because of concerns regarding such matters as harassment, prejudice, confusion of the issues, and repetitiveness.’” Further, they may exercise control to “‘avoid needless consumption of time,’” among other things. The court also found that the judge’s tone and remarks, though stern at times, were directed at both sides, occurred after hours of questioning, and were tied to counsel’s repeated disregard of instructions. Viewed in context, they did not convey favoritism or antagonism. Finally, curative instructions reinforced the judge’s neutrality and told jurors to disregard any perceived opinion from the bench. They “were sufficient to cure any alleged error.” In sum, the “trial judge’s conduct did not improperly influence the jury by creating the appearance of advocacy or partiality against [defendant], nor did it otherwise deprive” him of a fair trial. “The trial court permissibly restricted defense counsel’s cross-examination of complainants, albeit sharply, to preserve the orderly administration of the trial and account for defense counsel’s failure to curtail her repetitive questioning. Further, the presence of the proper curative instructions rectified any error.”
Sentencing; Procedural reasonableness; Six-level enhancement under USSG § 2B3.1(b)(2)(B) for using a firearm to strike a driver during a carjacking; Two level enhancement under § 2B3.1(b)(3)(A) because the driver sustained a bodily injury; “Mitigating role reduction” (§ 3B1.2); Consideration of defendant’s youth & potential for rehabilitation; Substantive reasonableness challenge to an upward departure from the Guidelines range
[This appeal was from the ED-MI.] The court affirmed defendant-Haile’s above-Guidelines sentence for carjacking where a firearm was used to strike one of the drivers, supporting a six-level sentencing enhancement under § 2B3.1(b)(2)(B), and the driver suffered a bodily injury from that strike, supporting a two-level enhancement under § 2B3.1(b)(3)(A). Haile and another individual hijacked four different Lyft drivers. He pled guilty to four counts of carjacking, aiding and abetting. Haile challenged the enhancements at sentencing, and “asked for a three-point offense level reduction to reflect his self-described minor role in the offenses.” But the district court rejected his version of events, applied the two enhancements, and found no basis for a reduction. It then departed upward from the resulting Guidelines range of 121 to 151 months and imposed the statutory-maximum 180 months. On appeal, he took “issue with the district court’s conclusion that he was one of the carjackers during each attack.” But the court concluded there was “[a]mple record evidence” supporting the enhancements, including police reports, victim statements, and his phones were linked to the attacks. He also admitted that he went through one of the victim’s pockets and that he called the third driver. Even though it may not have been clear whether it was Haile or his accomplice that struck the driver with a firearm, he admitted “that he helped facilitate each of the carjackings and” that it was his intent to harm the victims. Further, he was experienced with firearms, and it was “reasonably foreseeable” that his accomplice would brandish a firearm during the fourth carjacking. As to the denial of a mitigating role reduction, applying plain error review, the court held that “[e]ven if the district court should have said more, any such failure was harmless and did not affect Haile’s substantial rights.” The district court “engaged in extensive fact finding and ruled on numerous objections” during the sentencing hearing. By the time it reached the “mitigation arguments, it necessarily considered and explained Haile’s central role in the attacks.” As to his claim that his age and potential for rehabilitation should have warranted a lesser sentence, the record showed that the district court considered his history and his characteristics, which would certainly include his age. Finally, the court rejected his argument that the upward departure was substantively unreasonable, concluding the district court “thoroughly explained why an above-Guidelines sentence of 180 months was sufficient but not greater than necessary to achieve the goals of sentencing. It focused on the ‘vicious,’ ‘serious,’ and ‘life-threatening’ nature of the attacks, and the fact that each involved a firearm.”
Entry of default for failure to appear; Setting aside a default in domestic-relations cases; “Good cause” under MCR 3.210(B)(3); Koy v Koy; Policy against setting aside properly entered defaults, Alken-Ziegler, Inc v Waterbury Headers Corp; A trial court’s authority to default for nonappearance & duty to consider the manifest-injustice exception; MCR 2.401(G)(2); Seven-day rule for proposed orders; MCR 2.602(B)(3); Property division findings; Income-capitalization valuation of income property; Meadowlanes Ltd Dividend Hous Ass’n v City of Holland
Holding that the trial court did not abuse its discretion by defaulting defendant-ex-wife for failing to appear after a scheduling order warned that nonappearance “shall be grounds for the entry of an order of default,” and that the resulting property distribution was equitable, the court affirmed the default judgment of divorce. The court rejected defendant’s claim of favoritism, noting that at the first pretrial the court allowed plaintiff-ex-husband’s counsel to proceed remotely after a “calendaring snafu,” whereas at the second pretrial neither defendant “nor her attorney appeared” and no appearance had been filed. Thus, counsel “did not merely arrive late . . . she failed to appear at the conference altogether.” Addressing the manifest-injustice exception in MCR 2.401(G)(2), the court observed the trial court “should have considered” it, but any omission was harmless because defendant then had to, and did not, show “good cause” to set aside the default under MCR 3.210(B)(3). The court emphasized that defendant “failed to provide a reasonable excuse for failing to appear,” where the scheduling order set the 8:30 am time, the register of actions matched it, and her prior lawyer had emailed her the 8:30 am start “in bold print[.]” Further, she “failed to file objections” to the proposed order submitted under MCR 2.602(B)(3). As to property division, the court held the split was fair where the spreadsheet “split the parties’ assets 50-50,” and it rejected defendant’s complaint that plaintiff received future rental income from the law-office building. The court noted that the building’s value was determined using the income-capitalization approach, under which “the income-producing capability . . . was factored into its present value.” In sum, the record did not leave the court “‘definitely and firmly convinced that the disposition’” was inequitable.
Personal protection insurance (PIP) benefits; The No-Fault Act; MCL 500.3114(1); Validity & applicability of policy exclusions; Vehicle not listed in the policy; Lee v Detroit Auto Inter-Ins Exch; Exclusion based on plaintiff being a co-registrant of an uninsured vehicle; Wilmore-Moody v Zakir; Policy rescission; Balancing the equities; Pioneer State Mut Ins Co v Wright; Recovery of benefits from the Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3172; USA Underwriters (USAU)
The court held that one of defendant-USAU’s asserted policy exclusions was invalid. It also was not entitled to summary disposition based on a second exclusion because there were genuine issues of material fact about the rescission of defendant-Progressive’s policy as to plaintiff. But defendant-MAIPF was properly granted summary disposition given that both potential outcomes on remand would preclude its liability. Plaintiff was the named insured under a no-fault policy with USAU but was driving a vehicle (a Focus) not listed in the policy when she was involved in the accident at issue. Her daughter (B) had a no-fault policy with Progressive, which listed the Focus as the insured vehicle. The court considered whether the policy exclusions on which USAU relied were valid or applied. USAU asserted that because plaintiff was driving the Focus when she was involved in the accident, “Exclusion D applied to bar her PIP coverage because the Focus was not a listed vehicle in her policy.” But the court found that the exclusion’s language was “in direct conflict with MCL 500.3114(1)” and both the plain language of the statute and case law undermined USAU’s position. Thus, it held that D was invalid. USAU also argued that Exclusion E barred plaintiff’s PIP claim on the basis “that the effect of Progressive’s rescission as to [B] resulted in plaintiff being a co-registrant of an uninsured vehicle.” The court concluded it did not have to decide whether Wilmore-Moody’s rescission principle applied as the parties recognized “that Exclusion E applies only if the order granting Progressive’s motion for summary disposition is upheld on appeal.” Given that the court held that there were genuine issues of material fact in that regard, “the trial court order granting Progressive’s motion must be vacated, as must the order granting USAU’s motion based upon Exclusion E.” It rejected Progressive’s argument for affirming the trial court’s order that ruled the rescission of its policy also applied to plaintiff. In determining “that plaintiff was not an innocent third party, the [trial] court made an impermissible factual determination on summary disposition that was also not supported by the evidence. Second, [it] erred in not weighing all the relevant equities before rescinding the Progressive policy as to plaintiff.” The court reversed summary disposition for USAU as to plaintiff’s claim for PIP benefits, vacated summary disposition for Progressive and remanded, and affirmed summary disposition for the MAIPF.
Jurisdictional filing deadline; MCL 205.735a(6); Stilson v Clay Twp (Unpub); Qualified-error approval as final decision; MCL 211.53b(1); New Covert Generating Co, LLC v Covert Twp; Due process notice of underpayment; Sixarp, LLC v Byron Twp; Michigan Tax Tribunal (TT)
Holding that the TT properly dismissed petitioner’s appeal for lack of jurisdiction and that its ruling did not violate due process, the court affirmed. Petitioner owned personal property in respondent-township that was undervalued in 2022 because of an assessor data-entry error. The board of review approved a qualified-error correction on 7/18/23 and issued a change notice increasing assessed and taxable values. The TT dismissed petitioner’s later challenge as untimely. On appeal, the court first addressed jurisdiction and held that the filing clock ran from the qualified-error approval because “the jurisdiction of the tribunal is invoked by a party in interest, as petitioner, filing a written petition within 35 days after the final decision, ruling, or determination,” and “a reading of the substantive claims [petitioner] raised in its amended petition plainly demonstrates that the ‘final decision, ruling, or determination’ over which” it sought review in the TT was the qualified-error approval. It added that petitioner “needed to file its petition by” 8/22/23 and that “because [it] undisputedly failed to do so, the [TT] lacked jurisdiction to consider its claims and properly dismissed the petition.” It noted the TT “does not have the authority to grant a request for a delayed appeal” and that the relevant consideration is “when the decision was issued, not when a petitioner received the decision.” The court also rejected petitioner’s due process claim, explaining that “at a minimum, procedural due process requires notice and an opportunity to be heard in a meaningful time and manner,” and that the July change notice and affidavit gave petitioner notice of the substantial adjustment, “expressly notified [it] of its appellate rights,” and petitioner “failed to avail itself of that opportunity.”
Requests for variances from a local ordinance to construct a billboard; Appeal from the decision of a Zoning Board of Appeals (ZBA); MCL 125.3606(1); Waiver; Whether application of the sign ordinance rather than the zoning ordinance was proper; Motion for reconsideration; MCR 2.119(F)(3); Application of statutory interpretation principles to municipal ordinances
The court held that the trial court did not err in affirming defendant-ZBA’s denials of plaintiff-Five Star’s requested variances to construct a billboard because the ZBA did not violate MCL 125.3606. The trial court also did not abuse its discretion in denying Five Star’s motion for reconsideration. The court first determined that, based “on the apparent concessions by Five Star’s counsel before the trial court that the township sign ordinance was the proper ordinance to administer, Five Star’s argument that the ZBA erred by failing to consider the factors for a variance under the zoning ordinance is waived on appeal.” However, the court added “that application of the sign ordinance rather than the zoning ordinance was proper under general principles of statutory interpretation.” It determined that because “Five Star expressly sought variances from the sign ordinance, and the sign ordinance delineates the pertinent appeals procedure when a sign request or permit is denied, . . . it was proper for the ZBA to consider the more specific ordinance, the sign ordinance, rather than the more general ordinance, the zoning ordinance, in resolving Five Star’s variance request.” As a result, “the trial court did not err in affirming the decision of the ZBA because the ZBA’s denial of Five Star’s variances was based on proper procedure.” Five Star also argued that the trial court abused its discretion in denying its “motion for reconsideration because the trial court made a palpable error by failing to address that the ZBA’s findings on remand were biased, inferential, and conclusory, and contrary to the federal traffic study submitted by Five Star.” The court disagreed, concluding it did not appear that Five Star showed “‘a palpable error by which the [trial] court and the parties have been misled and . . . that a different disposition of the motion must result from correction of the error.’” Among other things, the court noted that the “ZBA denied Five Star a variance from the 100-feet requirement in § 72-6(e)(5) because another billboard would increase the clutter to the area, and under § 72-9(1)(d), the benefit of the sign to the general public or applicant did not outweigh a concern for traffic safety and the desire to eliminate visual clutter. This conclusion did not violate the requirements of MCL 125.3606(1).” Affirmed.
Inventory; Date used to determine the starting balance for an account; MCL 700.5419(1); Letters of conservatorship; MCL 700.5420(1); Whether property taxes were improperly paid; MCL 700.5425; In re Adrienne Gierman (Unpub); Award of fees to the guardian ad litem (GAL); MCL 700.5413; The raise-or-waive rule
The court held that legal title over a “protected individual’s property is not actually transferred to the conservator until the letters of conservatorship are issued and” thus, the conservator is “not responsible for the value of the inventoried property until that date.” Further, the “probate court made an error of law in failing to apply the proper legal framework in ruling on” whether the conservator (Webster-Jackson) properly paid property taxes. But the court found no error as to the award of GAL fees. Webster-Jackson is the conservator for her father, DLW. She appealed orders that, among other things, denied the petition to allow the second amended first accounting and approved $3,000 in GAL fees. As to her inventory and first accounting, she argued the probate court erred in ruling that the starting balance for an account was the balance on 9/28/21 “for purposes of the initial inventory.” She contended “that she properly used the balance of this account on [9/29/21], as the beginning balance for her inventory and accounting because her letters of conservatorship were issued that day.” The court concluded the probate court made an error of law and that this “legal error clearly affected [its] decision to reject Webster-Jackson’s inventory and accountings[.]” Thus, it vacated the probate court’s order and remanded “for further proceedings applying the proper starting date for the determination of the initial inventory.” She next asserted the probate court erred in “finding that property taxes were improperly paid because DLW did not have a legal interest in the real property at issue.” The court found that “the probate court failed to determine whether the property tax expenditure was proper under the factors provided in MCL 700.5425(b) or (c). Whether the property for which property tax was paid was titled in the name of the protected individual is not one of these factors. Notably, there was testimony that DLW lived in the home for which the property taxes were paid.” Thus, the court reversed the “order denying the petitions to allow the accountings” and remanded for the probate court to “apply MCL 700.5425 in determining whether the expenditures were proper.” But it found that because “Webster-Jackson failed to challenge the GAL fees in the probate court, she” did not establish reversible error “based on the lack of an evidentiary hearing on the matter.” Reversed in part, affirmed in part, and remanded.