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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Joinder of charges; MCR 6.120(B); Admission of preliminary exam testimony; MRE 804(b)((1); “Unavailable” witness; MRE 804(a)(5); People v Bean; The Uniform Interstate Depositions & Discovery Act; MCL 600.2202(e); The Confrontation Clause; Harmless error; Jury exposure to an officer’s body cam video footage not admitted at trial; Extrinsic influence; People v Budzyn; Ineffective assistance of counsel; Access to discovery materials; Failure to request appointment of expert witnesses; People v Kennedy
The court held that the trial court did not abuse its discretion in joining the charges against defendant arising from two shooting incidents for trial, or in admitting a victim’s (H) preliminary exam testimony. Further, the jury’s exposure to an officer’s body cam video footage that was not admitted at trial did not warrant reversal, and defendant’s ineffective assistance of counsel claims failed. He was convicted of AWIM, FIP, and felony-firearm. The court first held that the trial court was correct “that the two cases were related as defined by” MCR 6.120(B). Defendant’s actions giving rise to the charges “involved a series of connected acts. They happened on the same day, approximately 45 minutes apart, in geographic proximity to each other. The evidence showed that defendant left the scene of the apartment shooting on foot, and it was a witness to the apartment shooting who alerted the police to defendant’s location where the officer-involved shooting occurred. Both cases involved the discharge of a firearm and the two series of acts involved the same ballistics evidence. The two events were also connected insofar that the circumstances of the apartment shooting provided context for an understanding of the sequence of events that led to the officer-involved shooting.” While he contended that the cases should not have been joined because each “could have proceeded separately,” that is not the test under the court rule, and the MCR 6.120(B)(2) factors supported joinder. As to the admission of H’s preliminary exam testimony, to the extent defendant asserted it “was not admissible because it was given in the apartment shooting case, and thus, he did not have an opportunity to cross-examine her in the officer-involved shooting case,” the court disagreed. It noted that “MRE 804(b)(1) allows for the use of former testimony given in ‘the same or a different proceeding.’” Further, while the preliminary exam at which H “testified concerned only the apartment shooting case, defendant had the opportunity and same motive to develop her testimony” related to that case, and it was not offered for any purpose related to the officer-involved shooting. As to his other challenges to this testimony, the Uniform Interstate Depositions and Discovery Act does not provide for “compelling a person’s presence at trial” and there was no right of confrontation violation. Affirmed.
Sufficiency of the evidence; Assault of a prison employee; MCL 750.197c; People v Kammeraad; “Violence”; People v Terry; Jury instructions; Waiver of an instructional error; People v Kowalski; Sentencing; Scoring of OV 19; MCL 777.49(a) (offender threatened the security of a penal institution); Resentencing; People v Francisco
The court held that there was sufficient evidence to support defendant’s conviction of assault of a prison employee, but that the trial court erred by scoring OV 19, which altered his guidelines range. Thus, it affirmed his conviction, but vacated his sentence and remanded for resentencing. He swiped the inside of a prison nurse’s “leg, starting from above the knee, moving upward, and ending near her groin area.” The trial court sentenced him as a fourth-offense habitual offender to 4 to 10 years. He argued that there was no evidence the alleged assault involved the use of violence, a threat of violence, or a dangerous weapon as required to support such a conviction. The trial court “instructed the jury that the prosecutor had to prove that defendant committed a battery against the nurse, defining a battery as ‘a forceful or violent or offensive touching of the person of another.’ Thus, the jury may have convicted defendant absent a finding that the assault involved the use of violence, a threat of violence, or a dangerous weapon. Defense counsel, however, expressed that he had no challenges to the jury instructions when queried by the trial court.” Further, defendant did “not even raise any claim of instructional error in connection with his sufficiency argument, and even if he had, we would deem the issue waived in light of counsel’s affirmative indication to the trial court that the jury instructions were acceptable.” Moreover, the nurse’s testimony “provided sufficient evidence demonstrating the wrongful application of physical force against her so as to harm or embarrass her.” But the court found that the trial court erred by scoring 25 points for OV 19, noting there was “no evidence that the nurse’s act of calling upon another nurse to monitor [him] while she reported the incident created a threat to the security of the prison.” And there was “no evidence that corrections officers were diverted to the examination room, which, had it occurred, may have given rise to a security threat.” There was “very little disruption caused by the incident. While an assault upon a prison healthcare worker could in some circumstances result in a disruption so as to create a threat to a penal institution, the facts” here did not reach that level. Further, there was “no evidence that would support a score of 10 or 15 points for OV 19” and the prosecution did not “claim that a score other than 25 points is appropriate.” Resentencing was required because the guidelines range was altered.
Motion to suppress; MCR 6.110(D)(2)(a); People v Kaufman; Search & seizure; People v Pagano; Warrantless search; People v Hughes; The search incident to arrest exception; People v Nguyen; Probable cause; Right to present a defense; Ineffective assistance of counsel; People v Vaughn; Trial strategy; People v Rockey; Right of confrontation; United States v Owens; Exculpatory evidence; Brady v Maryland; Identity; Photographic lineup; Unlawful driving away of an automobile (UDAA)
Holding that there were no errors requiring reversal, and that defense counsel was not ineffective, the court affirmed defendant’s convictions. He was convicted of first-degree home invasion, larceny of a firearm, UDAA, FIP, and felony-firearm. On appeal, the court rejected his argument that the trial court should have granted his motion to suppress, noting that because the trooper had probable cause to believe defendant committed the felony of resisting or obstructing a police officer, his arrest of defendant was lawful and constitutional, as was the subsequent search of his backpack. The court also rejected his claim that the trial court erred by denying his request for an evidentiary hearing regarding his renewed motion to suppress. “Considering defendant’s failure to identify what additional testimony might come from the evidentiary hearing and how it would support his claim, [his] argument on appeal regarding the evidentiary hearing” was unpersuasive. The court next rejected his contention that the trial court abused its discretion by limiting his ability to cross-examine an officer regarding the facts of a federal case, noting it properly allowed defendant to cross-examine the officer “about all relevant topics, including his character for truthfulness, as a result of the federal court’s findings.” And counsel was not ineffective for failing to argue that the trial court’s limitation would prevent counsel from fully exploring the officer’s alleged bias. The court further rejected his argument that the prosecution committed a Brady violation, noting that “information held by the federal government and federal law enforcement could not be imputed to the prosecution in this case.” Finally, it rejected his claim that the trial court erred by denying his motion to suppress a witness’s identification of him, both from the pretrial photographic lineup and during trial, because of an unduly suggestive photographic lineup. “Defendant’s argument that the photographic lineup was impermissible and inadmissible because it was not a corporeal lineup and because his counsel was not present during the process is similarly unpersuasive.”
Motion in limine to bar the government from using defendant’s prior convictions; Luce v United States; FRE 609; Identification testimony; FRE 701; Motion to sever a felon in possession (FIP) charge; Whether a 16-month delay in adding the charge indicated “vindictiveness”; Sentencing; Two-level enhancement under USSG § 2B3.1(b)(4)(B) for physically restraining a person “to facilitate commission of the offense”; Use of the higher base offense level under § 2A2.1(a)(1) for attempted first-degree murder after applying the cross-reference at § 2K2.1(c)(1)(A)
The court held that defendant-Howell forfeited his challenge to the denial of his motion in limine to prohibit the government from using his prior convictions to impeach him because he declined to testify at trial. It found any error in the admission of identification testimony harmless and rejected his arguments as to his FIP charge. Finally, it upheld application of §§ 2A2.1(a)(1) and 2B3.1(b)(4)(B) in his sentencing. He was convicted of armed bank robbery, brandishing a firearm during the robbery, attempted armed bank robbery, discharging a firearm during the attempted robbery, and FIP. Two robberies were involved – the “Finger Bank” robbery and the “Reagan Bank” robbery. The court first held that because he declined to testify at trial, he forfeited his challenge to the district court's denial of his motion in limine to bar the government from using his prior convictions to impeach him under FRE 609. He also claimed that the district court erred by denying his motion to preclude a bank manager’s identification testimony, arguing it constituted opinion testimony under FRE 701. The court agreed that her identification was not based on the robbery itself and instead occurred to her after she saw the Reagan robbery on the news and learned Howell had been arrested for the crimes. But it held that reversal was not required because the error was harmless where it did not “substantially sway[]” the jury or affect the outcome of the trial, considering the “overwhelming” evidence against Howell. The court also held that the district court did not err by denying his motion to sever the FIP charge, because there was a strong nexus between the bank robbery and the firearm charges. Further, the 16-month delay in adding the FIP charge did not indicate “vindictiveness” where the government rebutted any such presumption by showing that the additional charge was based on new evidence. As to his 466-month sentence, the court affirmed the enhancement under § 2B3.1(b)(4)(B) for “physically restrain[ing]” a person to facilitate commission of the crime, holding that forcing a bank employee to lie on the floor supported the “restraint” element. It also agreed with the district court’s imposition of a higher base offense level under § 2A2.1(a)(1) for attempted first-degree murder after applying the cross-reference at § 2K2.1(c)(1)(A), where the evidence supported a finding of “specific intent to kill.” Affirmed.
Medical malpractice; Cox v Flint Bd of Hosp Managers; Affidavit of merit (AOM); MCL 600.2912d(1); Expert testimony; MCL 600.2169; Woodard v Custer; Standard of care (SOC)
The court held that the trial court erred by failing to strike plaintiff’s expert witness (S) as he was not qualified to give SOC testimony against defendant-doctor. Plaintiff sued defendant for medical malpractice alleging he performed a post-operative procedure to control pain without his consent, causing him harm. The trial court denied defendant’s motion to strike S’s expert testimony, noting “it was clear that a pain-medicine procedure was at the heart of plaintiff’s action, and, consequently, pain medicine was the one most relevant specialty.” On appeal, defendant argued that the trial court erred by finding S was qualified to testify against him because although they were both “board-certified in anesthesiology and pain medicine, [defendant] was practicing anesthesiology at the time of the alleged malpractice,” while S devoted 100% of his time to the practice of pain medicine. The court agreed. “Although a pain-medicine procedure was used, the particular nerve block [defendant] employed is most commonly used by anesthesiologists in connection with surgeries.” Indeed, S “acknowledged that he had not performed a femoral nerve block in at least 12 years because ‘operating room anesthesiologists are typically the ones that are providing those services.’ While such regional nerve blocks are typically placed preoperatively, anesthesiologists occasionally perform them postoperatively. When the procedure to control plaintiff’s pain is viewed within the context of the underlying surgery, it becomes evident that the one most relevant specialty is anesthesiology and not pain medicine.” Moreover, in the year immediately preceding the date of the alleged medical malpractice, S “had not devoted the majority of his professional time to either the active clinical practice of anesthesiology or to the instruction of students in anesthesiology.” Finally, plaintiff’s action “encompassed not only the events that took place after the surgery on his fractured patella and immediately before the nerve block was performed, but also events that occurred before the surgery when plaintiff allegedly stated his desire for no regional nerve blocks.” The postoperative nerve block “cannot be viewed in isolation or in a vacuum given the nature of plaintiff’s lawsuit; rather, all of the circumstances surrounding the surgery must be considered, and it was the practice of anesthesiology and not pain medicine that was the relevant specialty when the circumstances are viewed more broadly, as is appropriate in this case.” Reversed and remanded.
Slip & fall action; Premises liability; Negligence; Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc; Duty to an invitee; Stitt v Holland Abundant Life Fellowship; Notice; Lowrey v LMPS & LMPJ, Inc; Constructive notice; Distinguishing Clark v Kmart Corp
The court held that the trial court properly granted defendant-gas station summary disposition of plaintiff’s slip and fall claim because he failed to provide any evidence that defendant had actual or constructive notice of the allegedly dangerous condition of its bathroom floor. Plaintiff sued defendant for injuries he suffered when he slipped and fell in defendant’s bathroom. He claimed he slipped on soap that had leaked out of a dispenser. The trial court found plaintiff failed to establish that defendant had notice of the hazardous condition. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant’s motion on the basis that he failed to provide sufficient evidence to create a genuine question of material fact as to defendant’s notice of the hazardous condition. “Aside from pure speculation as to how the soap dispenser may have been damaged or leaked—accepting plaintiff’s testimony as true that it was leaking—plaintiff has not provided evidence of constructive notice.” It noted that he “did not present any evidence that other customers complained that the floor in the men’s bathroom was slippery or that the soap dispenser was broken before he fell.” Further, although plaintiff contended that “the mess in the bathroom earlier in the evening should have put defendant on notice that there could be additional damage to the bathroom, a defendant in a premises liability action is not required ‘to present evidence of a routine or reasonable inspection . . . to prove a . . . lack of constructive notice of a dangerous condition on its property.’” Finally, the court distinguished this case from Clark “because plaintiff did not provide any evidence to support an inference that soap, or any other slippery substance, had been on the bathroom floor for a significant amount of time such that defendant should have known of its existence.” Affirmed.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Due process; In re TK; Guardianships; In re Affleck/Kutzleb/Simpson Minors; In re Timon
Holding that respondent-mother’s due process rights were not violated, and that her abandoned guardianship argument had no merit, the court affirmed the order terminating her parental rights to the child (K). She asserted that the trial court violated her right to due process by relying on evidence apart from the testimony at the termination hearing – specifically, “oral and written statements from” K’s foster parents, statements from an expert (S) from Infant Mental Health, “and letters from members of the community in support of” K’s foster parents. In its opinion and order, the trial court stated that it cited and incorporated “by reference oral and written arguments and statements provided to the court by the . . . foster parents that detail clear-and-convincing evidence for such termination and prove same” was in K’s best interests. While it was “unclear to which specific arguments and statements the trial court was referring[,]” the court concluded that “respondent had notice and an opportunity to be heard” about them. The record contained proofs of service indicating “the foster parents’ attorney mailed and e-mailed to respondent’s counsel all responses and documents the foster parents filed with the” trial court, along with their written statements in support of K’s “continued placement with them. Respondent’s counsel was present at all” the hearings where they and their attorney were present, and “made relevant arguments in response to” their attorney’s arguments. While her counsel did not mention the written statements they filed or make “any arguments in response to the updates that the foster parents made on the record at the hearings,” no evidence indicated that counsel was precluded from doing so. As to S, the court found that respondent “had notice and a meaningful opportunity to be heard” about her statements, and the trial court was permitted “to take judicial notice of the facts contained in the transcript.” Likewise, she had notice and the opportunity to be heard as to the community letters of support for K’s foster parents. Further, the trial court was allowed to “rely on this evidence in making its best-interest determination, and was not required to limit its consideration to evidence presented at the termination hearing. A child protective proceeding is a single continuous proceeding that begins with a petition and ends with a determination of whether a respondent’s parental rights will be terminated.”