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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Motion for a directed verdict; Aiding & abetting; MCL 767.39; People v. Robinson; People v. Mass; Circumstantial evidence to prove intent; People v. Lee; People v. Harverson; Assault by strangulation; MCL 750.84(2); Assault with intent to murder (AWIM); MCL 750.83; People v. Davis; Inferring intent; People v. Warren (After Remand); People v. DeLisle; Double jeopardy; People v. Ford; People v. Smith; People v. Ream; Waiver; People v. Carter; Waiver of jury challenge; People v. Schmitz; People v. Hubbard (After Remand); Sentencing; People v. Lockridge; Reasonableness & proportionality; People v. Steanhouse; People v. Dixon-Bey; Consecutive sentencing; People v. Brown; Assault with intent to do great bodily harm less than murder (AWIGBH)
The court held that the trial court did not err when it denied defendant’s motion for a directed verdict on the assault by strangulation and AWIM charges against him. Further, his convictions of assault by strangulation and AWIGBH did not violate double jeopardy, and he waived his right to challenge the jury voir dire. Finally, there were no errors in sentencing. He was also convicted of third-degree fleeing and eluding, assaulting and obstructing a police officer causing a bodily injury requiring medical attention, attempt to disarm a police officer, and receiving and possessing a stolen vehicle. His convictions arose out of his attack on the trooper (G) who tried to arrest him after he failed to stop and then crashed his motorcycle. The trial court sentenced him to 10 to 15 years each for assault by strangulation and AWIGBH, 60 to 90 months each for third-degree fleeing and eluding and receiving and possessing a stolen vehicle, 48 to 72 months for assaulting and obstructing a police officer causing a bodily injury requiring medical attention, and 24 to 36 months for attempt to disarm a police officer. The court rejected his argument that the trial court erroneously denied his motion for a directed verdict on the charges of assault by strangulation and AWIM. The “evidence was sufficient to allow a rational trial of fact to conclude beyond a reasonable doubt” that defendant knew his brother (W) “intended to impede the trooper’s normal breathing by applying pressure on the trooper’s throat or neck,” and that he grabbed at G’s “firearm holster with the intent of obtaining the firearm and shooting the trooper while” W choked G. It next rejected his claim that the assault by strangulation and AWIGBH convictions violated double jeopardy, finding a “defendant may be guilty of AWIGBH without also being guilty of assault by strangulation. AWIGBH does not require strangulation, and strangulation is not the only way to assault another person.” Thus, the crimes “require proof of an element that the other does not.” While he contended that he was entitled to a new trial because the trial court allowed open voir dire of jurors about “their opinions of a video of the incident that some potential jurors viewed in the news and on social media” before trial, he waived his right to challenge the voir dire when he expressed satisfaction with the jury that was seated. Finally, the court found that the trial court did not abuse its discretion when it imposed upward departure sentences and consecutive sentences. Affirmed.
Sufficiency of the evidence to support embezzlement convictions; MCL 750.174; People v. Schrauben; People v. Fetterley; Whether the verdict was against the great weight of the evidence; People v. Solloway
Holding that there was sufficient evidence to support defendant’s embezzlement convictions and his claim that the verdict was against the great weight of the evidence failed, the court affirmed. He was convicted of five counts of embezzlement ($1,000 or more, but less than $20,000). This case arose from defendant’s sale of five vehicles at a used car dealership in Detroit owned by D. Defendant was a salesperson and the manager of the Detroit location, and the only employee there authorized to sell vehicles and accept payments. The first three elements of the crime were undisputed. He challenged the sufficiency of the evidence on the fourth element, whether he converted the money to his own use without the consent of D. The court held that the prosecution presented “sufficient evidence to show that ‘defendant dishonestly disposed of or converted the money to his own use or secreted the money[.]’” The prosecution also affirmatively established the fifth element, that the money was taken without the consent of the principal. D never consented to defendant to keeping any monies from any cash vehicle sales. Finally, the prosecution presented sufficient evidence for a rational trier of fact to “conclude that defendant intended to defraud or cheat [D] at the time of conversion. Defendant knew the procedure for depositing cash from cash sales into the drop safe at the time of sale.” But D never found money from the five cash sales “in the drop safe. Further, the prosecution presented evidence of defendant’s financial struggles, his contemporaneous purchase of a used BMW, and a seemingly spontaneous trip to Virginia” the night of the final three sales.
Other acts evidence; MRE 404(b)(1); People v. VanderVliet; People v. Knox; Relevance; MRE 401 & 402; Logical relevance of similar misconduct; People v. Sabin (After Remand); Modus operandi; People v. Golochowicz; People v. Waclawski; Sufficiency of the evidence; People v. Lane; People v. Lee; Great weight of the evidence; People v. Gadomski; Distributing or promoting child sexually abusive material; MCL 750.145c(3); Child sexually abusive material defined; MCL 750.145c(1)(o); Listed sexual act of erotic nudity; MCL 750.145c(1)(h) & (i); Lascivious defined; Principle that an individual under the age of 18 is considered a child; MCL 750.145c(1)(c); Using a computer to commit a crime; MCL 750.145d(2)(a); Distinguishing People v. Riggs
Holding that the trial court did not abuse its discretion in admitting the other acts evidence, that defendant’s convictions were supported by sufficient evidence, and that they were not against the great weight of the evidence, the court affirmed his convictions of distributing or promoting child sexually abusive material and using a computer to commit a crime. The case concerned text messages that defendant, a high school teacher and coach, exchanged with a 17-year-old student. On appeal, he challenged the admission of other acts testimony showing that he initiated contact with two other high school students via social media messages right before or shortly after they graduated and later began a sexual relationship with them. The court concluded that given “the clear similarities between the prior acts and the charged acts, the trial court could infer that [defendant] developed a plan or scheme to contact” students who were about to graduate or had recently graduated “to obtain sexually explicit photos from them and initiate a sexual relationship with them.” Also, the probative value of the evidence was “not substantially outweighed by the danger of unfair prejudice.” The other acts testimony was highly probative of his “intent in sending the text messages to the victim. In other words, this evidence negated his claim that he did not intend to ask for nude pictures from” her. Further, the prejudicial effect was “limited because both witnesses acknowledged that they were 18 years old and had graduated from high school when they started their consensual sexual relationships with” defendant. The trial court also gave a limiting jury instruction. As to the sufficiency of the evidence, which included his “own text messages, a reasonable jury could conclude beyond a reasonable doubt” that he tried to obtain child sexually abusive material from the victim, and that he used a computer (a cell phone is considered a computer for purposes of the statute) to do it. While she did not send him a photo of herself, the text messages indicated that he thought the photos were of her. The evidence also did “not preponderate so ‘heavily against the verdict . . . that it would be a miscarriage of justice to allow the verdict to stand.’”
Ineffective assistance of counsel; People v. Trakhtenberg; People v. Frazier; Matters of trial strategy; People v. Riley (After Remand); People v. Russell; Concession that defendant was guilty of felon in possession (FIP) & felony-firearm; People v. Dupree; People v. Goree; Claiming self-defense to an FIP charge; People v. Triplett; Admitting guilt to a lesser offense to lend credibility to an argument defendant is not guilty of a greater offense; People v. Urban; People v. Matuszak; Failure to object to the scoring of PRV 2; MCL 777.52(1); Principle that a sentence is invalid when the sentencing court relied on an inappropriate guidelines range; People v. McGraw; Prejudice where defense counsel’s failure to object resulted in the trial court sentencing defendant based on inaccurately scored guidelines; People v. Francisco; Remedy for a Sixth Amendment deprivation of counsel; People v. Whitfield
While the court held that defense counsel was not ineffective for conceding defendant was guilty of FIP and felony-firearm, it concluded that he was ineffective for failing to object to the scoring of PRV 2, and that defendant was entitled to resentencing on his FIP conviction. Thus, it affirmed his FIP and felony-firearm convictions, but vacated his FIP sentence and remanded for resentencing on that conviction. He was sentenced as a fourth habitual offender to 40 to 60 months for the FIP and 5 years for the felony-firearm (second offense). The court concluded that while there may have been some merit to defendant’s claim of ineffective assistance for stating that he was guilty of felony-firearm, defense counsel’s opening statement indicated that “his trial strategy was to admit that defendant was guilty of the lesser charges of” FIP and felony-firearm, while contesting his guilt on the second-degree murder charge on the basis that “he acted in self-defense. Defendant’s acquittal of second-degree murder is an apparent result of this strategy, and thus, defense counsel’s performance did not fall below an objective standard of reasonableness.” However, the court held that counsel was ineffective for not objecting to the scoring of PRV 2 as to his FIP conviction. Under MCL 777.52(1)(b), “20 points are assessed under PRV 2 if a defendant has three prior low severity convictions” as defendant had, yet the trial court agreed with the prosecution’s incorrect proposed change to PRV 2 to assess 30 points, and “defense counsel failed to object to the error.” Properly scoring PRV 2 resulted in a reduction of his PRV points from 55 to 45, placing him in PRV Level D, with a minimum guidelines range of 19 to 76 months. “A reasonably competent attorney should have noticed that PRV 2 was incorrectly assessed, and defense counsel’s failure to discover the error and object to the prosecution’s misstatement constituted performance that fell below an objective standard of reasonableness.” Defendant’s minimum guidelines range should have been 19 to 76 months, instead of 22 to 76 months. While this was a small discrepancy, he was entitled to remand for resentencing.
Cross-examination; Fifth Amendment right to be free from self-incrimination; Use of prearrest silence to impeach a defendant’s credibility; Jenkins v. Anderson; Principle that impeachment based on prearrest silence does not violate the Fourteenth Amendment right to due process; Doyle v. Ohio; People v. Weir; Sixth Amendment right to counsel; Post-Miranda “silence” as encompassing a defendant’s insistence of remaining mute until obtaining the advice of an attorney; Wainwright v. Greenfield; Prosecution’s closing argument reference to defendant’s silence; Whether the use of prearrest silence as substantive evidence of guilt violates the Fifth Amendment; Combs v. Coyle (6th Cir.); People v. Schollaert; Harmless error; Vouching; People v. Dobek; People v. Bahoda; Ineffective assistance of counsel; People v. Swain; Trial strategy; People v. Hoag; People v. Kevorkian; People v. Petri; Decisions whether to call witnesses; People v. Rockey; People v. Dixon; A substantial defense; People v. Chapo; Decisions about cross-examination; People v. McFadden; Impeaching the prosecution’s witnesses; People v. Lane; Failure to raise a meritless objection; People v. Riley
Holding that the prosecution’s cross-examination of defendant did not violate his constitutional rights, that any error in its closing argument was harmless beyond a reasonable doubt, and that he was not denied the effective assistance of counsel, the court affirmed his CSC I and II convictions. He argued that the prosecution violated his constitutional rights “by repeatedly questioning him about his decision not to speak to the police during the investigation.” The court found that his Fifth Amendment challenge to the cross-examination failed “because ‘the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.’” Impeachment based on prearrest silence also does not violate the Fourteenth Amendment’s Due Process Clause. Also, while he “repeatedly explained that he had not contacted the police or made any effort to exculpate himself on the advice of” counsel, the court “found no case law supporting that the prosecutor’s questions denied defendant his right to counsel,” and he failed to cite any. It also noted that he was represented by retained counsel throughout. Further, the U.S. Supreme Court “has portrayed post-Miranda ‘silence’ as encompassing a defendant’s insistence on remaining mute until” an attorney’s advice has been obtained. Thus, the court concluded that his “references to reliance on his attorney’s advice as the reason for his silence arise solely under the Fifth Amendment and the Due Process Clause, rather than constituting a potential violation of Sixth Amendment rights.” Unlike the cross-examination, the prosecution’s closing argument “reference to defendant’s silence did not merely seek to impeach defendant’s testimonial claim of innocence; it invited the jury to infer” his guilt based only on his silence. The court was bound by the holding in Schollaert that “the use of a defendant’s prearrest silence as substantive evidence does not contravene the Constitution.” Further, the closing argument was harmless beyond a reasonable doubt because the “potentially inappropriate use of defendant’s silence was limited to a brief portion of” closing argument and the trial court immediately “informed the jury that it could not use the silence as proof of” his guilt.
Child custody; Parenting time; Best interests of the child; Harvey v. Harvey; Whether there was proper cause or a change of circumstances; Vodvarka v. Grasmeyer
The court held that the trial court did not abuse its discretion by denying defendant-mother’s motion to set aside the parenting-time provision in the parties’ judgment of divorce. Plaintiff-father filed a motion to modify parenting time, asking the trial court to accelerate the final increase in parenting time. The trial court ultimately denied that motion. Defendant then filed a motion to set aside the final increase in plaintiff’s parenting time, which the trial court also denied. On appeal, the court rejected her argument that the trial court erred by denying her motion to set aside the increase in parenting time because it constituted a change of custody that necessitated a showing of proper cause or changed circumstances. “Defendant did not argue that circumstances had changed since the entry of the judgment of divorce that necessitated a change in custody, and the judgment of divorce contains the parties’ original agreement pertaining to custody and parenting time.” Thus, “the standard for a change in custody does not apply to defendant’s challenge.” It also rejected her argument that the increase in plaintiff’s parenting time was invalid because it did not ask whether the modification was in the child’s best interests. “Defendant provided no reason to call into question her agreement to the judgment of divorce or the trial court’s consideration of the child’s best interests when it entered that judgment.” Affirmed.
Custody; Lieberman v. Orr; MCL 722.27(1); Legal custody; MCL 722.26a(7)(b); Fisher v. Fisher; Weight accorded an expert’s testimony; Guerrero v. Smith; Judging witnesses’ credibility; State Farm Fire & Cas. Co. v. Couvier; A trial court’s discretion to receive or reject expert opinions; Michigan Dep’t of Natural Res. v. Frostman; The statutory best interest factors; MCL 722.23; McRoberts v. Ferguson; Harvey v. Harvey; Kessler v. Kessler; Failure to cite supporting legal authority; Berger v. Berger; The trial court’s decision to allow counselors to offer their opinions; Lay witness testimony; MRE 602 & 701; Principle that any witness is qualified to testify as to his or her physical observations & opinions formed as a result of them; Lamson v. Martin (After Remand); McPeak v. McPeak; Sells v. Monroe Cnty.; Decision not to admit an expert’s report into evidence; Principle that Friend of the Court reports & other similar reports are inadmissible hearsay & may not be admitted without both parties’ consent; Shelters v. Shelters; Preclusion of questioning about the expert’s credentials in an effort to bolster her testimony; Surman v. Surman; Whether the court had jurisdiction to review the trial court’s contempt order; In re Contempt of Johnson; MCR 3.709(C); MCR 7.204(A)(1)(a)
Holding that the trial court was within its discretion in giving limited weight to the testimony of an expert (L), that its physical and legal custody determinations were not against the great weight of the evidence, and that there were no evidentiary errors, the court affirmed its custody and parenting time rulings. The court also concluded that it lacked jurisdiction to review the order finding defendant-father in criminal contempt. He argued that the trial court erred in denying his request for physical custody and in awarding plaintiff-mother sole legal custody of their children. The court concluded that the trial court’s discounting of L’s testimony was supported by two general factors – (1) “the existence of several errors, mischaracterizations, and the suggestion of bias by” L and (2) “the completely contrary testimony of other witnesses, particularly of the various counselors involved with” the parties and the children over an extended time. Among other things, while L “opined on plaintiff’s ‘mental illness’ while suggesting that defendant was ‘normal’” she admitted she based her characterization in part on her “observation that plaintiff was disjointed and tangential in her thinking. Yet this was completely contrary to” the counselors’ observations. Further, L’s reports of her conversations with the “counselors were directly contradicted by” every one of the counselors. The court held that the trial court’s decision to deny defendant’s motion for a change of custody but to adjust parenting time to give the children more time with him “and to shift certain responsibilities to” him was not contrary to the great weight of the evidence. Granting plaintiff sole legal custody was also not against the great weight of the evidence. It was “consistent with the trial court’s finding that plaintiff was more likely to evaluate and consider” the children’s needs, and it comported with all of the counselors’ recommendations. The trial court did not err in admitting the counselors’ lay opinion testimony based “on their observations and history of interactions with” the parties and the children or in the weight it attributed to their testimony. It also did not err in failing to admit L’s report into evidence.
Cancellation of an insurance policy after an auto accident; Application of Titan Ins. Co. v. Hyten regarding the duties of insurers as to misrepresentations; Keys v. Pace
Holding that the trial court erred in its application of Titan regarding the duties of insurers as to misrepresentations, the court reversed summary disposition for defendant-Titan, and remanded. The case arose out of Titan’s cancellation of an auto insurance policy purchased by plaintiff-Gonzalez following her involvement in an auto accident. Gonzalez claimed that Titan had known about Gonzalez’s fiancé’s (P) existence and that the defendant-independent agent had failed in his duties as her agent by failing to add P to the policy. “The trial court found that Titan was within its rights to rescind Gonzalez’s policy and granted Titan’s motion for summary disposition.” The court concluded that the “trial court’s holding misread Titan by essentially holding that Titan was permitted to ignore information it possessed.” The Michigan Supreme Court held in Titan “that an insurer need not gratuitously engage in an affirmative investigation, but also that it may not ignore information actually in its possession.” Thus, the court found that the “trial court’s grant of summary disposition was based on a legal error.” Also, if Titan actually had knowledge indicating that P was residing with Gonzalez, “it was not permitted to ignore that information.” The court concluded that “the trial court correctly found a genuine question of fact on this issue, which, under a correct legal analysis,” precluded summary disposition.
Termination under §§ 19b(3)(g) & (j); MCL 712A.19b(3) & (5); In re Beck; In re Moss Minors; In re Ellis; In re Hudson; MCR 3.977(K); In re BZ; In re Miller; MCR 3.977(I)(1); In re LaFrance Minors; Ineffective assistance of counsel; Failure to call any lay or expert witnesses; In re Martin; People v. Carbin
The court held that the trial court properly terminated respondent-mother’s parental rights to her child (JR) where §§ (c)(i), (g), and (j) were established by clear and convincing evidence. The mother focused on the requirement to show that there was no reasonable expectation that she would have been able to provide JR proper care and custody within a reasonable time considering his age. She contended that the trial court relied almost entirely on the speculative, hearsay testimony of a social worker, which covered just a small four-month period when the social worker was in charge of supervised visitations. Given the past history of her failure to protect JR, “the remarkable number of missed drug screens, occurring in part during the pendency of the termination hearing, the poor visitation history, the failure to fully engage in and benefit from services, the lack of stable housing and employment, the deceit in communications with caseworkers, and the inadequate parenting skills,” the court could not conclude that the trial court clearly erred in finding clear and convincing evidence in support of termination pursuant to § (g). Also, as to § (j), the mother repeated her arguments made in connection with the social worker and her challenge under § (g), which failed for the same reasons expressed earlier. The main thrust of her challenge to § (j) was that she herself did not commit any physical abuse. Nevertheless, considering all of the other evidence of her shortcomings, the court could not conclude that the trial court clearly erred in finding clear and convincing evidence in support of termination pursuant to § (j). Affirmed.