Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Ineffective assistance of counsel; Investigation of defendant’s mental health; Failure to present a voluntary intoxication defense; Failure to interview witnesses; Voluntary manslaughter instruction; Advice not to testify; Challenge to People v Carpenter
Concluding that defendant was not denied the effective assistance of counsel, the court affirmed his convictions of first-degree premeditated murder, second-degree murder, and felony-firearm. Defendant did “not overcome the strong presumption that trial counsel’s performance was within the range of reasonable professional conduct.” The record supported that, “after investigation, trial counsel reasonably determined that an insanity defense would not be viable. Trial counsel contemplated the viability of an insanity defense before the preliminary examination. As a result of trial counsel’s motion, the trial court ordered that defendant be evaluated for criminal responsibility.” The examiner determined that “defendant was criminally responsible, and thus defendant’s mental status did not meet the requirements for legal insanity. Trial counsel explained that, hoping for a better outcome, he successfully acquired funds to obtain a second opinion from an independent examiner. Trial counsel further explained that, because he knew resources were very limited, he searched for the best expert he could. The examination took 4-1/2 hours and the examiner reviewed the files and other reports. The independent examiner, who had come ‘highly recommended,’ also concluded that defendant was criminally responsible. Thus, both forensic examiners reached the same conclusion.” Defendant did not make “an appropriate offer of proof to refute these findings, or to otherwise show that he was legally insane at the time of the offense to support that counsel’s decision not to further pursue additional examinations was objectively unreasonable. Further, absent an appropriate offer of proof, defendant is unable to establish that he was prejudiced in this regard.”
Reading preliminary exam testimony to the jury; MRE 804(b)(1); People v Farquharson; “Unavailable” witness; MRE 804(a)(2); The Confrontation Clause; California v Green; Prosecutorial error; Ineffective assistance of counsel; Lay opinion testimony by a police officer; MRE 701; Expert testimony; MRE 702; Prejudice for purposes of plain error or ineffective assistance; Evidence of flight jury instruction (M Crim JI 4.4); People v Coleman; Sentencing; 25-year mandatory minimum under MCL 769.12(1)(a); Cruel &/or unusual punishment; People v Carp; People v Burkett
The court held that the admission of preliminary exam testimony at trial did not violate MRE 804(b)(1) or the Confrontation Clause. While it concluded the prosecutor erred by misstating the evidence during closing argument, it found that the error was not plain and even if defense counsel was ineffective for failing to object, it did not prejudice defendant. Further, while a police witness’s testimony “nominally violated MRE 701 and 702” the court determined this “error was not prejudicial for the purposes of plain error or ineffective assistance of counsel.” It found that the trial court did not abuse its discretion in giving M Crim JI 4.4. Finally, the court rejected defendant’s claim his 25-year mandatory minimum sentence under MCL 769.12(1)(a) constituted cruel and/or unusual punishment. Thus, it affirmed his convictions and sentences for aggravated domestic assault, AWIGBH, first-degree home invasion, discharging a firearm in a dwelling, FIP of a firearm and ammunition, felony-firearm, and CCW. As to the admission of witness-M’s preliminary exam testimony, given “the majority opinion in Green, as well as more recent decisions allowing admission of preliminary examination testimony under the Confrontation Clause, we reject defendant’s argument that such testimony is either per se inadmissible or was inadmissible in this case.” As to MRE 804(b)(1), he conceded on appeal that M “was ‘unavailable’ at trial.” Thus, the question was “whether defendant had a ‘similar motive to develop the testimony by direct, cross, or redirect examination’ under MRE 804(b)(1).” Applying the three Farquharson factors to answer that question, the court held that they weighed in favor of the conclusion that M’s preliminary exam testimony was admissible. As to the prosecutor’s statement that M “did not testify at trial because he was scared[,]” nothing in M’s preliminary exam testimony clearly indicated “he did not testify at the subsequent trial because he was scared.” Further, there was nothing else in the record clearly indicating he “did not testify at trial because he was scared.” But there was evidence showing that M “was scared in general, and the female victim was scared of testifying at trial because of defendant in particular. Taken together, it is reasonable to infer that [M] did not testify at trial because he was also scared of defendant in particular.”
Statutory requirement to provide a notice of intent to sue a county road commission; Estate of Brendon Pearce v Eaton Cnty Rd Comm’n; Duty based on a contract; Third-party beneficiary to a contract; Koenig v South Haven; The Governmental Tort Liability Act (GTLA)
The court affirmed the grant of summary disposition to defendant-Tri-Us, but reversed the grant of summary disposition to defendant-Road Commission and remanded for reconsideration in light of the Supreme Court’s decision in Pearce. The case arose from injuries sustained while riding a motorcycle and allegedly “encountering loose aggregate on the road surface.” The issue as to the Road Commission was “whether plaintiffs properly and timely complied with the statutory requirement to provide defendant with a notice of plaintiffs’ intent to sue.” The trial court here applied the County Road Law “and did not analyze whether the notice complied with the requirements of the GTLA.” The Supreme Court held in Pearce that “the 120-day notice requirement of the GTLA” is the correct notice requirement for a claim against a county road commission for failure to maintain a road in reasonable repair. Although the Road Commission invited the court to engage in the analysis of whether plaintiffs’ notice complied with the GTLA’s requirements, it declined that invitation and left it to the trial court to address this issue. As to Tri-Us, plaintiffs claimed that the trial court misapplied the decision in Koenig. “Even if we were to accept plaintiffs’ argument on this point, it leaves unanswered the other two grounds: the lack of duty independent of the contract (absent the creation of a new hazard) and that plaintiffs never actually pled a claim based upon being a third-party beneficiary to the contract between Tri-Us and the Road Commission.” Thus, the court did not “need not address the applicability of Koenig as plaintiffs’ claim would nevertheless fail for the other reasons relied upon by the trial court and which go unrefuted by plaintiffs.”
Premises liability; Slip & fall due to a water puddle on a restaurant floor; Whether the condition was open & obvious; Hoffner v Lanctoe; Watts v Michigan Multi-King, Inc
Concluding that a genuine issue of material fact existed as to whether the water puddle on which plaintiff slipped and fell was open and obvious under the circumstances, the court affirmed the trial court’s denial of defendant-restaurant’s summary disposition motion. The fall occurred in a restroom. “Plaintiff stated in his deposition that he had to take a sharp right turn to get to the stalls and urinals and because of that, he did not see any water on the floor before falling. When asked if he could have seen the water if he looked down, plaintiff admitted he may have seen it if he had a longer walk after he turned into the restroom. However, a wet spot on the floor is not automatically open and obvious merely because it is visible.” While the restaurant hostess (B) testified “she saw the floor was visibly wet[,]” the court noted that she did not see the water “until after plaintiff informed her of his fall. Because [B] intended to discover what caused plaintiff’s fall when she inspected the restroom floor, her inspection was not ‘casual.’” In addition, photos of the restroom supported “the conclusion that the water could not have reasonably been discovered upon casual inspection. Any person walking through the restroom door immediately confronted a wall, requiring the person to make a 90-degree right turn to get to the stalls. Common experience and intuition suggest that the average person is likely looking forward as they walk, not peering around the edge of the door to see the general layout before walking through the threshold. When looking directly forward while walking, as one ordinarily does, the average person would see the walls of the restroom and, after turning, the dividing wall and the restroom stalls. Unless the person had some reason to look down at their feet while walking, a reasonable finder of fact could conclude that the average person would likely only notice the walls and restroom stalls. With this type of restroom layout, a finder of fact could conclude that it would be reasonable for an individual to overlook a puddle on the floor before actually stepping in it.”
Breach of fiduciary duties; Duties imposed on a personal representative (PR); Applicability of MCL 700.1510; Damages
The court concluded that the probate court did not err in holding that appellant-Tracy Wallace breached her fiduciary duties. But the court found that “the probate court clearly erred in surcharging Tracy $127,050 for tax penalties and interest, and” vacated that portion of the judgment. Tracy and TL August LLC appealed the probate court’s $525,860 judgment in favor of appellee-Byron P. Gallagher, Jr., as PR of the Estate of Daniel K. Wallace. Tracy (the former PR of the estate) and TL August asserted “MCL 700.1510 statutorily shifted responsibility for any breaches of fiduciary duty to Tracy’s prior attorneys because she relied on their advice to continue operating the businesses as Daniel had done.” The court found that there “was no evidence that Tracy delegated her investment and management functions to her attorneys.” Rather, the record established that “it was Tracy’s actions or decisions that damaged the estate. Accordingly, MCL 700.1510 is inapplicable.” Relying on MCL 700.1212 and 700.1503, Tracy and TL August contended dismissal was “warranted because the beneficiaries did not consent to litigation against Tracy and TL August. But neither of these statutes mandate that beneficiaries must consent to the personal representative filing a lawsuit.” The record established that “Tracy failed to file tax returns, failed to maintain records, used estate funds for personal expenses, and profited from a sale of estate property to her own company. In response to Gallagher’s motion for summary disposition, Tracy and TL August did not present any evidence that Tracy maintained financial records and rent rolls, maintained the property, filed tax returns, or operated the businesses without commingling funds.” However, as to damages, there was no evidence that the IRS “or the State of Michigan had actually assessed tax penalties or interest against the estate.” Affirmed in part, vacated in part, and remanded.
Child’s best interests; Effect of deciding not to terminate the other parent’s rights; In re Marin
Holding that a preponderance of the evidence supported the trial court’s finding that termination of respondent-mother’s parental rights was in the child’s (LAS) best interests, the court affirmed. The court noted that the fact the parental rights of LAS’s father were not terminated was a nonissue. The critical question was “whether respondent did what she had to do to participate in services and demonstrate improvement. She failed to do so.” Respondent’s rights to another child (BM) were terminated shortly before LAS was born. After LAS’s birth, DHHS “offered numerous services to respondent, but she failed to engage in them. She failed to visit LAS and never participated in drug screens, despite her substance abuse being a major concern. Respondent admitted that, before her incarceration in Indiana, she did not participate in services and acknowledged that she had not had any face-to-face visits with LAS. She further admitted that she failed to participate in substance abuse treatment in the year before the termination hearing, and that she did not participate in any parenting classes before her incarceration.” One of the caseworkers (S) “testified that respondent was offered drug screens three times per week, but she had not completed” even one of the over 150 that were required. The record supported “the trial court’s observation that nothing changed, both after respondent’s rights to BM were terminated and after it gave respondent additional time to participate in services after it denied the original request for termination. The trial court also found that LAS was bonded to her foster parents and to her sibling, who lived in the same home, and that the foster parents were meeting all of LAS’s needs. [S’s] testimony supported the trial court’s findings in this regard. Conversely, the court found there was no bond between LAS and respondent. Given respondent’s failure to participate in visitation with LAS, this finding was also supported by the record.”