Admission of evidence; Whether verified statements in support of a petition for a personal protection order (PPO) were testimonial; People v Washington; Whether the victim’s statements to his girlfriend & others were admissible under MRE 803(3); People v Propp

In an order in lieu of granting leave to appeal, the court vacated Part II of the Court of Appeals judgment (see eJournal # 80920 in the 1/29/24 edition) and remanded the case to that court for reconsideration of whether certain statements were properly admitted at trial. Specifically, it remanded for reconsideration of whether (1) the verified statements in support of a petition for a PPO were testimonial in light of its decision in Washington and (2) the victim’s statements to his girlfriend and others “were admissible under MRE 803(3) in light of” its order in Propp. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Sufficiency of the evidence; First-degree home invasion; AWIGBH; Other acts evidence; People v VanderVliet; Unfair prejudice; Ineffective assistance of counsel; Failure to call witnesses; Claim that counsel’s health & behavior affected the representation

The court concluded that (1) there was sufficient evidence to support defendant-Frazier’s first-degree home invasion and AWIGBH convictions, (2) the trial court did not abuse its discretion by admitting other acts evidence about his actions after the incident, and (3) he was not denied the effective assistance of counsel. While the trial court agreed “with Frazier that he and the prosecution presented two different stories as to whether he had permission to enter” victim-S’s house, it disagreed “that conflicting accounts amounts to insufficient evidence to convict.” It was “clear from the record that at one point, Frazier had a seemingly unconditional permission to enter [S’s] home. Before [S] and Frazier broke up, they lived together in” the house. The parties agreed “that Frazier was permitted to live there and had his own key.” However, S “claimed he never financially contributed to the household and Frazier acknowledged that he was never on the lease, so actual ownership was never alleged. Further, the record supports that permission to enter was revoked.” Frazier essentially asked the court “to disregard the testimony by [S] and her family members on the ground that their version of events is incredible, but this Court may not assess their credibility.” The court held that “a rational trier of fact could have found Frazier guilty of first-degree home invasion because the evidence demonstrated that he did not have permission to enter” S’s home. Frazier also argued “there was insufficient evidence to sustain his AWIGBH conviction because the record does not reflect that he intended to seriously injure” victim-DS. The court concluded that “a rational trier of fact could have found that Frazier’s actions and [DS’s] injury demonstrated that Frazier intended to seriously injure [DS] and that he was not in imminent danger and/or lawfully in the home he entered.” As to the challenged other acts evidence, it held that the evidence “was probative of Frazier’s common plan or scheme, the fact that his entry without permission was not a mistake, and that he intended to seriously injure [DS]. Any evidence of this nature will have some prejudicial effect on the accused, but here, even if there was any danger of unfair prejudice, this danger was alleviated by its proper purpose and the trial court’s limiting instruction.”

In-court identification; Impermissibly suggestive procedures claim; People v Barclay; People v Posey; Ineffective assistance of counsel; Failure to object; Juror qualifications; MCL 600.1307a; When relief is warranted based on a disqualified juror; MCL 600.1354(1); The Sixth Amendment’s “Vicinage Clause”; People v Gayheart; Structural error; Applicability of People v Yarbrough; People v Miller; Sentencing; Scoring of PRV 5; MCL 777.55(1)(c); Habitual-offender enhancement notice; MCL 769.13; MCR 6.112(F); People v Head; Proportionality; Tether fees; MCL 769.1k(2); People v Godfrey

The court rejected defendant’s claim that a store employee’s identification of him at the preliminary exam was based on impermissibly suggestive procedures and thus, “the employee’s subsequent identification at trial should have been excluded.” It also rejected his alternative argument that defense counsel was ineffective for failing to object to the identification at trial. His claims that (1) the presence of a juror who was not a county resident on his jury warranted reversal, (2) the trial court erred in scoring 10 points for PRV 5, (3) he should not have been sentenced as a fourth-offense habitual offender, (4) his sentence was not proportional, and (5) the trial court erred in imposing $1,365 in tether fees all failed. He was convicted of first-degree retail fraud and sentenced to 46 months to 20 years. The court noted that his identification contentions were arguably foreclosed by Barclay. He relied on Posey, reasoning that, under “Posey, because a first-time-in-court identification of a perpetrator at trial is tainted, it follows that the” store employee’s first-time identification of him at the preliminary exam similarly was tainted. The court disagreed, noting that “Posey specifically considered and distinguished Barclay and its preliminary” exam identification. It concluded that “Posey arguably is limited to cases in which the initial identification occurs at trial, not when the initial identification occurs at the preliminary” exam. The record here showed that the store “employee first identified defendant at his preliminary examination before identifying [him] again at trial. Because the employee’s first identification occurred at the preliminary examination, the trial court did not need to establish an independent basis for the employee’s in-court identification to be admissible and did not plainly err by failing to do so.” The court added that, even if it plainly erred in admitting the “employee’s identification testimony at trial, defendant does not show that the improper identification affected the outcome of the proceedings. Surveillance footage also captured the image of the suspect and his distinctive tattoos. The vehicle that the suspect used in the retail theft was connected to defendant, and there was testimony from a police officer that defendant admitted that he was the individual the employee described pushing a cart full of unpaid merchandise toward the door.” The court found that the “facts, taken together, are strong evidence of defendant’s guilt regardless of the employee’s identification testimony.” Affirmed.

Eligibility for Family & Medical Leave Act (FMLA) leave; 29 CFR § 825.110(c)(3); Equitable estoppel; Whether a work stoppage constituted a “strike” under the Public Employment Relations Act (PERA); Alleged FMLA fraud; Unclean hands; Detroit Public Schools Community District (DPSCD); Fair Labor Standards Act (FLSA)

The court held that defendant-former employer (DPSCD) failed to show the absence of a genuine issue of material fact as to plaintiff-former employee’s (Bulger) FMLA eligibility. The case arose from DPSCD’s denial of Bulger’s application for a leave of absence under the FMLA and its subsequent termination of his employment. The court found that “Bulger’s evidence that he received compensation during the remote schooling period does not necessarily prove that this time was made up of ‘hours worked or services rendered,’ because he might have been compensated for other reasons.” The court held that the “evidence established a material dispute between the parties as to whether Bulger accrued actual hours worked during the building’s closure.” This conclusion did “not preclude the possibility that defendant could demonstrate the absence of a material question of fact in light of this opinion’s clarification of the applicable principles under the FMLA and FLSA.” The parties also disputed whether the statement in § 825.110(c)(3) as to “the inclusion of hours that teachers work at home applies to his job.” Defendant contended “that this statement does not apply to Bulger because he is not a teacher.” Under the circumstances, the court concluded that “the trial court erred by granting summary disposition for defendant on this ground.” It noted this did “not preclude the possibility that defendant could demonstrate in a renewed summary disposition motion that Bulger fails to demonstrate a genuine issue of material fact regarding his hours of service and FMLA eligibility.” Bulger additionally argued “that the trial court erred in accepting defendant’s argument that his work stoppage constituted a strike under PERA.” He contended “that defendant cannot belatedly justify his termination or denial of FMLA leave on the ground that he was striking because defendant failed to initiate the remedial process under MCL 423.202a.” The court noted it was clear from the record “that the alleged strike activity was not a factor in the trial court’s summary-disposition decision. Rather, [it] found that defendant submitted evidence that Bulger did not work 1,250 hours in the year preceding his FMLA request, rendering him ineligible for FMLA leave.” The court held that “if defendant had a legitimate basis for terminating Bulger’s employment on grounds of job abandonment, and that job abandonment was not excusable because it was actually striking, Bulger’s eligibility for FMLA leave would be irrelevant.” It concluded that, on “remand, if defendant proves that Bulger’s work stoppage constituted an illegal strike under PERA, the trial court may dismiss Bulger’s retaliation claim on that basis.” Reversed in part and remanded.

Involuntary mental health treatment; Due process; Attorney’s failure to meet with respondent within the time limits set by MCL 330.1454(7) & (8); MCL 330.1455(3)(b); Attorney’s failure to file the certification required by MCL 330.1454(9); Failure to inform respondent of her right under MCL 330.1463(1) to an independent clinical evaluation; Ineffective assistance of counsel; “Hearsay data” under MRE 1101(b)(10); “A person requiring treatment” under MCL 330.1401(1)(a) or (c)

The court rejected respondent’s due process, ineffective assistance of counsel, and evidentiary claims, and held that the probate court did not clearly err in finding that she was “a person requiring treatment” under MCL 333.1401(1). Thus, it concluded the probate court did not abuse its discretion in ordering her involuntary hospitalization for mental health treatment. It first considered whether she “was deprived of due process based upon her lawyer’s alleged failure to comply with MCL 330.1454(7) through (9) and MCL 330.1455(3)(b).” The petition for her involuntary hospitalization was filed on 6/19/24, and the second clinical certificate in support of the petition was filed four days later. The hearing on the petition was held on 6/27/24. The record reflected that her lawyer certified on 6/24/24 “that she met and consulted with respondent in person.” Given that this “was more than 24 hours before the [6/27/24] hearing, the requirements in MCL 330.1454(7) were satisfied. Further, because [6/24/24] occurred less than 72 hours after the second clinical certificate was filed . . . the requirements in MCL 330.1454(8) and MCL 330.1455(3)(b) were satisfied.” And given that her “lawyer promptly filed the required certification, no violation of MCL 330.1454(9) occurred. Because no violation of the statute is apparent,” respondent’s due process argument had no merit. “For the same reason, her argument that her lawyer provided ineffective assistance by failing to comply with the statute” also failed. As to whether she was a person requiring treatment, a doctor (A) diagnosed her “with ‘Bipolar Affective Disorder Manic with Psychotic Symptoms.’ He explained that respondent was manic and grandiose, and that her behaviors during her interaction with the police officer informed his diagnosis. One of the clinician certificates considered by the trial court stated that [she] had a long history of depression and anxiety. Based upon that testimony,” the court concluded that the probate court’s finding that she “had a mental illness was not clearly erroneous.” In addition, A “testified that the events that led to respondent’s involuntary hospitalization, particularly her failure to pull over for the police officer for four miles, were evidence that [she] posed a risk to herself or others.” The court also noted “that a gun was found in respondent’s car on the day of her initial hospitalization.” Affirmed.

Wrongful-death action; Premises liability; Possession or control; Gabrielson v Woods Condo Ass’n, Inc; Effect of a commercial rental lease; Applicability of the Stille-DeRossett-Hale Single State Construction Code Act (SSCCA); Applicability of the Housing Law of Michigan (HLM) & MCL 554.139; An insurer’s duty to defend; “Vacant”; Vushaj v Farm Bureau Gen Ins Co of MI; McNeel v Farm Bureau Gen Ins Co of MI; Applicability of policy exclusions for construction operations & bodily injury; United States Liability Insurance Company (USLI)

In these consolidated appeals, the court held in Docket Nos. 366490 and 368083 that defendants-AAJ Holdings, Manuel, and My, Realty Select were properly granted summary disposition based on lack of possession or control of the warehouse where plaintiff’s decedent was fatally electrocuted. In Docket Nos. 367445 and 367446, it held that the trial court did not err in ordering defendant-insurer (USLI) to defend AAJ in the wrongful-death portion of the case. Thus, it affirmed the trial court’s orders in all respects. AAJ owns the warehouse where the incident happened. It obtained insurance coverage for the warehouse through USLI. Manuel is a real estate broker who owns My, Realty Select. While he was trying to sell the property, break-ins led him “to rent the building to deter theft while he was looking for a permanent buyer.” The building was rented to nonparty-H pursuant to a Rental Agreement. As to AAJ, while plaintiff relied on sections of the SSCCA, HLM, and on MCL 554.139, none of these applied to the warehouse here. The court concluded that “if the lease agreement is valid, then the trial court properly granted summary disposition for AAJ Holdings, LLC and its agents.” And the parties resolved this question “by conceding that it is.” The court noted that “in the context of the wrongful death appeal, [they] affirmatively state that the lease is valid.” Thus, they waived this issue. As to Manuel and My, Realty Select, the court determined that whether or not the lease was valid, they “did not have possession or control of the warehouse.” As to the appeal related to USLI’s duty to defend AAJ, the court found that the “issue of whether the building was vacant involves a factual dispute.” Turning to whether policy exclusions barred coverage, it found a “genuine issue of material fact existed on whether there were construction operations occurring on the premises.” The court found that the Bodily Injury Exclusion presented “a closer question” given how broad it was. It “would arguably apply to bar coverage in this case simply because decedent was on the roof and the evidence supported he was performing work. However, questions of fact exist on the issue considering that it was unclear from the position of decedent’s body whether he was working before the incident and considering that the exclusion should be construed strictly in” AAJ’s favor.

Wrongful-death action; Premises liability; Possession or control; Gabrielson v Woods Condo Ass’n, Inc; Effect of a commercial rental lease; Applicability of the Stille-DeRossett-Hale Single State Construction Code Act (SSCCA); Applicability of the Housing Law of Michigan (HLM) & MCL 554.139; An insurer’s duty to defend; “Vacant”; Vushaj v Farm Bureau Gen Ins Co of MI; McNeel v Farm Bureau Gen Ins Co of MI; Applicability of policy exclusions for construction operations & bodily injury; United States Liability Insurance Company (USLI)

In these consolidated appeals, the court held in Docket Nos. 366490 and 368083 that defendants-AAJ Holdings, Manuel, and My, Realty Select were properly granted summary disposition based on lack of possession or control of the warehouse where plaintiff’s decedent was fatally electrocuted. In Docket Nos. 367445 and 367446, it held that the trial court did not err in ordering defendant-insurer (USLI) to defend AAJ in the wrongful-death portion of the case. Thus, it affirmed the trial court’s orders in all respects. AAJ owns the warehouse where the incident happened. It obtained insurance coverage for the warehouse through USLI. Manuel is a real estate broker who owns My, Realty Select. While he was trying to sell the property, break-ins led him “to rent the building to deter theft while he was looking for a permanent buyer.” The building was rented to nonparty-H pursuant to a Rental Agreement. As to AAJ, while plaintiff relied on sections of the SSCCA, HLM, and on MCL 554.139, none of these applied to the warehouse here. The court concluded that “if the lease agreement is valid, then the trial court properly granted summary disposition for AAJ Holdings, LLC and its agents.” And the parties resolved this question “by conceding that it is.” The court noted that “in the context of the wrongful death appeal, [they] affirmatively state that the lease is valid.” Thus, they waived this issue. As to Manuel and My, Realty Select, the court determined that whether or not the lease was valid, they “did not have possession or control of the warehouse.” As to the appeal related to USLI’s duty to defend AAJ, the court found that the “issue of whether the building was vacant involves a factual dispute.” Turning to whether policy exclusions barred coverage, it found a “genuine issue of material fact existed on whether there were construction operations occurring on the premises.” The court found that the Bodily Injury Exclusion presented “a closer question” given how broad it was. It “would arguably apply to bar coverage in this case simply because decedent was on the roof and the evidence supported he was performing work. However, questions of fact exist on the issue considering that it was unclear from the position of decedent’s body whether he was working before the incident and considering that the exclusion should be construed strictly in” AAJ’s favor.

Involuntary mental health treatment; Due process; Attorney’s failure to meet with respondent within the time limits set by MCL 330.1454(7) & (8); MCL 330.1455(3)(b); Attorney’s failure to file the certification required by MCL 330.1454(9); Failure to inform respondent of her right under MCL 330.1463(1) to an independent clinical evaluation; Ineffective assistance of counsel; “Hearsay data” under MRE 1101(b)(10); “A person requiring treatment” under MCL 330.1401(1)(a) or (c)

The court rejected respondent’s due process, ineffective assistance of counsel, and evidentiary claims, and held that the probate court did not clearly err in finding that she was “a person requiring treatment” under MCL 333.1401(1). Thus, it concluded the probate court did not abuse its discretion in ordering her involuntary hospitalization for mental health treatment. It first considered whether she “was deprived of due process based upon her lawyer’s alleged failure to comply with MCL 330.1454(7) through (9) and MCL 330.1455(3)(b).” The petition for her involuntary hospitalization was filed on 6/19/24, and the second clinical certificate in support of the petition was filed four days later. The hearing on the petition was held on 6/27/24. The record reflected that her lawyer certified on 6/24/24 “that she met and consulted with respondent in person.” Given that this “was more than 24 hours before the [6/27/24] hearing, the requirements in MCL 330.1454(7) were satisfied. Further, because [6/24/24] occurred less than 72 hours after the second clinical certificate was filed . . . the requirements in MCL 330.1454(8) and MCL 330.1455(3)(b) were satisfied.” And given that her “lawyer promptly filed the required certification, no violation of MCL 330.1454(9) occurred. Because no violation of the statute is apparent,” respondent’s due process argument had no merit. “For the same reason, her argument that her lawyer provided ineffective assistance by failing to comply with the statute” also failed. As to whether she was a person requiring treatment, a doctor (A) diagnosed her “with ‘Bipolar Affective Disorder Manic with Psychotic Symptoms.’ He explained that respondent was manic and grandiose, and that her behaviors during her interaction with the police officer informed his diagnosis. One of the clinician certificates considered by the trial court stated that [she] had a long history of depression and anxiety. Based upon that testimony,” the court concluded that the probate court’s finding that she “had a mental illness was not clearly erroneous.” In addition, A “testified that the events that led to respondent’s involuntary hospitalization, particularly her failure to pull over for the police officer for four miles, were evidence that [she] posed a risk to herself or others.” The court also noted “that a gun was found in respondent’s car on the day of her initial hospitalization.” Affirmed.

Termination under §§ 19b(3)(i) & (j); Child’s best interests; Waived notice & due process issue

The court held that because respondent-mother “waived her due process right to notice in the trial court, she cannot challenge a violation of that right on appeal. Even so, the trial court did not clearly err in finding” §§ (i) & (j) existed. The trial court also did not err in holding that termination was in the child’s (SM) best interests. As to notice, the court acknowledged that the petition to terminate her “parental rights, as filed, did not cite to [§] (i) as a ground for termination. However, any alleged notice issue in this regard is waived.” Respondent “confirmed she received notice of the amended petition, which contained the same factual allegations used as the basis for the termination of respondent’s parental rights to” another child. After moving to add provision § (i) “to the petition, DHHS did not allege any new facts against respondent.” Because she “had full notice of the allegations against her and the opportunity to be heard on those allegations, [her] due-process rights were not violated. The trial court did not clearly err in finding this statutory ground was established by clear and convincing evidence.” Also, the court held that because her “unsuitable living conditions, untreated mental health struggles, and continued contact with her ex-boyfriend would likely have traumatic and harmful effects on SM, the trial court’s finding that termination of her parental rights was proper under” § (j) was not clearly erroneous. Affirmed.