Order compelling a witness to wear jail attire when testifying; People v Banks; Mootness; Issue of public significance that is likely to recur yet evade judicial review

The court held that, on the facts of this case, the trial court abused its discretion in requiring a prosecution witness (M) to wear jail attire while testifying at defendant’s trial. Thus, it vacated the order granting defendant’s motion to compel M to do so, and remanded. The charges against defendant arose from allegations that he attacked M, a former police officer, when M responded to a call. While this case was pending, M “was arrested on unrelated charges and incarcerated in” a county jail. Defendant filed his motion after learning the prosecution intended to call M as a witness and present him in civilian clothing at defendant’s trial. As an initial matter, noting it was unknown if M was currently incarcerated, the court found that the issue was not moot, and was “one of public significance, and one that is likely to recur yet evade judicial review.” Turning to the merits, “issues related to a witness’s appearance at trial may have a significant impact on a witness’s credibility and may undermine the fairness of trial.” The court concluded in Banks that, “absent a showing that the circumstances require handcuffing a defense witness, the fairness of the trial must not be undermined by destroying the credibility of a witness before the witness even gets the opportunity to testify.” The court noted here that “persuasive authority suggests that, as a general rule, ‘courts should not compel incarcerated witnesses to appear at trial in the distinctive attire of a prisoner.’” The Nevada Supreme Court has stated the “‘overwhelming majority of jurisdictions hold that an incarcerated witness should not be compelled to testify in prison clothing.’” The court found that, as “with shackling a witness, requiring a witness to appear in jail attire raises concerns that the jail clothes will undermine the witness’s credibility and taint the fact-finding process.” Further, the conclusion that “witnesses should not be made to appear in jail attire is consistent with the general principle that criminal charges against a witness, when [they] have not resulted in a conviction, cannot be used to impeach the witnesses, unless the charges provide evidence of bias or prejudice.” The court noted that “the lawfulness of [M’s] conduct as a police officer is an element of the charges for assaulting and resisting a police officer, and [his] jail clothes could lead the jury to believe that [M] is not someone who acts lawfully.”

Sufficiency of the evidence; AWIGBH; Aiding & abetting; Armed robbery; FIP; Felony-firearm; Right to a public trial; Plain-error rule; People v Davis; Distinguishing People v Buie & People v Kline; Due process; False testimony; People v Smith

The court held that there was sufficient evidence to support defendant-Dunn’s AWIGBH, armed robbery, FIP, and felony-firearm convictions. Also, it deemed his claim of error as to his right to a public trial forfeited and found that he was not entitled to relief. Finally, “the prosecution did not violate Dunn’s due-process rights by presenting [victim-J’s] inconsistent testimony.” As to AWIGBH, the court held that “considering the nature and extent of [J’s] injuries, a reasonable fact-finder may infer the assault which caused such harm was committed with the intent to cause serious injury of an aggravated nature.” It also found that the evidence was sufficient to support his conviction of armed robbery as an aider and abettor. As to his firearm convictions, the “parties stipulated to the fact that Dunn was a felon ineligible to carry firearms at the time of the offense, and that his rights to own a firearm had not been restored.” Further, the record indicated he “possessed a firearm at the time of the incident despite his status as a felon. [J] testified that Dunn shot him, implying that Dunn was in possession of a firearm. The pertinent footage further portrays Dunn with a firearm when he forcibly removed [J’s] FN Five-seveN pistol from his possession. Thus, the elements of [FIP] were established beyond a reasonable doubt.” And as he “used a firearm in the commission of all” the other felonies, the felony-firearm convictions were “properly supported by these predicate felonies.” He next contended that his mother’s removal “from the courtroom violated his Sixth and Fourteenth Amendment rights.” The court concluded that he was “not entitled to relief under the applicable plain-error standard of review.” It found that the “trial court arguably erred if it permitted the removal of Dunn’s mother from the courtroom.” It noted there was “no indication that the trial court considered reasonable alternatives to removal, or iterate[d] findings supporting a partial closure of the courtroom, as required by Davis[.]” However, it concluded the facts of Kline and Buie were distinguishable “in that neither directly involved the removal of disruptive family members. Taking into consideration the rather ambiguous status of the law on the instant matter, we conclude any error that occurred was not plain or obvious.” The record was “not clear as to the speaker’s relationship to Dunn, whether the speaker was actually forced to leave the courtroom, and if so whether the speaker was permitted to reenter.” Lastly, as Dunn did not meet his burden to show that J’s “testimony was false, the use of this testimony does not violate the rule in Smith.” Affirmed.

Sentencing; Whether improper considerations played a role; Proportionality; Defendant’s youth as a mitigating factor; People v Boykin; Miller v Alabama; People v Snow; Life without parole (LWOP); Presentence investigation report (PSIR)

Holding that “the trial court sentenced defendant to a proportional sentence that was not an abuse of its discretion[,]” the court affirmed. He was “convicted of first-degree premeditated murder and sentenced to mandatory” LWOP for a crime committed when he was 16 years old. Following Miller, he was resentenced to 40 to 60 years. The court previously concluded “the trial court erred by failing to order certain corrections to” his PSIR. It did not address the issue of proportionality. The Michigan Supreme Court vacated that decision in part, and remanded with directions for the court to retain jurisdiction and remand the case to the trial court for further proceedings on his proportionality claim. “On remand, the trial court made the corrections to the PSIR, found that its sentencing decision was not affected by information erroneously included in the PSIR at the time, declined to resentence defendant, and concluded the remand.” The court found that the trial court complied with its “order when it stated that the erroneously included information did not affect defendant’s sentence. The Court determined in its last opinion that it was unclear from the record whether the improper information from the PSIR contributed to the” sentencing decision and thus, remanded for clarification. The court noted that the “trial court did not have to prove or provide additional explanation to this Court to support that the erroneously included information did not affect its decision.” The court also rejected his renewed proportionality argument related to his youth as a mitigating factor. It concluded the trial court’s statements indicated it reviewed his “youth and considered impulsivity connected to youth as a potentially mitigating factor. But [it] found that evidence of premeditation called into question the reliability of evidence of mitigation, including mitigation related to [his] youth. The trial court did not use [his] youth as an aggravating factor. Instead, [it] considered the goals of punishment and deterrence, the Miller factors, the Snow factors, and the principles of proportionality, in addition to considering defendant’s youth at the time of the offense.”

Sentencing under the Armed Career Criminal Act (ACCA); Procedural reasonableness; “Enhanced penalties” under 18 USC § 924(e)(1); Waiver; United States v Aparco-Centeno; “Invited error,” United States v Montgomery

[This appeal was from the WD-MI.] Concluding that “the so-called ‘labeling error’ discovered in Montgomery is not rooted in” its precedent providing “that a defendant waives an argument by expressly agreeing with a judge’s proposed course of action[,]” the court held that defendant-Jackson’s express agreements that he had three prior convictions qualifying under § 924(e) constituted a waiver of his appellate argument that he did not. Jackson was involved in several firearm and drug crimes and eventually pled guilty to illegally possessing a firearm. He “has an extensive history of firearm and drug-related offenses[,]” and acknowledged both in his plea agreement and at sentencing that he was eligible for enhanced penalties under § 924(e)(1). The agreement acknowledged the statute’s mandatory minimum 15-year sentence. He was sentenced to 212 months, which fell in the middle of the Guidelines range. On appeal, he challenged the procedural reasonableness of his sentence, arguing the district court erred by applying the enhancement. The court held that Jackson waived his appellate argument where he had “repeatedly agreed” that he had three prior convictions for violent felonies or serious drug offenses. He argued that he did not waive an appellate challenge but rather, under Montgomery, he had “merely invited the purported error” and thus, his claim was reviewable “to prevent manifest injustice.” The court noted that since Montgomery, its “distinction between waiver and invited error has been imprecise.” It noted that before Montgomery, it “consistently read Aparco-Centeno according to its own terms—as applying waiver” and that “much of the tension between waiver and invited error emerged only after Montgomery and is attributable to Montgomery.” The court concluded that in Aparco-Centeno, it was “wrong to raise the possibility—in a sentence that had no bearing on our holding—that we could review a waived argument at all.” It now reaffirmed decades of cases “holding that waiver occurs when a defendant agrees with a ‘judge’s proposed course of conduct and then [later] charge[s] the court with error in following that course.’ Jackson did not provoke or invite the district court to err. Rather, he expressly and consistently admitted that he had three qualifying predicate convictions and that he understood the associated consequences of that admission.” This constituted waiver.

Hearsay; MRE 801(c); Whether the statements at issue were “verbal acts”; Whether a recording should have been admitted under the residual hearsay exception (MRE 807, formerly 803(24)); People v Katt; People v Geno; Circumstantial guarantees of trustworthiness

Holding that the trial court correctly ruled that the statements allegedly made by a nonparty in a recording were hearsay and not admissible under any exception, the court affirmed summary disposition for defendants. The nonparty (G), who was insured by defendant-MemberSelect, submitted a claim for water damage to his home. Defendant-Rowe was assigned as the adjuster. G “contacted plaintiff, a restoration company, for an assessment. He ultimately declined to hire plaintiff, citing unprofessional conduct during the initial visit. Plaintiff’s owner,” nonparty-D, later spoke with G “by phone and secretly recorded the call. During the conversation, [G] stated that, according to Rowe, MemberSelect did not use plaintiff’s services and would not cover repairs if plaintiff were hired.” He later acknowledged at his deposition that “the voice on the recording sounded like his but stated he could not recall the conversation. He testified that Rowe never told him the claim would be denied if plaintiff performed the work and explained that he sometimes lies to avoid confrontation. Both [G] and Rowe submitted affidavits denying that Rowe made the alleged statements. Plaintiff sued defendants for defamation and tortious interference with a business relationship, relying on the recorded call.” Plaintiff argued that the statements on the recorded call did not constitute hearsay because they were “verbal acts.” The court found that the recording contained “two layers of statements that must be analyzed separately.” It concluded plaintiff would be able to offer sworn testimony from G about “Rowe’s out-of-court statement to him if [G] were willing to testify either in court or in a sworn statement. Such a statement would not be hearsay because Rowe’s out-of-court statement would be evidence of the verbal act of publication of an allegedly defamatory statement.” But that was not what plaintiff was trying to do. It sought admission of G’s out-of-court statement “for the truth of the matter that Rowe told [G] the work performed by plaintiff would not be covered.” Because it was offering the statement “for the truth of the matter asserted,” it constituted hearsay. And the court rejected plaintiff’s claim it should have been admitted under former MRE 803(24) (now MRE 807). The record made clear that it was “not supported by circumstantial guarantees of trustworthiness and should not have been admitted.”

Auto negligence; MCL 500.3135(1); Serious impairment of body function; MCL 500.3135(5); McCormick v Carrier; “Objectively manifested”; Patrick v Turkelson; Alleged impairment from a head injury; MCL 500.3135(2)(a)(ii); Churchman v Rickerson; Motion for reconsideration; Insurance medical evaluations (IME)

Holding that plaintiff failed to establish a genuine issue of material fact as to the lack of objective manifestation of his alleged impairments, the court affirmed summary disposition for defendant-Bailey in this auto negligence case. Plaintiff was in two auto collisions in the spring of 2022. The second, in May, involved defendant. The parties’ arguments focused on “whether plaintiff’s alleged impairments were objectively manifested.” Defendant presented “(1) a transcript of plaintiff’s deposition; (2) medical records related to [his] emergency-room visit immediately after the [May] collision; (3) [his] medical progress report from an orthopedic and spine specialist completed” a week later; (4) his 2/20/23 “medical report from a physician specializing in neurological disorders, along with the results of a [6/6/23] MRI of plaintiff’s brain; (5) a history and treatment chart from [his] primary care physician for a [2/17/23] visit; (6) a [9/7/23] report from an IME of plaintiff by a neurologist; and (7) a [9/8/23] report from an IME” by an orthopedic surgeon. The court held that defendant met her initial burden by showing “that plaintiff could not establish an essential element of his claim.” Thus, the burden shifted to him to show the existence of a genuine issue of disputed fact. The court found no error in the trial court’s determination that he did not. He “generally asserted that he injured his knee, but he identified nothing—either in his written response or at the motion hearing—to demonstrate any objective manifestation of that alleged impairment. As to his neck and back,” he did not explain how the “proof of his preexisting injuries might alone be sufficient to demonstrate an objectively manifested aggravation of those injuries by the” May accident. While his “medical records indicate that he complained of heightened pain in his neck and back in the days following [that] collision, and those subjective complaints are correspondingly reflected in the IME reports, this evidence did not show objective manifestation of those subjective complaints.” As to his alleged impairment from a head injury, the ER records he cited reflected “(1) no subjective complaints or objective findings regarding headaches, dizziness, or other neurological symptoms during [his] emergency-room visit immediately after the collision, and (2) subjective complaints of headaches during his [ER] visit two days after [it], but no objective manifestation of those complaints.”

Ex parte personal protection order (PPO); MCL 600.2950a(12); MCL 750.411h (stalking); Extension of a PPO

“Finding that no grounds supported entry of the original PPO ex parte nor” its extension, the court reversed and remanded. The parties were “siblings feuding over property they share as tenants in common. After having an argument on the property one day, one of” them, petitioner-DJH, sought a PPO against his sister, respondent-GMB. “The trial court issued the PPO ex parte against GMB, and by motion of DJH, subsequently extended the PPO for one additional year. On appeal, GMB, appearing in propria persona,” argued that it abused its discretion in doing so. The court noted that “DJH’s petition checked the box indicating that ‘immediate and irreparable injury, loss, or damage’ would result from any delay flowing from giving notice to GMB, but, the petition alleged no facts to support this assertion.” Instead, all that the court could gather from DJH’s petition was “that GMB threatened to sell the home, and because [they] share equal property rights to the home, we do not believe that GMB’s statements regarding sale amount to irreparable injury to DJH. Because DJH failed to show that he would sustain immediate and irreparable injury if notice was given to GMB, the trial court abused its discretion in entering the PPO ex parte.” And even if the court “agreed that the trial court had sufficient grounds to issue the PPO ex parte,” it concluded “the trial court abused its discretion in extending the PPO for an additional year.” First, the record contained “limited support that GMB engaged in ‘stalking’ or ‘harassment,’ as those terms are defined by statute, to support issuance of the initial PPO against her. Between the additional evidence regarding the September 8 incident and the lack of additional contact beyond that, the PPO should not have been extended.” Petitioner bore “the burden of establishing a justification for continuance of a PPO at a hearing on a motion to terminate the PPO.” Because the court believed DJH did not meet his burden, it found “that the trial court abused its discretion in granting the extension.”

Removal; MCL 712A.14b(1); Jurisdiction over the child; MCL 712A.2(b)(1) & (2)

The court held that (1) because all statutory requirements were met, respondent-father failed to show that the trial court clearly erred in removing his child (PNO) from his care and (2) “the trial court did not plainly err by finding grounds for jurisdiction by a preponderance of the evidence.” The court noted that respondent “was arrested for human trafficking. PNO was four years old and without supervision. Remaining on his own would present a serious risk of harm.” It also noted that he “had not identified any relatives that may immediately care for PNO, thus requiring [DHHS] to take action.” DHHS searched for a “family member that could take temporary custody of PNO and the agency was unable to find such relatives. [It] searched various databases, performed Internet searches, and worked with the police when respondent was arrested. This constitutes reasonable efforts to prevent removal.” The court noted that because “of PNO’s young age, protective custody was needed to provide him with safety and security.” Similarly, the court found that “remaining in respondent’s home alone would be contrary to PNO’s welfare.” Respondent claimed “that removal of PNO was not necessary if he made alternate plans for PNO’s care while respondent was incarcerated.” There was no evidence he “made any plans for PNO’s care.” The court noted that no “information was provided to [DHHS] about alternate plans for PNO’s care when respondent was arrested. Accordingly, removal of PNO was appropriate.” Also, the court found that “respondent mischaracterizes the facts.” On appeal, he claimed it was “unclear when he was arrested.” Thus, he alleged “he could have been providing care and custody for PNO or setting up alternate care arrangements through at least” 1/25. The court found that there “was no evidence respondent planned for his mother to take custody of PNO before his arrest.” As to the trial court’s taking jurisdiction of PNO, because he “was not placed with a relative, he was without proper custody, and jurisdiction was appropriate under MCL 712A.2(b)(1).” The court also concluded it “was appropriate under MCL 712A.2(b)(2).” The court noted that respondent “admitted that PNO was in the other room when he was arrested. [He] pleaded no contest to the allegation that PNO was in his care when the human trafficking occurred. A home where human trafficking, transportation of a person for prostitution, and torture occur is clearly an unsafe environment for a child.” Affirmed.