First Amendment retaliatory arrest claim under 42 USC § 1983; Nieves v Bartlett; “Probable cause” to arrest; Assaulting, resisting, or obstructing police officers under MCL 750.81d(1); The “failure-to-comply” theory of obstruction; Whether the Nieves exception applied; Whether comparators were similarly situated to plaintiffs; “Objective evidence”; Whether there was any evidentiary basis for “filming-based animus” under the Nieves exception; “Critical-speech” theory of retaliation

[This appeal was from the ED-MI.] The court held that plaintiffs-Gradys did not establish their First Amendment retaliatory arrest claim where (1) probable cause existed for their arrest and (2) they did not provide “objective evidence” of similarly situated comparators, as required under the Nieves exception. Defendants police officers-Pearson and Cratsenburg responded to a shooting incident. The Gradys (Daniel and Shatina) were at the scene and refused the officers’ repeated orders to step back from the investigatory perimeter, questioning their authority. The situation eventually ended with plaintiffs being arrested and charged with assaulting, resisting, or obstructing the officers under MCL 750.81d(1). They were acquitted. In this case, they alleged several claims, including First Amendment retaliation against Pearson and Cratsenburg. The district court ruled that the officers had probable cause to arrest plaintiffs under the failure-to-comply theory of obstruction pursuant to the Michigan statute, and plaintiffs did not challenge that ruling on appeal. Under the Nievest framework, “the presence of probable cause ‘generally defeat[s]’ a First Amendment claim of retaliatory arrest.” But Nieves contains a “‘narrow’” exception where “‘a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.’” The district court found this exception applied. The court disagreed that the “proffered comparators permit the Gradys’ retaliation claim to proceed.” It noted that the only comparators they offered were neighbors who stood across the street from where the incident took place. There was no evidentiary support for “filming-based animus” because the neighbors were also filming the scene. The “critical-speech” theory of retaliation also failed given “several differences between” the neighbors and plaintiffs. The neighbors “stood outside the officers’ perimeter and never received a single order.” In contrast, “the Gradys walked within the perimeter to a point closer to the target house than any other bystander, and [they] ignored over a dozen lawful commands to step back.” Reversed and remanded.

First Amendment retaliatory arrest claim under 42 USC § 1983; Nieves v Bartlett; “Probable cause” to arrest; Assaulting, resisting, or obstructing police officers under MCL 750.81d(1); The “failure-to-comply” theory of obstruction; Whether the Nieves exception applied; Whether comparators were similarly situated to plaintiffs; “Objective evidence”; Whether there was any evidentiary basis for “filming-based animus” under the Nieves exception; “Critical-speech” theory of retaliation

[This appeal was from the ED-MI.] The court held that plaintiffs-Gradys did not establish their First Amendment retaliatory arrest claim where (1) probable cause existed for their arrest and (2) they did not provide “objective evidence” of similarly situated comparators, as required under the Nieves exception. Defendants police officers-Pearson and Cratsenburg responded to a shooting incident. The Gradys (Daniel and Shatina) were at the scene and refused the officers’ repeated orders to step back from the investigatory perimeter, questioning their authority. The situation eventually ended with plaintiffs being arrested and charged with assaulting, resisting, or obstructing the officers under MCL 750.81d(1). They were acquitted. In this case, they alleged several claims, including First Amendment retaliation against Pearson and Cratsenburg. The district court ruled that the officers had probable cause to arrest plaintiffs under the failure-to-comply theory of obstruction pursuant to the Michigan statute, and plaintiffs did not challenge that ruling on appeal. Under the Nievest framework, “the presence of probable cause ‘generally defeat[s]’ a First Amendment claim of retaliatory arrest.” But Nieves contains a “‘narrow’” exception where “‘a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.’” The district court found this exception applied. The court disagreed that the “proffered comparators permit the Gradys’ retaliation claim to proceed.” It noted that the only comparators they offered were neighbors who stood across the street from where the incident took place. There was no evidentiary support for “filming-based animus” because the neighbors were also filming the scene. The “critical-speech” theory of retaliation also failed given “several differences between” the neighbors and plaintiffs. The neighbors “stood outside the officers’ perimeter and never received a single order.” In contrast, “the Gradys walked within the perimeter to a point closer to the target house than any other bystander, and [they] ignored over a dozen lawful commands to step back.” Reversed and remanded.

“Flight” evidence & jury instruction (M Crim JI 4.4); Evidence defendant was hiding; People v Biegajski; Evidence about the complainant’s sexual history; MCL 750.520j; People v Sharpe; Relevance; MRE 401 & 402; Former MRE 404(a)(3); People v Bone; MRE 403; People v Mills; Prosecutorial misconduct; Appeal to the jurors’ sympathies; “Vouching” by prosecution witnesses; A police witness’s testimony; MRE 701; An expert’s testimony; Distinguishing People v Thorpe; People v Sattler-VanWagoner; Ineffective assistance of counsel; Failure to make a futile objection; Cumulative error

The court held that defendant showed no plain error as to the admission of “flight” evidence and the trial court’s giving M Crim JI 4.4. It also rejected his claims related to testimony about, and the prosecution’s closing argument references to, the complainant’s sexual history. His prosecutorial misconduct and ineffective assistance of counsel claims likewise failed. Further, it found that a police witness did not give “vouching” testimony. While it concluded some statements by a prosecution expert constituted plain error, defendant did not show outcome-determinative prejudice. Finally, his cumulative error claim failed. Thus, the court affirmed his CSC III convictions. The evidence showed “that defendant was hiding in a cut out portion of the wall inside a closet when law enforcement arrived at his home with an arrest warrant for the CSC charges. There was also evidence that [he] made this hiding place and, despite [his] assertions to the contrary, that it was specifically designed to hide a person. A rational juror could conclude from this evidence that defendant was hiding from the police and attempting to evade arrest for the CSC charges, which in turn could support an inference of consciousness of guilt.” The court noted that it “reached the same conclusion under similar factual circumstances” in Biegajski. And given that the evidence demonstrated “that defendant’s actions were undertaken with the intent to evade arrest[,]” the flight jury “instruction was amply supported by a rational interpretation of the evidence.” As to the questions and testimony about the complainant’s sexual history, the evidence here did “not involve opinion or reputation evidence of” her sexual conduct. Her challenged testimony also related “to an ‘absence of conduct’ rather than a specific instance of sexual conduct. The evidence therefore does not fall within the scope of the rape-shield statute, and defendant” failed to show that its admission was plainly erroneous. The court also rejected his arguments that it was irrelevant and that it should have been excluded under MRE 403. As to the latter, it found that the evidence did “not appear to be any more inflammatory or prejudicial than the central allegation itself—that the defendant, an adult, engaged in sexual acts with a thirteen-year-old child, which forms the basis of the charged offenses.”

Perjured testimony; Fifth Amendment’s protection against double jeopardy; Prosecution delay in disclosing evidence; Access to transcripts; MCR 7.210

The court affirmed defendant-Fluker’s assaulting, resisting, obstructing, or opposing a police officer convictions. Fluker, who represented herself on appeal, argued “the law enforcement officials involved in her case perjured themselves and authored false reports, which violated her due-process rights. While both issues were functionally abandoned due the lack of factual and record support in the briefing,” the court did its “best to address why each issue” also lacked merit. Even if she had established that Officer M “committed perjury on the stand and that the prosecution knowingly used the perjured testimony or failed to correct it (which she has not), she also has not shown that she would be entitled to relief on this basis.” The court found that “the allegedly perjured testimony had no bearing on the outcome of the case.” She also did not offer any evidence that Sergeant D “knowingly ‘authored false reports’ when he concluded, after reading the police reports describing the circumstances of her arrest, that she claimed to be a sovereign citizen.” The court also found, most crucially, that Fluker could not show “that this issue deprived her of a fair trial because it had no bearing on the jury’s consideration of whether she was guilty of the charged offenses.” In the end, she failed to show “that the alleged ‘false report’ authored by [D] deprived her of a fair trial.” As to her double jeopardy claim, because she “was not placed in jeopardy, the constitutional prohibitions on double jeopardy do not bar her subsequent prosecution arising out of the same incident.” Next, the court determined that she did not show “the prosecution’s delay in providing additional body-worn camera footage from officers at the scene who did not testify at trial or the video of her being transported to jail until several weeks before trial began inhibited her ability to prepare for trial. This footage would have necessarily shown the same events as [M’s] body-worn camera footage, albeit from different angles.” Because Fluker did not establish prejudice, she was not entitled to relief on this basis. She also alleged that she was denied access to critical transcripts which were necessary for trial preparation and her appeal. The court found that “the relevant court rules appear to have been followed, and thus Fluker’s due process rights were fairly protected.” And it was unable “to discern from [her] briefing what due-process violation she is alleging.”

Substitution of counsel; People v McFall; Breakdown in attorney-client relationship; Comparing People v Meyers; Sufficiency of the evidence; First-degree premeditated murder; MCL 750.316(1)(a); People v Oros; Identity & premeditation elements

The court held that the trial court did not abuse its discretion by denying defendant’s request for substitute counsel and that sufficient evidence supported his first-degree premeditated murder conviction. He was convicted of fatally shooting the victim in an alley behind a party store. Surveillance footage showed him and three other men arriving at the store, defendant waiting outside until the victim arrived, and following the victim into the store. It also showed the group then walking together toward the alley where the victim was shot from behind. Six days before trial, defendant unsuccessfully sought new counsel, claiming appointed counsel would not file certain motions and would not approach trial the way he wanted. On appeal, the court held that defendant failed to show good cause for substitution because counsel had made repeated efforts to meet with him, had spoken with him and his father, had visited him in jail, and was prepared for trial, while “defendant had a pattern of shutting down and walking out of meetings.” The court noted that disagreements over what motions to file are matters of trial strategy and that general dissatisfaction with counsel is insufficient. The court next held that the evidence was sufficient to prove both identity and premeditation. It explained that surveillance footage placed defendant in a blue jacket at the scene, showed him lingering until the victim arrived, and captured events immediately before the shooting, while testimony placed defendant near the alley just before the gunshot. The court concluded that this circumstantial evidence permitted the jury to find an intentional, deliberate killing beyond a reasonable doubt. Affirmed.

Other acts evidence of controlled drug buys; MRE 404(b); Jury instruction on the “doctrine of chances”; People v Mardlin; MRE 403; People v Watkins; Entrapment; People v Jade; People v Johnson; Sentencing; Proportionality challenge to a within-guidelines sentence; “Unusual circumstances”; Confidential informant (CI)

The court held that the trial court did not abuse its discretion in admitting evidence of two “prior controlled buys and in applying the doctrine of chances.” It also agreed with the trial court that defendant was not entrapped. Finally, it rejected his proportionality challenge to his within-guidelines sentence given the lack of case law supporting that any of the circumstances he cited are unusual. He was convicted of meth delivery and sentenced as a fourth-offense habitual offender to 90 months to 40 years. He first argued that the admission of other acts evidence (two other controlled buys), “combined with the jury instruction on the ‘doctrine of chances’ denied him a fair trial.” The court found that, under the doctrine, “the prosecution properly ‘weaved a logical thread’ to show that, because of the significant similarity of the other controlled buys to the charged offense, it was highly improbable that the CI was able to successfully hide meth from the police officers on three separate occasions considering that the police thoroughly searched the CI and his car before each buy and surveilled the CI to, from, and during each buy. This is a proper noncharacter inference. Further, this inference lends to the objective improbability that the CI framed defendant for the charged offense, or any of the other controlled buys.” Thus, the prosecution showed that the other acts “evidence had sufficient probative value because it made it less likely that the CI framed defendant. [It] also used the theory of logical relevance that the evidence of the other controlled buys showed defendant’s plan, scheme, or system.” The court rejected defendant’s claim “that the evidence should have been excluded under MRE 403 because of its prejudicial nature.” It held that the “evidence was proffered for a permissible purpose, was relevant, and its probative value substantially outweighed any risk of unfair prejudice.” In addition, the trial court gave an appropriate limiting instruction. As to defendant’s entrapment claim, his appellate challenge was “limited to the trial court’s determinations with respect to Factors (1), (2), (4), (7), (10), and (11).” The court found that they all weighed against a finding of entrapment. Affirmed.

First-party no-fault action; Motion for partial directed verdict on the issue of whether plaintiff sustained an accidental bodily injury; Whether plaintiff should be granted a new trial; MCR 2.611

The court held in this first-party no-fault action that while the trial court erred in not granting plaintiff’s motion for partial directed verdict, he did not provide a sufficient basis for granting a new trial. Thus, it affirmed the trial court’s judgment of no cause of action in favor of defendant-State Farm. Plaintiff argued “that the trial court erred by failing to grant his partial directed verdict motion on the issue of whether [he] sustained an accidental bodily injury because that issue was not actually in dispute in this case.” While the court agreed “that the trial court erred by failing to grant the partial directed verdict, plaintiff has failed to provide a sufficient basis for overturning the jury’s verdict in this matter.” It noted that it “is ‘reluctant to overturn a jury’s verdict where there is ample evidence to support the jury’s decision, and will do so only where [this Court] is satisfied that allowing the verdict to stand would be inconsistent with substantial justice.’” MCR 2.611(A)(1) sets forth the grounds for granting a new trial. Yet plaintiff did not cite MCR 2.611, he made no argument as to why he was “entitled to a new trial under any of the bases delineated in that court rule, and” he failed to assert “that his substantial rights were materially affected.” The court held that “even though the trial court erred by denying the partial directed verdict, we cannot find that plaintiff’s substantial rights were materially affected under MCR 2.611. Thus, under the very unique facts” here, the court could not hold that he “satisfied the legal requirements for granting a new trial.”

Appointment of a professional guardian & conservator; Procedure for seeking the replacement of a guardian or conservator; MCL 700.5415(1)(d) & 700.5310(2); Alleged violations of MCL 700.5314 & 700.1308; Alleged violations of MCL 400.11a & 700.5318; Alleged violations of MCL 700.5306(2), 700.5306a, & 700.5310; Guardian Finance & Advocacy Services (GFAS); The Social Welfare Act (SWA)

The court held that the probate court did not plainly err in appointing appellee-GFAS as professional guardian and conservator for a woman diagnosed with moderate dementia (NMR). It concluded that the appellant misstated “the law in several respects” and did not show “that GFAS violated any statutes or fiduciary duties.” The court first noted that “the probate court has exclusive jurisdiction over most of the relief” appellant sought on appeal. Any “person seeking the replacement of a guardian or conservator should file a petition in the appointing court,” pursuant to MCL 700.5415(1)(d) and 700.5310(2). As to GFAS’s alleged violations of MCL 700.5314 and 700.1308, the court noted that neither statute “imposes a requirement on fiduciaries to investigate and present alternatives to the [probate] court, and neither statute addresses compensation for fiduciaries. The statutes applicable to compensation are MCL 700.5216 and MCL 700.5413, which provide that fiduciaries are entitled to ‘reasonable compensation’ for their services. Whether a fiduciary’s requested compensation is reasonable is within the probate court’s discretion.” And the record did “not support a finding that GFAS’s fees were unreasonable” here. Appellant also asserted violations of MCL 400.11a, 700.5314, and 700.5318 due to failure “to report suspected abuse, neglect, or financial exploitation. As an initial matter: (1) MCL 700.5318 is entirely inapplicable to this issue as it involves third persons dealing with a guardian or assisting a guardian in conducting a transaction, and (2) although MCL 700.5314 requires guardians to act in their ward’s best interests,” appellant did not explain how it “imposes this particular duty. MCL 400.11a is the mandated reporting provision of the” SWA, but the record did “not establish that GFAS failed to report suspected abuse or had ‘reasonable cause to believe’ that NMR had been abused, neglected, or exploited.” As to the asserted violations of MCL 700.5306(2), 700.5306a, and 700.5310, none of these statutes set “forth any requirements that a guardian must comply with before placing a ward into a memory-care facility.” Affirmed.

Quiet title; Adverse possession; Elements; Marlette Auto Wash, LLC v Van Dyke SC Props, LLC; Hostility; Houston v Mint Group, LLC; Exclusivity; Astemborski v Manetta; Acquiescence; Tacking

The court held that the trial court properly determined that intervenors-the Hallbergs and the Westerweels acquired title to the disputed lakefront boulevard areas by adverse possession. Plaintiffs sought to quiet title to portions of platted boulevard property between the road and Emerald Lake, while the Hallbergs and Westerweels claimed ownership of their respective beach areas by adverse possession based on long-term use of docks, boats, and shoreline access. The trial court granted summary disposition to the Hallbergs, found that the Westerweels also proved adverse possession, and later denied plaintiffs’ posttrial motion. On appeal, the court held that plaintiffs’ challenge to the Hallbergs failed because they did not address the trial court’s dispositive finding that title to the Hallberg beach had already vested by 1979, and their failure to confront that basis for the ruling “obviates the need for appellate review.” The court next held that the trial court did not err in finding hostility as to the Westerweel beach, explaining that “hostile” is a term of art meaning use inconsistent with the true owner’s rights and without permission, not personal animus. The court noted that the Westerweel family had treated the property as its own for about 70 years, continuously maintained a dock, and exercised rights consistent with riparian ownership. It also rejected plaintiffs’ claim that acquiescence by neighbors showed permission, reasoning that the absence of objections did not defeat hostility. The court finally held that tacking was proper because the property remained in the same family for decades, making privity of estate clear. Affirmed.

Termination of parental rights at the initial dispositional hearing; MCL 722.638(1)(a)(ii); Termination under §§ 19b(3)(b)(i) & (k)(ii); Child’s best interests

The court affirmed the trial court’s order terminating respondent-father’s “parental rights to the . . . child at the initial dispositional hearing, pursuant to MCL 722.638(1)(a)(ii)[.]” Here, (1) the DHHS requested termination of [his] parental rights in its petition; (2) the trial court accepted his plea as a basis for jurisdiction; (3) the trial court found that there was clear and convincing evidence that he “sexually penetrated the child’s half-sibling, pursuant to MCL 722.638(1)(a)(ii),” §§ (b)(i), and (k)(ii); and (4) “the trial court found that termination of his parental rights was in the child’s best interests. The trial court did not “err by making these findings or by terminating respondent’s parental rights at the initial dispositional hearing.”