Delayed birth certificate; MCL 333.2828(3); Mich Admin Code R 325.3220; Original probate action; Burden of proof; Preponderance of the evidence; Competing foreign birth certificates; Witness credibility; Waived constitutional & due-process arguments

The court held that Mich Admin Code R 325.3220 did not control the probate court’s independent determination whether petitioner-Baker was born in Michigan, that Baker bore the burden of proving his Michigan birth by a preponderance of the evidence, and that the probate court did not err in finding he failed to do so. The DHHS previously issued Baker a delayed Michigan birth certificate after he produced a 1973 Egyptian birth certificate stating he was born in Michigan. It later rescinded the certificate after learning that Egypt issued another birth certificate in 2009 stating that he was born there. Baker then sought an order under MCL 333.2828(3) establishing his Michigan birth. The court rejected his argument that satisfying Rule 325.3220’s documentary requirements established a prima facie case and shifted the burden to the DHHS to prove his evidence was false or invalid. Those administrative rules governed the agency’s issuance and rescission of delayed certificates, while the probate proceeding was treated as an original action requiring the court to independently determine the facts. Thus, Baker had to establish that “it was more likely than not that he was born in Michigan.” The evidence included the conflicting Egyptian birth certificates, testimony from Baker’s half-brother recalling Baker’s birth in Detroit when the witness was eight years old, and Baker’s own 2012 federal filing stating that he had applied for and received an Egyptian birth certificate. The probate court found the half-brother’s testimony not credible and concluded the conflicting evidence did not establish a Michigan birth. The court deferred to that credibility determination and was not definitely and firmly convinced a mistake was made. Baker’s additional constitutional, due-process, and reconsideration arguments were waived. Affirmed.

Motion for a new trial; Brady v Maryland; People v Chenault; Officer’s failure to activate his body-worn camera; Materiality requirement; Ineffective assistance of counsel; Failure to challenge the validity of the traffic stop & to seek suppression of defendant’s statements made without Miranda warnings; Reasonable suspicion; People v Anderson; Navarette v California; “In custody”; Berkemer v McCarty

The court held that the trial court did not abuse its discretion in denying defendant’s motion for a new trial because he did not establish a Brady violation based on an officer’s (B) failure to activate his body-cam. The court also rejected his claims that his trial counsel was ineffective for failing to challenge the validity of the traffic stop and to seek suppression of defendant’s statements made without Miranda warnings. He was convicted of OWI, third offense. The court first concluded he did not present evidence that B’s “body-worn camera would have captured information undermining confidence in the outcome of the trial, and thus” he failed to satisfy the materiality requirement for a Brady violation. In an affidavit attached to defendant’s motion, a witness stated that B appeared to turn his body-cam on or off, and she saw him screaming at defendant’s mother, H. But whether B yelled at H was “immaterial to the central issue of whether defendant was operating the crashed vehicle while intoxicated. Defendant’s unsupported assertion that the body camera would have yielded material evidence is speculative and insufficient to establish a Brady violation.” It added that his argument was essentially that B “failed to create certain evidence—namely, a complete video record of his actions that evening. The police are not constitutionally required to conduct specific tests during an investigation, nor are they required to generate particular types of evidence.” Further, assuming that he “intentionally deactivated his body camera, the record does not support the conclusion that he did so to conceal evidence with any discernible exculpatory value.” As to the ineffective assistance claims, the court concluded that, considering the totality of the circumstances, the tip from a witness at the scene “that the occupant of the crashed vehicle had recently left the area in a different vehicle” was reliable. And it “supported the traffic stop because it established reasonable suspicion that criminal activity may have been afoot.” The court next found that “defendant was not in custody for the purposes of Miranda because he was subjected to an ordinary traffic stop that was not functionally equivalent to a formal arrest.” Trial counsel was not ineffective for failing to make futile motions. Affirmed.

Right to present a defense; Exclusion of evidence; Waiver; Presenting the defense theory with other evidence; Sentencing; Scoring of OV 10; MCL 777.40(1)(b) or (c); Vulnerability; People v Cannon; Exploitation; People v Ziegler; Acquitted conduct; People v Yeager; People v Brown

The court held that defendant waived his right to present a defense issue, and in any event, he was still able to present the defense theory to the jury with other evidence. As to his sentencing claims, while OV 10 should have been scored at 5 points, not 10, the change did not alter his guidelines range and thus, did not require reversal. Finally, the trial court was allowed to consider his intentional shooting of the victim because it was relevant to both the acquitted charge (first-degree premeditated murder) and the conviction charge (second-degree murder). He was also convicted of felony-firearm. He was sentenced to 22-1/2 to 60 years for second-degree murder and 2 years for felony-firearm, to run consecutively. He first argued that the trial court’s exclusion of testimony that the victim underwent bariatric surgery denied him his right to present a defense. The court concluded that he waived this issue because defense counsel “expressed satisfaction with the trial court’s ultimate ruling.” His defense theory “was that despite the strain caused by the victim’s changing behavior and” an altercation between them, “he never thought about killing her until seeing her with” another man. The court noted that “the trial court never instructed the jury that it could not consider defendant’s testimony about the change in the relationship he had with the victim after her surgery. And, defendant testified that in about [4/23] his relationship with [her] changed, explaining that she was not acting like herself because she was more secretive and neglectful. In response to defense counsel’s questions, [he] denied he thought about killing the victim beginning in [4/23] or at the time of the” 7/23 incident. He also testified about that “incident without objection. Indeed, defense counsel explained this theory during closing argument.” There was no violation of his right to present a defense “because he was able to present his theory of defense to the jury.” As to sentencing, his acquitted conduct argument failed given that evidence that he purposefully stood “over the victim to shoot her again” was relevant to the malice element of second-degree murder. Affirmed.

Fifth Amendment right against self-incrimination; Custodial interrogation; Miranda v Arizona; Volunteered statements; Right to counsel; Waiver by stipulation; Ineffective assistance of counsel; Failure to move to suppress; Futile motion; Trial strategy

The court held that defendant was not entitled to relief based on the admission of his inculpatory statements because his statements to a police officer were volunteered, he waived review of his challenge to the detective-interview videos by stipulating to their admission, and he failed to establish ineffective assistance of counsel. Defendant was convicted of felony murder and first-degree child abuse after his 14-month-old son died from a head injury. While defendant waited in a patrol vehicle after his arrest, he began talking about how he disciplined his son despite the officer telling him that he would not engage with him. Defendant later participated in two recorded detective interviews in which he admitted causing bruises on the child. On appeal, the court first rejected his challenge to the patrol-car statements. “Because defendant volunteered his statements to Officer [R], no Miranda violation occurred.” The officer “explicitly told defendant that he did not want to speak with him and that he would not be responding to anything he said,” and nothing indicated R was attempting to elicit information. As to the detective interviews, the court concluded that defendant waived appellate review when counsel stipulated to the videos’ admission. “Because defense counsel stipulated to the admission of the videos, this ‘waiver has extinguished any error.’” His ineffective-assistance claims also failed. A suppression motion as to the statements to R “would have been futile,” while admitting the detective videos constituted a reasonable strategy. “The videos displayed defendant’s account of his intentions without requiring him to testify.” Thus, counsel could challenge whether defendant knowingly or intentionally caused the fatal harm while avoiding cross-examination, and the remaining evidence was independently strong enough that defendant could not establish a reasonable probability of a different result. Affirmed.

Medical malpractice; Motion for new trial; MCR 2.611(A); Trial court’s remarks & evidentiary ruling; Harmless error; MCR 2.613(A); Future medical expenses; MCL 600.6305(1)(b)(i); MRE 702; Medication awaiting FDA approval; Speculative & contingent damages; Ensink v Mecosta Cnty Gen Hosp; Cumulative error

The court held that although the trial court abused its discretion by sustaining an objection to a defense question concerning the size of plaintiff’s parathyroid glands, the error was harmless. Further, plaintiff’s future medical damages based on a medication awaiting FDA approval were not impermissibly speculative. Defendant-surgeon argued that the trial court unfairly undermined his defense by stating that counsel mischaracterized the evidence when referring to plaintiff’s parathyroid glands as microscopic. Because testimony established that the glands could not be identified with the naked eye and were confirmed microscopically, there was a sufficient evidentiary basis for the challenged question and the objection should not have been sustained. But defendant was still able to present his theory that unintentionally removing glands that could not be seen did not breach the standard of care, and the trial court expressly left their size for the jury to decide. Thus, no unfair trial resulted. Defendant also challenged future medical damages based on TransCon PTH because it lacked FDA approval at trial. The evidence showed plaintiff suffered permanent hypocalcemia, TransCon had completed phase-three trials, continued to be administered in clinical trials, and its FDA application had been denied for manufacturing-control reasons rather than safety or effectiveness. Plaintiff’s treating endocrinologist testified it was more likely than not to receive approval and that plaintiff was a candidate for it. Thus, “a reasonable certainty existed at the time of trial that TransCon would be approved by the FDA.” Expert testimony also supplied a reasonable basis for estimating its annual cost at $80,000 to $100,000. The damages therefore were not too speculative or contingent, and no cumulative error warranted a new trial. Affirmed.

Medical malpractice; Motion for new trial; MCR 2.611(A); Trial court’s remarks & evidentiary ruling; Harmless error; MCR 2.613(A); Future medical expenses; MCL 600.6305(1)(b)(i); MRE 702; Medication awaiting FDA approval; Speculative & contingent damages; Ensink v Mecosta Cnty Gen Hosp; Cumulative error

The court held that although the trial court abused its discretion by sustaining an objection to a defense question concerning the size of plaintiff’s parathyroid glands, the error was harmless. Further, plaintiff’s future medical damages based on a medication awaiting FDA approval were not impermissibly speculative. Defendant-surgeon argued that the trial court unfairly undermined his defense by stating that counsel mischaracterized the evidence when referring to plaintiff’s parathyroid glands as microscopic. Because testimony established that the glands could not be identified with the naked eye and were confirmed microscopically, there was a sufficient evidentiary basis for the challenged question and the objection should not have been sustained. But defendant was still able to present his theory that unintentionally removing glands that could not be seen did not breach the standard of care, and the trial court expressly left their size for the jury to decide. Thus, no unfair trial resulted. Defendant also challenged future medical damages based on TransCon PTH because it lacked FDA approval at trial. The evidence showed plaintiff suffered permanent hypocalcemia, TransCon had completed phase-three trials, continued to be administered in clinical trials, and its FDA application had been denied for manufacturing-control reasons rather than safety or effectiveness. Plaintiff’s treating endocrinologist testified it was more likely than not to receive approval and that plaintiff was a candidate for it. Thus, “a reasonable certainty existed at the time of trial that TransCon would be approved by the FDA.” Expert testimony also supplied a reasonable basis for estimating its annual cost at $80,000 to $100,000. The damages therefore were not too speculative or contingent, and no cumulative error warranted a new trial. Affirmed.

Mootness after PPO expiration; TM v MZ; Motion to terminate PPO; MCL 600.2950a (nondomestic PPO); Stalking; MCL 750.411h; Aggravated stalking; MCL 750.411i; Electronic stalking; MCL 750.411s; Petitioner’s burden to justify continuation; Hayford v Hayford; Hearing impairment; Due process; Homeowners association (HOA); Law Enforcement Information Network (LEIN)

The court held that respondent’s challenge to the expired PPO was not moot, the trial court did not abuse its discretion by denying his motion to terminate it, and his hearing impairment did not result in a due-process violation. Petitioner obtained a nondomestic stalking-type PPO after alleging that respondent-HOA president repeatedly appeared near her home, sent harassing communications, threatened to disclose personal information, and used HOA matters to pressure her and her husband. Although the PPO expired while the appeal was pending, the appeal remained live because an improperly issued PPO could be identified in LEIN as rescinded. At the hearing on respondent’s motion to terminate, petitioner also testified that after the PPO issued, respondent continued driving by her home, shining lights into it, and appearing outside despite the condominium association having been placed in receivership. Respondent denied much of the alleged conduct, but emails supported petitioner’s testimony that he threatened to publicize information about her. The trial court found respondent’s testimony argumentative, evasive, and not credible. Giving appropriate deference to those credibility findings, the court concluded petitioner “established a justification for the continuance of the PPO” and met her burden after respondent moved to terminate it. The court also rejected his contention that his hearing impairment prevented meaningful participation in the Zoom hearing. Once respondent disclosed difficulty hearing, the trial court directed him to signal if he could not hear, asked others to speak louder, and offered to reconvene in person with hearing assistance if necessary. Respondent said the accommodation was sufficient and did not thereafter indicate that he could not hear. Thus, he “was able to, and in fact did, participate in the hearing.” Affirmed.

Delayed birth certificate; MCL 333.2828(3); Mich Admin Code R 325.3220; Original probate action; Burden of proof; Preponderance of the evidence; Competing foreign birth certificates; Witness credibility; Waived constitutional & due-process arguments

The court held that Mich Admin Code R 325.3220 did not control the probate court’s independent determination whether petitioner-Baker was born in Michigan, that Baker bore the burden of proving his Michigan birth by a preponderance of the evidence, and that the probate court did not err in finding he failed to do so. The DHHS previously issued Baker a delayed Michigan birth certificate after he produced a 1973 Egyptian birth certificate stating he was born in Michigan. It later rescinded the certificate after learning that Egypt issued another birth certificate in 2009 stating that he was born there. Baker then sought an order under MCL 333.2828(3) establishing his Michigan birth. The court rejected his argument that satisfying Rule 325.3220’s documentary requirements established a prima facie case and shifted the burden to the DHHS to prove his evidence was false or invalid. Those administrative rules governed the agency’s issuance and rescission of delayed certificates, while the probate proceeding was treated as an original action requiring the court to independently determine the facts. Thus, Baker had to establish that “it was more likely than not that he was born in Michigan.” The evidence included the conflicting Egyptian birth certificates, testimony from Baker’s half-brother recalling Baker’s birth in Detroit when the witness was eight years old, and Baker’s own 2012 federal filing stating that he had applied for and received an Egyptian birth certificate. The probate court found the half-brother’s testimony not credible and concluded the conflicting evidence did not establish a Michigan birth. The court deferred to that credibility determination and was not definitely and firmly convinced a mistake was made. Baker’s additional constitutional, due-process, and reconsideration arguments were waived. Affirmed.

Quiet title; Whether a deed created a joint tenancy; MCL 554.44; Taylor v Taylor; Kemp v Sutton; Wengel v Wengel; Schultz v Brohl; Personal representative (PR)

Holding that the deed language was unambiguous such that it established the decedent’s (Page) intent to create a joint tenancy, the court affirmed summary disposition for defendants on plaintiff-estate’s quiet title and deed reformation claims. The estate’s PR is the only heir of the estate and was Page’s daughter. One of the defendants (Jessica), while not related to Page, regarded her as her grandmother. Over a decade before her death, Page executed the quit claim deed at issue in favor of herself and Jessica “not as tenants in common, but with full rights of survivorship.” Plaintiff sought reformation of the deed and quiet title to the property in question on the basis “the deed did not create a joint tenancy and” instead only created a tenancy in common. Plaintiff argued on appeal that “the term ‘joint’ is required to overcome the presumption of a tenancy in common, but” the court concluded case law showed that “only a clear demonstration of intent to create a joint tenancy is required.” Pursuant to Wengel, “a joint tenancy with full rights of survivorship is created by express language directly referencing words of survivorship . . . .” And in Schultz, the Michigan “Supreme Court held that a joint tenancy was created, with no use of the terms ‘joint’ or ‘jointly,’ by the survivorship language, ‘to them and the survivor of them.’ Page used the terms ‘not as tenants in common’ and ‘full rights of survivorship’ in the deed, which, by their plain language, created a joint tenancy with rights of survivorship. If there was any uncertainty of intent when analyzing the deed language, the phrase ‘not as tenants in common’ clearly rebuts the presumption that the grantor intended to create a tenancy in common.” The court found there was “no genuine issue of material fact that required a trial.”

Private dedication; Little v Kin; Redmond v Van Buren Cnty; Unrecorded plats; Johnstone v Scott; Depiction on the plat of the walks, streets, & parks; Kirchen v Remenga; Intent to create an easement in favor of the lot owners; Whether the easement was extinguished by adverse possession; Beach v Lima Twp

The court held that the evidence supported the conclusion that a common-law private dedication of a “Walk” (referred to as Pebble Drive) and a strip of land called Shore Walk “was created for the benefit of the subdivision’s lot owners.” It also held that defendants failed to show the easement was extinguished by adverse possession. The appeal concerned title and easement rights in Pebble Drive, Shore Walk, and a parcel identified on the unrecorded plats as Spring Park. The court applied Redmond’s analytical framework, under which “the dispositive inquiry is whether a common-law private dedication is established by the unrecorded plat and the relevant historical evidence.” The court found that “the depiction on the plat of the walks, streets, and parks” was evidence that its creators intended the same outcome as if it had been recorded—an easement in the lot owners’ favor. And additional historical evidence in the record supported this was the intent. Thus, the record supported the finding “that the plat creators intended to establish an irrevocable easement in favor of the lot owners over the Walk at issue and Shore Walk. Spring Park appears to be a portion of Shore Walk or an area traversed by Shore Walk. With respect to acceptance, maintenance, and use, evidence demonstrated that lot owners historically used the Walk at issue to access a well near the lake for water” and since approximately 1958, it was “used as a driveway for access to Lot 31 and the lots to its east.” The court rejected defendants’ assertion that the trial court granted “the easement based on implication by necessity or convenience. Rather, [it] relied on the plat and historical evidence of” intent. As to their adverse possession claim, there was “no evidence that the Walk—i.e., Pebble Drive—was ever used in a manner inconsistent with the easement.” While the record showed that it “was used for a substantial period by the owners of lots to the east, there is no evidence that other lot owners in the subdivision were prevented from using [it] until the present dispute arose. The record further reflects that Lot 30 was previously undeveloped and that similar walks exist west of Lot 30, suggesting that other lot owners simply had no need to use Pebble Drive. An easement is not lost by mere neglect of use.” Affirmed.

Child’s best interests; In re Olive/Metts; Focus on the child rather than the parent; In re Mota

Holding that the trial court did not err in finding that terminating respondent-mother’s parental rights was in the child’s best interests, the court affirmed the termination order. She did not challenge the trial court’s finding of statutory grounds for termination. In challenging its best-interest determination, she suggested that she should have been given more “time to prove her sobriety.” But the court noted that, at this stage, the “focus must be on the child, not the parent.” The trial court, after thoroughly reviewing the evidence, determined by a preponderance of the evidence that termination was “in the child’s best interests. In making its ruling, [it] cited respondent’s disengagement from required services, her inability to bond with her child, her persistent struggles with substance abuse, and the child’s urgent need for permanence and stability. [It] also held that respondent was unlikely to successfully address her substance abuse issues within a reasonable timeframe, especially considering the child’s young age and the time spent in the relative placement’s care.” Despite the relative placement, the trial court concluded that “respondent’s lack of progress towards reunification and her ongoing substance abuse warranted the decision to terminate her parental rights. The record” showed that she “refused to participate in necessary psychological evaluations, neglected to complete a substance abuse assessment, continued to test positive for drugs, failed to secure housing or employment, engaged in criminal activity, and missed over 91 days of parenting time.” The court found no error in the trial court’s best-interest finding given “the child’s urgent need for stability alongside respondent’s substantial substance abuse problems and her neglect of the child[.]”