Resisting & obstructing a police officer; Sufficiency of the evidence; Lawfulness of arrest; Arrest warrant with different address; Distinguishing arrest & search warrants; MCL 764.1a & 764.1b; Authority to enter defendant’s home; Payton v New York; Consent & revocation; Jury instructions; Right to present a defense; People v Carroll

The court held that the different address on defendant’s arrest warrant did not invalidate it, sufficient evidence established that the officers lawfully entered his home and arrested him, and the jury instructions adequately presented the issue of the arrest’s legality. He was convicted of two counts of resisting and obstructing a police officer after officers entered his home on an arrest warrant and he refused their commands, resisted being handcuffed, and kicked an officer. Another resident had contacted police, told them defendant was inside, and permitted them to enter. On appeal, he argued there was insufficient evidence the officers acted lawfully because the warrant listed a different address and they lacked authority to enter the home. The court rejected his warrant argument, explaining: “Essentially, a search warrant is connected to a place and needs to describe that place; an arrest warrant is attached to a person and needs to describe that person.” Thus, the “different address did not affect the necessary requirements for the arrest warrant and the overall validity of the warrant.” As to entry into the home, the evidence showed defendant lived there and officers knew he was inside. Consequently, “the valid arrest warrant gave the officers the implicit authority to enter.” His purported revocation of consent did not change the result because “defendant’s consent is not required when officers, with a valid warrant for defendant’s arrest, attempt to arrest defendant within his own home.” The court also rejected his instructional-error claim. Although the trial court “could have provided a more robust legal framework,” it instructed the jury that an arrest based on a court-issued warrant was legal, that the prosecution had to prove legality beyond a reasonable doubt, and that the jury had to decide whether the officers acted lawfully. This “provided a fair presentation of the issue and sufficient legal context for the jury’s assessment of the legality of the arrest.” Affirmed.

Other-acts evidence; Allegedly unlawful marijuana business; MRE 404(b) & 403; People v VanderVliet; Self-defense instructions; Waiver; Self-Defense Act (SDA); MCL 780.972(1); Vagueness; Second Amendment; District of Columbia v Heller; Deadlocked-jury instruction; M Crim JI 3.12; People v Walker; Juror misconduct; Extraneous influences; MRE 606(b); People v Budzyn; Ineffective assistance of counsel; Duress instruction; Cumulative error

The court held that 1) the trial court did not abuse its discretion by admitting evidence concerning defendant’s allegedly unlawful marijuana business, 2) he waived his challenge to the self-defense instructions, 3) his constitutional challenges to the SDA failed, and 4) he was not entitled to relief based on the deadlocked-jury instruction, juror misconduct, ineffective assistance of counsel, or cumulative error. He shot the decedent six times after the decedent and another man broke into a barn on defendant’s property to steal marijuana. Defendant later burned the decedent’s body and disposed of evidence, claiming he initially acted in self-defense and later feared retaliation against his family. The jury convicted him of voluntary manslaughter, mutilation of a dead body, concealing a death, and felony-firearm. On appeal, the court concluded that evidence concerning defendant’s marijuana operation was properly admitted under MRE 404(b) to show motive and intent. It was relevant to the prosecution’s theory that he acted “with the purpose of protecting his enterprise as opposed to in defense of himself or his family,” and its probative value was not substantially outweighed by unfair prejudice. Defendant waived his instructional challenge by expressly approving the self-defense instructions. His constitutional challenges also failed because the SDA did not infringe the Second Amendment and was not vague in limiting its no-duty-to-retreat protection to a person who was “not engaged in the commission of a crime” when deadly force was used. The court further found no coercion from the standard deadlocked-jury instruction. The jury continued deliberating for three days afterward, received breaks, and affirmatively requested additional deliberation time. Although a juror improperly consulted his attorney son-in-law and relayed information to the jury, defendant failed to identify what information was conveyed or establish a “real and substantial possibility” that it affected the verdict. Finally, counsel was not ineffective for failing to raise the meritless constitutional challenge or seek a duress instruction unsupported by the circumstances, and there were no errors to cumulate. Affirmed.

Ineffective assistance of counsel; Failure to raise a meritless objection; Relevance; MRE 403; Lay witness opinion testimony; MRE 701; An officer’s description of video evidence; People v Fomby; People v Perkins; Sentencing; Presumptive proportionality of a within-guidelines sentence; People v Posey

The court held that defendant-Larson’s trial counsel was not ineffective for failing to object to an eyewitness’s testimony or a deputy’s narration of the gas station surveillance video depicting the incident giving rise to the case. It also held that Larson failed to rebut the presumption that his within-guidelines sentence was proportionate. He was convicted of two counts of CSC IV and sentenced as a fourth habitual offender to concurrent terms of 46 months (3 years and 10 months) to 15 years. He first argued that his trial counsel was ineffective for failing to object to the testimony of the gas station cashier about Larson’s comments before the victim (HA) entered the gas station. While he stressed “that he made the comments at issue before HA was inside the store” he did not cite any “authority for the proposition that statements a defendant makes before a victim enters the scene of the crime necessarily implicate MRE 404(b). In this case, the challenged evidence fell within the context of the crimes at issue. Therefore, neither the substantive nor notice requirements of MRE 404(b) were implicated.” As to relevance, evidence “of a defendant’s behavior and statements immediately before the actus reus is routinely introduced in trials involving questions of intent or purpose. This evidence also clearly implicated several of the uses permitted under MRE 404(b)(2): ‘motive, . . . intent, . . . absence of mistake, or lack of accident.’” The court also held that “the danger of admitting the testimony did not substantially outweigh the probative value. The testimony was not about some unconnected wrong that Larson had committed earlier in his life, but rather what [he] was doing and saying minutes before the criminal conduct at issue. Any resulting prejudice was therefore not ‘unfair’ for purposes of MRE 403, and in any event was countered by ample probative value.” Any objection would have had no merit. As to the deputy’s narration, as in Perkins, there was sufficient other evidence to support Larson’s convictions. Both HA and her friend “testified to events amounting to an unwanted touching of HA and . . . the cashier provided additional context.” Affirmed.

Jury instruction on the “Citizens’ Veto”; People v St Cyr; People v Patrick; People v Chamblis; Instructions on self-defense or defense of others; Threat of force; People v Ogilvie; Sentencing; Scoring of OV 19; MCL 777.49(a)

The court held that the trial court properly denied defendant-Shiffer’s request for argument or instruction on the Citizens’ Veto, and there was no error in not sua sponte instructing the jury on self-defense or defense of others. Further, it found that the OV 19 was properly scored at 25 points. Thus, the court affirmed Shiffer’s conviction of threatening or falsely reporting terrorism, and his sentence, as a fourth offense habitual offender, of 16 years and 8 months to 42 years. The case arose from a text message in which he reported that he had sent an unlit pipe bomb to a judge. On appeal, the court noted that the Citizens’ Veto refers to a “jury’s inherent power to return a verdict of not guilty based not on the evidence but rather the jurors’ own disapproval of the applicable law.” While Shiffer relied on Chamblis, the court found that case “stands for a legal proposition with which no one disagrees: Jurors have the power to nullify. Chamblis and the cases that followed indicate only that a jury may in practice exercise the Veto, not that it must, or even should, be formally reminded of that power.” The authority on which Shiffer relied “does not clearly characterize the Veto as a right of the defendant, but rather the prerogative of the jurors.” Although defendants are its potential beneficiaries, “the law does not recognize a defendant’s entitlement to instructions on it.” As to instructions on self-defense or defense of others, M Crim JI 7.22(3) to (6) describes the four requirements “and ‘use of force’ is among them. Here, there was a threat of force, which does not justify such an instruction.” The court concluded that the “evidence did not support a defense of others instruction, neither Shiffer nor his attorney actually requested” the instructions, and there was no indication that they “would have made a difference if they had been provided.” As to the OV 19 score, Shiffer’s conduct “did threaten the security of the Court until officers could officially confirm there was no actual bomb. That the concern or threat dissipated does not mean there was not an institutional threat to begin with.”

Public right-of-way; Consent judgment; Township jurisdiction; MCL 221.20; Width of public highway; Removal of trees & signage; Reasonable use; Smith v Straughn; Little v Kin; Abandonment of roadway; Ambs v Kalamazoo Cnty Rd Comm’n; Nonuse

The court held that plaintiff-Township had jurisdiction over the disputed portion of Steiner Road, had authority to require the removal of trees planted within the public right-of-way, and had not abandoned the property. The parties previously settled a quiet-title dispute through a 2007 consent judgment providing that the portion of Steiner Road from the east edge of defendants’ garage to Lake Bellaire was a Township road. After defendants later planted trees and placed private-property signs on the disputed strip, the Township obtained summary disposition requiring restoration of the property. A separate quiet-title action alleged that the Township had abandoned the strip. On appeal, the court first rejected defendants’ contention that the consent judgment did not establish the width of the Township’s jurisdiction. MCL 221.20 provides that a public highway situated on a section line is 66 feet wide, with 33 feet on each side of the section line. Because defendants presented no evidence that Steiner Road was not a public highway, “[u]nder the terms of the consent judgment and consistent with MCL 221.20, the Township retained jurisdiction over 66 feet of road” extending to the lake. The court also concluded defendants’ use of the property interfered with the Township’s right to maintain public access. “The trees were planted in the public right of way that the Township had the authority to maintain for the purpose of ensuring public access to Lake Bellaire,” giving it authority to require their removal and transplanting. Finally, defendants failed to establish abandonment, which required both an intent to relinquish the property and external acts carrying out that intent. The Township had installed signage, boulders, and later a fence, hired a company to maintain the property for 14 years, and continued to facilitate public access. Defendants offered no contrary evidence, and nonuse alone would not establish abandonment. Affirmed.

Automobile negligence; Left-lane travel; MCL 257.634(1) & (2); Statutory violation; Duty to yield; MCL 257.650(1); Comparative negligence; MCL 500.3135(2)(b); Proximate cause; Churukian v La Gest; DePriest v Kooiman

The court held that plaintiff failed to create a genuine issue of material fact that defendant breached a duty or proximately caused the collision where defendant was lawfully traveling in the left lane and plaintiff failed to yield to oncoming traffic before entering the highway. Plaintiff stopped at a stop sign on Clarion Road and attempted to turn left onto US 131, crossing in front of defendant’s vehicle traveling northbound in the left lane. She argued that defendant was negligent because MCL 257.634(1) generally requires motorists to use the right-hand lane unless passing. The court determined, however, that MCL 257.634(2) supplied an applicable exception. The undisputed evidence showed another vehicle traveling in the right-hand northbound lane alongside defendant. Thus, “defendant was entitled to this exception” permitting travel in the left lane when the lanes are occupied by vehicles moving in substantially continuous traffic. The court also rejected plaintiff’s contention that she fulfilled her duty merely by stopping and looking in both directions. As the subordinate driver attempting a left turn, she was required by MCL 257.650(1) to yield to approaching traffic constituting an immediate hazard. Like the subordinate driver in Churukian, plaintiff incorrectly judged whether she had sufficient time to complete her turn. Although negligence and comparative fault generally present jury questions, the court noted that “defendant cannot be the proximate cause of an accident occasioned by a subordinate driver’s entry onto the highway where the driver with the right of way could not have avoided the accident.” Viewing the evidence most favorably to plaintiff, she breached her statutory duty to yield to both lanes of oncoming traffic and failed to present evidence creating a factual issue that any breach by defendant proximately caused the collision. Affirmed.

Public right-of-way; Consent judgment; Township jurisdiction; MCL 221.20; Width of public highway; Removal of trees & signage; Reasonable use; Smith v Straughn; Little v Kin; Abandonment of roadway; Ambs v Kalamazoo Cnty Rd Comm’n; Nonuse

The court held that plaintiff-Township had jurisdiction over the disputed portion of Steiner Road, had authority to require the removal of trees planted within the public right-of-way, and had not abandoned the property. The parties previously settled a quiet-title dispute through a 2007 consent judgment providing that the portion of Steiner Road from the east edge of defendants’ garage to Lake Bellaire was a Township road. After defendants later planted trees and placed private-property signs on the disputed strip, the Township obtained summary disposition requiring restoration of the property. A separate quiet-title action alleged that the Township had abandoned the strip. On appeal, the court first rejected defendants’ contention that the consent judgment did not establish the width of the Township’s jurisdiction. MCL 221.20 provides that a public highway situated on a section line is 66 feet wide, with 33 feet on each side of the section line. Because defendants presented no evidence that Steiner Road was not a public highway, “[u]nder the terms of the consent judgment and consistent with MCL 221.20, the Township retained jurisdiction over 66 feet of road” extending to the lake. The court also concluded defendants’ use of the property interfered with the Township’s right to maintain public access. “The trees were planted in the public right of way that the Township had the authority to maintain for the purpose of ensuring public access to Lake Bellaire,” giving it authority to require their removal and transplanting. Finally, defendants failed to establish abandonment, which required both an intent to relinquish the property and external acts carrying out that intent. The Township had installed signage, boulders, and later a fence, hired a company to maintain the property for 14 years, and continued to facilitate public access. Defendants offered no contrary evidence, and nonuse alone would not establish abandonment. Affirmed.

Termination under § 19b(3)(j); Emotional harm; Child’s best interests; Consideration of the length of the parent’s incarceration; In re Jenks; Effect of relative placement; In re Atchley

Holding that termination was supported under § (j) and was in the child’s (ZA) best interests, the court affirmed the order terminating respondent-father’s parental rights. The case arose after CPS received complaints “alleging that ZA witnessed respondent ‘stab’ nonrespondent-mother and LK,” ZA’s half-sibling. The court concluded that admissible evidence showed that he attacked them “while ZA was present. Both mother and LK suffered multiple stab wounds that required extended medical care. Respondent’s convictions, and the details of the underlying violent conduct, were previously introduced through LK’s forensic interview testimony included with the petition,” three documents the trial court admitted at the hearing, and the trial “court taking judicial notice of respondent’s criminal file. The report outlining the results of ZA’s trauma assessment stated that ZA exhibited numerous negative psychological effects following the stabbings that impacted ‘many areas of her functioning.’” These included frequent nightmares. “The trial court noted that ZA could not be returned to respondent regardless because he was sentenced to ‘a minimum of 23.75 years.’ But it stated further that, ‘if for some reason it was a possibility,’ respondent’s” AWIM convictions for the attack “established clear and convincing evidence that ZA would be harmed if returned to his care under” § (j). The court noted that harm for purposes of this statutory ground encompasses emotional as well as physical harm. As to ZA’s best interests, the trial court found that respondent “acted ‘contradictory to his ability to appropriately parent’ by attacking ZA’s mother and LK with a knife.” It also found that whatever parent-child bond there might have been was shattered. Further, his “lack of history caring for ZA suggested that, even if he were to be released during ZA’s childhood, he failed to show that he had the ability to care for” her. While ZA’s placement with her mother weighed against termination, it was not dispositive. The “trial court appropriately considered the length of time that respondent would be incarcerated and assigned more weight to that fact.”