Divorce; Reasonableness of attorney fees; MCR 3.206(D)

After remand to the trial court for an evidentiary hearing to determine the reasonableness of the requested attorney fees, and what amount, if any, plaintiff-ex-wife was entitled to, the court found no errors warranting reversal and affirmed the trial court’s grant of her request for attorney fees after the hearing. The court concluded that the “trial court’s reasonableness determination was supported by plaintiff’s testimony at the evidentiary hearing. [She] testified that after the consent judgment was entered, she had to engage counsel due to defendant’s noncompliance with court-ordered weekly payments in” 5/19. Defendant-ex-husband “also violated other provisions of the judgment by failing to pay property taxes and credit card expenses, and failing to turn over to plaintiff the deed to a Jamaica property and the titles and possession of snowmobiles. This noncompliance resulted in plaintiff filing several motions to enforce the judgment from” 5/19 to 12/21. “Plaintiff acknowledged that the parties attended mediation sessions and entered into several stipulations related to defendant’s fulfilment of his obligations, but the parties ultimately failed to secure defendant’s compliance absent court intervention. Based on this testimony, the trial court properly concluded that an award of attorney fees under MCR 3.206(D)(2)(b) was reasonable based on defendant’s repeated noncompliance with the consent judgment.” In addition, it “properly considered the language of the consent judgment of divorce and limited plaintiff’s attorney-fee award to include only postjudgment fees related to enforcement of the judgment.” The consent judgment was entered on 9/21/18, “and the trial court properly limited the attorney-fee award to services rendered by plaintiff’s attorneys from” 5/22/19 to 12/22/21.

Motions to quash bindover & to dismiss; Intent element of first-degree child abuse; MCL 750.136b(2); People v Maynor; An omission as the corpus delicti of first-degree child abuse; People v Morrow; Distinction between the first- & second-degree child abuse statutes

In an interlocutory appeal, the court held that first-degree child abuse may be committed by omission. It also concluded the evidence presented allowed the district court to appropriately draw inferences “to find probable cause to bind over defendant on the first-degree child abuse charge.” Thus, the circuit court did not abuse its discretion in denying her motions to quash and dismiss. In Morrow, the court “rejected the argument raised in this appeal that by reading the first-degree statute to punish omissions, language in the second-degree child abuse statute would be rendered nugatory.” The court noted here that “the express inclusion of ‘omissions’ under the second-degree child abuse statute and failure to state the same in the first-degree child abuse statute does not necessitate the conclusion that the Legislature intended to exclude omissions from punishment under MCL 750.136b(2). Indeed, the first-degree child abuse statute also fails to use the term ‘act,’ when describing the manner in which an individual may commit first-degree child abuse, which indicates that first-degree child abuse could be committed by an act or omission.” The court found that the “key distinction between the two statutes is ‘whether the defendant intended the harm itself, not whether the defendant intended the act or omission that caused the serious harm.’” The evidence presented at the preliminary exam established “that defendant was the sole caretaker of AS. While in her care, AS was hospitalized because he had malnutrition and dehydration so severe that he had a dangerously high sodium level and encephalopathy. Because of the encephalopathy, AS was in ‘an altered level of consciousness’ and was difficult to keep awake. In addition, AS’s eczema was so uncontrolled and severe that certain areas of his skin were raw, open, and excoriated. Likewise, AS, who was 19 months old, weighed approximately 16 or 17 pounds, which was a troubling weight for a child of his age.” In light of his “malnourishment, altered mental state, and severely low weight, one could infer that defendant intended to cause serious physical harm or knew that serious physical harm would result from her failure to provide food and water to AS and from her failure to seek medical attention.” Affirmed.

Jury instructions & verdict form; Waived issues; Ineffective assistance of counsel; Failure to object to the instructions & jury verdict form

Holding that defendant-Carter-Carr “waived any issues with his jury instructions and verdict form and . . . failed to demonstrate his counsel was ineffective[,]” the court affirmed his CSC I convictions and sentences. The court disagreed in both respects with Carter-Carr’s claims that (1) “the trial court coerced a jury verdict by failing to fulfill the jury’s request for a transcript of [the complainant, twelve-year-old-]MN’s testimony and (2) the jury verdict form was improper and he was entitled to a new trial.” Carter-Carr argued his challenge to the trial “court’s response to juror questions [was] an unpreserved constitutional issue and should be reviewed for plain error affecting his substantial rights.” The court held that “in this case, defense counsel did not fail to object to challenged jury instructions as given. Rather, defense counsel here expressly approved the trial court’s instructions in response to the jury’s questions on day three of trial by answering ‘yes’ when asked if satisfied with both instructions. ‘This constitutes a waiver that extinguishes any error. Thus, this case does not concern unpreserved error where no timely objection was made.’” The court held that because “Carter-Carr waived, as opposed to forfeited, his rights, there is no error to review.” It concluded that these “alleged errors can only be considered in the context of an ineffective assistance of counsel claim, which we do later in this opinion.” It found that as “with the first issue, defense counsel expressly approved the jury instructions and verdict form as given[.]” The court concluded that this “express approval also constituted waiver, extinguishing any error in the instructions and verdict form as given.” The court only considered “the alleged error with the jury verdict form in the context of an ineffective assistance of counsel claim.” It determined that defense “counsel’s failure to object to the trial court’s response to the jury’s request to review MN’s testimony arguably was objectively unreasonable.” On this record, the court could not “conclude the trial court coerced a jury verdict and thus cannot find counsel’s representation unreasonable in failing to object to the jury instructions.” Finally, as to “the jury verdict form as potential ineffective assistance of counsel[,]” the court held that read together, the trial court’s CSC I “instruction and corresponding [CSC I] options on Carter-Carr’s verdict form fairly presented the issues to be tried and sufficiently protected [his] rights.” He did not show “that if defense counsel asked for the verdict form to conform to M Crim JI 3.32, the result of the proceedings would have been different.”

Probable cause for a search warrant; MCL 780.651(1); People v Unger; Fourth Amendment reasonableness; People v Hughes; Particularity & nexus between place & evidence; People v Brcic; Deference to magistrate’s probable cause finding; People v Mullen; Use of officer experience in drug investigations; People v Darwich; Anonymous tip corroboration; Motion to suppress evidence; People v Mazzie; Franks hearing standard; People v Franklin

The court held that the search warrant for defendant’s residence was supported by probable cause and that the trial court properly denied his motion to quash the warrant, suppress the evidence, and obtain a Franks hearing. He was charged with multiple possession with intent to deliver narcotics offenses after officers executed a warrant at his home and seized various illegal drugs and related items. He unsuccessfully moved to suppress, arguing that the affidavit did not sufficiently connect his residence to drug trafficking and that the officer misrepresented his history. On appeal, the court explained that probable cause exists when “‘there is a fair probability that contraband or evidence of a crime will be found in a particular place’” and reiterated that “the affidavit underlying the warrant must be read ‘in a common-sense and realistic manner.’” It emphasized that officers had already executed warrants at homes associated with two brothers who were defendant’s alleged co-conspirators, where they recovered a digital scale with crack cocaine residue, fentanyl pills, a firearm, and additional crack cocaine residue, and seized cell phones showing “numerous drug text messages” between defendant and one of the brothers about “drug amounts, meeting locations and ‘catching plays,’ which is a common street term for making drug transactions.” The court further noted that “‘a magistrate’s finding of probable cause and his or her decision to issue a search warrant should be given great deference and only disturbed in limited circumstances.’” It concluded that the surveillance, controlled buys, shared vehicle use, and drug related communications gave a substantial basis to infer that evidence would be found in defendant’s home. As to the request for a Franks hearing, the court reiterated that the defendant must make a substantial preliminary showing that the affiant included a false statement knowingly or with reckless disregard for the truth. It held that defendant “failed to produce conclusive evidence” of falsity or recklessness, so the trial court did not err in denying an evidentiary hearing. Affirmed.

Dismissal due to an essential prosecution witness’s failure to appear; Motion for adjournment; People v Jackson; MCR 2.503(C)(2)

The court held that when the prosecution seeks an adjournment on the scheduled trial date due to an essential witness’s absence and does not offer “any evidence of diligence, the trial court does not abuse its discretion in denying that request—particularly when the request follows a series of prior adjournments.” Thus, it affirmed the trial court’s dismissal of the case without prejudice. There had been a series of prior adjournments for various reasons. The witness in question here was a police witness, N. The court noted that in Jackson, the Michigan Supreme “Court found that where a witness has been subpoenaed, has a record of responsiveness, and has given no indication of an absence, the trial court abuses its discretion in denying a continuance because there is little more a prosecutor could do.” The court determined that those circumstances were not present here. The prosecution identified N “as a key witness in its case, but did not argue to the trial court that [N] was served with a subpoena. Even if the trial court should have known that [N] was subpoenaed, the prosecution did not argue that a subpoena alone made up diligent efforts to produce the witness and warranted an adjournment. The prosecution did not offer any evidence of due diligence, stating only that a surgery was good cause. But the prosecution’s sole rationale—that the witness was scheduled for surgery—undermines any claim that it acted with diligence. The cause of [N’s] absence seemingly would have been known well in advance of the day of a surgical procedure. Further, the context of the request is important here: the prosecution’s request for an adjournment came after already lengthy pretrial delays, including time it had previously requested to locate witnesses—delays that afforded ample opportunity to exercise diligence with all witnesses.” The court concluded the trial court did not abuse its discretion in denying the adjournment request.

Ineffective assistance of counsel; Failure to timely move to suppress other acts evidence; MRE 404(b); MCL 768.27b; Relevance; Unfair prejudice; MRE 403; People v Watkins; CSC I charges under MCL 750.520b(1)(c); First-degree home invasion; Failure to object to the prosecution expert’s testimony; MRE 702; Failure to investigate the prosecution’s case; Failure to timely file a witness list & exhibit list; Failure to request a mistake of fact jury instruction; Brady v Maryland violation; Prosecutorial error; Civic duty argument; Denigrating the defense; Cumulative error; Instructional error

Holding that defendant was entitled to a new trial due to ineffective assistance of counsel and cumulative error, the court vacated his convictions and sentences and remanded for a new trial. He was convicted of CSC I under MCL 750.520b(1)(c), first-degree home invasion, and larceny from a building. The court concluded defense counsel at trial was ineffective for failing to (1) timely move to suppress other acts testimony, resulting “in the admission of evidence that was both irrelevant and highly prejudicial[,]” (2) object to the prosecution expert’s testimony, (3) investigate the prosecution’s case, (4) timely file a witness list and exhibit list, and (5) request a mistake of fact jury instruction. The other acts testimony came from three witnesses. The court found that “a large portion of” their testimony “was not relevant to prove the sexual assault offenses with which defendant was charged.” CSC I under MCL 750.520b(1)(c) has two elements – “(1) sexual penetration (2) that occurs under circumstances involving the commission of another felony.” The first element was clearly established without these witnesses’ testimony. As to the second element, only a small portion of their testimony pertained “to defendant’s propensity to enter a dwelling without permission. Because the vast majority of the testimony of the three witnesses was unrelated to that issue, the bulk of” their testimony was not relevant to the first-degree home invasion charge, except to the extent it related to larceny. The court found that apart from the limited portions of the testimony, “the remaining testimony was not only irrelevant, but also highly prejudicial. The parties in this case agreed on most of the facts; the only factual issues in dispute at the time of trial were whether defendant had permission to enter [victim-H’s] home and whether he intended to steal [H’s] phone or took it accidentally.” The court noted that defense “counsel had ample opportunity to object to the anticipated testimony . . . before trial, but disregarded the” trial court’s deadline for objections, “and waited until the afternoon before trial to file objections in a haphazard manner and without a supporting brief.” In addition to the ineffective assistance of counsel, the court found that a statement by the prosecutor “during closing argument improperly appealed to the jury’s civic duty and” contributed to cumulative error, along with an instructional error related to the CSC I charge that warranted reversal.

Divorce; Reasonableness of attorney fees; MCR 3.206(D)

After remand to the trial court for an evidentiary hearing to determine the reasonableness of the requested attorney fees, and what amount, if any, plaintiff-ex-wife was entitled to, the court found no errors warranting reversal and affirmed the trial court’s grant of her request for attorney fees after the hearing. The court concluded that the “trial court’s reasonableness determination was supported by plaintiff’s testimony at the evidentiary hearing. [She] testified that after the consent judgment was entered, she had to engage counsel due to defendant’s noncompliance with court-ordered weekly payments in” 5/19. Defendant-ex-husband “also violated other provisions of the judgment by failing to pay property taxes and credit card expenses, and failing to turn over to plaintiff the deed to a Jamaica property and the titles and possession of snowmobiles. This noncompliance resulted in plaintiff filing several motions to enforce the judgment from” 5/19 to 12/21. “Plaintiff acknowledged that the parties attended mediation sessions and entered into several stipulations related to defendant’s fulfilment of his obligations, but the parties ultimately failed to secure defendant’s compliance absent court intervention. Based on this testimony, the trial court properly concluded that an award of attorney fees under MCR 3.206(D)(2)(b) was reasonable based on defendant’s repeated noncompliance with the consent judgment.” In addition, it “properly considered the language of the consent judgment of divorce and limited plaintiff’s attorney-fee award to include only postjudgment fees related to enforcement of the judgment.” The consent judgment was entered on 9/21/18, “and the trial court properly limited the attorney-fee award to services rendered by plaintiff’s attorneys from” 5/22/19 to 12/22/21.

Auto negligence wrongful death action; MCL 600.2922; Hill v Sears, Roebuck & Co; Negligence; Duty of reasonable care; MCL 600.2922; City of Kalamazoo v Priest; Sudden-emergency doctrine; MCL 257.627(1); White v Taylor Distrib Co, Inc; Comparative fault; 50% bar; MCL 500.3135(2)(b); Rodriguez v Solar of MI, Inc; Comparative negligence allocation; MCL 600.6304; Zaremba Equip, Inc v Harco Nat’l Ins Co

The court held that genuine issues of material fact existed on both defendant’s negligence and the decedent’s comparative fault, so summary disposition for defendant was improper and the case had to be vacated and remanded. Plaintiff, as personal representative of the decedent’s estate, alleged wrongful death after defendant’s vehicle struck the decedent as he crossed a two-lane road at night from his home toward a nearby market. The trial court granted summary disposition for defendant, finding the case a “classic” sudden emergency and concluding the decedent was more than fifty percent at fault under MCL 500.3135(2)(b). On appeal, the court reiterated that drivers must “maintain a reasonable and proper lookout” and “see what is plainly there to be seen,” and that once duty is established, breach and proximate cause are generally jury questions. It emphasized eyewitness testimony that they watched the decedent walk from his home, down the driveway, and nearly across both lanes over several seconds, together with discrepancies in defendant’s and his passenger’s accounts about what they saw, whether there was time to react, where the body came to rest, and whether brakes were applied. Given this record, a jury could find defendant failed to exercise reasonable care and that the sudden-emergency doctrine did not apply. The court further held that proximate cause and comparative fault, including whether the decedent exceeded the fifty percent bar, are issues for the trier of fact where reasonable minds could differ, so summary disposition was improper.