Elliott-Larsen Civil Rights Act (ELCRA); Employment discrimination; MCL 37.2202(1)(a); McDonnell Douglas framework; Similarly situated employees; Hecht v National Heritage Acads, Inc; Retaliation; MCL 37.2701(a); Equal Employment Opportunity (EEO) complaint; Causation; Hostile work environment; National origin; Statute of limitations; Garg v Macomb Cnty Cmty Mental Health

The court held that defendant-employer was entitled to summary disposition on plaintiff’s ELCRA discrimination, retaliation, and hostile-work-environment claims. Plaintiff, a Nigerian-born Detroit police officer, was terminated after an Internal Affairs investigation found he lied about being alone with another officer. The court first held that plaintiff failed to establish a prima facie discrimination claim because he did not show that similarly situated officers outside his protected classes were treated differently. It reasoned that there was “no evidence” the other officers lied during the investigation, while plaintiff changed his position after repeatedly stating he was never alone with the officer. The court also held that the other officers were not similarly situated because plaintiff was under investigation and allegedly lied “in an attempt to escape punishment,” while the others were witnesses. The court next held that plaintiff failed to establish retaliation because the Internal Affairs investigation began before he filed an EEO complaint, and once started, it “had to be completed” as standard procedure. Thus, the investigation and termination were not motivated by retaliation but by “legitimate employment reasons.” Finally, the court held that plaintiff’s hostile-work-environment claim based on accent-related comments failed. Although the comments were “in poor taste,” they were vague, mostly time-barred, not threatening, did not interfere with work performance, and plaintiff himself joked about national origin by calling others “dumb Americans.” Affirmed.

Sentencing; Scoring of OV 3; MCL 777.33(1)(a) & (2)(b); Consideration of acquitted conduct; Applicability of People v Beck

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81445 in the 4/22/24 edition for the published opinion) and remanded the case to that court. It directed the Court of Appeals to consider: “(1) whether the jury’s acquittal of defendant on the charge of homicide resolved whether the victim’s death ‘result[ed] from the commission of a crime’”; (2) whether OV 3 was properly scored at 100 points despite defendant’s acquittal on the homicide charge, “given the OV’s use of ‘results’ rather than ‘caused’; and (3) whether” the court’s decision in Beck applied, given that defendant was acquitted of homicide, but convicted of two counts of AWIM for separate victims.

Ineffective assistance of counsel; Failure to obtain a forensic expert to testify about defendant’s psychological makeup; Failure to call particular witnesses; Failure to hire an investigator; Advice that defendant not testify; Jury instruction on accident (M Crim JI 7.3a); Handling of the jury’s request for a copy of a witness’s testimony transcript; MCR 2.513(P); Plain error review; Prosecutorial misconduct

The court held that defendant-Butler-Quarles was not entitled to relief based on her ineffective assistance of counsel claims, and that the trial court did not err in denying her request for an accident instruction. Her claim of error related to the jury’s request for a witness’s testimony transcript failed because she could not establish plain error that affected the outcome. She also failed to show plain error as to her prosecutorial misconduct claims. Thus, the court affirmed her convictions of AWIGBH, intentionally discharging a firearm in a building, first-degree home invasion, and felony-firearm. She argued that defense counsel was ineffective for, among other things, failing to “secure a forensic expert who would have testified regarding Butler-Quarles’ psychological makeup leading up to and at the time of the shooting.” She asserted that such an investigation would have shown that she “had no intention of harming anyone but herself and that she purchased the handgun for that very specific purpose.” The court first noted that “there already was evidence of [her] depression and suicidal thoughts admitted at trial. Second, Butler-Quarles being depressed or even suicidal is not a defense, per se, to the charges. [Her] depression arguably might explain why she initially purchased the handgun, but that reason for” doing so did not address why she was in her estranged husband’s “home without his permission or why” according to the assault victim (L), she “was crouched between the toilet and half-wall in the bathroom and fired upon [L] without any provocation.” The court concluded that, “assuming counsel’s performance was deficient in this aspect, there simply is not a reasonable probability that the outcome of the trial would have been any different had defense counsel procured” such psychological makeup evidence. As to the accident instruction, “there was no evidence of accident.” Regarding the jury’s request for a transcript of L’s testimony, the court found that, if “anything, less access to [L’s] testimony helped Butler-Quarles because [L’s] testimony was so damning.”

Sufficient evidence for a first-degree child abuse conviction; MCL 750.136b(2); Admission of defendant’s police statements; Whether defendant was in custody; People v. Barritt; Lack of Miranda warnings; Remedy

While the court concluded there was sufficient evidence to support defendant-Locke-Hughes’ first-degree child abuse conviction, it held that he was entitled to a new trial on all charges because the trial court erred in admitting statements he made in a “custodial interrogation performed without the benefit of Miranda warnings.” It determined that, viewed “in a light most favorable to the prosecution, the evidence presented at trial through” defendant’s 4/6 interview video indicated that he “knowingly and intentionally held” the child “down in the bathtub.” But the court ruled that the interview should not have been admitted. There was no question that he “was not advised of his Miranda rights during” it. Considering the Barritt factors, he “was questioned at the police station” and the interview lasted 1 hour and 11 minutes. He was not told during the interview “that he was free to leave. Locke-Hughes began to make some incriminating statements about twenty-five minutes into the interview and the officers continued questioning him for nearly an hour.” They were armed during the “interview, the door to the room was shut, and the officers were sitting between Locke-Hughes and the door, with their backs to the door.” Finally, the fact that he was released weighed against custody. “Based on the totality of the circumstances,” the court held that a reasonable person in his “position would not have felt free to terminate the interview and leave.” As to the next step in the analysis, it concluded that his “interview took place in a coercive environment.” It found that the effect of the statements made by the officers “was coercive, particularly for a 20-year-old person with no prior criminal charges.” Further, it could not say that his decision to go “to the station was entirely voluntary.” Thus, it held that a reasonable person in his “position would not have felt at liberty to terminate the interrogation and leave, and the environment presented the same coercive pressures as the type of station house questioning in Miranda. Therefore, Locke-Hughes was ‘in custody,’ and his Fifth Amendment rights were violated” by the lack of Miranda warnings. Further, the error was not harmless because the court could not “say that reasonable jurors would have found [him] guilty of first-degree child abuse” without the interview video.

Prosecutorial misconduct; Allegedly prejudicial comments; Ineffective assistance of counsel; Failure to raise a meritless objection; People v Heft

Rejecting defendant’s prosecutorial misconduct and related ineffective assistance of counsel claims, the court affirmed. He was convicted of second-degree murder and felony-firearm. He argued “that the prosecutor made a prejudicial comment during his opening statement and four prejudicial comments during his rebuttal which, considered individually or collectively, require a new trial.” He also contended that defense counsel was ineffective for failing to object to most of them. The court disagreed in both respects. As to the opening statement comment, defendant asserted “the prosecutor unfairly ridiculed or mocked his insanity defense.” But the court noted that “the prosecutor acknowledged that mental health is a ‘serious issue.’” Further, given that defendant told a forensic psychologist “that a voice in his head told him to shoot the victim, who he perceived as a demon, it was reasonable for the prosecutor to analogize this case to the stereotypical phrase of ‘the devil made me do it.’” And, in light of the fact “that there was some evidence introduced at trial to indicate that defendant was sane and that he tried to evade criminal responsibility for the shooting by lying to the investigators, it was reasonable for the prosecutor to suggest that defendant was using his documented mental-health issues as a mere excuse to avoid responsibility.” In short, the prosecutor argued that given “the facts of the case, the insanity defense was not appropriate to apply to defendant.” Further, no language in the challenged comment struck the court “as particularly concerning or emotionally charged. Thus, the challenged comment here was not erroneous, and defense counsel” could not be considered ineffective for failing “to raise a meritless objection.” The court also concluded that three of the challenged rebuttal comments “were not erroneous, and only the second challenged comment of rebuttal, in which the prosecutor briefly suggested that defendant lied about using Lyft, can arguably be called erroneous. However, that comment was brief, did not rise to the level of plain error, and any objection by defense counsel could not have created any reasonable probability of a different outcome of trial.”

CSC II; MCL 750.520c(1)(a); Assault with intent to commit CSC II (AWICSC II); MCL 750.520g(2); Sexual contact; Sexual arousal or gratification; MCL 750.520a; Directed verdict motion; Sufficiency of the evidence; Sentencing; Reasonableness of a within-guidelines sentence; People v Posey; Jury instructions; Waiver; Double jeopardy; People v Miller; People v Ream; Blockburger v United States

The court held that sufficient evidence supported defendant’s CSC II and AWICSC II convictions, that his within-guidelines sentence was proportionate, and that his convictions did not violate double jeopardy. Defendant was convicted of sexually assaulting his stepdaughter when she was 11 or 12. The court first held that the CSC II conviction was supported because the victim testified that defendant massaged her breasts under her clothing and put his hands inside her underwear to massage her “crotch region,” and this could reasonably be construed as sexual contact for sexual arousal or gratification. The court reasoned that defendant admitted the conduct was consistent with “foreplay with his wife,” and although he claimed he mistook the victim for her mother, he conceded “it was probably [AB],” making credibility a jury question. The court next held that defendant failed to rebut the presumption that his within-guidelines sentence was proportionate because his lack of criminal record and claim that the incident was isolated were already reflected in the guidelines, and the trial court emphasized that he “violated the trust in a despicable way.” The court also rejected his challenge to the AWICSC II conviction because the same evidence allowed the jury to find an assault and specific intent to touch intimate areas for sexual gratification. The court held his jury-instruction issue was waived because counsel “expressly and explicitly approved” the instructions. Finally, it rejected his double-jeopardy claim because CSC II requires completed sexual contact, while AWICSC II does not, and AWICSC II requires specific intent while CSC II does not. Affirmed.

Habeas corpus; One-year window to file a habeas petition; 28 USC § 2244(d)(1)(A); Equitable tolling; Dismissal under Rule 4 of the Rules Governing § 2254 Cases; Whether petitioner’s arguments as to equitable tolling were “sufficiently weighty” to warrant a response from the state; Whether petitioner should have filed a “protective” petition before the limitations period expired; “Extraordinary circumstances”

[This appeal was from the WD-MI.] Concluding it was not “plainly apparent” from petitioner-Millis’s petition that he was not entitled to equitable tolling of the time limit within which to file for habeas relief, the court reversed and remanded for further proceedings. Millis was convicted of state crimes in Michigan. He moved for state post-conviction relief, arguing that he would have accepted the government’s plea deal had his lawyer explained it. The trial court denied the motion and the Court of Appeals denied his appeal. The Michigan Supreme Court sent him conflicting letters about the status of his application for leave to appeal. By the time he learned that his application had been administratively dismissed as untimely, his “time to file his federal habeas petition had expired.” He filed a pro se petition within two weeks of receiving the dismissal letter from the Michigan Supreme Court. The district court ruled that he was not entitled to equitable tolling because he failed to “diligently” pursue his rights by not contacting the Michigan Supreme Court about the conflicting letters. It “dismissed Millis’s petition under Rule 4, which is appropriate only where a petition is ‘so plainly meritless that a court need not consider a state response, the state record, or any other evidence.’” The primary question on appeal concerned the point at which Millis should have known that his Michigan Supreme Court application was dismissed, and that the habeas clock had started. He had received conflicting letters from the clerk’s office, the last of which had informed him—albeit incorrectly—that “his appeal had been ‘accepted for filing’ and was ‘complete.’” The court found that this could have led to a reasonable conclusion that the prior rejection had been “extinguished.” The sequence of letters could have convinced Millis that “the last-in-time letter he received was the operative one[.]” The court rejected the government’s argument that he should have filed a “protective petition before his limitations period expired[,]” noting that such a petition is one way to show diligence but there is no case law requiring it. The court further concluded that “the Michigan Supreme Court’s confusing communications could arguably amount to extraordinary circumstances beyond Millis’s control.”

Whether the district court was improperly involved in plea negotiations; FedRCrimP 11(c)(1); Lafler v Cooper; Prejudice; Harmless error; Motion to suppress evidence seized in a vehicle search; Whether an FIP conviction violated the Second Amendment; United States v Williams; Classification as a “career offender”; Whether the district court erred by not confining itself to Shepard documents; Shepard v United States; Authority to resentence; FedRCrimP 35(a); Invited error

The court held that while the district court violated Rule 11(c)(1) by involving itself in defendant-Hoover’s plea negotiations, the error was harmless where he failed to establish that he was prejudiced. It also held that the district court did not err in denying his motion to suppress or in classifying him as a career offender, and that his FIP conviction did not violate the Second Amendment. Finally, he invited any error in the rescheduling of his resentencing hearing, which was originally timely convened within Rule 35(a)’s 14-day window. Hoover was indicted on drug and firearm charges after a traffic violation resulted in a search revealing drugs, packaging materials, and a firearm. He initially pled not guilty, later indicated that he wanted to plead guilty, and then stated at the change-of-plea hearing that he wished to fire his attorney for refusing to file a motion to suppress. He eventually went to trial and a jury convicted him on all counts. On appeal, the court held that the “district court violated Rule 11(c)(1) when it stated clearly on the record that it would not give Hoover an acceptance-of-responsibility reduction in any plea bargain the parties negotiated.” Hoover clearly indicated that “he would have pleaded guilty, had the court not taken acceptance of responsibility off the table.” But the court concluded that the error was harmless. Despite the lack of a plea agreement, “the district court decided to award Hoover an acceptance-of-responsibility reduction at sentencing. That [he] ultimately was not credited with it cannot be traced to any judicial interference with plea negotiations; it was Hoover’s post-conviction drug activity, and his insistence on denying it, that lost him the previously granted reduction.” Thus, there was no prejudicial error. The court also upheld the denial of the motion to suppress where the officer “had reasonable suspicion of unlawful activity to briefly continue the stop to inquire about the possibility of drugs in the vehicle.” His Second Amendment argument as to his FIP conviction failed where he did not establish “that he is not dangerous.” As to his career offender classification, there was no Shepard violation where the indictment contained all the necessary information. Affirmed.

Elliott-Larsen Civil Rights Act (ELCRA); Employment discrimination; MCL 37.2202(1)(a); McDonnell Douglas framework; Similarly situated employees; Hecht v National Heritage Acads, Inc; Retaliation; MCL 37.2701(a); Equal Employment Opportunity (EEO) complaint; Causation; Hostile work environment; National origin; Statute of limitations; Garg v Macomb Cnty Cmty Mental Health

The court held that defendant-employer was entitled to summary disposition on plaintiff’s ELCRA discrimination, retaliation, and hostile-work-environment claims. Plaintiff, a Nigerian-born Detroit police officer, was terminated after an Internal Affairs investigation found he lied about being alone with another officer. The court first held that plaintiff failed to establish a prima facie discrimination claim because he did not show that similarly situated officers outside his protected classes were treated differently. It reasoned that there was “no evidence” the other officers lied during the investigation, while plaintiff changed his position after repeatedly stating he was never alone with the officer. The court also held that the other officers were not similarly situated because plaintiff was under investigation and allegedly lied “in an attempt to escape punishment,” while the others were witnesses. The court next held that plaintiff failed to establish retaliation because the Internal Affairs investigation began before he filed an EEO complaint, and once started, it “had to be completed” as standard procedure. Thus, the investigation and termination were not motivated by retaliation but by “legitimate employment reasons.” Finally, the court held that plaintiff’s hostile-work-environment claim based on accent-related comments failed. Although the comments were “in poor taste,” they were vague, mostly time-barred, not threatening, did not interfere with work performance, and plaintiff himself joked about national origin by calling others “dumb Americans.” Affirmed.

No-fault insurance; PIP benefits; Rescission; Material misrepresentation; Household member; Occasional driver; Howard v LM Gen Ins Co; Bradley v Westfield Ins Co; Oade v Jackson Nat’l Life Ins Co of MI; Webb v Progressive Marathon Ins Co; Equity; Sherman v Progressive Marathon Ins Co

The court held that the trial court erred by denying plaintiff-insurer summary disposition as to whether defendant-insured made a material misrepresentation in her no-fault application, but remand was required for an equitable rescission analysis. Defendant sought PIP benefits after an accident involving her Ford Fusion. Plaintiff sought rescission based on alleged misrepresentations about a Nissan Altima and defendant’s daughter. The court first held that plaintiff failed to establish injury from the misrepresentation about ownership of the Altima because, under Howard, the allegedly misrepresented coverage was not the coverage at issue, and plaintiff did not show that “absent coverage on the Altima, it would not have covered the Fusion.” But the court held that defendant’s failure to list her daughter as a household member or occasional driver was a material misrepresentation. The court reasoned that the application required disclosure of “[a]ll household members” and occasional drivers, and the testimony showed the daughter returned home in the summers, including during the policy period, making defendant’s claim that she was away at school “indefinitely” belied by the record. The court further held that plaintiff showed injury because its underwriter attested that, had the daughter been disclosed, premiums “would have increased by $263.75” due to the increased risk of another household member or driver. Because the trial court did not reach the next step under Sherman, the court remanded for the trial court to balance the equities and determine whether rescission was proper. Reversed and remanded.

No-fault insurance; PIP benefits; Rescission; Material misrepresentation; Household member; Occasional driver; Howard v LM Gen Ins Co; Bradley v Westfield Ins Co; Oade v Jackson Nat’l Life Ins Co of MI; Webb v Progressive Marathon Ins Co; Equity; Sherman v Progressive Marathon Ins Co

The court held that the trial court erred by denying plaintiff-insurer summary disposition as to whether defendant-insured made a material misrepresentation in her no-fault application, but remand was required for an equitable rescission analysis. Defendant sought PIP benefits after an accident involving her Ford Fusion. Plaintiff sought rescission based on alleged misrepresentations about a Nissan Altima and defendant’s daughter. The court first held that plaintiff failed to establish injury from the misrepresentation about ownership of the Altima because, under Howard, the allegedly misrepresented coverage was not the coverage at issue, and plaintiff did not show that “absent coverage on the Altima, it would not have covered the Fusion.” But the court held that defendant’s failure to list her daughter as a household member or occasional driver was a material misrepresentation. The court reasoned that the application required disclosure of “[a]ll household members” and occasional drivers, and the testimony showed the daughter returned home in the summers, including during the policy period, making defendant’s claim that she was away at school “indefinitely” belied by the record. The court further held that plaintiff showed injury because its underwriter attested that, had the daughter been disclosed, premiums “would have increased by $263.75” due to the increased risk of another household member or driver. Because the trial court did not reach the next step under Sherman, the court remanded for the trial court to balance the equities and determine whether rescission was proper. Reversed and remanded.

Orders related to a protected person’s Roth IRA; Conservator’s fiduciary duties; MCL 700.5416; MCL 700.1214; Probate court authority to remedy breach of fiduciary duties; MCL 700.1308; Voidable self-dealing transactions; MCL 700.5421(1); Probate court’s authority to change a beneficiary; MCL 700.5407(3); Disallowance of conservator accounts; MCL 700.5418(1); Failure to submit a claim for reimbursement to the probate court; Delay in mailing an order denying a motion for reconsideration; Harmless error; Credibility findings; Moot claims as to removal of a conservator

In these consolidated appeals, the court held that appellant-former conservator’s (Jonathan) challenges to the probate court’s orders removing him as conservator for his parents were moot given the parents’ deaths. As to his claim that false testimony was presented at a hearing, the court saw no reason to disturb the probate court’s credibility findings. It also found no reversible error in the probate court’s orders concerning the late father’s (EJS) Roth IRA, or in the probate court’s disallowance of Jonathan’s accounts. The appeals arose from siblings’ “division over the care of their elderly (and now-deceased) parents”—EJS and ELS. As to Jonathan’s issues related to the probate court’s orders concerning EJS’s Roth IRA, the record reflected “that Jonathan, a month before he was removed as conservator, moved $175,000 from EJS’s Roth IRA to an investment account he and ELS jointly owned; that the Roth IRA listed Jonathan as the sole beneficiary; and that no reliable information regarding when beneficiary designations for the Roth IRA were made or changed had been provided by Jonathan or the financial institution.” The court determined that, consistent with MCL 700.1214 and 700.1308(1)(i), the probate court’s 8/24/23 “order remedied any potential self-dealing by voiding any beneficiary designations changed by Jonathan to himself during his time as EJS’s conservator.” He did not identify, and the court saw, no “basis to conclude that any such act was exempt from voidability under MCL 700.5421(1).” As to the probate court’s 8/28/23 order, it “was authorized under MCL 700.5407(3) to change a beneficiary designation made prior to Jonathan’s time as EJS’s conservator.” Notice was given and a hearing was conducted. The court found it clear from the record that the probate “court rendered its decision after it was satisfied that changing the beneficiary designation was in EJS’s best interests and was consistent with EJS’s express wish that his assets be used for ELS’s benefit.” As to the probate court’s disallowance of Jonathan’s accounts, the record showed it did so not as a sanction, but because they were never filed with the probate court as required under “MCL 700.5418(1), and because the copies of the accounts given to other parties were wholly inadequate.” Affirmed.