Properly sworn jury; Other acts evidence; MRE 403; Sentencing; Scoring of OVs 4 & 10; “Psychological injury”; “Vulnerable victim”; “Predatory conduct”

The court held that defendant did not show entitlement to relief on the basis of an allegedly improperly sworn jury or the admission of other acts evidence. Also, as to sentencing, the “testimony was sufficient to show, by a preponderance of the evidence, that the victim suffered ‘serious psychological injury [that] may require professional treatment.’” Thus, the trial court did not err in its scoring of OV 4. Finally, the trial court did not err by finding that he “engaged in predatory conduct before the sentencing offense occurred and assessing 15 points for OV 10 on that basis” He was convicted of CSC III and sentenced to 30 to 180 months. After a remand to the trial court to settle the record, the court revisited his claim that he was “entitled to a new trial because the trial court failed to properly swear in the jury at the outset of his trial.” The court noted that the “proceedings on remand revealed that this challenge was based on an error in the original trial transcript, and the now-settled record makes clear that the jury was, in fact, properly sworn in at the start of trial.” He did not offer anything to the contrary. Defendant next challenged “his conviction on the basis that the trial court, over his objection, improperly admitted” other acts evidence. The court noted that the “prosecution was permitted to introduce evidence of other, uncharged sexual encounters between defendant and the victim—both that occurred while the victim was a minor in high school, and that occurred after the victim turned 18 years old. On appeal, defendant only challenges the latter category, arguing that such evidence should have been excluded under MRE 403 because it ‘was highly inflammatory and lacked any probative value as to the charges.’” But he did “not particularly explain why this may have been so, beyond averring in conclusory fashion that ‘the prejudicial effect of the evidence was clear throughout the course of [the victim]’s testimony.’” Defendant did not offer anything “meaningful, legally or factually, to show how” the MRE 403 standard was met here. Affirmed.

Sufficient evidence for a first-degree murder conviction; Premeditation; People v Oros; Prosecutorial error; Vouching; People v Thomas; Denial of request for appointment of new counsel; People v McFall

The court held that there was sufficient evidence that the victim’s (V) killing was premeditated to support defendant-Crisp’s first-degree murder conviction. It also rejected his claim that the prosecutor improperly vouched for a witness (A). Finally, it concluded the trial court did not abuse its discretion in denying Crisp’s request for new counsel because it was not supported by good cause. Thus, the court affirmed his convictions of first-degree murder, AWIM, FIP, and felony-firearm, second offense. The case arose from the shooting of A and V. A had “invited Crisp and two friends over for a barbecue. The friends were Crisp’s girlfriend” and A’s neighbor, MM, who was engaged to V. The court held that “Crisp’s statement that he was going to do something to [V] indicated that he had an intent to harm [V]. Approximately five minutes passed between [MM] leaving the trailer and [V] arriving. This passage of time was sufficient for Crisp to have considered what exactly he wanted to do to [V]. Crisp had the additional time to reconsider when [V] knocked and spoke with [A]. Crisp’s shooting of [V] was preceded by enough time for him to have taken a second look at his plan of action and change his mind.” As to his vouching claim, the court found that, considered “in context, the prosecutor did not imply he had special knowledge of” A’s truthfulness. He “did not make any statements that indicated a personal knowledge or belief in [A’s] credibility. Rather, he identified things the jury could consider when evaluating [A’s] credibility. It was appropriate for the prosecutor to respond to Crisp’s arguments by pointing out why the jury might find [A] to be credible.” And the court noted that it “has expressly provided that while vouching is impermissible, a prosecutor can ‘argue from the facts that a witness is worthy of belief.’” In addition, the “jury was instructed that it should not consider the prosecutor’s closing argument as evidence, and it is presumed to have followed these instructions. Therefore, any potential error was cured.” As to the request for new counsel, there was “no indication that there was a disagreement on a fundamental trial strategy” and in the absence of “further information from Crisp, his generalized unhappiness in his trial counsel was insufficient to constitute good cause for substitution of counsel.”

Motion to set aside a default; MCR 2.603(D); Shawl v Spence Bros, Inc; Good cause

Holding that the totality of the circumstances weighed against a showing of good cause to set aside the default, the court concluded the trial court correctly decided not to reach the meritorious defense analysis. Thus, it affirmed the order denying defendants’ motion to set aside the default. A $1,000,000 default judgment was entered against them. The court considered the factors used in the totality of the circumstances test under Shawl to determine if good cause has been shown. The first factor is “whether the party completely failed to respond or simply missed the deadline to file. A formal written pleading in response to a complaint is required pursuant to MCR 2.111.” Given that defendants completely failed to respond to the trial court, this factor weighed against their showing good cause. So did the second factor, as they “did not file late; they never filed an answer to the complaint at all.” The third factor weighed in their favor as they “retained counsel on the day of the hearing on the motion for entry of default judgment,” and their attorney promptly moved to set aside the default four days later, “before a default judgment was entered.” The fourth factor weighed against them as defendants were properly served. And because they “understood the date, time and how to access the hearing on the motion for entry of default judgment, one can reasonably infer that the same defendants could understand the 21-day deadline to file an answer to the complaint as well. The fifth factor weighs against a showing of good cause.” Next, given that they comprehended “they should log on to a Zoom hearing on a specific date at a certain time but did not act at all as to the answer deadline,” the sixth factor could at best be neutral. As to the seventh factor, the court considered “the size of the judgment and the amount of costs due under MCR 2.603(D)(4).” The judgment amount was substantial, “even split between the parties, but it is also an amount that defendants do not contest in this Court and did not appear to contest in the trial court. The seventh and eighth factors, then, given that defendants do not contest the size of the judgment, only weigh slightly in favor of a showing of good cause. The ninth factor applies only when the default involves an insurer, which is not the case here, so this factor is not considered.”

Premises liability, gross negligence, & nuisance claims against a county; Governmental immunity; The Governmental Tort Liability Act (GTLA); Whether operation of a festival was a “governmental function” (MCL 691.1401(b)); Ross v Consumers Power Co; Herman v Detroit; Authorization for counties to “operate a system of public recreation” & “maintain land, buildings, or other recreational facilities” (MCL 123.51); Comparing Richardson v Jackson Cnty; Effect of a claim a governmental agency was grossly negligent; Yoches v City of Dearborn

Holding that defendant-county “was engaged in a governmental function by operating the Jazz on the River event” and that no exception to governmental immunity applied, the court reversed the order denying defendant summary disposition based on governmental immunity, and remanded. Plaintiff was injured at the Jazz on the River festival, and asserted premises liability, gross negligence, and nuisance claims against defendant. In denying summary disposition, “the trial court ruled that defendant was not immune from plaintiff’s claims because operating Jazz on the River did not constitute a governmental function.” The court disagreed, finding that the trial court applied an incorrect legal test. In Ross, the Michigan Supreme Court held that “‘a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.’” The court noted that this “language is mirrored in the current GTLA.” Applying that definition, it held that “the Jazz on the River event was a governmental function, because it was authorized under Michigan law. ‘A determination of whether an activity was a governmental function must focus on the general activity and not the specific conduct involved at the time of the tort.’” The court noted that “MCL 123.51 authorizes counties to ‘operate a system of public recreation’ and ‘equip and maintain land, buildings, or other recreational facilities.’” And the Supreme Court in Richardson “relied on the same authorization to hold a county immune from a negligence claim after the decedent drowned in a public swimming area.” The court concluded that, as in that case, because “MCL 123.51 authorizes defendant to operate recreational events such as Jazz on the River, that event was a governmental function.” It rejected plaintiff’s assertion that, “even if the operation of Jazz on the River constitutes a governmental function, defendant is not immune from liability for its gross negligence.” Pursuant to Yoches, under the unambiguous language of MCL 691.1407(1), “a plaintiff does not eliminate a governmental agency’s immunity by claiming the agency was grossly negligent.” Plaintiff failed to name any of defendant’s employees “and did not allege that certain employees were grossly negligent. [Her] challenge to defendant’s immunity based on its alleged gross negligence lacks merit.”

Premises liability, gross negligence, & nuisance claims against a county; Governmental immunity; The Governmental Tort Liability Act (GTLA); Whether operation of a festival was a “governmental function” (MCL 691.1401(b)); Ross v Consumers Power Co; Herman v Detroit; Authorization for counties to “operate a system of public recreation” & “maintain land, buildings, or other recreational facilities” (MCL 123.51); Comparing Richardson v Jackson Cnty; Effect of a claim a governmental agency was grossly negligent; Yoches v City of Dearborn

Holding that defendant-county “was engaged in a governmental function by operating the Jazz on the River event” and that no exception to governmental immunity applied, the court reversed the order denying defendant summary disposition based on governmental immunity, and remanded. Plaintiff was injured at the Jazz on the River festival, and asserted premises liability, gross negligence, and nuisance claims against defendant. In denying summary disposition, “the trial court ruled that defendant was not immune from plaintiff’s claims because operating Jazz on the River did not constitute a governmental function.” The court disagreed, finding that the trial court applied an incorrect legal test. In Ross, the Michigan Supreme Court held that “‘a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.’” The court noted that this “language is mirrored in the current GTLA.” Applying that definition, it held that “the Jazz on the River event was a governmental function, because it was authorized under Michigan law. ‘A determination of whether an activity was a governmental function must focus on the general activity and not the specific conduct involved at the time of the tort.’” The court noted that “MCL 123.51 authorizes counties to ‘operate a system of public recreation’ and ‘equip and maintain land, buildings, or other recreational facilities.’” And the Supreme Court in Richardson “relied on the same authorization to hold a county immune from a negligence claim after the decedent drowned in a public swimming area.” The court concluded that, as in that case, because “MCL 123.51 authorizes defendant to operate recreational events such as Jazz on the River, that event was a governmental function.” It rejected plaintiff’s assertion that, “even if the operation of Jazz on the River constitutes a governmental function, defendant is not immune from liability for its gross negligence.” Pursuant to Yoches, under the unambiguous language of MCL 691.1407(1), “a plaintiff does not eliminate a governmental agency’s immunity by claiming the agency was grossly negligent.” Plaintiff failed to name any of defendant’s employees “and did not allege that certain employees were grossly negligent. [Her] challenge to defendant’s immunity based on its alleged gross negligence lacks merit.”

Termination under § 19b(3)(j); In re White; In re Olive/Metts; Reasonable reunification efforts; Americans with Disabilities Act (ADA); In re Hicks/Brown; In re Sanborn; Children’s best interests; Neighborhood Service Organization (NSO); Detroit-Wayne Integrated Health Network (DWN); Parent-agency treatment plan (PATP)

The court concluded that respondent-mother was not entitled to relief based on her reunification efforts argument and that terminating her parental rights under § (j) was proper. Further, the record supported the trial court’s finding that termination was in the children’s best interests. Thus, the court affirmed the termination order. It noted that, when “uncontested evidence establishes that a respondent-parent has a disability, trial courts should err on the side of caution by ensuring that services are provided in accordance with” the ADA and Hicks/Brown to accommodate the disability. But even if respondent was “considered disabled under the ADA, she is required to specify what services would have accommodated her needs.” She did not “avail herself of the many services, standard and specialized, she was offered throughout the proceedings. Specifically, respondent did not follow through with referrals to NSO, which is for individuals with disabilities, or for services through DWN. DHHS could not force [her] to take advantage of the services it offered specifically in response to her mental health diagnoses. The trial court noted respondent’s refusal to comply with or benefit from services does not mean she has a disability and concluded” Hicks/Brown did “not apply. But DHHS’s offer of specialized referrals demonstrated an attempt to accommodate respondent which was declined.” In addition, she could not “establish a violation because she did not specify services that would have allowed her to fare better.” The court next held that termination under § (j) was supported by respondent’s failure “to comply with her PATP,” and the risk of harm to the children if they returned to her care given her refusal “to address her mental health ailments[.]” Finally, as to the children’s best interests, they were “bonded with their caregivers, who provide stability and care and are willing to adopt, and respondent has not demonstrated strong parenting abilities or a desire to improve them.”

Jurisdiction over the children; MCL 712A.2(b)(1) & (b)(2); Mootness; Collateral consequences exception to the mootness doctrine; In re Holbrook

The court declined to reach the issues on appeal at this time. Rather, while retaining jurisdiction, it remanded “for a hearing to determine whether this appeal has become moot.” Respondent-mother contended “that the trial court violated her right to due process by allowing testimony about allegations not contained in the petition and that there was insufficient evidence to establish a statutory basis for jurisdiction.” The court noted that the “trial court found that respondent had made progress toward alleviating or mitigating the conditions that brought the children under” its jurisdiction. Thus, the trial court “closed the case. This subsequent event raises the question whether this appeal is now moot.” As a result, “an event has occurred that seemingly ‘makes it impossible’ for this Court to grant relief.” Also, it concluded that the exception to the mootness doctrine for issues of public significance likely to recur but that may evade judicial review did not apply. However, similar to Holbrook, “there is no showing in the current record regarding whether respondent is on the Central Registry.” Further, her potential placement on the DHHS’s “electronic case-management system, MCL 722.628(11), could also cause collateral consequences for” her. The court held that as in Holbrook, “these potential collateral consequences are ‘neither definitively supported nor refuted with records in our Court.’” And it noted that “the trial court is the better forum to make factual determinations.” Thus, while retaining jurisdiction, it remanded the “case to the trial court for a hearing to determine whether the respondent will suffer collateral consequences as a result of the adjudication and whether this case has become moot.”