Expert testimony; Medical torture diagnosis; MRE 702; MRE 704; Torture; MCL 750.85; Child abuse; MCL 750.136b; Invading the province of the jury; People v McFarlane; Plain error review

The court held that the trial court erred by admitting expert testimony that the child victim was diagnosed with “medical torture,” but defendant was not entitled to relief because she failed to establish outcome-determinative error. She was convicted of torture and child abuse after evidence showed six-year-old MA had ligature marks and scarring, had been restrained repeatedly, and was living in filthy conditions. The court first held that the diagnosis testimony was inadmissible under MRE 702 because it did not help the jury determine a fact in issue. It reasoned that while medical testimony could help assess the nature and cause of injuries, the “medical torture diagnosis” did not explain the “nature, extent, or timing” of MA’s physical symptoms. The court next held that the psychological-maltreatment component lacked a reliable foundation because it was based on “little more than [the expert’s] crediting MA’s account of events,” and an examining physician may not offer a conclusion that is “nothing more than the doctor’s opinion that the victim had told the truth.” The court further held that the testimony invaded the province of the jury under McFarlane because, in a torture prosecution, a diagnosis using the term “torture” risked being mistaken for an opinion on defendant’s “criminal responsibility.” It reasoned that the lay meaning of torture “maps closely” to the statutory intent element and that the testimony “‘comes too close to findings that are left exclusively to the jury.’” But the court held that defendant failed to show the error affected her substantial rights. The court emphasized untainted testimony from two doctors, an officer, and an EMT about the ligature marks, MA’s and another child’s testimony that MA had been zip-tied, and defendant’s own admissions that she tied MA’s wrists and instructed her codefendant to tie him up. Because the properly admitted evidence “strongly supported” the torture conviction, defendant was not entitled to relief. Affirmed.

Sentencing; Hearing under Miller v Alabama; 19-year-old offender; People v Taylor; Request for reassignment to a different judge on resentencing; People v Walker; Ineffective assistance of counsel; Failure to request jury instructions on a lesser included offense, mere presence, & specific unanimity; Failure to request a separate trial or jury; Failure to call an alibi witness; Trial strategy; Failure to hire an expert

The court rejected defendant’s ineffective assistance of counsel claims and affirmed his convictions. But as he was 19 years old at the time of the crimes, it vacated his felony-murder sentence and remanded for resentencing. It denied his request for reassignment on remand. After a cold-case investigation, he was convicted of felony-murder, armed robbery, and first-degree home invasion for crimes committed in 2011. He argued, and the prosecution agreed, that because he was 19 years old at the time of the crime, he was entitled to a hearing under Miller so “that attributes of youth can be taken into account at his sentencing for felony-murder.” As to his request for reassignment of his case to a different judge, the court considered the Walker factors and determined that reassignment was “not in order. It was not ‘erroneous’ or faulty for the trial court to indicate that” defendant and his codefendant (T) “acted cowardly and had intimidated witnesses.” There also was no “indication that the trial court would not comply with new caselaw mandating that attributes of youth be taken into account when resentencing defendant—indeed, [it] acknowledged it would do so during the sentencing hearing if the law changed to cover 19-year-olds. The trial was lengthy, and the time it would take for a new judge to become familiar with the proceedings would be substantial.” Next, defendant claimed that his trial counsel was ineffective for failing to request lesser included offense, mere presence, and specific unanimity jury instructions. The court disagreed, concluding (1) a rational view of the evidence did not support a finding that defendant and T murdered the victim “without committing a robbery or home invasion[,]” (2) counsel pursued a strategy to create reasonable doubt about whether defendant was actually present at the crime scene, and (3) “even if a specific unanimity instruction was required,” he could not show prejudice. The court also found that trial counsel was not ineffective for failing to request a separate trial or jury, call defendant’s mother as an alibi witness, or hire an expert witness.

CSC I & II; Mentally disabled victim; MCL 750.520b(1)(h); MCL 750.520c(1)(h); Other acts evidence; MCL 768.27b; MRE 403; People v Berklund; People v Watkins; Harmless error; Victim’s prior statements; MCL 768.27c; Temporal requirement; People v Meissner; Trustworthiness

The court held that the trial court erred by admitting other-acts testimony under MCL 768.27b, but the error was harmless, and that the victim’s statements to the detective were admissible under MCL 768.27c. Defendant was convicted of CSC I and II involving a 14-year-old victim with autism who temporarily lived on his property. The court first held that the prior victim’s testimony had some relevance because both allegations involved defendant sexually assaulting someone with whom he had a domestic relationship, supporting “a logical inference that defendant may have a propensity to sexually assault people with whom he shares a domestic relationship.” But it held that the testimony should have been excluded under MRE 403 because the prior victim was an adult woman who shared a child with defendant, while the victim here was a teenage boy temporarily staying on defendant’s property, and the trial court itself was concerned about the testimony’s “emotional effect” on the jury. However, the error was harmless because the victim “testified in detail regarding defendant’s repeated assaults” and described the sexual acts underlying each charge. The court next held that the victim’s statements to the detective satisfied MCL 768.27c. Relying on Meissner, it held the statements were made “at or near” the time of injury, and it rejected defendant’s trustworthiness challenge because the victim’s testimony corroborated the statements and the detective’s use of forensic interview protocols further supported trustworthiness. Affirmed.

Sufficiency of the evidence; Armed robbery; First-degree home invasion; Felony-murder; Recorded recollection; MRE 803(5); Rule of completeness; MRE 106; Present sense impression; MRE 803(1); Party-opponent statement; MRE 801(d)(2)(A); Cross-examination; Sentencing; Mandatory life without parole; 19-year-old offender; Miller v Alabama; People v Parks; People v Taylor

The court held that sufficient evidence supported defendant’s convictions and that no evidentiary ruling required reversal, but his mandatory life-without-parole felony-murder sentence had to be vacated under Taylor. He was convicted in a cold-case robbery and fatal shooting. The court first held that the evidence was sufficient where contemporaneous text messages indicated defendant and his accomplice (a codefendant) sought money from the victim’s home, the door was kicked in, defendant’s prints were found on a garbage bag at the scene, and the accomplice told a witness that he and “KD” (defendant’s nickname) went to commit a robbery and that “a lady was shot” during it. The court concluded these facts “more than establish” armed robbery, first-degree home invasion, and felony-murder. The court next held that the trial court did not abuse its discretion by admitting a witness’s 2017 police interview as a recorded recollection because the witness once had knowledge of the text messages but “had no recollection” at trial. It also held that the trial court properly declined to admit the entire interview under MRE 106 because the remaining portions involved “other unrelated murders” and were irrelevant. The court further held that the text messages were admissible because they contemporaneously relayed the accomplice’s statements, and defendant abandoned his challenge to limits on cross-examining the witness who testified about the accomplice’s admissions. Finally, although defendant challenged only his armed-robbery sentence, the court held that Taylor required vacating his mandatory felony-murder sentence because he was 19 when he committed the offenses. Affirmed in part, vacated in part, and remanded.

Motion to withdraw from representing defendant on appeal; Whether counsel’s brief met the requirements of Anders v California; Requirement that counsel consider defendant’s claims to be “wholly frivolous” after a diligent & thorough search of the record

In an order, the court considered defendant-Harris’s attorney’s motion to withdraw from representing him and deferred its ruling, finding that counsel’s brief did not comply with Anders’s requirements. Harris pled guilty under a Rule 11(c)(1)(C) agreement where he waived the right to appeal his conviction and sentence. Despite this, he still appealed. His attorney sought to withdraw after concluding that there were no arguable issues to appeal. He filed a brief under Anders, but the court found it deficient. It held that to withdraw under Anders, counsel must conclude that the appeal “would be ‘wholly frivolous,’ i.e., that the appeal presents no legal claims ‘arguable on their merits.’” Counsel must show that he diligently and thoroughly searched the record for such a claim, including possible claims outside the waiver’s scope. In this case, “the entire written explanation for counsel’s motion to withdraw is the one-sentence line in the motion and the attached document’s reference to the appellate waiver. That does not suffice.” The court noted that its “independent review of the record” could not substitute for the Anders brief as it is “no substitute for the sort of adversary representation promised under the Sixth Amendment.” It noted that “counsel is not required to exhaust every possible issue, no matter how minor or implausible. But at a minimum, counsel must address the key issues in a case. Thus, when an Anders brief turns on a guilty plea and appellate waiver, defense counsel should address whether the guilty plea and appellate waiver were knowing and voluntary.” In addition, counsel should “address whether there are any non-frivolous claims that fall outside the waiver’s scope or would potentially not be barred by the waiver due to a miscarriage of justice.” The court ordered counsel to file a supplemental brief within 30 days addressing these issues and any others he deems relevant.

Healthcare provider’s action for no-fault personal injury protection (PIP) benefits; Real party in interest; Effect of assignment of accounts receivable & counter-assignments; C-Spine Orthopedics, PLLC v Progressive MI Ins Co

On remand from the Supreme Court, the court rejected plaintiff-C-Spine’s contention that it was still the real party in interest when the suit was filed, given its assignments of accounts receivable. But it agreed that subsequent “counter-assignments could restore C-Spine’s status, subject to proper procedural action in the trial court.” Thus, it vacated the trial court’s order granting defendant-insurer summary disposition, and remanded. C-Spine, which had provided healthcare services to plaintiff-Hammock, intervened in his suit for PIP benefits, as a purported assignee of his rights. While it “had entered into numerous bulk purchase and sale agreements for accounts receivable with” factoring companies that included Hammock’s, it later agreed to counter-assignments of his claims with the companies. The case was now before the court on remand for reconsideration in light of the Michigan Supreme Court’s decision in another case involving C-Spine (C-Spine Orthopedics). Here, C-Spine first asserted “that it retained the right to pursue payment of PIP benefits under MCL 500.3112,” despite its assignments to the factoring companies. The court noted “a plaintiff may have statutory standing to sue under MCL 500.3112 but nevertheless fail to qualify as the real party in interest if it has transferred away its ownership of the claim through assignment.” It concluded that, as “in C-Spine Orthopedics, C-Spine fully assigned away its rights and was not the real party in interest at the time it filed suit, notwithstanding its statutory standing under MCL 500.3112.” But the court agreed to a limited extent with its alternative argument. A “real-party-in-interest defect cannot be cured by unilateral, out-of-court action alone.” Some action must be taken “within the litigation, such as amending the complaint, substituting or joining the proper party, or otherwise invoking the court’s authority, so that the trial court may assess the legal effect of the asserted cure.” C-Spine had the burden to show “the counter-assignments were legally effective to restore its right to litigate the claims, and that it took appropriate procedural action within the litigation to invoke the trial court’s authority to recognize that cure.” Given that the trial court “did not consider whether C-Spine could cure the real-party-in-interest defect through appropriate procedural mechanisms, remand” was required.

Dispute over fees arising out of the post-accident towing & storage of a vehicle; Subject-matter jurisdiction; ; MCL 600.605; The Michigan Vehicle Code (MVC); MCL 257.252e(1); “Processing”; MCL 257.252d; Statutory interpretation; Expressio unius est exclusio alterius doctrine; The MVC’s special anti-theft laws; MCL 257.252f

In this dispute over post-accident towing and storage fees, the court held that MCL 257.252e(1) divests circuit courts of jurisdiction over claims arising under MCL 257.252d. But it further held that plaintiff-insurer’s (CURE) claims fell outside the scope of the statute’s jurisdictional grant. Thus, it reversed summary disposition to defendant based on lack of subject-matter jurisdiction, and remanded. The court first considered whether MCL 257.252e(1) divests circuit courts of jurisdiction. It found that the plain language of the statute “unambiguously grants jurisdiction over applicable claims (i.e., those involving the reporting or processing of a vehicle under MCL 257.252d) to the district court or municipal court—but not the circuit court.” Under MCL 600.605, circuit courts generally have jurisdiction over cases where the amount in controversy exceeds $25,000. Assuming without deciding that was the case here, the two statutes appeared to give jurisdiction to different courts. Because MCL 257.252e(1) was “more specific to the present circumstances than MCL 600.605,” the court presumed the “Legislature intended the former to act as an exception to the latter’s general jurisdictional grant. Accordingly, in claims arising under MCL 257.252d, such jurisdiction rests only with district or municipal courts.” But the court agreed with CURE’s alternative argument that the circuit court erred “in this case because CURE’s claims are not of the class contemplated by” MCL 257.252e(1). This involved whether the claims constituted “challenges to the ‘processing’ of the” vehicle under the statute. Dictionary definitions indicated that “processing” referred here “to the following of the legislatively prescribed procedure under MCL 257.252a, MCL 257.252b(6) through (11), or MCL 257.252d.” The vehicle was towed from the accident scene “at the direction of police, in accordance with MCL 257.252d(1)(a) or (k).” The rest of that statute provides “the process a police agency, towing agency, or custodian must undertake in connection with such a removal[.]” CURE’s claims did “not on their face arise from these procedural steps under the MVC.” The court noted that nothing in these “procedural provisions relates to the propriety of a towing agency conditioning the release of a vehicle on the payment of fees.” Thus, the general jurisdictional provisions applied.

Healthcare provider’s action for no-fault personal injury protection (PIP) benefits; Real party in interest; Effect of assignment of accounts receivable & counter-assignments; C-Spine Orthopedics, PLLC v Progressive MI Ins Co

On remand from the Supreme Court, the court rejected plaintiff-C-Spine’s contention that it was still the real party in interest when the suit was filed, given its assignments of accounts receivable. But it agreed that subsequent “counter-assignments could restore C-Spine’s status, subject to proper procedural action in the trial court.” Thus, it vacated the trial court’s order granting defendant-insurer summary disposition, and remanded. C-Spine, which had provided healthcare services to plaintiff-Hammock, intervened in his suit for PIP benefits, as a purported assignee of his rights. While it “had entered into numerous bulk purchase and sale agreements for accounts receivable with” factoring companies that included Hammock’s, it later agreed to counter-assignments of his claims with the companies. The case was now before the court on remand for reconsideration in light of the Michigan Supreme Court’s decision in another case involving C-Spine (C-Spine Orthopedics). Here, C-Spine first asserted “that it retained the right to pursue payment of PIP benefits under MCL 500.3112,” despite its assignments to the factoring companies. The court noted “a plaintiff may have statutory standing to sue under MCL 500.3112 but nevertheless fail to qualify as the real party in interest if it has transferred away its ownership of the claim through assignment.” It concluded that, as “in C-Spine Orthopedics, C-Spine fully assigned away its rights and was not the real party in interest at the time it filed suit, notwithstanding its statutory standing under MCL 500.3112.” But the court agreed to a limited extent with its alternative argument. A “real-party-in-interest defect cannot be cured by unilateral, out-of-court action alone.” Some action must be taken “within the litigation, such as amending the complaint, substituting or joining the proper party, or otherwise invoking the court’s authority, so that the trial court may assess the legal effect of the asserted cure.” C-Spine had the burden to show “the counter-assignments were legally effective to restore its right to litigate the claims, and that it took appropriate procedural action within the litigation to invoke the trial court’s authority to recognize that cure.” Given that the trial court “did not consider whether C-Spine could cure the real-party-in-interest defect through appropriate procedural mechanisms, remand” was required.

Tax foreclosure; Surplus proceeds; General Property Tax Act; MCL 211.78t; Exclusive mechanism; Takings Clause; Const 1963, art 10, § 2; Retroactivity; Rafaeli v Oakland Cnty; Schafer v Kent Cnty; Hathon v State of MI; Federal takings claims; 42 USC § 1983; Foreclosing governmental unit (FGU)

The court held that MCL 211.78t provides the exclusive state-law mechanism for plaintiffs to recover surplus proceeds from tax-foreclosure sales, and that the trial court properly dismissed their complaint without prejudice because they filed suit without first using that statutory process. Plaintiffs alleged defendant-Kalamazoo County retained surplus proceeds from tax-delinquency foreclosure sales between 2013 and 2020. They brought state and federal constitutional claims and related state-law claims in circuit court. The court first held that plaintiffs were required to proceed under MCL 211.78t because Schafer described that statute as creating “a controlling and structured system for adjudication of tax-foreclosure disputes as the exclusive means of obtaining surplus proceeds,” and Hathon reaffirmed that claimants “must initiate the statutory process” by providing notice to the FGU. The court rejected plaintiffs’ argument that Hathon was not binding, explaining that it was a final order with facts and reasons and therefore “binding on this Court.” The court also held that plaintiffs’ pre-Rafaeli sales did not avoid the statute because Schafer held both Rafaeli and MCL 211.78t apply retroactively. Finally, the court held that federal law did not excuse compliance with MCL 211.78t because the statute gives former owners “the opportunity to recover” surplus proceeds and requires payment if the statutory process is followed, unlike administrative procedures that effectively immunize officials from federal claims. Because plaintiffs failed to first follow MCL 211.78t, dismissal without prejudice was proper. Affirmed.

Tax foreclosure; Surplus proceeds; General Property Tax Act; MCL 211.78t; Exclusive mechanism; Takings Clause; Const 1963, art 10, § 2; Retroactivity; Rafaeli v Oakland Cnty; Schafer v Kent Cnty; Hathon v State of MI; Federal takings claims; 42 USC § 1983; Foreclosing governmental unit (FGU)

The court held that MCL 211.78t provides the exclusive state-law mechanism for plaintiffs to recover surplus proceeds from tax-foreclosure sales, and that the trial court properly dismissed their complaint without prejudice because they filed suit without first using that statutory process. Plaintiffs alleged defendant-Kalamazoo County retained surplus proceeds from tax-delinquency foreclosure sales between 2013 and 2020. They brought state and federal constitutional claims and related state-law claims in circuit court. The court first held that plaintiffs were required to proceed under MCL 211.78t because Schafer described that statute as creating “a controlling and structured system for adjudication of tax-foreclosure disputes as the exclusive means of obtaining surplus proceeds,” and Hathon reaffirmed that claimants “must initiate the statutory process” by providing notice to the FGU. The court rejected plaintiffs’ argument that Hathon was not binding, explaining that it was a final order with facts and reasons and therefore “binding on this Court.” The court also held that plaintiffs’ pre-Rafaeli sales did not avoid the statute because Schafer held both Rafaeli and MCL 211.78t apply retroactively. Finally, the court held that federal law did not excuse compliance with MCL 211.78t because the statute gives former owners “the opportunity to recover” surplus proceeds and requires payment if the statutory process is followed, unlike administrative procedures that effectively immunize officials from federal claims. Because plaintiffs failed to first follow MCL 211.78t, dismissal without prejudice was proper. Affirmed.