Amendment of information; MCR 6.112(H); Due process; Felony-firearm; MCL 750.227b; AWIM; MCL 750.83; Jury instructions; Mitigating circumstances; M Crim JI 17.4; Voluntary manslaughter; Lesser included offenses; People v Mendoza; Heat of passion; Adequate provocation; People v Joesel; Harmless error; People v Yeager; AWIGBH; Ineffective assistance of counsel; Strickland v Washington

The court held that the trial court did not err by allowing the information to be amended during trial, but erred by refusing to instruct the jury on mitigating circumstances and by failing to instruct on voluntary manslaughter. Defendant-Lewis was convicted of second-degree murder, AWIM, and felony-firearm after he fired into a melee involving his father, a friend, and three other people. The prosecution amended the information during trial to add felony-firearm counts tied to the AWIM charges, and the trial court instructed on second-degree murder, AWIM, felony-firearm, involuntary manslaughter, and transferred intent, but refused a requested mitigating-circumstances instruction. On appeal, the court first held that the amendment did not unfairly surprise defendant because the added felony-firearm counts concerned the “same conduct underlying the AWIM charges” and arose from the “same date and time,” location, witnesses, and victims. The court next held that the mitigating-circumstances instruction should have been given because the testimony and video evidence supported a finding that defendant acted in the heat of passion while the fight remained ongoing, and that “ordinary people, of fair average disposition” could have acted rashly under the circumstances. It also held that a voluntary-manslaughter instruction should have been given because the same circumstances underlying the AWIM charges also led to the death, so the two instructions “rise or fall together.” The court concluded the instructional errors were not harmless because it was “impossible to know” what the jury would have done if properly instructed on the lesser included offense and on mitigating circumstances. It also noted that a rational view of the evidence would have supported an AWIGBH instruction, but defendant was not entitled to relief on that ineffective-assistance claim because the record did not establish that counsel’s failure to request it was not trial strategy. Vacated and remanded for a new trial.

Whether the Double Jeopardy Clause barred a second trial; Ashe v Swenson; Successive prosecutions; People v Miller; Principle that different conduct necessarily indicates different offenses; Separate punishment for each criminal sexual penetration; People v Wilson; Jurisdiction; MCR 7.203(A)(1); “Final judgment” or “final order” (MCR 7.202(6)(ii)) in a criminal case; Mootness

The court held that defendant’s trial in this case was not barred by the Double Jeopardy Clause because the charges here and in his prior trial involved “different conduct and different incidents of sexual penetration, which are separately punishable.” In 2022, he was charged and tried in a separate case on seven counts of CSC I “for conduct that allegedly occurred between 2002 and 2008 when the victim was under the age of 13.” The trial court in that case granted his motion for a directed verdict. In this case, filed in 2023, he was charged with three counts of CSC I for conduct alleged to have “occurred only in 2009 and 2010, when the victim was still under the age of 13.” He unsuccessfully moved to dismiss on double jeopardy grounds, and was convicted. But the trial court vacated the convictions and ordered a new trial based on ineffective assistance of counsel. On appeal, he challenged the trial court’s double jeopardy ruling. As an initial matter, the court concluded that it had jurisdiction as to his claim “that his second trial violated his right against double jeopardy[.]” It also found that the issue was not moot. Turning to the merits, it rejected his claim. The issue was whether he “was improperly prosecuted for the same offenses after being acquitted in a previous case.” The court noted that in the 2022 case, he “was not being prosecuted for any offenses that occurred in 2009 or 2010, the timeframe of the alleged incidents charged in this case. Instead, the charges were confined to offenses allegedly committed during the period between 2002 and 2008.” Thus, the charges in the two trials “did not overlap.” This case did not put “the same ‘issue’ . . . in dispute before the jury” given the different timeframes. “Whether some of the testimony implicated a duplicative timeframe is of no moment.” Affirmed.

Sufficiency of the evidence; Self-defense; The Self-Defense Act; MCL 780.972(2); Effect of defendant’s contentious history with the victim; Distinguishing People v Cooper & People v Harris

Holding that the jury was presented with sufficient evidence to disprove defendant’s self-defense claim beyond a reasonable doubt, the court affirmed her convictions of felonious assault, using a self-defense spray device, and assault and battery. The victim (I) worked as the community/property manager for the mobile home park from which defendant was evicted in 2023. “Despite her eviction, defendant at times returned to” the park and interacted with I. They “had contentious interactions at times over the next year,” and the incident giving rise to the case occurred in 2024. The court noted that while “defendant claimed she honestly and reasonably believed [I] was holding mace and was about to spray her with it, the video of the incident clearly shows [I] holding her lanyard, with the teal object believed to contain mace dangling below it, alongside the rest of her keychain. Even if defendant thought [I] was carrying mace, the mere possession of a weapon by another does not mean there was insufficient evidence supporting the jury’s verdict.” In addition, evidence that “defendant asked or urged the victim to come closer weighs against a claim that the defendant honestly and reasonably believed that the use of force was necessary.” The cell phone video of the incident showed that defendant called I “over to her vehicle, [I] walked closer to defendant, and defendant sprayed her.” Instead of driving away, she suggested that I come closer. In asserting that her contentious history with I supported “that she had an honest and reasonable fear of” her, defendant cited Cooper and Harris. The court found those cases distinguishable. The trial court in this case admitted “some evidence of the parties’ prior interactions and [I’s] reputation as known to defendant. Moreover, in neither Harris nor Cooper did the court reverse a jury verdict based on insufficient evidence to disprove a claim of self-defense.”

Removal of city employee candidates from the ballot; Eligibility under a city charter for candidacy for elected city offices; Claim that the charter provision was an unconstitutional First Amendment restraint on political speech; Case precedent upholding “resign-to-run” provisions; Clements v Fashing; Mandamus; Laches; Affidavits of identity (AOIs)

The court concluded that the trial court did not commit any reversible error in refusing to apply laches to all of plaintiff’s claims. Further, it did not err in granting his requested writ of mandamus directing defendant-city clerk to remove two unelected city employees from the November ballot as candidates for city elected offices. In this expedited election case, defendants first argued that the trial court erred by not ruling that plaintiff’s “claims for mandamus and declaratory relief—most of which were asserted in his initial complaint, rather than the” later filed amended complaint—were barred by laches. But plaintiff alleged that they “were responsible for most of the delay because City officials had refused to timely provide plaintiff with copies of the pertinent AOIs.” The court noted that in their brief on appeal, defendants did not even attempt “to refute that allegation. And as the parties asserting laches as an affirmative defense, they bear the burden of providing sufficient evidence to support its proposed application.” As to the grant of mandamus, plaintiff’s request was based on allegations that both candidates (W and L) “were, as City employees, ineligible for the offices they sought in light of § 4-3(e) of the Highland Park City Charter[.]” Defendants admitted on appeal that W and L were “unelected City employees at all relevant times. Defendants also admit that the language of § 4-3(e) plainly ‘requires City employees to resign employment in order to even be eligible for candidacy for’ elected City offices.” But they argued that § 4-3(e) was “‘an unconstitutional First Amendment restraint on political speech.’” While defendants relied on a trial court decision, the court found this reliance “entirely misplaced” in light of “the great weight of both binding and highly persuasive authority” contravening that decision.

Federal-officer removal; 28 USC § 1442(a)(1); Government contractor defense; Boyle v United Techs Corp; Failure-to-warn claims; Tate v Boeing Helicopters; Subject-matter jurisdiction; Amended complaint; Royal Canin USA, Inc v Wullschleger; Remand; § 1447(c); Colorable federal defense; Military service asbestos exposure disclaimer; Claims arising from federal conduct; Chevron USA Inc v Plaquemines Parish; “Indivisible” federal conduct; Ohio ex rel Yost v Ascent Health Servs, LLC; Maine v 3M Co, Inc; Apportionment

The court held that defendant-GE could not maintain federal-officer jurisdiction after plaintiff-Horton amended the complaint to disclaim all asbestos-exposure claims arising from the decedent’s Navy service, leaving GE without a colorable federal government-contractor defense. Horton sued GE and others in Kentucky state court for Kentucky-law asbestos claims involving the decedent’s civilian exposure. GE removed under § 1442(a) based on alleged asbestos exposure from Navy turbines supplied to a ship on which the decedent served. The district court granted Horton’s remand motion after she filed an amended complaint expressly waiving claims arising from Navy service. On appeal, the court first held that the district court properly considered the amended complaint because, under Royal Canin, jurisdiction “follows from the amended complaint,” and amended pleadings may be “‘jurisdiction-changing events.’” The court next held that GE lacked a colorable federal contractor defense to claims arising from its provision of the turbines because Horton had “raised no such claims[,]” and GE could not be subjected to tort liability associated with government procurement work when the operative complaint limited the challenged conduct to non-federal business. It rejected GE’s argument that military exposure still “relate[d] to” the remaining claims because the statute requires a close connection between the “challenged conduct” and federal acts, not merely an asserted connection between federal acts and the decedent’s injury. The court also distinguished cases involving indivisible federal and non-federal conduct, reasoning that asbestos exposure at different places and times is not indivisible and that ordinary apportionment questions can be managed by state courts. Affirmed.

Removal of city employee candidates from the ballot; Eligibility under a city charter for candidacy for elected city offices; Claim that the charter provision was an unconstitutional First Amendment restraint on political speech; Case precedent upholding “resign-to-run” provisions; Clements v Fashing; Mandamus; Laches; Affidavits of identity (AOIs)

The court concluded that the trial court did not commit any reversible error in refusing to apply laches to all of plaintiff’s claims. Further, it did not err in granting his requested writ of mandamus directing defendant-city clerk to remove two unelected city employees from the November ballot as candidates for city elected offices. In this expedited election case, defendants first argued that the trial court erred by not ruling that plaintiff’s “claims for mandamus and declaratory relief—most of which were asserted in his initial complaint, rather than the” later filed amended complaint—were barred by laches. But plaintiff alleged that they “were responsible for most of the delay because City officials had refused to timely provide plaintiff with copies of the pertinent AOIs.” The court noted that in their brief on appeal, defendants did not even attempt “to refute that allegation. And as the parties asserting laches as an affirmative defense, they bear the burden of providing sufficient evidence to support its proposed application.” As to the grant of mandamus, plaintiff’s request was based on allegations that both candidates (W and L) “were, as City employees, ineligible for the offices they sought in light of § 4-3(e) of the Highland Park City Charter[.]” Defendants admitted on appeal that W and L were “unelected City employees at all relevant times. Defendants also admit that the language of § 4-3(e) plainly ‘requires City employees to resign employment in order to even be eligible for candidacy for’ elected City offices.” But they argued that § 4-3(e) was “‘an unconstitutional First Amendment restraint on political speech.’” While defendants relied on a trial court decision, the court found this reliance “entirely misplaced” in light of “the great weight of both binding and highly persuasive authority” contravening that decision.

Governmental immunity; Highway exception; MCL 691.1402(1); Sidewalk defect; Notice of injury; MCL 691.1404(1); Known witnesses; Milot v Department of Transp; Exact location & nature of defect; Substantial compliance; Madbak v City of Farmington Hills; Photographs; McLean v City of Dearborn; Date discrepancy

The court held that plaintiff-Gonzales’s notice substantially complied with MCL 691.1404(1) because he was not required to identify people who arrived after the fall, adequately described the sidewalk defect through location information and photographs, and the one-day date error did not invalidate the notice. Gonzales sued defendant-city after he tripped and fell on a sidewalk, fracturing his kneecap and hip. The city moved for summary disposition on governmental-immunity grounds, arguing that the notice was deficient as to the nature of the defect and known witnesses. The trial court denied the motion. On appeal, the court first held that the notice did not fail for omitting the names of four people who helped Gonzales afterward because MCL 691.1404(1) requires the names only of persons who “witnessed the occurrence,” and none of the later-identified people “saw plaintiff fall or become injured.” The court next held that the description “defective sidewalk,” combined with exact coordinates, an address, and circled Google images, provided adequate notice of the nature and location of the defect because any written deficiency was remedied. It also held that listing March 2 rather than March 1 did not defeat notice because the statute does not require the date of injury in the notice, the notice was served about three weeks after the fall, and it was “‘understandable and sufficient to bring the important facts’” to the city’s attention. Affirmed.

Governmental immunity; Highway exception; MCL 691.1402(1); Sidewalk defect; Notice of injury; MCL 691.1404(1); Known witnesses; Milot v Department of Transp; Exact location & nature of defect; Substantial compliance; Madbak v City of Farmington Hills; Photographs; McLean v City of Dearborn; Date discrepancy

The court held that plaintiff-Gonzales’s notice substantially complied with MCL 691.1404(1) because he was not required to identify people who arrived after the fall, adequately described the sidewalk defect through location information and photographs, and the one-day date error did not invalidate the notice. Gonzales sued defendant-city after he tripped and fell on a sidewalk, fracturing his kneecap and hip. The city moved for summary disposition on governmental-immunity grounds, arguing that the notice was deficient as to the nature of the defect and known witnesses. The trial court denied the motion. On appeal, the court first held that the notice did not fail for omitting the names of four people who helped Gonzales afterward because MCL 691.1404(1) requires the names only of persons who “witnessed the occurrence,” and none of the later-identified people “saw plaintiff fall or become injured.” The court next held that the description “defective sidewalk,” combined with exact coordinates, an address, and circled Google images, provided adequate notice of the nature and location of the defect because any written deficiency was remedied. It also held that listing March 2 rather than March 1 did not defeat notice because the statute does not require the date of injury in the notice, the notice was served about three weeks after the fall, and it was “‘understandable and sufficient to bring the important facts’” to the city’s attention. Affirmed.

Negligence; Landlord’s duty to protect tenants from criminal acts; Third-party criminal conduct; Notice; Specific imminent risk; Bailey v Schaaf; Electronic master key; Abandoned gross negligence, intentional infliction of emotional distress, & negligent infliction of emotional distress claims

The court held that defendants-landlords had no duty to anticipate or prevent a former employee-tenant’s theft from plaintiff-tenant Nguyen’s apartment because they lacked notice of a specific, imminent criminal threat. Nguyen sued defendants after nonparty-A allegedly used an unauthorized staff-level key to enter Nguyen’s apartment and steal personal property. The trial court granted defendants summary disposition, concluding Nguyen failed to establish that A’s criminal conduct was foreseeable or that defendants had a duty to prevent it. On appeal, the court held that defendants had no duty under Bailey because a landlord may presume tenants and invitees will obey the law until a “specific situation occurs on the premises” showing a risk of imminent harm to an identifiable person. “Notice is critical.” The court reasoned that A was terminated for performance reasons, not theft or dishonesty, and defendants deactivated the master key assigned to her. It also concluded the appliance thefts a month before the theft from Nguyen’s apartment did not create notice because nothing then known connected those thefts to A or the electronic key system, and Nguyen’s proposed audit and full reprogramming theory improperly reasoned backward from what defendants learned only after the entry into her apartment. Because defendants contacted police after the appliance thefts, they satisfied the limited duty to make “‘reasonable efforts to expedite police involvement.’” Affirmed.

Termination at initial disposition; Failure to make the requisite aggravated circumstances finding; Substantial rights; “Sibling” (MCL 712A.13a(1)(l)); “Sexual penetration” (MCL 750.520a(r) & 722.622(q)); Cunnilingus; People v Harris; Termination under § 19b(k)(ii); Doctrine of anticipatory neglect; In re KV; Children’s best interests; In re Olive/Metts

The court held that aggravating circumstances existed, that § (k)(ii) supported termination, and that terminating respondent-father’s parental rights was in his children’s best interests. Thus, it affirmed the termination order. The case arose from his “extensive sexual abuse of AD[,]” whose mother is also the mother of his children (KG and CG). Respondent argued that the trial court erred in terminating his “rights at the initial disposition without first determining that there were aggravated circumstances.” Reviewing the issue for plain error, the court found that the record plainly showed the trial court failed to “make the requisite findings of aggravated circumstances.” But it held that his substantial rights were not affected because aggravating circumstances existed given that “respondent had abused AD, who is a sibling of CG and KG, and the” record supported the trial court’s finding that “the abuse included sexual penetration.” As to a statutory ground for termination, the court concluded that the trial court did not clearly err in finding “that, based upon respondent’s sexual abuse of AD, there was a reasonable likelihood that KG and CG would be harmed if returned to” his care. While AD was approximately 9 years older than KG and 10 years older than CG, “respondent’s sexual abuse of AD” began when she was 7, and “involved multiple instances of sexual contact and penetration.” Given his “repeated and ongoing sexual abuse of one prepubescent girl that he treated as a daughter, there is a reasonable likelihood that he posed a danger to his prepubescent daughters.” Finally, given the record, the court was “not definitely and firmly convinced that the trial court made a mistake in finding that termination of respondent[‘s] parental rights was in KG and CG’s best interests.”