Ineffective assistance of counsel; Prejudice; Strickland v Washington; Motion for new trial; Ginther hearing

The court held that defendant was not entitled to a new trial based on ineffective assistance of counsel because, even assuming deficient performance, “he cannot show prejudice.” He was convicted of second-degree murder and felony-firearm after the victim was shot while hunting. Evidence linking defendant to the murder included his presence near the crime scene, his DNA on a plastic bag found nearby, incriminating text messages, and Internet searches concerning the victim and law enforcement before the public knew about the death. After a Ginther hearing, defendant argued that counsel should have consulted a firearms expert, objected when the prosecution characterized footprints as creating a path between the victim and the bag containing defendant’s DNA, and offered evidence explaining his apparent early knowledge of the murder. On appeal, the court held that the firearms issue was not prejudicial because the proposed expert testimony “would have only confirmed Detective [M]’s testimony that there was no evidence connecting defendant’s firearm to the shooting.” It similarly held that even if an objection to the footprint argument had been sustained, the argument “was only one component of the prosecution’s case,” while “substantial independent evidence” connected defendant to the crime. Finally, the court held that failing to offer an alternative explanation for defendant’s knowledge was not prejudicial because such evidence “could have opened the door to GPS evidence placing defendant near the victim’s body and to potentially damaging rebuttal testimony.” Considering the evidence as a whole, defendant “has not demonstrated that any of counsel’s alleged errors undermine confidence in the verdict.” Affirmed.

Res judicata; King v Munro; Continuing wrong; Effect of the merits finding in the prior case

Holding that plaintiff-Merle’s claims in this action were barred by res judicata, the court affirmed summary disposition for defendant-Hagopian. The parties are neighbors with abutting properties. A dispute arose over maintenance of trees on Hagopian’s side of the property line. In a prior case, the district court ruled in Hagopian’s favor and dismissed Merle’s counterclaim with prejudice. In a short opinion attached to its order, it stated “that the order ‘fully and completely resolve[d] the matter between the parties pertaining to trees’ on Hagopian’s property, and that, if any of Hagopian’s trees fell and caused damage to Merle’s property, the damages were Merle’s sole responsibility.” Merle later filed this action in circuit court. He argued on appeal that res judicata did “not apply because his claims involve a continuing wrong.” The court noted that the key issue here was what the “continuing tortious acts” were. The district court expressly rejected his claim “that Hagopian was negligent based on [his] failure to maintain his trees. Indeed, [it] stated that, if one of Hagopian’s trees were to cause damage to Merle’s property, Merle was fully responsible for the damage. That ruling necessarily rested on the district court’s determination that Merle had failed to establish a prima facie case of negligence.” The conduct at issue here was “the exact same conduct that the district court already determined was not tortious. Merle cannot cultivate a new claim from the same allegedly negligent act. This finding on the merits was controlling[.]”

Estates & Protected Individuals Code (EPIC); Estate creditor priority; MCL 700.3805; Secured creditor; MCL 700.3809; MCL 700.3814; Security interest; In re Lundy Estate; Collateral description; MCL 440.9108(3)

The court held that appellant-bank retained priority as a secured creditor against proceeds from collateralized real property despite its previously barred general creditor claim, but that its separate “all-assets” loan was not properly secured. Before the decedent died intestate, he obtained two cross-collateralized loans from the bank, one secured by real property through a mortgage and another purportedly secured by all of his assets through a UCC-1 financing statement. The probate court later barred the bank’s general creditor claim for failure to comply with statutory claim requirements and authorized distributions from the estate without first satisfying the asserted security interests. On appeal, the court held that the probate court read Lundy Estate too narrowly because its reasoning applies to secured creditors generally, and “‘EPIC treats secured creditors differently than other potential claimants against an estate.’” A secured creditor has a priority position as to the secured property even without filing a claim against the estate, and the bank therefore had “a priority claim as a secured creditor against the proceeds from the sale of the collateralized real property” to the extent those proceeds were available. However, the court held that the all-assets loan was not properly secured because MCL 440.9108(3) provides that a description such as “‘all the debtor’s assets’ . . . does not reasonably identify the collateral.” Any deficiency remaining after exhaustion of the valid real-property security was only a general creditor claim, which had already been barred. Affirmed in part, reversed in part, and remanded.

Termination under §§ 19b(3)(c)(i), (c)(ii), & (j); Anticipatory neglect doctrine; Reasonable reunification efforts; In re Atchley; Children’s best interests; In re White

The court held that (1) the DHHS made reasonable efforts to reunify respondent-mother with her children, (2) §§ (c)(i) or (c)(ii) supported termination of her rights to four of the children, (3) § (j) supported termination as to a fifth child, and (4) termination was in their best interests. Thus, it affirmed the termination orders in these consolidated appeals. As to reunification efforts, the record belied her “claim that she was compliant with her treatment plan. DHHS offered” her many services, including affordable housing referrals, medication management, counseling, parenting and anger management classes, therapy services, supervised parenting time, and a psychological evaluation. But she often refused to participate “or was discharged from them after failing to appear for several appointments. She dismissed the recommendations contained in her psychological evaluation and repeatedly refused to accept responsibility for her actions.” As to statutory grounds for termination, with regard to ZCM, NJM, SLM, and JLT, the record showed “that, by the time of termination, respondent had not adequately addressed her mental health barriers. Moreover, her persistent refusal to accept any responsibility for her actions and that she repeatedly blamed others for her children’s removal over the almost two-year trial court proceedings supports the conclusion that she was unlikely to rectify her barriers within a reasonable time considering” their ages. Thus, termination was proper under § (c)(ii) for ZCM, NJM, and SLM, and § (c)(i) for JLT. As to VST, the court held that termination was proper under § (j) based on the doctrine of anticipatory neglect. The record showed that “respondent neglected and abused her children both before and after they were removed from her care[.]” Given her treatment of the “other children and refusal to participate in services or comply with her service plan, the trial court did not err by finding that there was a reasonable likelihood that VST would be harmed if returned to” her care. Finally, her “effort to participate in her service plan” was not relevant in evaluating the children’s best interests, and she offered no other argument for why termination was not in their best interests.

Estates & Protected Individuals Code (EPIC); Estate creditor priority; MCL 700.3805; Secured creditor; MCL 700.3809; MCL 700.3814; Security interest; In re Lundy Estate; Collateral description; MCL 440.9108(3)

The court held that appellant-bank retained priority as a secured creditor against proceeds from collateralized real property despite its previously barred general creditor claim, but that its separate “all-assets” loan was not properly secured. Before the decedent died intestate, he obtained two cross-collateralized loans from the bank, one secured by real property through a mortgage and another purportedly secured by all of his assets through a UCC-1 financing statement. The probate court later barred the bank’s general creditor claim for failure to comply with statutory claim requirements and authorized distributions from the estate without first satisfying the asserted security interests. On appeal, the court held that the probate court read Lundy Estate too narrowly because its reasoning applies to secured creditors generally, and “‘EPIC treats secured creditors differently than other potential claimants against an estate.’” A secured creditor has a priority position as to the secured property even without filing a claim against the estate, and the bank therefore had “a priority claim as a secured creditor against the proceeds from the sale of the collateralized real property” to the extent those proceeds were available. However, the court held that the all-assets loan was not properly secured because MCL 440.9108(3) provides that a description such as “‘all the debtor’s assets’ . . . does not reasonably identify the collateral.” Any deficiency remaining after exhaustion of the valid real-property security was only a general creditor claim, which had already been barred. Affirmed in part, reversed in part, and remanded.