OV 19--Interference with the Administration of Justice (Sentencing Guidelines)

In People v Hershey, __ Mich App __ (#309183, 12/5/2013) the Court of Appeals held that the trial court erred by scoring 10 points for OV 19, holding that the defendant did not interfere with the administration of justice by failing to pay child support because although he failed to comply with the child-support order, he did not "hamper, hinder or obstruct the act or process of the circuit court administering judgment . . . ." It further found that he did not interfere with the administration of justice by violating the terms of his probation.

This plain and ordinary meaning of the phrase “interfere with the administration of justice” is consistent with the published case law addressing OV 19. Opposing so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process has broad application, just as “interfered with or attempted to interfere with the administration of justice” is “a broad phrase.” People v Barbee, 470 Mich 283, 286 (2004). It “encompasses more than just the actual judicial process” and can include “[c]onduct that occurs before criminal charges are filed,” acts that constitute obstruction of justice, and acts that do not “necessarily rise to the level of a chargeable offense.” Id. at 286-288.

 

Decisions of both the Court of Appeals and the Supreme Court have found the following conduct to constitute an interference or attempted interference with the administration of justice: threatening or intimidating a victim or witness, telling a victim or witness not to disclose the defendant’s conduct, fleeing from police contrary to an order to freeze, attempting to deceive the police during an investigation, interfering with the efforts of store personnel to prevent a thief from leaving the premises with unpaid store property, and committing perjury in a court proceeding. See id. at 286; People v Ratcliff, 299 Mich App 625, 633 (2013), vacated in part on other grounds, People v Ratcliff, __Mich__ (Docket No. 146861, entered October 25, 2013); People v McDonald, 293 Mich App 292, 299 (2011); People v Smith, 488 Mich 193, 196-197 (2010); People v Ericksen, 288 Mich App 192, 204 (2010); People v Steele, 283 Mich App 472, 492 (2009); People v Underwood, 278 Mich App 334, 339 (2008); People v Passage, 277 Mich App 175, 179-181 (2007); People v Endres, 269 Mich App 414, 420-421 (2006). Each of these acts hampers, hinders, or obstructs the process of administering judgment of individuals or causes by judicial process. For instance, the acts of witness intimidation and deceiving police investigators seek to prevent incriminating evidence from being used throughout the process of administering judgment of individuals by judicial process, including during both the pretrial and, potentially, trial stages.

No issue of material fact if the non-moving party's evidence is blatantly contradicted by the record.

In Fuhr v Trinity Health Corporation, __ Mich __ (#147158, 10/2/2013) the Michigan Supreme Court reversed the judgment of the Court of Appeals, for the reasons stated in the Court of Appeals dissenting opinion, and reinstated the March 30, 2012 order of the Kent Circuit Court granting summary disposition to the defendants. 

The Court of Appeals dissent had opined that the  plaintiff’s self-serving deposition testimony was blatantly contradicted by the record such that no reasonable jury could believe it.  In Scott v Harris, 550 US 372, 380; 127 S Ct 1769; 167 L Ed 2d 686 (2007), the United States Supreme Court, considering summary disposition under FR Civ P 56(c), which is parallel to MCR 2.116(C)(10), held that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary disposition.” Under those circumstances, a “genuine” issue of material fact does not exist.

Emotional distress damages for breach of contract---no unless . . .

In Benefield v Village at Stonegate Pointe Condominium Association, __ Mich __ (#147214, 10/12/2013) the Michigan Supreme Court reversed that portion of the Court of Appeals judgment that reversed the trial court’s exclusion of emotional distress damages for the plaintiff’s breach of contract and negligence claims. 

Emotional distress damages are generally not recoverable for breach of a commercial contract unless such damages were within the contemplation of the parties at the time the contract was made. Kewin v Massachusetts Mutual Ins Co, 409 Mich 401, 419 (1980). Emotional distress damages are also generally not recoverable for the negligent destruction of property. Price v High Pointe Oil Co, Inc, 493 Mich 238, 264 (2013).

Motion to compel an independent examination.

In Burris v KAM Transport, Inc, 301 Mich App 482 (2013) the Court of Appeals held the trial court abused its discretion when it denied defendants’ motion to compel independent medical examinations. MCR 2.311(A) provides a trial court with discretion to order a party to submit to a physical or mental examination. See Muci v State Farm Mut Auto Ins Co, 478 Mich 178 (2007). MCR 2.311(A) states: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be present at the examination. In Burris, supra, the Court of Appeals concluded that the trial court abused its discretion in denying defendants’ request for an independent medical examination by a doctor with expertise in physical medicine and rehabilitation. While there can be cases where it is not an abuse of discretion for a trial court to decline ordering a second independent medical examination, such as where the second examination would be duplicative, under the facts of this case, it was an abuse. Plaintiff does not argue—and the trial court did not find—that defendants request for independent medical examinations by a doctor with expertise in physical medicine and rehabilitation would be duplicative or unnecessary. Additionally, the exams were taken in the AAA case almost three years ago, and the passage of time has been found to constitute good cause for ordering a second independent medical examination, and the persistence of plaintiff’s impairment is a critical issue in this case. While it is true that AAA’s independent medical examination by a doctor with expertise in physical medicine and rehabilitation provided defendants with some ability to obtain relevant information produced for another case, in the ordinary course defendants should be able to retain their own experts to assist in the defense of their own case, and should not normally be required to rely on experts retained by other parties in another case. Just as importantly, the trial court’s reasoning—that allowing the examinations would be overly burdensome and place plaintiff at an unfair disadvantage at trial—does not support its conclusion. Plaintiff’s concern about restricting the evidence presented to the jury can be addressed through motions in limine, objections, and by limiting the presentation of cumulative evidence at trial, without deterring discovery. There is also a ceiling on the number of expert witnesses that a party can call at trial. See MCL 600.2164(2). Hence, precluding defendants from obtaining IMEs of plaintiff by their own expert medical physicians was not supported by the trial court’s reasoning. For these reasons we hold that the trial court abused its discretion in denying defendants’ motion to compel an independent medical examination.

A defendant, through no fault of his/her own, who has made a good faith effort but is unable to comply with a court order.

Obviously, I do not speak for other judges, but

It is not my intention, goal or desire to ‘sanction’ a defendant if, through no fault of his/her own, (s)he is not able to comply with a bond condition or term of probation or other court order.  What is required is a good faith effort by the defendant to comply with all required terms.  Many times the issue is financial.  When that happens, if a defendant, through no fault of his/her own, has made a good faith effort but is unable to comply with a court order, it is my intention, goal and desire to look at other alternatives.  This, however, requires attorneys/defendants to be pro-active and bring it to the court, sooner rather than later.

Obviously, one is encouraged to try and work with probation or other supervising entity and/or the prosecutor’s office, but if you are not satisfied with their response and you believe you have a defendant who is legitimately unable to comply with a court order, you should  be requesting a hearing before me, and sooner rather than later.  Waiting until after the bench warrant is issued or unexcusable non-compliance minimizes and may negate the possibility of actually doing something about it.  Especially, with the effect this may have on one’s freedom and any sentencing agreement.

The determination of expert witness fees/attorney fees, and the same as taxable costs.

The prevailing party in a civil suit is generally entitled to have the opposing party pay its costs. MCR 2.625(A)(1). Whether and to what extent a particular expense may be taxed as a cost is purely statutory. MCL 600.2401. See Leahy v Orion Twp, 269 Mich App 527, 530 (2006).

Expert witnesses may be paid a fee in excess of the fee paid to an ordinary witness with the trial court’s permission and that the fee paid to the expert witness may be taxed as part of the taxable costs. MCL 600.2164(1). An expert is not, however, entitled to compensation—as a witness—for every service that the expert may have provided. Mich Citizens for Water Conservation v Nestlé Waters North America, Inc, 269 Mich App 25 (2005).  An expert is entitled to compensation as a witness only for the time that the expert actually spent in court and for the time that the expert spent to prepare for his or her testimony as an expert. Id.; see also State Hwy Comm’r v Rowe, 372 Mich 341 (1964). 

The question whether a person participated in the litigation as an expert witness is a question of law that must be determined from the totality of the circumstances.  A witness can be an expert witness and be entitled to excess compensation even if the expert witness never actually testifies. See Jones v Antrim Circuit Judge, 223 Mich 141 (1923) holding that fees for expert witnesses who attended trial, but who were never called to testify, could be taxed as a cost because the witnesses were “in good faith made to attend” and would have testified as to matters of opinion had they been called.  See also Herrera v Levine, 176 Mich App 350 (1989). Whether the witness was ultimately called to testify or admitted as an expert is not dispositive; an expert may be entitled to compensation for preparation related to his or her testimony as an expert in addition to compensation for his or her time spent actually attending court. State Hwy Comm’r, supra. However, the prevailing party may not tax as a cost those fees paid to the expert for services other than time spent at trial or preparing for trial. Michigan Citizens for Water Conservation, supra.  

An expert witness is one who has “scientific, technical, or other specialized knowledge” that will “assist the trier of fact to understand the evidence or to determine a fact in issue” and who testifies “thereto in the form of an opinion or otherwise.” MRE 702. The key to qualifying for compensation as an expert is that the witness offers or will offer opinion testimony in his or her area of expertise: “The provisions of MCL 600.2164 allowing for the taxation of costs shall not be applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.” MCL 600.2164(3).  Nothing in MRE 702 or MCL 600.2164, however, precludes an expert witness from offering both fact testimony and expert opinion testimony. See United States v Lopez-Medina, 461 F3d 724, 743 (CA 6, 2006) stating that police officers may testify as both experts and fact witnesses.

Once a witness testifies as an expert by offering opinion testimony, the witness is entitled to seek compensation “in excess of the ordinary witness fees provided by law” without regard to whether the witness also offered testimony on facts. MCL 600.2164(1). Nevertheless, when exercising its discretion to award a fee in excess of the ordinary witness fee, the trial court must consider the nature and complexity of the expert’s opinion testimony in relation to his or her lay testimony when determining whether the witness’ expert fee was reasonable.  When considering the reasonableness of the expert witness’ fee, the trial court should consider the total fee in light of the time actually spent in court and the complexity of the expert’s testimony. The trial court should also have assessed the reasonableness in the light of the typical fee charged by similar experts for a similar period of trial preparation and time spent in court. Finally, the trial court must address whether and to what extent the expert’s pretrial fees were actually and reasonably incurred for preparing to testify as an expert at trial. Michigan Citizens for Water Conservation, supra.

If after examining whether and to what extent the expert’s fee is taxable as a cost under MCL 600.2164, the trial court determines that expert is entitled to his actual costs under MCR 2.403(O)(3), the trial court must also examine the reasonableness of the prevailing party’s attorney fee consistent with Smith v Khouri, 481 Mich 519 (2008). The trial court should provide sufficient information for appellate review of the award; in particular, it should identify the “fee customarily charged in the locality for similar services” and the source for that determination. Smith, supra.  See also Augustine v Allstate Ins Co, 292 Mich App 408 (2011) stating that it was insufficient for the trial court to simply find that the fee was reasonable; it must first determine the fee customarily charged in the locality for similar legal services and then adjust from there. It should also state the number of hours that it believes were reasonably spent on the litigation and should briefly address its view of the remaining factors identified in Smith, supra and how the overall fee should be adjusted considering those factors.

The requirement of a 'lawful' command/request by a police officer for Resisting & Obstructing.

In People v Nyilas, Unpub Per Curiam Opinion, (#311721, 8/13/2013) the Court of Appeals affirmed the defendant’s conviction for interfering with electronic communications, but reversed his conviction for resisting or obstructing a police officer. 

In Nyilas to the extent that police officers requested defendant to answer the phone or come to the door and talk with them, such requests were not “lawful” because defendant had no obligation to do so. “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v Jardines, __ US __; 133 S Ct 1409, 1415; 185 L Ed 2d 495 (2013) quoting Silverman v United States, 365 US 505, 511, 81 S Ct 679 (1961). In fact, The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v United States, 365 US 505, 511; 81 S Ct 679, 683; 5 L Ed 2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. [Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980).] While an police officer, like any other private citizen, may knock at the door without a warrant and request entry, Jardines, 133 S Ct 1409 at 1415-1416, “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Kentucky v King, ___ US ___; 131 S Ct 1849, 1862; 179 L Ed 2d 865 (2011). “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” Id. (emphasis added). 

In People v Moreno, 491 Mich 38 (2012), the defendant informed two police officers that he would not allow them to enter his residence without a warrant, and then he attempted to close the front door. Id. at 42. One of the police officers put his shoulder against the door to prevent the defendant from closing the door. Id. at 42-43. The defendant struggled with the police officers, and he was eventually charged with assaulting, resisting, or obstructing a police officer under MCL 750.81d(1). Id. at 43. The issue before the Court was whether MCL 750.81d abrogated “the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.” Id. at 41. After an analysis of the statutory language, the Court concluded that MCL 750.81d did not abrogate “the common law right to resist unlawful arrests or other unlawful invasions of private rights.” Id. at 58. Thus, “the prosecution must establish that the officers’ actions were lawful.” Id. at 52.2

The Court of Appeals thereby concluded that the police, in requesting defendant Nyilas to come to the door (before the officers obtained valid arrest and search warrants) were not making a lawful request.  The trial court thereby abused its discretion in failing to grant defendant’s motion for directed verdict. Defendant was under no legal obligation to leave the home or allow the officers to enter the home absent valid warrants to do so.   

Lifetime electronic monitoring required for all CSC 1 offenses.

In People v Brantley, __ Mich App __ (#298488, 5/17/2012) the Court of Appeals held that MCL 750.520n(1) requires the trial court to impose lifetime electronic monitoring in either of two different circumstances: (1) when any defendant is convicted of CSC-I under MCL 750.520b, and (2) when a defendant who is 17 years old or older is convicted of CSC-II under MCL 750.520c against a victim who is less than 13 years old.

Defendants convicted of CSC-I under MCL 750.520b, regardless of the age of the defendant or the age of the victim, must be ordered to submit to lifetime electronic monitoring. MCL 750.520b(2)(d); MCL 750.520n(1).  The Court of Appeals thereby held that the Legislature intended the modifying phrase “for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age” to apply only to convictions of second-degree criminal sexual conduct (CSC-II) under MCL 750.520c, and not to convictions of CSC-I under MCL 750.520b.

Admissibility of prior testimony by a child now emotionally unable to testify.

In People v Duncan, __ Mich __ (#146295, 7/30/2013) the Michigan Supreme Court held that while hearsay is generally inadmissible, the Michigan Rules of Evidence permit certain prior out-of-court statements to be admitted into evidence when a witness is unavailable. MRE 804(a) enumerates five situations when a witness is unavailable, including when the witness is unable to testify because of a then existing physical or mental illness or infirmity. When a child attempts to testify but, because of her youth, is unable to do so because she lacks the mental ability to overcome her distress, the child has a “then existing . . . mental . . . infirmity” within the meaning of MRE 804(a)(4) and is therefore unavailable as a witness.

The child’s prior preliminary examination testimony thereby may be admissible if it further satisfies the requirements of MRE 804(b)(1) and does not violate the defendants’ rights under the Confrontation Clause.

Conduct designed to substantially increase the fear and anxiety of a victim.

In People v Hardy, __ Mich __ (#144327, 7/29/2013) the Michigan Supreme Court held, for purposes of the sentencing guidelines, that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” does not require that a defendant’s conduct be “similarly egregious” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 points. The sentencing guidelines provide that a trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in subsection (1)(a). (sadism, torture, excessive brutality, or whether defendants engaged in conduct designed to substantially increase the fear and anxiety a victim suffered during the offense). Although the sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13, the Sentencing Guidelines otherwise allow a factor that is an element of the crime charged to be considered when computing an offense variable score.

Recognizing, however, that “[a]ll . . . crimes against a person involve the infliction of a certain amount of fear and anxiety”, the relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount. In making this determination, because the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant.

As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.

Prosecution witness rules in criminal cases

Under MCL 767.40a, the prosecution’s burden is “to give initial and continuing notice of all known res gestae witnesses, identify witnesses the prosecutor intends to produce, and provide law enforcement assistance to investigate and produce witnesses the defense requests.” People v Long, 246 Mich App 582, 585 (2001). “‘[T]he purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae status.’”  People v Gadomski, 232 Mich App 24, 36 (1998), quoting People v Calhoun, 178 Mich App 517, 523 (1989). “Therefore, if the defendant knew of the res gestae witness in any event, the prosecutor’s failure to list the witness would be harmless error.” Calhoun, 178 Mich App at 523.

Defendant argues that the trial court erred by allowing the prosecutor to call as witnesses that were not listed on the information. “A trial court’s decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion.” People v Yost, 278 Mich App 341, 379 (2008). The prosecutor moved the trial court for the late endorsement of the two witnesses after trial began. Because of the late request, the prosecutor could not amend the witness list without leave of the court for good cause shown or by stipulation of the parties. MCL 767.40a(4). The trial court found good cause to permit one witness’ testimony because the prosecutor intended to call him to rebut a defense raised during defense counsel’s opening argument. Both the prosecutor and the trial court were surprised by the defense raised by counsel. A trial court has good cause to permit the late endorsement of a witness to rebut a surprise defense. See People v Kulick, 209 Mich App 258, 265 (1995), remanded for reconsideration on other grounds 449 Mich 851 (1995). Accordingly, the trial court did not abuse its discretion in finding good cause for the late endorsement of Cottrell. Yost, 278 Mich App at 379. The trial court also found good cause to allow the other witness to testify because he was available to both the prosecutor and defendant throughout the case and, therefore, should not have been a surprise to defendant. A trial court does not abuse its discretion in finding good cause to permit a witness to testify if the opposing party is not surprised by the endorsement.  See People v Callon, 256 Mich App 312, 326-327 (2003).  Were we to find error, defendant has not shown that the trial court’s ruling resulted in prejudice. Callon, 256 Mich App at 328. Defendant does not explain how he would have responded if he received earlier notice of the prosecutor’s intent to call these witnesses. Further, defense counsel refused the trial court’s offer of an adjournment to speak with the witnesses and, indeed, stated that she was familiar with what the witnesses would say. In People v Lobaito, 133 Mich App 547, 557 (1984), this Court recognized that, if counsel fails to request time to interview a witness, it tends to negate a claim of prejudice. Defendant has not established prejudice and is not entitled to relief on this ground. Callon, 256 Mich App at 328.

Hearsay statements by the interrogator that may require special attention.

“[W]here the proponent of the evidence offers an interrogator’s out-of-court statements that comment on a person’s credibility for the purpose of providing context to a defendant’s statements [(and, thus, are not offered for the truth of the matter asserted)], the interrogator’s statements are only admissible to the extent that the proponent of the evidence establishes that the interrogator’s statements are relevant to their proffered purpose. See MRE 401.” People v Musser, ___ Mich ___, ___ (2013). Despite being relevant, the statements may still be excluded under MRE 403 if “‘the danger of unfair prejudice to the defendant substantially outweighs the probative value of [the statements.]” Musser, ___ Mich at ___, quoting People v Robinson, 417 Mich 661, 666 (1983). Thus, “a trial court must . . . evaluate the probative value of the out-of-court statements in providing context to a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-of-court statements are presented to the jury.” Musser, ___ Mich at ___. In these cases, “courts must be mindful of the problems inherent in presenting the statements to the jury, especially in child-sexual-abuse cases.” Id. at ___. “[I]f an interrogator’s out-of-court statement is determined to be admissible for the purpose of providing context to a defendant’s statements, . . . the court, upon request, ‘shall restrict the evidence to its proper scope’ [pursuant to MRE 105.]” Musser, ___ Mich at ___. To that end, the court may “requir[e] the interrogating officer to testify at trial and paraphrase the statements he or she made that provoked a relevant statement by a defendant . . . [in order] to protect a defendant’s right to a fair trial from the resulting prejudice of allowing the jury to hear the interrogator’s comments verbatim.” Id. at ___. Another option is to redact the statements. 

Michigan's 1st Mental Health Court suspends operation.

In deference to the personnel needs of Circuit Court Probation and the lack of existing resources; Ionia County is, effective immediately, suspending operation of its mental health court.

The personnel commitment and thereby trying to do more with less; the lack of funding, available resources and dwindling attendance at mental health court team meetings; probably made this action essentially inevitable.

Please understand this is not a knee jerk response.  For a long time, the lack of resources and the alternative increased use of incarceration has been a legitimate concern.  Sending a person with mental health issues to prison to utilize the services available in prison or via the prison re-entry program is too often the best option for the probationer, but is still wrong, for all of the obvious reasons.  And, now understanding the personnel commitment by the probation department to the specialty courts, it’s a decision whose time has come.

A special thank you to everyone for your time and effort in trying to make our mental health court the best it can be.  It was and is appreciated.

Drug-sniffing dog within the curtilage without a search warrant violates the Fourth Amendment right against unreasonable searches and seizures.

In People v Holt, __ Mich __ (# 145201, 6/7/2013) the Michigan Supreme Court reversed the judgment of the Court of Appeals reinstating the trial court’s order granting defendant’s motion to suppress.   In Florida v Jardines,  569 US ___; 133 S Ct 1409; 185 L Ed 2d 495 (2013)  the United States Supreme Court ruled that the employment of a drug-sniffing dog within the curtilage of the defendant’s home without a search warrant was a violation of the Fourth Amendment right against unreasonable searches and seizures. In light of the prosecutor’s concession that absent the canine sniff the warrant was not supported by probable cause, and given the reasoning provided by the United States Supreme Court, the trial court in this case properly granted the defendant’s motion to suppress the evidence seized in the search of his home.

A parent's failure to prevent harm to his/her child.

In People v Borom, __ Mich __ (#146714, 5/29/2013) the Michigan Supreme Court remanded to the Court of Appeals for consideration, as on leave granted, of: (1) whether a parent’s failure to act to prevent harm to his or her child satisfies the requirement for a knowing or intentional act under the first-degree child abuse statute, MCL 750.136b(2), in light of MCL 750.136b(3) that separately punishes omissions and reckless conduct as second-degree child abuse; (2) if so, whether the failure to prevent a person who may be dangerous to the child to have contact with the child violates the first-degree child abuse statute; (3) whether there is a common law duty of a parent to prevent injury to his or her child; and, (4) assuming that there is such a duty under the common law, whether aiding and abetting under MCL 767.39 can be proven where the defendant failed to act according to a legal duty, but provided no other form of assistance to the perpetrator of the crime.

Of specific interest is whether there is a common law duty, and with what effect.

Rosy Relief in Sight for the Plan in CGI Technologies & Solutions v Rose; Guest blog by Emily Hootkins (Hoort)

April 25, 2013 | Posted by Emily Catherine Hootkins | Topic(s): Benefit Claims & Claims Process Litigation, Other Interesting Cases & Issues

On April 22, 2013, the Supreme Court granted the petition for a writ of certiorari in CGI Technologies & Solutions v. Rose, et al., and then immediately vacated and remanded the Ninth Circuit’s judgment in light of US Airways, Inc. v. McCutchen, No. 11-1285, 2013 WL 1567371 (U.S. Apr. 16, 2013).

In McCutchen, the Supreme Court issued a two-part opinion in which it held that (1) equitable principles cannot override clear plan terms, but (2) equitable principles can be used to construe ambiguous or missing plan terms.

Last June, we blogged about CGI Technologies & Solutions v. Rose after the Ninth Circuit ruled that equitable defenses (such as the common-fund rule) can trump express contractual language in lawsuits seeking “appropriate equitable relief” under ERISA § 502(a)(3). 683 F.3d 1113 (9th Cir. 2012). The facts of this case are quite similar to McCutchen. Thus, it is not surprising that the Supreme Court simply vacated and remanded with a reference to its recent opinion in McCutchen.

In CGI Technologies & Solutions v. Rose, plaintiff Rhonda Rose was seriously injured in a car accident. Her ERISA-governed employee welfare benefits plan paid about $32,000 in her ensuing medical expenses. Rose later recovered $376,906.84 from the third party tortfeasor and her automobile insurance provider. After Rose’s recovery, CGI sought reimbursement of the full $32,000 the plan had paid in medical expenses in accordance with the plan’s subrogation and reimbursement provisions. When Rose refused to reimburse the plan in full (she later argued that any reimbursement must be reduced by the make-whole and common fund doctrines), CGI filed suit seeking “appropriate equitable relief,” under ERISA § 502(a)(3) in the form of a constructive trust and/or equitable lien.

At this point, the facts of CGI Technologies & Solutions v. Rose seem quite similar to McCutchen, and it may appear that these two cases will face similar fates on remand. However, we actually expect opposite results on remand of these two cases due to the Supreme Court’s two-part opinion in McCutchen.  Unlike in McCutchen, the plan in CGI Technologies & Solutions v. Rose expressly disclaims the common-fund doctrine and requires full reimbursement to the plan regardless of whether the beneficiary is made whole by their recovery. Thus, on remand under McCutchen, the Ninth Circuit must not consider equitable doctrines such as the common-fund or make-whole rules. Instead, the Ninth Circuit must stick to part-one of McCutchen, namely that the express terms of the plan trump any conflicting equitable principles.

This case is a good example of the importance of unambiguous plan provisions. Here, because the plan expressly disclaims the common-fund and make-whole doctrines, there is no need for the Ninth Circuit to reach part-two of McCutchen, where equitable principles may be considered to fill in plan gaps.

Tripling the amount of restitution in a criminal case.

In People v Lloyd, __ Mich App __ (#310355, 5/14/2013) defendant assaulted the victim by striking her in the eye with a high-heeled shoe. The victim lost her eye and now wears a prosthetic. The prosecution charged defendant with assault with intent to do great bodily harm less than murder, MCL 750.84, and assault with a dangerous  weapon, MCL 750.82. The jury found defendant guilty of the lesser-included offense of misdemeanor assault.  At sentencing, the victim testified that the assault has left her emotionally, physically, and financially devastated. Plaintiff requested $42,187.21 in actual restitution pursuant to MCL 780.766(2), and asked the court to triple the award pursuant to MCL 780.766(5). The trial court agreed and ordered restitution in the amount of $126,561.63.

On appeal defendant argued that the trial court should not have ordered three times the amount of restitution under MCL 780.766(5), which states, “If a crime resulting in bodily injury also results in the death of a victim or serious impairment of body function of a victim, the court may order up to 3 times the amount of restitution otherwise allowed under this section.” As used in this subsection, “serious impairment of body function of a victim” includes loss of an eye.  Because there is no dispute that the victim suffered a serious impairment of a body function, the trial court was authorized to order restitution under this section of the statute. Significantly, the plain language of the statute gives the trial court discretion to order as much as triple the amount of any other restitution allowed, but neither limits nor specifies what the trial court may consider in exercising the discretion to do so.

Expert testimony---Gangs and otherwise.

A trial court may permit a witness who is qualified “by knowledge, skill, experience, training, or education” to testify as an expert, if it determines that “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” MRE 702. However, trial courts must be vigilant to ensure that the expert’s testimony remains within proper bounds:  There is always the concern that jurors will disregard their own common sense and give inordinate or dispositive weight to an expert’s testimony. See People v Peterson, 450 Mich 349, 374 (1995) (noting the potential that a jury might defer to an expert’s seemingly objective view of the evidence). For that reason, trial courts must—at every stage of the litigation—serve as the gatekeepers who ensure that the expert and his or her proposed testimony meet the threshold requirements. Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 782 (2004).

            A trial court errs when it abandons its duty to ensure the integrity of the expert’s testimony or performs its gatekeeper function inadequately. Gilbert, 470 Mich at 780. Where the proffered testimony is not relevant or not helpful because it does not involve matters beyond the common understanding of jurors, it is inadmissible under MRE 702. People v Kowalski, 492 Mich 106, 121-122 (2012).   In addition to the requirements provided under MRE 702, trial courts must ensure that an expert’s testimony complies with the general rules of admissibility. See MRE 401, MRE 402, and MRE 403. Applying all these rules, courts have developed specific limitations on expert testimony that implicate a defendant’s right to have an impartial jury find the facts. As Justice Brickley explained in the context of a criminal sexual conduct case, because of the danger that jurors might be tempted to defer to an expert on the issue of guilt, courts have established “appropriate safeguards” to accommodate the need for expert testimony in specific circumstances while avoiding the possibility that a jury might unduly rely on the expert’s testimony:  Given the nature of the offense and the terrible consequences of a miscalculation—the consequences when an individual, on many occasions a family member, is falsely accused of one of society’s most heinous offenses, or, conversely, when one who commits such a crime would go unpunished and a possible reoccurrence of the act would go unprevented—appropriate safeguards are necessary. To a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat. [People v Beckley, 434 Mich 691, 721-722 (1990).  

An expert may testify regarding the characteristics of sexually abused children, but only for the purpose of explaining potentially unusual behaviors. Peterson, 450 Mich at 365.  The expert may not offer an opinion as to whether the victim was actually abused. Id. A prosecutor may not present expert testimony on the characteristics of drug dealers—commonly referred to as profile evidence—in order to establish that the defendant was in fact a drug dealer.  People v Hubbard, 209 Mich App 234, 241-242 (1995). The prosecutor may, however, present such evidence as background or modus operandi evidence, but the trial court and the parties must be careful to ensure that the testimony is not offered as substantive evidence of guilt and the expert should not be permitted to opine that the defendant is guilty or otherwise testify in such a way as to imply that the defendant is guilty. People v Williams, 240 Mich App 316, 320-321; 614 NW2d 647 (2000). Although an expert’s testimony may “embrace”  ultimate issues to be decided by the jury, see MRE 704, the expert may not generally offer an opinion on fault, guilt, or a witness’ truthfulness. See Kowalski, 492 Mich at 129  (stating that an expert may testify about the phenomena of false confessions and interrogation techniques, but may not comment on the truthfulness of a defendant’s confession); People v McGillen, 392 Mich 278, 285-286 (1974) (stating that a medical doctor cannot offer expert testimony that the victim was actually raped or that she is truthful); O’Dowd v Linehan, 385 Mich 491, 513 (1971) (holding that it was error to allow the expert to “fix the blame for the accident” because there was nothing exceptional about the evidence that required an expert opinion on the ultimate issue).

With regard to evidence concerning gang membership and gang culture, there are no published Michigan authorities that specifically address its permissible scope. Nevertheless, other courts have held that such testimony can be helpful to jurors. See People v Memory, 182 Cal App 4th 835, 858 (2010) (stating that evidence of gang membership is admissible to prove motive); New Jersey v Torres, 183 NJ 554, 569; 874 A2d 1084 (2005) (listing cases where courts have determined that expert testimony about gangs and gang culture is relevant and helpful to the jury); United States v Mansoori, 304 F3d 635, 654 (CA 7, 2002) (holding that the police expert’s testimony on the history, structure, and involvement of the Travelling Vice Lords gang was useful to the jury); United States v Lemon, 239 F3d 968, 971 (CA 8, 2001) (“Evidence of gang membership is admissible if relevant to a disputed issue.”); United States v Hankey, 203 F3d 1160 (CA 9, 2000) (stating that a police expert could testify about the defendants’ gang affiliations and general tenets of gang culture to impeach testimony). Nevertheless, courts have recognized the high potential that such evidence will be unduly prejudicial.   In United States v Garcia, 151 F3d 1243 (CA 9, 1998), the court reversed a defendant’s conviction for conspiracy because the only evidence that the prosecutor presented in support of the conspiracy was evidence that the defendant was in a gang: Recent authority in this circuit establishes that “[m]embership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting.” Mitchell v Prunty, 107 F3d 1337, 1342 (CA 9, 1997), cert denied, 522 US 913, 118 S Ct. 295; 139 L Ed 2d 227 (1997), overruled in part on other grounds, Santamaria v Horsley, 133 F3d 1242 (CA 9, 1998) (en banc). In overturning the state conviction of a gang member that rested on the theory that the defendant aided and abetted a murder by “fanning the fires of gang warfare,” the Mitchell [court] expressed concern that allowing a conviction on this basis would “smack[ ] of guilt by association.” Id. at 1342. The same concern is implicated when a conspiracy conviction is based on evidence that an individual is affiliated with a gang which has a general rivalry with other gangs, and that this rivalry sometimes escalates into violent confrontations. [Id. at 1246.]  Although there may be evidence that gang members are generally looking for trouble or prepared for violence, that evidence does not itself establish that they have actually made plans to initiate it and, for that reason, it is not evidence of a criminal conspiracy. Id. Further, the court warned that allowing evidence of gang membership to serve as evidence of aiding and abetting or conspiracy would invite absurd results: “Any gang member could be held liable for any other gang member’s act at any time so long as the act was predicated on the common purpose of fighting the enemy.” Id. (internal quotations and citation omitted). Accordingly, expert testimony that a defendant is in a gang and that the gang members have a basic agreement to back one another up in fights is insufficient to establish a conspiracy to commit assault or other illegal acts. Id. at 1245-1246. Where an expert testifies about gang membership and culture, trial courts must be certain to ensure that the jury does not get the impression that gang membership alone equates to guilt. Evidence regarding the beliefs and practices of an organization may be relevant to explain a member’s conduct on a particular occasion, but only with an appropriate foundation and limitations. Memory, 182 Cal App 4th at 862. When admitted without a proper foundation and an appropriate limiting instruction, there is a danger that the jury will make an improper inference: “Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. Hence, the evidence was not relevant. It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the [defendant] was guilty of the offense on the theory of ‘guilt by association.’” [Id. at 859 (citation omitted).] See also Kennedy v Lockyer, 379 F3d 1041, 1055-1056 (CA 9, 2004) (stating that evidence of gang membership cannot be introduced to prove a substantive element of the crime, such as intent, because it amounts to guilt by association); Mansoori, 304 F3d at 654 (noting that the expert testified that membership is not a crime and that membership in the gang does not necessarily indicate that the member is involved in illegal activities and that the trial court instructed the jury that it is not illegal to be a member of, or associated with, a gang); United States v Roark, 924 F2d 1426 (CA 8, 1991) (ordering a new trial because the government’s witnesses’ testimony about the Hell’s Angels organization unfairly introduced improper propensity evidence and transformed the theme of the trial into one of guilt by association).

An expert may not testify that the defendant is guilty, or offer an opinion that a disputed act actually occurred. Peterson, 450 Mich at 365; McGillen, 392 Mich at 285-286. Similarly, although evidence that a defendant is a member of a gang implicates improper propensity evidence, when the evidence is admitted for a relevant purpose and the jury is properly instructed on the limits of evidence, it may be admissible under MRE 404. People v VanderVliet, 444 Mich 52, 74-75 (1993); Memory, 182 Cal App 4th at 862. 

Modification of an Interim Order for Attorney Fees.

In  Rugiero v Dinardo, __ Mich __ (#145577-84, 4/3/2013) the Michigan Supreme Court remanded the case to the trial court  for an evidentiary hearing regarding whether the fees granted in the court’s earlier interim awards pursuant to MCR 3.206(C) should be imposed as a final matter or otherwise modified as the evidence and circumstances may warrant.

The missing witness instruction.

In People v Mathis, Unpub Per Curiam (#305687, 3/14/2013) the Court of Appeals held that the trial court abused its discretion by denying the defendant’s request to read the missing witness jury instruction, CJI2d 5.12, and that the prosecutor did not exercise due diligence in its attempts to locate an endorsed res gestae witness.  Defendant's conviction was reversed and a new trial ordered.

To establish that it exercised “due diligence,” the prosecution is required to prove that it attempted to do everything reasonable in order to obtain an endorsed witness’s presence at trial. People v Eccles, 260 Mich App 379, 389 (2004); see also People v Bean, 457 Mich 677, 684 (1998).

A res gestae witness is someone who has “witness[ed] some event in the continuum of the criminal transaction and [whose] testimony would . . . have aided in developing a full disclosure of the facts at trial.” People v Long, 246 Mich App 582, 585 (2001).  A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial. Eccles, 260 Mich App at 388. In fact, the prosecution is required to produce a listed witness at trial even if the prosecution was not actually required to endorse the witness in the first instance. See People v Wolford, 189 Mich App 478, 483-484 (1991).  A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence.” Eccles, 260 Mich App at 388. “Due diligence” is the attempt to do everything reasonable to obtain the presence of a witness, not everything possible. Id. at 391; see also People v Cummings, 171 Mich App 577, 585 (1988). If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness’s testimony would have been unfavorable to the prosecution’s case. Eccles, 260 Mich App at 388; see also CJI2d 5.12. A prosecutor’s efforts to secure a witness must be reasonable based on “the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it.” Bean, 457 Mich at 684.

Expert testimony concerning battered woman syndrome.

In criminal cases expert testimony is admissible if “the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” MRE 702. But before the trial court admits expert testimony, the court must determine that the evidence is “from a recognized discipline, relevant and helpful to the trier of fact, and presented by a qualified witness.” People v Daoust, 228 Mich App 1, 9-10 (1998), overruled on other grounds by People v Miller, 482 Mich 540 (2008).

In People v Christel, 449 Mich 578, 591 (1995), the Supreme Court determined that expert testimony concerning battered-woman syndrome may be admissible “when appropriate, [to] explain the generalities of characteristics of the syndrome.” The Christel Court observed that, “when a witness’ actions or responses are incomprehensible to average people,” expert testimony is generally needed. Id. at 592. However, the testimony must be “‘limited to a description of the uniqueness of a specific behavior brought out at trial.’” Id. at  591 (citation omitted). Moreover, the expert may not offer an opinion about whether the victim is a battered woman, whether the defendant is a batterer, whether the defendant is guilty, or whether the victim is being truthful. Id. The testimony must also meet the threshold  requirements of relevancy and helpfulness. Id. at 592.   

It has been suggested that expert testimony concerning battered-woman syndrome must be raised by the defense—not by the prosecution. But the Christel Court explained that such testimony may be permissible to explain the “uniqueness of a specific behavior brought out at trial,” and specifically observed that it may be introduced “in the prosecution’s case-in-chief[.]”  Id. at 591, 594. Indeed, Christel does not stand for the proposition that the defense must be the party to introduce the evidence. Defendant cites People v Beckley, 434 Mich 691 (1990), to support his proposition. However, Beckley dealt with evidence of child sexual abuse. Although both cases addressed types of syndrome testimony, Christel is directly applicable and does not support defendant’s position.