Defendant entitled to a portion of the increased value of the home inherited by the plaintiff.

In Piccard v Piccard, Unpub Per Curiam Opin (#316582, 11/17/2015) the Court of Appeals held that defendant was entitled to a portion of the increased value of the home inherited by the plaintiff pursuant to MCL 552.401, and the trial court erred by finding that the home’s value did not increase during the parties’ marriage.

                                                                                                                                    

When dividing property in a divorce proceeding, a trial court must first determine whether property is a marital asset or a party’s separate asset. Reeves v Reeves, 226 Mich App 490, 493-494 (1997). In general, marital assets are subject to division among the parties, but a party’s separate assets may not be invaded. McNamara v Horner, 249 Mich App 177, 183 (2002). Marital assets are those assets that are earned or acquired during the marriage, while separate assets are those assets that are obtained or earned before the marriage. Cunningham v Cunningham, 289 Mich App 195, 201 (2010). “Normally, property received by a married party as an inheritance, but kept separate from marital property, is deemed to be separate property not subject to distribution.” Dart v Dart, 460 Mich 573, 584-585 (1999). However, “separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and ‘treated by the parties as marital property.’ ” Cunningham, 289 Mich App at 201, quoting Pickering v Pickering, 268 Mich App 1, 11 (2005). The conduct of the parties is the clearest indicia of whether they intended to treat the asset as marital or separate property. Cunningham, 289 Mich App at 209.

 

 

In Piccard, supra, property records indicated that the inherited home had an assessed value of $68,482 in 2002 and $72,200 in 2012. Generally, property is assessed at 50% of its true cash value. MCL 211.27a(1). Thus, the property records show that the value of the inherited home increased from $139,964 to $144,400 during the marriage.

 

 

Defendant also testified that he believed the value of the home was $250,000 or $350,000, and that he spent approximately $80,000 on improvements to the home. Although the trial court acknowledged defendant’s testimony, it noted that he did not substantiate the testimony with any documentary evidence. Under these circumstances, the trial court did not clearly err by discounting defendant’s testimony regarding the value of the inherited home and his monetary contributions toward improvements on the property.

 

 

However, the trial court did clearly err by finding that the home did not increase in value. Indeed, the only documentary evidence before the trial court indicated that the home increased by $4,436 in value during the marriage. Under Reeves, the trial court should have included this amount in the marital estate. Therefore, the Court of Appeals reversed the trial court’s finding regarding the increased value of the inherited home and remanded the case for equitable distribution of the $4,436 increased value.

Intentional infliction of emotional distress stemming from parental alienation.

In Fujimaki v Ichikawa, Unpub Per Curiam Opin (#324173, 11/17/2015) the Court of Appeals reversed the trial court’s order of summary disposition on a claim of intentional infliction of emotional distress stemming from parental alienation.

Plaintiff’s complaint stated that the parties were previously married and had one child together, but they divorced in May 2004. In September 2008, defendant acquired sole legal and physical custody of the child. Plaintiff alleged that after defendant acquired sole custody, she commenced a campaign to destroy his relationship with the minor child. Plaintiff alleged that defendant consistently denied him parenting time, and, for that reason, was found in contempt of court on two occasions and sentenced to jail. Plaintiff claimed that the trial court ordered the child to stay with plaintiff during defendant’s incarceration, but defendant, the child, and the child’s school manipulated the situation, and the child stayed with a teacher instead. Plaintiff’s complaint further alleged that the trial court ordered the parties to undergo a psychological evaluation who found extreme parental alienation by defendant. According to plaintiff, the trial court also found extreme parental alienation by defendant, but concluded that it had limited options regarding custody arrangements because the child was 17 years old and his relationship with plaintiff was already damaged. Plaintiff alleged that he had no relationship with his son as a result of defendant’s willful and deliberate acts of denying him access to the child.

In order to establish a claim of intentional infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Graham v Ford, 237 Mich App 670, 674 (1999). Liability attaches when a plaintiff demonstrates that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. The test to determine whether a defendant’s conduct was sufficiently extreme and outrageous is whether the facts of the case would lead an average member of the community to arouse resentment against the actor and exclaim, “Outrageous!” Lewis v LeGrow, 258 Mich App 175, 196 (2003) (citations omitted). 

A claim of intentional infliction of emotional distress must be brought within three years after the claim accrues to avoid being time-barred. Nelson v Ho, 222 Mich App 74, 85 (1997). MCL 600.5827 provides that “the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” The term “wrong” as used in MCL 600.5827 refers to the date the plaintiff was harmed by the defendant’s act, not the date the defendant acted. Frank v Linkner, ___ Mich App___, ___ (2015), citing Moll v Abbott Laboratories, 444 Mich 1, 12 (1993). Otherwise, a claim could be barred before a plaintiff suffered any injury. Frank, supra. “Accordingly, a cause of action for a tortious injury accrues when all the elements of the claim have occurred and can be alleged in a proper complaint.” Schaendorf v Consumers Energy Co, 275 Mich App 507, 512 (2007) (citation omitted).

In this case, the harm on which plaintiff’s claim was based was parental alienation, or defendant’s destruction of the relationship between plaintiff and the child, which resulted in psychological damage to plaintiff. The trial court found that plaintiff’s claim accrued in September 2008, when defendant acquired sole physical and legal custody of the child and had the ability to effectively alienate the child from plaintiff. There is no evidence indicating that plaintiff’s relationship with the child was destroyed due to parental alienation at that point in time, or that defendant had yet exhibited intentional conduct that was sufficiently extreme or outrageous in nature to give rise to a claim of intentional infliction of emotional distress. 

Accepting plaintiff’s affidavit as true, facts sufficient to sustain the elements for a claim of intentional infliction of emotional distress did not arise until at least December 31, 2011, when defendant began denying plaintiff parenting time, which, it could be argued, constituted extreme and outrageous conduct. See Schaendorf, 275 Mich App at 512 (holding that a tortious injury claim does not accrue until all the elements of the claim have occurred). Moreover, it does not appear that the harm of extreme parental alienation occurred until 2013. In either case, plaintiff’s May 29, 2014 complaint fell well within the three-year limitations period for tort claims. Accordingly, the trial court erred by finding that plaintiff’s claim accrued in September 2008, and that summary disposition was therefore warranted under MCR 2.116(C)(7).

The remedy for an untimely habitual offender notice.

In People v Muhammad, __ Mich __ (#150119, 10/30/2015) the Supreme Court in lieu of granting leave to appeal, vacated the Court of Appeals judgment and remanded the case back to the Court of Appeals for reconsideration. The Court of Appeals erred by applying harmless error analysis without first determining whether the trial court’s order dismissing the habitual offender notice was erroneous. See MCR 2.613(A) (stating that a judgment or order of the court may not be vacated, modified, or otherwise disturbed “unless refusal to take this action appears to the court inconsistent with substantial justice”). The prosecutor has conceded that it did not timely serve the habitual offender notice under MCL 769.13. On remand, the Court of Appeals is directed to determine whether the trial court erred by concluding that the proper remedy for the prosecutor’s statutory violation was dismissal of the habitual offender notice. See In re Forfeiture of Bail Bond, 496 Mich 320 (2014).

The 'reasonableness' of a departure under Lockridge

In People v Steanhouse, __ Mich  App __ (#318329, 10/22/2015) the Court of Appeals set forth the appropriate procedure for considering the reasonableness of a departure sentence.  Under Steanhouse, supra a sentence that fulfills the principle of proportionality under People v Milbourn, 435 Mich 630 (1990),  and its progeny, constitutes a reasonable sentence under People v Lockridge, ___ Mich ___ (2015).

 

When Milbourn, supra, was decided, the Legislature had not enacted the statutory sentencing guidelines; the guidelines in effect were those developed by the Michigan Supreme Court and promulgated by administrative order. People v Hegwood, 465 Mich 432, 438 (2001). Trial court judges were not required to impose a sentence within the range recommended by the sentencing guidelines; they were only required to score the guidelines and articulate the reasons for a departure from the recommended range. Id. In this context—which is strikingly similar to the role of the sentencing guidelines after Lockridge, supra, the Michigan Supreme Court overruled the “shocks the conscience” test that was previous employed under People v Coles, 417 Mich 523, 550 (1983), and adopted the “principle of proportionality” test in order to determine whether a trial court abused its discretion in imposing a sentence. Milbourn, 435 Mich at 634-636. Under the new test, “a given sentence [could] be said to constitute an abuse of discretion if that sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 636. As such, trial courts were required to impose a sentence that took “into account the nature of the offense and the background of the offender.” Id. at 651.

 

In Lockridge, supra, the Court held that “the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient.  To the extent that the OVs scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e. the defendant’s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment. Accordingly, [t]o remedy the constitutional violation, [the Court] sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. [The Court] also str[uck] down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.  The Lockridge Court also stated that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. To preserve as much as possible the legislative intent in enacting the guidelines, however, a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence.

 

Under Milbourn, supra, and now Lockridge, supra and Steanhouse, supra, factors to be considered by Michigan courts under the proportionality standard included, among others, (1) the seriousness of the offense, People v Houston, 448 Mich 312 (1995); (2) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, id. at 323; Milbourn, 435 Mich at 660, the defendant’s misconduct while in custody, Houston, 448 Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for rehabilitation, id.; and (3) factors that were inadequately considered by the guidelines in a particular case, id. at 324.

Trial court’s compulsory use of the sentencing guidelines is erroneous.

In People v Terrell, __ Mich App __ (#321573, 9/29/2015) the Court of Appeals held under the recently decided Michigan Supreme Court opinion, People v Lockridge, __ Mich __ (2015), judicial fact-finding did not increase the minimum sentence guidelines, but a remand for the United Stated v Crosby, 397 F3d 103, 117-118 (CA 2, 2005) procedure was necessary to determine whether the error resulting from the trial court’s compulsory use of the guidelines was harmless.
 

The Court of Appeals adopted the remedy crafted in People v Stokes, __ Mich App __ (2015) as the appropriate remedy, because regardless of the fact that judicial fact-finding did not increase defendant’s minimum sentence guidelines range, the trial court’s compulsory use of the guidelines was erroneous in light of Lockridge, supra. In Stokes, supra, the Court of Appeals concluded that where judicially-found facts increased the minimum sentence guidelines range, the proper remedy was to remand for the Crosby procedure to be followed to determine whether the error was harmless. In Crosby, supra, the United States Supreme Court held that in cases in which a defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. See also United States v Fagans, 406 F3d 138, 141-142 (CA 2, 2005) (remanding for resentencing, even though judicial fact-finding did not increase the guidelines range, because the compulsory use of the guidelines was erroneous).
 

In Terrell, supra, judicial fact-finding did not increase the minimum sentence guidelines because the scoring was supported by the jury verdict. Nonetheless, the Court of Appeals adopted the remedy crafted in Stokes, supra as the appropriate remedy here, because regardless of the fact that judicial fact-finding did not increase defendant’s minimum sentence guidelines range, the trial court’s compulsory use of the guidelines was erroneous in light of Lockridge, supra.

Ineffective assistance of counsel for failing to move to suppress a police officer’s impermissibly suggestive identification of defendant at the preliminary examination.

In People v Clay, Unpub Per Curiam Opinion, (#319450, 8/20/2015) the Court of Appeals held that defendant was denied the effective assistance of counsel because counsel failed to move to suppress a police officer’s impermissibly suggestive identification of defendant at the preliminary examination.

Whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47 (2012). A trial court’s findings of fact are reviewed for clear error, and questions of constitutional law are reviewed de novo. Id. The United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish ineffective assistance of counsel, the defendant must show that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at 51. Effective assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise. People v Solmonson, 261 Mich App 657, 663 (2004). Stated otherwise, a defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy. Trakhtenberg, 493 Mich at 52. “Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich 590, 600 (2001).

An identification procedure that is unnecessarily suggestive and conducive to irreparable misidentification constitutes a denial of due process. People v Williams, 244 Mich App 533, 542 (2001). If the trial court finds the procedure was impermissibly suggestive, evidence concerning the identification is inadmissible at trial unless an independent basis—one that is untainted by the suggestive pretrial procedure—can be established for the in-court identification. Id. at 542-543.

By failing to move to suppress the officer’s identification defendant’s counsel’s performance fell below an objective standard of reasonableness. On this record, based on the totality of the circumstances, a reasonable probability exists that the first part of a motion to suppress would likely have been granted because the pretrial identification procedure was so suggestive that it led to a substantial likelihood of misidentification, particularly because it had been three years since the officer had observed defendant from 100 yards away and defendant was the only noncaucasian seated at the defense table.  At that point, because the pretrial identification was so suggestive that it could lead to a substantial likelihood of misidentification, the trial court would have needed to determine if the officer had an independent basis for an in-court identification that was untainted by the suggestive pretrial procedure. Williams, 244 Mich App at 542. Appropriate factors in considering whether a witness and had independent basis for an in-court identification include: (1) the witness’s prior knowledge of the defendant, (2) the witness’s opportunity to observe the criminal during the crime, (3) the length of time between the crime and the disputed identification, (4) the witness’s level of certainty at the prior identification, (5) discrepancies between the pretrial identification description and the defendant’s actual appearance, (6) any prior proper identification or failure to identify the defendant, (7) any prior identification of another as the culprit, (8) the mental state of the witness at the time of the crime, and (9) any special features of the defendant. People v Gray, 457 Mich 107, 116 (1998).

But for counsel’s failure to move to suppress the officer’s identification of defendant there would not have been sufficient evidence of a nexus between defendant and the marijuana and guns to show defendant was in possession of the marijuana and guns. But for counsel’s error, a reasonable probability exists that the result of the proceeding would have been different. Accordingly, the trial court erred in concluding that defendant was not prejudiced by counsel’s error. Rather, defendant was denied the effective assistance of counsel because “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at 51.

Attorney fees in a divorce action to enable a party to carry on or defend the action.

“A court in a divorce action may award attorney fees to enable a party to carry on or defend the action.” Woodington v Shokoohi, 288 Mich App 352, 369 (2010), citing MCR 3.206(C)(1). Under MCR 3.206(C)(2)(a), “[a] party who requests attorney fees and expenses must allege facts sufficient to show that . . . the party is unable to bear the expense of the action, and that the other party is able to pay. . . .”

 

The Courts have interpreted this rule to require an award of attorney fees in a divorce action ‘only as necessary to enable a party to prosecute or defend a suit.’ Myland v Myland, 290 Mich App 691, 702 (2010), quoting Gates v Gates, 256 Mich App 420, 438 (2003). “With respect to a party’s ability to prosecute or defend a divorce action, a party ‘may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support.’ ” Id., quoting Maake v Maake, 200 Mich App 184, 189 (1993). “Further, a party sufficiently demonstrates an inability to pay attorney fees when that party’s yearly income is less than the amount owed in attorney fees.” Id. “The party requesting the attorney fees has the burden of showing facts sufficient to justify the award.” Woodington 288 Mich App at 370.

 

The trial court abuses its discretion where the party requesting attorney fees would have to “invade the same spousal support assets she is relying on to live in order to pay her attorney fees,”-----the party’s ability to pay must be considered apart from that party’s support award and share in the marital estate. Loutts v Loutts, 298 Mich App 21, 25 (2012). 

 

The trial court must make specific findings of fact regarding a defendant’s ability to pay attorney fees. “Without adequate findings of fact, there is no basis for determining whether the trial court’s award represented an abuse of discretion.” Woodington, 288 Mich App at 371.  And the matter will be remanded back to the trial for those specific findings.

SCFRA entitles the Department of Corrections to a percentage of specific assets a prison inmate possesses.

The SCFRA entitles the plaintiff to a percentage of specific assets defendant possesses. People v Houston, 237 Mich App 707, 716 (1999). The court must issue an order to show cause when the attorney general files a complaint, MCL 800.404(2); at the time of the hearing on the complaint the court must issue an order requiring the appropriate person to remit the assets if it appears that the prisoner has any assets that ought to be subject to the claim, MCL 800.404(3); at the hearing on the complaint and before entering an order, the court must take into consideration any legal obligation of the defendant regarding spousal or child support or other moral obligation to support dependents, MCL 800.404(5), and; “[i]f, in the opinion of the court, the assets of the prisoner are sufficient to pay the costs of the proceedings under this act, the assets shall be liable for those costs upon order of the court” MCL 800.404(7).

MCL 800.403 provides: (1) The attorney general shall investigate or cause to be investigated all reports furnished under section 2. (2) If the attorney general upon completing the investigation under subsection (1) has good cause to believe that a prisoner has sufficient assets to recover not less than 10% of the estimated cost of care of the prisoner or 10% of the estimated cost of care of the prisoner for 2 years, whichever is less, the attorney general shall seek to secure reimbursement for the expense of the state of Michigan for the cost of care of that prisoner. (3) Not more than 90% of the value of the assets of the prisoner may be used for purposes of securing costs and reimbursement under this act.

MCL 800.404 provides: (1) The circuit court shall have exclusive jurisdiction over all proceedings under this act. The attorney general may file a complaint in the circuit court for the county from which a prisoner was sentenced, stating that the person is or has been a prisoner in a state correctional facility, that there is good cause to believe that the prisoner has assets, and praying that the assets be used to reimburse the state for the expenses incurred or to be incurred, or both, by the state for the cost of care of the person as a prisoner. (2) Upon the filing of the complaint under subsection (1), the court shall issue an order to show cause why the prayer of the complainant should not be granted. . . . (3) At the time of the hearing on the complaint and order, if it appears that the prisoner has any assets which ought to be subjected to the claim of the state under this act, the court shall issue an order requiring any person, corporation, or other legal entity possessed or having custody of those assets to appropriate and apply the assets or a portion thereof toward reimbursing the state as provided for under this act. (4) The amount of reimbursement under this act shall not be in excess of the per capita cost of care for maintaining prisoners in the state correctional facility in which the prisoner is housed. (5) At the hearing on the complaint and order and before entering any order on behalf of the state against the defendant, the court shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support. (6) If the person, corporation, or other legal entity shall neglect or refuse to comply with an order under subsection (3), the court shall order the person, corporation, or other legal entity to appear before the court at such time as the court may direct and to show cause why the person, corporation, or other legal entity should not be considered in contempt of court. (7) If, in the opinion of the court, the assets of the prisoner are sufficient to pay the cost of the proceedings under this act, the assets shall be liable for those costs upon order of the court. (8) The state may recover the expenses incurred or to be incurred, or both, by the state for the cost of care of the prisoner during the entire period or periods, the person is a prisoner in a state correctional facility. The state may commence proceedings under this act until the prisoner has been finally discharged on the sentence and is no longer under the jurisdiction of the department.

IRAs are specifically exempted from ERISA, and are not subject to ERISA’s anti-alienation provision, 29 USC 1056(d)(1). 

Hearsay evidence admissibilty under the catch-all exception of MRE 803(24).

In Kagen aka Gaurino v Kagen, Unpub Per Curiam Opinion, (#318459, 7/14/2015) the Court of Appeals reversed a trial court order denying the father’s motion to update the children’s vaccinations; and ordered that the children be vaccinated, but in strict compliance with the recommendations of the children’s pediatrician.  

A critical issue before the court was the admissibility of hearsay evidence under the catch-all exception of MRE 803(24).

Hearsay evidence may be admissible under the catch-all exception of MRE 803(24). “To be admissible under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.” People v Katt, 468 Mich 272, 290 (2003).  In Katt, 468 Mich at 291 n 11, the Michigan Supreme Court quoted with approval various factors that federal courts have adopted in analyzing a statement’s trustworthiness. Of particular relevance are the following factors: (3) The personal truthfulness of the declarant. If the declarant is an untruthful person, this cuts against admissibility, while an unimpeachable character for veracity cuts in favor of admitting the statement. The government cannot seriously argue that the trust due an isolated statement should not be colored by compelling evidence of the lack of credibility of its source: although a checkout aisle tabloid might contain unvarnished truth, even a devotee would do well to view its claims with a measure of skepticism. (4) Whether the declarant appeared to carefully consider his statement. * * * (8) Whether the declarant had personal knowledge of the event or condition described. * * * (11) Whether the statement was made under formal circumstances or pursuant to formal duties, such that the declarant would have been likely to consider the accuracy of the statement when making it.

In Kagen, proffered reports from the Center for Disease Control (CDC), National Institute of Health (NIH), Food and Drug Administration (FDA), and Michigan Department of Community Health (MDCH) were admissible. Although hearsay, “[a]ll four reports are official (formal) statements by government agencies.” Kagen I, unpub op at 5. That the reports were prepared in the declarants’ official capacities and were presented in a public forum assured that the declarants had verified the accuracy of the information before its dissemination.  Such reports “were prepared by experts in the field of child immunizations and were based on scientific study,” we reasoned, and “it would impose an unreasonable burden to expect [the party] to present the testimony of the government agents who compiled or prepared the reports.” Kagen I, unpub op at 5. Accordingly, such reports produced by government agents are “the most probative evidence of [a material] fact [that is] reasonably available.” See Katt, 468 Mich at 290. As noted, such formal reports are also reliable as required under the first Katt factor as they are created by individuals in their official capacities and for public dissemination, invoking a special duty to ensure accuracy. Kagen I, unpub op at 5-6.

However, documents from Wikipedia are not inherently trustworthy.  See, e.g., Badasa v Mukasey, 540 F3d 909, 910 (CA 8, 2008); Bing Shun Li v Holder, 400 Fed Appx 854, 857 (CA 5, 2010) (“We agree with those courts that have found Wikipedia to be an unreliable source of information.”); United States v Lawson, 677 F3d 629, 650 (CA 4, 2012) (“Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real. As the “About Wikipedia” material aptly observes, “[a]llowing any-one to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information.” Further, Wikipedia aptly recognizes that it “is written largely by amateurs.”); Johnson v Colvin, unpublished opinion of the United States District Court for District of Maine, decided September 25, 2014 (Docket No. 1:13-cv-406-DBH) (“Counsel are reminded that this court has not accepted Wikipedia as a reliable medical reference.”); Smartphone Techs LLC v Research in Motion Corp, unpublished opinion of the United States District Court for the Eastern District of Texas, filed February 13, 2012 (Docket No. 6:10-CV-74-LED-JDL) (citations omitted)

A blog by its very nature is not akin to a formal and official statement presented by a government agency. A blog is a “[w]eb site that contains online personal reflections, comments, and often hyperlinks provided by the writer.” Merriam-Webster’s Collegiate Dictionary (11th ed), p 133. As described by this Court in Ghanam v Does, 303 Mich App 522, 547; 845 NW2d 128 (2014) (quotation marks and citation omitted): Ranked in terms of reliability, there is a spectrum of sources on the internet. For example, chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely.

Snopes.com as a website that “has come to be regarded as an online touchstone of rumor research” also lacks the characteristics of trustworthiness.  See (accessed July 1, 2015). The site touts: “Welcome to snopes.com, the definitive Internet reference source for urban legends, folklore, myths, rumors, and misinformation.” (accessed July 1, 2015).

Finally, the catch-all exception to the hearsay rule does not open the door to the introduction of anything a physician or ‘purported’ expert has to say. The other evidentiary rules governing the introduction of expert testimony (MRE 702, MRE 703 and MRE 707) make it plain that in the absence of an adequate foundation, an expert opinion lacks reliability.

Motion for DNA testing under MCL 770.16.

In People v Poole, Jr, __ Mich App __ (#315982, 7/7/2015) defendant was convicted of first-degree murder in 1989, notwithstanding blood found on the victim’s clothing matched neither the victim or the defendant.  The conviction was affirmed by the Court of Appeals.  People v Poole, unpub per curiam opinion (#120955, 1/21/1993), and the Michigan Supreme Court denied the application for leave to appeal. People v Poole, 442 Mich 933 (1993).

 

In 2005, defendant filed a motion for new trial in the circuit court, and a motion for DNA testing under MCL 770.16 which provides that a defendant convicted of a felony at trial who is serving a prison sentence for the felony conviction may petition the circuit court to order DNA testing of biological material identified during the investigation leading to his or her conviction.  The circuit court treated the motion as being brought under MCR 6.501 et seq. (post-appeal relief), holding in part that the DNA evidence was not material to the defendant’s identity as the perpetrator of the murder. Evidence presented during the defendant’s trial already established that the defendant’s blood [type] was not found on the victim. There is no other suspect to attempt to match with DNA testing. The defendant had not, therefore, satisfied the requirements of MCL 770.16(3).  The Michigan Supreme Court denied defendant’s application for leave to appeal, ruling that “defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).”  People v Poole, 480 Mich 1186 (2008). The Federal Court denied defendant’s petition for a writ of habeas corpus. Poole v Woods, unreported opinion of the United States District Court for the Eastern District of Michigan, (#08-12955, 9/28/2011). The case was then unsuccessfully appealed to the Sixth Circuit and the United States Supreme Court denied certiorari. Poole v Mackie, __ US __; 134 S Ct 945; 187 L Ed 2d 811 (2014).

 

While the federal effort was pending in the Sixth Circuit, defendant filed the instant petition in the circuit court, seeking an order, once again, to test for biological evidence pursuant to MCL 770.16.  The trial court denied the petition, concluding that simple blood-type evidence presented to the jury at defendant’s criminal trial in 1989 had already excluded defendant as the source of collected blood samples, yet defendant was still convicted by the jury. Therefore, according to the trial court, DNA testing would add nothing new for purposes of a retrial and simply confirm that defendant’s blood was not present at the crime scene. The Court of Appeals affirmed the trial court’s decision, not on the merits, but on the basis of the law of the case doctrine in light of the case’s procedural history in which prior comparable claims raised by defendant had been rejected in orders issued by this Court and the Michigan Supreme Court. The Michigan Supreme Court reversed ruling that the law of the case doctrine did not apply, given that the previous appellate orders did not constitute decisions on the merits. People v Poole, __ Mich __; 862 NW2d 652 (2015).

 

On remand to the Court of Appeals, given the Supreme Court’s directive that “no provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material” and that the Court of Appeals was to address “the issues raised by the defendant,” id. at 652-653-------the Court of Appeals set aside sua sponte their concerns that, perhaps, MCL 770.16 does not allow for multiple petitions regarding the same evidence or that the court rules regarding motions under Subchapter 6.500 (post-appeal relief) might be applicable and bar relief. See MCL 770.16(8) (referencing MCR 6.505); MCR 6.501 (“Unless otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter.”); MCR 6.502(G)(1) and (2) (only one motion for relief from judgment may be filed except for situations involving certain retroactive changes in the law or newly-discovered evidence); MCR 6.508(D)(2) (court generally cannot grant relief if the defendant’s motion alleges grounds that were previously rejected in an MCR 6.500 proceeding).

 

Turning to the substance or merits of defendant’s petition under MCL 770.16, the Court of Appeals concluded: (1) that, in satisfaction of § 16(1), defendant was convicted of a felony at trial before January 8, 2001, and is currently serving a prison sentence for the conviction; (2) that, in satisfaction of § 16(2), defendant’s petition was filed in the sentencing court before January 1, 2016; (3) that, in satisfaction of § 16(3), biological material was collected and identified during the police investigation of defendant’s case; (4) that, in satisfaction of § 16(4)(a), defendant presented prima facie proof that the biological evidence sought to be tested was material to the question of defendant’s identity as the perpetrator of the murder; (5) that, in satisfaction of § 16(4)(b)(i), there is clear and convincing evidence that a sample of biological material is indeed available for DNA testing; (6) that, in satisfaction of § 16(4)(b)(ii), there is clear and convincing evidence that the biological material was not previously subjected to DNA testing; and (7) that, in satisfaction of § 16(4)(b)(iii), there is clear and convincing evidence that defendant’s identity as the perpetrator was at issue during his trial.

 

When all of the factors recited above are satisfied-------the Court of Appeals concluded, “[t]he court shall order DNA testing[.]” MCL 770.16(4) (emphasis added).  DNA testing could be inconclusive, could point to defendant as being a donor, or could exclude defendant as the source of any blood samples, along with potentially identifying another specific individual as the donor, thereby clearly satisfying MCL 770.16(4)(a). Because DNA testing of a blood sample could possibly connect another person to the crime scene or exclude defendant, the sample would be of some consequence or have a logical relationship to the issue of identity and would be linked to both the crime and the criminal. In other words, the blood samples would necessarily be material to defendant’s identity as the perpetrator.  If a defendant satisfies the required factors with respect to the question whether DNA testing should be ordered, “[t]he court shall order DNA testing[.]” MCL 770.16(4) (emphasis added). Accordingly, it would be improper to deny DNA testing on the basis that a court concludes that it would deny a future motion for new trial regardless of the results of any DNA testing.

 

Although it is true that both blood-type results and prospective DNA results might equally exclude defendant as being the donor of the blood samples found at the crime scene, the fact is that DNA evidence and blood-type evidence are not typically of equal value. Reasonable doubt would more likely flow from the identification of a specific individual, especially if the person was present in the area at the time of the murder, as opposed to a wholly unknown figure.

Spousal support/Attorney fees in a divorce action

In Richards v Richards, __ Mich App __ (#319753, 6/2/15) the Court of Appeals reaffirmed that the plain language of MCL 552.28 does not create a “brightline rule” about when spousal support may be modified. Loutts v Loutts, ___ Mich App ___ (#318468, 2/10/15). Once a trial court provides for spousal support, it has continuing jurisdiction to modify such an order, even without “triggering language” in the judgment of divorce. Id., quoting Rickner v Frederick, 459 Mich 371, 378-379 (1999).  MCL 552.28 provides: On petition of either party, after a judgment for alimony or other allowance for either party or a child, or after a judgment for the appointment of trustees to receive and hold property for the use of either party or a child, and subject to section 17, the court may revise and alter the judgment, respecting the amount or payment of the alimony or allowance, and also respecting the appropriation and payment of the principal and income of the property held in trust, and may make any judgment respecting any of the matters that the court might have made in the original action.

The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished, and spousal support is to be based on what is just and reasonable under the circumstances of the case. Moore v Moore, 242 Mich App 652, 654 (2000). When considering an award of spousal support, the following are among those factors that should be weighed in the trial court’s decision: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity. [Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).]

In Richards the Court also reaffirmed that “Attorney fees in a divorce action are awarded only as necessary to enable a party to prosecute or defend a suit” but are also “authorized when the requesting party has been forced to incur expenses as a result of the other party's unreasonable conduct in the course of litigation.” Hanaway, 208 Mich App at 298. Specifically, MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply. [MCR 3.206 (emphasis added).]

Resentencing if counsel ineffective for failing to challenge offense variables.

In People v Wilding, __ Mich __ (#147675, May 29, 2015 the Michigan Supreme Court remanded to the trial court for an evidentiary hearing, pursuant to People v Ginther, 390 Mich 436 (1973), as to whether the defendant’s trial counsel was ineffective for failing to object to the scoring of OVs 8 and 10.   (The Court of Appeals had held that offense variable 8 (MCL 777.38(1)(a)) and offense variable 10 (MCL 777.40(1)(a)) were scored correctly, and that trial counsel was not ineffective for failing to object to the scoring of those variables.) 

In People v Harris, Unpub Per Curiam Opinion (#320233, 5/19/2015) the Court of Appeals  affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing.  Defendant Harris argued that the trial court erred in scoring offense variables (OVs) 1, 4, 10, and 14, and that his counsel was ineffective for failing to challenge OVs 1, 4, and 10. The Court of Appeals held that while defendant was not entitled to relief with regard to his challenges to the scoring of these variables, his counsel was ineffective for failing to challenge the trial court’s scoring of OV 1.  If counsel had raised the objection, the trial court may well have assigned no points to OV 1 on the basis of Jones’s trial testimony and, thus, a different result was reasonably likely. 

Hospital vicarious liability

In Grimmer v Lee, et al ___ Mich App ___ (#318046, 3/26/2015) the Court of Appeals held that the circuit court should not have summarily dismissed the vicarious hospital liability claims stemming from a doctor’s negligence for two reasons. First, none of the defendants filed a motion seeking summary disposition. Second, had such a motion been filed, it would have been unsuccessful.  In Grimmer the hospital summarily requested summary disposition after the dismissal of the underlying doctor because of lack of service.

 

In a medical malpractice case, “[a] hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents.” Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11 (2002). As explained in Nippa v Botsford Gen Hosp, 257 Mich App 387, 392 (2003), “the law creates a practical identity between a principal and an agent, and, by a legal fiction, the hospital is held to have done what its agents have done.” In Cox and Nippa, the defendant hospitals were charged with the vicarious liability of nurses or physicians who were not named as individual defendants.

 

In Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-295 (2007), the Supreme Court elucidated, “Nothing in the nature of vicarious liability . . . requires that a judgment be rendered against the negligent agent. Rather, to succeed on a vicarious liability claim, a plaintiff need only prove that an agent has acted negligently.” As these cases demonstrate, a plaintiff need not necessarily name the agent as a defendant when suing the principal. Alternatively stated, a plaintiff may elect to sue the principal alone, or to sue the principal and the agent together. The dismissal of a cause of action against a doctor for lack of service is not a decision on the merits and thereby not a basis for summary disposition for the hospital.

Reversible error to impeach a witness with a conviction for murder

In People v Winbush, Unpub Per Curiam Opin (#318213, 2/10/2015) the Court of Appeals held that the trial court erred by admitting evidence for purposes of impeachment that a witness was convicted of murder. It is undisputed that the crime of murder has no elements of dishonesty, false statement, or theft. The fact that a witness committed murder is not admissible for the purpose of attacking a witness’s credibility. And, while the amount of time a witness is serving in jail may be relevant on issues of credibility, see People v Clements, 91 Mich App 103, 108 (1979), the prosecutor did not merely seek to admit evidence that the witness was serving a lengthy prison term. Rather, the prosecutor sought to, and did, admit extensive evidence about the witness’ murder conviction itself.

 

Evidence of a witness’s prior conviction creates the danger that the jury “will misuse prior conviction evidence by focusing on the [witness’s] general bad character, rather than solely on his character for truthtelling.” People v Allen, 429 Mich 558, 569 (1988). MRE 609 provides that, “[f]or the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted” unless the crime meets certain requirements. The trial court may admit evidence of a conviction only if the crime (1) contained an element of dishonesty or false statement, or (2) contained an element of theft, was punishable by imprisonment in excess of one year, and, if the witness is the defendant, the probative value of the evidence outweighs its prejudicial effect. MRE 609(a)(1) and (2).

Custody to others.

In Holmes v Richardson, Unpub Per Curiam Opinion of the Court of Appeals, (#322096, 1/13/2015) the Court of Appeals examined the question of standing and reiterated the right of the family court to award custody to one or more of the parties involved or to others.

“[I]f a third party lacks standing, he or she cannot become a party to a custody dispute.” In re Anjoski, 283 Mich App 41, 63 (2009).1 Generally, to have standing, “a party must have a legally protected interest that is in jeopardy of being adversely affected.” Barclae v Zarb, 300 Mich App 455, 483 (2013). In child custody disputes, the Legislature has strictly limited those third persons, or individuals “other than a parent,” who have standing to bring an action for the custody of a child. Anjoski, 283 Mich App at 50-51; see also MCL 722.22(j) (defining “third person”). Under MCL 722.26b(1), “a guardian or limited guardian of a child has standing to bring an action for custody of the child,” with certain restrictions.

MCL 722.26c(1)(b) provides that a third person may bring a custody action for a child if all of the following are true: (i) The child’s biological parents have never been married to one another. (ii) The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order. (iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.

A third party does not have standing because he lives with the child. Anjoski, 283 Mich App at 50-51, citing Bowie v Arder, 441 Mich 23, 42 (1992). A third party may not “create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the child’s best interests.” Id. at 51, quoting Heltzel v Heltzel, 248 Mich App 1, 28-29 (2001) (quotation marks omitted).

Even if one does not have standing, the trial court can still possibly award them custody. See Anjoski, 283 Mich App at 62-63; Heltzel, 248 Mich App at 29-30.  MCL 722.27(1)(a) provides: (1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following: (a) Award the custody of the child to 1 or more of the parties involved or to others . . . . [Emphasis added.] The words “or to others” means that, after a custody dispute has been properly submitted to the trial court, the court may award custody to others, even individuals who do not have standing, if it is in the child’s best interests. Anjoski, 283 Mich App at 62-63. “There is no limiting language in the statute that conditions an award ‘to others’ to only those ‘others having standing.’ ” Id. “Rather, the statute’s sole limitation is that the award be in the child’s best interests, after weighing the parental presumption, applicable burdens of proof, and the statutory best interests factors.” Id. at 63. 

If the custody dispute is between a parent and third parties, “the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25. Nonetheless, the court must still make specific findings of fact with respect to each of the best interest factors. See Grew v Knox, 265 Mich App 333, 337 (2005); Schlender v Schlender, 235 Mich App 230, 233 (1999); see also MCL 722.23. In addition, “the trial court should consider up-to-date information and any other changes in circumstances arising since the trial court’s original custody order.” Kessler v Kessler, 295 Mich App 54, 63 (2011) (citation and internal quotation marks omitted).

Motion to compel vaccinations in the Family Court

In Kagen aka Gaurino v Kagen, Unpub Per Curiam Opin of the Court of Appeals (#318459, 12/18/2014) the Court held that the trial court erred by failing to apply the best interest factors to a Motion to compel vaccinations of the parties’ children and abused its discretion when it excluded hearsay government statements about the safety, potential risks, and benefits of childhood vaccinations.

 

Following the parties’ divorce, defendant discovered plaintiff had discontinued their children’s vaccinations several years earlier. The parents could not agree on whether the children’s vaccinations should be updated and brought their dispute before the Circuit Court. The Court of Appeals held that the circuit court failed to describe the applicable burden of proof and made no consideration of any statutory best interest factor in deciding the matter as required by Pierron v Pierron, 486 Mich 81, 91 (2010), and Lombardo v Lombardo, 202 Mich App 151, 160 (1993). The trial court also abused its discretion in excluding from evidence government-issued hearsay statements about the safety, potential risks, and benefits of childhood vaccinations.

 

The Child Custody Act “applies to all circuit court child custody disputes and actions, whether original or incidental to other actions.” MCL 722.26(1). The act provides that when parents share joint legal custody “the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.” MCL 722.26a(7)(b). However, when the parents cannot agree on an important decision, such as a change of the child’s school, the court is responsible for resolving the issue in the best interests of the child. [Lombardo, 202 Mich App at 159]; see also MCL 722.25(1). [Pierron, 486 Mich at 85.]  In Lombardo, 202 Mich App at 157-158, this Court described the judicial process of resolving disputes regarding “important decisions affecting the welfare of the child” between the child’s joint custodians.

 

The Supreme Court clarified a court’s role in such circumstances in Pierron. Before the court considers the substance of the dispute, it must determine “whether the proposed change would modify the established custodial environment” of the children. Pierron, 486 Mich at 85. If it would, the moving party bears a heightened burden of proving by clear and convincing evidence that the change is in the children’s best interests. Id. at 86. If not, the moving party need only establish by a preponderance of the evidence that the proposed change serves the children’s best interests. Id. at 89-90. The decision to vaccinate the children in no way affects their established custodial environment; the decision has no bearing on who the children “look[] to . . . for guidance, discipline, the necessities of life, and parental comfort.” Id.at 86 (quotation marks and citation omitted). Accordingly, the burden of proof required was the lesser preponderance of the evidence standard that vaccinating the children was in their best interests.

 

The court must then resolve the underlying dispute. As stated in Lombardo: [J]oint custody in this state by definition means that the parents share the decision-making authority with respect to the important decisions affecting the welfare of the child, and where the parents as joint custodians cannot agree on important matters such as education, it is the court’s duty to determine the issue in the best interests of the child. [Lombardo, 202 Mich App at 159.] “The controlling consideration” must be “the best interests of the children.” Id. at 159-160; see also Pierron, 486 Mich at 91. In this regard, The court should not relinquish its authority to determine the best interests of the child to the primary physical custodian. A trial court must determine the best interests of the child in resolving disputes concerning “important decisions affecting the welfare of the child” that arise between joint custodial parents. [Lombardo, 202 Mich App at 160.] In determining the best interests of the child, the court “must consider, evaluate, and determine each of the” best interest factors of MCL 722.23. Lombardo, 202 Mich App at 160. In Pierron, 486 Mich at 91, quoting Parent v Parent, 282 Mich App 152, 157 (2009), the Supreme Court clarified that the trial court must “‘make explicit factual findings with regard to the applicability of each factor’” when the decision will not affect the children’s established custodial environment. (Emphasis in original.) If a factor is relevant to the decision, the court must “make substantive factual findings” on the record; if not, the court need not reach the substance of that matter. Pierron, 486 Mich at 91.

 

Here, the circuit court made absolutely no finding required by Lombardo or Pierron. The court failed to consider whether the vaccination decision would change the children’s custodial environment (in fact, it would not). The court did not mention the burden of proof that it applied. Accordingly, we cannot know whether the court utilized the preponderance of the evidence standard as required or incorrectly applied the stricter clear and convincing evidence standard. The circuit court never cited MCL 722.23 or considered the best interest factors as required. Given these failures, we are unable to review the circuit court’s best-interest analysis. Accordingly, we vacate the circuit court’s opinion and order and remand for a continued hearing. At the hearing, the court must declare that its decision will not affect the children’s custodial environment and therefore apply the preponderance of the evidence standard. The court must then consider and expressly state whether each best interest factor of MCL 722.23 is relevant in this case, and then must analyze on the record the substance of any relevant best interest factors. We will retain jurisdiction and consider the propriety of the circuit court’s decision after an adequate record is made.

 

Defendant also challenged the circuit court’s exclusion of proffered hearsay evidence at the hearing. This evidence included statements and summaries of scientific studies regarding the safety, benefits, and risks of childhood inoculations. These statements were issued by the Center for Disease Control, National Institute of Health, Food and Drug Administration, and Michigan Department of Community Health. The circuit court excluded this evidence, finding that it fit within no exception to the hearsay rule.

 

Hearsay is a statement made by a declarant outside of the courtroom that is offered in evidence to prove the truth of the matter asserted. MRE 803(24), the catch-all exception to the hearsay rule, provides: Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

 

In People v Katt, 468 Mich 272, 290 (2003), the Supreme Court held that this catch-all exception “may be used to admit statements that are similar to, but not admissible under, the categorical hearsay exceptions.” However, “the requirements of the exceptions are stringent and will rarely be met, alleviating concerns that the residual exceptions will ‘swallow’ the categorical exceptions through overuse.” Id. at 289. “To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.” Id. at 290. In relation to the first factor, the Supreme Court advised that “courts should consider all factors that add to or detract from the statement’s reliability.” Id. at 292. To meet the second factor, the evidence must be relevant to “‘[a] fact that is significant or essential to the issue or matter at hand.’” Id., quoting Black’s Law Dictionary (7th ed).

 

As described in Katt, 468 Mich at 293: The third requirement is that the proffered statement be the most probative evidence reasonably available to prove its point. It essentially creates a “best evidence” requirement. This is a high bar and will effectively limit use of the residual exception to exceptional circumstances. For instance, nonhearsay evidence on a material fact will nearly always have more probative value than hearsay statements, because nonhearsay derives from firsthand knowledge. Thus, the residual exception normally will not be available if there is nonhearsay evidence on point. [Quotation marks and citation omitted.] Finally, under the fourth factor, a court may refuse to admit evidence that satisfies the first three prongs “if the court determines that the purpose of the rules and the interests of justice will not be well served by the statement’s admission.” Id.

 

The circuit court abused its discretion in excluding the proffered evidence based on the “best evidence” requirement of MRE 803(24). The trail court erroneously contended that the best evidence about the safety and necessity of childhood vaccinations would have come from the children’s pediatrician. The pediatrician’s live testimony would be nonhearsay derived from firsthand knowledge. However, the children’s pediatrician is a general practioner and likely does not possess detailed personal knowledge on the safety, effectiveness, and potential risks of immunizations. The four reports were prepared by experts in the field of child immunizations and were based on scientific study. The fact that the reports were otherwise hearsay does not render them less worthy of belief. And, it would impose an unreasonable burden to present the testimony of the government agents who compiled or prepared the reports. Moreover, the evidence was reliable. Katt, 468 Mich at 291 n 11, instructed that we may employ the nonexhaustive list of reliability factors accompanying the federal rules, including consideration of “[w]hether the statement was made under formal circumstances or pursuant to formal duties, such that the declarant would have been likely to consider the accuracy of the statement when making it.” Federal Rules of Evidence Manual (Matthew Bender & Co Inc, 2002), § 807.02(4). All four reports are official (formal) statements by government agencies. The presentation of this information in a public forum and as part of the authors’ official duties suggests “that the declarant would have been likely to consider the accuracy of the statement when making it.” Id. As noted in Grant, The Trustworthiness Standard for the Public Records and Report Hearsay Exception, 12 Western State U L Rev 53, 56 (1984), “The principal basis for the presumption of trustworthiness of public records is the assumption that public officials will properly perform their duties with accuracy and fidelity. Officials have the duty to make accurate statements, and this special duty will usually suffice as a motive to incite the officer to its fulfillment.” The proffered materials are also highly relevant to a material point, as acknowledged by the circuit court. The focus of the hearing was the parties’ disagreement on childhood vaccinations. The opinions of these particular government agencies would certainly assist the fact finder in resolving whether the best interests of the children would be served by vaccination against disease. This is a custody matter; and it would be cost prohibitive to require one to present high-paid experts to testify regarding the benefits and safety of vaccinations. And, it does not unduly burden the other parent’s ability to present her side of the dispute; there are a plethora of studies regarding vaccination ingredients and side effects that she could present as well, assuming that the studies likewise meet the requirements of MRE 803(24).

 

The Court of Appeals did not address whether the proponent of the statement made known to the adverse party, sufficiently in advance of the trial or hearing, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Expert profile testimony

In People v Bynum, 496 Mich 610 (2014), the Supreme Court held that while expert testimony regarding gangs may be admitted if relevant under MRE 402 and helpful to the jury under MRE 702, “MRE 404(a) precludes testimony that is specifically used to show that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members.” 

 

Both “MRE 402 and MRE 702 require a trial court to act as a gatekeeper of gang related expert testimony,” which in turn mandates that the court determine whether the testimony is relevant and will assist the trier of fact. Bynum, 496 Mich at 625. Sometimes the evidence is necessary simply to expose that a particular crime was, in fact, gang related. Id. at 626. “At other times, ‘an expert’s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant’s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.’” Id., quoting Gutierrez v State, 423 Md 476, 496; 32 A3d 2 (2011). Accordingly, the expert testimony properly may address “general characteristics of gang culture for an appropriate purpose, such as helping to elucidate a gang member’s motive for committing a gang-related crime.” Id. at 626-627. Nevertheless, such evidence must be admissible under MRE 404(a), which provides that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .” Bynum, 496 Mich at 627.  “an expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members. Such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.” Id. at 627.  “[a] witness may not opine about the defendant’s guilt or innocence in criminal case.” People v Heft, 299 Mich App 69, 81 (2012).

 

In an analogous context – expert witness testimony involving drug trafficking—this Court has recognized the danger that arises when the profile of a drug transaction “begins to resemble the defendant’s circumstances and characteristics too closely,” thereby approximating “substantive evidence of guilt.” People v Murray, 234 Mich App 46, 55 (1999). Because expert testimony carries “an aura of special reliability and trustworthiness,” its admission risks “that the jury will confuse the expert’s description of the profile for substantive evidence of a defendant’s guilt.” Id. at 55-56 (quotation marks and citation omitted). “Particularly when the opinion is proffered by an officer of the law, the error seriously affects the fairness, integrity, or public reputation of the proceedings.” Bynum, 496 Mich at 633. To avoid this danger, trial courts “must take into consideration the particular circumstances of a case and enable profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports to comment directly or substantively on a defendant’s guilt.” Murray, 234 Mich App at 56. In Murray, this Court offered suggestions for distinguishing between proper and improper uses of drug profile testimony, including an instruction that “the expert witness should not express his opinion, based on a profile, that the defendant is guilty, nor should he expressly compare the defendant’s characteristics to the profile in such a way that guilt is necessarily implied.” Id. at 57. 

 

Similarly, expert testimony regarding the battered woman syndrome, while generally admissible, may not include an opinion “that complainant was a battered woman, . . . that defendant was a batterer or that he is guilty of the crime[.]” People v Christel, 449 Mich 578, 591 (1995). 

 

MRE 703 also provides: “The facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence thereafter.”

 

We underscore the critical difference between general testimony about gang motivations to avenge disrespect and testimony connecting those aspects of gang character to defendant’s action at a specific time. The Supreme Court condemned the latter in Bynum: “Such testimony attempted to ‘prov[e] action in conformity’ with character traits common to all gang members on a particular occasion. As a result, this testimony violates MRE 404(a).” Bynum, 496 Mich at 631.