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.