MSC remands for Ginther hearing where defense counsel failed to inform client of plea offer

In People v. Walker, No. 145433, the Michigan Supreme Court remanded to the trial court for a Ginther hearing, after it had been held in abeyance pending the Supreme Court’s decision over a year ago in Burt v. Titlow, 133 S. Ct. 1457 (2013), which was ultimately decided on unrelated grounds. The defendant was convicted of first-degree murder and sentenced to life in prison. He alleged that his trial counsel was ineffective because he failed to inform him of an offer of a plea offer of second-degree murder with a 25 to 50 year prison sentence.
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COA holds that court erred by failing to provide simultaneous translation for defendant

In People v. Elias Gonzalez-Raymundo, Nos. 316744, 319718, The Michigan Court of Appeals held that the trial court erred by failing to provide a simultaneous interpreter where defense counsel requested that the interpreter “catch up” the defendant during breaks because of possible jury prejudice against Spanish speakers. The defendant was charged with five counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a), stemming from a sexual relationship with a 13-year-old step-nephew. At trial, defense counsel requested that the defense be allowed to waive simultaneous interpretation and allow the interpreter to explain things to the defendant after the fact. The defendant, who several people testified “barely spoke any English,” never made a statement agreeing to this arrangement on the record. The jury convicted the defendant on four counts and acquitted on the fifth.
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Cadaver dog evidence admissible under MRE 702

In People v. Lane, No. 313818, the Michigan Court of Appeals affirmed the defendant’s convictions for first-degree felony murder and first-degree child abuse. Defendant raised a number of issues on appeal.  The most important issue for criminal practitioners is defendant’s argument that evidence that the cadaver dog “hit” on the defendant’s car, as well as the victim’s car seat and blanket, was admissible under MRE 702.  The Court of Appeals held that the lack of a scientific test to verify a scent, in this case of the victim’s decomposed body, is not a reason to exclude evidence discovered by the use of a cadaver dog.
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COA holds that bare hands are not a weapon for purposes of Michigan sentencing guidelines

In People v. Hutcheson, No. 313177, the Michigan Court of Appeals held that bare hands are not weapons under offense variable (“OV”) 1 and 2 of the sentencing guidelines. The defendant pleaded guilty to attempted assault with intent to commit criminal sexual conduct, MCL 750.520g(1), stemming from an incident when he punched his girlfriend after she refused to have sex with him. The trial court assessed 10 points under OV 1 for the use of a weapon. It also assessed one point under OV 2 for use of a potentially lethal weapon.  The Court of Appeals held that hands do not qualify as a weapon under the sentencing guidelines because other criminal statutes define a weapon as an “article or instrument . . . used . . . for bodily assault or defense.” Because hands are not separate from the body, they do not qualify as an article or instrument. Further, the Court of Appeals had previously rejected the argument that hands or teeth were weapons in the felonious assault context. Since the defendant’s hands were not weapons, points should not have been assessed under either OV 1 or OV 2, and the court remanded for resentencing.

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COA affirms validity of an express exclusive easement appurtenant

In Penrose v. McCullough, No. 316435, the Michigan Court of Appeals held that an express, exclusive easement was valid because it ran with the land, and because the subsequent purchasers of the servient estate had constructive notice of the easement. Three parcels located in a subdivision in South Haven, lots 9, 10, and 11, were once owned by the same couple, but they sold one of the parcels. After the sale, the buyers attempted to grant the sellers an easement over another parcel they already owned, lot 6. The buyers and sellers both eventually sold their properties to other people. The court held that the easement failed as to one of the lots because the original buyers identified the grantee as “the title holder of Lots 9, 10, and 11” after they had already purchased lot 11. Common ownership of the parcel subject to the easement and the easement therefore extinguished the easement. Read More

COA recognizes that a mutual mistake of fact, though discoverable, is grounds for reforming a divorce decree

In Wolf v. Mahar, No. 310479, the Court of Appeals held that a mutual mistake of fact about the State of Michigan’s pension recoupment policy was sufficient to order reformation of a divorce judgment, despite the policy being easily available online. Read More

COA holds that trial court has discretion to order divorcing spouses to file joint tax returns

In a case of first impression in Michigan, The Michigan Court of Appeals in Butler v. Simmons-Butler, No. 321445, held that a trial court may compel parties to a divorce action to file a joint tax return when it is in the best interest of the marital estate. Read More

MSC interprets the definition of locality under Michigan’s Worker’s Disability Compensation Act

In Younkin v. Zimmer, No. 149355, the Michigan Supreme Court reversed the Court of Appeals and held that a trial court should not have issued a writ of mandamus ordering the Michigan Administrative Hearing System and Michigan Department of Licensing and Regulatory Affairs (LARA) to hold a hearing within the same county where a worker’s injury was located. The Supreme Court then expanded the meaning of “locality” under the Worker’s Disability Compensation Act and interpreted the term as a district or definite region. Read More

COA holds that expert may testify in medical malpractice case if relevant board certification was in force at the time of the alleged malpractice

In Rock v. Crocker, No. 312885, the Michigan Court of Appeals held that in a medical malpractice case, under MCL 600.2169(1)(a), the plaintiff’s expert witness may testify because he was board certified in the same specialty as the defendant at the time of the alleged malpractice, although he had allowed his board certification to lapse. The plaintiff sued the defendant doctor for medical malpractice after he performed orthopedic surgery on his ankle and provided him with post-surgical care. Shortly before trial, the court excluded one of the plaintiff’s expert witnesses because he was no longer board certified in orthopedic surgery. The court also excluded any mention of the plaintiff’s receipt of no-fault insurance benefits connected with his injury, and denied defendant’s motion to “strike allegations of malpractice.” The Court of Appeals granted the defendant’s interlocutory application for leave to appeal, and the defendant cross-appealed. Read More

MSC denies reconsideration in IBM Multistate Tax Compact case

In July, the Michigan Supreme Court held that the Michigan Business Tax Act did not repeal the Multistate Tax Compact and that the Compact continued to govern taxation of multi-state tax payers.  (The One Court of Jutsice Blog opinion summary is available here.)  The State of Michigan moved for reconsideration, noting that the Court's 4-3 ruling could have a $1 billion negative impact on the State. Read More
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