July 4 – July 17, 2024
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IMPACT contains summaries of recent court and legislative activity impacting trial courts (as it
becomes effective, not necessarily when it is passed or enacted); each edition is separated into
five global topics: Administrative, Civil, Criminal, Family, and Probate. If a global topic does not
contain any summaries, no activity will be listed.
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Criminal Topics
Court Activity:
Fourth Amendment – Reasonable Particularized Suspicion
“Even the most cursory warrantless seizure must be justified by an objectively reasonable particularized
suspicion of criminal activity.” People v Prude
, ___ M
ich ___, ___ (2024). In this case, defendant “was
parked in an apartment-complex parking lot known for frequent criminal activity, and when police officers
attempted to detain him to investigate whether he was trespassing, he sped away from the officers in his
vehicle”; “[h]e was charged and eventually convicted by a jury of second-degree fleeing and eluding, and
assaulting, resisting, or obstructing a police officer.” Id. at ___ (citations omitted). “Both offenses required
the prosecution to prove beyond a reasonable doubt that the police acted lawfully”; however, “the
prosecution presented insufficient evidence that officers lawfully detained him on the basis of a reasonable
suspicion that he was trespassing.” Id. at ___. “Without more, there is nothing suspicious about a citizen
sitting in a parked car in an apartment-complex parking lot while visiting a resident of that complex.” Id. at
___. “Moreover, a citizen’s mere presence in an area of frequent criminal activity does not provide
particularized suspicion that they were engaged in any criminal activity, and an officer may not detain a
citizen simply because they decline a request to identify themselves.” Id. at ___. “Even viewed together,
these facts did not provide the officers in this case an objectively reasonable particularized basis for
suspecting that defendant was trespassing.” Id. at ___. “Because there was insufficient evidence that the
officers acted lawfully on the basis of reasonable suspicion of criminal activity, defendant’s convictions
cannot stand.” Id. at ___.
Indigent Defendant – Funding an Expert Witness
“When an indigent defendant requests funds for an expert witness,” they “must show the trial court that
there exists a reasonable probability both that an expert would be of assistance to the defense and that
denial of expert assistance would result in a fundamentally unfair trial.” People v Warner
, ___ Mich ___,
___ (2024), rev’g 339 Mich App 125 (2021) (quotation marks and citation omitted). In this case, defendant
signed an incriminating statement during a series of interrogations in which law enforcement officers
employed various techniques to obtain a confession and was ultimately convicted of first-degree criminal
sexual conduct for allegedly sexually assaulting his stepdaughter. Id. at ___. Before trial, “defendant moved
for funds to retain an expert witness in false confessions”—“[d]efendant’s motion identified two potential
experts, . . . noting that either could testify about the attributes associated with false confessions and
interviewer bias.” Id. at ___. “Specifically, [one expert] would testify about police interrogation techniques
and false confessions, while [the other expert] would perform psychological testimony on defendant and
testify about the psychology of whether the attributes of a false confession are present.” Id. at ___ (quotation
marks omitted). “Defendant showed a reasonable probability that his proposed expert would aid his defense
and that, without funding to secure such an expert, his trial would be fundamentally unfair”—“[t]he proposed
expert would at least have identified circumstances and techniques tending to result in false confessions,
which the jury could have found applicable to defendant’s confession” where “[t]he confession was the only
corroborating evidence for [the complainant’s] allegations and was central to the prosecution’s case.” Id. at
___. In sum, “in a trial in which the veracity of a confession is central, it is fundamentally unfair when an
indigent defendant is deprived of an adequate opportunity to present their claims fairly by being denied
funding to support necessary expert assistance on false confessions.” Id. at ___ (quotation marks and
citation omitted). Accordingly, the trial court abused its discretion when it “denied an indigent defendant the
opportunity to fund an expert witness whose testimony would be integral to fundamental issues of the trial.”
Id. at ___.
Motion for New Trial – Judicial Misconduct
“Under MCR 6.431(B), a trial court may order a new trial on any ground that would support appellate
reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice.”
People v Loew
, ___ Mich ___, ___ (2024), aff’g 340 Mich App 100 (2022) (opinion by CLEMENT, C.J.)
(quotation marks omitted). In this case, “[d]uring defendant’s jury trial, the trial judge exchanged several e-
mails with the [prosecutor] regarding testimony of a Michigan State Police trooper and a Michigan State
Police detective,” “express[ing] concern about mistakes law enforcement had made in its investigation and
ask[ing] questions related to why those mistakes had occurred”—“[t]he trial judge never notified defendant
or defense counsel of these e-mails or their contents.” Id. at ___. Although “the trial judge’s conduct in this
case violated the Michigan Code of Judicial Conduct,” the issue here “is not whether the trial judge should
be sanctioned for her misconduct,” but “whether the trial judge’s violation of a judicial canon provided the
trial court a legal basis on which to grant defendant a new trial.” Id. at ___. “And because the trial judge’s
failure to recuse herself did not result in a miscarriage of justice at defendant’s trial or deprive defendant of
any constitutional right, . . . the trial court had no such legal basis” and therefore “abused its discretion by
granting defendant a new trial under MCR 6.431(B).” Loew, ___ Mich at ___.
Probation Violation – Recreational Use Under the Michigan Regulation and Taxation of Marihuana
Act (MRTMA)
“A trial court may impose . . . lawful conditions of probation as the circumstances of the case require or
warrant or as in its judgment are proper,” and “[t]he court’s exercise of this discretion must be guided by
what is lawfully and logically related to the defendant’s rehabilitation.” People v Lopez-Hernandez
, ___ Mich
App ___, ___ (2024) (quotation marks and citations omitted). In this case, defendant pleaded guilty to
operating a vehicle while visibly impaired, and “does not dispute that the conviction was related to his use
of marijuana, and that he was under the influence of marijuana while driving.” Id. at ___. “As a condition of
defendant’s probation, he was prohibited from using or possessing marijuana,” but when he tested positive
for marijuana resulting in two technical probation violations, he argued that under the MRTMA, “the
probation condition prohibiting his use of marijuana that is MRTMA-compliant is unlawful and
unenforceable.” Id. at ___. However, “a trial court may . . . impose probation conditions related to the
recreational use of marijuana and revoke probation for such recreational use.” Id. at ___ (quotation marks
and citation omitted) (distinguishing People v Thue, 336 Mich App 45 (2021), which concerned a probation
condition prohibiting the use of medical marijuana under the Michigan Medical Marihuana Act). Because
defendant was “violating the law prohibiting the operation of a vehicle while visibly impaired,” “[h]e is thus
not entitled to protection from penalty under the MRTMA for violating the terms of his probation, and . . .
the condition of his probation prohibiting him from using marijuana is lawful.” Id. at ___. Further, “the
probation condition prohibiting defendant’s use of marijuana was rationally related to his rehabilitation in
this case, as it addresses the underlying substance use issue that led to his violation.” Id. at ___.
Accordingly, “[t]he trial court did not abuse its discretion by denying defendant’s motion to dismiss his
probation violation on the basis that his probation conditions were unlawful.” Id. at ___.
Restitution – Ex Post Facto Considerations
“In enacting the restitution statutes,” MCL 780.766 and MCL 769.1a, “the Legislature intended to create a
civil remedy,” and “[a]lthough the imposition of these statutes has some punitive effect, that effect is not
sufficient to overcome the demonstrated legislative intent”; “[a]ccordingly, the imposition of restitution is not
punishment.” People v Neilly
, ___ Mich ___, ___ (2024). In this case, “during defendant’s resentencing
proceedings, [the trial court] ordered defendant to pay restitution pursuant to the current restitution statutes
rather than the statutes in effect at the time of defendant’s crimes”; “[a]mong other differences, the former
restitution statutes provided that the imposition of restitution was discretionary, rather than mandatory, as
the restitution statutes now provide.” Id. at ___. However, “the trial court’s application of the current
restitution statutes on defendant during resentencing does not violate the Ex Post Facto Clauses of the
United States and Michigan Constitutions because it does not constitute a retroactive increase in
punishment.” Id. at ___.
Voluntariness of Plea – Package-Deal Offer for Multiple Defendants
When “consider[ing] how voluntariness should be addressed in the context of a package-deal plea offer
where the prosecutor requires that multiple defendants all agree to the plea offer in order for any single
defendant to receive the benefit of the plea,” “where the record raises a question of fact about the
voluntariness of such a plea, a trial court must hold an evidentiary hearing to consider the totality of the
circumstances in determining whether a defendant’s plea was involuntary.” People v Samuels
, ___ Mich
___, ___ (2024), rev’g 339 Mich App 664 (2021). “At such an evidentiary hearing, the trial court must
conduct a totality-of-the-circumstances inquiry, applying the [following] non-exhaustive . . . factors where
relevant”—(1) “the court must determine whether the inducement for the plea is proper”; (2) “the factual
basis for the guilty plea must be considered”; (3) “the nature and degree of coerciveness should be carefully
examined”; and (4) “a plea is not coerced if the promise of leniency to a third party was an insignificant
consideration by a defendant in his choice to plead guilty.” Id. at ___ (quotation marks and citation omitted).
“A defendant’s plea is involuntary if, under the totality of the circumstances, their will was overborne such
that the decision to plead was not the product of free will.” Id. at ___. In this case, defendant and his twin
brother were similarly charged with various assault and firearms offenses, and “[t]he prosecutor offered a
package-deal plea offer under which both defendant and his twin brother would plead guilty to assault with
intent to commit murder and to one count of felony-firearm, in exchange for dismissal of the remaining
charges; however, the offer was contingent upon both defendants accepting the plea offer.” Id. at ___. At
the plea hearing, defendant initially objected to the package-deal plea offer, but he and his twin brother
ultimately pleaded guilty in accordance with the offer. Id. at ___. “At sentencing, defendant and his twin
brother moved to withdraw their guilty pleas,” arguing “that the pleas were involuntary” and “that the
conditional format of the package-deal plea offer was coercive and had left them with no choice but to plead
guilty.” Id. at ___. Because “[t]he record raises a question of fact as to whether defendant voluntarily waived
his due-process rights,” “defendant is entitled to an evidentiary hearing on the question of voluntariness”
where “the trial court will apply the non-exhaustive . . . factors in conducting a totality-of-the-circumstances
analysis to determine whether defendant voluntarily entered a guilty plea.” Id. at ___.
Legislative Activity:
No activity.
