determined standard in Michigan

2023In Morris, based in part on an analysis of other provisions of ICWA, 4 “Having determined that the notice requirement of 25 U.S.C.A. § 1912 (a) was triggered in both cases before us and that the trial courts did not fully comply with that statute, we are left to consider the proper remedy for ICWA-notice violations.” Morris, 491 Mich at 114 . -8- the Court determined that violation of the notice provision would not require the “immediate return of the children to the home from which they were removed.” Id. at 117 .

2023In Morris, based in part on an analysis of other provisions of ICWA, 4 “Having determined that the notice requirement of 25 U.S.C.A. § 1912 (a) was triggered in both cases before us and that the trial courts did not fully comply with that statute, we are left to consider the proper remedy for ICWA-notice violations.” Morris, 491 Mich at 114 . -8- the Court determined that violation of the notice provision would not require the “immediate return of the children to the home from which they were removed.” Id. at 117 .

2022The trial court did not clearly err in this regard. -14- This Court begins evaluation of ineffective assistance claims with a strong presumption that “counsel’s performance constituted sound trial strategy.” Carbin, 463 Mich at 600 .

2020The defendant “bears the burden of demonstrating both deficient performance and prejudice[;] the defendant [also] necessarily bears the burden of establishing the factual predicate for his claim.” Carbin, 463 Mich at 600 . [Cooper, 309 Mich App at 80 .] A. FAILURE TO CALL EXPERT WITNESS The trial court determined that defense counsel’s decision not to call an expert about defendant’s alleged posttraumatic stress disorder (PTSD) was an objectively reasonable part of the defense strategy given the circumstances of the murder, the criminal responsibility report from the Forensic Center and other

2017Id. at ___; slip op at 6.

2017Id. at ___; slip op at 6.

2026The trial court relied on Simko, where our Supreme Court established the attorney- judgment rule and held: “Where an attorney acts in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of his client, he is not answerable for mere errors in judgment.” Simko, 448 Mich at 658 .

2026Finally, the trial court determined that defense counsel’s failure to request a specific unanimity instruction was deficient because the prosecution had presented evidence of materially distinct acts to support the CSC-II conviction, but defendant was not prejudiced because the evidence underlying his CSC-I conviction, i.e., that he forced TS to perform fellatio, similarly supported his CSC-II conviction. 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 3 Defendant also argued that the cumulative effect of the instances of ineffective assistance denied him a fair trial. 4 Defendant move

2026Finally, the trial court determined that defense counsel’s failure to request a specific unanimity instruction was deficient because the prosecution had presented evidence of materially distinct acts to support the CSC-II conviction, but defendant was not prejudiced because the evidence underlying his CSC-I conviction, i.e., that he forced TS to perform fellatio, similarly supported his CSC-II conviction. 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 3 Defendant also argued that the cumulative effect of the instances of ineffective assistance denied him a fair trial. 4 Defendant move

2025Id.

2023Plaintiff argues that her vehicle was exempt from Michigan registration under this statute because her stepfather, i.e., “a nonresident owner” of the vehicle, permitted her to operate the 6 Defendant argues that in McGhee v Helsel, 262 Mich App 221 ; 686 NW2d 6 (2004), this Court determined that a violation of MCL 500.3102(1) negated tort recovery under MCL 500.3135(2)(c).

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023Similarly, in People v Embree, 70 Mich App 382, 384 ; 246 NW2d 6 (1976), this Court concluded that a jury does not have to choose between first-degree premeditated murder and first-degree felony murder where “the evidence of felony and premeditation are present in abundance[.]” And in People v Smielewski, 235 Mich App 196, 206 ; 596 NW2d 636 (1999), this Court determined that error only occurs “when a jury is instructed with regard to two theories of guilt, but charged that it need not unanimously agree on a single theory in order to convict,” and “the evidence was also insufficient to justify

2023“We also stated that these two mental states were ‘alternative means of satisfying the mens rea -6- element of the single crime of first-degree murder.’ ” People v Fredell, 340 Mich App 221 , 245; 985 NW2d 837 (2022), quoting Bigelow I, 225 Mich App at 807 .

2023Plaintiff argues that her vehicle was exempt from Michigan registration under this statute because her stepfather, i.e., “a nonresident owner” of the vehicle, permitted her to operate the 6 Defendant argues that in McGhee v Helsel, 262 Mich App 221 ; 686 NW2d 6 (2004), this Court determined that a violation of MCL 500.3102(1) negated tort recovery under MCL 500.3135(2)(c).

2022In Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432-433 ; 684 NW2d 864 (2004), the plaintiff filed a claim of ordinary negligence within the six-year statute of limitations for such a claim, but the Court determined that the claim actually sounded in medical malpractice.

2022In Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432-433 ; 684 NW2d 864 (2004), the plaintiff filed a claim of ordinary negligence within the six-year statute of limitations for such a claim, but the Court determined that the claim actually sounded in medical malpractice.

2020The defendant “bears the burden of demonstrating both deficient performance and prejudice[;] the defendant [also] necessarily bears the burden of establishing the factual predicate for his claim.” Carbin, 463 Mich at 600 . [Cooper, 309 Mich App at 80 .] A. FAILURE TO CALL EXPERT WITNESS The trial court determined that defense counsel’s decision not to call an expert about defendant’s alleged posttraumatic stress disorder (PTSD) was an objectively reasonable part of the defense strategy given the circumstances of the murder, the criminal responsibility report from the Forensic Center and other

2019The Eleventh Circuit Court of Appeals noted that the subpoena from the Texas Board did not comply with 42 CFR 2.64,[5] and that [t]hese stringent federal regulations include application for disclosure using a fictitious name, adequate notice to the patient, a closed judicial hearing, a judicial determination that good cause exists to order disclosure because no other feasible method is available for obtaining the information and the need for disclosure outweighs injury to the patient and the physician-patient relationship, and an order delineating the parts of the patient’s records to be discl

2019Id. at 496-498 .

2016But McKinley pointed out that Gahan “devoted no attention to the modifying phrase ‘that gives rise to the conviction.’ ” 496 Mich at 418 , quoting MCL 780.766(2).

1989Speaking for six members of the Court, Justice Ryan stated: [W]e think it clear that the Jackson [v Virginia, 443 US 307 ; 99 S Ct 2781 ; 61 L Ed 2d 560 (1979);] [People v] Hampton [ 407 Mich 354 ; 285 NW2d 284 (1979)] standard of whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt should also be applied to bench trials. [Id., pp 269-270.] Thus, the reviewing Court must view the evidence in a light most favorable to the prosecution. 6 Id., p 268. [T]his inquiry does not require a court to "ask itself whether it believes that the evid

1989Speaking for six members of the Court, Justice Ryan stated: [W]e think it clear that the Jackson [v Virginia, 443 US 307 ; 99 S Ct 2781 ; 61 L Ed 2d 560 (1979);] [People v] Hampton [ 407 Mich 354 ; 285 NW2d 284 (1979)] standard of whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt should also be applied to bench trials. [Id., pp 269-270.] Thus, the reviewing Court must view the evidence in a light most favorable to the prosecution. 6 Id., p 268. [T]his inquiry does not require a court to "ask itself whether it believes that the evid

1989Where a jury is waived, the trial judge as a factfinder weighs the evidence and determines the credibility of the witnesses. 4 An appellate court may not reverse the finding of guilt by a trial judge so long as any reasonable judge could have so found. 5 In People v Petrella, 424 Mich 221 ; 380 NW2d 11 (1985), the Court determined that the standard for reviewing the sufficiency of the evidence in criminal jury trials is also applicable to criminal bench trials.

1989Where a jury is waived, the trial judge as a factfinder weighs the evidence and determines the credibility of the witnesses. 4 An appellate court may not reverse the finding of guilt by a trial judge so long as any reasonable judge could have so found. 5 In People v Petrella, 424 Mich 221 ; 380 NW2d 11 (1985), the Court determined that the standard for reviewing the sufficiency of the evidence in criminal jury trials is also applicable to criminal bench trials.

1984In Pridemore, supra, this Court determined that this rule also prohibited the service of written interrogatories upon a defendant in a paternity action, pursuant to GCR 1963, 309 and 313.1(2).

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].

1981This test focuses on 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.’ 390 Mich 7, 22 .” In People v D'Angelo, 401 Mich 167, 183 ; 257 NW2d 655 (1977), the Court determined the standard of review to be applied when reviewing a finding of entrapment: "To burden the defendant with proving his aifirmative defense of entrapment by a preponderance of the evidence is certainly not offensive to the Due Process Clause.

1981This test focuses on 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.’ 390 Mich 7, 22 .” In People v D'Angelo, 401 Mich 167, 183 ; 257 NW2d 655 (1977), the Court determined the standard of review to be applied when reviewing a finding of entrapment: "To burden the defendant with proving his aifirmative defense of entrapment by a preponderance of the evidence is certainly not offensive to the Due Process Clause.

1981This test focuses on 'whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.’ 390 Mich 7, 22 .” In People v D'Angelo, 401 Mich 167, 183 ; 257 NW2d 655 (1977), the Court determined the standard of review to be applied when reviewing a finding of entrapment: "To burden the defendant with proving his aifirmative defense of entrapment by a preponderance of the evidence is certainly not offensive to the Due Process Clause.

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].

1981Patterson v New York, [ 432 US 197 ; 97 S Ct 2319 ; 53 L Ed 2d 281 (1977)]; Rivera v Delaware, 429 US 877 ; 97 S Ct 226 ; 50 L Ed 2d 160 (1976); Leland v Oregon, [ 343 US 790 ; 72 S Ct 1002 ; 96 L Ed 1302 (1952)].