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A man convicted of sexually abusing his girlfriend's six-year-old daughter is challenging that verdict in a case that the Michigan Supreme Court will hear in oral arguments this week.

In People v Gursky, the defendant contends that testimony by a friend of the girl's mother should not have been admitted into evidence. The friend testified at trial that she questioned the girl about the abuse and suggested the names of potential assailants, including the defendant's. The child became upset and said "Yes" when the defendant's name was mentioned, and pointed to her vaginal area and said "Down there," according to the friend. The friend's testimony was admitted into evidence under Michigan Rule of Evidence 803A, the "tender years" exception to the hearsay rule. The defendant argues that the child's statement was not "spontaneous and without indication of manufacture," as required by MRE 803A, and so should not have been admitted.

Also before the court is Pellegrino v AMPCO Systems Parking, in which the defendant seeks reversal of an over $15 million verdict, and a new trial, in a case involving the death of one person and serious injury of another in an auto accident. At trial, the defendant sought to excuse an African-American woman from serving on the jury, but the plaintiff's counsel objected that the challenge was racially motivated. Although defense counsel provided race-neutral reasons for removing the juror - she had, during jury selection, stated that she had an inheritance from her mother and thought that the accident victim's children should also have a legacy - the trial judge denied the challenge, stating that he wanted to have a racially balanced jury. Although the Court of Appeals found that the trial judge erred by denying the peremptory challenge, the appellate panel held 2-1 that the error was harmless and did not affect the outcome of the trial. The majority also concluded that the trial judge did not violate court rules that forbid racial and other forms of discrimination during jury selection. The dissenting judge would have granted reversal of the verdict and a new trial before a different judge.

The remaining eight cases before the court include criminal, defamation, family, insurance, and property law issues.

Court will be held on Tuesday and Wednesday, March 9-10, in the Supreme Court's courtroom on the sixth floor of the Michigan Hall of Justice in Lansing. Oral arguments will begin each day at 9:30 a.m. The court's oral arguments are open to the public.

Please note: the summaries that follow are brief accounts of complicated cases and may not reflect the way that some or all of the court's seven justices view the cases. The attorneys may also disagree about the facts, the issues, the procedural history, or the significance of their cases. Briefs in the cases are online at http://www.courts.michigan.gov/supremecourt/Clerk/MSC_orals.htm.

Tuesday, March 9

Morning Session

UNIVERSITY OF MICHIGAN REGENTS, et al. v TITAN INSURANCE COMPANY (case no. 136905)

Attorney for plaintiffs University of Michigan Regents and University of Michigan Health System: Ronni Tischler.

Attorney for defendant Titan Insurance Company: Mark D. Sowle.

Attorney for amicus curiae Auto Club Insurance Association: James G. Gross.

Attorney for amicus curiae Insurance Institute of Michigan: Mary Massaron Ross.

Attorneys for amicus curiae Coalition Protecting Auto No-Fault: George T. Sinas and Liisa R. Speaker.

Attorney for amicus curiae Michigan Department of Community Health: James P. Delaney.

Attorney for amicus curiae Michigan Assigned Claims Facility: Ann M. Sherman.

Attorney for amicus curiae Michigan Association for Justice: Steven A. Hicks.

Trial Court: Washtenaw County Circuit Court

At issue: In Cameron v ACIA, 476 Mich 55 (2006), the Michigan Supreme Court held that, under the one-year-back rule of MCL 500.3145(1), recovery of no-fault personal injury protection benefits is limited to losses incurred during the one-year period before commencement of the action. MCL 600.5821(4) exempts the state and its political subdivisions from statutes of limitations where the state or its agencies seek to recover costs for the maintenance, care, and treatment of persons in state institutions. In Liptow v State Farm Mutual Automobile Ins Co, 272 Mich App 544 (2006), the Court of Appeals held that MCL 600.5821(4) does not supersede the no-fault act's one-year-back rule in MCL 500.3145(1). Were Cameron and Liptow correctly decided? In this case, an insurer was assigned to service the claims of an uninsured man injured in a car accident - more than one year after the injured man was discharged form the University of Michigan Health Care System, which bore the cost of his care. May the University of Michigan recover those costs, despite the one-year-back rule?

PEOPLE v HOUTHOOFD (case nos. 138959 and 138969)

Prosecuting attorney: Patrick O. Duggan.

Attorney for defendant Tod Kevin Houthoofd a/k/a Todd Kevin Houthoofd: Michael Skinne.

Trial Court: Saginaw County Circuit Court

At issue: While awaiting trial in an Arenac County jail, the defendant allegedly threatened one of the prosecution's chief witnesses and solicited a cellmate to kill the victim. As a result, the defendant was charged with witness intimidation and solicitation to commit murder. He was tried in Saginaw County on these two charges, plus one other, and was convicted as charged. The Court of Appeals vacated the defendant's solicitation to commit murder conviction, finding that venue was not proper in Saginaw County because the defendant did not commit any acts in perpetration of the offense in Saginaw County. The appellate court affirmed the defendant's other convictions. Both the prosecutor and defendant appeal. Was venue was properly laid in Saginaw County as to the solicitation to commit murder and witness intimidation charges? Is the defendant entitled to retrial on the other two charges if his conviction for solicitation to commit murder is not reinstated? Did the trial court commit errors in admitting evidence or at sentencing that warrant relief?

PEOPLE v GURSKY (case no. 137251)

Prosecuting attorney: Joshua D. Abbott.

Attorney for defendant Jason Michael Gursky: Peter Jon Van Hoek.

Attorney for amicus curiae Prosecuting Attorneys Association of Michigan: William M. Worden.

Trial Court: Macomb County Circuit Court

At issue: The defendant was charged with four counts of first-degree criminal sexual conduct for allegedly abusing his girlfriend's six-year-old daughter. A friend of the child's mother questioned the girl about the abuse and suggested the names of potential assailants, including the defendant's. The child became upset and said "Yes," when the defendant's name was mentioned, and pointed to her vaginal area and said "Down there," according to the friend. The friend's testimony was admitted into evidence under Michigan Rule of Evidence 803A, the "tender years" hearsay exception. Was the child's statement "spontaneous and without indication of manufacture," as required by MRE 803A? If the testimony was admitted in error, is it more probable than not that any error determined the outcome?

Afternoon Session

PELLEGRINO v AMPCO SYSTEMS PARKING (case no. 137111)

Attorney for plaintiff Anthony Pellegrino, Individually and as Personal Representative of the Estate of Shirley Ann Pellegrino: Heather A. Jefferson.

Attorney for defendant AMPCO Systems Parking: John P. Jacobs.

Attorneys for amicus curiae State Bar of Michigan: Candace A. Crowley and Clifford T. Flood.

Attorney for amicus curiae Michigan Defense Trial Counsel: James E. Brenner.

Attorney for amicus curiae Michigan Civil Rights Commission and Michigan Department of Civil Rights: Daniel M. Levy.

Trial Court: Wayne County Circuit Court

At issue: This case arises from an automobile accident in which one person was killed and another was injured. A jury trial resulted in a combined judgment of more than $15 million. The defendant argues that the trial judge improperly denied its peremptory challenge of an African-American juror during voir dire; the trial judge stated that he wanted to have a racially balanced jury. MCR 2.511(F) states that "[n]o person shall be subjected to discrimination during voir dire on the basis of race, color, religion, national origin, or sex." Subsection (2) of the court rule provides that "[d]iscrimination during voir dire on the basis of race, color, religion, national origin, or sex for the purpose of achieving what the court believes to be a balance, proportionate, or representative jury in terms of these characteristics shall not constitute an excuse or justification for a violation of this subsection." Was MCR 2.511(F)(2) violated? Is the defendant entitled to a new trial?

SMITH v ANONYMOUS JOINT ENTERPRISE, et al. (case nos. 138456-8)

Attorneys for plaintiff Derith Smith: Mark Granzotto and Grant W. Parsons.

Attorney for defendant Donald Barrows: Rosalind H. Rochkind.

Attorney for defendant John Stanek: Deborah A. Hebert.

Defendant pro per Noel Flohe: Noel Flohe.

Attorney for amicus curiae Print, Broadcast, and Electronic Media: Mary M. Mullin.

Trial Court: Leelanau County Circuit Court

At issue: When the plaintiff was the focus of a recall campaign, the defendants circulated a personnel report that was written about the plaintiff when she was employed elsewhere. The plaintiff sued, alleging, among other things, defamation. The jury returned a verdict in the plaintiff's favor on the defamation claim. The Court of Appeals reversed, concluding that defamation had not been shown as a matter of law because there was insufficient evidence of actual malice; the court added that the statements in the personnel report were not capable of defamatory meaning. Did the Court of Appeals err in determining that the plaintiff presented insufficient evidence to support a finding of actual malice for purposes of her defamation claim?

Wednesday, March 10

Morning Session

LIGHTHOUSE PLACE DEVELOPMENT, LLC v MOORINGS ASSOCIATION, d/b/a MOORINGS CONDOMINIUM ASSOCIATION, et al. (case no. 139015)

Attorney for plaintiff Lighthouse Place Development, LLC: Stephen A. Hilger.

Attorneys for defendant Moorings Association, d/b/a/ Moorings Condominium Association: Noreen L. Slank and Paul R. Bernard.

Trial Court: Berrien County Circuit Court

At issue: In the course of settling an earlier lawsuit, the defendant, a condominium association, executed a document that terminated certain easements, including a parking easement established in 1985. The defendant now argues that the 1985 easement was mistakenly listed in the agreement. In 2005, the defendant and the other party to the earlier lawsuit executed an amendment to the settlement agreement, excluding the 1985 easement. But the land upon which the easement ran had been purchased by the plaintiff. When the defendant continued to assert its easement rights, the plaintiff sued to quiet title and for slander of title. The trial court ruled that the 1985 easement was terminated in the settlement, and that the plaintiff established its claim for slander of title. Did the defendant act on the advice of counsel in authorizing the recording of the 2005 amendment? If so, can plaintiff establish that defendant acted with malice, as is required to establish slander of title?

FOSTER v WOLKOWITZ (case no. 139872)

Attorney for plaintiff Leah Rose Foster: Maria Zagorski.

Attorney for defendant David Kenneth Wolkowitz: Daniel R. Victor.

Trial Court: Monroe County Circuit Court

At issue: The unmarried parties executed an Affidavit of Parentage after their child was born in Michigan, pursuant to the Michigan Acknowledgment of Parentage Act (MAPA). The family moved to Illinois and lived there for a year; the mother then returned to Michigan with the child and sued for custody. The father filed a custody action in Illinois. A Michigan court determined that it had jurisdiction over the case under MAPA; the court awarded the parties joint legal custody and awarded physical custody to the mother. The father appealed, but the Court of Appeals affirmed the lower court. Did the Michigan court properly exercise subject-matter jurisdiction in this interstate child custody dispute? Does the MAPA violate the Equal Protection Clauses of the state and federal constitutions by creating a suspect classification of unmarried fathers who are treated differently than married fathers? If jurisdiction properly lies in Illinois, as the child's "home state" under the Uniform Child Custody Jurisdiction and Enforcement Act, is Michigan the more convenient forum for resolution of this matter?

IN RE ABDULLAH, Minor (case no. 139586)

Prosecuting attorney: Carolyn Breen.

Attorney for respondent Rashid Abdullah: Sanford A. Schulman.

Trial Court: Wayne County Circuit Court Juvenile Division

At issue: Following an evening of drinking, the then-16-year-old respondent engaged in intercourse with the 20-year-old complainant. The complainant contended that she was intoxicated and had passed out; she also said that she was injured during the encounter. The prosecutor charged the respondent with first-degree criminal sexual conduct, on the theory that the respondent caused injury to a physically helpless individual. Following a bench trial, the trial judge determined that the respondent was responsible for third-degree criminal sexual conduct, for a penetration accomplished by force or coercion. The Court of Appeals vacated the conviction in an unpublished per curiam opinion. Is third-degree criminal sexual conduct a necessarily included lesser offense of first-degree criminal sexual conduct under the theory advanced by the prosecution?

PEOPLE v MUSHATT (case no. 139413)

Prosecuting attorney: Joseph B. Finnerty.

Attorney for defendant Ledell Marvin Mushatt: Michael A. Faraone.

Trial Court: Ingham County Circuit Court

At issue: The defendant stole a wallet from within a building, and then fled to the parking lot. While driving away from the scene, he struck a person with his car, causing minor bruising. He then led the police on a short high-speed chase. The defendant was charged with larceny in a building, felonious assault, and fourth-degree fleeing and eluding. He was acquitted of the assault, but convicted of the other two offenses. The trial court scored Offense Variable 3 (physical injury to a victim) to reflect the bruise suffered by the pursuing employee, even though the defendant was acquitted of the assault. The Court of Appeals affirmed. Was OV 3 incorrectly scored because the injury was not part of one of the two offenses for which the defendant was being sentenced?

Afternoon Session

PEOPLE v HERCULES-LOPEZ (case no. 139537)

Prosecuting attorney: Timothy K. McMorrow.

Attorney for defendant Marco Antonio Hercules-Lopez: Christine A. Pagac/.

Trial Court: Kent County Circuit Court

At issue: The Court of Appeals reversed the defendant's convictions of armed robbery, conspiracy to commit armed robbery, and felony-firearm, remanding the case for a new trial. The Court of Appeals held that the defendant was denied counsel at a critical stage of the proceedings because defense counsel was absent from the courtroom when the judge answered the deliberating jury's question about the mental element needed for a conspiracy conviction. The court held that the denial of counsel was structural error that required reversal of the defendant's conviction despite counsel's failure to object. Was the trial court's reinstruction of the jury a critical stage of the proceedings? Is the defendant entitled to a new trial?

Published: Tue, Mar 9, 2010

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