Michigan Cases Involving Social Media, January 2014-April 2015

MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015

Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP

CITATION / JUDGE(S) / TYPE OF CASE / SOCIAL MEDIA HOLDING /
In re Wade H. McCree, 495 Mich 51; 845 NW2d 458 (2014) / Opinion by Justice Markman (Justice Cavanagh concurred in part and dissented in part.) / Judicial Tenure Commission / Judicial Misconduct. The Court found that the evidence established that respondent judge transmitted numerous text messages to a complaining witness who was before him while he was on the bench, which contained inappropriate and derogatory references to defendants, witnesses and litigants appearing before him. The Court found that this, and the cumulative effect of other acts, to be judicial misconduct. Also, because respondent engaged in misconduct while he was on the bench when he transmitted the inappropriate text messages, the Court agreed with the JTC that this factor weighed in favor of a more serious sanction. Ultimately, the Court said it believed that the additional findings (related to the text messages) provided relevant background and context and demonstrated the nature and magnitude of respondent’s misconduct. Also, the additional findings of the Court did not relate to uncharged conduct and respondent did not argue that the Court could not consider the additional allegations.
Lee, et al v Croskey, et al, 2015 Mich App LEXIS 824 (Apr 21, 2015) / Judges Beckering, Cavanagh and Saad / Auto Negligence / Probity. Plaintiffs’ assertion that defendant was texting while driving was speculation - the record was devoid of evidence that defendant was texting while driving at the time of the accident – and that speculation and conjecture were insufficient to establish a genuine issue of material fact.
Kilchermann v Thompson, et al, 2015 Mich App LEXIS 806 (Apr 21, 2015) / Judges Meter, Sawyer and Boonstra / Defamation / Probity.Facebook posts by defendant were not defamation; statements of opinion are protected by the First Amendment.
In re B. Hopfinger, 2015 Mich App LEXIS 772 (Apr 16, 2015) / Judges Owens, Jansen and Murray / Termination of Parental Rights / Probity.A Snapchat photo was evidence and indicative of respondent’s substance abuse and lack of judgment.
People v Lewis, 2015 Mich App LEXIS 448 (March 5, 2015) / Judges Beckering, Borrello and Gleicher / Criminal Case (2nd Degree Murder; Request for Self-Representation at Trial) / Probable Cause. Defendant’s possession and use of victim’s cell phone to send text messages was one factor which created an inference that defendant played a role in the murder; it was enough to bind him over for trial. (However, the Court vacated the conviction and remanded for a new trial for other reasons.)
Demski v Petlick, et al, 2015 Mich App LEXIS 457 (March 5, 2015) / Judges Boonstra, Donofrio and Gleicher. (Opinion by Judge Boonstra; Dissent by Judge Gleicher.) / Domestic Relations (Custody, Paternity) / Probity.Text messages and Facebook posts used in a custody dispute, where the plaintiff/father said he wanted to sign off on his parental rights, were referenced by the Court in its opinion affirming sole legal custody to the defendant/mother.
People v Gunn, 2015 Mich App LEXIS 273 (Feb 17, 2015) / Judges Murray, Hoekstra and Wilder / Criminal (Arson) / Probity. Threatening text messages sent shortly before a fire were allowed as evidence. However, when a witness gave opinion testimony that the messages were death threats, the trial court sustained defendant’s objection and instructed the jury to disregard the challenged testimony. The Court held that the jury was properly left to determine on its own whether the text messages could be interpreted as death threats and there was no error that affected the outcome of the trial.
People v Vinson, 2015 Mich App LEXIS 270 (Feb 12, 2015) / Judges O’Connell, Sawyer and Markey / Criminal (Criminal Sexual Conduct, Armed Robbery, Home Invasion, etc.) / Probity. A text message to defendant, along with other evidence, could be used to show that defendant was in the victim’s apartment during a home invasion.
People v Vilton, 2015 Mich App LEXIS 180 (Feb 3, 2015) / Judges Murphy, Meter and Servitto / Criminal (Felonious Assault, Possession of a Firearm, Felony Firearm) / Admissibility. Since the Facebook messages/exchanges which were admitted into evidence were not in issue and were not an operative fact, the best evidence rule did not apply. They were also not prejudicial.
People v Moore, 2015 Mich App LEXIS 143 (Jan 27, 2015) / Judges Beckering, Jansen and Boonstra / Criminal (2nd Degree Murder, etc.) / Probity. Evidence of a text message of the victim’s, seen by the defendant (and testified to by defendant’s mother), showed one motive for the murder.
People v Wilson, 2015 Mich App LEXIS 82 (Jan 20, 2015) / Judges Beckering, Jansen and Boonstra / Criminal (1st Degree Murder, Felony Firearm, Felonious Assault, etc.) / Probity. The defendant acknowledged he was not surprised that he sent the victim 64 text messages on the night before her murder. The Court held that the text messages, etc. provided circumstantial evidence from which a jury could draw a reasonable inference of premeditation and deliberation.
Shirvell v Dept of Atty General, et al, 2015 Mich App LEXIS 8 (Jan 8, 2015) / Judges Murray, O’Connell and Borrello (Opinion by Judge Borrello.) / Employment (Termination) / Speech Rights. The Court held that blog and other electronic media posts by an assistant attorney general (though purportedly posted as a private citizen), which could be construed as, among other things, cyber-bullying, was not speech which was protected by the First Amendment. The Dept. of the Attorney General introduced evidence to show that its interests in the efficient provision of governmental services outweighed claimant’s speech interests. Neither termination of his employment nor denial of unemployment benefits “offended the constitution”.
Also, the Court said there was competent, material and substantial evidence introduced at the hearings which supported the fact that the claimant engaged in misconduct such that he was disqualified for unemployment benefits.
Hackett Mayer v Mayer, 2014 Mich App LEXIS 2522 (Dec 18, 2014) / Judges O’Connell, Borrello and Gleicher / Termination of PPO / Probity. The trial court did not abuse its discretion in denying a motion to terminate a PPO, citing, among other things, text messages which were admitted into evidence.
In re Santos, 2014 Mich App LEXIS 2544 (Dec 18, 2014) / Judges M.J. Kelly, Cavanagh and Meter / Termination of Parental Rights / Probity. Text messages were used as evidence to terminate parental rights; they showed that the respondent allowed the abusive father to see the child and that respondent assisted family members in obtaining marijuana.
People v Edmonds, 2014 Mich App LEXIS 2493 (Dec 16, 2014) / Judges Donofrio, Fort Hood and Shapiro / Criminal (Home Invasion, Aggravated Stalking) / Ineffective Assistance. Failure of defense counsel to subpoena text messages was not ineffective assistance of counsel.
Rastelli v Rastelli, 2014 Mich App LEXIS 2487 (Dec 16, 2014) / Judges M.J. Kelly, Cavanagh and Meter / PPO (Criminal Contempt) / Admissibility, Probity. Evidence of text messages sent by respondent qualified as a course of conduct. Also, the text messages showed stalking sufficient to support the conviction. The text messages exceeded the scope of petitioner’s consent and caused the victim to feel terrorized, frightened, etc. These unconsented contacts could constitute harassment.
People v Dunbar and Smith, 2014 Mich App LEXIS 2371 (Dec 4, 2014) / Judges Riordan, Saad and Talbot / Criminal (Armed Robbery) / Authentication. The Court held that text messages were properly excluded on the ground that they had not been authenticated. The defendant failed to satisfy his burden under MRE 901(a), of presenting evidence sufficient to support a finding that the text was sent by a third person involved in the robbery.
People v Castillo, 2014 Mich App LEXIS 2294 (Nov 25, 2014) / Judges Owens, Markey and Servitto / Criminal (Felonious Assault) / Admissibility. Use of defendant’s Facebook page (and solicitation of testimony about the page) was not prosecutorial misconduct and not evidence of other crimes per MRE 404(b). The social networking site was used to show the identity of the perpetrator, not as character evidence.
Hamameh v Gilson, et al, 2014 Mich App LEXIS 2320 (Nov 25, 2014) / Judges Gleicher, Servitto and Krause / Breach of Joint Venture Agreement, Fraud and Misrepresentation / Probity. The Court referenced text messages which were used as evidence in summary disposition motions, and held that the text messages, along with other evidence, created factual questions and precluded summary disposition on most of plaintiff’s claims.
In re Parmenter, 2014 Mich App LEXIS 2262 (Nov 20, 2014) / Judges Boonstra, Donofrio and Gleicher / Termination of Parental Rights / Probity. The Court referenced threatening text messages which were part of the evidence considered in affirming the termination of respondent’s parental rights.
People v Raymundo, 2014 Mich App LEXIS 2224 (Nov 18, 2014) / Judges Boonstra, Markey and K.F. Kelly (Opinion by Judge Boonstra.) / Criminal (Criminal Sexual Conduct - Minor) / Admissibility. The text messages of the victim (a minor), except for those that mentioned defendant, were protected by the rape shield law, MCL 750.520j, and were inadmissible.
People v Gunnells, 2014 Mich App LEXIS 2193 (Nov 13, 2014) / Judges Whitbeck, Fitzgerald and Murray / Criminal (Armed Robbery and Conspiracy to Commit Armed Robbery) / Probity. The Court found that defendant’s text messages provided overwhelming proof of his agreement to commit armed robbery.
People v Dejuan-Tolbert Smith, 2014 Mich App LEXIS (Oct 23, 2014) / Judges Stephens, Talbot and Beckering / Criminal (1st Degree Murder; Felony Firearm) / Authentication. The trial court did not abuse its discretion in admitting various text messages without first authenticating them in accordance with MRE 901. Under the circumstances, the surrounding factors were sufficient to indicate that the text messages were what the prosecutor, as proponent of the evidence, claimed them to be. “The evidence was not required to be free from all weakness or doubt to satisfy the authentication requirement.” Dejuan-Tolbert Smith, at *12.
People v Webb, 2014 Mich App LEXIS 1916 (Oct 16, 2014) / Judges Saad, O’Connell and Murray / Criminal (Criminal Sexual Conduct - Minor) / Admissibility. Since a victim’s testimony contradicted her text messages and her credibility was called into question, the trial court did not err when it admitted her text messages for a limited purpose to aid the jury in assessing her credibility. Also, any error in admitting a transcript of the text messages did not require reversal since there was [other] sufficient evidence to convict the defendant.
People v Mather, 2014 Mich App LEXIS 1889 (Oct 14, 2014) / Judges Cavanagh, Jansen and Ronayne Krause / Criminal (Aggravated Stalking) / Probity. Evidence of text messages from defendant to complainant, sent after a no-contact order was entered, constituted unreasonable contact/aggravated stalking. A trier of fact could find, beyond a reasonable doubt that the text messages constituted unconsented contact.
People v Coates, 2014 Mich App LEXIS 1823 (Sept 25, 2014) / Judges Shapiro, Whitbeck and Stephens / Criminal (Home Invasion, Larceny in a Building, etc.) / Ineffective Assistance. There was no factual predicate for defendant’s claims for ineffective assistance of counsel, including the claim that counsel failed to conduct a reasonable investigation with regard to text messages that would have shown that the victim was lying about her communications with defendant before the offense.
People v Ursery, et al, 2014 Mich App LEXIS (Sept 11, 2014) / Judges Hoekstra, Wilder and Fort Hood / Criminal (2nd Degree Murder; Felony Firearm) / Admissibility. The Court held that reference to a Facebook photo was not used to prove defendant’s character. In this case, a question by defendant Davis’ counsel to a police witness, about whether he found a photo of defendant on Facebook, prompted the response that the officer had previous contact with Davis. Davis waived any error concerning admission of that evidence and even if not waived, that testimony was not to prove his character but to demonstrate how he was identified as a suspect.
People v Mercer, 2014 Mich App LEXIS 1602 (Aug 28, 2014) / Judges Owens, Borrello and Gleicher / Criminal (2nd Degree Murder, Tampering With Evidence, Arson) / Probity. The Court affirmed that threatening text messages from one of the victims, received hours before the shooting, did not justify the use of deadly force.
In the matter of Barnett/Pagan-Barnett, 2014 Mich App LEXIS 1593 (Aug 26, 2014) / Judges Murphy, Whitbeck and Talbot / Termination of Parental Rights / Probity. The Court affirmed the trial court’s order terminating respondent/mother’s parental rights. There was no evidentiary issue about social media; testimony at the parental termination hearing indicated that respondent, during supervised visits had trouble controlling the children. During the visits, respondent used her phone extensively to photograph the children, text on Facebook and take phone calls.
In re Lugo/Nunez, 2014 Mich App LEXIS 1536 (Aug 19, 2014) / Judges Gleicher, Servitto and Ronayne Krause / Termination of Parental Rights / Probity. Evidence of posts on social media proved that although the respondent mother was ordered not to allow the father to have any contact with the children, respondent allowed access between the father and her daughters.
People v Bell, 2014 Mich App LEXIS 1465 (Aug 7, 2014) / Judges Beckering, Hoekstra and Gleicher / Criminal (2nd Degree Murder, Felony Firearm) / Relevance, Admissibility. Probable cause existed to issue a search warrant of defendant’s cell phone records, including text messages and tracking information and the trial court properly denied defendant’s motion to suppress. A text message from the defendant to his father, which said he was going to kill the victim, was admitted into evidence.