People of Michigan v. Kevin Patrick Kavanaugh ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
December 27, 2018 Stephen J. Markman,
Chief Justice
156408 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Kurtis T. Wilder
Plaintiff-Appellant, Elizabeth T. Clement,
Justices
v SC: 156408
COA: 330359
Berrien CC: 2014-004247-FH
KEVIN PATRICK KAVANAUGH,
Defendant-Appellee.
_________________________________________/
On November 19, 2018, the Court heard oral argument on the application for leave
to appeal the July 6, 2017 judgment of the Court of Appeals. On order of the Court, the
application is again considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
WILDER, J. (concurring in part and dissenting in part).
I concur in denying appellant’s application for leave to appeal, but dissent from the
majority’s decision to leave intact those aspects of the published Court of Appeals opinion
holding or implying that when the trial court’s findings are based in part on facts
established by video evidence, a trial court’s factual findings are entitled to less deference
on appellate review. Instead, I would reiterate that factual findings of the trial court are
reviewed for clear error. MCR 2.613(C); People v Bylsma, 493 Mich 17, 26 (2012) (“A
ruling is clearly erroneous if the reviewing court is left with a definite and firm conviction
that the trial court made a mistake.”) (quotation marks and citation omitted).
The Court of Appeals judgment states in part that “we need not rely on the trial
court’s conclusions as to what the videotape contains.” People v Kavanaugh, 320 Mich
App 293, 298 (2017). In the present case, the trial court declined to review the video before
ruling on defendant’s motion to suppress. It is also unclear from the record the degree to
which the trial court relied on the video evidence in denying defendant’s renewed motion
to suppress. In my judgment, because there is uncertainty regarding whether the trial court
made factual findings based on the video, to the extent the trial court’s factual findings
were based on the video, the Court of Appeals could not have
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reviewed those factual findings for clear error. Therefore, the Court of Appeals’ assertion
that it “need not rely on the trial court’s conclusions as to what the videotape contains” is
obiter dictum that creates confusion about the appropriate standard of review of trial court
factual findings. I believe that this statement is best vacated to avoid allowing an erroneous
statement of law to have precedential effect pursuant to MCR 7.215(C)(2).
MARKMAN, C.J., joins the statement of WILDER, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 27, 2018
p1226
Clerk