MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015
Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP
CITATION
In re Wade H. McCree,
495 Mich 51; 845 NW2d
458 (2014)
JUDGE(S)
Opinion by Justice Markman
(Justice Cavanagh concurred
in part and dissented in part.)
TYPE OF CASE
Judicial Tenure
Commission
Lee, et al v Croskey, et al,
2015 Mich App LEXIS
824 (Apr 21, 2015)
Judges Beckering, Cavanagh
and Saad
Auto Negligence
Kilchermann v Thompson,
et al, 2015 Mich App
LEXIS 806 (Apr 21,
2015)
In re B. Hopfinger, 2015
Judges Meter, Sawyer and
Boonstra
Defamation
Judges Owens, Jansen and
Termination of Parental
SOCIAL MEDIA HOLDING
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.
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.
Probity.Facebook posts by defendant were not
defamation; statements of opinion are protected by
the First Amendment.
Probity.A Snapchat photo was evidence and
MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015
Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP
CITATION
Mich App LEXIS 772
(Apr 16, 2015)
People v Lewis, 2015
Mich App LEXIS 448
(March 5, 2015)
JUDGE(S)
Murray
Judges Beckering, Borrello
and Gleicher
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.)
People v Gunn, 2015
Mich App LEXIS 273
(Feb 17, 2015)
Judges Murray, Hoekstra and
Wilder
People v Vinson, 2015
Mich App LEXIS 270
(Feb 12, 2015)
Judges O’Connell, Sawyer
and Markey
People v Vilton, 2015
Mich App LEXIS 180
(Feb 3, 2015)
Judges Murphy, Meter and
Servitto
2
TYPE OF CASE
Rights
SOCIAL MEDIA HOLDING
indicative of respondent’s substance abuse and lack
of judgment.
nd
Criminal Case (2
Probable Cause. Defendant’s possession and use of
Degree Murder; Request victim’s cell phone to send text messages was one
for Self-Representation at factor which created an inference that defendant
Trial)
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.)
Domestic Relations
Probity.Text messages and Facebook posts used in a
(Custody, Paternity)
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.
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.
Criminal (Criminal
Sexual Conduct, Armed
Robbery, Home Invasion,
etc.)
Criminal (Felonious
Assault, Possession of a
Firearm, Felony Firearm)
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.
Admissibility. Since the Facebook
messages/exchanges which were admitted into
evidence were not in issue and were not an operative
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
People v Moore, 2015
Mich App LEXIS 143
(Jan 27, 2015)
Judges Beckering, Jansen and
Boonstra
Criminal (2nd Degree
Murder, etc.)
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.)
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)
Hackett Mayer v Mayer,
2014 Mich App LEXIS
2522 (Dec 18, 2014)
Judges O’Connell, Borrello
and Gleicher
3
Termination of PPO
SOCIAL MEDIA HOLDING
fact, the best evidence rule did not apply. They were
also not prejudicial.
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.
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.
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.
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
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
In re Santos, 2014 Mich
Judges M.J. Kelly, Cavanagh
App LEXIS 2544 (Dec 18, and Meter
2014)
Termination of Parental
Rights
People v Edmonds, 2014
Mich App LEXIS 2493
(Dec 16, 2014)
Rastelli v Rastelli, 2014
Mich App LEXIS 2487
(Dec 16, 2014)
Judges Donofrio, Fort Hood
and Shapiro
Judges M.J. Kelly, Cavanagh
and Meter
Criminal (Home
Invasion, Aggravated
Stalking)
PPO (Criminal
Contempt)
People v Dunbar and
Smith, 2014 Mich App
LEXIS 2371 (Dec 4,
2014)
Judges Riordan, Saad and
Talbot
Criminal (Armed
Robbery)
People v Castillo, 2014
Mich App LEXIS 2294
(Nov 25, 2014)
Judges Owens, Markey and
Servitto
Criminal (Felonious
Assault)
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
4
SOCIAL MEDIA HOLDING
evidence.
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.
Ineffective Assistance. Failure of defense counsel to
subpoena text messages was not ineffective
assistance of counsel.
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.
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.
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.
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
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
In re Parmenter, 2014
Mich App LEXIS 2262
(Nov 20, 2014)
Judges Boonstra, Donofrio
and Gleicher
Termination of 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)
People v Gunnells, 2014
Mich App LEXIS 2193
(Nov 13, 2014)
Judges Whitbeck, Fitzgerald
and Murray
People v Dejuan-Tolbert
Smith, 2014 Mich App
LEXIS (Oct 23, 2014)
Judges Stephens, Talbot and
Beckering
Criminal (Armed
Robbery and Conspiracy
to Commit Armed
Robbery)
Criminal (1st Degree
Murder; Felony Firearm)
People v Webb, 2014
Mich App LEXIS 1916
(Oct 16, 2014)
Judges Saad, O’Connell and
Murray
Criminal (Criminal
Sexual Conduct - Minor)
5
SOCIAL MEDIA HOLDING
precluded summary disposition on most of plaintiff’s
claims.
Probity. The Court referenced threatening text
messages which were part of the evidence considered
in affirming the termination of respondent’s parental
rights.
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.
Probity. The Court found that defendant’s text
messages provided overwhelming proof of his
agreement to commit armed robbery.
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.” DejuanTolbert Smith, at *12.
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
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
People v Mather, 2014
Mich App LEXIS 1889
(Oct 14, 2014)
Judges Cavanagh, Jansen and
Ronayne Krause
People v Coates, 2014
Mich App LEXIS 1823
(Sept 25, 2014)
Judges Shapiro, Whitbeck and Criminal (Home
Stephens
Invasion, Larceny in a
Building, etc.)
People v Ursery, et al,
2014 Mich App LEXIS
(Sept 11, 2014)
Judges Hoekstra, Wilder and
Fort Hood
Criminal (2nd Degree
Murder; Felony Firearm)
People v Mercer, 2014
Mich App LEXIS 1602
(Aug 28, 2014)
Judges Owens, Borrello and
Gleicher
Criminal (2nd Degree
Murder, Tampering With
Evidence, Arson)
In the matter of
Barnett/Pagan-Barnett,
2014 Mich App LEXIS
1593 (Aug 26, 2014)
Judges Murphy, Whitbeck
and Talbot
Termination of Parental
Rights
6
Criminal (Aggravated
Stalking)
SOCIAL MEDIA HOLDING
[other] sufficient evidence to convict the defendant.
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.
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.
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.
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.
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
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
In re Lugo/Nunez, 2014
Mich App LEXIS 1536
(Aug 19, 2014)
Judges Gleicher, Servitto and
Ronayne Krause
Termination of Parental
Rights
People v Bell, 2014 Mich
App LEXIS 1465 (Aug 7,
2014)
Judges Beckering, Hoekstra
and Gleicher
Criminal (2nd Degree
Murder, Felony Firearm)
People v Gaines, 306
Mich App 289; 856 NW2d
222 (2014)
People v Prikopa, 2014
Mich App LEXIS 1344
(July 22, 2014)
Judges Wilder, Fitzgerald and
Markey (Opinion by Judge
Wilder.)
Judges Boonstra, Meter and
Servitto
Criminal (including
Criminal Sexual Conduct
- Minors)
Criminal (Child Sexually
Abusive Material)
Anderson v Johnson, 2014
Mich App LEXIS 1284
(July 8, 2014)
Judges Sawyer, Meter and
Fort Hood
PPO (Criminal
Contempt)
7
SOCIAL MEDIA HOLDING
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.
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.
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.
Probity. Text messages were evidence of the date the
crime against one of the victims occurred and of
ongoing acts by the defendant.
Admissibility. Testimony about the
witness/girlfriend, receiving threatening text
messages from defendant, after the witness called the
police, was not a violation of MRE 404(b) - other
acts evidence. The testimony challenged by
defendant was not introduced for other acts, but to
rehabilitate the witness’ credibility and was
admissible.
Probity. The Court held that text messages were
unauthorized contact and sufficient evidence that
appellant was in criminal contempt for violation of
the terms of a PPO against him.
MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015
Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP
CITATION
People v Lownsbery, 2014
Mich App LEXIS 1234
(June 26, 2014)
JUDGE(S)
Judges Ronayne Krause,
Hoekstra and Whitbeck
TYPE OF CASE
Criminal (Criminal
Sexual Conduct - Minor)
People v Jungkind, 2014
Mich App LEXIS 1179
(June 24, 2014)
Judges Murphy, Shapiro and
Riordan
Criminal (Criminal
Sexual Conduct - Minor)
People v Goines, 2014
Mich App LEXIS 1177
(June 24, 2014)
Judges Meter, O’Connell and
Shapiro
Criminal (Felonious
Assault, Possession of a
Firearm, Malicious
Destruction of Property)
In the Matter of
Henderson/Ford, 2014
Mich App LEXIS 1162
(June 19, 2014)
Judges Ronayne Krause,
Hoekstra and Whitbeck
Termination of Parental
Rights
8
SOCIAL MEDIA HOLDING
Discoverability. The Court held there was no
discovery violation about a text message the
prosecutor found out about a week before trial, but
did not have possession of, when defendant was
capable of discovering the existence of a text
message on his own (by interviewing a witness).
Admissibility. The Court held that the trial court did
not err in allowing, over objection, evidence
regarding complainant’s alleged pregnancy or alleged
abortion (including text messages between
complainant and a friend in which there were specific
references to sexual intercourse with the defendant
and complainant procuring an abortion), because the
evidence was material and related to establishing an
element of the offense.
Probity. The Court ruled that the evidence (including
testimony about a text message from the defendant to
the victim stating he was going to shoot her) was
sufficient to show a link between defendant and the
bullet. Also, the prosecutor’s argument that the
charges of malicious destruction of property was
established from another text message from
defendant to complainant, (containing an admission
of breaking the windows in complainant’s house),
was not prosecutorial misconduct because the
prosecutor was arguing reasonable inferences from
the evidence.
Probity. Evidence of Facebook posts showing
respondent’s substance abuse, illustrated that
respondent continued to allow her substance abuse to
interfere with her ability to parent her children and
the Court held that the trial court did not err when it
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
In the Matter of
Arce/Logan, 2014 Mich
App LEXIS 1159 (June
19, 2014)
Judges Cavanagh, Owens and
Stephens
Termination of Parental
Rights
Manssur v Manssur, 2014
Mich App LEXIS 1074
(June 10, 2014)
Judges Jansen, Murray and
Boonstra
Domestic Relations
(Custody)
People v Liles, 2014 Mich
App LEXIS 1036 (June 5,
2014)
Judges Riordan, Donofrio and
Fort Hood
People v MurphyEllerson, 2014 Mich App
LEXIS 936 (May 22,
2014)
Judges Cavanagh, Owens and
M.J. Kelly
9
SOCIAL MEDIA HOLDING
found statutory grounds for terminating respondent’s
parental rights.
Probity. The Court said that text messages from the
grandmother to the case worker were used to show
that: the minor child’s (“KA”) statements that her
“daddy” hurt her were inadmissible because it
appeared that the grandmother encouraged KA to
make those statements. Also, the record, including a
text message, supported the fact that respondent
either caused the minor child’s injuries or failed to
prevent them from occurring.
Probity. In a case regarding a change of sole legal
custody of two minor children to plaintiff, Facebook
posts were merely used in the parties’ arguments.
The defendant argued that he was concerned with
plaintiff’s parenting for a number of reasons,
including that plaintiff posts photos of the children on
Facebook and, plaintiff admitted to saying things
about the defendant on Facebook.
Criminal (Conspiracy to
Probity. The Court ruled that evidence that defendant
Commit Armed Robbery) confessed to deleting text messages was used to
support a change in sentencing (showing that she
interfered with the administration of justice) and
could also be used to show defendant conspired to
commit armed robbery (a reasonable jury could infer
that the deleted text messages contained pertinent
information of the planned robbery).
Criminal (Assault with
Admissibility. A videotape of a text message
Intent to Murder, Felony allegedly sent by a witness to defendant’s stepfather
Firearm, etc.)
probably wasn’t admissible due to hearsay
(defendant’s counsel decided not to seek admission
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
In the Matter of Smith,
2014 Mich App LEXIS
899 (May 20, 2014)
Judges Gleicher, Borrello and
Servitto
Termination of Parental
Rights
People v Levack, 2014
Mich App LEXIS 880
(May 20, 2014)
Judges Fitzgerald, Saad and
Whitbeck
Criminal (1st Degree
Murder, Home Invasion,
Witness Intimidation)
People v Pomeroy, 2014
Mich App LEXIS (May
15, 2014)
Judges Gleicher, Borrello and
Servitto
Criminal (Child Sexually
Abusive Activity)
People v Isom, 2014 Mich
App LEXIS 743 (Apr 22,
2014)
Judges Meter, O’Connell and
Shapiro
Criminal (Threatening a
Witness)
10
SOCIAL MEDIA HOLDING
of the videotape).
Probity. The trial court record, which addressed a
number of issues, including evidence of respondent’s
mental health issues (illustrated by threatening text
messages sent from respondent to the DHS foster
care specialist), warranted parental termination on
statutory grounds.
Juror Misconduct. The Court held that the trial court
did not err when it refused to grant defendant a
mistrial when a juror used Google Maps during the
deliberations. The jury informed the trial court that it
wasn’t considering that information and the trial
court gave a timely instruction to disregard the
extrinsic evidence. The defendant’s 6th Amendment
rights were not violated.
Probity. Reference, only, was made in the opinion to
testimony about text messages from victim’s mother
to defendant, telling defendant she had found his SD
card with naked photos of her minor daughter.
Admissibility. The Court held that the trial court
erred in admitting certain Facebook posts by
defendant into evidence. The trial court initially
refused to admit the posts on the grounds they could
not be authenticated; however, after defendant
acknowledged she had a Facebook account, the trial
court allowed the prosecutor to question defendant on
the posts she admitted to making. Since the
Facebook posts were irrelevant to determining
whether defendant made threatening phone calls to
the victim/witness, they should have been excluded
under MRE 401, 402. However, defendant was not
entitled to reversal on that basis.
MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015
Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP
CITATION
Briggs v Burnette, 2014
Mich App LEXIS 760
(Apr 22, 2014)
JUDGE(S)
Judges Hoekstra, Sawyer and
Gleicher
TYPE OF CASE
Domestic Relations
(Custody)
People v Bills, 2014 Mich
App LEXIS 747 (Apr 22,
2014)
Judges Hoekstra, Sawyer and
Gleicher
People v White, 2014
Mich App LEXIS 628
(Apr 10, 2014)
Judges Donofrio, Cavanagh
and Jansen
Criminal (Receiving and
Concealing Stolen
Property, Larceny of a
Firearm, etc.)
Criminal (Voluntary
Manslaughter)
People v Jackson, 2014
Mich App LEXIS 633
(Apr 10, 2014)
Judges Jansen, Owens and
Shapiro (Concurring opinion
by Judge Shapiro.)
Criminal (Criminal
Sexual Conduct - Minor)
People v McDonald, 2014
Mich App LEXIS (Apr 8,
2014)
Judges Stephens, Saad and
Boonstra
Criminal (Assault with
Intent to Murder, Felony
Firearm)
People v Anderson, 2014
Mich App LEXIS 611
(Apr 8, 2014)
Judges Whitbeck, Hoekstra
and Gleicher
Criminal (Criminal
Sexual Conduct – Minor,
Furnishing Alcohol to a
Minor)
11
SOCIAL MEDIA HOLDING
Probity. The Court said that text messages were
evidence that defendant persistently sought to make
contact with the plaintiff but that plaintiff repeatedly
thwarted those efforts by, inter alia, refusing to
return text messages.
Judicial Notice. The trial court took judicial notice,
from Google Maps, of the distance between where
defendant said he was on the day of the burglary and
the victims’ home.
Ineffective Assistance. Defense counsel’s failure to
investigate defendant’s Facebook account was not
ineffective assistance of counsel. [Because defendant
didn’t move for a new trial or a Ginther hearing, no
record was developed in the trial court to explain why
trial counsel did not investigate the Facebook
account. Defendant could not meet his burden of
ineffective assistance.]
Admissibility. The Court held that testimony by the
victim’s aunt that she told the victim about a
Facebook message received from an adult who had
previously had a relationship with the defendant did
not constitute inadmissible bad-acts evidence under
MRE 404(b).
Probity. Social media in this case involved text
messages from the defendant to each victim - which
was part of the evidence and testimony that the Court
referenced in its opinion.
Authentication. In addressing the issues of social
media, along with defendant’s claims of ineffective
assistance of counsel, the Court held, among other
things, that the prosecutor satisfied her burden of
authenticating the electronic communications
MICHIGAN CASES INVOLVING SOCIAL MEDIA, JANUARY 2014-APRIL 2015
Compiled by Brian Wassom & Karen Gooze, Honigman Miller Schwartz and Cohn LLP
CITATION
JUDGE(S)
People v Salters, 2014
Mich App LEXIS 625
(Apr 8, 2014)
Judges Stephens, Saad and
Boonstra
People v Smith, 2014
Mich App LEXIS 599
(Apr 1, 2014)
Judges Gleicher, Saad and
Fort Hood (Dissent by Judge
Gleicher.)
People v Jones, 2014
Mich App LEXIS 242
(Feb 11, 2014)
Judges Whitbeck, Hoekstra
and Gleicher
12
TYPE OF CASE
SOCIAL MEDIA HOLDING
admitted at trial (e-mails and Facebook posts). The
messages presented contained defendant’s identifying
information as the sender and the victim’s testimony
that she received the messages and believed they
came from defendant. MRE 901(a) provides a lower
threshold for admissibility than defendant requests:
“The requirement of authentication as a condition
precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in
question is what the proponent claims.” Anderson, at
*7. Also, MRE 903 makes it unnecessary to present
the testimony of a subscribing witness to authenticate
the evidence. Id.
Criminal (Armed
Admissibility. Text messages from the victim to the
Robbery, Assault with
defendant’s cousin were admitted into evidence. The
Intent to Murder, Felony defendant, on appeal, argued that the trial court erred
Firearm, etc.)
in admitting the content of the text messages, which
denied him his right of confrontation. However, the
Court, in its discussion of that constitutional issue,
didn’t address the text messages.
Criminal (Armed
Probity. Facebook research performed by the victim,
Robbery, Home Invasion, immediately after he was robbed, was used by the
Felony Firearm, etc.)
victim to identify the name of the man who
committed the robbery. There were no issues on
appeal regarding the Facebook research; however,
there were other witness credibility issues and
ineffective assistance of counsel issues.
Criminal (Sex Offenders Probity. The Court held there was no prosecutorial
Registration Act,
misconduct and the prosecutor did not reference facts
Criminal Sexual
not in evidence in her argument when she said a
Conduct, Home
witness lied that she saw the complainant come out of
Invasion)
defendant’s home a month prior to the assault, based
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
People v Powell, 2014
Mich App LEXIS 222
(Feb 4, 2014)
Judges Murphy, Donofrio and
Fort Hood
Criminal (Conspiracy to
Commit 1st Degree
Murder)
People v Clemons, 2014
Mich App LEXIS 98 (Jan
21, 2014)
Judges Servitto, Murray and
Boonstra
Criminal (Armed
Robbery, Home
Invasion)
17102712.1
13
SOCIAL MEDIA HOLDING
on an old Facebook entry. [The witness testified she
identified the complainant based on a photo she
viewed on the Internet, the complainant’s daughter
testified the photo was two years old; that the photo
was a Facebook photo was a reasonable inference.]
Admissibility. The Court found that text messages,
sent from a co-conspirator to defendant, which were
admitted into evidence, were not testimonial in nature
and did not implicate the constitutional right of
confrontation. Also, the text messages fell within the
parameters of the hearsay exception (MRE
801(d)(2)(E)).
Probity. The Court held that the evidence presented at
trial, including text messages between defendant and
the other perpetrator, proved beyond a reasonable
doubt that defendant aided and abetted the other
perpetrator in the commission of the crimes.