Opinion
No. 352594 No. 353230
02-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. STEVEN ROBERT CRIGLER, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CAROL LASHAN ADAMS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-005922-01-FH Wayne Circuit Court
LC No. 18-005922-02-FH Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ. PER CURIAM.
In these consolidated appeals, defendants challenge their convictions for resisting and obstructing a police officer, arguing that the trial court failed to instruct the jury properly, and arguing that their trial attorneys were ineffective for failing to request an instruction that they had the right to resist an unlawful arrest. Finding no merit in defendants' arguments, we affirm.
I. BACKGROUND
A. THE INCIDENT
These cases arise from the Detroit Police Department's efforts to execute a court order on June 12, 2018, at a residential home in the City of Detroit. Defendant Carol Lashan Adams was at home with a number of other individuals, including two of her children, Lashan Adams and defendant Steven Robert Crigler. Lashan was 22 and Steven was 18 years old. The police officers were attempting to execute a court order for the removal of a child from the home, as the result of a matter involving Children's Protective Services.
For the sake of clarity, because these cases involve multiple family members and because Carol and Lashan share the same last name, this opinion will refer to all of the defendants by their first names.
Officer Nicholas Haupt, Officer Taharka Iyi, and Sergeant Tremayne Burton all testified that, when they arrived at the home, they and their fellow police officers announced their presence; all of the police officers were in full uniform, with their badges visible. Officer Haupt could hear voices inside the home, he could see individuals through the window, and he estimated that there were approximately six to eight people inside the home. According to Officer Haupt, an occupant of the home came to the window and spoke with the Sergeant Burton, who showed her the court order, and explained that the order required officers to enter the home. Despite repeated efforts on the part of the police officers to communicate with those inside, the occupants did not open the door.
Sergeant Burton testified that when he arrived at the home to carry out the court order, he spoke with two or three women through a side window. Sergeant Burton informed the women that he had a court order and what it required, and he attempted to show them the order. One of the women climbed out the window, and he showed her the order. He repeatedly notified the individuals who remained inside the home that he had a court order to enter, and told them that if they opened the door, he would also show them the order. He testified, however, that the occupants of the home were "non-compliant" and "hostile."
Officer Iyi testified that it was "not a calm situation" inside the home, but was an "extremely chaotic event," and that he could hear the occupants of the home screaming. Officer Iyi stated that the officers faced a "dangerous situation" because they did not know what was inside the home or who was on the other side of the door. Both Officer Iyi and Officer Haupt estimated that there were about 12 officers present at the scene. Officer Haupt explained that the first police officers to arrive were forced to call for more backup because the occupants of the home began fighting with police, and more officers were needed to secure the scene.
Officer Haupt testified that, because no one inside the home was willing to open the door, the officers had to break down the door to gain entry. Officer Iyi testified that, while several officers were focused on gaining entry to the home through the back door, a woman climbed out a window and started screaming at the officers. Because Officer Iyi was afraid that she would try to interfere with the other officers' efforts to break down the door, he told the woman to stop screaming and to stand against the wall of the house. Officer Iyi later instructed the woman to sit in one of the police cruisers, but when she ignored his commands and continued screaming, he escorted her to a police cruiser.
Officer Haupt was assigned the task of breaching the back door, and he used different tools to do so, including a sledge hammer and a pry bar. The door did not open readily, even with the use of those tools, and it took some time to force it open. Officer Haupt estimated that it took about ten minutes for him to break down the door, and stated that it was a "strenuous exercise." Officer Haupt admitted that he was "exhausted" from the exertion of breaking down the door, but he denied that he was angry. Officer Iyi confirmed that it was "very difficult" for the police officers to break down the door, in part because someone was standing on the other side of the door, pushing on it. He stated that the officers were eventually able to remove the door from its hinges, but that it took between three and five minutes to do so.
When the officers finally broke down the door, they found that occupants of the home were using their bodies to block the doorway, continuing to deny officers access to the home. Officer Iyi testified that, once police removed the door, they were "met by several people standing in the doorway, not allowing us in." Officer Haupt likewise explained that the occupants of the home "just kind of held themselves at the door, and blocked it," and "they didn't want to come out, so, we had to forcefully pull them out," before police could enter the home. Officer Haupt stated that "a lot of force" was necessary because the individuals were holding onto the door frames and "making a blockade, so that we couldn't go through." Officer Nicholas Murphy further testified that, once the door was physically removed, he saw a male suspect standing near the door, holding a sledge hammer. Officer Murphy pulled his firearm and ordered the suspect to drop the sledge hammer. When the suspect did so, Officer Murphy holstered his firearm.
Sergeant Burton testified that, when the other officers removed the door to the home, he saw that Carol was standing in the doorway, "blocking our way . . . telling us we couldn't come in, and [she] wouldn't move." Officer Iyi identified both Carol and Steven as two of the individuals who were blocking police entry through the doorway into the home. He testified that both of them had wedged themselves in the doorway, while yelling and screaming, trying to prevent officers from entering the home. To gain entry, the officers had to "physically remove them" from the doorway.
Because Carol was "standing in the door" and "wedging herself in the door," Officer Iyi asked her to come out. Carol did not do so, but was "resisting, and struggling," and Officer Iyi needed the help of Officer Owen Hall to physically remove her from the doorway. Officer Iyi grabbed one of Carol's arms, and Officer Hall grabbed the other, and they removed her from the doorway, brought her outside, took her down to the ground, and handcuffed her. The officers gave Carol multiple commands to put her hands behind her back, but she refused to do so. According to Officer Iyi, Carol was moving around and struggling, and it "wasn't easy" to secure her in handcuffs. According to Officer Murphy, it took three police officers to handcuff Carol. At the time, Carol was "kicking a lot," and Officer Murphy "sat on her legs, so she couldn't kick any more." Officer Stephanie Toma also testified that Officer Hall was having a hard time getting Carol into handcuffs, and she had to assist.
When officers were attempting to pull Carol out of the home, Officer Murphy saw that Lashan was holding on to Carol from the other side, attempting to prevent the officers from removing Carol from the doorway and attempting to prevent other officers from entering the home. Officer Toma also testified that she saw Lashan inside the home, holding a child while "yelling and screaming." While Carol was standing in the doorway with her arms out, "blocking anyone from getting in, or coming out," Officer Toma saw Lashan standing behind Carol in the doorway. According to Officer Toma, she told Lashan that the police had a court order and that she had to come out of the house, but Lashan did not comply, and Lashan began resisting orders given to her by Officer Hall. Officer Murphy physically removed Lashan from the home; Lashan was "wrestling" with him as he tried to get her to put her hands behind her back, and Officer Toma had to assist him in handcuffing Lashan.
Officer Haupt testified that Steven was also bracing himself in the doorway "so that we couldn't either move past him, or get him to move out." Officer Haupt admitted that Steven never verbally threatened or "attempted to attack" him, but stated that Steven made it difficult for officers to enter the home to execute the court order, and that it took multiple police officers to pry Steven's hands off the doorframe. Officer Iyi testified that, just as police managed to handcuff Carol, he noticed Steven pulling Officer Danielle Glass into the house. To assist Officer Glass, he grabbed Steven by the leg, pulled him out of the house, and handcuffed him. After he was on the ground, Steven continued yelling and tried to stand up, ignoring Officer Iyi's commands that he stay on the ground.
While Officer Iyi was dealing with Steven, Carol was able to remove one of her hands from the handcuffs. Because Officer Iyi was occupied with handcuffing Steven, other officers resecured Carol in handcuffs. Officer Toma testified that, after Carol was handcuffed, she started shaking, and one of her sons said that she was having a seizure. Police called emergency medical assistance to the home to assist Carol.
B. THE TRIAL
Carol, Steven, and Lashan were all charged with resisting and obstructing a police officer. Steven was charged with two counts; the first count referred to Officer Iyi, and the second count referred to Officer Glass. Carol was also charged with two counts; the first count referred to Officer Iyi, and the second count referred to Officer Hall. Lashan was charged with one count, which referred to Officer Murphy. Carol, Steven, and Lashan were each represented by separate counsel, but they were tried before a single jury.
Before the trial began, the trial court instructed the jury regarding the elements of the crime of resisting and obstructing a police officer:
[F]irst, that the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered Police Officer Taharka Iyi . . .
Obstruct includes the use, or threatened use, of physical interference, or force, or a knowing failure to comply with a lawful command.
The defendant must have actually resisted by what he said, or did, but physical violence is not necessary.
* * *
Second, that the defendant knew, or had reason to know, that Police Officer Taharka Iyi, was a Police Officer performing his or her duties, at the time.
Third, that Police Officer Taharka Iyi, gave the defendant a lawful command, was making a lawful arrest, or was otherwise performing a lawful act.The trial court repeated this instruction for each of the three defendants, substituting as necessary the name of the defendant at issue and the name of the police officer whom the defendant allegedly resisted, obstructed, or opposed.
In opening statements, Steven's attorney admitted that "there was a legitimate Court Order, for Police Officers to be at this particular address." He asked the jury, however, to think about what they watched on television, of police officers engaging in "violence," "not exercising proper discretion, in arresting people," and "shooting people . . . unarmed people [for] inconsequential things," and he told the jury that they were "not permitted" to hold police officers in "high regard." Steven's attorney argued that his client's conduct did "not rise to a criminal offense" because of his age and slight build. He also argued that the number of police officers who responded to defendants' home was "a little bit of an over kill" and he accused the police officers of being "very, very upset" by the effort required to break down the door, resulting in the police officers' decision to band together and engage in a "conspiracy" to retaliate against Carol, Steven, and Lashan by charging them with crimes, trying to "enhance the charges," and trying to "embellish what took place there."
Carol's attorney also conceded that the police had a valid court order, and she accused the police officers of being "excessive" because they chose to "invade" defendants' home and "[c]rash the door down, rip the screen off, tear the frame, grab my client." Finally, Lashan's attorney argued that his client was "upset," "confused," and "scared" and that her actions did not rise to the level of criminal conduct.
As explained above, the police officers came to the defendants' home to execute a court order for the removal of a child from the home. The trial court declined to admit the court order into evidence, ruling that the jury could not be informed regarding the contents of the order because that information would be more prejudicial than probative. The prosecutor and attorneys for all defendants, however, stipulated that the police were executing a valid court order to enter the home.
The prosecutor played for the jury the dashcam video from the patrol car shared by Officer Iyi and Officer Glass, as well as the bodycam videos from Officer Glass and Officer Murphy, and the trial court admitted the videos into evidence without objection. The police officers called as witnesses by the prosecutor testified as described above. None of the three defendants called any witnesses to testify, and they all waived their right to testify on their own behalf.
In his closing argument, Steven's attorney criticized the police officers' actions at defendants' home, claiming that the number of officers present at the home "was an over kill, for crying out loud. A horrible over kill." He also argued that the police officers embellished their version of events because they wanted to "get at, back at somebody," and argued that the police had "no right" to arrest Steven because he did "nothing, physically, or whatever, or verbally" to the police officers. Furthermore, he argued that Steven "lives with his mother," but "he is not the one that controls that household" and that he had no "responsibility to overrule his mother" and "open the door" for the police officers. Steven's attorney did not argue that the police officers engaged in excessive force, and did not argue that his client had the right to resist an unlawful arrest.
In her closing argument, Carol's attorney admitted that "there's no dispute, as I told you on the opening, that they [police] had the right to use force, to enter your home." Carol's attorney argued, however, that the police had used excessive force to enter the home, that they had been "aggressive" from the beginning of the incident, and that they weren't "being pleasant." She also argued that the police officers' actions were "unnecessary to the degree that you're rippin' somebody's house apart," and argued that the jury should acquit Carol because the police "did somethin' wrong." Carol's attorney did not argue that her client had the right to resist an unlawful arrest.
In her closing argument, Lashan's attorney conceded that Lashan tried "to prevent [Carol] from being taken out of the home" by police, but argued that this conduct was "not something that rises to the level of criminal conduct." Lashan's attorney did not argue that the police officers engaged in excessive force, and did not argue that her client had the right to resist an unlawful arrest.
After closing arguments, the trial court again instructed the jury regarding the elements of the crime of resisting and obstructing a police officer:
To prove this charge, the Prosecutor must prove each of the following elements beyond a reasonable doubt:The trial court repeated that instruction for each of the three defendants, substituting as necessary the name of the defendant at issue and the police officer whom the defendant allegedly resisted, obstructed, or opposed.
First, that the defendant assaulted, or battered, wounded, resisted, obstructed, opposed, or endangered Police Officer Iyi, who was a Police Officer.
Obstruct includes the use, or threatened use of physical interference, or force, or a knowing failure to comply with a lawful command.
The defendant must have actually resisted by what he, he said, or did, but physical violence is not necessary.
Second, that the defendant knew, or had reason to know that Police Officer Iyi was a Police Officer, performing his duties, at the time.
Third, that Police Officer Iyi gave the defendant a lawful command, was making a lawful arrest, or was otherwise performing a lawful act.
After excusing the jury to its deliberations, the trial court verified that none of the defendants had any objections to the jury instructions given:
The Court: Okay. We're outside the presence of the jury. Uh, counsel, uhm, I did call you forward, after I read the instructions, and can you verify, on the
record, uh, that you did not have any objections to the instructions, or the way in which the, uhm, instructions were read?
[The Prosecutor]: No objection, Your Honor.
Mr. Simmons: None, on behalf of Crigler.
Ms. Erwin: None, of [sic] behalf of Carol Adams.
Ms. Medina: And none on behalf of Miss Lashan Adams.
In Docket No. 352594, the jury convicted Steven of two counts of resisting and obstructing a police officer, MCL 750.81d, and the trial court sentenced him to serve 24 months of probation. Steven now appeals as of right. In Docket No. 353230, the jury convicted Carol of two counts of resisting and obstructing a police officer, and the trial court sentenced her to serve 24 months of probation, with the first 30 days in jail, with credit for four days served. Carol now appeals by leave granted. People v Adams, unpublished order of the Court of Appeals, entered August 11, 2020 (Docket No. 353230). This Court consolidated the two appeals to advance the efficient administration of the appellate process. People v Crigler, unpublished order of the Court of Appeals, entered August 18, 2020 (Docket No. 352594); People v Adams, unpublished order of the Court of Appeals, entered August 18, 2020 (Docket No. 353230).
Additionally, the jury convicted Lashan on one count of resisting and obstructing a police officer. Lashan filed a delayed application for leave to appeal from her conviction, which this Court denied. People v Adams, unpublished order of the Court of Appeals, entered February 11, 2020 (Docket No. 351099). Thus, no issues regarding Lashan's conviction are before this Court in these consolidated appeals.
II. ANALYSIS
In Docket No. 352594, Steven argues that the trial court erred by failing to instruct the jury on all of the elements of the crime of resisting and obstructing a police officer. Specifically, Steven argues that the trial court did not instruct the jury that the prosecutor bore the burden of proving that the police officers' actions were lawful. In addition, Steven argues that the trial court did not instruct the jury that a citizen has the right to resist an unlawful arrest. In the alternative, Steven argues that his trial counsel was ineffective in failing to request an instruction that a citizen has the right to resist an unlawful arrest. In Docket No. 353230, Carol argues that her trial counsel was ineffective in failing to request such an instruction. We conclude that defendants' arguments are without merit.
A. JURY INSTRUCTIONS
At the outset, we note that Steven waived appellate review of the adequacy of the jury instructions regarding the elements of the crime of resisting and obstructing a police officer. Steven's trial counsel expressly approved of the instructions given by the trial court. Where a defendant's trial counsel expressly approves the jury instructions given by a trial court, the defendant has waived any error with regard to those instructions, even if the instructions given improperly omit an element of the crime. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). "By expressly approving the jury instructions, defendant waived review of the alleged instructional error." People v Head, 323 Mich App 526, 537; 917 NW2d 752 (2018). "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (cleaned up). Accordingly, we will not review Steven's stand-alone claim involving the jury instructions.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Both defendants claim that their respective trial attorneys rendered ineffective assistance because they failed to request a jury instruction stating that defendants had the right to resist an unlawful arrest. To establish that defense counsel was ineffective, "a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). Counsel's performance is presumptively effective, and a "defendant bears a heavy burden to prove otherwise." People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). To preserve an issue of ineffective assistance of counsel, a defendant must move in the trial court for a new trial or an evidentiary hearing, People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012), or file a motion to remand in this Court under People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Because neither defendant filed such a motion, this issue is unpreserved for appellate review. "Where claims of ineffective assistance of counsel have not been preserved, our review is limited to errors apparent on the record." People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
In Docket No. 352594, Steven argues in his appellate brief that his "defense to the resisting-arrest charges was that he had a right to resist because the police acted with excessive force, and thus unlawfully." This argument is not supported by the record. Steven's defense counsel argued that his client did "nothing, physically, or whatever, or verbally" to the police officers and that his actions did not rise to the level of a criminal offense because of his age and slight build. Steven's theory of defense was not that he resisted arrest, while having a legal right to do so. Rather, Steven's theory of defense was appealing to the jury's potential sympathy for Steven because of his age and size, and attempting to convince the jury to adopt an anti-police bias.
"In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy," People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012), and the proper "inquiry is not whether a defendant's case might conceivably have been advanced by alternate means," People v LeBlanc, 465 Mich 575, 582; 640 NW2d 246 (2002).
Reviewing courts are not only required to give counsel the benefit of the doubt with this presumption, they are required to affirmatively entertain the range of possible reasons that counsel may have had for proceeding as he or she did. That
inquiry is objective; although the reviewing court may not engage in a post hoc rationalization of the counsel's decision-making that contradicts the available evidence, neither may courts insist that counsel confirm every aspect of the strategic basis for his or her actions. Accordingly, a reviewing court must conclude that the act or omission of the defendant's trial counsel fell within the range of reasonable professional conduct if, after affirmatively entertaining the range of possible reasons for the act or omission under the facts known to the reviewing court, there might have been a legitimate strategic reason for the act or omission. [People v Gioglio (On Remand), 296 Mich App 12, 22-23; 815 NW2d 589 (2012), vacated not in relevant part, lv den in remaining part, 493 Mich 864 (2012) (cleaned up).]See also People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (recognizing that courts must affirmatively entertain the range of possible reasons for defense counsel's act or omission). "Failing to request a particular jury instruction can be a matter of trial strategy." People v Dunigan, 299 Mich App 579, 584; 831 NW2d 243 (2013). In this case, defense counsel chose to portray Steven as an innocent youth who had no ability to control his mother's actions and who did nothing that amounted to a criminal offense. Because requesting an instruction that Steven had the right to resist arrest would have conflicted with this theory of defense, and the jury could have found such a claim unsupported by the extensive video evidence regarding the events at issue in this case, we conclude that Steven's counsel did not render ineffective assistance by failing to request the instruction now desired.
In Docket No. 353230, Carol admits in her appellate brief that the police had a valid court order that "authorized the officers to gain entry to the house, by force if necessary," and admits that she "denied entry to the officers" by "standing in the doorway . . . blocking the officers' entry." Carol argues that her trial counsel's "theory of defense was simple. She asked the jury to acquit because the police used excessive force." Contrary to her argument, Carol's trial counsel did not attempt to persuade the jury that Carol was resisting an unlawful arrest. Counsel did suggest that the police used more force than was truly necessary. But the argument was made in broad terms; i.e., counsel suggested that the entire ordeal was excessive. Counsel suggested that there were other ways to go about retrieving the child that would not have required police to surround the house and force entry (although counsel did not suggest what other ways would have been effective). Counsel essentially asked the jury for a verdict of acquittal as an "equitable" decision, one that would recognize that both the police and defendant could have acted differently. This was not an argument that the police used excessive force and that Carol was resisting that illegal use of force; it was an attempt (albeit unsuccessful) to appeal to the jury's sympathies.
In any event, it does not appear that the instruction that Carol now suggests should have been given would have been warranted by the facts of this case. A person may resist an unlawful arrest. People v Quinn, 305 Mich App 484, 490; 853 NW2d 383 (2014). Indeed, the lawfulness of the arrest is an element of the crime of resisting and obstructing a police officer. Id. at 491-492. Generally, challenges to the lawfulness of an arrest focus on whether an arrest is constitutionally authorized, not on the manner of the arrest itself. See, e.g., id. at 492-493 (evaluating whether the evidence presented at trial was sufficient to establish reasonable suspicion to effectuate a stop). There is authority standing for the proposition that one may defend a resisting-and-obstructing charge by proving that the officer or officers effectuating the arrest used excessive force. See People v Baker, 127 Mich App 297, 299; 228 NW2d 391 (1983) ("Defendant did not deny that he used force to resist the arrest. Rather, he claimed that the arrest was unlawful in that the degree of force used by the officer was excessive. Those claims, if believed, would have constituted complete defenses to the charge.").
In this case, however, no such instruction was warranted. This was not a situation where Carol was attempting to defend herself from what amounted to an assault and battery by police. Rather, Carol forced Officers Iyi and Hall to physically remove her from the doorway when she chose to block it, despite being given a lawful command to allow the officers to enter the home pursuant to a valid warrant. She then resisted being handcuffed, necessitating the use of force to restrain her long enough to place handcuffs on her. Carol later managed to escape her handcuffs, and forced the officers to use physical means to restrain her while she was again placed in handcuffs. In every instance where force was used by the police, it was responsive to defendant's actions, not the other way around. Carol did not resist the use of excessive force; she resisted and obstructed police, who were then forced to use physical means to restrain her to ensure their own safety. A request for an instruction on resisting the use of excessive force would have been futile, and thus, trial counsel was not ineffective for failing to seek such an instruction. See People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004) ("Counsel is not ineffective for failing to make a futile objection.").
Finally, even assuming arguendo that an instruction on resisting an unlawful arrest should have been requested, we conclude that there is no reasonable probability that, but for the lack of such instruction, the results of the proceeding would have been different. As discussed above, the trial court instructed the jury that, to find either defendant guilty of the crime of resisting and obstructing a police officer, the jury was first required to find that the police officer in question gave the defendant a lawful command, was making a lawful arrest, or was otherwise performing a lawful act. Thus, to convict defendants, the jury had to conclude first that the officers were acting lawfully, and this conclusion would have undercut one of the necessary elements of defendants' proposed instruction—that the arrest was unlawful. Because the jury in this case necessarily determined that defendants did not have the right to resist the police officers' commands, the police officers' execution of the admittedly lawful court order permitting entry into the home by force, or defendants' own physical arrests, defendants suffered no prejudice from their trial counsels' failure to request the jury instruction on resisting an unlawful arrest.
Affirmed.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Jonathan Tukel