Opinion
No. 131985.
March 28, 2007.
Appeal from the Court of Appeals No. 259087.
Summary Dispositions March 28, 2007.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse, in part, the judgment of the Court of Appeals, holding that defense counsel was ineffective for failing to request a limiting instruction regarding the consideration of the defendant's actions in resisting arrest as evidence of obstructing a police officer, and reinstate defendant's conviction for obstructing a police officer, MCL 750.81d. The record does not support the Court of Appeals conclusion that jurors were confused about whether the defendant's postarrest behavior could be considered in their deliberations on the charge of obstructing a police officer. As recognized by both the Court of Appeals majority and dissent, "the prosecutor consistently presented that his theory of the case was that the offense occurred when defendant attempted to get around Officer Porta before defendant was arrested." While evidence of the defendant's postarrest behavior was presented, it was used by the parties only to address the question of whether the defendant was the victim of police abuse. Therefore, there was no substantial likelihood of juror confusion justifying a reversal of the defendant's conviction pursuant to People v Kelley, 78 Mich App 769 (1977). Furthermore, as trial counsel clearly used the defendant's post-arrest acts to support the defense theory of police misconduct, the Court of Appeals clearly erred by concluding that there was no sound trial strategy that would include forgoing a limiting instruction pursuant to People v Kelley, supra. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court.