Opinion
351785
09-09-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAVIER CLINTON WEBB, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2019-001958-FH
Before: Boonstra, P.J., and Cavanagh and Gadola, JJ.PER CURIAM
A jury convicted defendant, Javier Clinton Webb, of assaulting, resisting, or obstructing a police officer (resisting arrest), MCL 750.81d(1). Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to serve 1 to 15 years' imprisonment. Defendant appeals as of right. We affirm.
I. FACTS
Defendant's conviction arises from an incident that occurred in the early morning hours of June 3, 2019. The incident took place at the home defendant shared with his girlfriend, Danielle DeCoste (Danielle), and her three children. Danielle's sister, Nicole DeCoste (Nicole), and her three adult children, also lived at the home.
Defendant and Danielle are parents to a son who is referenced in this opinion, and who was three years old at the time of the June 3, 2019 incident.
During defendant's trial, Nicole testified that on June 3, 2019, she was sleeping on the couch when she was awakened by an argument between Danielle and defendant in Danielle's bedroom over missing shoes that belonged to defendant. According to Nicole, defendant questioned Danielle about the missing shoes; at that point, Danielle came out of her bedroom and loudly asked everyone in the home where defendant's shoes were and mentioned that defendant had "mace and a blade." Nicole then observed Danielle return to her bedroom, and heard a scream and the bedroom door slam and lock. Immediately after, Nicole heard defendant threaten Danielle, which led to Nicole attempting to open Danielle's bedroom door and kick it down, but her attempt was unsuccessful.
From there, Nicole stated that she retrieved her cell phone and began video recording. Danielle then came out of the bedroom, and Nicole pushed the bedroom door open, and observed defendant sitting on the bed with pepper spray in his right hand and his three-year-old son in his other arm. Nicole testified that defendant pointed pepper spray in her direction as she stood in the doorway with her children standing behind her and Danielle beside her. Nicole also claimed that while defendant attempted to retrieve a knife from a dresser drawer, he hit Danielle. According to Nicole, defendant was able to get the knife out of the dresser drawer and allegedly said that he "wanted to stab everyone." At some point, Nicole's daughter called the police.
According to Danielle, she admitted at defendant's trial that she and defendant argued about his missing shoes. Danielle agreed that she expressed defendant's discontent to those in the home at that time. Danielle also agreed that Nicole kicked her bedroom door in an attempt to open it. However, in contrast to Nicole's testimony, Danielle stated that her bedroom door was never locked and that Nicole did not try to open it. In addition, Danielle testified that defendant never attempted to prevent her from leaving the bedroom. Further, Danielle testified that defendant pointed pepper spray at Nicole after the bedroom door was opened, and Nicole stood in the doorway and pointed her own pepper spray at defendant.
Danielle denied that defendant hit her and that she tried to prevent him from retrieving a knife from the dresser drawer. Instead, Danielle testified that defendant was trying to collect his belongings from the dresser before going outside. Danielle also alleged that Nicole's son was armed with a knife during the incident, and denied that defendant threatened to kill her while she was sleeping.
Three Chesterfield Township police officers responded to the incident: Officer Jason Kline, Officer Eric Meier, and Officer Harry Otal. Upon arrival, the officers observed a tense situation involving Nicole, Danielle, and defendant. Officer Kline, the primary investigating officer, interviewed Danielle and Nicole inside the residence; Officer Meier assisted Officer Kline; Officer Otal stayed outside with defendant.
Officer Kline testified Danielle informed him that defendant refused to let her leave the bedroom and that he locked the bedroom door. Danielle also told Officer Kline that when she attempted to open the door with both hands and leave the bedroom, defendant hit her arms down away from the bedroom door. Defendant then retrieved a pocketknife from the dresser drawer "and threatened to kill Danielle in her sleep." Nicole also spoke with Officer Kline, and her story was the same as she testified to at defendant's trial.
In addition, Nicole showed Officer Kline the cell phone video recording. Officer Kline testified that "in the video, I saw the assault when Danielle was trying to open the door, I saw [defendant] strike her arms down away from the door. I saw [defendant] standing in the doorway with a knife in his hand." Based on this, Officer Kline informed Officer Meier and Officer Otal that defendant would be arrested for domestic violence.
The cell phone video recording was also shown to the jury during defendant's trial.
Officer Kline and Officer Meier proceeded outside when Officer Kline informed defendant that he was under arrest for domestic violence. Officer Kline ordered defendant to turn around and put his hands behind his back. According to all three officers, defendant refused. Officer Kline grabbed defendant's right arm, and forced defendant to turn around. Officer Kline then handcuffed defendant's right wrist, after which defendant announced that he was not going to jail. Defendant pulled away from Officer Kline and struck his right elbow toward Officer Meier, but missed him. Using his body weight, defendant pushed Officer Kline backward and took off with the handcuff still attached to his right wrist.
Officer Kline ran after defendant and Officer Meier deployed his taser. The taser struck defendant, and he fell to the ground. The officers ordered defendant to put his hands behind his back, but defendant ignored their commands. According to Officer Meier, defendant started to raise his legs up as if he were about to take off again, so Officer Meier tased defendant a second time to ensure defendant was subdued. At that point, Officer Kline was able to pull defendant's left wrist behind his back and cuff both of defendant's arms.
Defendant testified in his own defense. Defendant claimed that Nicole possessed a can of pepper spray that she displayed after waking up and that she started yelling at Danielle and him. Defendant admitted slamming the bedroom door on Nicole after seeing the pepper spray, but claimed that he did not lock it. Defendant also denied forcibly keeping the bedroom door closed, but admitted pointing pepper spray at Nicole while holding his three-year-old son. Defendant further testified that he pulled an unopened pocketknife out of the dresser drawer in response to Nicole's son, who allegedly had a knife.
Moreover, defendant stated that after brandishing the unopened pocketknife, he placed it back in the drawer. Defendant also denied expressing his desire to stab everyone. Defendant testified that after gathering his belongings, he pushed through Danielle at the doorway because he wanted to leave. Afterwards, defendant waited on the porch until the police arrived. At the moment of his arrest, defendant claimed that Officer Kline released the cuff on his right wrist after Danielle came outside and stated that she would not cooperate with the criminal investigation. After Officer Kline released the cuff, defendant testified that he started to walk off and was then tased.
Defendant was charged with resisting arrest and domestic violence. A jury found defendant not guilty of domestic violence, but guilty of resisting arrest. Defendant was sentenced, as a fourth-offense habitual offender, to serve 1 to 15 years' imprisonment. After sentencing, defendant filed a motion for new trial, which was denied by the trial court. Defendant now appeals to this Court.
MCL 750.812.
II. ANALYSIS
On appeal, defendant contends that through instructional error the trial court denied him a fair trial and violated his constitutional right to present a defense. Defendant further contends that the prosecutor committed misconduct and denied him the right to a fair trial. In the alternative, for each contention, defendant argues that his trial counsel was ineffective. Lastly, defendant argues that the jury verdict went against the great weight of the evidence.
A. INSTRUCTIONAL ERROR
Defendant argues that the trial court erred when it failed to provide a specific instruction that would have allowed the jury to consider defendant's self-defense claim when determining whether Office Kline had probable cause to arrest defendant for domestic violence. We disagree.
A defendant must object or request a given instruction in order to preserve an instructional error for review. MCL 768.29; see People v Gonzalez, 256 Mich.App. 212, 225; 663 N.W.2d 499 (2003). Here, defendant did not object to the instructions provided to the jury before deliberations. Defendant also did not request a specific instruction that would have allowed the jury to consider self-defense when examining the issue of probable cause. Thus, this issue is not preserved.
Our Court reviews unpreserved arguments for plain error affecting substantial rights. People v Seals, 285 Mich.App. 1, 4; 776 N.W.2d 314 (2009). A defendant in a criminal case must show that error occurred, "the error was plain, i.e., clear or obvious," and that the plain error affected his or her substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Callon, 256 Mich.App. 312, 329; 662 N.W.2d 501 (2003).
"A criminal defendant has a state and federal constitutional right to present a defense." People v Kurr, 253 Mich.App. 317, 326; 654 N.W.2d 651 (2002). When an instructional error directly affects a defendant's theory of defense, a defendant's due process right to present a defense may be infringed. Id. at 326-327. A trial court does not commit instructional error so long as it instructs the jury on all the elements of the crimes charged and on material issues, defenses, and theories for which there is supporting evidence. People v Canales, 243 Mich.App. 571, 574; 624 N.W.2d 439 (2000). No error occurs if the instructions as a whole cover the substance of the missing instruction. People v Messenger, 221 Mich.App. 171, 177-178; 561 N.W.2d 463 (1997).
In this case, defendant does not cite to the specific instruction that the trial court should have read to the jury or suggest how he would have edited the instructions given before deliberations. Nonetheless, a review of the record shows that the trial court properly presented the issues of probable cause and self-defense to the jury:
To make a lawful arrest of a person a police officer must have probable cause that the person committed domestic violence. Probable cause exists - excuse me. Probable cause to arrest exists where the facts and circumstances with an officer's knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution in their belief that the offense has been committed.
The defendant claims that he acted in lawful self-defense. A person has the right to use force to defend himself under certain circumstances. If a person acts in lawful self-defense, his actions are not [sic] justified, and he is not guilty of domestic violence. You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful self-defense. Remember to judge the defendant's conduct according to how the circumstances appeared to him at the time he acted. First, at the time he acted the defendant must not have been engaged in the commission of a crime. Second, when he acted the defendant must have honestly and reasonably believed that he had to use force to protect himself from the imminent unlawful use of force of another. If his belief was honest and reasonable, he could act at once to defend himself even if it turns out later that he was wrong about how much danger he was in. Third, a person is only justified in using the degree of force that seems necessary at the time to protect himself from danger. The defendant must have used the kind of force that was appropriate to the attack made and the circumstances as he saw them. When you decide whether the force used was what seemed necessary you should consider whether the defendant knew about any other ways of protecting himself, but you may also consider how the excitement of the moment affected the choice the defendant made. Fourth, the right to defend oneself lasts as long as it seems necessary for the purpose of protection. Fifth, the person claiming self-defense must not have acted wrongfully and brought on the assault. However, if the defendant only used words that does not prevent him from claiming self-defense if he was attacked.
The probable cause and self-defense instructions as a whole cover the substance of defendant's argument on appeal regarding instructional error. Although the trial court did not explicitly inform the jurors that they could consider whether Officer Kline had reason to believe defendant was acting in self-defense, the trial court's instructions imply that the jurors could. The probable cause instruction also did not limit what "facts and circumstances" were relevant to Officer Kline's probable cause determination.
Moreover, the trial court instructed the jury: "When you go to the jury room you will be given a written copy of the instructions you have just heard. As you discuss the case you should think about all my instructions together as the law you are to follow." [Emphasis added.] By reading the instructions as a whole, jurors could reasonably infer that they could consider whether Officer Kline had reason to believe defendant's alleged domestic assault was justified by self-defense, and the probable cause underlying defendant's arrest. Based on this, the jury was presented with instructions that addressed material defenses and theories regarding defendant's June 3, 2019 arrest. Accordingly, defendant's right to present a defense was not infringed. Therefore, the trial court did not commit plain error.
B. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed misconduct by impermissibly appealing to the "civic duty of jurors" and by misstating the law to the jury. We disagree. Because defendant failed to object to either instance of alleged prosecutorial misconduct, his arguments are unpreserved. Accordingly, this issue is reviewed for plain error affecting substantial rights. Seals, 285 Mich.App. at 4.
The prosecutor is generally free to argue the evidence and all reasonable inferences from the evidence as it relates to the prosecution's theory of the case. People v Matuszak, 263 Mich.App. 42, 53; 687 N.W.2d 342 (2004). However, the prosecutor may not make "civic duty arguments that appeal to the fears and prejudices of jury members or express their personal opinion of a defendant's guilt, and must refrain from denigrating a defendant with intemperate and prejudicial remarks." People v Bahoda, 448 Mich. 261, 282-283; 531 N.W.2d 659 (1995). Also, "[a] prosecutor's clear misstatement of the law that remains uncorrected may deprive a defendant of a fair trial." People v Grayer, 252 Mich.App. 349, 357; 651 N.W.2d 818 (2002). Comments such as these "will be reviewed in context to determine whether they constitute error requiring reversal." Bahoda, 448 Mich. at 283. Reversal is required only if the prosecutor's remarks operate to deny the defendant a fair and impartial trial. People v Watson, 245 Mich.App. 572, 594; 629 N.W.2d 411 (2001).
Here, defendant contends that the following remarks made by the prosecutor in closing arguments appealed to the civic duty of jurors:
In voir dire we talked a little bit about what society asks of people who are dealing with police officers, who are being placed under arrest and we all kind of agreed that yeah, okay, society requires us to comply with the officer's commands, that society requires us to not fight with police officers when we're being placed under arrest, to not run from them, and the reason for that is really safety for yourself so that you don't run and get injured, so that an officer doesn't have to use force and you end up getting injured, and so it's safety for the officers so they don't get injured chasing you down, so that they don't get injured in a scuffle with you. That's what we demand of people. You don't just get to decide you're going to fight back when police are arresting you, when police are giving you commands put your hands behind your back, I'm handcuffing you. You don't get to just run down the street until they forcibly stop you with a taser or tackle you or something like that.
Viewed in context, the challenged remarks constitute an explanation of one of the reasons why resisting arrest was made a crime. Although unrelated to defendant's guilt or innocence, the prosecutor made these remarks outside of his discussion of the specific elements of resisting arrest, specifically, after arguing why he believed it had been proven beyond a reasonable doubt that defendant was guilty of resisting arrest. Because of this, the prosecutor's remarks were harmless. See Grayer, 252 Mich.App. at 358 ("With regard to the prosecutor's remark concerning the reasons for the law, the remark was made outside the context of a discussion of the specific elements of the crime that need be proved and was therefore harmless.").
Defendant also contends that the prosecutor committed misconduct during closing arguments when he stated self-defense is irrelevant to probable cause. Specifically, the prosecutor argued:
You're going to get the use of non-deadly force instruction on self-defense, and it's going to tell you that if a person acts in lawful self-defense, his actions are justified, and he is not guilty of domestic violence. It doesn't make any reference to resisting and obstructing a police officer because that isn't a defense to that charge.
We went over these instructions earlier. I just want to point something out. For the resisting and obstructing charge, again, there's no reference to whether the defendant acted in self-defense or not because that's not part of the elements here.
For the determination of whether Officer Kline had probable cause to make an arrest, whether it was a lawful arrest or not. Again, there's no reference to domestic - or whether he was acting in self-defense in committing the domestic violence or not. There's nothing there about that because that isn't part of the elements. It really isn't part of the probable cause determination. It's whether a person of reasonable caution would have the belief that he committed the offense of domestic violence, not whether he did it and was acting in self-defense.
This is not a misstatement of the law. Indeed, the instructions for resisting arrest and probable cause do not include a self-defense element, as outlined to the jury before deliberations. Specifically, the probable cause instruction explained to the jury what constitutes a lawful arrest, a component of the third element for the crime of resisting arrest.
Self-defense is an affirmative defense under Michigan law. Once a defendant raises a self-defense claim and produces sufficient evidence to support a prima facie claim of self-defense, the burden shifts to the prosecutor to disprove self-defense beyond a reasonable doubt. People v Stevens, 306 Mich.App. 620, 630; 858 N.W.2d 98 (2014). But self-defense is not, as the prosecutor correctly stated in closing argument, an element of either of the crimes charged in this case. Furthermore, the prosecutor accurately stated that self-defense could be raised in reference to the domestic violence charge, but not, on the facts presented here, in reference to the resisting and obstructing charge, for the reasons the prosecutor stated relating to defendant's "civic duty" argument on appeal.
Furthermore, the trial court instructed the jury that the lawyers' statements and arguments are not evidence, and provided the following pertinent instruction to the jury:
It is my duty to instruct you on the law. You must take the law as I give it to you. If a lawyer says something different about the law, follow what I say. At various times I have already given you some instructions about the law. You must take all my instructions together as the law you are to follow. You should not pay attention to some instructions and ignore others. To sum up, it is your job to decide what the facts of the case are, to apply the law as I give it to you, and in that way to decide the case. [Emphasis added.]
This Court "must presume that the jury followed these instructions." People v Fyda, 288 Mich.App. 446, 465; 793 N.W.2d 712 (2010). Therefore, defendant was not denied a fair trial by the challenged remarks.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
In the alternative, as it relates to defendant's arguments regarding instructional error and prosecutorial misconduct, defendant contends that his trial counsel was ineffective. We disagree.
A criminal defendant preserves an ineffective assistance of counsel claim by moving for a Ginther hearing. People v Abcumby-Blair, ___ Mich.App. ___, ___; ___ N.W.2d ___ (2020) (Docket No. 347369); slip op at 8. In his motion for new trial, defendant requested a Ginther hearing. Accordingly, this issue is preserved.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
The United States and Michigan Constitutions guarantee that in all criminal prosecutions the accused shall enjoy the right to effective assistance of counsel. People v Kammeraad, 307 Mich.App. 98, 122; 858 N.W.2d 490 (2014). Arguments based on ineffective assistance of counsel present "a mixed question of fact and constitutional law." People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007) (quotation marks and citation omitted). "Findings on questions of fact are reviewed for clear error, while rulings on questions of constitutional law are reviewed de novo." Id.
To prove that his or her trial attorney was ineffective, "a defendant must show that (1) the lawyer's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for the lawyer's deficient performance, the result of the proceedings would have been different." People v Anderson, 322 Mich.App. 622, 628; 912 N.W.2d 607 (2018)." 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id., quoting Strickland v Washington, 466 U.S. 668, 694; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). We presume effective assistance of counsel; a criminal defendant "bears a heavy burden of proving otherwise." People v Schrauben, 314 Mich.App. 181, 190; 886 N.W.2d 173 (2016).
In this case, defendant has not satisfied his burden in establishing ineffective assistance of counsel. As discussed, the trial court did not commit instructional error and prevent defendant from presenting a defense. Because of this, the failure of defendant's trial attorney to object to the jury instructions or propose an alternative instruction regarding self-defense and probable cause does not fall below an objective standard of reasonableness. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
Moreover, defendant's argument that his trial attorney was ineffective for failing to object to two alleged instances of prosecutorial misconduct also fails. In the first instance, the prosecutor merely commented on the rationale behind criminalizing resisting arrest. Any objection by defendant's trial attorney would have been futile. See id. Further, defendant does not expand or provide this Court a with clear, concise analysis as to why his trial attorney was ineffective in response to either allegation of prosecutorial misconduct. "It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Mitcham v City of Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959).
D. WEIGHT OF THE EVIDENCE
Last, defendant argues that the jury's verdict went against the great weight of the evidence. Again, we disagree.
This Court reviews a trial court's decision on a motion for a new trial for an abuse of discretion. People v Gadomski, 232 Mich.App. 24, 27; 592 N.W.2d 75 (1998). A trial court abuses its discretion when it selects an outcome that is outside the range of principled outcomes. People v Kosik, 303 Mich.App. 146, 154; 841 N.W.2d 906 (2013). A trial court should grant a motion for a new trial only when "the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result." People v Lemmon, 456 Mich. 625, 642; 576 N.W.2d 129 (1998) (quotation marks and citation omitted). "Generally, a verdict may be vacated only when the evidence does not reasonably support it and it was more likely the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence." People v Lacalamita, 286 Mich.App. 467, 469; 780 N.W.2d 311 (2009). "The hurdle that a judge must clear in order to overrule a jury and grant a new trial is unquestionably among the highest in our law." People v Unger, 278 Mich.App. 210, 232; 749 N.W.2d 272 (2008) (quotation marks and citation omitted).
In this case, defendant maintains that his arrest was unlawful because the jury acquitted him of domestic violence. Defendant further concludes that he is entitled to a new trial based on speculation as to what the jury believed and his own testimony. However, defendant does not cite to any other portion of the trial court record. Defendant also does not cite to any mandatory or persuasive authority in support of his evidentiary argument. Such insufficient arguments cannot provide the grounds for this Court, or any trial court for that matter, to overrule a jury's verdict and grant a defendant, such as the one in the present matter, a new trial. See People v Bass, 317 Mich.App. 241, 276; 893 N.W.2d 140 (2016); see also Unger, 278 Mich.App. at 232. Moreover, the testimony of the officers, which the jury was free to credit over defendant's testimony, supported the jury's verdict. Because of this, the jury's verdict was not against the great weight of the evidence, and the trial court did not abuse its discretion when it denied defendant's request for a new trial.
Affirmed.