People v. Clark
| Decision Date | 21 July 2022 |
| Docket Number | 352874 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRADLEY NOLAN CLARK, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 18-008627-02-FH
Before: BOONSTRA, P.J., and GLEICHER and LETICA, JJ.
A jury convicted Detroit Police Officer Bradley Nolan Clark of common-law misconduct in office, MCL 750.505, and breaking and entering without permission, MCL 750.115. The jury acquitted Clark of more serious charges: second and third-degree home invasion, MCL 750.110a(3) and (4), and malicious destruction of property, MCL 750.377a(1)(d). The evidence presented insufficiently supported that Officer Clark possessed the necessary intent to commit misconduct in office and the trial judge made improper comments exhibiting bias against Officer Clark. These errors irreparably tainted the trial. We reverse Officer's Clark's convictions.
On January 22, 2018, Detroit Police Officer Clark, Officer Justin Lyons, and Sergeant Paul Glaza went to 22554 Pembroke in Detroit to find Michael Hopkins. The officers had opened an investigation into Hopkins on December 4, 2017. The mother of Hopkins' children, PC, reported that Hopkins had broken into her home and sent her threatening text messages. The threatening messages continued for several weeks and became more aggressive and violent over time. Hopkins also started stalking PC. During this period, Officer Clark secured a photograph of Hopkins and learned from the Secretary of State that the address listed on his driver's license was 22554 Pembroke. Officer Clark conducted surveillance at 22554 Pembroke, but never saw Hopkins. However, PC insisted that Hopkins lived at that address and had been driving a rented white SUV with out-of-state plates.
On January 22, 2018, PC came to the station in tears to report new messages threatening to kill her. The officers determined to visit 22554 Pembroke in an attempt to locate Hopkins.
Upon their arrival, they observed a white SUV with Arizona plates parked in the driveway. Officer Clark approached the front door, while Sergeant Glaza stood to the side in the front yard and Officer Lyons stood at the back corner of the house where he could see the home's side door and backyard.
Officer Clark testified that he was certain Hopkins was inside. When he knocked on the front door, Tashar Cornelius answered. Officer Clark inquired, "Is Michael here?" Cornelius did not immediately tell officers that he lived alone in the home or that he did not know Michael. Instead he merely said, "uh uh, no." Cornelius then told the officers to "do their research," which would reveal that the home was titled in his name, not that of "Michael's mother." Cornelius's driver's license did not list the Pembroke address as his residence. Cornelius claimed that he had rented the SUV for work. When Officer Clark asked him to get the keys and press the alarm button, Cornelius went inside and locked the door. He found the keys, sounded the vehicle's alarm, and returned to the front door. Officer Clark and Officer Lyons insisted they heard Cornelius talking to someone inside and believed that person to be Hopkins. Also during this time Officer Lyons asserted that he heard someone barricading the side door to the house. Later video footage revealed a board across that doorway.
Cornelius returned to the front door but would not allow the officers to enter because they did not possess a warrant. Cornelius attempted to shut the door, but Officer Clark put his foot in the doorway. He claimed to observe Cornelius put his hand behind his back, as if reaching for a weapon. When Cornelius successfully moved Officer Clark's foot and shut the door, Sergeant Glaza stated, "foot, foot, foot." Officer Clark understood this as an instruction to kick the door open. Officer Clark did so and ordered Cornelius to the ground. For approximately 30 minutes, the officers searched the small house for any other occupants (including the basement and attic), but no one else was inside. The officers found a taser that Cornelius, a felon, was not permitted to possess. They arrested Cornelius, but he was released without being charged 36 hours later.
Later investigation revealed that Cornelius had lived alone at 22554 Pembroke for four years and had rented the SUV. Cornelius did not know Hopkins; however, a couple of pieces of mail addressed to Hopkins had come to the house over the years. Cornelius simply threw them away. Cornelius's mother investigated and learned that Hopkins's mother had lived in the home about five years before the incident. Cornelius testified that repairs to the door cost between $400 and $500.
Officers successfully tracked Hopkins down later that day. He was at a friend's home and was, in fact, driving a rented white SUV with out-of-state plates.
Approximately 10 months later, Officer Clark was charged with several crimes related to his involvement in the entry and search at the Pembroke address.[1] Officers Clark and Lyons both testified at trial, and the bodycam footage from all three officers was presented.[2] As noted, the jury acquitted Officer Clark of second and third-degree home invasion and malicious destruction of property, but convicted him of common-law misconduct in office and breaking and entering without permission. The trial court sentenced Officer Clark to one year of nonreporting probation. He now appeals by right.
Clark first contends that the prosecution abused its discretion by charging him with common-law misconduct in office because the elements of that offense were covered by the unlawful entry statute, MCL 750.115. He further asserts that his trial counsel should have moved to dismiss the common-law charge.
Clark did not challenge the prosecutor's charging decision below and our review is limited to plain error. People v Propp, 330 Mich.App. 151, 169; 946 N.W.2d 786 (2019). "Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999) (quotation marks and citation omitted). The defendant bears the burden of showing "that the error affected the outcome of the lower court proceedings." Id. at 763.
Clark also did not challenge his counsel's performance below. He conceded on appeal that this issue can be reviewed from the existing record and that there is no need to remand for a hearing to develop the record further. To establish the right to a new trial based on the ineffective assistance of counsel, a defendant must satisfy two components: Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). To establish that counsel's performance was deficient, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. People v Solmonson, 261 Mich.App. 657, 663; 683 N.W.2d 761 (2004). To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceedings would have differed. Id. at 663-664.
The prosecutor is an officer of the executive branch of government and courts must tread lightly in interfering with the prosecutor's duties. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 N.W.2d 693 (1972). Courts may interfere with a prosecutor's charging decision "only if it appears on the record that they have abused the power confided in them." Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115, 121; 215 N.W.2d 145 (1974). This is a very high standard. Our role is to "protect[] against" "the danger of arbitrary and discriminatory law enforcement." People v Ford, 417 Mich. 66, 84; 331 N.W.2d 878 (1982). And "[p]rosecutors have broad discretion in determining" what charges to bring. Id. We may only find an abuse of the prosecutor's charging discretion where the prosecutor's" 'activities or decisions . . . are unconstitutional, illegal, or ultra vires.'" People v Barksdale, 219 Mich.App. 484, 487; 556 N.W.2d 521 (1996), quoting People v Morrow, 214 Mich.App. 158, 161; 542 N.W.2d 324 (1995). Employing lesser scrutiny would violate the separation of powers doctrine. Barksdale, 219 Mich.App. at 488.
We cannot conclude on this record that the prosecutor's charging decision was so egregious as to be "unconstitutional, illegal, or ultra vires." The prosecutor charged Officer Clark with the common-law offense of misconduct in office. Prosecution for this offense is permitted under MCL 750.505, which provides, "[a]ny person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony[.]" "The common-law offense of misconduct in office has been defined as' "corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office." '" People v Milton, 257 Mich.App. 467, 470-471; 668 N.W.2d 387 (2003), quoting People v Coutu, 459 Mich 348, 354; 589 N.W.2d 458 (1999), quoting Perkins &Boyce, Criminal Law (3d ed), p 543. Relevant to the current case, the prosecutor's charge would be "sustainable" if "it set[] forth" either "malfeasance, committing a wrongful act" or "misfeasance, performing a lawful act in a wrongful manner." Milton, 257 Mich.App. at 471. To ultimately convict...
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