People v. Fareed

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM.
• Docket Number: 361651
• Decision Date: 29 February 2024
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY FAREED, Defendant-Appellant.

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY FAREED, Defendant-Appellant.

No. 361651

Court of Appeals of Michigan

February 29, 2024

UNPUBLISHED

Ottawa Circuit Court LC No. 21-044755-FH

Before: HOOD, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of one count of resisting or obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant to serve 24 to 180 months in prison. We affirm.

On August 6, 2021, Holland Public Safety Officers Santiago Magdaleno and Megan Rickertson approached an apartment building on West 13th Street in Holland in an effort to find defendant and to arrest him on an active warrant. The officers spoke to a woman outside the building and were in full police uniforms while standing near an enclosed stairway leading to defendant's apartment. The officers heard a man descending the stairs and saw that it was defendant when he got to the landing. Officer Magdaleno testified that he said, "Hey-hey, Anthony, stop, police," and defendant immediately turned around and began to run back up the stairway.

Officer Magdaleno ran after defendant and grabbed him by the waist. Both men fell onto the stairs, and Officers Magdaleno and Ricketson then struggled to place handcuffs on defendant. According to the officers, they repeatedly told defendant to stop, that they had a warrant for his arrest, and to put his hands behind his back. Both officers testified that defendant would not put his hands behind his back, and Officer Magdaleno testified that defendant seemed to be trying to pull his arms in front of himself in order to push himself off the stairs to keep running. After a struggle, the officers were able to handcuff defendant.

Defendant argues that the trial court erroneously instructed the jury when it failed to give the jury an instruction on specific intent and when it failed to give a specific-unanimity instruction.

To preserve an argument that the trial court erroneously instructed the jury, a party must challenge the erroneous instruction in the trial court. People v Czuprynski 325 Mich.App. 449, 466; 926 N.W.2d 282 (2018). If a party expresses satisfaction with the jury instructions as given the issue is waived, and there is no error to review. People v Kowalski, 489 Mich. 488, 503-504; 803 N.W.2d 200 (2011). After the trial court instructed the jury it asked the parties whether they had any objections to the instructions and whether the parties wished to place anything on the record. Defense counsel stated that he did not object to the instructions and did not wish to place anything on the record. For this reason, defendant's substantive claims of instructional error are waived. People v McDonald, 293 Mich.App. 292, 295; 811 N.W.2d 507 (2011) ("Defendant did not object to Dr. Loeckner's testimony and affirmatively stated that he had no objection to the admission of Dr. Abbas's notes. The former failure to object constituted mere forfeiture of an error, while the latter affirmative approval constituted a waiver."); People v Marshall, 298 Mich.App. 607, 616 n 2; 830 N.W.2d 414 (2012), vacated in part on other grounds 493 Mich 1020 (2013) ("Although defendant challenges the admissibility of this evidence as part of a separate issue on appeal, defense counsel expressly informed the trial court that he had no objection to the admission of the victim's clothing or the box of bullets found where defendant was staying. By affirmatively approving the admission of this evidence, defense counsel waived any error.").

Defendant also argues that defense counsel's failure to request an intent instruction and a unanimity instruction deprived him of the effective assistance of counsel. "The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). If there is no evidentiary hearing to develop defendant's claim of ineffective assistance of counsel, our review is limited to errors apparent on the record. People v Head, 323 Mich.App. 526, 538-539; 917 N.W.2d 752 (2018). "To establish ineffective assistance of counsel, defendant must first show that (1) his trial counsel's performance fell below an objective standard of reasonableness under the 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 Uphaus (On Remand), 278 Mich.App. 174, 185; 748 N.W.2d 899 (2008).

The prosecutor charged defendant with two counts of resisting or obstructing a police officer pursuant to MCL 750.81d(1), which states, in relevant part:

[A]n individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

Under MCL 750.81d(7)(a), "obstruct" means "the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command." Further, as set forth in MCL 750.81d(7)(b)(i), a "person" includes "[a] police officer of this state or of a political subdivision of this state ...."

This Court has held that, to sustain a conviction of resisting or obstructing a police officer under MCL 750.81d(1), the prosecutor must prove that "(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police officer, and (2) the defendant knew or had reason to know that the person that the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police officer performing his or her duties." People v Corr, 287 Mich.App. 499, 503; 788 N.W.2d 860 (2010). Jury instructions must contain the elements of a charged offense "and any material issues, defenses, and theories if there is evidence to support them." People v Jackson (On Reconsideration), 313 Mich.App. 409, 421; 884 N.W.2d 297 (2015).

After the close of proofs, the trial court instructed the jury using Model Criminal Jury Instruction 13.1, which was adopted to reflect the elements of MCL 750.81d. Defendant argues that defense counsel should have requested an additional instruction that the prosecutor had to prove beyond a reasonable doubt that defendant intended to resist or oppose Officers Magdaleno and Ricketson because his conduct may have been unintentional. We hold that, similar to our Court's interpretation of MCL 750.479, which also prohibits a person from obstructing or assaulting a police officer, MCL 750.81d is a general-intent crime in charging obstructing. See People v Vanwasshenova, 121 Mich.App. 672, 679-680; 329 N.W.2d 452 (1982). As this Court explained in People v Gleisner, 115 Mich.App. 196, 198-199; 320 N.W.2d 340 (1982), even in situations involving resistance by an intoxicated person, "[t]he purpose of this statute is to protect police officers in the discharge of their duties" and any resistance to a legal arrest is unlawful, notwithstanding a lack of specific intent to do so, id. at 199-200.

MCL 750.81d contains no language indicating an intent by the Legislature to change resisting or obstructing into a specific-intent crime. Rather, MCL 750.81d(1) merely states that someone "who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties" is guilty of a felony. As with this Court's interpretation of MCL 750.479, the plain language of MCL 750.81d(1) lists prohibited conduct and requires only that the defendant knew or had reason to know that the police officer was performing his or her duties. Because resisting or obstructing a police officer is a general-intent crime, defense counsel's request of an instruction that defendant must have had the specific intent to commit the crime would have been futile, and counsel is not ineffective for failing to argue a futile legal position or to make a futile objection, People v Thomas, 260 Mich.App. 450, 457; 678 N.W.2d 631 (2004).

Defendant also argues that he was deprived of the effective assistance of counsel because defense counsel failed to request a specific-unanimity instruction. The trial court gave the jury the following, general-unanimity instruction:

A verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agrees on that verdict.

According to defendant, his trial counsel should have requested an instruction that the jurors must unanimously agree about which set of facts formed the basis of any guilty verdict. As this Court explained in People v Chelmicki, 305 Mich.App. 58, 67-68; 850 N.W.2d 612 (2014):

Michigan law provides criminal defendants the right to a unanimous jury verdict. MCR 6.410(B). "In order to protect a defendant's right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement." People v Cooks, 446 Mich. 503, 511; 521 N.W.2d 275 (1994). Often, the trial court fulfills that duty by providing the jury with a general instruction on unanimity. Id. at 512. However, a specific unanimity instruction may be required in cases in which "more than one act is presented as evidence of the actus reus of a single criminal offense" and each act is established through materially distinguishable evidence that would lead to juror confusion. Id. at 512-513.

Defendant argues that because the prosecutor presented evidence that defendant ran from the police...