MURRAY, J.
Defendant, Jeffrey Kodlowski, appeals by leave granted two orders of the circuit court. The first order embodies the circuit court's decision affirming the district court's judgment convicting defendant of resisting arrest in violation of Westland Ordinance, § 62-36(a), while the second order denies defendant's motion for reinstatement of oral argument. We affirm both orders.
This case arises from a marital dispute that resulted in the arrest of defendant after he allegedly battered two Westland Police Officers, Michael Little and Kyle Dawley, and resisted arrest in his Westland residence. On March 18, 2009, Marilyn Kodlowski resided with defendant (her husband), son, and daughter in the city of Westland. Around 4:00 a.m., Kodlowski and defendant had a disagreement regarding Kodlowski's cellular telephone. Defendant accused Kodlowski of having an extramarital affair, and he wanted to see Kodlowski's cellular telephone to determine to whom she had been talking.
Kodlowski called the Westland Police Department on two occasions that morning to seek assistance in retrieving the personal belongings that defendant withheld from her. After calling the police the first time, Kodlowski handed defendant the phone, defendant spoke with the police, and then defendant provided Kodlowski her keys and purse, but not her cellular telephone. Kodlowski called the second time to receive assistance in retrieving her cellular telephone from defendant.
After the second phone call, Little and Dawley arrived at the residence in uniform and located Kodlowski in the driveway near her van. When first speaking with the officers, Kodlowski informed them that she had had an argument with defendant and that he accused her of cheating on him, but there had never been violence in the home and defendant had not been drinking. There was conflicting testimony as to whether Kodlowski informed the officers that there were no weapons in the residence.
After speaking with the officers, Kodlowski walked with the officers to the residence and defendant "allowed them in." Again, there was conflicting evidence regarding defendant's demeanor when the officers first entered the house. Nevertheless, the officers proceeded to talk to defendant and inquire into the location of the cellular telephone. Although the testimony was not consistent on what was initially said upon entering the home, there is no dispute that Officer Dawley made several antagonistic and sarcastic remarks to defendant, and that when defendant was asked where the cellular telephone was located, defendant responded by saying something along the lines of, "I'm not giving the phone back. You'll have to arrest me."
According to Kodlowski, defendant asked the officers to leave. While the officers were present, Kodlowski grabbed defendant's wallet and told him that she would take his wallet if he did not return her cellular telephone. However, Kodlowski then decided to leave the residence without her phone. Little believed at that point that the incident was over, so he followed Kodlowski toward the front door as Dawley followed. As Little was walking out of the door, he felt defendant grab and squeeze his left arm. As witnessed by Dawley, defendant then "spun" Little around so that he was facing defendant. Little then used his arm to create distance between himself and defendant, and after telling defendant that he was under arrest, Little and Dawley each grabbed onto one of defendant's arms so that he could be handcuffed.
Defendant then "started pulling and just kind of thrashing his body, swinging his arms to try to make [Little] let go." Little indicated that as defendant twisted and attempted to break from the officers' grip, the officers and defendant ended up on the couch. Dawley then instructed defendant to stop resisting, but defendant continued to thrash his body and swing his arm. While trying to secure defendant in handcuffs, defendant kicked backward, "like a rearward kick," striking Dawley.
After defendant continued to twist, Dawley applied a brachial stun to defendant's neck, yet defendant continued to twist and fight the officers Dawley then pulled out his baton and struck defendant on his arm and the top of the baton "also hit the back of [defendant's] head." Dawley testified that after he struck defendant's arm, defendant released his grip, Officer Dawley dropped the baton, grabbed the handcuffs, and the officers were then able to secure defendant with the handcuffs. Dawley indicated that he struck defendant once with the baton.
The prosecutor filed a motion in limine in the district court, seeking to exclude evidence regarding the nature and extent of defendant's injuries and any documentary evidence concerning the department policy on the use of force. Defendant argued that the evidence was relevant to show that the officers fabricated the facts of the case to cover up their use of excessive force, while the prosecution argued that the evidence would be relevant to a
The prosecution also separately raised the issue of the admissibility of a transcript prepared from an audio recording which captured a portion of the events surrounding defendant's arrest.
In regard to the prosecution's motion to exclude evidence, the district court concluded that because defendant was charged with assault and battery along with resisting arrest, any evidence regarding the treatment and nature of defendant's injuries was irrelevant and thus inadmissible. The district court indicated, however, that it would allow defendant to introduce evidence that he was injured during the exchange. The district court then decided to withhold until trial its final ruling of whether to exclude documentary evidence regarding department policy, procedures, and records, as well as any expert testimony, concerning the use of force. At trial the court made its ruling:
On October 5, 2009, the jury found defendant not guilty of the assault and battery charges but guilty of resisting arrest. The district court's judgment of conviction was appealed to the circuit court, which denied oral argument on the appeal and affirmed the conviction. Defendant then filed an application for leave to appeal both orders, which we granted.
In our order granting defendant leave to appeal, we directed defendant to "address in his brief why he should not be required to pay an additional entry fee for the second order being appealed under MCL 600.321(1)(a)." People v. Kodlowski, unpublished order of the Court of Appeals, entered August 31, 2011 (Docket No. 301774). We did so because when filing his application from the two separate orders, defendant refused to pay two filing fees, arguing that this Court's Internal Operating Procedure (IOP) regarding fees applicable to appeals (which requires two separate fees) misinterprets MCL 600.321.
IOP 7.205(B)(7)-1, which interprets MCL 600.321, provides that a fee must be paid for each order appealed:
Defendant argues that the use within MCL 600.321 of the singular "an" prior to indicating the manner of appeal indicates that a party is required to pay one fee for each appeal, regardless of the number of orders appealed, as long as the orders form the basis for the application for leave to appeal.
Defendant's argument is too limited: it ignores the corresponding court rules regarding applications for leave to appeal. In particular, MCR 7.205(A)(1) provides that "[a]n application for leave to appeal" must be filed within 21 days after entry of "the judgment or order" appealed from, while MCR 7.205(A)(2) addresses when to file applications from "an order" deciding motions for new trial, reconsideration, or other such relief. (Emphasis added.) Additionally, MCR 7.205(B)(2) specifies the number of copies of "the judgment or order appealed from" that need to be submitted with the application. (Emphasis added.)
Consequently, under our rules regarding applications for leave to appeal, an application is to be filed from "an" order or "the" judgment that is sought to be appealed. Thus, strictly applied, MCR 7.205 requires that a separate application be filed for each order or judgment appealed.
Turning to the first issue, defendant argues and we agree that the circuit court erred in denying defendant an opportunity for oral argument before the appeal from the district court was decided.
MCR 7.101 governs the general procedure applicable to appeals from the district court to the circuit court, and under MCR 7.101(K), "any party who has filed a timely brief on appeal and requested oral argument is entitled to oral argument." In re Attorney Fees of Mullkoff, 176 Mich.App. 82, 88, 438 N.W.2d 878 (1989). MCR 7.101(K) specifically provides that, "[a] party who has filed a timely brief is entitled to oral argument by writing `ORAL ARGUMENT REQUESTED' in boldface type on the title page of the party's brief." Thus, the direct and plain language of MCR 7.101(K) requires the circuit court to provide a party with an opportunity to present an oral argument if it complies with MCR 7.101(K) by requesting oral argument when filing a brief on appeal. People v. Williams, 483 Mich. 226, 232, 769 N.W.2d 605 (2009) (courts must enforce the plain language of a court rule). Because defendant complied with this provision, the circuit court erred in denying defendant's motion for reinstatement of oral argument.
The failure to provide oral argument as required by MCR 7.101(K) does not require reversal or a remand. Generally, this Court will not impose a sanction for a violation of a court rule where the Supreme Court has not provided for any particular sanction, In re Jackson, 199 Mich.App. 22, 28-29, 501 N.W.2d 182 (1993); In re Kirkwood, 187 Mich.App. 542, 545-546, 468 N.W.2d 280 (1991), and since the Supreme Court did not provide a sanction or remedy for violation of MCR 7.101(K), we refrain from imposing a specific remedy for the violation.
Further, this Court must construe the rules "to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties." MCR 1.105. In applying MCR 2.613(A), we reach the inescapable conclusion that the failure of the circuit court to allow oral argument was not inconsistent with substantial justice. This holds true for two reasons.
Defendant also argues that the trial court improperly excluded (1) evidence regarding the extent and nature of injuries he sustained during his arrest, (2) evidence regarding the use of excessive force, and (3) evidence regarding the police department's policies and procedures when employing force. Specifically, defendant argues that this evidence is relevant to show that the officers employed excessive force and that in order to conceal the use of such force, the officers fabricated the charges against defendant.
We will not disturb a trial court's decision to exclude evidence unless it is established that it abused its discretion. People v. Feezel, 486 Mich. 184, 192, 783 N.W.2d 67 (2010). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v. Unger, 278 Mich.App. 210, 217, 749 N.W.2d 272 (2008). Decisions regarding the admission of evidence frequently require a review de novo since they generally involve preliminary questions of law. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). If a trial court admits evidence that as a matter of law is inadmissible, it abuses its discretion. Id. Ordinarily, however, a trial court's decision on a close evidentiary question cannot be an abuse of discretion. People v. Sabin (After Remand), 463 Mich. 43, 67, 614 N.W.2d 888 (2000).
Under MRE 402, all relevant evidence is admissible unless otherwise provided by constitution or court rule. People v. Small, 467 Mich. 259, 264, 650 N.W.2d 328 (2002). "Relevant evidence" is evidence which has "`any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" People v. Crawford, 458 Mich. 376, 388, 582 N.W.2d 785 (1998), quoting MRE 401. It was not an abuse of discretion to exclude evidence of the defendant's hospitalization after his arrest because that evidence was irrelevant to determining whether defendant committed the charged crimes of assault and battery and resisting arrest. People v. Solak, 146 Mich.App. 659, 674, 382 N.W.2d 495 (1985). Similarly, evidence regarding the extent and nature of defendant's injuries, along with evidence
We also disagree with defendant's argument that the exclusion of this evidence deprived him of his right to present a defense. While "[t]he right to present a defense is a fundamental element of due process ... it is not an absolute right" as it extends only "to relevant and admissible evidence." People v. Likine, 288 Mich.App. 648, 658, 794 N.W.2d 85 (2010), rev'd on other grounds 492 Mich. 367, 823 N.W.2d 50 (2012). Accordingly, defendant was not deprived of his right to present a defense when denied the opportunity to present irrelevant and inadmissible evidence at trial. Further, defendant was able to introduce evidence, including his testimony, Kodlowski's testimony, and the audio recording, to support his theory that he was not resisting arrest but, rather, that the officers fabricated the incident to conceal the excessive force they employed against him at the residence. Therefore, we conclude that the trial court did not abuse its discretion in excluding evidence regarding the use of force or the extent and nature of defendant's injuries.
Defendant also argues that the trial court erred in excluding the prepared transcript of the audio recording where it would have assisted the jury in determining what transpired at defendant's residence.
Before submitting a transcript of an audio recording to the jury, the trial court should take steps to ensure its accuracy. People v. Lester, 172 Mich.App. 769, 775-776, 432 N.W.2d 433 (1988). The preferred procedure is to have the parties stipulate to the transcript's accuracy. Id. at 775, 432 N.W.2d 433. Absent a stipulation,
Turning to a different sort of evidentiary question, defendant argues that the police officers violated his Fourth Amendment rights by remaining at his residence after he revoked his consent to their presence and, therefore, the officers' testimony regarding defendant's statements made during his arrest should have been suppressed by the district court.
Due to defendant's failure to file a pretrial motion to suppress his statements to police, we review defendant's unpreserved assertion of constitutional error for plain error affecting his substantial rights. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). To establish plain error, defendant must show that (1) an error occurred, (2) the error was plain, and (3) the plain error affected his substantial rights. People v. Pesquera, 244 Mich.App. 305, 316, 625 N.W.2d 407 (2001). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error `"seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings" independent of the defendant's innocence.'" Carines, 460 Mich. at 763, 597 N.W.2d 130, quoting United States v. Olano, 507 U.S. 725, 736-737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted).
Both the United States and Michigan Constitutions guarantee the right to be free from unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art 1, § 011. While warrantless searches and seizures are unreasonable per se, there are several exceptions that validate an otherwise unreasonable search and seizure, including voluntary consent. People v. Dagwan, 269 Mich.App. 338, 342, 711 N.W.2d 386 (2005). Consent must be given freely, intelligently, specifically, and unequivocally. Id. Further, "consent may be limited in scope and may be revoked." People v. Frohriep, 247 Mich.App. 692, 703, 637 N.W.2d 562 (2001). Consent is valid if obtained from the person whose property is to be searched or from a third party that has common authority over the property. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). A co-occupant, however, can invalidate the consent given by another occupant if he is present on the premises and expressly objects to the search. Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).
Here, the officers arrived at the residence in the early morning in response to a domestic dispute, having received two calls from Kodlowski regarding disputes with defendant. With respect to defendant's retention of Kodlowski's phone, defendant suspected that Kodlowski was having an affair and he intended to check her phone to determine whether his suspicions were correct. Due to their disagreement, Kodlowski believed that it would be better to leave and discuss the issue later, but she did not want to leave the residence without her cellular telephone, and so called the police a second time. The police arrived at the residence, and after receiving consent from both defendant and Kodlowski, the officers entered the residence to assist in locating the cellular telephone. According to the officers, when they entered the house, defendant appeared angry and irritated. Little testified that defendant's mood shifted back and forth between irritated and calm. At one point, Kodlowski told the officers that, "I got somebody who will come back with me that'll knock the shit out of him." Clearly a domestic disturbance was occurring while the officers were present in the home.
Later during the incident, defendant asked the officers to leave the residence, thereby revoking his consent. However, in applying Randolph, we hold that defendant's withdrawal of consent was irrelevant to the Fourth Amendment analysis given that the officers were present to respond to a domestic dispute. Since the officers were present to respond to a domestic dispute, they had an obligation to investigate potential domestic violence. They were not there to search for evidence. Consequently, defendant's decision to revoke his consent did not render the officers' presence unlawful. Because defendant's Fourth Amendment rights were not violated, defendant has failed to establish plain error affecting substantial rights.
After oral argument before this Court, the Supreme Court decided People v. Moreno, 491 Mich. 38, 814 N.W.2d 624 (2012). Because we had some concern that Moreno may impact this case, we ordered supplemental briefing to address two questions: "(1) whether defendant presented (and therefore preserved for appeal) a defense
Turning to the first issue raised in the order, we hold that defendant failed to raise the defense that he resisted an arrest that was unlawful because the officers used excessive force, and so the Moreno issue has not been preserved.
Even though defendant never argued that he was resisting an unlawful arrest, the dissent argues that defendant should have use of Moreno by giving it full retroactive effect.
Having overruled the Court of Appeals decision in Marrow, the Pasha Court then had to determine whether its ruling would apply retroactively. The Court held that because prosecutors and trial courts had
This same limited retroactive effect has been utilized by the Court in cases even where the issue "goes to the very heart of our jury trial system." People v. Hampton, 384 Mich. 669, 676, 187 N.W.2d 404 (1971). In Hampton the Court held that one of its prior decisions mandating that a jury instruction defining the consequences of a finding of not guilty by reason of insanity be read to the jury, People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969), would only apply to those cases where "[t]he issue was properly preserved for appeal." Hampton, 384 Mich. at 679, 187 N.W.2d 404.
In light of Pasha and Hampton, we conclude that Moreno should only apply in cases where the defendant has preserved the issue in the trial court and raised it before our Court, or if the defendant can show plain error under Carines. Pasha, 466 Mich. at 384, 645 N.W.2d 275. Much like in Pasha, here prosecutors, defendants and trial courts across the state have relied upon People v. Ventura, 262 Mich.App. 370, 686 N.W.2d 748 (2004), rev'd 491 Mich. 38, 814 N.W.2d 624 (2012), in making decisions affecting charging, trial strategy, and determinations of guilt or innocence. To apply Moreno to all cases would detrimentally effect the effective administration of justice. Consequently, we employ the limited retroactive principles utilized by the Pasha Court. Accord People v. Lorey, 156 Mich.App. 731, 734-735, 402 N.W.2d 84 (1986) (giving a Supreme Court decision that reversed this Court's decision limited retroactive effect and applying it only to cases in which the issue was raised in order to ensure the efficient administration of justice).
In doing so, we hold that defendant has neither raised the issue in our Court,
For the reasons expressed, the circuit court's orders are affirmed.
MARKEY, P.J., concurred with MURRAY, J.
SHAPIRO, J. (dissenting).
I respectfully dissent. After this case was tried, briefs filed and argument heard, the Supreme Court held in People v. Moreno, 491 Mich. 38, 814 N.W.2d 624 (2012), that a necessary element of resisting arrest is that the underlying arrest was lawful. Because no such determination was made in this case, I would reverse and remand for a new trial on that charge.
Defendant was charged with resisting the officers when they arrested him for assaulting one of the officers. Since the jury found that defendant did not assault an officer, the obvious question is whether the arrest for that alleged assault was lawful. Given the proofs, particularly the
The officers were responding to a non-violent argument between defendant and his wife. Defendant's attitude toward the officers, while not hostile, was sullen and unpleasant. He acted immaturely, and the officers were understandably annoyed with him. However, he had committed no crime, and it is not alleged that he committed any crime until the officers walked past defendant on their way out of the house, at which time defendant made some physical contact with Officer Michael Little. Little testified that defendant grabbed his arm and attempted to forcefully turn him around. Defendant's wife testified that she did not see this occur, though she was within a few feet of them. Defendant testified that he merely tapped the officer on the arm to get his attention in order to tell him something before the officer left. On the audio recording, the officer is heard to say, "[D]on't touch me," and the defendant responds, "I'm sorry." Little agreed that the defendant apologized and testified that defendant was compliant and stepped back. Little also agreed that his partner, Officer Kyle Dawley, then said, "You know, fuck him, let's take him." The recording does not reveal either officer telling defendant that he was under arrest or asking him to surrender. Instead, on the recording, immediately after Dawley makes this remark, a physical altercation is heard. During that altercation, defendant was struck in the head with a baton and stunned with a Taser.
The only justification for initiating the physical contact with defendant described by the officers was the need to arrest him for the alleged assault on Little, an assault that the jury concluded did not occur. The jury rejected the officers' version of events and found more credible defendant's testimony that he merely tapped the officer on the arm in order to tell him something.
The jury convicted defendant of resisting arrest, but was not instructed, as we now know it should have been, that the arrest had to have been lawful, i.e., with probable cause, for defendant's actions to constitute the crime of resisting arrest. While the question of defendant's innocence is one that must ultimately be made by a properly instructed jury, listening to the audiotape of the incident makes clear that the central question is whether the officers had probable cause to arrest, an issue that defendant's jury would not have been permitted to consider under People v. Ventura, 262 Mich.App. 370, 686 N.W.2d 748 (2004).
The majority declines to address this issue, asserting that it was not properly preserved because at trial defendant did not argue that he should be acquitted because the assault arrest was unlawful. However, this argument would have been not only useless but completely inconsistent with the law as set forth in Ventura. The real question is not whether defendant made this then useless argument, but whether Moreno is to apply retroactively to all cases still pending on appeal. Clearly the answer to that question is yes, just as it was in People v. Pasha, 466 Mich. 378,
In this case, the error could not be plainer: the trial court failed to include an element of the offense in its instruction. The error affected a substantial right — the right to a jury instructed on the elements of the offense — as well as the fairness of the proceeding. Indeed, failure to instruct the jury on an element of the offense is a form of constitutional error, id. at 766, 597 N.W.2d 130, and it is a structural error that undermines the entire legal process, People v. Duncan, 462 Mich. 47, 57, 610 N.W.2d 551 (2000). Under Moreno, a necessary element of resisting arrest is that the underlying arrest was lawful, and this is precisely the type of ruling that is always given retroactive effect.
Defendant acted in an annoying fashion, and it is not surprising that his behavior tested the officers' patience. However, being annoying and testing an officer's patience is not a crime. No one, including police officers, may physically attack another because he or she finds that person annoying. The prosecution at oral argument noted that we expect police officers to go into unpredictable and potentially dangerous situations and asserted that we should therefore not second-guess their actions. However, it is precisely because police officers are routinely sent into such situations that they must be properly trained to maintain a professional demeanor at all times and exercise the force of the
Further, the majority's reliance on People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971) is highly attenuated. That case did not involve whether the jury was properly instructed on the actual elements of the offense, but whether the jury should have been informed that a verdict of not guilty by reason of insanity would result in the defendant's commitment to a psychiatric hospital, not freedom. Failing to advise a jury what will happen to a defendant after its verdict is far less central to a proper verdict than is informing the jury of the elements of the offense. Moreover, in Hampton, there was no controlling caselaw against the defendant's position as Ventura was in this case. Indeed, the question in Hampton had been "a matter of first impression" less than two years earlier in People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969). Hampton, 384 Mich. at 678, 187 N.W.2d 404.
