People v. Lucas

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. SHANE MATTHEW LUCAS, Defendant-Appellant.

No. 358339

Court of Appeals of Michigan

November 3, 2022

UNPUBLISHED

Muskegon Circuit Court LC No. 20-001245-FH

Before: Shapiro, P.J., and Gadola and Yates, JJ.

Per Curiam.

Defendant was convicted after a jury trial of malicious destruction of police property, MCL 750.377b assaulting/resisting/obstructing a police officer, MCL 750.81d(1), and second-degree retail fraud, MCL 750.356d Defendant appeals as of right. We affirm.

I. FACTS

At approximately 3:00 a.m. on January 29, 2020, defendant entered a Walmart store in Roosevelt Park, Michigan. A Walmart employee saw defendant enter the store and shortly thereafter saw defendant walk toward the exit with three bottles of Captain Morgan alcohol in his arms. When she offered to get a shopping cart for him, defendant ran from the store carrying the unpurchased alcohol. The employee later identified defendant by a distinctive tattoo on his neck. The incident was recorded on Walmart's surveillance video. Walmart security personnel alerted the police regarding the incident.

Norton Shores police officer Corporal David Hoffman was on duty near the Walmart store when he saw a vehicle matching the description of the vehicle in which defendant had been seen leaving the store's parking lot. Corporal Hoffman stopped the vehicle and was joined by Roosevelt Park police officers Aaron Morse and Chad Dejong. As Officer Morse approached defendant's vehicle, he saw three bottles of alcohol bearing store security locks behind the driver's seat.

Officer Morse also observed that defendant, who was a passenger in the stopped vehicle, matched the description of the perpetrator reported by Walmart employees. Officer Morse asked defendant to step out of the car. Officer Dejong then ordered defendant several times to get into his patrol car to return to Walmart for potential identification by the store's employees. When defendant did not comply, the officers forced defendant into the patrol car. Once inside the patrol car, defendant repeatedly kicked the door and the window, disregarding the officers' orders to stop. The officers thereafter observed that there was damage to the interior of the patrol car. Upon arriving at Walmart, the store's security staff identified defendant as the person who stole the alcohol. Officer Dejong testified that after defendant was identified by the Walmart employees, he continued to kick the doors, windows, and the seat partition of the patrol car as the officer drove him to the police station.

Defendant was convicted after a jury trial of malicious destruction of police property, MCL 750.377b, assaulting/resisting/obstructing a police officer, MCL 750.81d(1), and second-degree retail fraud, MCL 750.356d. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve 3 to 15 years in prison for the malicious-destruction conviction, a concurrent term of 3 to 15 years for the assaulting/resisting/obstructing conviction, and fines and costs for the conviction of second-degree retail fraud. Defendant now appeals.

II. DISCUSSION

A. RESISTING & OBSTRUCTING/MALICIOUS DESTRUCTION

Defendant contends that his conviction of resisting/obstructing should be overturned and dismissed because he was justified in resisting the unlawful command by the police officers to participate in a show-up. We disagree.

We note that because the prosecution was required to establish that the officers were acting lawfully as an element of the crime of resisting and obstructing a police officer, defendant's challenge is essentially a challenge to the sufficiency of the evidence. We review de novo a challenge to the sufficiency of the evidence, reviewing the evidence presented at trial to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Byczek, 337 Mich.App. 173, 182; 976 N.W.2d 7 (2021).

Resisting or obstructing a police officer is prohibited under MCL 750.81d(1), which provides, in relevant part:

an 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, or both.

To prove that a defendant resisted or obstructed a police officer in violation of MCL 750.81d, the prosecution must demonstrate that the defendant "assaulted, battered, wounded, restricted, obstructed, opposed, or endangered a police officer," while knowing, or having reason to know, that the person was a police officer performing his or her duties. People v Morris, 314 Mich.App. 399, 413-414; 886 N.W.2d 910 (2016). The prosecution also is required to establish as an element of resisting and obstructing a police officer that the officer acted lawfully. See MCL 750.81d(7)(a); People v Moreno, 491 Mich. 38, 52; 814 N.W.2d 624 (2012). That is, a person does not have the right to resist or obstruct the lawful actions of a police officer, but resisting an unlawful arrest is not a crime. See id. at 57-58.

Show-up identifications have long been considered inherently suggestive and therefore lacking in reliability. People v Sammons, 505 Mich. 31, 41-42; 949 N.W.2d 36 (2020). However, "the admission of evidence of a show-up without more does not violate due process." Neil v Biggers, 409 U.S. 188, 198; 93 S.Ct. 375; 34 L.Ed.2d 401 (1972). Typically, a defendant's challenge to an identification during a show-up is that the identification lacks reliability; if a defendant successfully challenges a show-up identification as unreliable, the remedy is suppression of the identification evidence at trial. See Sammons, 505 Mich. at 42.

In this case, defendant does not contend that the show-up identification was unreliable, but instead argues that it was unlawful for the officers to require him to participate in a show-up. Defendant argues that because show-up identifications are viewed as unreliable and often are held to be inadmissible, they are justified only when necessary, such as when a witness may not otherwise be available for a line-up. Defendant argues that in this case a show-up identification was unnecessary because there was little doubt that defendant was the perpetrator; thus, argues defendant, the officers' command that defendant get in the patrol car to participate in a show-up was not a lawful command, and he therefore was justified in resisting the command.^[1]

We disagree with defendant's reasoning. Although some show-ups result in evidence that is not sufficiently reliable, it does not follow that it is unlawful for an officer to require a defendant to participate in a show-up. Show-ups have not been declared unlawful police activity; they are merely considered problematic in producing reliable identifications. Defendant has not identified authority to support his theory that it is unlawful for police officers to conduct a show-up as part of their investigation of a crime, or unlawful for an officer to require a suspect to participate in a show-up. Defendant therefore has not demonstrated that the officers acted unlawfully by compelling defendant to participate in a show-up. We also observe that a review of the record indicates that defendant continued to resist and obstruct the officers after the show-up occurred by continuing to kick the interior of the patrol car as he was transported to the police station.

Defendant similarly argues that his conviction of malicious destruction of police property should be overturned and dismissed because the property destruction occurred after defendant was given an unlawful command by police officers to participate in the show-up. Again, we disagree. Under MCL 750.377b, "[a]ny person who shall willfully and maliciously destroy or injure the personal property of any fire or police department, including the Michigan state police, shall be guilty of a felony." Unlike the crime of resisting/obstructing, in which lawful police action is an element of the offense, the crime of malicious destruction of police property does not have such a requirement. Although there is a common-law right to resist an unlawful command by a police officer, see Moreno, 491 Mich. at 52, defendant has identified no authority to support the argument that a defendant may resist a police command, even if unlawful, by maliciously destroying police property.

B. CONCEALMENT OF EVIDENCE

Defendant contends that the prosecution concealed evidence favorable to defendant in violation of Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963). We disagree.

We observe that defendant's assertion of a Brady violation is unpreserved. To be preserved for appeal, an issue must be raised before and considered by the trial court. People v Solloway, 316 Mich.App. 174, 197; 891 N.W.2d 255 (2016). In this case, before the trial court defendant objected to the admission of People's Exhibit 5, which was an estimate of the repair cost for the damage to the patrol car, arguing that the exhibit was not timely disclosed by the prosecution. Defendant did not assert that the untimely disclosure was a Brady violation. A challenge before the trial court on one ground is insufficient to preserve a challenge on another ground on appeal. People v Swenor, 336 Mich.App. 550, 562; 971 N.W.2d 33 (2021). Although this Court generally reviews constitutional claims, such as an asserted Brady violation, de novo, we review unpreserved claims for plain error. People v Burger, 331 Mich.App. 504, 516; 953 N.W.2d 424 (2020).

To constitute a Brady violation, the prosecution must have...