People of Michigan v. Demarko Carrington Sanders ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 13, 2015
Plaintiff-Appellee,
v No. 322712
Genesee Circuit Court
DEMARKO CARRINGTON SANDERS, LC No. 14-034408-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.
PER CURIAM.
A jury convicted defendant of third-degree fleeing and eluding, MCL 257.602a(3)(a), and
resisting or obstructing arrest, MCL 750.81d(1), based on his failure to pull over for a traffic stop
and leading law enforcement officers on a high-speed chase. Defendant raises several challenges
on appeal, all of which lack merit. We therefore affirm.
I. BACKGROUND
Around noon on July 31, 2013, Michigan State Police Troopers Jeffrey Rodgers and Dan
Nease were in a fully marked patrol car driving southbound on I-475 in Genesee County. They
noticed a sedan in the center lane with a paper license plate in the back window. A quick LEIN
search revealed that the temporary plate was invalid. The troopers activated their emergency
lights in an attempt to execute a traffic stop. Defendant, the driver of the sedan, signaled and
merged into the right lane but did not stop, even after the troopers turned on their siren.
Defendant continued to drive for approximately three miles and passed an exit before
leaving the expressway via the Court Street exit ramp. Defendant turned onto Chavez Street and
then merged into the right-hand turn lane to turn onto Second, which would have led him into
downtown Flint. Believing that defendant had no intention of stopping, Trooper Rodgers
executed a “PIT” maneuver, designed to force a suspect vehicle to spin and then shut down. The
maneuver failed and defendant accelerated rapidly, leading the troopers on an approximate 15-
minute chase up and down Flint streets and through residential neighborhoods at speeds up to 90
miles an hour. During the chase, defendant twice slammed on his brakes, causing the patrol car
to strike defendant’s vehicle. Trooper Rodgers attempted a second unsuccessful PIT maneuver
on Mary Street and crashed through a fence. Genesee County Sheriff’s Deputy Scott Minaudo
had joined the chase and continued the pursuit. Defendant led the deputy through a field near a
church at the corner of E. Austin and Fulton. Defendant then jumped out of his still-rolling
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vehicle and fled on foot into the backyard of a nearby residence. Deputy Minaudo followed on
foot, ordering defendant to stop and drop to the ground. Defendant finally stopped and
cooperated in his apprehension and arrest.
The deputy placed defendant in the backseat of his patrol vehicle. Inside, Michigan State
Police Trooper Nathan Ellis informed defendant of his Miranda1 rights. The trooper testified
that defendant waived his right to counsel and spoke with him. Defendant told the trooper that
he did not immediately stop because he wanted to first ready his camera, presumably to record
his interaction with the police.
Defendant took the stand and claimed that he fully intended to stop but that he feared for
his life after the troopers “aggressively smashed” into his car. Defendant contended that Trooper
Rodgers’s PIT maneuver scared and confused him and caused him to flee out of fear. Defendant
asserted that he was trying to reach his home where he would have felt safe surrendering.
In his closing argument, defendant’s attorney emphasized that defendant was going to
stop at Second Street, just before Trooper Rodgers attempted the first PIT maneuver, but the
troopers did not give him a chance. He stressed that defendant was driving lawfully until hit by
the police car, and that the chase did not begin until that first failed PIT maneuver. Counsel
further asserted that the chase never would have happened had troopers given defendant a chance
to pull over. The jury rejected this defense and convicted defendant as charged.
II. RIGHT TO RESIST UNLAWFUL ARREST
Defendant contends through appellate counsel that his trial attorney was ineffective in
failing to request an instruction on the right to resist an unlawful arrest. Defendant failed to
preserve his challenge by requesting a new trial or a Ginther2 hearing, and our review is limited
to mistakes apparent on the existing record. People v Rodgers, 248 Mich. App. 702, 713-714; 645
NW2d 294 (2001).
“ ‘[T]he right to counsel is the right to the effective assistance of
counsel.’ ” United States v Cronic, 466 U.S. 648, 654; 104 S. Ct. 2039; 80 L. Ed. 2d
657 (1984), quoting McMann v Richardson, 397 U.S. 759, 771 n 14; 90 S. Ct.
1441; 25 L. Ed. 2d 763 (1970). An ineffective assistance claim includes two
components: “First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v Washington, 466 U.S. 668, 687; 104 S. Ct.
2052; 80 L. Ed. 2d 674 (1984). To establish the deficiency component, 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 NW2d 761 (2004). With respect to the prejudice aspect,
1
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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the defendant must demonstrate a reasonable probability that but for counsel’s
errors, the result of the proceedings would have been different. Id. at 663-664.
The defendant also must overcome the strong presumptions that “counsel’s
conduct [fell] within the wide range of reasonable professional assistance” and
that counsel’s actions were sound trial strategy. Strickland, 466 U.S. at 689.
[People v Galloway, 307 Mich. App. 151, 157-158; 858 NW2d 520 (2014).]
Defendant contends that the evidence supported that Trooper Rodgers acted unlawfully
when he collided with defendant’s sedan during the initial “PIT” maneuver, excusing
defendant’s decision to flee rather than submit to the unlawful show of force. In fact, defense
counsel argued this very point in closing argument. “A defendant’s request for a jury instruction
on a theory or defense must be granted if supported by the evidence.” People v McKinney, 258
Mich. App. 157, 163; 670 NW2d 254 (2003). Therefore, defendant contends, had defense counsel
taken the next step and requested the instruction, the court would have given it.
We do not agree that defendant would have been entitled to a jury instruction on the
subject defense. Michigan’s common-law right to resist an unlawful arrest was described in
People v Moreno, 491 Mich. 38, 47; 814 NW2d 624 (2012): “one may use such reasonable force
as is necessary to prevent an illegal attachment and to resist an illegal arrest and . . . the basis for
such preventive or resistive action is the illegality of an officer’s action, to which [a] defendant
immediately reacts.” (Quotation marks and citation omitted, second alteration in original). In
order to raise the defense, there must be evidence that the law enforcement officers acted
illegally. Such evidence does not exist here.
Defendant does not appreciate that Troopers Rodgers and Nease legally attempted to
effectuate a traffic stop on I-475 based on defendant’s invalid license plate. MCL 257.224(9)
prohibits a driver from operating a vehicle on the road while “displaying a registration plate
other than the registration plate issued for the vehicle by the secretary of state.” Once the
troopers activated their lights, defendant was required to pull over. See MCL 257.602a(1).
Instead, defendant waited at least three miles, exited the expressway, and attempted to turn onto
yet another roadway without stopping. Defendant even admitted to Trooper Ellis that he
purposefully chose not to stop in a timely fashion. Defendant therefore could not have
reasonably believed that the troopers were acting illegally when they attempted to force his stop.3
The evidence also does not support that the troopers used unlawful and excessive force in
employing the PIT maneuver against defendant’s vehicle. “Where, as here, the excessive force
claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly
characterized as one invoking the protections of the Fourth Amendment, which guarantees
citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the
person.” Graham v Connor, 490 U.S. 386, 394; 109 S. Ct. 1865; 104 L. Ed. 2d 443 (1989)
3
In this regard we find instructive Hardesty v City of Ecorse, 623 F Supp 2d 855, 860-861 (ED
Mich, 2009). In that case, the federal district court found that the defendant police officer had
probable cause to arrest the plaintiff for fleeing and eluding where the plaintiff turned left and
drove for a quarter mile before acquiescing in a traffic stop.
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(alterations in original). When considering the reasonableness of the force used to effectuate a
stop, we must balance the interests of the individual and the government. In doing so, we must
consider the facts and circumstances in the particular case, “including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. We
must review the officer’s actions objectively and from the perspective of a reasonable officer,
and not judge his conduct with the benefit of hindsight. Id. at 396-397.
When Trooper Rodgers decided to employ the PIT maneuver, he and his partner had
already tailed defendant for more than three miles. Given defendant’s continuous failure to stop
despite repeated opportunities to do so, the troopers’ belief that defendant intended to turn onto
Second Street and continue along his course was objectively reasonable. Second Street led into a
busy section of downtown Flint and the troopers would quickly lose the opportunity to safely use
any offensive maneuver to stop defendant’s vehicle. Accordingly, the troopers acted lawfully
when they employed the PIT maneuver in an attempt to stop defendant’s car.
As the evidence establishes that the troopers lawfully acted to attempt to stop defendant’s
vehicle, defendant had no legal right to resist arrest. He was therefore not entitled to a jury
instruction on this defense and any such request by defense counsel would have been rejected.
Counsel cannot be deemed ineffective for failing to pursue this meritless argument. See People v
Wilson, 252 Mich. App. 390, 393-394; 652 NW2d 488 (2002) (“Trial counsel is not ineffective for
failing to advocate a meritless position.”).
III. STANDARD 4 BRIEF
Defendant raises several additional challenges in an in pro per brief filed pursuant to
Michigan Supreme Court Administrative Order 2004-6, Standard 4. Much of this brief is
confusing and rambling. However, we will address defendant’s claims to the extent possible.
A. QUASH THE INFORMATION
Defendant first contends that the prosecutor failed to establish probable cause to bind
defendant over for trial and that the circuit court therefore should have granted his motion to
quash the information. “Generally, a circuit court’s decision to grant a motion to quash a felony
information is reviewed de novo to determine if the district court abused its discretion in
ordering a bind over.” People v Grayer, 235 Mich. App. 737, 739; 599 NW2d 527 (1999).
Where the prosecutor establishes at the preliminary examination that there is “probable cause to
believe that a crime was committed and . . . that the defendant committed it,” the district court
must bind the defendant over, People v Perkins, 468 Mich. 448, 452; 662 NW2d 727 (2003), and
quashing the information would be inappropriate.
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The prosecutor met her evidentiary burden at the preliminary examination. This Court
described the elements of third-degree fleeing and eluding in Grayer, 235 Mich App at 741:4
(1) the law enforcement officer must have been in uniform and performing his
lawful duties and his vehicle must have been adequately identified as a law
enforcement vehicle, (2) the defendant must have been driving a motor vehicle,
(3) the officer, with his hand, voice, siren, or emergency lights must have ordered
the defendant to stop, (4) the defendant must have been aware that he had been
ordered to stop, (5) the defendant must have refused to obey the order by trying to
flee from the officer or avoid being caught, which conduct could be evidenced by
speeding up his vehicle or turning off the vehicle’s lights among other things, and
(6) some portion of the violation must have taken place in an area where the speed
limit was thirty-five miles an hour or less, or the defendant’s conduct must have
resulted in an accident or collision, or the defendant must have been previously
convicted of certain prior violations of the law . . . .
Trooper Rodgers testified at the preliminary examination that he and his partner were in
uniform in a fully marked patrol vehicle and used their emergency lights and then siren to notify
defendant to stop his motor vehicle, satisfying the first three elements. From the length of time
and distance the troopers followed defendant, the district court could infer that defendant knew
or should have known that he had been ordered to stop, supplying probable cause for the fourth
element. In relation to element five, the prosecutor presented evidence that defendant refused to
obey the order to stop. To satisfy this element, the prosecutor must establish “some intent on the
part of the defendant to flee or avoid capture.” Id. at 742. “Intent is a question of fact to be
inferred from the circumstances by the trier of fact.” People v Kieronski, 214 Mich. App. 222,
232; 542 NW2d 339 (1995). Trooper Rodgers testified that defendant continued to drive past
one exit before veering off the expressway and made at least two turns thereafter. Defendant’s
failure to stop despite multiple opportunities to do so provided probable cause. And the
prosecutor presented evidence to meet the sixth element as defendant led the chase through a
residential neighborhood and caused the state police patrol vehicle to crash through a fence.
The prosecutor also presented sufficient evidence to bind defendant over on the charge of
resisting arrest in violation of MCL 750.81d(1). The elements of this offense are: “(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 duties.” People v Quinn, 305 Mich. App. 484, 491; 853 NW2d 383 (2014)
(quotations marks and citation omitted). In addition, the prosecutor must show that the police
officer’s actions were lawful. Id. at 494. As discussed above, the law enforcement officers
lawfully acted to apprehend defendant in this case. That the various troopers and the sheriff’s
deputy were in fully marked patrol vehicles supported that defendant knew his pursuers were law
4
When Grayer was decided, fleeing and eluding was proscribed by MCL 750.479a.
Substantively identical language now appears in MCL 257.602a.
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enforcement officers. And defendant resisted arrest, and even a simple traffic stop, by fleeing
from the troopers. In the process, defendant twice slammed on his brakes and caused the state
troopers to rear end his vehicle, and caused a situation where the troopers crashed their vehicle
through a fence. Because competent evidence was offered at the preliminary examination to
support that defendant violated both statutes at issue, the district court did not abuse its discretion
in binding defendant over, and the circuit court properly denied defendant’s motion to quash.
B. SUFFICIENCY OF THE EVIDENCE
Defendant also challenges the sufficiency of the evidence supporting his convictions. In
the face of such a challenge, “we review the evidence de novo, in the light most favorable to the
prosecution,” to determine “whether any rational fact-finder could have found that the essential
elements of the crime were proven beyond a reasonable doubt.” People v Odom, 276 Mich. App.
407, 418; 740 NW2d 557 (2007). We will not interfere with the trier of fact’s role of
determining the weight of the evidence or assessing the credibility of witnesses. Id. at 419.
“Conflicts in the evidence must be resolved in favor of the prosecution,” and “[c]ircumstantial
evidence and reasonable inferences arising therefrom may constitute proof of the elements of the
crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010).
The evidence presented at trial was even stronger than that presented at the preliminary
examination. Trooper Ellis testified that defendant emphatically admitted that he knew Troopers
Rodgers and Nease were trying to pull him over. Defendant told Trooper Ellis that he did not
stop because he “was trying to get [his] camera ready.” Defendant also informed the trooper that
he did not have a valid driver’s license or no-fault insurance, and knew that the temporary plate
did not belong to the vehicle he was driving. Despite the evidence that defendant purposefully
chose not to stop in a timely fashion and had several motives to avoid apprehension, defendant
claimed at trial that he had intended to pull over once he turned onto Second Street. Again,
“[i]ntent is a question of fact to be inferred from the circumstances by the trier of fact,”
Kieronski, 214 Mich. App. at 232, and the jury did not find defendant’s testimony credible. We
may not interfere with the jury’s assessment and defendant’s challenge to the sufficiency of the
evidence must fail.
C. ASSISTANCE OF COUNSEL
Defendant contends that defense counsel was ineffective because he failed to move to
admit evidence that defendant claims would have supported his defense. “We will not substitute
our judgment for that of counsel on matters of trial strategy,” People v Payne, 285 Mich. App.
181, 190; 774 NW2d 714 (2009), such as decisions regarding what evidence to present at trial,
People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008). In any event, defendant has
abandoned his claim by completely failing to identify the “documents and photograph” he
believes should have been presented or to describe their evidentiary importance. See Berger v
Berger, 277 Mich. App. 700, 712; 747 NW2d 336 (2008) (“A party abandons a claim when it fails
to make a meaningful argument in support of its position.”).
Defendant claims that counsel should have objected to the prosecutor’s reissuance of the
information against him. Following defendant’s arrest, the prosecutor dismissed and then refiled
the charges against him. Defendant argues that the information was insufficient because it
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contained “no statement of any offense” and charged “no offense known to the Law.”
Specifically, defendant complains that the information fails to describe the actions of the officers
that precipitated defendant’s flight. A review of the information reveals no such insufficiency.
The document lists the charged offenses and there simply is no legal support for requiring a
description of the officers’ conduct in this document. The facts that defendant believes should
have been included are important to his defense, not the initial decision to charge him with a
crime. Accordingly, defendant’s claim lacks merit and counsel cannot be deemed ineffective in
failing to raise it. Wilson, 252 Mich. App. at 393-394.
D. DURESS DEFENSE
Defendant avers that he was improperly denied the opportunity to present a duress
defense. However, such a defense was not available in this case. To establish a duress defense,
there must be evidence that the officers engaged in threatening conduct that would cause a
reasonable person to fear death or serious bodily harm, that the defendant actually maintained
such a fear, that the defendant was acting under the influence of that fear when he fled from the
police, and that the defendant fled for the purpose of avoiding the perceived threatened harm.
See People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009). The threatening conduct
underlying the claim of duress “must arise without the negligence of fault of the person claiming
the defense.” Id. at 371-372.
Defendant’s failure to respond to the patrol car’s emergency lights and siren by pulling
over gave rise to Trooper Rodgers’s execution of the PIT maneuver that serves as the
“threatening conduct” underlying defendant’s proffered duress defense. Had defendant pulled
over on the shoulder of the I-475, the Court Street exit, or Chavez Street, he could have
prevented Trooper Rodgers’s use of the PIT maneuver. Defendant’s own conduct caused the
need for the troopers to resort to this drastic measure. Accordingly, defendant could not have
supported this defense.
E. RIGHT TO COUNSEL
Defendant alleges that the law enforcement officers involved in this case violated his
right to counsel guaranteed by US Const, Am V and US Const, Am VI,5 because defendant did
not have an attorney present when interviewed by Trooper Ellis. Our review is limited to plain
error affecting substantial rights as defendant failed to raise this challenge until his appeal.
People v Carines, 460 Mich. 750, 764; 597 NW2d 130 (1999).
“[T]he Fifth Amendment right to counsel is a corollary to the amendment’s stated right
against self-incrimination and to due process.” People v Marsack, 231 Mich. App. 364, 372-373;
586 NW2d 234 (1998). The procedural safeguard to protect this right was created by Miranda.
Id. at 374. In this case, Trooper Ellis testified that he read defendant his Miranda rights and that
5
Defendant’s Sixth Amendment rights were not implicated in this case. The Sixth Amendment
right to counsel does not attach until the criminal prosecution is initiated. See Marsack, 231
Mich. App. at 372.
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defendant waived his right to counsel and spoke to the trooper voluntarily. Defendant did not
rebut Trooper Ellis’s version of events. Accordingly, defendant’s claim that he was denied his
right to counsel is without merit.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ William B. Murphy
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