Michigan Court of Appeals Holds Resisting Arrest Cases Receive Limited Retroactive Relief Under People v Moreno

On May 29th, 2014, the Michigan Court of Appeals held in a criminal case that certain resisting arrest cases may receive retroactive relief under People v Moreno, a recent Court of Appeals decision that held that the prosecution must prove as an element of the crime of resisting arrest that the arrest was indeed lawful.  In other words, Moreno reaffirmed that common law principle that a person may legally resist an unlawful arrest by law enforcement.

In People v Quinn, Docket No. 309600, the Michigan Court of Appeals addressed an appeal in a criminal case from a conviction of resisting and obstructing a police officer following a jury trial.

The Court first recited the facts of the case.

On June 7, 2011, at about 1:00 a.m., Debra Novar, a sergeant with Emmet Township Department of Public Safety, was on [']random patrol.['] A severe storm had passed through the area during the previous week and many areas suffered storm damage. Additionally, several power lines were down, some areas remained without power, and some copper wire and [']things['] were stolen in the area. Novar testified that, mindful of the storm and recent thefts, she noticed a truck parked at [']Anew Salon['] and went to investigate why someone was parked at the salon at that time. As Novar approached the salon, she realized that the truck was not parked in the salon’s lot, but in a parking lot belonging to an adjacent apartment building—the Eisenhower Apartments. Novar testified that she looked in the direction of the apartments and noticed two individuals, later identified as defendant and his son Brian Quinn, in a dark carport in the apartment lot. Novar testified that she did not know what they were doing, but she wanted to find out. 

Novar exited her vehicle and twice yelled for the individuals to come toward her. Someone inside the carport said, [']No, you come over here,['] and then replied, [']See you later.['] Both defendant and Brian then left the carport and appeared to be walking quickly up the sidewalk headed toward the apartments. Novar radioed for assistance and ran to catch up with defendant and Brian. Defendant and Brian entered through a door in the rear of the building and the door closed behind them. Novar testified that, while still in pursuit, she opened the door and saw defendant and Brian standing on a landing area at the top of the steps. Novar testified that she asked to see their identification and asked if they lived at the apartments. According to Novar, each denied living there and refused to show Novar their identification. Novar maintained that she then attempted to place Brian under arrest, but Brian broke free and followed defendant into the apartment. Novar recalled that she placed her foot inside the door to prevent the door from being closed. Novar eventually deployed her pepper spray inside the apartment and kept her foot inside the door until backup assistance arrived, at which time she pushed on the door with her shoulder and the door opened. Officers informed defendant that he was under arrest, but defendant pulled away and said he did not need to go to jail. One officer used an [']arm bar['] to force defendant onto the ground, handcuffed him, and placed defendant under arrest. 

Defendant lived in Saginaw but he testified that he was staying at the Eisenhower Apartments with Brian to perform some work for the owner, his father-in-law. Defendant testified that, at about 1:00 a.m., they went outside to defendant’s truck to make sure that it was locked and that he did not leave any tools in the vehicle. Defendant testified that the parking area was very dark and he noticed a vehicle, with no lights on, pull into the salon parking lot next door. Defendant heard someone say, [']Hey, you guys, come here.['] Brian replied, [']No, come over here.['] Defendant testified that he saw a flashlight come on. Defendant was [']terrified[']; he told Brian that they should go inside and call 9-1-1. Defendant testified that he and Brian then walked quickly toward the apartment building. 

Defendant testified that he and Brian entered the apartment building and walked quickly up the stairs to the apartment they were utilizing during their stay. Defendant entered the apartment, grabbed his telephone from the kitchen table to call 9-1-1, and then noticed that Brian did not enter the apartment with him. Defendant testified that, as he walked back toward the door to get Brian, the front door opened [']violently[']and knocked the telephone out of his hand. Defendant testified that he saw Brian sprayed with pepper spray and that he was sprayed as well. Defendant testified that he was afraid, thought someone was attempting to harm him, pushed against the door to prevent any further attack, and yelled for Brian to telephone 9-1-1. Defendant testified that he was still unaware that a police officer was attempting to enter the residence. He testified that he did not see Novar at the top of the steps because he was already inside the apartment when she entered the building. According to defendant, Novar never asked him for his identification and never identified herself. 

Defendant testified that, after someone sprayed him with pepper spray and he attempted to shut the door, he picked up his telephone, went into the kitchen, and sat at the table. Defendant attempted to operate the telephone but was unable to see because of the pepper spray. While he was attempting to operate the telephone, someone came into the kitchen, [']flung['] him onto the floor, and handcuffed him. Defendant testified that it was at that point that he realized that officers were in his apartment and involved in the incident. Defendant denied dragging his feet or being uncooperative on the way to the police car. 

Relevant to the issue raised on appeal, defendant filed a pretrial motion to suppress, arguing that Novar’s actions were unlawful and violated his Fourth Amendment rights. Relying on People v Ventura, 262 Mich App 370; 686 NW2d 748 (2004), the trial court denied his motion, because under Ventura, the [']lawfulness of an arrest [was] not an element of resisting arrest in [a] prosecution alleging a violation of['] MCL 750.81d(1). 

After the trial court sentenced defendant, the Supreme Court decided People v Moreno, 491 Mich 38; 814 NW2d 624 (2012), which had overruled Ventura. Defendant moved for a post-trial directed verdict of acquittal and, in the alternative, for a new trial, on the basis of Moreno. Defendant argued that he was entitled to a directed verdict because, in sum, his detainment and arrest were unlawful, and, under Moreno, defendant had the common-law right to resist unlawful police action. In the alternative, defendant requested that the trial court grant him a new trial because (1) the great weight of the evidence indicated that defendant was innocent and (2) defendant was denied his constitutional rights to present a defense, to a properly instructed jury, and to confront witnesses against him because he was not allowed to argue the unlawfulness of the arrest. The trial court denied the motion for the reasons that the arrest was lawful and Moreno was not retroactive.

The Court's analysis of the retroactivity of Moreno followed.

On appeal, defendant first argues that the trial court erroneously determined that Moreno is not retroactive. We agree. [']The retroactive effect of a court’s decision is a question of law that this Court reviews de novo.['] Johnson v White, 261 Mich App 332, 336; 682 NW2d 505 (2004). Generally, judicial decisions establishing a new rule of law are given full retroactive effect. Paul v Wayne Co Dep’t of Pub Serv, 271 Mich App 617, 620; 722 NW2d 922 (2006). A court may limit the retroactive effect of a judicial decision, or give it prospective effect only, if [']injustice might result from full retroactivity.['] Pohutski v City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). The Michigan Supreme Court has considered the following three factors when deciding whether a decision should not be given retroactive application: 

[']Those factors are: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice. [Id.]['] . . .

The purpose of the new rule announced in Moreno was to re-establish the common-law rule that a person may resist an unlawful arrest, which was deemed abrogated by this Court in Ventura. Just as in Pasha, prosecutors and courts relied on Ventura and full retroactivity could upset the public’s interest in the finality of convictions. Therefore, we conclude that the new rule in Moreno should be given limited retroactive effect in cases where a defendant raised the issue on appeal and either the defendant preserved it in the trial court or the defendant can demonstrate plain error affecting substantial rights under Carines.

Here, as addressed in Part I, defendant preserved the issue of whether Novar’s conduct was lawful in his pretrial motion to suppress. Defendant thereafter preserved the issue of whether Moreno applies retroactively to his case in his post trial motion for a directed verdict or new trial. Finally, defendant raises these issues again on appeal. We therefore find that, under the facts of this case, Moreno applies retroactively . . .