Defendant, Arthur J. Quinn, appeals as of right his jury trial conviction of resisting or obstructing a police officer, MCL 750.81d(l). Consistent with People v Moreno,
I. FACTS AND PROCEDURAL HISTORY
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 there had been several thefts in the area. Novar testified that, mindful of the storm and recent thefts, she noticed a truck parked outside a salon and went to investigate why someone was parked there at that hour. 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 people, 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 got out of her vehicle and twice yelled for them to come toward her. Someone inside the carport said, “No, you come over here,” and then said, “See you later.” Both defendant and Brian then left the carport and appeared to be walk ing quickly up the sidewalk toward the apartments. Novar radioed for assistance and ran to catch up with the men. Defendant and Brian entered through a door in the
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 had not left 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 using during their stay. Defendant entered the apartment, grabbed his telephone from the kitchen table to call 9-1-1, and then noticed that Brian had not entered 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 call 9-1-1. Defendant testified that he was still unaware that a police officer was attempting to enter the apartment. 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 tried to use the telephone but was unable to see because of the pepper spray. While he was attempting to make a call, 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
After the trial court sentenced defendant, the Supreme Court decided Moreno, which overruled Ventura. Defendant moved for a posttrial 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 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 be confronted with the 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.
II. ANALYSIS
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,
In People v Marrow,
The purpose of the new rule announced in Moreno was to reestablish the common-law rule that a person may resist an unlawful arrest, which was deemed abrogated by this Court in Ventura. Just as
In this case, defendant preserved the issue of whether Novar’s conduct was lawful by raising it in his pretrial motion to suppress. Defendant thereafter preserved the issue of whether Moreno applies retroactively to his case in his posttrial motion for a directed verdict or new trial. Finally, defendant raises these issues again on appeal. We therefore hold that, under the facts of this case, Moreno applies retroactively.
Next, defendant argues that he should be granted a directed verdict or a new trial on the basis of Moreno. “When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt.” People v Aldrich,
Additionally, according to Moreno,
Defendant does not argue on appeal that the prosecution failed to show that he resisted and obstructed Novar, or that he knew or had reason to know that Novar was an officer. But the third element — whether Novar’s actions were lawful — was not an element of the charged offense at the time of the trial, and the prosecutor did not specifically offer evidence to show
“Generally, seizures are reasonable for purposes of the Fourth Amendment only if based on probable cause.” People v Lewis,
[u]nder certain circumstances, a police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior even though there is no probable cause to support an arrest. A brief detention does not violate the Fourth Amendment if the officer has a reasonably articulable suspicion that criminal activity is afoot. Whether an officer has a reasonable suspicion to make such an investigatory stop is determined case by case, on the basis of an analysis of the totality of the facts and circumstances. A determination regarding whether a reasonable suspicion exists must be based on commonsense judgments and inferences about human behavior. [People v Jenkins,472 Mich 26 , 32;691 NW2d 759 (2005) (citations and quotation marks omitted).]
Our review of the evidence submitted at trial, when viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that Novar’s actions were lawful. Specifically, a rational trier of fact could conclude that the fact that two individuals were outside in the parking lot of an apartment building at 1:00 a.m., in an area where there had been recent thefts, coupled with the fact that they walked quickly away from Novar into the apartment building and up the stairs to the second-floor landing, and indicated that they did not live in the apartments, created circumstances sufficient to warrant a brief detention. Accordingly, when viewed in a light most favorable to the prosecution, a rational trier of fact could conclude that Novar had a reasonably articulable suspicion that criminal activity was afoot and that her repeated requests to defendant and Brian to produce their identification, and her request to defendant to exit the apartment, were lawful. Therefore, we decline to grant a directed verdict.
Defendant argues, in the alternative, that he should be granted a new trial. On this point, we agree. A “criminal defendant has the right to have a properly instructed jury consider the evidence against him.” People v Mills,
Here, the jury was instructed as follows:
[I]n this case the defendant is charged with the crime of resisting and obstructing a police officer who was performing her duties. To prove this charge the prosecutor must prove each of the following two elements beyond a reasonable doubt: first, that the defendant resisted or obstructed or opposed a police officer for Emmett Township; to wit, Deb Novar. Obstruct includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command. The defendant must have actually resisted by what he said or did, but physical violence is not necessary.
Second, that the defendant knew or had reason to know that the person the defendant resisted, obstructed, and/or opposed was a police officer performing her duties at the time.
These instructions were consistent with the law at the time of the trial, before Moreno was decided. See Corr,
As discussed, the lawfulness of Novar’s actions is an element of the charged crime and therefore a question of fact for the jury. The jury was not instructed to determine whether Novar’s actions were lawful or how to do so. Because the jury was not instructed on all three elements of the offense of resisting or obstructing a police officer according to Moreno, and because defendant has the right to a properly instructed jury, Mills,
Because we agree with defendant that the jury was not properly instructed, and thus, reversal is required, it is unnecessary for this Court to consider the alternative grounds for a new trial presented by defendant.
Reversed and remanded for a new trial. We do not retain jurisdiction.
Notes
This Court considered the retroactive application of Moreno in City of Westland v Kodlowski,
In our view, whether reasonable suspicion existed turns on whether Novar believed defendant lived at the apartment complex. The evidence presented at trial regarding this issue was not undisputed. Although Novar testified that, on the landing, both defendant and Brian said they did not live at the apartment complex, defendant testified that he had no such encounter with Novar on the landing and that he was already inside the apartment when she entered the building.