PEOPLE OF MI V LUKE JUNIOR DEMEYERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 1997
Plaintiff-Appellee,
v
No. 195250
Ingham Circuit Court
LC No. 95-69344-FH
LUKE JUNIOR DeMEYERS,
Defendant-Appellant.
Before: Michael J. Kelly, P.J., and Reilly and Jansen, JJ.
PER CURIAM.
Defendant was convicted by jury of resisting and obstructing a police officer, MCL 750.479;
MSA 28.747. Thereafter, the trial court determined that defendant was an habitual fourth offender,
MCL 769.12; MSA 28.1084. He was sentenced to four to fifteen years’ imprisonment. Defendant
appeals by right. We affirm.
On the evening of July 2, 1995, Lansing police officers were on bicycle patrol in the area of a
high-crime apartment complex. One officer testified that the complex had been designated a “zero
tolerance” area, in which police officers routinely arrested people for ordinance violations. Officer
David Blackman spotted a car parked in the parking lot of the complex. The engine was running and a
person, defendant, was sitting in the passenger seat. Blackman approached the car and noticed an
open beer can in defendant’s lap, as well as another open container of beer that had been placed in the
console between the driver’s and passenger seats. At Blackman’s request, defendant passed the beer
cans through the car window. Blackman decided to arrest defendant “for open alcohol,” but, as he did
not have a vehicle to transport defendant, he obtained defendant’s license and called for a back-up
patrol car. While he was waiting, Blackman saw defendant move his hand under the driver’s seat.
Suspecting that defendant had a weapon, Blackman and another officer drew their weapons and
ordered defendant to show his hands. Instead, defendant locked the doors of the car and refused to
exit the vehicle. After a violent altercation ensued, police finally extracted defendant from the vehicle
and forced him into submission. Police found a gun under the driver’s seat.1
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Defendant first argues that a judgment of acquittal should have been entered because his arrest
was unlawful as a matter of law and, under Michigan law, a person has a right to resist
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unlawful arrest. He contends the arrest was unlawful because only City of Lansing Ordinance § 608.03
was applicable to his conduct of possessing an open alcohol container in a motor vehicle and the police
were implicitly precluded from making an arrest for its violation. City of Lansing Ordinance § 608.03
provides, as pertinent:
(a) No person shall:
***
(6) Transport or possess any alcoholic beverage in a container which is open
or uncapped, or upon which the seal is broken, within the passenger compartment of a
motor vehicle. If the motor vehicle does not have a trunk or compartment separate
from the passenger compartment, a container which is open or uncapped or upon which
the seal is broken shall be encased or enclosed. . . .
***
(b) Any police officer who witnesses a violation of this section may stop and
detain the person for the purposes of obtaining satisfactory identification, seizing illegally
possessed alcoholic beverages and issuing an appearance ticket.
We will assume, as defendant argues, that the trial court found that only Lansing Ordinance §
608.03 applied to defendant’s possession of an open container of alcohol in a motor vehicle.
Nevertheless his arrest was authorized for violation of this ordinance. We conclude that the trial court
did not err in denying defendant’s post-trial motion for acquittal, because the police did not act illegally
by arresting defendant for violation of this ordinance.
We review a lower court’s construction of an ordinance de novo. Folands Jewelry Brokers,
Inc v Warren, 210 Mich App 304, 307; 532 NW2d 920 (1995). By its clear language, Lansing
Ordinance § 608.03 provides that police officers who witness a violation of its terms have the option,
within their discretion, of merely issuing an appearance ticket to the violator: “Any police officer who
witnesses a violation of this section may stop and detain the person for the purposes of obtaining
satisfactory identification, seizing illegally possessed alcoholic beverages and issuing an appearance
ticket” (emphasis added). See Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993)
(“The term ‘shall’ ordinarily designates a mandatory provision, and the term ‘may’ designates a
permissive provision.”). Therefore, in the situation presented here, officers are free to arrest a
defendant pursuant to MCL 764.15(1)(a); MSA 28.874(1)(a), which authorizes peace officers to make
warrantless arrests when ordinance violations are committed in their presence. People v Wood, 450
Mich 399, 403; 538 NW2d 351 (1995). Accordingly, the trial court did not err in finding that
defendant’s arrest was legal.
Next, defendant asserts that he received ineffective assistance of counsel based on his counsel’s
cross-examination of Blackman about why he delayed in telling defendant that he was being arrested.
Thereafter, the trial court permitted the prosecution to elicit testimony from Blackman on redirect about
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prior encounters with the police during which defendant had attempted to evade arrest. The trial court
had indicated that it would allow the prior acts testimony if defense counsel cross-examined the officer
regarding the officer’s motive for calling for backup. Defendant contends that the prior acts testimony
was highly prejudicial because the jury may have convicted him of resisting and obstructing because of
the evidence of prior similar offenses.
We will not substitute our judgment for that of counsel regarding matters of trial strategy.
People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987); People v Kvam, 160 Mich App
189, 200; 408 NW2d 71 (1987). We indulge a strong presumption that counsel’s conduct fell within a
wide range of professional assistance that would be regarded as reasonable. People v Mitchell, 454
Mich 145, 156; 560 NW2d 600 (1997). In this case, defendant’s counsel could reasonably have
determined that the importance of undermining the credibility of the police officers by establishing their
arguably deceptive behavior outweighed the risk that the questions might result in the prosecutor being
allowed to elicit testimony about past encounters between defendant and the police. We note that
defendant focuses on the resisting and obstruction charge of which he was convicted. However,
defense counsel was attempting to undermine the prosecution’s case with regard to this offense and
three other charged offenses for which defendant was acquitted. Defendant has not established his
claim of ineffective assistance based on defective performance because he has not demonstrated that
counsel’s performance fell below an objective standard of reasonableness. Id. at 157-158.
We disagree with defendant’s position that remarks by the trial court while imposing sentence
show that the court improperly considered defendant to have committed the offenses of which he was
acquitted (assault with intent to do great bodily harm, carrying a pistol in an automobile and possession
of marijuana). See People v Dixon, 217 Mich App 400, 410; 552 NW2d 663 (1996) (trial court may
not make an independent finding of guilt and impose sentence based on that finding). While the trial
court expressed that Blackman’s life was endangered by the acceleration of the car when defendant
tried to resist arrest, it did not express that defendant acted with an intent to inflict great bodily harm on
the officer. Rather, without regard to defendant’s intent, the trial court stated that defendant’s conduct
of resisting arrest resulted in circumstances that endangered the officer. With regard to the gun and
marijuana offenses, the trial court did not state that defendant committed those offenses, but rather that,
if he did not, then he was associating with someone who did commit them.2 Accordingly, defendant is
not entitled to resentencing.
Affirmed.
/s/ Michael J. Kelly
/s/ Maureen Pulte Reilly
/s/ Kathleen Jansen
1
During the struggle, defendant also allegedly jettisoned a bag of marijuana from his person, which
police also confiscated. The jury acquitted defendant of carrying a pistol in an automobile, possession
of marijuana, and assault with intent to do great bodily harm.
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2
Defendant also appears to argue on appeal that he is entitled to resentencing because his sentence was
based on inaccurate information. No objection was raised to preserve this issue at sentencing nor was it
raised at his Ginther hearing. He states in his brief, “There was absolutely no evidence that [defendant]
‘associated’ with anyone who possessed that baggie of marijuana.” To the extent that this is taken as
argument that he is entitled to resentencing because his sentence was based on inaccurate information,
we note that no objection was raised at sentencing nor was any claim of attorney error raised at the
Ginther hearing. To the extent that defendant has attempted to interject this issue on appeal, it is
unpreserved because it was not set forth in defendant’s statement of questions involved. Lansing v
Hartsuff, 213 Mich App 338, 351; 539 NW2d 781 (1995).
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