PEOPLE OF MI V DERRICK LASHON BRADDOCK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 25, 2002
Plaintiff-Appellee,
v
No. 232946
Saginaw Circuit Court
LC No. 00-018916-FH
DERRICK LASHON BRADDOCK,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Zahra and Owens, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction of two counts of felonious
assault, MCL 750.82, and one count of resisting and obstructing a police officer, MCL 750.479.
Defendant was sentenced to concurrent terms of four years’ probation with 270 days in jail on
each count. We affirm.
Defendant argues that insufficient evidence was adduced at trial to support his resisting
and obstructing conviction. “When reviewing a claim regarding the sufficiency of the evidence,
this Court examines the evidence in a light most favorable to the prosecution to determine if a
rational jury could find that the essential elements of the offense were proved beyond a
reasonable doubt.” People v Joseph, 237 Mich App 18, 20; 601 NW2d 882 (1999).
Defendant argues that verbal passive resistance does not constitute knowing and willful
resistance or obstruction. In support of this argument, defendant cites People v Philabaun, 234
Mich App 471; 595 NW2d 502 (1999), which was overturned in People v Philabaun, 461 Mich
255; 602 NW2d 371 (1999). In overturning the holding of this Court, our Supreme Court
adopted the following language from Judge Murphy’s dissent in People v Davis, 209 Mich App
580, 586; 531 NW2d 787 (1995):
“In sum, the question whether a defendant has engaged in conduct that
violates the resisting or obstructing statute should be decided case by case.
Although the classic example of resisting or obstructing involves a defendant who
physically interferes with the officer, actual physical interference is not necessary
because case law instructs that an expressed threat of physical interference, absent
actual physical interference, is sufficient to support a charge under the statute.”
[Philabaun, supra at 263.]
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Further, the evidence established that defendant had thrown rocks at police officers while they
were effectuating a lawful arrest. We believe this evidence is clearly sufficient to support
defendant’s conviction of this charge.
Defendant also argues that his counsel was ineffective in two ways: (1) for failing to
request jury instructions on attempted felonious assault and attempted resisting and obstructing a
police officer, and (2) for failing to move for a directed verdict of acquittal on the resisting and
obstructing charge.1 We disagree. “To prove a claim of ineffective assistance of counsel . . . , a
defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the defense so as to deny defendant
a fair trial.” People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998). Defendant must
overcome the presumption that the challenged action constituted sound trial strategy. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). Because defendant failed to move for
either a new trial or a Ginther2 hearing, our review of his claim of ineffective assistance of
counsel is limited to the existing record. People v Nantelle, 215 Mich App 77, 87; 544 NW2d
667 (1996).
We conclude that defendant has failed to overcome the presumption that trial counsel’s
failure to request the disputed instructions was sound trial strategy. Defendant’s defense strategy
was to argue that he had been erroneously identified by the police, and that he had an alibi for the
time the offense was committed. Defense counsel’s decision to pursue this line of defense and
not request the disputed instructions falls within the purview of trial strategy that we will not
second-guess on appeal. People v Robinson, 154 Mich App 92, 93-94; 397 NW2d 229 (1986).
“The decision to proceed with an all or nothing defense is a legitimate trial strategy.” People v
Nickson, 120 Mich App 681, 687; 327 NW2d 333 (1982).
As for defendant’s second claim of ineffective assistance, this issue is not properly before
us because it was not included in the statement of questions presented. Caldwell v Chapman,
240 Mich App 124, 132; 610 NW2d 264 (2000). MCR 7.212(C)(5). In any event, we find no
evidence of ineffective assistance. As we previously concluded, viewed in a light most favorable
to the prosecution, the evidence adduced at trial was sufficient to support defendant’s conviction
for resisting and obstructing a police officer.
Defendant also challenges the identification procedures employed by the police at the
scene, arguing that they were unduly suggestive, resulting in a verdict against the great weight of
the evidence. Again, we disagree. Because defendant did not preserve his claim that the verdict
is against the great weight of the evidence by making a motion for new trial, People v Winters,
225 Mich App 718, 729; 571 NW2d 764 (1997), we review for a miscarriage of justice, People v
Noble, 238 Mich App 647, 658; 608 NW2d 123 (1999). Defendant also did not preserve his
claim of unduly suggestive identification procedures because he failed to move to suppress the
1
Defendant’s cursory argument does not identify the alleged error beyond the general claim that
a motion for a directed verdict should have been brought. However, because this argument is
appended to the end of defendant’s claim that insufficient evidence was presented to support his
resisting and obstructing conviction, we assume that the alleged error involves only this charge.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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identification evidence or request a Wade hearing.3 People v Daniels, 163 Mich App 703, 710711; 415 NW2d 282 (1987). We review this element of defendant’s argument for plain errors
affecting substantial rights. People v Grant, 445 Mich 535, 545, 553; 520 NW2d 123 (1994).
With regard to the identification evidence, on-the-scene identification procedures similar
to those employed in defendant’s identification were appropriate because prompt confrontations
between the victim and the suspect promote fairness and reliability. Winters, supra at 727. Onthe-scene identification procedures, though suggestive, are reasonable because the victim’s
memory is fresh and accurate and the identification results in the quick release of innocent
suspects. People v Purofoy, 116 Mich App 471, 480; 323 NW2d 446 (1982). Accordingly,
because we find no plain error in the out of court identification, we conclude that defendant has
failed to establish that a miscarriage of justice occurred.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Brian K. Zahra
/s/ Donald S. Owens
3
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
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