PEOPLE OF MI V PHILLIP BRUCE PAYNE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 13, 2008
Plaintiff-Appellee,
v
No. 277107
St Joseph Circuit Court
LC No. 06-013839-FH
PHILLIP BRUCE PAYNE,
Defendant-Appellant.
Before: Kelly, P.J., and Owens and Schuette, JJ.
PER CURIAM.
Defendant was found guilty by a jury of resisting arrest (two counts), MCL 750.81d(1),
and malicious destruction of police property, MCL 750.377b, for which he was sentenced as a
second habitual offender, MCL 769.10, to concurrent terms of nine months in jail. He appeals as
of right. We affirm. We decide this appeal without oral argument under MCR 7.214(E).
I. FACTS
During the evening of October 5, 2006, two police officers from the Village of
Constantine went to a hospital in Three Rivers. After interviewing a person there, they
determined to return to Constantine and arrest defendant on a charge of domestic violence. The
officers went to defendant’s home and repeatedly and loudly knocked on the door but there was
no answer. Through a nearby window, they observed defendant lying on the couch. His body
was partially obscured from view. Despite additional attempts to rouse defendant by knocking
on both the door and the window, defendant lay completely motionless and unresponsive. After
phoning their superior and describing the situation, the officers were instructed to forcibly enter
the home, which they did.
When they entered the home, they shook defendant and spoke loudly to him. Defendant
was initially unresponsive but eventually began to rouse. At that point, the officers realized that
he was extremely intoxicated. As defendant awoke from his intoxicated stupor, he cursed the
officers several times and became more and more agitated over their presence in his home. At
that point, one of the officers peppered-sprayed defendant because the officer feared he would
become physically aggressive.
When the officers attempted to handcuff defendant, he fell to the floor and thrashed
about. After a brief struggle, the officers managed to restrain defendant but had to pick him up
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underneath the arms and literally drag him to a police car. On the way to jail, defendant
repeatedly kicked the Plexiglas divider and the wire screens covering the windows, damaging
both.
II. STANDARD OF REVIEW
Defendant failed to move for a new trial or a Ginther1 hearing in the trial court on his
claim of ineffective assistance of counsel; therefore, this Court’s review is limited to the existing
record. People v Thomas, 260 Mich App 450, 456; 678 NW2d 631 (2004). “Whether a person
has been denied effective assistance of counsel is a mixed question of fact and constitutional law.
A judge first must find the facts, and then must decide whether those facts constitute a violation
of the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). We review questions of constitutional law de novo. Id.
III. ANALYSIS
“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). To
overcome this presumption, defendant must show: (1) “that counsel’s performance was deficient
as measured against an objective standard of reasonableness under the circumstances and
according to prevailing professional norms” and (2) “that the deficiency was so prejudicial that
he was deprived of a fair trial such that there is a reasonable probability that but for counsel’s
unprofessional errors the trial outcome would have been different.” Id.
Defendant first claims that his trial counsel was ineffective for not moving to exclude the
officers’ testimony of their observations of events inside the home on the ground that his Fourth
Amendment rights were violated because of their illegal warrantless entry into the home. We
disagree.
The police officers were justified in entering defendant’s home without a warrant under
the emergency-aid exception to the warrant requirement. Brigham City, Utah v Stuart, 547 US
398, 403; 126 S Ct 1943; 164 L Ed 2d 650 (2006); People v Davis, 442 Mich 1, 20, 25-26; 497
NW2d 910 (1993); People v Tierney, 266 Mich App 687, 704; 703 NW2d 204 (2005). When
viewed objectively, the circumstances justified the officers’ actions because they could
reasonably infer that defendant was in need of medical attention given his complete lack of
response to their attempts to rouse him. Brigham City, supra at 404. Moreover, after entering
the home, they did no more than was reasonably necessary to determine whether defendant
needed assistance and to provide that assistance to him. Davis, supra at 26. That defendant was
ultimately discovered to be merely intoxicated and not more seriously injured is of no
consequence to the legal question whether the warrantless entry was justified. The officers were
legally in the home; therefore, they were entitled to effectuate defendant’s arrest based on
probable cause that he committed a domestic violence incident.2 Accordingly, because
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
The facts of the underlying domestic violence incident are not clear from the record. However,
defendant does not argue that the officers did not have probable cause to arrest him on the
(continued…)
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defendant’s Fourth Amendment rights were not violated, there was no basis for seeking to
suppress the police officers’ testimony. Trial counsel was not ineffective for failing to make a
futile motion. Thomas, supra at 457; People v Ish, 252 Mich App 115, 118-119; 652 NW2d 257
(2002).
Defendant next argues that trial counsel was ineffective because counsel did not request a
jury instruction indicating that defendant had a right to resist the excessive force used by the
officers. We also disagree.
In People v Ventura, 262 Mich App 370; 686 NW2d 748 (2004), this Court held that a
person charged with violating MCL 750.81d may not forcibly resist an arrest by a police officer
who is performing his duties even if the arrest is illegal. Further, the record does not support
defendant’s claim that the police officers used excessive force against him. Although an officer
pepper-sprayed defendant before any physical resistance from him, the record establishes he was
extremely intoxicated, was belligerent, and was becoming increasingly agitated. The officer
used the pepper-spray preemptively in an attempt to avoid a physical escalation of the situation.
Under the circumstances, the officer’s actions were justified. Given the holding in Ventura and
the fact that there was no excess force in this case, defendant’s ineffective assistance claim must
fail because it would have been futile for defense counsel to request an instruction that defendant
could lawfully resist his arrest. Thomas, supra at 457; Ish, supra at 118-119.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Donald S. Owens
/s/ Bill Schuette
(…continued)
charge.
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