PEOPLE OF MI V REGGIE BERNARD BURKS SR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 16, 2009
Plaintiff-Appellee,
v
No. 284467
Emmet Circuit Court
LC No. 07-002852-FH
REGGIE BERNARD BURKS, SR.,
Defendant-Appellant.
Before: Jansen, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant was convicted by a jury of resisting or obstructing a police officer without
injury, MCL 750.81d(1), and was sentenced as a fourth habitual offender, MCL 769.12, to 16
months’ to 15 years’ imprisonment. He appeals as of right and we affirm. This appeal has been
decided without oral argument. MCR 7.214(E).
On September 18, 2007, Officer Todd Troxel was on patrol in a fully marked police car
when he attempted to initiate a traffic stop of a black Dodge minivan. The vehicle’s exhaust was
extremely loud and the driver had twice failed to use the turn signal when turning left. The
driver of the vehicle, Jacqueline Burks, did not respond to Officer Troxel’s attempts to pull the
vehicle over, and continued driving until she reached the ramp of the emergency department at
Northern Michigan Hospital.
Ms. Burks’ failure to pull over heightened Officer Troxel’s concerns. Therefore, Officer
Troxel approached the vehicle with his gun unholstered and behind his back. Ms. Burks had
already exited the vehicle. Officer Troxel requested Ms. Burks’ license, registration, and proof
of insurance. Ms. Burks, who was very agitated, told Officer Troxel that she would provide him
with that information after she removed her injured husband, defendant, from the vehicle. As
Officer Troxel spoke with Ms. Burks, he re-holstered his firearm and attempted to de-escalate the
situation. At one point during their conversation, Officer Troxel put his hands on Ms. Burks to
stop her from leaving the scene as well as for his own safety because he needed to observe her
actions.
Officer Troxel ordered defendant not to leave the vehicle because he did not appear to be
in any immediate distress. In addition, Ms. Burks was standing in front of the vehicle and
Officer Troxel feared that if defendant exited the vehicle, defendant could get behind him and
put him in a compromised situation. While Officer Troxel was speaking to Ms. Burks, defendant
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was yelling out of the driver’s window at Officer Troxel and then exited the vehicle. Officer
Troxel ordered defendant to stay back. Defendant disobeyed Officer Troxel’s command and
continued walking towards him. Defendant then struck Officer Troxel on the left side of the
head with his cane. At that point, Officer Troxel placed defendant under arrest.
Defendant asserted that he hit Officer Troxel in the head with his cane because he
believed that Officer Troxel might shoot either his wife or him. Defendant claimed that his
belief was reasonable because Officer Troxel lied about why he pulled them over (for an
ostensibly loud exhaust), put his hand on his wife when talking to her, and approached them with
an empty holster.
Defendant argues on appeal that the trial court committed instructional error when it
ruled that People v Ventura, 262 Mich App 370, 374; 686 NW2d 748 (2004), precluded a selfdefense instruction. According to defendant, Ventura confirmed legislative intent to remove the
legality of the arrest element from a resisting or obstructing charge, but it did not prevent
defendant from presenting a defense of self-defense. Further, defendant claims that reading
Ventura so as to prohibit a self-defense instruction would violate principles of federal
constitutional due process.
This Court generally reviews claims of instructional error de novo on appeal, but we
review the trial court’s determination that a jury instruction is applicable to the facts of the case
for an abuse of discretion. People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). An
abuse of discretion occurs when a trial court chooses an outcome falling outside the range of
reasonable and principled outcomes. People v Babcock, 469 Mich 247, 265; 666 NW2d 231
(2003).
Under the common law and Michigan’s earlier resisting arrest statute, MCL 750.479, it
was necessary to prove as an element of the offense of resisting arrest that the defendant was
subject to a lawful arrest. Ventura, supra at 374. Therefore, the right to resist an unlawful arrest
was a defense to a charge under MCL 750.479. Id.
However, MCL 750.479 was replaced by MCL 750.81d, which provides in pertinent part:
(1) Except as provided in subsections (2), (3), and (4), an individual who
assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who
the individual knows or has reason to know is performing his or her duties is
guilty of a felony punishable by imprisonment for not more than 2 years or a fine
of not more than $2,000.00 or both.
In Ventura, supra at 375-377, this Court held that, unlike MCL 750.479, because MCL 750.81d
does not refer to the lawfulness of an arrest or detaining act, the lawfulness of a defendant’s
detention is not an element under MCL 750.81d: “[A] person may not use force to resist an
arrest made by one he knows or has reason to know is performing his duties regardless of
whether the arrest is illegal under the circumstances of the occasion.”
Defendant argues, however, that even if the legality of the arrest is not an element of
MCL 750.81d, a defendant may still assert as a defense under MCL 750.81d that he acted in self-
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defense to resist an officer’s unlawful use of excessive force. The Self-Defense Act, MCL
780.972, provides in relevant part:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses force other than deadly force may use force other than
deadly force against another individual anywhere he or she has the legal right to
be with no duty to retreat if he or she honestly and reasonably believes that the
use of that force is necessary to defend himself or herself or another individual
from the imminent unlawful use of force by another individual.
For purposes of this appeal, it is unnecessary to decide whether one may assert the
defense of self-defense to the charge of resisting or obstructing a police officer under MCL
705.81d when the police officer has used unlawful excessive force. This is because the facts of
this case do not support such a defense.
First, the Self-Defense Act does not apply to one who is engaged in the commission of a
crime at the time that person allegedly acts in self-defense. Defendant was engaged in the
commission of a crime, obstructing a police investigation, by yelling, disobeying lawful
commands to stay back, and hitting Officer Troxel with his cane. Second, defendant was the
initial aggressor and user of excessive force. Officer Troxel attempted to gain control of the
situation in the midst of uncooperative and suspicious behavior by defendant and his wife. No
force was employed in the encounter until defendant hit Officer Troxel on the head with his
cane. Third and finally, defendant’s belief that force was necessary to defend himself from the
imminent use of excessive force by Officer Troxel was unreasonable. Officer Troxel never
threatened defendant with serious injury or imminent bodily harm. At no point did Officer
Troxel point his weapon at defendant or threaten to use his weapon on defendant. Rather,
defendant’s belligerent behavior caused Officer Troxel to touch his firearm out of concern for his
own safety.
We do not believe that Ventura was wrongly decided and we decline to address whether a
claim based on self-defense in the face of excessive force survives the holding in Ventura given
that the facts of this case clearly establish that defendant was not entitled to claim that he acted in
self-defense.
Affirmed.
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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