COA Opinion: A new defense available under the recent Moreno decision was not reviewable because it was not raised in the trial court first, before Moreno was decided
Reviewing an appeal from district court to circuit court, the Court of Appeals in People v. Kodlowski affirmed the defendant’s conviction for resisting arrest. Because the defendant had not previously raised a defense based on unlawful arrest, the majority refused to retroactively apply the holding in People v. Moreno, 814 N.W.2d 624 (Mich. 2012), which permits a person to resist arrest if the arrest is unlawful. The court also held that the defendant’s statements to police were properly admitted under the Fourth Amendment because, unlike him, his co-occupant had not withdrawn her consent to the officer’s presence in the residence to investigate domestic violence.
After police were called by the defendant’s wife to address a marital dispute, and as they were leaving the residence, the defendant touched one of the officers. When the officers attempted to handcuff him, the defendant began flailing, and the officers ultimately used a stun gun and baton to subdue him. The defendant was charged with assault and battery and with resisting arrest. The circuit court denied oral argument on the appeal from district court (which the Court of Appeals held to be improper under a now-defunct court rule, but not reversible) and affirmed the defendant’s conviction of resisting arrest.
During the pendency of the appeal to the Court of Appeals, the Michigan Supreme Court held in People v. Moreno that a person could not be charged with resisting an officer if his arrest was unlawful. The majority noted that the defendant failed to claim before the trial court that his arrest was unlawful as a result of excessive force. Therefore, the issue was unpreserved for appeal. In the majority’s view, Moreno had only limited retroactive effect and applied only to those cases in which the defendant properly preserved the issue. In dissent, Judge Shapiro argued that Moreno should be given full retroactive effect whenever there was plain error that resulted in conviction of an innocent defendant, which he believed was the case here. It was unreasonable, he argued, to require a defendant to raise a defense in the trial court that was useless at the time.
The defendant also claimed that his statements to the officers should have been suppressed under the Fourth Amendment because he had revoked his consent to the officers’ presence in the residence at the time he made the statements. However, one co-occupant’s unilateral withdrawal of consent has no effect when officers enter a residence to investigate potential domestic violence. Because the defendant’s wife had not withdrawn her consent to the officers’ presence in the residence, their presence was lawful and the defendant’s statements were properly admissible.