People of Michigan v. Robert Maksymilian Solecki ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 9, 2017
Plaintiff-Appellee,
v No. 331154
Dickinson Circuit Court
ROBERT MAKSYMILIAN SOLECKI, LC No. 15-005121-FH
Defendant-Appellant.
Before: GADOLA, P.J., and JANSEN and SAAD, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of resisting and obstructing a
police officer, MCL 750.81d(1), fourth-degree fleeing and eluding a police officer (fleeing and
eluding), MCL 257.602a(2), and operating a vehicle with a suspended license, second offense,
MCL 257.904(1) and (3)(b). He was sentenced to eight months in jail for each conviction. We
affirm.
I. FACTS
Defendant was spotted by police driving an off-road vehicle (ORV) on two roadways and
failing to stop at a stop sign. Upon pulling defendant over, Michigan State Police Trooper Ryan
Rossler discovered that defendant’s license was suspended. Defendant was told he was going to
be arrested and taken to jail. Defendant had two dogs with him and was concerned about what
would happen to them and the ORV. Trooper Rossler offered several options on how to
transport the dogs and the ORV to defendant’s home, all of which defendant refused. Defendant
told Trooper Rossler he was going home and drove away from the scene. Trooper Rossler
followed defendant for the approximate ½ mile to defendant’s home. Defendant put his dogs
inside his residence, sat in a lawn chair in his yard, and continued to refuse to cooperate with the
police. Eventually, Trooper Rossler and another officer physically removed defendant from the
lawn chair. He was handcuffed and transported to jail.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence presented to convict him of fourth-
degree fleeing and eluding. We disagree.
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We review this argument de novo. People v Harverson, 291 Mich. App. 171, 177; 804
NW2d 757 (2010). “A court must ‘view the evidence in a light most favorable to the prosecution
and determine if any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.’ ” People v Cline, 276 Mich. App. 634, 642; 741
NW2d 563 (2007) (citation omitted). “Circumstantial evidence and the reasonable inferences
that arise from that evidence can constitute satisfactory proof of the elements of the crime.”
People v Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014).
MCL 257.602a provides, in relevant part, as follows:
(1) A driver of a motor vehicle who is given by hand, voice, emergency
light, or siren a visual or audible signal by a police or conservation officer, acting
in the lawful performance of his or her duty, directing the driver to bring his or
her motor vehicle to a stop shall not willfully fail to obey that direction by
increasing the speed of the motor vehicle, extinguishing the lights of the motor
vehicle, or otherwise attempting to flee or elude the officer. This subsection does
not apply unless the police or conservation officer giving the signal is in uniform
and the officer’s vehicle is identified as an official police or department of natural
resources vehicle.
(2) Except as provided in subsection (3), (4), or (5), an individual who
violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony
punishable by imprisonment for not more than 2 years or a fine of not more than
$500.00, or both.
Fleeing and eluding is a general intent crime and only requires the intent to do the physical act
of fleeing and eluding an officer. People v Abramski, 257 Mich. App. 71, 73; 665 NW2d 501
(2003).
Defendant’s sufficiency challenge is focused on the intent element of the crime. He
argues that because he did not intend to permanently flee or elude the police, as evidenced by his
testimony that he told Trooper Rossler he was heading home and that Trooper Rossler should
meet him there, the evidence was constitutionally insufficient to convict him of the crime.
Defendant misunderstands the behavior the statute is designed to proscribe. The statute is
focused on punishing the willful failure to obey a directive by an identifiable police or
conservation officer. In other words, the focus is on the act of disobedience, not the perpetrator’s
internal mindset on how long he or she is attempting to avoid arrest. The statute is designed to
protect the public from harm stemming from the failure to obey in circumstances where the
perpetrator is driving a motor vehicle, which can, if operated in an unsafe manner, cause injury
to persons and property. This is further evidenced by the increased penalties provided where
“the violation results in a collision or accident,” MCL 257.602a(3)(a), the “violation occurred in
an area where the speed limit is 35 miles an hour or less,” MCL 257.602a(3)(b), and “the
violation results in serious injury,” MCL 257.602a(4)(a), or “death of another individual,” MCL
257.602a(5). In other words, the statute is a public safety measure intended to punish the failure
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to comply with lawful orders from police. It is not intended to simply punish a singular intent to
avoid capture on the part of a defendant.1
Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence to establish that defendant intended to flee and elude Trooper Rossler. The statute
expressly notes that fleeing and eluding can be shown by a defendant “increasing the speed of
the motor vehicle” after being signaled to stop. MCL 257.602a(1). Although there is no
evidence that defendant attempted to elude capture by increasing the speed of the ORV when he
was seen by Trooper Rossler, defendant did increase the speed of the ORV from a complete stop
and drove away after repeatedly being warned that he could be charged with fleeing and eluding
if he left the scene of the traffic stop. He drove over ½ mile to his home. “[T]he use of the
ejusdem generis clause ‘or otherwise attempting’ means that acts or conduct of the same kind,
class, or character as speeding or extinguishing lights are also included within the offense.”
People v Grayer, 235 Mich. App. 737, 740 n 2; 599 NW2d 527 (1999).2 Driving away from an
officer after being stopped is of the same kind, class, or character as increasing a vehicle’s speed
to elude a pursuing police officer. See id. at 745 (“[T]he statute itself does not limit fleeing and
eluding to high-speed or long-distance chases.”). While defendant informed Trooper Rossler
where he intended to go, he still fled3 the scene of the initial traffic stop and eluded,4 or evaded
the officer, for over ½ mile. In sum, viewing the evidence in the light most favorable to the
prosecution, it is clear that there was sufficient evidence to establish that defendant intended to
flee and elude a police officer.
III. GREAT WEIGHT OF THE EVIDENCE
Defendant also argues that his fourth-degree fleeing and eluding conviction is against the
great weight of the evidence. “The test to determine whether a verdict is against the great weight
of the evidence is whether the evidence preponderates so heavily against the verdict that it would
be a miscarriage of justice to allow the verdict to stand.” People v Lacalamita, 286 Mich. App.
467, 469; 780 NW2d 311 (2009). This issue was not preserved below through the filing of a
1
The sentencing guidelines identify fourth-degree and third-degree fleeing and eluding as crimes
against public safety, and second- and first-degree fleeing and eluding as crimes against a person.
MCL 777.12e.
2
We note that although Grayer involved the crime of fleeing and eluding as outlined in MCL
750.479a, the two fleeing and eluding statutes contain nearly identical relevant language. See
MCL 750.479a; MCL 257.602a.
3
Grayer notes that “Random House Webster’s College Dictionary (1997) defines ‘flee’ as ‘to
run away, as from danger or pursuers; take flight; to move of pass swiftly; fly; speed’ ” Grayer,
235 Mich. App. at 741 (citation omitted).
4
Grayer notes that “Random House Webster’s College Dictionary (1997) defines . . . ‘elude’ as
‘to avoid capture or escape by detection by; evade.’ ” Grayer, 235 Mich. App. at 741 (citation
omitted).
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motion for new trial. See People v Cameron, 291 Mich. App. 599, 617; 806 NW2d 371 (2011).
Therefore, the issue is reviewed for plain error affecting defendant’s substantial rights. Id.
“Generally, a verdict may be vacated only when the evidence does not reasonably support it and
it was more likely the result of causes outside the record, such as passion, prejudice, sympathy,
or some other extraneous influence.” Lacalamita, 286 Mich. App. at 469. Defendant again
argues, in effect, that because he did not intend to permanently evade the police, he cannot be
guilty of violating MCL 257.602(a). As stated above, this argument is without merit. Therefore,
defendant cannot establish plain error affecting his substantial rights.
IV. MOTION FOR MISTRIAL
Next, defendant argues that the trial court abused its discretion by denying his motion for
a mistrial predicated on comments made by the prosecutor in her rebuttal argument. We
disagree.
We review a trial court’s decision to deny a motion for a mistrial for an abuse of
discretion. People v Lane, 308 Mich. App. 38, 60; 862 NW2d 446 (2014). “The trial court abuses
its discretion when its decision falls outside the range of principled outcomes.” Id. “The trial
court should only grant a mistrial for an irregularity that is prejudicial to the rights of the
defendant and impairs his ability to get a fair trial and when the prejudicial effect of the error
cannot be removed in any other way.” Id. (citations and quotation marks omitted). In addition,
“[t]he trial court may consider, among other things, whether the prosecutor intentionally
presented the information to the jury or emphasized the information.” Id.
Underlying defendant’s argument is a claim of prosecutorial misconduct. “Given that a
prosecutor’s role and responsibility is to seek justice and not merely convict, the test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” People v
Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). In considering a challenge to remarks
made by a prosecutor, we examine the context in which they were made, including arguments
made by the defense and “the relationship the comments bear to the evidence admitted at trial.”
Id. at 64.
Defendant challenges the following statements made by the prosecutor in her rebuttal
argument regarding the lack of medical evidence of injuries defendant asserted he sustained
when arrested:
I was waiting to hear some comments about the Defendant’s injuries as a
result of this incident, and I didn’t hear that, but I would be remiss if I didn’t
address that . . . .
Now, you were able to hear with your own ears the Defendant laughing
and joking with Trooper Rossler on the way to the jail talking about fishing. That
isn’t someone who’s suffering with multiple broken ribs and a dislocated
shoulder, ladies and gentlemen. Believe you me, if he were injured in this
incident, you would have heard medical testimony. [Emphasis added.]
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We agree with defendant that the prosecutor’s statements regarding the absence of medical
evidence were improper. Her argument implies that defendant chose not to provide such
evidence. However, the trial court excluded as irrelevant a medical discharge summary and
testimony of a nurse. Therefore, we conclude that the prosecutor’s statements were improper.
Regardless, we conclude that the trial court did not abuse its discretion by denying the
motion for a mistrial. Defendant immediately objected to the prosecutor’s comments. Finding
the comments improper, the court gave the following curative instructions:
Ladies and gentlemen of the jury, you will disregard any reference in these
closing remarks to there being any medical documentation. There has not been
any proof of any medical documentation. There was an offer of some nursing
discharge statement. The Court ruled that that was not admissible. There was an
attempt on the Defendant’s part to admit that. The Court ruled that it was not
relevant to these proceedings, and that’s why you didn’t hear it. It shouldn’t be
held against the Defendant for not attempting to offer it.
* * *
[W]hen I rule that something is inadmissible, it’s inadmissible, and that’s why
you didn’t hear it. It wasn’t because anyone was trying to hide it, but it was not
admissible evidence in this case. So the fact that you didn’t hear it does not
weigh in this case at all.
“ ‘Jurors are presumed to follow their instructions, and instructions are presumed to cure most
errors.’ ” People v Ericksen, 288 Mich. App. 192, 199-200; 793 NW2d 120 (2010) (citation
omitted). These instructions were sufficient to cure the error made by the prosecutor. The court
clearly explained to the jury the lack of medical documentation in the record and that no one was
trying to hide it. Therefore, the trial court properly denied defendant’s motion for a mistrial.
V. CIVIC DUTY AND BOLSTERING
Defendant also argues that the prosecutor committed misconduct by improperly
appealing to the jurors’ sense of civic duty and placing the prestige of her office in issue. We
disagree.
Defendant failed to raise these specific objections. “In order to preserve a claim of
prosecutorial misconduct for appellate review, a defendant must have timely and specifically
objected below, unless objection could not have cured the error.” People v Brown, 294 Mich
App 377, 382; 811 NW2d 531 (2011). Accordingly, the issue is unpreserved. “Unpreserved
claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights.” Id.
Generally, prosecutors are given great latitude in their arguments at trial. People v Seals,
285 Mich. App. 1, 22; 776 NW2d 314 (2009). “To determine if a prosecutor’s comments were
improper, we evaluate the prosecutor’s remarks in context, in light of defense counsel’s
arguments and the relationship of these comments to the admitted evidence.” Id. While
prosecutors cannot mischaracterize evidence, they are free to argue reasonable inferences that
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arise from the evidence. People v Callon, 256 Mich. App. 312, 330; 662 NW2d 501 (2003). A
civic duty argument “inject[s] issues broader than guilt or innocence or encourage[es] jurors to
suspend their powers of judgment.” People v Thomas, 260 Mich. App. 450, 455-456; 678 NW2d
631 (2004). Defendant takes issue with the following statements in the prosecutor’s rebuttal
argument:
And, quite frankly, I find it appalling that the Defendant would come into this
courtroom and claim that these officers injured him as kind and as respectful as
they were to him up until the very end of this ordeal. They don’t deserve that
kind of treatment. These are professionals who get up every morning, put on that
blue uniform, putting their lives in danger to protect and serve the lives of you and
me and him. And to come into a court of law and make those kind of wild claims
that are unfounded and unsupported by any evidence is unspeakable.
We conclude that to the extent that the prosecutor’s statements constituted an improper
civic duty argument, any minimal prejudice from the statements was cured by the court’s jury
instructions. The court instructed the jurors it was their responsibility to “return a true and just
verdict based only on the evidence” and the court’s instructions, and cautioned that they “must
not let sympathy or prejudice influence [their] decision.” Therefore, we conclude that even
assuming that the prosecutor’s discussion constituted an improper civic duty argument,
defendant cannot establish prejudice. See Thomas, 260 Mich. App. at 456.
Defendant also argues that the prosecutor put the prestige of her office in issue and
inappropriately bolstered her case, which encouraged the jurors to suspend their own powers of
critical analysis. Defendant challenges the following argument:
There is no reasonable doubt as to what occurred on May 3, 2015. And, in
fact, I would submit to you that the Prosecution has met its burden beyond any
shadow of a doubt. It’s not very often that I say that. We ask you to find the
Defendant guilty as charged because he is guilty as charged.
It is well understood that prosecutors must not express their personal opinions of a
defendant’s guilt. See People v Bahoda, 448 Mich. 261, 286; 531 NW2d 659 (1995). In this
case, however, the prosecutor did not use the prestige of her office to express her personal
opinion of defendant’s guilt. Instead, she was merely arguing that the prosecution had met its
burden of proof. Her assertion that she does not often express such confidence to a jury is only
an expression of her conviction that defendant’s guilt had been established by the evidence
adduced. Utilizing the phrases “I would submit to you” and “[w]e ask you to find” did not ask
the jurors to suspend their own powers of critical analysis. Rather, the comments explicitly
invoked the jury’s role in deciding defendant’s guilt or innocence. Therefore, defendant’s
argument is without merit.
Affirmed.
/s/ Michael F. Gadola
/s/ Kathleen Jansen
/s/ Henry William Saad
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