People of Michigan v. Michael Paul Morgan ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 20, 2024
Plaintiff-Appellee, 2:50 PM
v No. 360170
Iosco Circuit Court
MICHAEL PAUL MORGAN, LC No. 21-002810-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and BORRELLO and N. P. HOOD, JJ.
PER CURIAM.
Defendant, Michael Paul Morgan, appeals as of right his jury-trial conviction of one count
of assaulting, resisting, or obstructing a police officer, MCL 750.81d(1). The trial court sentenced
Morgan as a third-offense habitual offender, MCL 769.11, to serve one year in jail. On appeal,
Morgan argues that he was denied effective assistance of counsel when his trial counsel failed to
request specific jury instructions related to the charged offense. He also argues that the imposition
of court costs violated his constitutional rights. Finding no error, we affirm.
I. BACKGROUND
This case arises out of Morgan’s conduct at a U.S. Forest Service office in Oscoda
Township, Michigan. Officers with the Michigan Department of Natural Resources (DNR) and
U.S. Forest Service had been investigating a series of thefts from “pay pipes” or “fee pipes”1
throughout several state campgrounds and state forests in Northern Michigan. The officers
suspected that Morgan and his wife, Tiffany Gangle, were involved in the thefts and invited them
1
A “pay pipe,” “fee pipe,” “pay tube,” or “fee tube” is device similar to a collection box used to
collect payment at campgrounds when a ranger or attendant is not present. A camper may place
payment in an envelope with their name and site number and push the envelope into the pay tube
for later collection, keeping a stub as receipt. It operates on the “honor system.”
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to a Forest Service office under the pretense of an interview for a job as Forest Service campground
hosts.
Morgan and Gangle arrived at the Forest Service office in an older model SUV that
matched the description of the vehicle the officers had been looking for related to the thefts.
Gangle entered the office for the interview while Morgan waited in the vehicle. In the office, two
officers began questioning Gangle about the thefts, and Gangle voluntarily answered their
questions. Meanwhile, two uniformed DNR officers and a plain-clothes Forest Service detective2
approached Morgan in the parking lot. They identified themselves and asked Morgan to exit his
vehicle. He exited the vehicle and allowed the officers to search him for weapons. Unknown to
Morgan, when the officers approached the vehicle, they in-hand search warrants for his cell phone
and vehicle.
When speaking with the officers, Morgan denied having any knowledge about the pay pipe
thefts. The officers then showed Morgan photos they had as evidence of the thefts. They also
showed him copies of search warrants for his vehicle and cell phone. Morgan returned the search
warrants after viewing them and asked if he was free to leave. An officer advised Morgan that he
was free to leave but explained that they would need his cell phone and the keys to his vehicle.
Morgan then asked if Gangle was free to leave, and an officer informed him that she was
voluntarily answering questions in the Forest Service office. The detective advised Morgan that
he could not enter the office because he would be interfering with a Forest Service investigation.
But Morgan began yelling and running toward the office. An officer testified that he chased
Morgan and yelled for him to stop multiple times, but Morgan did not comply. The officer then
grabbed Morgan as he reached the office, but Morgan pulled his arm away and entered. Morgan
interrupted Gangle’s interview, yelling that he had “power of attorney” over Gangle and that the
police had to end their questioning. The officers eventually removed Morgan from the office and
arrested him for resisting and obstructing a police officer.
At trial, the DNR officers testified about their interaction with Morgan. One of the officers
recorded part of the interaction with Morgan. The officer did not begin recording the interaction
until it began to escalate, recording approximately three minutes of the interaction. The
prosecution introduced that audio recording into evidence. The recording captured the Forest
Service detective warning Morgan that he would be interfering with an investigation if he entered
the Forest Service office.
Morgan’s primary defense at trial was that he did not hear the officers’ commands to not
enter the office or to stop as he moved toward it. Morgan testified in his defense. He claimed that
he did not hear commands from the officers prior to his arrest and that the officers had walked a
distance away from Morgan before giving the commands. Defense counsel had also cross-
examined the officers on whether the commands were audible in a recording of the arrest. The
2
During the trial, the DNR officers identified the Forest Service employee as a Forest Service
“detective,” not a “special agent.” To the extent any distinction exists, it is immaterial to our
resolution of this appeal. They described him as dressed in plain clothes, but with his badge and
firearm visible on his hip.
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defense did not focus or explicitly challenge the lawfulness of the commands or the lawfulness of
the police conduct.
To that end, the defense did not request a jury instruction on the lawfulness of the arrest.
Prior to instructing the jury, the trial court reviewed the final instructions with counsel for both
sides. The defense explicitly stated that it had no objections to the proposed jury instructions.
Those instructions did not include an instruction on the lawfulness of the police conduct or a
special unanimity instruction. They did, however, include the pattern instruction on unanimity, M
Crim JI 3.11(3).
The jury ultimately found Morgan guilty of assaulting, resisting, or obstructing a police
officer.
After trial, Morgan moved for a new trial, claiming ineffective assistance of counsel. After
a hearing on the motion, the trial court granted Morgan a Ginther3 hearing. During the hearing,
defense counsel testified that he decided not to request that the trial court instruct the jury using M
Crim JI 13.5 (the pattern jury instruction on lawful police conduct) or a specific unanimity
instruction. He believed they were not appropriate for the facts of Morgan’s case because they
conflicted with his defense theory (i.e., that Morgan could not hear the officers). Defense counsel
was aware of the caselaw regarding both jury instructions, but he believed that the instructions
provided by the court adequately informed the jury as to his theory and that additional instructions
would cause the jury to focus on Morgan’s multiple potentially obstructive acts. Defense counsel
also testified that he consulted with Morgan’s previous counsel when making his decision to not
request the additional instructions.
After the Ginther hearing, the trial court found that defense counsel was not ineffective,
and it denied Morgan’s motion for a new trial. The trial court found that defense counsel’s
decisions amounted to a reasonable trial strategy and concluded that it could not find “that [defense
counsel]’s strategy to keep it confined to maybe one act, that he was trying to get the jury to bite
on was—or fell below an objective standard of reasonableness under prevailing professional
norms.” This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Morgan argues that he was denied the right to a properly instructed jury because the trial
court failed to provide M Crim JI 13.5 in its final instructions, and that he was denied the right to
a unanimous jury verdict because the trial court failed to provide a specific unanimity instruction.
In the alternative, he argues that his defense counsel was ineffective by failing to request these
instructions.
As an initial matter, we conclude that by expressly and explicitly approving of the jury
instructions at trial, Morgan has waived his challenges to the jury instructions. People v Spaulding,
332 Mich App 638, 653; 957 NW2d 843 (2020) (“A party’s explicit and express approval of jury
instructions as given waives any error and precludes appellate review.”). Therefore, our review is
3
People v Ginther, 390 Mich 436, 445; 212 NW2d 922 (1973).
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limited to Morgan’s argument that defense counsel was ineffective for failing to request the
omitted instructions.
Whether counsel was ineffective presents a mixed question of fact and law, and factual
findings are reviewed for clear error, whereas questions of law are reviewed de novo. People v
Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). “The trial court’s findings are clearly
erroneous if this Court is definitely and firmly convinced that the trial court made a mistake.”
People v Shaw, 315 Mich App 668, 672; 892 NW2d 15 (2016). Because Morgan moved for an
evidentiary hearing on this basis, his claim is preserved. People v Abcumby-Blair, 335 Mich App
210, 227; 966 NW2d 437 (2020).
An ineffective-assistance-of-counsel claim has two parts: (1) deficiency and (2) prejudice.
People v Fyda, 288 Mich App 446, 450; 793 NW2d 712 (2010). See also Strickland v Washington,
466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “To establish a claim of ineffective
assistance of counsel a defendant must show that counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the defense.” Fyda, 288 Mich App at 450. Regarding
the first prong, deficiency, “[t]rial counsel’s performance is deficient when it falls below an
objective standard of professional reasonableness.” People v Hughes, 339 Mich App 99, 105; 981
NW2d 182 (2021). “When reviewing defense counsel’s performance, the reviewing court must
first objectively determine whether, in light of all the circumstances, the identified acts or
omissions were outside of the wide range of professionally competent assistance.” Id. at 105-106
(quotation marks and citation omitted). The second prong, prejudice, requires a defendant to
“show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” People v Leffew, 508 Mich 625, 637; 975 NW2d
896 (2022) (quotation marks and citation omitted). “Reasonable probability means a probability
sufficient to undermine confidence in the outcome.” Id. at 637 (quotation marks and citation
omitted).
Both of Morgan’s claimed deficiencies relate to counsel not requesting specific jury
instructions. Regarding instructional error, “[a] criminal defendant has the right to have a properly
instructed jury consider the evidence against him.” People v Ogilvie, 341 Mich App 28, 34; 989
NW2d 250 (2022) (quotation marks and citation omitted). “One of the essential roles of the trial
court is to present ‘the case to the jury and to instruct it on the applicable law’ with instructions
that include ‘all the elements of the offenses charged against the defendant and any material issues,
defenses, and theories that are supported by the evidence.’ ” People v Craft, 325 Mich App 598,
606-607; 927 NW2d 708 (2018), quoting People v Dobek, 274 Mich App 58, 82; 732 NW2d 546(2007).
Both of Morgan’s claimed deficiencies are not just tied to instructional error, but are
specifically tied to instructions on the charge: resisting and obstructing a police officer, MCL
750.81d. The charge of resisting or obstructing a police officer requires the prosecution to prove:
“the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police
officer, and . . . the defendant knew or had reason to know that the person that the defendant
assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police officer
performing his or her duties.” People v Vandenberg, 307 Mich App 57, 68; 859 NW2d 229 (2014).
This breaks down into at least three elements. See id. See also M Crim JI 13.1. First, the
prosecution must prove that the defendant resisted or obstructed a police officer. See Vandenberg,
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307 Mich App at 68. “Obstruct” includes the knowing failure to comply with a lawful command.
See MCL 750.81d(7)(a). Second, the prosecution must prove that the defendant knew or had
reason to know the specific officer was an officer performing their duties at the time. Vandenberg,
397 Mich App at 68. And, third, the prosecution must prove that the specific officer gave the
defendant a lawful command, was making a lawful arrest, or was otherwise performing a lawful
act. People v Moreno, 491 Mich 38, 58; 814 NW2d 624 (2012). Depending on the case and the
charge, each of these elements may require additional or niche instructions. For example, MCL
750.81d does not “abrogate the common-law right to resist unlawful arrests or other unlawful
invasions of private rights.” Moreno, 491 Mich at 58. “[T]he lawfulness of the arrest” is an
element of resisting a police officer and is “a factual question for the jury.” Vandenberg, 307 Mich
App at 68-69. Therefore, “ ‘the prosecution must establish that the officers’ actions were lawful.’
” Id. at 68, quoting Moreno, 491 Mich at 52.
Morgan first argues that the legality of the officers’ conduct and commands was central to
his defense theory at trial, and that M Crim JI 13.5 was necessary for the jury to evaluate the
lawfulness of the officers’ conduct. He argues that his counsel was deficient for failing to request
this instruction. We disagree. The record does not support Morgan’s claim. While defense
counsel generally referenced “lawfulness” in his opening and closing arguments, Morgan never
directly challenged the lawfulness of the officers’ commands at trial. Instead, defense counsel
explained that his theory at trial was that Morgan simply did not hear the commands and that he
therefore lawfully entered the office. Morgan even testified that he did not believe the officers’
conduct was unlawful. Further, the trial court instructed the jury on the elements of resisting and
obstructing, including that the prosecution had the burden to prove that the officers “gave the
defendant a lawful command, was making a lawful arrest, or was otherwise performing a lawful
act.” There is no basis to conclude that the jury was not properly instructed as to the material
issues and defenses raised at trial. See Craft, 325 Mich App at 606-607. Accordingly, M Crim JI
13.5 was not necessary or appropriate, and counsel was not ineffective for failing to make a
meritless objection or argument. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120(2010). We therefore conclude that Morgan has not established ineffective assistance of counsel
related to M Crim JI 13.5 because he has not established that defense counsel was deficient by not
requesting it.
Morgan next argues that defense counsel was deficient for failing to request a specific
unanimity instruction. He argues that there were several materially distinct acts in this case, each
of which, if proven, would have been sufficient to satisfy the elements of assaulting, resisting, or
obstructing a police officer. Morgan contends that defense counsel rendered ineffective assistance
by failing to request a specific unanimity instruction. We again disagree.4
Criminal defendants are afforded the right to a unanimous jury verdict. MCR 6.410(B).
“In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to
4
We observe that Morgan has not raised a double jeopardy challenge to a potentially duplicitous
charge. See generally People v Oliphant, 399 Mich 472, 513 n 16; 250 NW2d 443 (1976) (LEVIN,
J., dissenting) (stating that “[t]he law prohibits the filing of a duplicitous information because it
recognizes the difficulty of defending against multiple charges.”).
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properly instruct the jury regarding the unanimity requirement.” People v Cooks, 446 Mich 503,
511; 521 NW2d 275 (1994). A general unanimity instruction ordinarily is sufficient to protect a
defendant’s right to a unanimous verdict. Id. at 512. A specific unanimity instruction is required
where “the alternative acts are materially distinct (where the acts themselves are conceptually
distinct or where either party has offered materially distinct proofs regarding one of the
alternatives), or . . . there is reason to believe the jurors might be confused or disagree about the
factual basis of defendant’s guilt.” Id. at 524.
Morgan argues that the jurors could have believed that he violated the above statute when
he (1) failed to obey commands to not enter the Forest Service building, (2) interfered with the
execution of the search warrant, (3) failed to stop when ordered by an officer, or (4) engaged in
multiple alleged acts of physical resistance in the lobby. However, the acts Morgan references are
not materially distinct and did not require a specific unanimity instruction. Each act constituted
part of the same criminal transaction, lasting less than four minutes. The officers advised Morgan
that he could not enter the office, and Morgan quickly moved toward the office door. An officer
chasing Morgan yelled for him to stop multiple times and grabbed Morgan’s arm before Morgan
pulled his arm away. Inside the office, Morgan held onto the reception window as the officers
tried to pull him away. Morgan continued yelling and falling to the ground after the officers finally
arrested him. The acts Morgan identifies belong to one “continuous course of conduct” that did
not require a specific unanimity instruction. See Cooks, 446 Mich at 528. In other words, they
can be viewed as single transaction of obstruction.
Equally important, Morgan did not offer a separate defense to each act. Rather, he argued
only that he did not hear the officers command him to not enter the building or to stop. Therefore,
the jury’s sole duty in Morgan’s case “was to determine the credibility” of Morgan “with respect
to the pattern of alleged conduct.” See id. The trial court instructed the jurors to submit questions
they had during deliberations to the bailiff, and the record reflects that they did not do so. The
record also reflects that the jury returned its verdict after 10 minutes of deliberation. There is no
reason to believe the jury was confused or disagreed about the factual basis of Morgan’s guilt. See
id. Accordingly, a specific unanimity instruction was not required, and defense counsel was not
ineffective for failing to make a meritless objection or argument. See Ericksen, 288 Mich App at
201.
At the Ginther hearing, trial counsel testified that the decision not to request a unanimity
instruction was strategic. It ultimately was an attempt to not draw further attention to the myriad
ways Morgan resisted and obstructed the officers during his interaction with them. We will not
now second guess this trial strategy. Because Morgan has failed to establish that trial counsel was
deficient, he cannot establish his ineffective-assistance-of-counsel claim.
III. ASSESSMENT OF COURT COSTS
Morgan also argues that the trial court’s imposition of court costs pursuant to MCL
769.1k(1)(b)(iii) was unconstitutional. He alleges that the statute violates his due-process right to
be heard by a neutral arbiter and violates separation-of-powers principles. We disagree.
This Court considered and rejected each of the arguments Morgan raises regarding MCL
769.1k(1)(b)(iii) in People v Johnson, 336 Mich App 688; 971 NW2d 692 (2021) (holding that
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MCL 769.1k(b)(iii) does not deny criminal defendants their due-process right to be tried before an
impartial decisionmaker and that it does not violate separation-of-powers principles). Our
Supreme Court initially granted leave to appeal in Johnson and directed the parties to address the
constitutionality of MCL 769.1k(1)(b)(iii). See People v Johnson, 509 Mich 1094 (2022).
However, our Supreme Court subsequently denied leave to appeal. People v Johnson, 511 Mich
1047 (2023). This Court’s holding in Johnson, 336 Mich App 688, is controlling law with respect
to Morgan’s claims, and we are bound by its decision. See MCR 7.215(C)(2) (“A published
opinion of the Court of Appeals has precedential effect under the rule of stare decisis.”); MCR
7.215(J)(1) (“A panel of the Court of Appeals must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or after November 1, 1990, that has not been
reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as
provided in this rule.”). Relying on Johnson, we find no constitutional violation related to the
imposition of court costs.
We affirm.
/s/ Colleen A. O’Brien
/s/ Stephen L. Borrello
/s/ Noah P. Hood
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