Order Michigan Supreme Court
Lansing, Michigan
March 28, 2007 Clifford W. Taylor,
Chief Justice
131985 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Plaintiff-Appellant, Robert P. Young, Jr.
Stephen J. Markman,
Justices
v SC: 131985
COA: 259087
Oakland CC: 2003-191368-FH
CONSTANCE SCHENK,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the July 6, 2006
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE, in part, the judgment of the Court of
Appeals, holding that defense counsel was ineffective for failing to request a limiting
instruction regarding the consideration of the defendant’s actions in resisting arrest as
evidence of obstructing a police officer, and REINSTATE defendant’s conviction for
obstructing a police officer, MCL 750.81d. The record does not support the Court of
Appeals conclusion that jurors were confused about whether the defendant’s post-arrest
behavior could be considered in their deliberations on the charge of obstructing a police
officer. As recognized by both the Court of Appeals majority and dissent, “the
prosecutor consistently presented that his theory of the case was that the offense occurred
when defendant attempted to get around Officer Porta before defendant was arrested.”
While evidence of the defendant’s post-arrest behavior was presented, it was used by the
parties only to address the question of whether the defendant was the victim of police
abuse. Therefore, there was no substantial likelihood of juror confusion justifying a
reversal of the defendant’s conviction pursuant to People v Kelley, 78 Mich App 769
(1977). Furthermore, as trial counsel clearly used the defendant’s post-arrest acts to
support the defense theory of police misconduct, the Court of Appeals clearly erred by
concluding that there was no sound trial strategy that would include foregoing a limiting
instruction pursuant to People v Kelley, supra. In all other respects, leave to appeal is
DENIED, because we are not persuaded that the remaining questions presented should be
reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 28, 2007 _________________________________________
s0321 Clerk