People v. Hanna

567 N.W.2d 12, 223 Mich. App. 466

• Court: Michigan Court of Appeals
• Decided: August 6, 1997
• Docket: Docket 183094
• Status: Published

Opinions

Griffin, J.

Defendant was convicted by a jury of operating a motor vehicle while under the influence of liquor, MCL 257.625; MSA 9.2325, and attempting to resist and obstruct a police officer, MCL 750.479; MSA 28.747, MCL 750.92; MSA 28.287. He pleaded guilty of being a third-time OUIL offender and was sentenced to concurrent terms of two to five years’ imprisonment for the OUIL 3rd conviction and six months to one year for the attempted resisting and obstructing conviction. Defendant appeals as of right both convictions. We affirm. In doing so, we hold that, under the totality of the circumstances of this case, the police did not violate defendant’s Fourth Amendment rights by briefly restraining him with a pain compliance device in order to execute a warrant for a blood sample.

i

After the police stopped defendant for speeding, he stumbled out of his vehicle, stood unsteadily, and with slurred speech admitted that he had been drinking. Thereafter, defendant failed a field sobriety test, refused to take a Breathalyzer examination, and vomited in his jail cell. While arresting officers Bradley LaCross and Michael Troyer drove defendant to a hospital to execute a warrant to draw a sample of defendant’s blood, defendant proclaimed repeatedly in a loud, angry voice that he would not permit anyone to draw his blood.

Defendant became “very uncooperative” at the hospital and refused to lie on the examination table. Defendant jerked his arm away from the laboratory technician who attempted to draw his blood. Concerned about the safety threat posed by defendant’s evasive conduct, the two officers restrained defendant by laying him on the examination table and applying for “a few seconds” “Do-Rite sticks”¹ to pressure points on defendant’s wrists. The pressure subdued defendant, who then relaxed and permitted the laboratory technician to draw his blood.

Officer LaCross described Do-Rite sticks as being two plastic rods connected with a one-inch cord. The device is used by wrapping the cord around certain pressure points and exerting pressure by briefly pulling or twisting the handles.² LaCross testified that the device inflicts a “quick and simple” discomfort that causes no injury or lasting pain. According to LaCross, all Sault Ste. Marie police officers receive training before receiving certification to carry and use Do-Rite sticks.

After trial, defendant claimed that the use of Do-Rite sticks constitutes cruel and unusual punishment. The trial court rejected defendant’s argument finding that, under the circumstances of this case, the police used Do-Rite sticks “in a reasonable fashion[]” to “subdue” defendant and execute the warrant.

n

Defendant claims that it is “cruel and unusual for the police to have the ability to forcibly draw blood from an individual for a violation of the motor vehicle code.” However, because defendant cites no authority to support this proposition, we consider the issue to be waived. People v Piotrowski, 211 Mich App 527, 531; 536 NW2d 293 (1995). Furthermore, the Eighth Amendment is inapplicable because defendant was only a detainee at the time of the alleged misconduct. Brewer v Perrin, 132 Mich App 520, 529, n 3; 349 NW2d 198 (1984), citing Bell v Wolfish, 441 US 520, 535, n 16; 99 S Ct 1861; 60 L Ed 2d 447 (1979).

Nevertheless, the dissent cites Rochin v California, 342 US 165, 166; 72 S Ct 205; 96 L Ed 183 (1952), for the proposition that the use of Do-Rite sticks to subdue a combative detainee violates the Due Process Clause of the Fourteenth Amendment. However, in Graham v Connor, 490 US 386, 388, 392-393, 394; 109 S Ct 1865; 104 L Ed 2d 443 (1989), the United States Supreme Court specifically rejected the amorphous “substantive due process,” or “shock the conscience” approach applied in Rochin, supra, and held that excessive force claims must be analyzed under the Fourth Amendment’s “objective reasonableness” standard. See also Lester v Chicago, 830 F2d 706, 710-711 (CA 7, 1987). Thus, the issue is whether the search and seizure is unreasonable under the Fourth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment; not whether the search and seizure violates Due Process. See Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 127-128; 445 NW2d 61 (1989) (Brickley, J., dissenting); Lester, supra at 710-711.

In determining the reasonableness of a particular seizure, we must carefully balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, supra at 396 (internal quotations marks omitted); see People v Holloway, 416 Mich 288, 299; 330 NW2d 405 (1982). In excessive force cases, we determine if the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, not with 20/20 hindsight. Graham, supra at 397; Hammer v Gross, 932 F2d 842, 846 (CA 9, 1991). Because drawing blood is not, in itself, unreasonable under the Fourth Amendment, see Schmerber v California, 384 US 757, 771; 86 S Ct 1826; 16 L Ed 2d 908 (1966); People v Perlos, 436 Mich 305, 313; 462 NW2d 310 (1990), we must decide whether police officers may use Do-Rite sticks to subdue a suspect who is resisting a legal warrant to draw blood.

No Michigan case directly addresses this issue. However, in Holloway, supra, our Supreme Court held that the police acted reasonably in pressing on the suspect’s throat and pinching the pressure points on his jaw to gain access to and search his mouth for hidden evidence. See also Wayne Co Prosecutor v Recorder’s Court Judge, 149 Mich App 183, 187; 385 NW2d 652 (1986). Thus, it is not necessarily unreasonable for police to painfully manipulate pressure points as a means to search for dissolvable evidence. Holloway, supra-, Recorder’s Court Judge, supra. Because pain compliance techniques are not necessarily illicit, Holloway, supra, the issue is not whether Do-Rite sticks are unconstitutional because they cause temporary pain. Rather, the issue is whether the kind or degree of pain caused by Do-Rite sticks is unreasonable under the circumstances of this case.

In Forrester v San Diego, 25 F3d 804 (CA 9, 1994), cert den 513 US 1152; 115 S Ct 1104; 130 L Ed 2d 1070 (1995), the Ninth Circuit Court of Appeals addressed the reasonableness of using a device similar to Do-Rite sticks. In a 2-1 decision, the majority upheld a jury finding that San Diego police officers did not use excessive force in using “Orcutt Police Nonchakus” (two wooden sticks each connected at one end by a cord) to disperse demonstrators who resisted arrest by going limp. Noting that the device seemed to cause less pain than other permissible compliance techniques, the Forrester majority held that police acted reasonably in twisting the device around the wrists of demonstrators whom they were trying to arrest or disperse. Id. at 807, 809. The dissent agreed that intentional infliction of pain by police is not unconstitutional per se. Id. at 814 (Kleinfeld, J., dissenting). However, the dissenting judge opined that, because the technique proved totally ineffective at moving the limp demonstrators, the continued use of the device was done to “punish” nonviolent, passively resisting demonstrators “for refusing to get up and walk.” Forrester, swpra at 811-813. Because it was used for no reason other than to punish, the dissenting judge deemed the continued use of the device to be unreasonable. Id.

m

In the present case, after evaluating the totality of the circumstances, we agree with the ruling of the trial court and hold that the police acted reasonably in briefly using Do-Rite sticks to subdue defendant and ensure the safe execution of the search warrant. First, the police clearly had a strong and legitimate interest in executing the warrant to draw defendant’s blood as soon as possible. See Perlos, supra at 327-328. Further, the laboratory technician testified that he could not have safely drawn defendant’s blood unless defendant ceased his combative conduct. Indeed, were he not pacified, defendant could have injured himself or others by causing the needle to inadvertently lacerate or break. With the obvious harm inherent by a misdirected or broken needle, the police were legitimately concerned about subduing defendant in order to facilitate the safe and effective execution of the warrant. Otherwise, defendant could, have caused injury and thwarted the execution of the warrant.

Second, the nature and quality of the intrusion on defendant’s person was not severe, unnecessary, or unduly intrusive. Officer LaCross and the laboratory technician testified that defendant was so combative that handcuffs and bed restraints would not have effectively prevented him from moving during the drawing of his blood. Even if the two officers were large and strong enough to control the defendant without using Do-Rite sticks, it is doubtful whether the force exerted in physically overpowering, positioning, and holding the combative defendant would have been less violent or caused less pain than the quick application of the Do-Rite sticks. In addition, we question whether without extreme force or the potential for pain the two officers could have held defendant still enough to ensure a safe, effective blood test. On this issue, we agree with the Ninth Circuit majority in Forester, supra at 807-808 that

[p]olice officers ... are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer on the scene. See Graham, 490 US at 396. . . . Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue. See Hammer, 932 F2d 846.

Defendant makes no claim that the sticks caused him severe pain or injury. On the contrary, the laboratory technician testified that defendant showed no signs of pain whatsoever. Furthermore, unlike the scene depicted by the dissenter in Forrester, the evidence in this case does not establish that the police used Do-Rite sticks simply to punish. Rather, Officer LaCross applied the sticks only for a few seconds to subdue and protect the safety of the combative defendant. Under these circumstances, we agree with the trial court that the Do-Rite sticks were reasonably applied and constituted a reasonable means of controlling defendant and executing the search warrant. Indeed, the pain caused by the brief application of Do-Rite sticks appears less severe than the choke hold and jaw poking our Supreme Court deemed reasonable in Holloway. If the use of Do-Rite sticks were held to be unreasonable simply because they briefly inflict pain, then not only is Holloway wrongly decided, but arm twisting, limb holds, and many other commonly used and essential compliance methods would be unconstitutional. We will not subscribe to such an oppressive and unnecessary restriction of law enforcement.

IV

There is no merit in defendant’s remaining issues on appeal. Defendant claims that a new trial is required because there were no black jurors. However, defendant did not challenge the jury array below, and he cites no legal authority to support his argument on appeal. Therefore, defendant has abandoned this unpreserved issue. People v Hubbard (After Remand), 217 Mich App 459, 465; 552 NW2d 493 (1996); Piotrowski, supra at 530. In any event, defendant has not shown that black citizens were purposely or systematically excluded from the jury. Hubbard, supra at 473.

Defendant also argues that the trial court committed error requiring reversal in admitting testimony regarding defendant’s performance on field sobriety tests. However, defendant again fails to cite authority in support of his argument. Thus, this issue is also abandoned. Piotrowski, supra at 530. Nevertheless, the evidence was relevant to establish defendant’s drunkenness and lay witnesses are qualified to testify about the opinions they form as a result of direct physical observation. MRE 701; Lamson v Martin (After Remand), 216 Mich App 452, 459; 549 NW2d 878 (1996).

Next, defendant contends that the search warrant authorizing police to draw defendant’s blood was not based on probable cause. We disagree. Defendant’s preliminary breath test, which indicated a 0.169 blood alcohol level, in itself justifies a reasonable person’s conclusion that defendant’s blood could reveal an alcohol level exceeding the limit for lawful driving. See, generally, People v Stumpf, 196 Mich App 218, 226-227; 492 NW2d 795 (1992); People v Tracy, 186 Mich App 171, 174; 463 NW2d 457 (1990). This is especially true where defendant staggered out of his vehicle, admitted that he had been drinking, made several errors in reciting the alphabet, and vomited in his jail cell. Stumpf, supra at 226-227.

Defendant also argues that the results of his blood test were inadmissible because his blood was not timely drawn. Again, we disagree. The reasonableness of any time lapse is consigned to the trial court’s sound discretion. People v Schwab, 173 Mich App 101, 104; 433 NW2d 824 (1988). We find no abuse of discretion. Particularly where an expert testified that the delay was reasonable, a seventy-minute delay, without more, does not render the blood evidence inadmissible. See People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838 (1995).

Next, defendant claims that reversal is required because a police officer testified that he requested a “pby” (preliminary breath test) from defendant. However, the trial court ordered the testimony stricken, and the jurors did not leam of the test results. Contra People v Keskinen, 177 Mich App 312, 319-320; 441 NW2d 79 (1989). Under these circumstances, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a new trial on this basis. People v Herbert, 444 Mich 466, 477; 511 NW2d 654 (1993); see People v McAlister, 203 Mich App 495, 504; 513 NW2d 431 (1994).

Defendant also argues that the prosecutor committed several instances of misconduct. We disagree. In any event, even if we assume arguendo that the prosecutor made some improper remarks, the prejudicial effect of the unobjected-to and relatively innocuous comments was not so great that they could not have been cured by a cautionary instruction. People v Vaughn, 186 Mich App 376, 385; 465 NW2d 365 (1990).

Defendant contends that the trial court should have granted defendant a new trial because the trial court admitted testimony regarding defendant’s willingness to “make a deal.” However, because the trial court sustained defendant’s objection and followed both parties’ motions to strike this testimony from the record, we find no error. See McAlister, supra at 504.

Next, defendant claims that he was denied the effective assistance of counsel. We disagree. After a thorough review of the record, we conclude that defendant has neither sustained his burden of proving that counsel made a serious error that affected the result of trial nor overcome the presumption that counsel’s actions were strategic. People v LaVearn, 448 Mich 207, 213; 528 NW2d 721 (1995); People v Stanaway, 446 Mich 643, 666, 687-688; 521 NW2d 557 (1994); see also People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated in part on other grounds 453 Mich 900 (1996).

Finally, defendant contends that the verdict was against the great weight of the evidence. We disagree. There was ample evidence to sustain defendant’s convictions. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).

Affirmed.

Gribbs, P.J., concurred.

1 This device is spelled inconsistently in the briefs and record as either “Do-Rite” or “Do Right.”

2 Because the use of these Do-Rite sticks was not made an issue at trial, the record does not fully depict how this device is made or used.