                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 19, 2015
               Plaintiff-Appellee,

v                                                                  No. 324355
                                                                   Oakland Circuit Court
ROOSEVELT HARRISON,                                                LC No. 2014-249611-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals as of right his jury-trial conviction of carrying a concealed weapon
(CCW), MCL 750.227(1), with respect to a knife disguised as a comb and concealed in the
pocket of a coat being worn by defendant. He was sentenced to 60 days in jail and one year of
probation. We affirm.

        Defendant was a passenger in a vehicle that was stopped by the police on February 18,
2014. According to the officer who initiated the traffic stop, he pulled the car over because,
although the vehicle was a Chevrolet Malibu, a LEIN check had revealed that the license plate
was registered to a Kia. As the officer approached the Malibu and made contact with its driver,
he noticed an open can of beer in a paper bag and the smell of marijuana. The driver was able to
produce his driver’s license, but not proper documents for the vehicle, and he was eventually
arrested. Defendant provided the officer with an expired military card and a Michigan
identification card. The officer testified that, with defendant’s consent, he conducted a pat-down
search and discovered a black comb in defendant’s left coat pocket, which the officer returned to
defendant on the belief that it did not present any threat. A video from a dashboard camera
mounted on the officer’s police cruiser was played for the jury, showing images from the traffic
stop. The officer acknowledged that the incident with the black comb did not come into view of
the camera.

       Defendant was arrested by the officer after the officer ran a LEIN check on defendant and
discovered an outstanding warrant. The arresting officer drove defendant to the police station for
booking. The officer testified that during an inventory of defendant’s belongings at the station,
the black comb fell out of defendant’s coat and split into two pieces, revealing a four-inch,
double-sided blade. The comb’s handle also served as a handle for the blade, which blade slid
into a sleeve from which the comb’s teeth protruded, effectively disguising the knife and

                                               -1-
explaining why the officer had disregarded it at the time of the traffic stop. The knife was
admitted into evidence and displayed to the jury, as well as being identified by the officer in
photographs. The jury also heard testimony by a police detective regarding the video recording
of bookings at the police station. The detective testified that, after 30 days, all booking videos
were automatically taped over, as the video system, which was older, recorded on a 30-day loop,
effectively deleting month-old existing footage. The detective confirmed with a records
employee that a request for a copy of defendant’s booking video had not been received until May
9, 2014, at which time the video of defendant’s booking on February 18, 2014, would have been
taped over and purged. Further, as asserted by the detective, there was no need for the police to
retain the video because it was clear to the arresting officer that the comb/knife had fallen out of
defendant’s coat during the booking process.

        Defendant was charged with CCW pursuant to MCL 750.227(1), which provides, in
relevant part, that “[a] person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding
stabbing instrument of any length, or any other dangerous weapon . . . concealed on or about his
or her person[.]” As explained in more detail below, it is clear from the record that the
prosecution’s theory at trial was that defendant had concealed a double-edged, nonfolding
stabbing instrument of any length. Defendant did not argue in any manner whatsoever that the
knife shown to the jury and allegedly discovered by the arresting officer at defendant’s booking
was not a double-edged, nonfolding stabbing instrument or knife. Rather, defendant argued that
the evidence failed to establish that defendant ever possessed or carried the comb-disguised
knife, focusing his argument on the lack of video evidence showing that he had possessed or
carried the knife and challenging the arresting officer’s credibility. The trial court instructed the
jury as follows with respect to the offense:

               The defendant in this case is charged with the crime of carrying a
       concealed weapon. To prove this charge the prosecutor must prove each of the
       following elements beyond a reasonable doubt. First, that the defendant
       knowingly carried a double-edged knife. It does not matter why the defendant was
       carrying the weapon. But to be guilty of this crime the defendant must have
       known that it was a weapon. Second, that this double-edged knife was concealed.
       Complete invisibility is not required. A weapon is concealed if it cannot easily be
       seen by those who come into ordinary contact with the defendant. [Emphasis
       added.]

        This instruction is entirely consistent with M Crim JI 11.2, except for the fact that the
standard instruction specifically refers to a “double-edged, nonfolding stabbing instrument,”
which is the language found in MCL 750.227(1), whereas the given instruction simply referred
to a “double-edged knife.” Defense counsel affirmatively expressed approval of all of the jury
instructions. Defendant was convicted by the jury of CCW.

        On appeal, defendant first argues that the evidence was factually and legally insufficient
to sustain the CCW conviction. In an interrelated argument, defendant contends that the trial
court erred by failing to instruct the jury using language consistent with MCL 750.227 and the
standard instruction, and that defense counsel was ineffective in approving the faulty CCW
instruction that merely referred to a double-edged knife. Before we examine the particulars of
defendant’s arguments, it is necessary to review the caselaw interpreting MCL 750.227(1) in

                                                -2-
order to provide context to and a better understanding of defendant’s claims. In People v Lynn,
459 Mich 53, 58-59; 586 NW2d 534 (1998), our Supreme Court construed MCL 750.227(1),
observing:

               MCL 750.227(1) . . . in effect provides that several categories of knives
       and stabbing instruments are dangerous weapons per se. If the jury finds that the
       object is a “dagger,” “dirk,” “stiletto,” or a “double-edged nonfolding stabbing
       instrument,” no further inquiry is required regarding whether the item is within
       the class of weapons the carrying of which in a vehicle is prohibited. If an item
       does not fall within one of those categories, the prosecution must proceed on the
       theory that it falls within the “other dangerous weapon” category. See People v
       Brown, 406 Mich 215, 222-223; 277 NW2d 155 (1979)[, wherein we stated]:

              “Accordingly, we . . . hold that where a defendant is charged with carrying
       a ‘dangerous weapon’ contrary to MCL 750.227 . . ., the burden is on the
       prosecution to prove that the instrument carried by the defendant is a dangerous
       weapon per se or that the instrument was used, or intended for use, as a weapon
       for bodily assault or defense. The fact that a pointed instrument, such as a
       machete, has great potential as a dangerous weapon does not render it a dangerous
       weapon per se. Thus, in the instant case, mere proof that defendant knew that a
       machete could be used as a dangerous weapon does not support a conviction
       under MCL 750.227 . . . .”

              In this case, the prosecution chose to proceed on the theory that the knives
       in question were “double-edged nonfolding stabbing instruments.” The
       prosecution could have claimed in the alternative that, even if not dangerous
       weapons per se, these knives were in fact dangerous weapons. However, it did not
       do so. [Citations omitted.]

        Accordingly, if the instrument at issue is a dagger, dirk, stiletto, or double-edged,
nonfolding stabbing instrument, it is a dangerous weapon per se for purposes of MCL
750.227(1). But if the instrument does not fall into any of those categories, the prosecution can
only establish the crime by resort to the catchall provision of MCL 750.227(1) (“any other
dangerous weapon”), which requires evidence specifically showing that the instrument was used,
or intended for use, as a weapon for bodily assault or defense. We note that in People v Smith,
393 Mich 432, 436; 225 NW2d 165 (1975), the Michigan Supreme Court ruled that, solely in the
context of subsection (1) of MCL 750.227, the reference to “any other dangerous weapon” is
“limited to [dangerous] stabbing weapons.” (Emphasis added.) And M Crim JI 11.4(1) provides
that “[a] dangerous stabbing weapon is any object that is carried as a weapon for bodily assault
or defense and that is likely to cause serious physical injury or death when used as a stabbing
weapon.” The jury was not given this instruction, presumably because the prosecution
proceeded on the basis that the knife at issue was a dangerous weapon per se, i.e., a double-
edged, nonfolding stabbing instrument, and not on the basis that the knife fell within MCL
750.227(1)’s catchall category of “any other dangerous weapon.”

        Returning to defendant’s appellate arguments, he claims that there was no evidence that
the instrument or knife was a “stabbing instrument” and thus it was not dangerous per se, nor

                                               -3-
was there any evidence that the knife was carried by defendant for assaultive or defensive
purposes, assuming application of the catchall provision regarding any other dangerous weapon.
This argument dovetails into defendant’s next assertion that the trial court erred when it failed to
instruct the jury of the prosecution’s burden to prove that the instrument constituted a “stabbing
instrument” for purposes of the language in MCL 750.227(1) alluding to a “double-edged
nonfolding stabbing instrument of any length,”1 which would make the knife dangerous per se.
Defendant also contends that defense counsel was ineffective for essentially waiving the error by
approving the CCW instruction that required the prosecutor to merely show concealment of a
double-edged knife. Defendant also notes that the trial court did not instruct the jury on the need
for the prosecution to show that the knife was used, or intended for use, as a weapon for bodily
assault or defense, if indeed the prosecution was attempting to employ the catchall provision of
MCL 750.227(1).

         As indicated above, the jury was instructed that the prosecution had to prove “that the
defendant knowingly carried a double-edged knife.” Contrary to the prosecution’s alternative
argument in support of affirmance of the conviction, we initially accept the proposition that the
conviction cannot be upheld under the catchall provision of MCL 750.227(1). We reach this
conclusion considering that, as mentioned above, the prosecution clearly did not pursue the
charge on that basis and because the jury was not instructed on the definition of a dangerous
stabbing weapon, M Crim JI 11.4, which would be implicated when applying the catchall
provision and require proof that the knife was carried as a weapon for bodily assault or defense
and likely to cause serious physical injury or death when used as a stabbing weapon. See also
Lynn, 459 Mich at 59. Indeed, M Crim JI 11.2, the applicable CCW instruction in this case,
contains an asterisk after the term “weapon” is used, with the asterisk being explained in the Use
Note and directing the court to instruct the jury on the definition of the weapon at issue; either a
“dangerous stabbing weapon” as defined in M Crim JI 11.4 (catchall), or a dirk, dagger, or
stiletto as defined in M Crim JI 11.5. The Use Note further provides that “[i]f the defendant is
charged with carrying a double-edged, nonfolding stabbing instrument, no further definition of
that term is necessary.” Given that neither M Crim JI 11.4 or 11.5, nor their principles, were
read to the jury in this case, and considering the trial court’s use of the term “double-edged” in
the given instruction, we can only conclude that the prosecution did not pursue the charge on the
basis that the knife constituted a dirk, dagger, stiletto, or any other dangerous weapon (catchall),
leaving only the provision regarding double-edged, nonfolding stabbing instruments as the
theory of prosecution.

       With respect to the knife being dangerous per se as a double-edged, nonfolding stabbing
instrument, the jury was not specifically asked to determine whether the knife constituted a
“stabbing instrument.” Indeed, it is not entirely clear what the language “stabbing instrument”
demands in terms of proof. The prosecution insists that a “knife” is a “stabbing instrument,” and
therefore, when the jury found that defendant had concealed a double-edged knife, it effectively


1
  Defendant focuses on the “stabbing instrument” language of MCL 750.227(1), not the
“nonfolding” or “of any length” language. We note that the knife was nonfolding and that the
knife’s blade was about four inches in length.


                                                -4-
found that he had concealed a double-edged stabbing instrument. And thus reversal is entirely
unnecessary, despite the trial court not using the precise language found in the statute and
standard jury instruction. There can be no reasonable dispute that a double-edged knife, in
general, can be utilized as a stabbing instrument in a given situation, as can most knives for that
matter.2 Whether more needs to be established, such as evidence showing actual or envisioned
use of a particular knife as a stabbing instrument, showing that it was constructed or designed to
be a stabbing instrument, or showing an intent to use the knife as a stabbing instrument, is
perhaps debatable. Defendant maintains that it is unclear whether the instrument “was meant to
be a stabbing instrument” and that the instrument “does, in fact, look like a letter opener.”
Defendant notes that at the preliminary examination, as reflected in the transcript, he initially
sought to admit testimony that the instrument at issue was a letter opener used by notaries, but
then decided against pursuing the issue at the time. The matter was not raised again at the trial.
A letter opener can be viewed as being a “knife” of sorts and is clearly not designed to be a
stabbing instrument, although it certainly can be used as such. We do note that, as discussed
earlier, the Use Note for M Crim JI 11.2 indicates that it is unnecessary to define for the jury the
meaning of a double-edged, nonfolding stabbing instrument. One might reasonably dispute this
observation.

        Ultimately, defendant, through counsel, was agreeable to simply having the jury decide
whether the instrument at issue was a double-edged knife, removing from the jury’s
consideration whether the knife was a “stabbing instrument.” We do find, on de novo review,
that the direct and circumstantial evidence, when viewed in a light most favorable to the
prosecution and resolving all conflicts in the evidence in favor of the prosecution, while
deferring to the jury’s assessment of witness credibility, was clearly sufficient for the jury to find
that defendant carried, in a concealed manner, a double-edged knife. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002);
People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999); People v Wolfe, 440 Mich 508,
514-515; 489 NW2d 748 (1992); People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57
(2008); People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). The arresting officer’s
testimony and the admission of the knife and a photograph of the knife sufficed to support the
verdict as to a double-edged knife.

        Assuming that the trial court erred in not instructing the jury that the prosecution was
required to prove that the instrument in dispute was a “stabbing instrument,” reversal is
nevertheless unwarranted under the particular circumstances of this case. In People v Kowalski,
489 Mich 488, 501-502; 803 NW2d 200 (2011), our Supreme Court set forth the following
principles regarding claims of instructional error:

              A criminal defendant has a constitutional right to have a jury determine his
       or her guilt from its consideration of every essential element of the charged
       offense. A defendant is thus entitled to have all the elements of the crime



2
 We do note that MCL 750.227(1) makes an exception for “a hunting knife adapted and carried
as such.”


                                                 -5-
       submitted to the jury in a charge which is neither erroneous nor misleading.
       Instructional errors that omit an element of an offense, or otherwise misinform the
       jury of an offense’s elements, do not necessarily render a criminal trial
       fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
       Accordingly, an imperfect instruction is not grounds for setting aside a conviction
       if the instruction fairly presented the issues to be tried and adequately protected
       the defendant’s rights. [Citations, quotations marks, ellipses, alteration brackets,
       and emphasis omitted.]

        The CCW instruction fairly presented the issues to be tried and adequately protected
defendant’s rights, considering that the focus of the trial and the substance of the defense
pertained to the issue regarding whether defendant carried or possessed the knife, not whether it
constituted a stabbing instrument; this is an issue raised for the first time on appeal. The issue of
whether defendant possessed or carried the knife was fairly presented to the jury and done so in a
manner that adequately protected defendant’s rights. We also point out that the jury was
instructed that for defendant to be guilty of CCW, “defendant must have known that [the
instrument] was a weapon.” (Emphasis added.) And use of the term “weapon” tends to
undermine concerns that the jury may have convicted defendant on the basis of, for example,
concealment of a letter opener.

        Furthermore, defendant waived any claim that the jury was improperly instructed by
agreeing to and approving the CCW instruction. Lueth, 253 Mich App at 688 (“By expressly
approving the instructions, defendant has waived this issue on appeal.”). Moreover, we are not
prepared to conclude that defense counsel’s performance fell below an objective standard of
reasonableness when he approved the CCW instruction, given that it is reasonably arguable that
the knife here constituted a stabbing instrument, such that it made sense for counsel to allow an
instruction that effectively treated the terms “knife” and “stabbing instrument” interchangeably
and instead focus on a defense challenging the “carrying” element of CCW. See People v
Ackley, 497 Mich 381, 388-389; __ NW2d __ (2015) (reciting the familiar guiding principles
concerning claims of ineffective assistance of counsel). This is especially true considering that
the knife was disguised as a comb, strongly suggesting a nefarious intent and giving rise to an
inference that the knife was intended and designed to be used as a stabbing instrument. Counsel
may have thus decided, reasonably so, that a better course of action was to avoid entirely any
entanglement in a dispute before the jury over whether the knife was a stabbing instrument,
resulting in counsel’s approval of the CCW instruction. Defendant has failed to overcome the
strong presumption that counsel’s performance was born from a sound trial strategy. Id. at 388.
Reversal is unwarranted.

        Defendant next contends that his due process rights were violated when the police failed
to preserve the videotape footage of him being booked at the police station. Defendant was
booked on February 18, 2014, and the detective’s testimony regarding the videotaping of a
booking at the police station established that video footage is taped over and effectively deleted
after 30 days. If February 18, 2014, is included in the count, the 30th day would have been
March 19, 2014, and would have been March 20th if the count is started with February 19th.
The preliminary examination was conducted on March 19, 2014, and at the examination, defense
counsel, in the context of asking for an adjournment of the examination, mentioned the need to
obtain videotapes of the booking process and the traffic stop. At the preliminary examination,

                                                -6-
defense counsel did not specifically ask the prosecutor for the videotapes, nor did the district
court judge order production. However, in a discovery motion signed by defense counsel on
March 19, 2014, a request was made for any videotapes “that may have been made at or near the
time of arrest or during the booking process[.]” A proof of service relative to the motion was
also dated March 19, 2014. The motion and the proof of service were received by the trial court
for filing on March 21, 2014, suggesting that the prosecutor may have also received the motion
on March 21, 2014, which was beyond the 30-day preservation period for booking videotapes,
even if one started counting the period from February 19, 2014, forward. Even if the prosecution
actually received and had a chance to review the discovery motion on March 20, 2014, and
assuming that the video of defendant’s booking was even still retrievable on that day, there is
nothing in the record remotely suggesting that the prosecutor knowingly decided not to make an
effort to obtain the footage that very day – March 20th – in order to undermine the defense and
preclude retrieval of the videotape.

        A defendant’s due process right to evidence has been recognized in cases such as Brady v
Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), and Arizona v Youngblood, 488 US
51; 109 S Ct 333; 102 L Ed 2d 281 (1988). In Brady, 373 US at 87, the Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” To establish a Brady violation, a defendant must prove
that: (1) the state possessed evidence of exculpatory or impeachment value to the defendant; (2)
the prosecution suppressed the evidence; and (3) the evidence, viewed in its totality, was
material, meaning that had the evidence been disclosed to the defense, a reasonable probability
exists that the result of the proceedings would have been different. People v Chenault, 495 Mich
142, 150-151, 155; 845 NW2d 731 (2014). Here, defendant has failed to establish that the
videotape of his booking had exculpatory or impeachment value, that the prosecution actually
“suppressed” the video footage, and that the result of the proceedings would have been different
had the videotape been obtained.

        In Youngblood, 488 US at 58, the Court held that the failure to preserve potentially useful
evidence does not constitute a denial of due process absent a showing of bad faith by the police.
To establish a Youngblood violation, “the defendant must show: (1) that the government acted in
bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was
apparent before its destruction; and (3) that the nature of the evidence was such that the
defendant would be unable to obtain comparable evidence by other reasonably available means.”
United States v Jobson, 102 F3d 214, 218 (CA 6, 1996). Here, under the timeline and
circumstances discussed above, defendant has simply not shown any bad faith by the police or
the prosecutor in failing to preserve the videotape of defendant’s booking.

        We also reject defendant’s associated argument that defense counsel was ineffective for
failing to seek dismissal on the basis of a Brady or Youngblood violation. In light of our
conclusion that there was no constitutional violation, the argument fails, because counsel is not
ineffective for failing to make futile or meritless motions. People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010).

        In his final argument on appeal, defendant claims that defense counsel was ineffective for
stipulating to the legality of his arrest and for failing to move to suppress the evidence obtained

                                                -7-
in purported violation of his Fourth Amendment rights. The heart of defendant’s argument is
that the arresting officer had no reasonable suspicion that defendant had committed any crime
when he decided to run a LIEN check on him; therefore, “[t]he resulting arrest and subsequent
search were . . . unlawful as fruit of the poisonous tree, and the comb/knife should have been
suppressed.” Defendant does not challenge the constitutional validity of the traffic stop itself.

        First, the arresting officer was permitted, consistent with the Fourth Amendment, to
detain defendant, within reason, as was done, and have him get out of the car after effectuating
the valid traffic stop. People v Martinez, 187 Mich App 160, 168; 466 NW2d 380 (1991) (“we
hold that a police officer may . . . order a passenger to get out of a motor vehicle stopped during
a routine traffic stop under the same circumstances in which the officer may order the driver to
get out of the vehicle”); see also United States v Nunez-Betancourt, 766 F Supp 2d 651, 657 (ED
NC, 2011) (it is well-established that during a routine traffic stop, an officer may briefly detain
the driver and passengers in order to perform traditional incidents of such stops). Second, simply
running the unobtrusive LEIN check on defendant after the valid traffic stop had been made did
not amount to a constitutional violation as reflected in People v Davis, 250 Mich App 357, 365-
368; 649 NW2d 94 (2002). See also United States v Foreman, 369 F3d 776, 781 (CA 4, 2004)
(an officer may run computer checks during a routine traffic stop). And once the LEIN check
revealed an outstanding warrant for defendant’s arrest, there was probable cause to place him
under arrest. Davis, 250 Mich App at 365. Defendant does not dispute the existence of a valid
underlying arrest warrant. Furthermore, in People v Reese, 281 Mich App 290, 303; 761 NW2d
405 (2008), this Court stated that it would “join those jurisdictions that hold that discovery of an
outstanding arrest warrant can dissipate or attenuate the taint of an initial illegal stop or arrest.”

        In sum, in light of the caselaw and the facts presented, defense counsel’s stipulation that
defendant’s arrest was valid did not fall below an objective standard of reasonableness, Ackley,
497 Mich at 388-389, and counsel’s failure to seek suppression of the evidence did not constitute
ineffective assistance, because doing so would have been futile, Ericksen, 288 Mich App at 192.

       Affirmed.



                                                              /s/ Kathleen Jansen
                                                              /s/ William B. Murphy
                                                              /s/ Michael J. Riordan




                                                 -8-
