Background
Jayvon Kentrell Montgomery was charged with multiple counts of criminal sexual conduct after a woman alleged that he attempted to force her to perform oral sex during a visit to his apartment. Four days after the alleged incident, officers found Montgomery in his vehicle and told him he was under arrest. Montgomery demanded an arrest warrant and refused officers’ repeated orders to leave the vehicle. After approximately 20 minutes, officers broke a window, used a taser, and removed him.
Before trial, the Wayne Circuit Court rejected Montgomery’s argument that the warrantless arrest lacked probable cause, finding that the police collectively possessed probable cause based on the woman’s allegations. A jury acquitted Montgomery of the sexual-conduct charges but convicted him of resisting or obstructing a police officer. Although the court instructed jurors that the prosecution had to prove the officer gave a lawful command, made a lawful arrest, or otherwise performed a lawful act, it did not give the standard instruction defining probable cause and directing the jury to determine whether probable cause existed.
The Court’s Holding
The Court of Appeals affirmed. It held that Montgomery waived direct review of the jury-instruction issue because defense counsel expressly agreed to the instructions. That affirmative approval constituted waiver, rather than mere forfeiture, and therefore extinguished the alleged instructional error for appellate review.
The court also rejected Montgomery’s unpreserved ineffective-assistance claim for lack of prejudice. Assuming without deciding that counsel performed deficiently by failing to request the probable-cause instruction, the court found no reasonable probability of a different verdict. The evidence known collectively to the investigating officers supported probable cause, even though the jury later found the evidence insufficient to prove the sexual-conduct charges beyond a reasonable doubt. The jury was also told that it had to find a lawful command, arrest, or act to convict Montgomery of resisting or obstructing.
Key Takeaways
- Defense counsel’s express agreement with jury instructions waives an appellate challenge to those instructions and precludes even plain-error review.
- An acquittal on the offense underlying an arrest does not establish that officers lacked probable cause, because probable cause requires substantially less proof than guilt beyond a reasonable doubt.
- Even assuming counsel should have requested Michigan’s standard probable-cause instruction, Montgomery could not establish ineffective assistance without a reasonable probability that the additional instruction would have changed the verdict.
Why It Matters
The decision underscores the consequences of affirmatively approving jury instructions: doing so extinguishes a direct instructional-error claim rather than merely leaving it unpreserved. A defendant may still frame the issue as ineffective assistance, but must satisfy the separate requirements of deficient performance and outcome-determinative prejudice.
The opinion also reinforces that probable cause for a warrantless arrest may rest on the collective knowledge of the officers involved in an investigation. A later acquittal does not retroactively invalidate an arrest supported by the lower probable-cause standard.