Summary
stating that if threatening language is not used, warning a potential defense witness about self-incrimination or possible perjury charges is proper
Summary of this case from People v. CarterOpinion
Docket No. 65219.
Decided January 3, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people.
Roy N. Gruenburg, for defendant on appeal.
After a jury trial, defendant was convicted of kidnapping, MCL 750.349; MSA 28.581, and of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to imprisonment for consecutive terms of from 8 to 30 years and 2 years, and he appeals as of right.
I
Defendant first argues that the trial court's instructions to the jury defining the crime of kidnapping were defective. No objection was made to the instructions at issue, and under such circumstances this Court will not reverse defendant's conviction unless the instructions omitted an essential element of the offense or present manifest injustice. See, for example, People v Biegajski, 122 Mich. App. 215, 227; 332 N.W.2d 413 (1982).
It was unnecessary for the trial court to instruct on the element of secret confinement, because the prosecution relied instead on the alternate element of asportation. See People v Phillips, 112 Mich. App. 98, 109; 315 N.W.2d 868 (1982). The movement necessary to satisfy the element of asportation must not be merely incidental to the commission of an underlying lesser or co-equal crime other than an underlying crime involving murder, extortion, or taking a hostage. People v Adams, 389 Mich. 222; 205 N.W.2d 415 (1973); People v Barker, 411 Mich. 291; 307 N.W.2d 61 (1981).
Here, the instruction given on asportation was as follows:
"[D]uring the course of such confinement, the defendant must have forcibly moved the victim or caused her to be moved from one place to another for the purpose of abduction and kidnapping."
The instructions given made no reference to underlying lesser or co-equal offenses. Two panels of this Court have reached opposite conclusions as to the sufficiency of similar instructions where, as here, no objection was made by defendant. Compare People v Charles Thompson, 117 Mich. App. 522, 525; 324 N.W.2d 22 (1982), with People v Alexander, 118 Mich. App. 112, 115-116; 324 N.W.2d 550 (1982). However, on this record, we need not resolve this controversy.
Both Charles Thompson and Alexander involved defendants who were charged with underlying lesser or co-equal offenses. Here, defendant was originally charged with the co-equal offense of assault with intent to commit murder, MCL 750.83; MSA 28.278. However, at the close of the prosecution's proofs, the trial court granted defendant's motion for a directed verdict on that charge and declined to permit the prosecution to amend the information to charge defendant with a lesser assault. In so ruling, the trial court held that there was insufficient evidence to enable a rational trier of fact to conclude that any assault took place. In People v Rappuhn, 78 Mich. App. 348, 354-355; 260 N.W.2d 90 (1977), the Court held that it was necessary to instruct on movement merely incidental to an underlying lesser or co-equal offense even if no such offense was charged. However, in Rappuhn there was evidence before the jury suggesting that an uncharged offense had been committed. Here, after the directed verdict, no one suggested that any underlying lesser or co-equal offense could be found to have been committed, and there was no evidence of any such offense. Under such circumstances, an instruction on movement merely incidental to some unspecified underlying offense could only lead to confusion; it could not aid the jury in accurately resolving the kidnapping charge. Under the circumstances presented here, the instruction given by the trial court was adequate to convey the essential elements of the crime and presented no manifest injustice.
We note that our resolution of this issue is consistent with the directions given for use of CJI 19:1:01, the instruction dealing with movement merely incidental to an underlying lesser or co-equal offense. Use Note (1) for that instruction states in part:
"Not to be used where there is no underlying crime possibility or where the underlying crime is murder, extortion, or taking a hostage."
II
Defendant also argues that the evidence was insufficient to sustain his convictions. Evidence is sufficient to sustain a conviction if, viewed in the light most favorable to the prosecution, it would justify a rational trier of fact in concluding that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979). The pertinent portion of the kidnapping statute, MCL 750.349; MSA 28.581, provides:
"Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will * * * shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years."
The form of kidnapping relied upon by the prosecution here has four elements:
(1) The victim must have been forcibly or secretly confined or imprisoned.
(2) The confinement or imprisonment must have been against the will of the victim.
(3) During the course of such confinement or imprisonment, the victim must have been moved from one place to another for the purpose of abduction or kidnapping, and not for the purpose of some crime other than one involving murder, extortion, or taking a hostage. See People v Adams, supra.
(4) Confinement or imprisonment of the victim must have been committed "wilfully, maliciously and without lawful authority"; that is, it must have been committed intentionally and without legal justification or excuse. See the Court of Appeals opinions in People v Adams, 34 Mich. App. 546, 556-557; 192 N.W.2d 19 (1971), and People v Jones, 92 Mich. App. 100, 107; 284 N.W.2d 501 (1979).
Defendant's argument concerning the sufficiency of the evidence is based primarily on the testimony of the victim. The victim was compelled to testify after the trial court rejected her attempts to assert the spousal privilege and the privilege against self-incrimination and despite her assertion that she feared for her life. According to the victim, she had car trouble and was forced to abandon her car on Hamlin Road. Two men offered her a ride, and she accepted, but the men drove her around for several hours rather than taking her to a gas station as she requested. Eventually, she persuaded the men that she had no money and they released her at a gas station at the intersection of Rochester and Tienken Roads. The victim denied that defendant was one of the men involved, denied that any struggle took place on Hamlin Road, and denied making statements to the police. However, the victim testified that she had received telephoned threats that she would be killed if she testified.
Other testimony indicated that a blue and white 1977 Pontiac Grand Prix registered in the name of the victim or her husband was found abandoned on Hamlin Road. A passenger door was open, the keys were in the ignition, and a purse containing the victim's driver's license and $1,723.60 in cash was found on the back seat of the car. Three .22 caliber shells, one of which had been fired, were found on the ground near the car.
Two witnesses who lived on Hamlin Road testified. One saw a blue car parked in the street from which a man and a woman exited. The woman was forced back into the car after a struggle. Another person must have been in the car, because it backed up and drove away with the victim and her assailant inside. The witness later saw the blue car parked in the same place with its door open. The car was identified as that of the victim. The man who struggled with the woman was described as wearing a black coat and blue pants and was identified as defendant. The woman was described as wearing a striped multi-colored shirt but was not identified.
The other Hamlin Road witness testified that she heard two shots and went to her window. She saw a woman running away from a man with a gun in his hand. The man caught the woman while another man drove up in a gold car with damage on one side. The man and the woman got into the car. The man, who was described as wearing a black coat and black pants, was identified as defendant. The woman was described as wearing a striped multi-colored sweater. It is not clear whether this witness identified the woman involved as the victim; however, the record shows that an attempted identification took place at an afternoon session of the court and that another woman was present in the courtroom who resembled the victim, who wore her hair like the victim, and who was wearing the dress the victim wore to the court's morning session.
The victim had been reported missing and was found, in a visibly excited condition, at a gas station at the intersection of Rochester and Tienken Roads. She was wearing a multi-colored sweater when found. Defendant was found at the intersection of Washington and Carter Streets, near Tienken Road, in the company of another man and with a broken-down brown Chrysler Cordoba with damage to one side. Defendant was wearing a dark jacket and dark pants. One witness observed a woman resembling the victim and wearing a striped multi-colored sweater about 40 yards away from where defendant's car was broken down. The woman was walking quickly away from defendant while looking back and defendant appeared to be saying something to her. The intersection of Washington and Carter Streets is about two miles from the intersection of Rochester and Tienken Roads.
When arrested, defendant was found to have in his possession a slip of paper on which the license number and make of the victim's car were written.
The foregoing evidence, viewed in the light most favorable to the prosecution, was sufficient to justify a rational trier of fact in concluding that the essential elements of the crime were proven beyond a reasonable doubt. A rational trier of fact need not have believed the victim's testimony. The testimony of the two Hamlin Road witnesses and the slip of paper found on defendant's person were sufficient to identify defendant as the perpetrator. That the victim was the woman seen on Hamlin Road and near the scene of the breakdown of defendant's car may be inferred from the involvement of the victim's car in the crime and the testimony concerning the distinctive striped multi-colored sweater. A forcible confinement against the will of the victim may be inferred from the testimony of the Hamlin Road witnesses and from the circumstances that the victim's car was found unlocked, with the key in the ignition, and with a substantial sum in cash in her purse left on the back seat. The testimony showed that the victim was moved during the course of her confinement and supported an inference that the movement was for the purpose of abduction or kidnapping. As has been seen, there was no evidence that the movement was for the purpose of some other crime other than one involving murder, extortion, or taking a hostage. The testimony of the Hamlin Road witnesses supports an inference that defendant acted intentionally and without legal justification or excuse in confining the victim.
Sufficient evidence to sustain defendant's kidnapping conviction was presented. Moreover, because the testimony of one of the Hamlin Road witnesses showed that defendant personally possessed a firearm during the kidnapping, sufficient evidence was presented to sustain defendant's conviction of possession of a firearm during the commission of a felony.
III
Defendant also complains of the admission of evidence of prior inconsistent statements by the victim and argues that intimidation of the victim by the prosecutor prevented him from calling her as a defense witness. Because the victim was a res gestae witness whom the prosecutor was obligated to call, it was not error to permit the prosecution to impeach the victim. People v Murry, 108 Mich. App. 679, 683; 310 N.W.2d 836 (1981), see also People v White, 401 Mich. 482, 508; 257 N.W.2d 912 (1977). The jury was repeatedly instructed as to the limited permissible use of the victim's prior inconsistent statements.
The inconsistencies between the victim's testimony at trial and her prior statements to the police were so serious that the prosecutor requested the trial court to find the victim in contempt of court or to hold her for trial on perjury charges. The trial court denied the prosecutor's request; however, the victim's well-founded fear of a perjury prosecution led to her invocation of the privilege against self-incrimination and her refusal to testify as a defense witness. In Webb v Texas, 409 U.S. 95; 93 S Ct 351; 34 L Ed 2d 330 (1972), the trial court singled out the only potential defense witness and, in strong and threatening language, warned the witness that he would face a perjury prosecution if he lied while testifying. The witness subsequently refused to testify. The Supreme Court held that the unnecessarily strong terms used by the trial judge, the authority of the trial judge's position, and the trial judge's apparent assumption that the victim would lie if he testified prevented the witness from making a free and voluntary choice whether to testify and thus deprived defendant of his right to present evidence in his defense. However, where the extraordinary circumstances on which the Webb decision was based were not present, warnings to potential defense witnesses concerning self-incrimination or possible perjury charges have been held to be proper. See United States ex rel Robinson v Zelker, 468 F.2d 159, 162, fn 5 (CA 2, 1972); People v Pantoja, 35 Ill. App.3d 375, 380; 342 N.E.2d 110, 114 (1976); State v Brown, 321 A.2d 478 (Me, 1974); State v Whiting, 117 N.H. 701; 378 A.2d 736 (1977); State v Schaub, 46 Ohio St.2d 25; 346 N.E.2d 295 (1976), and Hedgepath v State, 600 P.2d 348 (Okla Crim App, 1979).
Nothing analogous to the extraordinary circumstances on which the Webb decision was based was present here. In this case, the issue did not arise until after the victim testified in a manner which, combined with her prior statements to the police, provided an obvious basis for the perjury charge. The trial judge here did not use strong or threatening language to the victim; instead, the prosecution's request that the victim be found in contempt or held for perjury charges was denied. The record here does not suggest that the decision of the victim not to testify further was not free and voluntary; rather, the record suggests that the decision of the victim was based on an accurate appraisal of her legal situation following consultation with her own counsel. No error occurred.
Affirmed.