People v. Chapman

• Citation: 264 N.W.2d 69,80 Mich.App. 583
• Decision Date: 05 January 1978
• Docket Number: Docket No. 77-617
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney Wayne CHAPMAN, Defendant-Appellant. 80 Mich.App. 583, 264 N.W.2d 69
• Court: Court of Appeal of Michigan (US)

Page 69

264 N.W.2d 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney Wayne CHAPMAN, Defendant-Appellant.

Docket No. 77-617.

80 Mich.App. 583, 264 N.W.2d 69

Court of Appeals of Michigan.

Jan. 5, 1978.

Released for Publication April 6, 1978.

[80 MICHAPP 584] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and BASHARA and HEADING, ^* JJ.

HEADING, Judge.

Defendant was charged with inciting, inducing or exhorting another to commit murder, M.C.L.A. § 750.157b; M.S.A. § 28.354(2). At his preliminary examination, the magistrate refused to bind defendant over for trial, on grounds that the prosecution was required to establish, as part of the corpus delicti, that a murder had actually [80 MICHAPP 585] occurred. The prosecutor appealed this decision in Circuit Court for Jackson County, which reversed. On remand, defendant was bound over for trial as charged.

Prior to trial, a second count of inciting, inducing or exhorting another to commit felonious assault, M.C.L.A. § 750.157b; M.S.A. § 28.354(2), was added to the information, and defendant pled guilty to that offense. Defendant was sentenced to a term of two years, eight months to four years imprisonment. He appeals as of right, alleging inter alia that the statute under which he was charged is void for vagueness and overbreadth.

Testimony at the preliminary examination tended to show that defendant accompanied one Kyle Anderson and two others to a certain location, where they asked to see "Tom". As Thomas Matthias approached the automobile in which defendant and his companions were sitting, defendant handed a shotgun to Anderson, saying, "Shoot him. Blow him up." Anderson apparently complied, and Matthias suffered wounds which ultimately caused his death.

The statute under which defendant was charged provides:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted."

Defendant first contends that the statute is void [80 MICHAPP 586] for vagueness under the Due Process Clause, U.S.Const.Am.XIV, because the terms "incites, induces or exhorts" do not define with sufficient clarity the conduct proscribed, and have a chilling effect on his First Amendment freedom of speech. We do not agree.

Laws must define prohibited conduct with sufficient specificity to give persons of ordinary intelligence reasonable notice of what is prohibited, to provide standards for enforcement and, where First Amendment freedoms are involved, to avoid an unnecessary chilling effect. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976). Given the inherent limitations of language, however, courts do not demand mathematical precision, but only reasonable certainty. Grayned, supra; Kalita v. Detroit, 57 Mich.App. 696, 226 N.W.2d 699 (1975), lv. den. 394 Mich. 810 (1975).

The three terms used in the statute to describe the prohibited conduct are given similar definitions by Webster's New World Dictionary, 2d Ed. (Collins & World Publishing Co., Inc., 1974). ¹ A fair reading of the definitions is that the terms "incite, induce or exhort" are essentially synonymous, and refer to conduct intended to bring about action on the part of another person. Cf. People v. O'Neal, 22 Mich.App. 432, 177 N.W.2d 636 (1970).

We think that the statute as written sufficiently informs a potential defendant that he is to refrain from conduct calculated to cause another person to commit an offense described in the statute. M.C.L.A. § 750.157b; M.S.A. § 28.354(2) is not unconstitutionally vague.

[80 MICHAPP 587] Defendant next contends that the challenged statute is void because it is overly broad, prohibiting speech protected by the First Amendment as well as speech which may properly be regulated.

It is well-established that one to whom a statute may constitutionally be applied may not challenge that statute on grounds of overbreadth, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In the area of First Amendment rights, however, the rule has been relaxed to permit challenges to overly-broad statutes by persons whose conduct would have been prohibited even by a narrowly-drawn statute, in order to provide the "breathing space" which the First Amendment requires, Broadrick, supra; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Sponick v. Detroit Police Department, 49 Mich.App. 162, 211 N.W.2d 674 (1973). We need not expand upon the question of defendant's standing to raise the overbreadth issue, however, because we find the statute to be within constitutional limits.

Defendant contends that the statute under which he was charged cannot stand under the rule of Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). The Court in Brandenburg, 395 U.S. 444, 447-448, 89 S.Ct. 1827, 1829, 1830, 23 L.Ed.2d 430, said "(T)he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297-298, 81 S.Ct. 1517, 1520-1521, 6 L.Ed.2d 836 (1961), 'the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v. Lowry, 301 U.S. 242, 259-261, 57 S.Ct. 732, 739-740, 81 [80 MICHAPP 588] L.Ed. 1066 (1937); Bond v. Floyd, 385 U.S. 116, 134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments." (Footnote...