People v. Lynn

• Citation: 91 Mich.App. 117,283 N.W.2d 664
• Decision Date: 09 July 1979
• Docket Number: Docket No. 77-3309
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Allan LYNN, Defendant-Appellant. 91 Mich.App. 117, 283 N.W.2d 664
• Court: Court of Appeal of Michigan (US)

Page 664

283 N.W.2d 664

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Allan LYNN, Defendant-Appellant.

Docket No. 77-3309.

91 Mich.App. 117, 283 N.W.2d 664

Court of Appeals of Michigan.

July 9, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 119] Nicholas Smith by Peter J. Mitoff, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and HOLBROOK, and RILEY, JJ.

CYNAR, Presiding Judge.

On June 22, 1977, defendant was found guilty of one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). On July 7, 1977, he was sentenced to concurrent terms of life imprisonment. Defendant now appeals as of right.

At trial, Tammy Trombley, the 1 01/2-year-old complainant, testified that on the night of February 24, 1977, she was home with her 13-year-old brother. At approximately 8:30 p. m., a man, later identified as defendant, came to their apartment [91 MICHAPP 120] and asked to use the phone. After obtaining admittance to the premises he brandished a knife and took some money from the complainant's brother. The complainant's preliminary examination testimony, which was read at trial, also established that the defendant had also taken a ring from the apartment.

The complainant testified that after the robbery defendant carried her to a nearby apartment. At this time he forced her to engage in fellatio and unsuccessfully attempted to engage in sexual intercourse with her. She testified that during this latter attempt defendant used some Vaseline.

The complainant's brother testified that after the assailant left with his sister, he notified a neighbor who called the police. Upon their arrival, he described the assailant and this description was radioed to other units.

James Osborn of the Woodhaven police force testified that at about 10:09 that night he saw the complainant returning home after having been released by her assailant. She pointed out defendant's apartment as the place to which she had been taken and told the officer that, to her knowledge, the assailant was still in the apartment.

Shortly thereafter, several police officers converged at defendant's apartment. No response was received when they knocked on the door. They broke down the door but found the apartment empty. The police were then told by a neighbor that a man had just left the apartment and was driving a light green car with a dark green top. A jar of Vaseline was found in defendant's bedroom and was introduced at trial.

Prior to the entry into defendant's apartment, Detective Frank Smith of the Taylor Police Department observed a car leaving the apartment [91 MICHAPP 121] complex where defendant's apartment was located. He took down the car's license number and began following the car, but abandoned the surveillance upon learning that the abductor's apartment had been located. After the entry into defendant's apartment, Detective Smith realized that the car he had previously observed was the same car as was described by defendant's neighbor. Accordingly, he radioed in the license plate number of the vehicle.

At 10:21 that evening David Lambley a Rockwood patrolman, observed a car at the Rockwood Inn which matched the description and license plate number that had been broadcast over the radio. The officer placed its occupant, defendant, under arrest. A search of defendant's person revealed a knife. A subsequent search of defendant's person produced several rings.

Defendant took the stand in his own defense. He claimed he had been drinking heavily on the day in question and that he remembered very little of the events of that day. He testified that he had never seen the complainant before or on the day of the offense.

Defendant first contends that his arrest was made without probable cause and that the search made incident thereto was improper. This issue was raised in a pretrial motion below and was decided adversely to defendant's position.

We find no merit to defendant's argument. At the time of his arrest, the police officers were aware of the following facts: (1) that an alleged kidnapping had occurred; (2) the location of the apartment where the victim was held captive; (3) that a person had recently left that apartment and had driven away in a distinctive green car; (4) that the police had seen this green car leaving the [91 MICHAPP 122] apartment complex where the offense had taken place, shortly after the victim had been released by her abductor; and (5) that defendant was driving the car at the time of his arrest, approximately 20 minutes after the release of the victim. These facts were sufficient to connect a specific person, the defendant, to a specific felony and were sufficient to provide probable cause for defendant's arrest. See People v. Earle, 51 Mich.App. 232, 214 N.W.2d 892 (1974). Since defendant's arrest was valid, the search made incident thereto was also proper, People v. Stergowski, 391 Mich. 714, 724, 219 N.W.2d 68 (1974), and no error occurred in denying his motion to suppress.

Defendant next contends that the entry into his apartment violated his fourth amendment rights and that the jar of Vaseline seized by the police should have been suppressed from evidence.

We disagree. On the basis of the information provided to the police by the complainant, they believed that defendant was still in the apartment. Their entry into the apartment therefore falls within the "hot pursuit" exception to the warrant requirement. Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); People v. Stergowski, supra, at 720-721. Since the entry into the apartment was valid, the officers were in a place where they had a right to be. Thus, their seizure of the jar of Vaseline, which was inadvertently discovered on top of defendant's dresser, was proper under the "plain view doctrine". People v. Rembo, 73 Mich.App. 339, 343, 251 N.W.2d 577 (1977).

Defendant next contends that the trial judge erred in instructing the jury on the asportation element of the kidnapping charge. Specifically, he contends that the trial judge erred in stating that [91 MICHAPP 123] the jury could find asportation if the movement "was either for the purpose of abduction of the victim or to commit the crime of criminal sexual conduct in the first degree". This instruction was objected to by defense counsel on the ground that it fails to require movement "significantly independent from the underlying offense".

In People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), the Michigan Supreme Court thoroughly analyzed the asportation requirement of the offense of kidnapping and set forth several rules for trial courts to follow in kidnapping cases. Relevant to the present case are the following:

"2. The movement element is not sufficient if it is 'merely incidental' to the commission of another underlying lesser crime.

"4. If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.

"6. Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury." Adams, supra, 238, 205 N.W.2d 422-423.

In the present case, the jury was, in essence, instructed that the asportation needed to establish the kidnapping charge could be incidental to the commission of first-degree criminal sexual conduct. We believe this instruction was in direct conflict with the Adams rule declaring that the asportation[91 MICHAPP 124] cannot be " 'merely incidental' to the commission of another underlying lesser crime". Adams, supra, 238, 205 N.W.2d 422.

In so holding, we are well aware that this Court is split on the question of whether the asportation required for kidnapping may be incidental to another offense, when the punishment for that offense is co-equal to that of kidnapping. In People v. Hardesty, 67 Mich.App. 376, 378, 241 N.W.2d 214 (1976), a panel of this Court concluded that Adams was inapplicable when the movement was incidental to a rape, since both offenses were punishable by life imprisonment. In so concluding, the Court focused upon the language in Adams, supra, 389 Mich. at 238, 205 N.W.2d 415, that the movement cannot be...