People v. Baker
| Decision Date | 15 September 1983 |
| Docket Number | Docket No. 62673 |
| Citation | 127 Mich.App. 297,338 N.W.2d 391 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guy John BAKER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Bruce Plackowski, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., Pros. Attys. Appellate Services, for the people.
State Appellate Defender by Terence R. Flanagan, for defendant-appellant.
Before DANHOF, C.J., and ALLEN and WALSH, JJ.
Defendant was convicted of resisting or obstructing a police officer in the discharge of his duty, M.C.L. Sec. 750.479; M.S.A. Sec. 28.747, following a jury trial. He was placed on probation for 2 years with the first 6 months to be spent in jail. Defendant appeals his conviction as of right.
Defendant claims that the trial court erred by refusing to instruct the jury on a lesser offense of attempted resisting arrest. The trial court ruled that because the crime of resisting arrest is in the nature of an assault, it would be improper to give the requested instruction because there is no such crime as attempted assault. See People v. Banks, 51 Mich.App. 685, 216 N.W.2d 461 (1974).
We find it unnecessary to decide whether an attempt to resist arrest may be a lesser-included offense to this crime. Even assuming that the crime exists, we agree that it was inappropriate to give such an instruction in this case. A judge is only required to instruct on attempt where there is evidence indicating that only an attempt was committed. People v. Adams, 416 Mich. 53, 330 N.W.2d 634 (1982).
Defendant did not deny that he used force to resist the arrest. Rather, he claimed that the arrest was unlawful in that the degree of force used by the officer was excessive. Those claims, if believed, would have constituted complete defenses to the charge. See People v. Stark, 120 Mich.App. 350, 327 N.W.2d 474 (1982). There was no evidence that a crime was committed which was less than the completed offense. Therefore, an instruction on attempt was not appropriate. People v. Adams, supra.
Defendant also complains that the trial court erred by refusing to instruct the jury on the misdemeanor offense of simple assault. M.C.L. Sec. 750.81; M.S.A. Sec. 28.276.
Assuming that defendant is correct in his claim that, because of the assaultive nature of his actions, simple assault was a cognate lesser-included offense to this charge, we do not believe that the trial court was required to give an instruction concerning that charge. In People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982), the Supreme Court backed away from the rule stated in People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473 (1975). Chamblis, supra, precluded the giving of instructions for misdemeanor offenses in most felony prosecutions. In Stephens, supra, the Court ruled that a requested misdemeanor instruction may be given if it is supported by a rational view of the evidence adduced at trial.
The purpose of the resisting arrest statute is to protect police officers from physical violence and harm. People v. Kretchmer, 404...
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