People v. Chatfield, Docket No. 62979

CourtCourt of Appeal of Michigan (US)
Citation372 N.W.2d 611,143 Mich.App. 542
Docket NumberDocket No. 62979
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee CHATFIELD, Defendant-Appellant. 143 Mich.App. 542, 372 N.W.2d 611
Decision Date29 August 1985

[143 MICHAPP 544] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John L. Livesay, Pros. Atty., and Leonard J. Malinowsky, Asst. Atty. Gen., for the people.

J. Richard Colbeck, Coldwater, for defendant-appellant.

Before HOLBROOK, P.J., and MAHER and JOSLYN *, JJ.

HOLBROOK, Presiding Judge.

Defendant appeals as of right from his convictions following a jury trial [143 MICHAPP 545] for resisting and obstructing an arrest, M.C.L. Sec. 750.479; M.S.A. Sec. 28.747, and malicious destruction of police property, M.C.L. Sec. 750.377b; M.S.A. Sec. 28.609(2). He was sentenced to two concurrent 6-month terms of imprisonment.

Both convictions arose from an incident that occurred on May 20, 1981. Sergeant Sturgeon of the Coldwater police was dispatched to investigate a disturbance. When he arrived at the scene he discovered a number of people on the property, many of whom were pushing and shoving each other. Sturgeon testified that, while he was attempting to investigate, defendant ran up to him and began yelling and screaming obscenities at him, demanding that he leave the property. Sturgeon repeatedly told defendant not to interfere, but defendant continued his yelling and shook his finger in Sturgeon's face. During much of his tirade defendant had his face within two inches of Sturgeon's. Finally, defendant was arrested for disorderly conduct under Coldwater City Ordinance, Sec. 9. 1 Sturgeon by that time was assisted by another police officer. There was a struggle to get defendant in the police car and once in the auto defendant continued to struggle. Defendant kicked the car door twice, resulting first in the door's flying into Sturgeon's midsection, and then shattering the window.

Defendant's testimony alleged that he had calmly called the officer a bastard and that the window shattered because the car door was closed on his feet.

[143 MICHAPP 546] On appeal defendant contends that being convicted on both counts violated his right to be protected against double jeopardy, that the ordinance he was arrested under was unconstitutional, and that reversible error occurred in that the jury was not instructed that resisting an arrest is a specific intent crime. We do not agree and defendant's convictions are affirmed.

Defendant argues that as both convictions arose from the same transaction he is receiving multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The prosecution contends that there were two acts: one wherein defendant kicked the door in an attempt to resist arrest, and a second wherein defendant was angered and kicked to vent his anger. When the convictions are based on two separate acts, there is no double jeopardy problem. People v. Haynes, 100 Mich.App. 306, 298 N.W.2d 732 (1980). Even if both convictions are based on one instance of kicking, defendant's rights still have not been violated. Each statute under which defendant was convicted was intended to prevent a different type of harm. The resisting arrest statute is intended to prevent interference with an arrest. People v. Gleisner, 115 Mich.App. 196, 320 N.W.2d 340 (1982), lv. den. 417 Mich. 1095 (1983). Malicious destruction of police property is intended to protect property. People v. Richardson, 118 Mich.App. 492, 325 N.W.2d 419 (1982), lv. den. 417 Mich. 949 (1983). Accordingly, as two different interests are protected, there is no double jeopardy violation. People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984).

Defendant next argues that the trial court erred by failing to instruct the jury that resisting and obstructing an arrest is a specific intent crime. This argument is without merit. People v. Landrie, [143 MICHAPP 547] 124 Mich.App. 480, 483, 335 N.W.2d 11 (1983); People v. VanWasshenova, 121 Mich.App. 672, 680, 329 N.W.2d 452 (1982); People v. Gleisner, supra.

Defendant reasons that because the prosecutor, in his closing argument, stated that the use of the word "bastard" was sufficient in and of itself to arrest defendant, and since the trial judge refused to give an instruction 2 on this, his conviction must be reversed.

While we do agree the use of the term "bastard" is constitutionally protected, we do not find the people's one reference to the contrary in closing argument to constitute reversible error. Defense counsel corrected the prosecution's error in his closing argument, elaborating on it for several pages, saying in part:

"Why was he arresting him? What was he arresting him for? Counsel says it's the use of the word 'bastard'. He called them a bastard. Therefore he arrested him. In and of itself that should be sufficient, counsel says. Well, that isn't what the city ordinance says. The Judge is going to read that to you."

The trial judge did read the city ordinance under which defendant was arrested, as set forth in footnote 1, supra. Our review of this ordinance reveals that it is constitutional. Harass as defined by Webster's Seventh New Collegiate Dictionary, means; "to worry and impede by repeated raids * * * to annoy continually * * *." Harm requires "physical or mental damage". Reckless disregard is to be indifferent to the consequences, wanton and willful or careless, inattentive or negligent. Black's Law Dictionary, Revised 4th ed, 1968, p 1435. Using the common, everyday meaning of the [143 MICHAPP 548] words, R & T Sheet Metal, Inc. v. Hospitality Motor Inns, Inc., 139 Mich.App. 249, 361 N.W.2d 785 (1984), we believe that the only offensive coarse language prohibited is that which by its very utterance inflicts injury or tends to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1935 (1942).

"The existence of probable cause to arrest depends in every case upon the peculiar circumstances confronting the arresting officer." People v. Mitchell, 138 Mich.App. 163, 167, 360 N.W.2d 158 (1984).

We have carefully reviewed the facts and find the evidence sufficient to sustain defendant's convictions. We believe the officer had probable cause to make a lawful arrest. A rational trier of fact could have found all the necessary elements present. People v. Richardson, 139 Mich.App. 622, 362 N.W.2d 853 (1984).

We hold the prosecution's one improper comment during its closing argument to be harmless error. GCR 1963, 529.1. The jury instructions, when viewed in their entirety, were not incorrect. People v. Seabrooks, 135 Mich.App. 442, 452, 354 N.W.2d 374 (1984).

Accordingly, defendant's convictions are affirmed.

JOSLYN, J., concurred.

MAHER, Judge (Dissenting).

I respectfully dissent. While I agree with the majority's disposition of the first two issues, I do not agree that defendant was given a fair trial before a properly instructed jury on the issue of whether or not he had had the right to resist an arrest, the charge on which he was convicted.

[143 MICHAPP 549] As stated in the majority's opinion, there was a marked divergence in the testimony of the prosecution and defense witnesses, with other evidence supporting each of the versions. The version recounted by the police officers depicted defendant violently and repeatedly yelling obscenities at the police officers and telling them to get off the property, while defendant testified that he had not done this but had, instead, merely calmly and coolly called the police officers bastards. During his closing argument, the prosecutor stated:

"Even if you take the defendant's version of what happened, if you want to do that, that all he did was coolly and calmly and rationally call the officers bastards. I submit that that in and of itself under the language of the statute or the city ordinance makes him guilty--makes the arrest a lawful arrest for disorderly conduct."

Defense counsel then asked the trial court to instruct the jury that defendant would not have been legally arrested under the First Amendment had he merely used the word "bastard". The question of the legality of the arrest was critical to defendant's defense of justified resistance to an unlawful arrest--if the arrest were legal, defendant would not have had the right to resist the arrest. 1 The trial court refused this request, citing [143 MICHAPP 550] Michigan v. De Fillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). The court reasoned that because Coldwater's ordinance had never been declared unconstitutional and because the language of the ordinance was very broad, whether or not merely calling police officers "bastards" would violate the ordinance was a question for the jury.

In De Fillippo, the defendant was arrested under a Detroit municipal ordinance which made it illegal to falsely identify oneself if stopped and questioned pursuant to the ordinance. After the defendant was arrested, the police found marijuana in his pockets and phencyclidine in a pack of cigarettes. In the trial court, the defendant moved to suppress this evidence and his motion was denied. On appeal to this Court, the Court held the ordinance unconstitutional because it was too vague, and ordered the evidence suppressed as the product of an illegal search and arrest, People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921 (1977), lv. den. 402 Mich 921 (1978). The case was eventually appealed to the United States Supreme Court. Michigan v. De Fillippo, supra.

The United States Supreme Court reversed this Court's decision to suppress the evidence. The Supreme Court held that the original arrest had been made pursuant to a presumptively valid ordinance, had been legal, and that merely because the ordinance was later held to be unconstitutional did not by itself...

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  • People v. Lugo
    • United States
    • Court of Appeal of Michigan (US)
    • 28 Diciembre 1995
    ...against multiple punishments. The resisting arrest statute is intended to prevent interference with an arrest. People v. Chatfield, 143 Mich.App. 542, 546, 372 N.W.2d 611 (1985). The assault statutes, however, are clearly intended to punish crimes against persons. Because two different inte......

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