People v. Cousins

• Decision Date: 22 February 1985
• Docket Number: Docket No. 70555
• Citation: 363 N.W.2d 285,139 Mich.App. 583
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Tyler COUSINS, Defendant-Appellant. 139 Mich.App. 583, 363 N.W.2d 285
• Court: Court of Appeal of Michigan — District of US

Page 285

363 N.W.2d 285

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Tyler COUSINS, Defendant-Appellant.

Docket No. 70555.

139 Mich.App. 583, 363 N.W.2d 285

Court of Appeals of Michigan.

Submitted June 19, 1984.

Decided Dec. 17, 1984.

Release for Publication Feb. 22, 1985.

[139 MICHAPP 586] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Annette M. Gray, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Susan J. Smith, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and BEASLEY and KIRWAN ^*, JJ.

MacKENZIE, Presiding Judge.

Defendant appeals as of right his conviction after a jury trial of escape from jail through violence, M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3); unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798; assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278; taking another as a hostage, M.C.L. Sec. 750.349a; M.S.A. Sec. 28.581(1); assault with a dangerous weapon, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277; assault with intent to commit a felony, M.C.L. Sec. 750.87; M.S.A. Sec. 28.282; entry without breaking with intent to commit larceny, M.C.L. Sec. 750.111; M.S.A. Sec. 28.306; armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797; kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581; unlawfully driving away an automobile, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645; and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

The series of offenses began when defendant, who was awaiting trial on other charges, was being transported by Deputy McRae from the Saginaw County Courthouse back to the jail through a security elevator and tunnel which connected the courthouse to the jail. Deputy McRae testified that he handcuffed defendant's hands in front, and he and defendant then entered [139 MICHAPP 587] the security elevator. When the elevator reached the basement where the tunnel was located, just as the elevator doors were opening, defendant kicked Deputy McRae three times in the groin. Still inside the elevator, defendant then put the handcuffs around McRae's neck and began choking him. McRae stated that he managed to drag himself to the alarm button inside the elevator and hit the button twice. Struggling, defendant and McRae exited from the elevator, spilling out onto the basement floor. Defendant repeatedly demanded that McRae give him his gun. McRae refused, but during the struggle he felt defendant removing the gun from his holster. McRae heard the gun being cocked, hit the gun with his hand, and the gun discharged.

McRae recalled then being on his knees with defendant holding the cocked gun to his head and demanding that McRae get him out or he was going to kill him. Defendant ordered McRae to unlock a security door leading to the public door of the courthouse, but McRae feigned that his key did not fit. Defendant also asked McRae for additional ammunition, but McRae stated he didn't have any more rounds. McRae testified that defendant then said, "Turn around, I'm going to kill you", and defendant proceeded to hit McRae in the head with the gun. McRae testified that the next thing he could recall was lying next to the wall on the second floor of the courthouse with defendant standing next to him but not touching him in any way, and then being in a courtroom announcing to the people therein that a prisoner had just escaped. McRae testified that the only way he could have arrived at the second floor of the courthouse was via the security elevator, although he had no recollection of entering into or being in the elevator. McRae also testified that there was an alarm [139 MICHAPP 588] button in the downstairs area just across from the elevator, but that he had not been able to reach that mechanism during the struggle in the basement.

In his testimony, defendant admitted to attempting to escape from McRae. According to defendant, McRae attempted to stop him and a struggle ensued. Defendant testified that McRae went for his gun and that he struggled with McRae to prevent him from removing the gun from his holster. During the struggle, the gun went off, wounding McRae. Defendant then removed his handcuffs and took possession of the revolver. Defendant denied any intention of shooting McRae, testifying that had he so desired he could have killed McRae. Defendant also testified that he took the elevator to the second floor and fled the building, and that he had not taken McRae with him in the elevator.

The prosecution's evidence showed that after fleeing the courthouse, defendant encountered Theophile Louchart, Jr., a postal employee. Defendant forced his way into Louchart's Jeep and instructed Louchart to drive. Louchart informed defendant that he was unable to comply with the request. Louchart attempted to convince defendant that he did not have a key to the vehicle. Defendant pulled the revolver and shot Louchart, wounding Louchart in the arm. Louchart then exited from the vehicle and ran for help.

The prosecution's evidence further showed that defendant subsequently entered the house of Anna Gosen. Gosen testified that she discovered defendant standing in her bedroom holding a gun, and defendant told her she would not be harmed if she followed his instructions. Defendant asked Gosen for clothes and money, and she complied. Defendant later demanded that Gosen drive him out of town, she complied, and when they approached [139 MICHAPP 589] Detroit defendant assumed the driving. After arriving in Detroit, defendant exited from the vehicle and told Gosen she was free to leave. On cross-examination of defendant at the trial, the following exchange occurred:

"[Prosecutor]: Is it in fact the case that you wanted Mrs. Gosen to go with you so you would have a hostage to use in the event you ran into a police roadblock?

"[Defendant]: I don't see the gun would have did any good. It's been a proven fact that they don't start knowing what they going to do to you because you got hostages."

Arising out of the events with McRae were defendant's convictions for escape from jail through violence, unarmed robbery (for taking McRae's gun), assault with intent to commit murder, and taking a hostage. Arising out of the incident with Louchart were defendant's convictions for assault with a dangerous weapon (for shooting Louchart in the arm) and assault with intent to commit a felony (kidnapping). Defendant's convictions for entering an occupied dwelling with intent to commit a larceny, armed robbery, kidnapping, and unlawfully driving away an automobile were in connection with the events involving Gosen.

Defendant raises five issues on appeal which we will address seriatim.

I

Defendant claims that there was insufficient evidence to support his conviction of taking Deputy McRae as a hostage in contravention of M.C.L. Sec. 750.349a; M.S.A. Sec. 28.581(1), which provides as follows:

[139 MICHAPP 590] "A person imprisoned in any penal or correctional institution located in this state who takes, holds, carries away, decoys, entices away or secretes another person as a hostage by means of threats, coercion, intimidation or physical force is guilty of a felony and shall be imprisoned in the state prison for life, or any term of years, which shall be served as a consecutive sentence."

Resolution of this issue requires us to define the meaning of the language "as a hostage" in the above statute, a task which has not heretofore been undertaken by an appellate court of this state. However, we find guiding precedent in decisions from other jurisdictions.

In State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971), the Supreme Court of New Mexico held that "hostage", as used in New Mexico's kidnapping statute,

"implies the unlawful taking, restraining or confining of a person with the intent that the person, or victim, be held as security for the performance, or forbearance, of some act by a third person." State v. Crump, 82 N.M. at 493, 484 P.2d at 335.

The Crump court rejected a broader definition which would have embraced not only demands made by the defendant on a third person, but also demands made directly on the victim. State v. Crump, supra. Courts from other states have adopted as their own the definition of "hostage" set forth in Crump. State v. Stone, 122 Ariz. 304, 594 P.2d 558 (Ariz.App.1979); State v. Littlefield, 389 A.2d 16 (Me.1978); State v. Lee, 33 N.C.App. 162, 234 S.E.2d 482 (1977).

We likewise adopt the definition of "hostage" articulated in State v. Crump, supra. We further hold that the phrase "as a hostage" employed in M.C.L. Sec. 750.349a; M.S.A. Sec. 28.581(1) requires only an [139 MICHAPP 591] intent or purpose to use the victim as a hostage and does not require for conviction that the defendant have actually used the victim as a hostage. We so hold in view of the statutory language "takes, holds, carries away, decoys, entices away or secretes another person as a hostage". This language reflects that the taking or holding, etc. is the requisite act and "as a hostage" merely denotes the requisite intent or purpose which must accompany the taking or holding of the victim.

We must now determine whether there was sufficient evidence for the jury to find that defendant took McRae into the elevator and up to the second floor of the courthouse with the intention or purpose of using McRae as security for the performance or forbearance of some act by a third person. The standard of review applicable to defendant's claim of insufficient evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the element of intent to use as a hostage proven beyond a reasonable doubt. People v. Delongchamps, 103 Mich.App. 151, 159, 302 N.W.2d 626 (1981), lv. den. 412 Mich. 857, 313 N.W.2d 283 (1981). The requisite element of...