People v. Eisenberg, Docket No. 20495

• Decision Date: 08 November 1976
• Docket Number: Docket No. 20495
• Citation: 249 N.W.2d 313,72 Mich.App. 106
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter A. EISENBERG, Defendant-Appellant. 72 Mich.App. 106, 249 N.W.2d 313
• Court: Court of Appeal of Michigan — District of US

Page 313

249 N.W.2d 313

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter A. EISENBERG, Defendant-Appellant.

Docket No. 20495.

72 Mich.App. 106, 249 N.W.2d 313

Court of Appeals of Michigan.

Nov. 8, 1976.

Released for Publication Jan. 27, 1977.

[72 MICHAPP 108] Leitman & Roeser by Bruce T. Leitman, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

[72 MICHAPP 109] Before WALSH, P.J., and GILLIS and QUINN, JJ.

WALSH, Presiding Judge.

Defendant was charged with assault with intent to commit murder, ¹ tried by jury, and convicted of felonious assault. ² He was sentenced to 2 1/2 to 4 years in prison and fined $1,000 and now appeals.

On the morning of April 13, 1973, 12 Federal and local police officers armed with Federal search and arrest warrants drove a battering ram through the door of the defendant's 9th floor apartment in Southfield, Michigan. The warrants had been issued by a Federal magistrate pursuant to an affidavit asserting a violation of the Federal Firearms Act, 18 U.S.C. § 921, Et seq. Specifically, the defendant was accused of falsely answering a question on a Federal form required for the purchase of a handgun.

The people's testimony at trial established that prior to their forced entry, the officers, none of whom were in uniform, twice announced that they were police and that they had a warrant. Once the door of defendant's one-bedroom apartment had been broken open, the agents again identified themselves as they entered the living room with handguns drawn. Two men were in the apartment at the time of entry; one was in the living room and unarmed, the other was the defendant who emerged from his bedroom with a gun in his hand. One agent testified that some time during this incident he heard either the defendant or the [72 MICHAPP 110] other man ask, 'are you police?' Agent Clapp indicated that when he saw the defendant was armed he shouted, 'police, drop it', or words to that effect. Instead the defendant discharged his weapon in the direction of Officer McKee. The bullet missed McKee and ricocheted off an apartment wall striking Special Agent Clapp in the face.

The defendant admitted the assault on Clapp but claimed it was inflicted in self-defense. He testified that he had been asleep in his bedroom prior to the agents' forced entry and at no time heard the officers knock or identify themselves. He said he awoke to the sound of a loud crash at his apartment door, grabbed his revolver and ran out of his bedroom. When he saw a rather large man, Southfield Police Officer Dennis McKee, charging at him with a gun, he fired, missing McKee but wounding Agent Clapp.

The defendant testified further that he did not know the men in his apartment were police officers until after the shooting, that he is very near sighted, that he had seen only Officer McKee coming at him, and that he shot in his general direction because he was in fear that his life was in jeopardy.

At preliminary examination and again at trial defendant requested a ruling on the legality of the arrest. Both the examining magistrate and the trial judge refused to make such a ruling. It was and is defendant's position that the arrest was in fact illegal because of deficiencies in the warrants and supporting affidavits and that the denial of a judicial ruling to that effect precluded the defendant from asserting as a defense the right to resist an unlawful arrest.

The people's response is that there was no need [72 MICHAPP 111] for the trial judge to determine the validity of defendant's arrest. Since Eisenberg testified that he was unaware that his assailants were police officers, he should be precluded from asserting the defense of resisting an unlawful arrest.

It is true, as defendant contends, that the jury may have found that the defendant knew that the men breaking into his apartment were police officers coming to arrest him and from that the jury may have concluded that Eisenberg had no right to resist. This would have been an erroneous conclusion if the arrest was unlawful since, in Michigan one may use such reasonable force as is necessary to resist an unlawful arrest. People v. Krum, 374 Mich. 356, 132 N.W.2d 69 (1965) Cert. den., 381 U.S. 935, 85 S.Ct. 1765, 14 L.Ed.2d 699 (1965), People v. Bonello, 25 Mich.App. 600 181 N.W.2d 652 (1970), People v. Gray, 23 Mich.App. 139, 178 N.W.2d 172 (1970).

The right to resist an unlawful arrest, however, is merely one aspect of self-defense. An unlawful arrest is nothing more than an assault and battery against which the person sought to be restrained may defend himself as he would against any other unlawful intrusion upon his person or liberty. Curtis v. United States, D.C.App., 222 A.2d 840 (1966), Wilkinson v. State, 143 Miss. 324, 108 So. 711, 46 A.L.R. 895 (1926), 1 Anderson, Wharton's Criminal Law & Procedure, § 349, pp. 698--699 (1957).

Under the theory of Self-defense one is justified in using deadly force to repel an assault only if he honestly believes under all the circumstances as they appeared to him that he is in danger of losing his life or suffering great bodily harm and that his actions are necessary to save himself from the apparent danger. People v. Lennon, 71 Mich. 298, [72 MICHAPP 112] 38 N.W. 871 (1888), People v. Shelton, 64 Mich.App. 154, 235 N.W.2d 93 (1975). An Unlawful arrest, however, involves a less substantial danger. The amount of resistance which will be considered reasonable, therefore, must be reduced proportionally. The result of an unlawful arrest is temporary detention and loss of liberty. We conclude, therefore, that the right to resist an unlawful arrest can never include the right to use deadly force. ³

This conclusion is supported by the recent trend in other jurisdictions to eliminate entirely the right to resist an unlawful arrest. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1132--1133 (1969); 44 A.L.R.3d 1078, 1087. The movement is based in part upon the recognition that personal liberty, unlike bodily integrity, may be restored through the judicial process. A peaceful determination of an officer's authority to arrest, therefore, is to be preferred. People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969), State v. Mulvihill, 57 N.J. 151, 270 A.2d 277, 44 A.L.R.3d 1071 (1970). While Michigan Continues to recognize the common law right to resist an unlawful arrest, the foregoing considerations compel a limitation on that right in favor of the safety of the citizens and law enforcement officials of this State.

Accordingly, although Eisenberg would have had the right to use deadly force, if necessary, to defend himself if he believed that he was in danger[72 MICHAPP 113] of death or great bodily harm, he did not have the right to use deadly force to resist if he knew that the intruders in his apartment were police officers coming to arrest him. This is so even if the warrants under which the officers were operating were invalid.

Therefore, no matter what the jury may have believed about Walter Eisenberg's state of mind when the officers broke into his apartment, it was properly instructed as to the law to be applied. Eisenberg had an opportunity to assert and did assert the defense of self-defense. The circumstances surrounding the entry into his apartment, including the force used, the hour of the morning, and the fact that the police were not in uniform as well as the other details of the entry, were fully explored in the testimony. The question of whether the defendant believed and had reason to believe that he faced death or serious bodily harm at the hands of the officers, and not solely loss of liberty, was submitted to the jury in a comprehensive set of instructions on the law of self-defense and defendant's rights thereunder. There is no assignment of error as to those instructions.

There was no instruction on the right to resist an unlawful arrest, and properly so. If the defendant believed he faced only arrest and detention, he had no right to resist with deadly force even if the arrest were subsequently determined to have been unlawful.

Defendant next claims that his conviction of felonious assault should be reversed because it was the result of an improper compromise verdict. His theory is that the people failed to present evidence from which the jury could find all the elements of the crime of assault with intent to commit murder and, under the rationale of People v. Vail, 393 [72 MICHAPP 114] Mich. 460, 464, 227 N.W.2d 535 (1975), the trial judge should have directed a verdict of acquittal.

'The elements of the crime of assault with intent to commit murder are: (1) an assault; (2) with specific intent to murder; (3) and which, if successful would make the killing murder.' People v. Branner, 53 Mich.App. 541, 544, 220 N.W.2d 183 (1974). See, also, People v. Scott, 6 Mich. 287 (1859). The defendant admits the assault upon Agent Clapp but claims that there was insufficient evidence to show the remaining elements.

The intent to murder which must be proven under the statute is the 'intention to take life under any circumstances which would not render the killing manslaughter or justifiable or excusable homicide'. People v. Scott, supra, at 292. Therefore, proof of an assault with intent to kill, under circumstances where the killing would have been either first or second-degree murder, establishes this element of the offense. The trier of fact may infer an intent to kill from facts in evidence. People v. Scott, supra, People v. Ray, 56 Mich.App. 610, 224 N.W.2d 735 (1974). In the instant case, there was testimony that the police officers announced their purpose and identity both prior to breaking in the door of the defendant's apartment and after entering. Agent Clapp testified that when he saw that the defendant was armed he identified himself as an...