People v. Hardesty
| Decision Date | 11 February 1976 |
| Docket Number | Docket No. 19531 |
| Citation | 67 Mich.App. 376,241 N.W.2d 214 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary HARDESTY, Defendant-Appellant. 67 Mich.App. 376, 241 N.W.2d 214 |
| Court | Court of Appeal of Michigan — District of US |
[67 MICHAPP 377] James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and BASHARA and D. E. HOLBROOK, Jr., JJ.
Defendant, Gary Hardesty, pled guilty and was convicted of kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581. He appeals. The Supreme Court in the Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), vacated its special order of the Supreme Court at 394 Mich. 946 (1975), which directed the Court of Appeals to hold in abeyance decisions on the merits of appeals from pleas of guilty.
The transcript of the guilty plea proceeding reveals that on September 4, 1973, the defendant and two other young men were cruising the streets of Ypsilanti in an automobile. The trio stopped and asked the complainant for directions to Florence Street. On the pretense that they were unfamiliar with the area, they persuaded the complaining witness to enter the car and to direct them to Florence Street. The defendant admitted that at the time he and his accomplices picked up the [67 MICHAPP 378] complainant they were not lost, but were merely using that ploy to lure the complaining witness into the automobile. The three men then took the complainant to a secluded spot outside of Ypsilanti and raped her.
Defendant argues that the trial judge failed to establish a factual basis for the plea of guilty to kidnapping. GCR 1963, 785.7(3). He suggests that the kidnapping was merely incidental to the rape and, therefore, was not a chargeable crime. We disagree. The element of asportation in the crime of kidnapping is not satisfied where the movement of the victim is merely incidental to the commission of another underlying lesser offense. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973). Movement that adds either a greater danger or threat to the victim beyond that inherent in the crime of intended perpetration constitutes legal asportation, People v. Adams, supra.
The rationale for the rule was explained in Adams quoting People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, 695 (1969):
'In short, the * * * rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess prosecutorial zeal.' People v. Adams, supra, 389 Mich. 232, 205 N.W.2d 420.
At the time of the commission of the kidnapping, both rape, M.C.L.A. § 750.520; M.S.A. § 28.788, and kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, authorized a maximum penalty of life in prison. The rationale for the rule is inapplicable to this case because this is not an attempt by a prosecutor to overcharge or to grossly distort a lesser crime into a more serious charge.
Moreover, the complainant was taken to a secluded spot outside of Ypsilanti and raped. On the [67 MICHAPP 379] return trip she was let out at Interstate 94 and Beck Road. We take judicial notice that this is at least seven miles from the point of abduction. At the scene of the rape any of the assailants could have decided to do even greater bodily harm or to kill the complainant for fear of future identification. We hold that the movement of the complainant to a secluded area more than seven miles from the point of abduction added a greater danger or threat to the complainant beyond that inherent in the crime of rape. This justified a finding by the trial court of legal asportation to support a separate and distinct charge of kidnapping. People v. Baker, 60 Mich.App. 309, 230 N.W.2d 409 (1975), Lv. den., 394 Mich. 791 (1975).
Defendant next argues that to inform the defendant at the guilty plea that he is charged with kidnapping does not satisfy the requirement that the defendant be apprised of the general nature of the charge. GCR 1963, 785.7(1)(a). Defendant is in error. It is sufficient to inform the defendant of the charge. Guilty Plea Cases, supra.
The next issue raised on appeal is that defendant's guilty plea was a nullity because it was improper for the trial judge to...
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...Harris, 80 Mich.App. 161, 262 N.W.2d 912 (1977); People v. Worden, 71 Mich.App. 507, 248 N.W.2d 597 (1976); and People v. Hardesty, 67 Mich.App. 376, 241 N.W.2d 214 (1976). The Supreme Court, after granting leave, decided this issue in People v. Barker, 411 Mich. 291, 300, 307 N.W.2d 61 (19......
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