People v. Johnson, Docket No. 97532

• Citation: 171 Mich.App. 801,430 N.W.2d 828
• Decision Date: 10 November 1988
• Docket Number: Docket No. 97532
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lonnie Renee JOHNSON, Defendant-Appellant. 171 Mich.App. 801, 430 N.W.2d 828
• Court: Court of Appeal of Michigan — District of US

Page 828

430 N.W.2d 828

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lonnie Renee JOHNSON, Defendant-Appellant.

Docket No. 97532.

171 Mich.App. 801, 430 N.W.2d 828

Court of Appeals of Michigan.

Submitted March 1, 1988.

Decided Oct. 3, 1988.

Released for Publication Nov. 10, 1988.

[171 MICHAPP 802] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Christopher S. Boyd, Pros. Atty., and Annette M. Grey, Chief of Appeals, for the People.

State Appellate Defender by Fred E. Bell, for defendant-appellant on appeal.

Before SAWYER, P.J., and KELLY and RASHID, ^* JJ.

SAWYER, Presiding Judge.

Defendant was convicted, following a jury trial, of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e) [171 MICHAPP 803] extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was thereafter sentenced to concurrent prison terms of twenty to forty years on the kidnapping, CSC and extortion convictions, and to a consecutive two-year term for the felony-firearm conviction. Defendant now appeals and we affirm.

Defendant's convictions arise out of a 1986 incident in which he forced the victim at gunpoint to accompany him on foot to his apartment. Once in the apartment, he forced the victim to engage in various sexual acts.

We turn first to defendant's argument that the trial court abused its discretion in allowing the victim to testify regarding defendant's prior incarceration. Specifically, the victim testified that, at one point during the incident, defendant told her that he would kill her or her family if she told anyone and that, in any event, going to jail did not bother him as he had already been in jail. The reason for defendant's prior incarceration was not revealed.

While we would agree with defendant that evidence of his prior incarceration would be inadmissible merely for the purpose of establishing the fact that he had a criminal record, we do not believe that the victim's testimony in the case at bar was inadmissible. The victim's statements were not admitted merely to establish that defendant had a criminal record, but were relevant to the elements of coercion and the victim's mental anguish. That is, the fact that the statements were made to the victim explains the victim's subsequent conduct and assisted the jury in determining whether the victim had suffered mental anguish. Thus, while defendant's prior incarceration was not directly relevant, his statement to the victim [171 MICHAPP 804] that he had been incarcerated was relevant. See People v. Anglin, 111 Mich.App. 268, 290-291, 314 N.W.2d 581 (1981).

We next turn to two of defendant's arguments concerning the instructions to the jury. First, defendant argues that the trial court erred in instructing the jury on the use of evidence of flight by reading CJI 4:4:01 which instructs the jury to determine if defendant did flee and, if so, whether he ran away because of consciousness of guilt. To give a particular instruction to a jury, it is necessary that there be evidence to support the giving of that instruction. See People v. Parks, 57 Mich.App. 738, 743, 226 N.W.2d 710 (1975). In the case at bar, there was evidence that defendant left town for several days after learning that the police were looking for him in connection with the instant offenses. We believe that there was sufficient evidence to warrant the giving of the flight instruction, leaving it to the jury to determine if defendant did run away and whether his flight was indicative of guilt.

Defendant also assigns as error the trial court's instructing of the jury on kidnapping by secret confinement, utilizing CJI 19:1:04, rather than the more general instruction contained in CJI 19:1:01 which is appropriate where there is kidnapping by asportation. While we are at a loss to explain why the prosecutor chose to charge kidnapping by secret confinement rather that kidnapping by asportation, since the evidence that defendant forced the victim at gunpoint to travel approximately a mile and a half to his apartment would seem to satisfy the asportation element, we nevertheless believe that the trial court was correct in giving the kidnapping by secret confinement instruction, CJI 19:1:04.

On this issue, defendant argues that there was [171 MICHAPP 805] no evidence that the victim's confinement was secret. We disagree.

This Court discussed the element of secret confinement in People v. McNeal, 152 Mich.App. 404, 412, 393 N.W.2d 907 (1986):

"There is very little case law in Michigan to indicate what constitutes 'secret confinement.' Cf., People v. Lucille Walker, 135 Mich App 311; 355 NW2d 385 (1984); People v. Nodine, 36 Mich App 80; 193 NW2d 172 (1971). One thing is obvious. 'Secret' confinement is to be distinguished from confinement in a public place such as a jail or a mental institution. However, not all confinement beyond such extremely public confinement constitutes secret confinement. See Walker, supra. In general, we believe that secret confinement is confinement in a place or manner which makes it unlikely that members of the public will know or learn of the victim's unwilling confinement within a reasonable period of time. Moreover, in order to establish secret 'confinement' or 'imprisonment,' some significant type or amount of detention may be required. In this case, the evidence indicated that defendant forced the victim off the streets and into a home. He forced her to remain there for three hours and kept her blindfolded for most of that time. Under these circumstances, there is no question that a jury could rationally conclude that she was 'confined' or 'imprisoned.' Moreover, a jury could rationally conclude that it was proven beyond a reasonable doubt that such confinement in the house was 'secret.' It obviously would be difficult for any other person to know or learn that an abducted victim had been taken and detained there."

Defendant argues that the confinement could not have been secret since at least one other person, defendant's neighbor, saw defendant take the victim into his apartment and because the victim and defendant were apparently acquainted [171 MICHAPP 806] and, therefore, others searching for the victim could have traced her to defendant's apartment. We disagree with defendant's reasoning.

Firstly, with respect to the fact that defendant's neighbor was aware that defendant had taken the victim into his apartment, while this is true, there is no indication that the neighbor knew that the victim was being kidnapped. While the neighbor may have been aware that the victim was present in the apartment, the neighbor was not aware that she was being held against her will. We do not believe that an element of secret confinement is a showing that there are no witnesses to the crime. We believe that secret confinement can be shown where those who know where the victim is located are unaware that the victim is, in fact, a victim of kidnapping. As for the fact that persons acquainted with the victim, once they realized she was missing, might trace her presence to defendant's apartment, that might suggest that defendant made a poor choice in location to confine the victim, but we do not believe that it precludes a finding by the jury that the confinement was secret. Rather, we believe that the essential issue is whether other persons were aware that the victim was being confined at defendant's apartment. The evidence would seem to suggest that the answer to that inquiry was that no one was aware she was being confined at defendant's apartment. In fact, the evidence indicates that no one was aware that the victim was being confined at all. That is, it would appear that the victim was released before anyone was aware she was missing.

In sum, we believe that the essential difference between a case of secret confinement and a case where there is no secret confinement is that a person is being secretly confined if he is being held against his will at a location and there are no [171 MICHAPP 807] third persons who are aware of the confinement or, even if aware, who know the location of the confinement; there is no secret confinement if others are aware that the person is being held against his will and are aware of the location of the confinement, or could easily determine the location because of its public nature. Thus, in a classic example, one cannot be secretly confined in the county jail. However, we believe that one could be secretly confined in the perpetrator's own home even though, once suspicion fell upon the perpetrator, one of the first logical places to look would be his home.

For the above reasons, we believe that the trial court correctly instructed the jury on kidnapping by secret confinement.

We have carefully considered defendant's remaining issues and determine that they require neither reversal nor discussion.

AFFIRMED.

RASHID, J., concurs.

KELLY, Judge (dissenting).

I disagree with the majority on three issues in this case: whether it was error requiring reversal for the prosecutor to present evidence in rebuttal which properly belonged in the prosecutor's case-in-chief; whether the trial court erred by instructing the jury on the flight instruction; and whether the court erred by instructing the jury on kidnapping by secret confinement. I will not discuss the first two issues as they are extremely close questions and dissents rarely ride to vindication. However, I am firmly convinced that the trial court erred by instructing the jury on kidnapping by secret confinement and that this error...