People v. Johnson

• Decision Date: 06 June 2001
• Docket Number: Docket No. 212482.
• Citation: 245 Mich. App. 243,631 N.W.2d 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benny JOHNSON, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

631 N.W.2d 1

245 Mich. App. 243

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benny JOHNSON, Jr., Defendant-Appellant.

Docket No. 212482.

Court of Appeals of Michigan.

Submitted June 15, 2000, at Detroit.

Decided April 6, 2001, at 9:10 a.m.

Released for Publication June 6, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan J. Smith), for the defendant on appeal.

Before O'CONNELL, P.J., and MARILYN J. KELLY and WHITBECK, JJ.

O'CONNELL, P.J.

A jury convicted defendant of two counts of kidnapping, M.C.L. § 750.349; MSA 28.581, and one count of domestic violence, M.C.L. § 750.81(2); MSA 28.276(2). He appeals as of right. We affirm.

I. Facts

Complainant in this case testified that she dated defendant for about six weeks, but ended the relationship the week before the events at issue. She had a three-year-old son, who was not related to defendant, for whom she had arranged to have defendant's mother to baby-sit while complainant was at work. After the completion of her work day on September 26, 1997, complainant arrived at defendant's mother's house to pick up her son, when she noticed a police car parked outside the house. As she approached the house she saw and heard defendant telling some police officers that everything was all right and that they could not enter the house. After the police left, complainant took her son to her car, and defendant followed and entered the car on the passenger side. Defendant's mother asked complainant to take defendant somewhere for a little while to cool off because a fight had occurred earlier.

After running some errands and getting dinner, complainant returned to defendant's mother's house to drop defendant off. Defendant, however, stayed in the car and wanted to talk with complainant about their relationship. After complainant told defendant that she did not want to get back together, defendant's demeanor changed. He became agitated and began questioning her about who had given her the money for a down payment on her new home. When complainant told him that it was none of his business, defendant took the car keys and refused to give them back unless she told him who gave her the money. At that point, complainant left the car and went into the house to call her brother for a ride home. In response, defendant threatened to kill complainant's brother if she called him. Complainant became frightened, and her son began crying.

Complainant left the house with her son to find a pay telephone to call her brother. Shortly thereafter, defendant caught up with her and told her that he was not through with her and that he was going to make her suffer. When complainant started walking in another direction, defendant shoved her, blocked her way, and threatened her with a stick. Complainant went back to defendant's mother's house in the hope of making a telephone call. However, when complainant tried to get the telephone, defendant, who seemed to be delusional, was yelling at his mother, who was telling him to leave complainant alone.

Complainant and her son then went back outside because complainant was afraid that defendant was going to hit his mother. Running to the next block, she sought a place to hide. Defendant, however, caught up with her and threatened to kill her if she did not get into the car. She complied, and defendant drove to a gas station. Once there, defendant took the keys and got out of the car. Complainant testified that she tried to escape, but was not able to get her son out of the back seat before defendant returned.

Defendant then drove to a party store, asked an individual who he knew to buy him some beer, and drove back to his mother's house. Defendant drank the beer in his mother's driveway and told complainant that she could have her keys back if she had sex with him. After initially refusing, complainant complied with defendant's demand so that she could take her son home. Afterward, defendant refused to return the keys to the car and laughed at complainant, telling her that he was not done with her and that she was going to die that night.

Defendant then demanded that complainant take him to her new house. Because of his threats, complainant agreed to do so. All three slept on the floor together that night, defendant with his arm around the complainant's son to prevent complainant from seeking help.

The next morning, defendant woke complainant up and demanded that she take him to work. Along the way, a Warren police officer pulled the vehicle over. Complainant stated that she did not alert the police officer about her situation because she was afraid that defendant would hit her with an empty beer bottle that was in the car. Afterward, she continued to drive to defendant's place of employment and dropped defendant off between two trailers. Defendant went into one of the trailers, about ten feet away. As complainant was attempting to back out, defendant returned and got back into the car. He told her that everything was fine and that his boss said that he could take the day off. He directed her to move the car to the front of the plant so that he could collect his paycheck. When complainant parked the car, defendant took the keys and told her that he was not done with her yet. Complainant thereafter ran from the car, approached a moving truck, and screamed for help. The driver allowed complainant to use his cellular telephone to call her sister. When she saw that defendant had taken her son from the back seat of the car and was walking away, complainant left the truck and ran toward them. Defendant refused to return her son to her unless she agreed to drive him to his brother's house. Our of fear and concern for her son, she agreed.

At defendant's direction, complainant began driving around. When defendant became unhappy about complainant's driving, he grabbed the wheel and turned into a parking spot. He grabbed her, flipped her over, slammed her into the passenger seat, and began to choke her. Complainant's son begged defendant not to kill his mother. Eventually defendant stopped.

During the struggle, complainant's kicking cracked the car's windshield. After visiting two repair shops and a fast-food restaurant, defendant eventually calmed down, and they agreed that she would drop him off at his mother's house. When they arrived, defendant's mother came out and told defendant that the police were looking for him and that complainant's mother was waiting for her at the police station. En route to the station, defendant instructed complainant to tell the police that they had merely had a lover's quarrel and that a stone had hit the windshield at defendant's place of employment. At the police station, complainant spoke with the officers, told them what had happened, made a written statement, and went to a hospital. Complainant also testified that she was five weeks' pregnant with defendant's child at the time of the incident and that defendant knew it. At one point during the incident, defendant threatened to punch her in the stomach.

The prosecution charged defendant with first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1)(f); MSA 28.788(2)(1)(f), felonious assault, M.C.L. § 750.82; MSA 28.277, two counts of kidnapping, M.C.L. § 750.349; MSA 28.581, and domestic violence, M.C.L. § 750.81(2); MSA 28.276(2). The jury acquitted him of the CSC I and felonious assault charges, but convicted him of both counts of kidnapping and domestic violence. The trial court sentenced defendant as a secondoffense habitual offender, M.C.L. § 769.10; MSA 28.1082, to concurrent prison terms of ten to thirty years for each of the kidnapping convictions and ninety-three days for the domestic assault conviction.

II. Juror 457

Defendant first contends that he is entitled to a new trial because one of the members of the jury did not reveal until after trial that she had been a complainant in a domestic violence prosecution. According to defendant, the juror concealed facts from the court that, if she had revealed them, would have led defense counsel to challenge her for cause. The trial court denied defendant's motion for a new trial on the issue. We review a trial court's ruling on a motion for a new trial for an abuse of discretion. People v. Jones, 236 Mich.App. 396, 404, 600 N.W.2d 652 (1999). We find no error requiring reversal.

During voir dire, the jurors learned that one of the charges against defendant was domestic violence involving an assault and battery. The trial court then asked the jury, "[N]ow that you have heard all of the charges in this case do you know of any reason why you should not serve as a juror in this case?" None of the jurors responded. When the trial court then asked, "Are there any among you who have been previously a victim of a crime?" Juror 457 responded, "I have been assaulted." The following colloquy then occurred:

The Court: By virtue of that experience, would you be thinking about that experience and would it interfere with your ability to listen to the facts of this case and decide this case from the evidence here?

Juror: No, I can keep it separate.

The Court: Okay. You can keep it separate, good. Anyone else?

When the prosecutor questioned the prospective jurors, she asked whether they would have any difficulty sitting on a jury where the defendant was charged with felonious assault and assault and battery domestic violence. None of the jurors responded.

When defense counsel questioned the jurors, he asked, "Has anyone in this jury box every [sic] been where you felt you were threatened with some type of weapon?" Juror 457 responded that she had been hit in the head with a gun as a teenager, but stated that she could put it aside. When defense counsel asked whether any of the prospective jurors had ...