People v. Jones

• Decision Date: 27 July 1993
• Docket Number: No. 94307,No. 2,A,94307,2
• Citation: 443 Mich. 88,504 N.W.2d 158
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mearl Elton JONES, Defendant-Appellee. Calenderpril Term.
• Court: Michigan Supreme Court

Page 158

504 N.W.2d 158

443 Mich. 88

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mearl Elton JONES, Defendant-Appellee.

No. 94307.

Calender No. 2, April Term.

Supreme Court of Michigan.

Argued March 31, 1993.

Decided July 27, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Carolyn Schmidt and Jeffrey Caminsky, Asst. Pros. Attys., Detroit, for the People.

Dana B. Carron, Southfield, for defendant.

Before the entire Bench.

OPINION

ROBERT P. GRIFFIN, J.

This case requires us to decide whether a person may be convicted under Michigan law of attempted ¹ felonious assault. ² After a bench trial, the judge made findings of fact that would have supported conviction of the completed offense of felonious assault; however, the court found defendant guilty of only an attempt to commit that crime. On appeal the conviction was vacated by the Court of Appeals on the ground that "there is no crime of attempted assault." ³ We disagree, and therefore reverse the decision of the Court of Appeals.

I

According to defendant Mearl Elton Jones, he believed in October 1988 that he would soon be the victim of a drug-related revenge killing. On October 23, 1988, hoping to elude those he regarded as killers, Jones broke into a stairway leading to the upper apartment of a two-family residence and urgently asked the occupant of the upper flat to call the police. She did so, but refused to allow defendant to enter her living quarters.

Brandishing a pair of scissors, defendant tried to enter through the door, but she quickly closed it. Two Hamtramck police officers soon arrived and attempted to arrest defendant. One of the officers later testified that defendant resisted and, as he was being handcuffed, swiftly moved his arm, directing the scissors in his hand at the officer. Grabbing defendant's arm, the officer stopped the scissors just inches from his leg and forced him to drop the scissors. Still struggling, defendant was handcuffed and then forced into a police car.

Defendant was charged with breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305, and two counts of assault with a dangerous weapon (felonious assault), M.C.L. § 750.82; M.S.A. § 28.277. At the conclusion of a bench trial, Judge William Leo Cahalan found defendant guilty of entry without permission, M.C.L. § 750.115; M.S.A. § 28.310, a misdemeanor, and of one count of attempted felonious assault. Later, defendant was sentenced to ninety days in jail for entry without permission, and to one to two years' imprisonment for attempted felonious assault.

At no time during trial or at sentencing did defendant argue that attempted felonious assault is not a crime. However, five months later, defendant sought and obtained an order in the Court of Appeals remanding the case to the trial court to allow him to raise that argument in a motion for a new trial. Defendant's motion for a new trial on that ground was denied.

Thereafter, the Court of Appeals reversed and vacated defendant's conviction, stating that "there is more support than ever for the position that there is no crime of attempted assault." 193 Mich.App. 551, 553, 484 N.W.2d 688 (1992). We then granted the prosecutor's application for leave to appeal. 441 Mich. 880 (1992).

II

At early common law, "a criminal assault was an attempt to commit a battery and that only." Perkins, An analysis of assault and attempts to assault, 47 Minn.L.R. 71, 72 (1962). ⁴ With the passage of time, however, the definition of criminal assault was expanded to accommodate the tort concept of civil assault, "which is committed when one, with intent to cause a reasonable apprehension of immediate bodily harm (though not to inflict such harm), does some act which causes such apprehension." 2 LaFave & Scott, Substantive Criminal Law, § 7.16, p. 315.

Like the courts of our sister states, Michigan courts have struggled with changing definitions of criminal assault. As early as 1880, this Court described the crime as "an inchoate violence to the person of another, with the present means of carrying the intent into effect." People v. Lilley, 43 Mich. 521, 525, 5 N.W. 982 (1880). Shortly after the turn of the century, however, the definition was expanded in People v. Carlson, 160 Mich. 426, 429, 125 N.W. 361 (1910):

"There are numerous definitions of what constitutes an assault given by courts and text-writers. We cite two, which, taken together, may be said to include all necessary elements:

" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.' 3 Cyc, p 1020.

" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.' 2 Bishop on Criminal Law (7th ed), § 23."

More recently, in People v. Joeseype Johnson, 407 Mich. 196, 210, 284 N.W.2d 718 (1979), this Court ruled that "a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery....' " Quoting People v. Sanford, 402 Mich. 460, 479, 265 N.W.2d 1 (1978).

The view that there can be no such crime as attempted assault is rooted in semantics and stems from the definition of assault as attempted battery:

"As an assault is itself an attempt to commit a crime, an attempt to make an assault can only be an attempt to attempt to do it, or to state the matter still more definitely, it is to do any act towards doing an act towards the commission of the offense. This is simply absurd." Riley Wilson v. State, 53 Ga. 205, 206 (1874). See also Perkins, supra at 72.

Heretofore, our Court has not directly addressed this issue. ⁵ However, our Court of Appeals on several occasions has considered whether there may be a conviction for an attempted assault. The decisions of that Court generally follow People v. Patskan, 29 Mich.App. 354, 185 N.W.2d 398 (1971), rev'd on other grounds 387 Mich. 701, 199 N.W.2d 458 (1972), in which a defendant, convicted of assault with intent to rob, argued on appeal that the jury should have been instructed on attempted assault with intent to rob. The Court of Appeals disagreed, holding that because "[a]n assault is defined as an attempt to attempt or offer ... [t]here can be no offense of an attempt to assault, which by definition would include an attempt to attempt or offer." 29 Mich.App. at 357, 185 N.W.2d 398. See also People v. Maxwell, 36 Mich.App. 127, 193 N.W.2d 176 (1971); People v. Banks, 51 Mich.App. 685, 216 N.W.2d 461 (1974); People v. Matulonis, 60 Mich.App. 143, 230 N.W.2d 347 (1975) (opinions of Bronson and Burns, JJ.); People v. LeBlanc, 120 Mich.App. 343, 327 N.W.2d 471 (1982); People v. Etchison, 123 Mich.App. 448, 333 N.W.2d 309 (1983).

In several of the cases cited, however, the Court of Appeals conceded at least the possibility of an attempted assault. For example, in Banks, supra 51 Mich.App. at 689, 216 N.W.2d 461, the panel explained its view that "[i]f an assault is defined as a separate substantive crime with the element of present ability, then an attempt is logically possible. However, if an assault is defined as an attempted battery then the argument in favor of an attempt becomes a logical circle." The Etchison panel recognized that, in a proper case, an instruction for attempted assault might be given in light of Joeseype Johnson; however, the panel also said that where a defendant is charged with "attempted battery" assault, such an instruction would be inappropriate. 123 Mich.App. at 453, 333 N.W.2d 309.

Not until People v. Laster, 169 Mich.App. 768, 426 N.W.2d 806 (1988), did the Court of Appeals squarely recognize the crime of attempted assault. In that case, the defendant was charged with assault with intent to rob while armed, and after a waiver trial, was convicted of an attempt to assault with intent to rob while armed. Rejecting the defendant's contention that his conviction should be set aside because no such offense exists, the Court opined that "an unlawful act which places another in reasonable apprehension of receiving an immediate battery ... can be 'attempted.' " Id. at 771, 426 N.W.2d 806.

However, the Laster holding was effectively overruled by the decision of the Court of Appeals in the case now before us, ⁶ wherein the panel said,

"[A]fter the Joeseype Johnson decision, there is more support than ever for the position that there is no crime of attempted assault. An assault now requires an affirmative act by a defendant, either toward attempting a battery or toward some action that places another in reasonable apprehension of an immediate battery. Under the current definition, there can be no attempted assault that does not also constitute an assault." 193 Mich.App. at 553, 484 N.W.2d 688.

III

A

Other jurisdictions have considered this issue, and have reached varying results. ⁷ Some courts have merely applied the rationale of Wilson, supra, to conclude that there can be no conviction of attempted assault. See State v. Hewett, 158 N.C. 627, 629, 74 S.E. 356 (1912) ("[O]ne cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt"); White v. State, 22 Tex. 608 (1858) ("There is no such offense known to the law as 'an attempt to commit an assault, with intent to murder' ").

More recently, this issue has been considered in the context of a statute defining assault as an attempted battery. ⁸ Concluding that there can be no crime of attempted assault under such a statute, the Colorado Supreme Court explained, in Allen v. People, 175 Colo. 113, 116-117, 485 P.2d 886 (1971): ⁹

"[T]he commission of a criminal...