People v. Kelley

• Decision Date: 10 October 1977
• Docket Number: Docket No. 27069
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick Alvin KELLEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 923

260 N.W.2d 923

78 Mich.App. 769

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick Alvin KELLEY, Defendant-Appellant.

Docket No. 27069.

Court of Appeals of Michigan.

Oct. 10, 1977.

Released for Publication Jan. 12, 1978.

Reid & Reid, by Joseph D. Reid, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul F. Berger, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and V. J. BRENNAN and S. J. BRONSON, JJ.

BRONSON, Judge.

Defendant was jury convicted and sentenced on a charge that he:

"(D)id knowingly and wilfully obstruct, resist, oppose, assault, beat or wound, Deputy Dennis Kellogg, a police officer with the Eaton County Sheriff's Department, while said officer was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: while policing an accident; Contrary to 750.479, C.L. 1948; M.S.A. 28.747."

A brief summary of the circumstances of this case is necessary to place defendant's appellate contentions into perspective. It seems that an acquaintance of defendant's, a Mr. Francis Sabrowsky, had driven his car off a road and into a ditch in rural Eaton County. Mr. Sabrowsky was apparently not injured to any great degree, as he proceeded to get out of the car and walk down the road to defendant's house where he requested assistance. Defendant agreed, and the two men drove back to the scene of the accident on defendant's tractor.

Defendant and Mr. Sabrowsky managed to pull the car out of the ditch with defendant's tractor, and were changing a tire on the car when Eaton County Deputy Sheriff Dennis Kellogg arrived on the scene, in response to a call from a nearby resident. Deputy Kellogg began an investigation of the accident and eventually placed Mr. Sabrowsky under arrest for driving while intoxicated. Mr. Sabrowsky went peaceably to sit in the back seat of the patrol car and Deputy Kellogg began writing an accident report.

At this time, defendant initiated a conversation with the deputy as to whether he, defendant, could tow his friend's car away to save the towing charge. Deputy Kellogg, after calling his headquarters on his car radio, told defendant that the vehicle would have to be towed in by an authorized wrecker service and impounded.

According to the deputy's trial testimony, defendant still refused to take "no" for an answer and continued to insist that he be permitted to tow the car away. Deputy Kellogg again refused. He then requested, and eventually ordered, the defendant to unhitch his tractor from Mr. Sabrowsky's car and leave the scene.

Further testimony by Deputy Kellogg, as well as some (though not all) of the other eyewitnesses, indicated that defendant reused to leave upon request, began making abusive, sarcastic, and obscene remarks to Deputy Kellogg, asked the deputy for his badge number, and, upon receiving an unsatisfactory reply, informed Deputy Kellogg that he had no authority to make him, the defendant, do anything.

Deputy Kellogg then told the defendant he was under arrest for disorderly conduct.

Defendant physically resisted the arrest, but was eventually subdued.

On appeal, defendant claims error in several related respects, all of which were raised in the trial court in some manner.

Defendant first asserts that the information was misleading and thus did not sufficiently inform him of the charge against which he was required to defend at trial.

We have already quoted the information. It was sufficient to apprise defendant of the nature of the offense charged. See M.C.L.A. § 767.45; M.S.A. § 28.985. As required, the information specifically alleges the lawful acts which the police officer was performing and in which he was resisted or obstructed. See People v. Weatherspoon, 6 Mich.App. 233, 148 N.W.2d 891 (1967); People v. Hubbard, 141 Mich. 96, 104 N.W. 386 (1905).

It was not necessary for the information to allege the specific acts by the defendant which are claimed to have constituted the crime. Rather, a charge in which the acts by the defendant are phrased in the language of the statute, as was done in this information, is sufficient. People v. Margelis, 246 Mich. 459, 224 N.W. 605 (1929).

Perhaps anticipating this ruling on the sufficiency of the information, defendant argues alternatively that the crime proved at trial was not that charged in the information. Defendant takes the position that the evidence showed at most only a resistance to an arrest, and no other obstruction of a police officer. Defendant asserts that there was consequently a fatal variance between the information and the proofs.

Plaintiff takes the position that the evidence was sufficient to show that defendant, prior to his arrest, had knowingly and wilfully obstructed or resisted Deputy Kellogg in the investigation of the accident and the preparation of an accident report, a lawful duty of a police officer. M.C.L.A. § 257.621; M.S.A. § 9.2321.

The testimony which has been outlined above supports plaintiff's position. If accepted by a jury, that evidence could have formed the basis for a conviction under the statute. The evidence shows a marked resemblance to that held to be sufficient in People v. Krum, 374 Mich. 356, 132 N.W.2d 69 (1965), the only significant difference being that in Krum, the defendant had brushed against the state trooper in addition to otherwise interfering with his duties. Krum, supra, 359, 132 N.W.2d 69. However, actual physical interference is not required to be proved to sustain a conviction under the statute. People v. King, 236 Mich. 405, 210 N.W. 235 (1926).

Defendant also presents alternative arguments on his second appellate issue, which broadly asserts that the case was not properly placed before the jury.

One argument is that the jury was not instructed on an essential element of the charged offense. Specifically, defendant claims error in the trial court's failure to instruct the jury that the legality of defendant's arrest was an element of the charged offense, that the jury was required to determine whether the deputy had sufficient cause to effect an arrest of defendant, and that it was the prosecutor's duty to prove the legality of the arrest beyond a reasonable doubt. Defendant relies on People v. Clarence Reed, 43 Mich.App. 51, 203 N.W.2d 756 (1972).

Plaintiff responds that this argument is fallacious because defendant was not charged with resisting his arrest but rather with obstructing Deputy Kellogg's investigation of the accident prior to the arrest. Under plaintiff's theory, the legality of the arrest itself would not be an element of the charged offense, though a finding that defendant was guilty of obstructing the accident investigation would also amount to a conclusion that the arrest itself was legal.

Plaintiff also points out that the trial court did generally instruct the jury that the prosecutor was required to prove that the officer was involved in the legal performance of his duties when interfered with by defendant.

Again, plaintiff's position on this issue would appear to be sound. Plaintiff has consistently taken the position in the information, in his opening statement and closing arguments below, and his brief on appeal, that defendant was not charged with resisting his arrest but rather with obstructing the accident investigation prior to the arrest. Under the circumstances, a jury charge defining a legal arrest and naming it as an essential element of the prosecutor's case would clearly be inappropriate.

All of this leads us to the defendant's alternative argument on the presentation of the case to the jury, an argument in which we find much merit. In effect, defendant argues that the trial judge erred reversibly in failing to instruct the jury that defendant could not be convicted based on his physical resistance to his arrest unless the jury first found that defendant's actions prior to the arrest amounted to a resisting or obstructing of Deputy Kellogg's accident investigation, forbidden by the statute under which defendant was charged, and rendering defendant's arrest legal.

It is plain that defendant's argument is erroneous in one respect. Defendant again erroneously assumes that the jury could have convicted him because of his resistance to the arrest. Defendant concedes too much by claiming only that the jury could not have convicted him for resisting an illegal arrest, as the plaintiff has made clear throughout these proceedings that defendant was not charged with and could not have been convicted of resisting the arrest itself, legal or not.

Defendant's point is otherwise well taken. The proofs presented at trial showed not only defendant's actions prior to the arrest, but went into great detail as to the defendant's acts of physical resistance to the arrest itself. This evidence went in without objection, and its admissibility is not...