People v. Kelley

• Decision Date: 18 October 1989
• Docket Number: No. 85981,No. COA,85981,COA
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Randy KELLEY, Defendant-Appellee. 98049. 433 Mich. 882, 446 N.W.2d 821
• Court: Michigan Supreme Court

Page 821

446 N.W.2d 821

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

No. 85981.

No. COA 98049.

433 Mich. 882, 446 N.W.2d 821

Supreme Court of Michigan.

Oct. 18, 1989.

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals for the reasons stated in the dissent in the Court of Appeals. We REMAND the case to the Court of Appeals for consideration of the other issues raised in that Court by the defendant but which were not addressed by it. See People v. Kelley, 176 Mich.App. 219, 439 N.W.2d 315 (1989).

We do not retain jurisdiction.

LEVIN, Justice, would modify the decision of the Court of Appeals, which reversed Kelley's conviction of child torture ¹ and ordered a new trial, to provide that on remand the judge shall enter a conviction of the lesser offense of child cruelty ² and resentence Kelley, the prosecutor to have the option of retrying Kelley for child torture. ³

I cannot join in, and dissent from the order peremptorily reversing the Court of Appeals and adopting the view there expressed in dissent by one judge because the view so adopted is not settled law, and on the contrary appears to conflict with the tendency of a number of decisions of the Court of Appeals and with the perception of those charged with preparing standard jury instructions, and also appears to conflict with the analysis generally employed by this and most other courts in deciding when intoxication may negative the requisite felonious intent.

I agree that the cause should be remanded to the Court of Appeals to consider contentions advanced in that court that were not considered ⁴ including Kelley's claim that the maximum sentence the Court could lawfully impose was less than the 30 to 60 year sentence that was imposed ⁵ and his claim of instructional error. ⁶

I

In entering a peremptory order of reversal, the Court apparently concludes that the Court of Appeals erred when it decided that the trial judge erred when he concluded that there was no specific intent requisite to the commission of child torture and refused to instruct the jury that voluntary intoxication might be a defense. ⁷

Manifestly this is not a case for peremptory disposition. Peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required. ⁸ It cannot be said in this case of first impression that the law is settled in accordance with the view expressed by the dissenting judge on the Court of Appeals panel. It most definitely cannot be said that the Court of Appeals committed "palpably clear error." ⁹ The dissenting judge, whose view is peremptorily adopted, acknowledged that "the question of whether child torture is a specific intent crime is unclear." Kelley, supra, 176 Mich.App. p. 225, 439 N.W.2d 315 (separate opinion by Grathwohl, J).

II

The dissent made two basic points in explaining why intoxication was not a defense. The first appears to be a misconstruction of earlier Court of Appeals decisions distinguishing child torture from child cruelty and the second departs in analysis from the decisions in this and other jurisdictions that decide when intoxication may negative the requisite intent in terms of whether a specific as well as general intent must be established. ¹⁰

A

The law of child torture was largely developed by the Court of Appeals in the context of differentiating child cruelty from child torture.

The dissent argued that People v. Webb, supra, 128 Mich. p. 726, 341 N.W.2d 191, and People v. Shelton, 138 Mich.App. 510, 360 N.W.2d 234 (1984), should be read as suggesting that specific intent is not an element of child torture. The dissent mistakenly read the rejection in Webb and Shelton of the motive-based method for distinguishing child torture from child cruelty, elucidated in People v. Biegajski, 122 Mich.App. 215, 332 N.W.2d 413 (1982), lv. den., 417 Mich. 1080 (1983), and the adoption of an intensity-of-the-injury distinction, as holding that the only difference between torture and cruelty is the intensity of the injury.

In Biegajski, defendant Biegajski was convicted of both child cruelty and child torture. Biegajski claimed that conviction of both child cruelty and child torture violated the Double Jeopardy Clause. Id., 122 Mich.App. p. 220, 332 N.W.2d 413. The Court of Appeals held that conviction of both crimes did not violate the prohibition against multiple punishment for one offense because each offense required proof of a fact that the other did not. Id., p. 223, 332 N.W.2d 413. To constitute child torture the offender must be motivated by a particular purpose to harm the child, as the Court explained:

"The child torture statute, unlike the child cruelty statute, does not contain the word 'punish'. Rather, the infliction of torture upon a child constitutes the offense of child torture. Since the statute does not define 'torture' we construe the word 'according to the common and approved usage of the language'. Black's Law Dictionary defines torture as 'the infliction of violent bodily pain upon a person'. Torture also has been defined as the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure.

"In view of the fact that the Legislature chose to use the word punishment in the child cruelty statute only, we hold that a punishment motive is not part of the child torture statute, but rather 'torture' in terms of the statute, refers to the infliction of violent bodily pain upon a child to satisfy sadistic motives. We conclude that the Legislature intended the child torture statute to apply to instances of sadism or vileness, where the 'parent or guardian or person under whose protection or control any child may be' inflicts pain for purposes other than punishment." Id., p. 223, 332 N.W.2d 413. (Emphasis added.)

The Biegajski motive-based distinction was rejected in subsequent decisions of the Court of Appeals, beginning with Webb and Shelton. ¹¹ The commentary to the Standard Criminal Jury Instructions states:

"This definition [set forth in Biegajski ] has not proved popular, however. In two later cases, People v. Webb, 128 Mich App 721; 341 NW2d 191 (1983), lv den, 418 Mich 966 (1984) and People v. Shelton, 138 Mich App 510; 360 NW2d 234 (1984), different panels of the court of appeals determined that the child torture offense is distinguished from child cruelty by the severity of the injury inflicted, rather than whether the defendant's motive was punishment."

The commentary goes on to state,

"Torture was defined in these cases as intentional infliction of extreme, intense, or severe pain or injury to the victim. This definition was adopted by the CJI Committee in 1985 and incorporated in CJI 17:8:05." ¹²

In Webb, as in Biegajski, the defendants were charged with child torture and child cruelty. In Webb, the magistrate had refused to bind the defendants over on child torture, and the circuit judge had affirmed, finding that the child torture statute was impermissibly vague in failing adequately to distinguish between child cruelty and child torture. Id., p. 726, 341 N.W.2d 191. Addressing this concern, the Court of Appeals explained that child torture and child cruelty may be differentiated by the intensity of the pain and injury inflicted. Id., p. 726, 341 N.W.2d 191. The Court added that the child torture statute requires evidence of an intentional infliction of extreme pain:

"Where a statutory term is not defined in the statute, it is to be given its ordinary meaning. An examination of various dictionary definitions discloses that 'torture' refers to the intentional infliction of intense or severe pain for various purposes such as sadistic pleasure, coercion, and punishment. We interpret the child torture statute as requiring a showing that the defendant intentionally inflicted extreme, intense or severe pain or injury upon the victim. This high degree of pain or injury is an additional element which is not contained in the child cruelty statute." Id. p. 727, 341 N.W.2d 191. (Emphasis added.)

In Shelton, supra, the Court elaborated on the Biegajski motive or purpose based distinction between child torture and child cruelty and the Webb severity of the injury distinction, and stated that in Biegajski,

"a panel of this Court reasoned that the difference between child cruelty and child torture is that the former applies where the abuse is inflicted with a punishment motive while the latter applies to abuse inflicted with a sadistic motive or purpose other than punishment. In People v. Webb, 128 Mich App 721; 341 NW2d 191 (1983), lv den 418 Mich 966 (1984), another panel disagreed with the Biegajski panel's distinguishing between the two offenses based on the defendant's motive, and instead interpreted the child torture statute as applying to the 'intentional infliction of intense or severe pain for various purposes such as sadistic pleasure, coercion, and punishment ', and determined that this high degree of pain or injury is the additional element required for conviction of child torture in contrast to child cruelty. We agree with the Webb panel. If the two offenses where to be distinguished based on the defendant's motive, this would lead to the anomalous result that so long as the defendant acted with the motive of punishing the child for some real or perceived infraction, the defendant could be convicted only of child cruelty and not the higher offense of child torture, regardless of how extreme the injury inflicted upon the child, while a defendant acting with some motive other than punishment could be convicted only of child torture regardless of how minor the injury inflicted." Id., 138 Mich.App. p. 515, 360 N.W.2d 234. (Emphasis added.)

Thus Shelton adopted the Webb view that severity of injury distinguishes...