People v. Leszczynski

• Decision Date: 25 September 1973
• Docket Number: Docket No. 13128,No. 2,2
• Citation: 212 N.W.2d 255,49 Mich.App. 555
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph LESZCZYNSKI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 255

212 N.W.2d 255

49 Mich.App. 555

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph LESZCZYNSKI, Defendant-Appellant.

Docket No. 13128.

Court of Appeals of Michigan, Division No. 2.

Sept. 25, 1973.

Released for Publication Nov. 27, 1973.

Leave to Appeal Granted Feb. 21, 1974.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Walter W. Turton, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ADAMS,* JJ.

DANHOF, Judge.

On August 12, 1971, defendant was found guilty by a jury of kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and robbery armed, M.C.L.A. § 750.529; M.S.A. § 28.797. On October 12, 1971, he was sentenced to concurrent terms of 2 1/2 to 10 years in prison on each conviction.

Although defendant was tried separately, the facts surrounding the transaction out of which these charges arose have already been fully set forth in People v. Behm, 45 Mich.App. 614, 207 N.W.2d 200 (1973).

Defendant first contends that his conviction of kidnapping must be reversed because the trial court failed to instruct the jury on the element of asportation. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973). We are compelled to agree, although the record in the instant case is replete with evidence by which the jury could have found the necessary asportation. Furthermore, we point out that our holding in this regard in no way implies fault in the late trial judge for his failure to instruct on asportation. The element of asportation was initially born of an opinion by this Court decided June 24, 1971. People v. Otis Adams, 34 Mich.App. 546, 192 N.W.2d 19 (1971). However, that opinion did not reach this Court's advance sheets until December 15, 1971. Defendant was tried in August of 1971.

Nevertheless, our Supreme Court's decision in Adams, supra, holds that asportation or movement is an essential element of the crime of kidnapping, except perhaps kidnapping involving secret confinement; that the existence of asportation is a question of fact; that a jury charge omitting an instruction on asportation is inadequate, even absent request. There was no instruction on asportation in the instant case. Upon retrial of the kidnapping charge, the jury should be instructed on the element of asportation as required by Adams, supra.

Defendant contends that the trial court ruled that defendant could not take the stand, at a Walker ¹ hearing held during trial and out of the presence of the jury, in a limited capacity to testify on the voluntariness of statements alleged to have been made by defendant to a police officer. Defendant further contends that this forced him to the stand at trial to explain those statements which the trial court had found to be voluntary. The people argue that the trial court only ruled that defendant would be subject to thorough cross-examination at the Walker hearing, and for purposes of the Walker hearing only, were he to choose to testify on the limited issue of voluntariness. We have examined closely the trial court's ruling in this regard together with the dialogue between the court and counsel leading to it. While the trial court's ruling is certainly capable of the interpretation given to it by the people, they have not shown...