People v. Little

• Decision Date: 05 June 1990
• Docket Number: Docket No. 87021
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth Paul LITTLE, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 237

456 N.W.2d 237

434 Mich. 752

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth Paul LITTLE, Defendant-Appellee.

Docket No. 87021.

Supreme Court of Michigan.

June 5, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Richard H. Browne, Asst. Pros. Atty., Pontiac, for the People.

William E. Ziem, Walled Lake, for defendant-appellee.

PER CURIAM.

After being arrested for driving while intoxicated, the defendant allegedly assaulted a police officer. He was charged under the statute that prohibits obstructing an officer's efforts to keep the peace. The circuit court granted a motion to quash, evidently concluding that the statute only applies to obstructive behavior that precedes or accompanies an arrest. The Court of Appeals affirmed. We reverse, because the plain language of the statute covers the events that are said to have taken place in this case.

I

In the early morning hours of June 1, 1988, a uniformed Oakland County Sheriff's deputy stopped the defendant's pickup truck because the defendant was driving erratically. ¹ After the defendant failed field sobriety tests, and after a preliminary breath test indicated a blood-alcohol level of 0.237 percent, the deputy arrested the defendant. The defendant did not resist arrest. He was transported to the Walled Lake police station, where a second uniformed officer was waiting to administer a Breathalyzer test.

At the station, the defendant was verbally abusive. He also spat upon the officer who was attempting to administer the Breathalyzer test. As the defendant prepared to spit on the officer again, the officer raised a hand toward the defendant. At that point, the defendant kicked the officer twice in the groin area.

The defendant was charged with a violation of M.C.L. Sec. 750.479; M.S.A. Sec. 28.747, which is sometimes referred to as the resisting-arrest statute. ² The complaint and warrant (and later the information) alleged that the defendant obstructed the officer's attempts to keep the peace. ³

II

At the conclusion of the defendant's preliminary examination, the assistant prosecutor moved that the defendant be bound over for trial, as charged. Defense counsel's response included an argument that M.C.L. Sec. 750.479; M.S.A. Sec. 28.747 was inapplicable to these facts. Counsel said that the defendant had been overcharged, and that this case should instead be prosecuted as a simple assault and battery. ⁴

The district judge rejected the argument, and bound the defendant over on the original charge.

In circuit court, the defendant moved that the information be quashed. In his motion, he relied upon a case in which the Court of Appeals had described the elements of the crime in terms of events that take place at the time of an arrest. ⁵ In answering the motion, the prosecutor relied upon a case in which the Court of Appeals described the offense more broadly. ⁶ The circuit court's decision was that the information should be quashed, and that the case should be remanded to district court for trial on a charge of assault and battery. The circuit judge explained:

"I think that if you take a look at the legislative intent in terms of the resisting a police officer in the performance of his duties, the purpose is to be able to maintain the peace, and I think that's the maintaining the peace in the public. So that when we take a look at the broad scope and the definition of the obstruction, the resistance of a police officer in the performance of his duties, the reason they raised that from a misdemeanor to a high misdemeanor in essence was so that the police officer could not be interfered with in the public in terms of preserving the peace. That they would be able to continue their duties, that they would not be resisted in that and that they would not be preyed upon as in the Weatherspoon case.

"But here you have someone who is already arrested and is incarcerated and it's a matter of being able to maintain control within the Jail setting. And I don't think that that's what that statute is for, and I will grant the motion of the Defendant and remand the matter to the District Court for trial on assault and battery."

After granting the prosecutor's application for leave to appeal, the Court of Appeals affirmed the order of the circuit court. 179 Mich.App. 445, 446 N.W.2d 309 (1989).

In stating its analysis, the Court of Appeals acknowledged some merit to the prosecutor's argument:

"The stated purpose of Sec. 479 seems to support the people's application of the statute, the purpose being to punish an assault upon a public officer in the discharge of his duty by a penalty more severe than that imposed for assaults on private citizens, People v Tompkins, 121 Mich 431; 80 NW 126 (1899), United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d 541 (1975), and protect officers from physical violence and harm. People v Kretchmer, 404 Mich 59; 272 NW2d 558 (1978), People v Baker, 127 Mich App 297; 338 NW2d 391 (1983). Additionally, in Weatherspoon, supra, a panel of this Court found the broad statutory clause 'maintain, preserve and keep the peace' to include all duties legally executed by a police officer. In so finding, the Court relied on People v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965) [cert. den. 381 U.S. 935, 85 S.Ct. 1765, 14 L.Ed.2d 699 (1965) ], wherein our Supreme Court recognized the statute's tie to the common-law crime of obstructing an officer, and acknowledged the general rule: ' "The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions." (39 Am Jur, Obstructing Justice, Sec. 8, p 506.)' " Id. at 448, 446 N.W.2d 309.

However, the Court of Appeals then indicated that its research had "failed to uncover precedent wherein the statute in question has been applied to a postarrest in-custody defendant." Id. at 448-449, 446 N.W.2d 309.

The Court of Appeals further noted that the Legislature has provided in M.C.L. Sec. 750.506a; M.S.A. Sec. 28.774(1) ⁷ that a sentence for simple assault may be enhanced under the circumstances found in the present case. In reliance upon that statute, the Court of Appeals concluded that "the instantdefendant should have been charged under MCL 750.506a; MSA 28.774(1)," and thus the Court of Appeals found "no abuse of discretion in the trial court's dismissal of the resisting and obstructing charge." Id. at 449, 446 N.W.2d 309.

The prosecutor has applied to this Court for leave to appeal.

III

The Court of Appeals is correct that no previously reported decision is on point. However, it is clear that the events alleged in this case fall within the plain language of the statute.

Such an application of the statute accords with its purpose, which is to protect officers from physical harm. People v. Kretchmer, supra 404 Mich. at 64, 272 N.W.2d 558. Moreover, there is ample authority that an officer's efforts to "keep the peace" include ordinary police functions that do not directly involve placing a person under arrest. People v. Krum, supra 374 Mich. at 362, 132 N.W.2d 69, People v. John Weatherspoon, supra 6 Mich.App. at 232, 148 N.W.2d 889. ⁸

The Court of Appeals acknowledged the general applicability of these principles. It nevertheless concluded that the circuit court was correct, largely in reliance upon the existence of a sentence- enhancement provision that permits the imposition of a consecutive sentence when an assault is committed by a person who is already under arrest. M.C.L. Sec. 750.506a; M.S.A. Sec. 28.774(1). The Court of Appeals said that because this defendant "should" have been charged under that sentence-enhancement provision, the trial court did not abuse its discretion.

We disagree. The Legislature's enactment of M.C.L. Sec. 750.506a; M.S.A. Sec. 28.774(1) does not indicate any legislative intent to limit the prosecutor's charging discretion. ⁹ As we explained in People v. Ford, 417 Mich. 66, 331 N.W.2d 878 (1982), the enactment of a statutory provision governing a set of facts does not automatically preclude the prosecutor from proceeding under a different statutory provision that also encompasses the alleged facts. See also, generally, People v. Petrella, 424 Mich. 221, 261-263, 380 N.W.2d 11 (1985), and People v. Johnson, 427 Mich. 98, 113-114, 398 N.W.2d 219 (1985) (opinion of Boyle, J.).

In deciding this case, it is not necessary for us to consider further the nature and extent of a prosecutor's charging discretion. As the prosecutor has observed in his argument to this Court, M.C.L. Sec. 750.506a; M.S.A. Sec. 28.774(1) is a sentence-enhancement measure, not a prohibition of particular conduct. We therefore believe it clear under Ford that the legislative enactment of M.C.L. Sec. 750.506a; M.S.A. Sec. 28.774(1) does not prevent the prosecutor from making the discretionary decision to prosecute this case under M.C.L. Sec. 750.479; M.S.A. Sec. 28.747.

In lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for trial on the information. MCR 7.302(F)(1).

RILEY, C.J., and GRIFFIN, CAVANAGH, BRICKLEY and BOYLE, JJ., concur.

ARCHER, J., I concur in the result only.

LEVIN, Justice (dissenting).

The defendant, Kenneth P. Little, was arrested for drunk driving and transported to the police station. On evidence tending to show that he struck a police officer while the officer was attempting to administer a Breathalyzer test, Little was charged ¹ with obstructing and resisting an officer in his "lawful acts, attempts and efforts to maintain, preserve and keep the peace, to wit: assisting in taking of breathalyzer...." ²

Little was bound over by the magistrate on the basis of the testimony of two police officers which tended to show that Little spat on the Breathalyzer, was about to spit on one of the officers who then raised his hand, and that...