People v. Mack

• Decision Date: 31 March 1982
• Docket Number: Docket No. 48926
• Citation: 317 N.W.2d 190,112 Mich.App. 605
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lee MACK, Defendant-Appellant. 112 Mich.App. 605, 317 N.W.2d 190
• Court: Court of Appeal of Michigan — District of US

Page 190

317 N.W.2d 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lee MACK, Defendant-Appellant.

Docket No. 48926.

112 Mich.App. 605, 317 N.W.2d 190

Court of Appeals of Michigan.

Submitted June 2, 1981.

Decided Oct. 2, 1981.

Released for Publication March 31, 1982.

[112 MICHAPP 606] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, [112 MICHAPP 607] Pros. Atty. and James S. Sexsmith, Asst. Pros. Atty., for the People.

Kurt R. Thornbladh, Ann Arbor, for defendant-appellant.

Before BEASLEY, P. J., and KELLY and BAGULEY ^*, JJ.

PER CURIAM.

Defendant was convicted after a jury trial on October 16, 1979, of assault with intent to commit great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. The Washtenaw County Circuit Court, Ross W. Campbell, J., denied his motion for a new trial. He now appeals by right.

On July 17, 1979, Jeffery Mulder was sitting in the kitchen of his girlfriend Cheryl Wallaker's house at 108 Ballard Street in the City of Ypsilanti, Washtenaw County, Michigan. While preparing dinner, Mulder and his girlfriend heard the front door slam. Investigating the noise, Mulder and Wallaker discovered that defendant had entered their house.

Wallaker recognized defendant from a previous incident in which the police warned her that defendant might have committed a felony. Thinking defendant had been involved in a felony, she told Mulder to watch defendant's actions while she called the police. Mulder, 6'4" and 190 pounds, who knew of defendant's involvement in the previous felony investigation, followed defendant into the street. Defendant, closely followed by Mulder, approached a boarding house, and defendant spoke to someone at the door. Stalling for time, Mulder attempted to converse with defendant. Defendant, apparently trying to avoid Mulder, pushed him [112 MICHAPP 608] away and proceeded down the street. At this point Mulder grabbed defendant by the back of his collar and yanked him to the ground. Defendant scrambled to his feet, pulling a big meat cleaver. He then threatened Mulder, saying "I am going to cut you into little pieces."

Defendant swung the meat cleaver at Mulder, whereupon Mulder retreated behind a tree, where he found a large stick with which to defend himself. Defendant then sprayed Mulder in the face with a Mace-like substance. At that point, the police arrived. Defendant fled the scene and was apprehended after an exhausting chase.

At trial, defendant testified that he was searching for the location of a rooming house in Ypsilanti to buy some marijuana, and that he had mistakenly entered Wallaker's home. Defense counsel argued that defendant had acted in self-defense.

After the final arguments of counsel, the court instructed the jury as to the applicable law. Counsel for the defense did not object to the court's jury instructions. The jury returned a verdict of guilty as charged.

Defendant then brought pro se a motion for a new trial, which was heard by the trial court. At this hearing, defendant claimed that the prosecution had failed to produce a res gestae witness. The alleged witness was the person defendant spoke to in the boarding house just before the incident occurred. The trial court, citing GCR 1963, 527.1, denied defendant's motion.

Defendant was sentenced to a six-year, eight-month to ten-year term in the custody of the Michigan Department of Corrections and was given credit for the time he served prior to sentencing.

[112 MICHAPP 609] Defendant's first claim on appeal is that the trial court erred in allowing the issue of a valid citizen's arrest to go to the jury.

At common law, a private citizen was justified in arresting a person whom he reasonably suspected had committed a felony, if in fact a felony had been committed. People v. McLean, 68 Mich. 480, 485, 36 N.W. 231 (1888); People v. Panknin, 4 Mich.App. 19, 27, 143 N.W.2d 806 (1966). The question is now covered by statute, which allows a private person to arrest another who has actually committed a felony, even though not in the arrestor's presence. M.C.L. Sec. 764.16; M.S.A. Sec. 28.875. The statute provides:

"A private person may make an arrest--

(a) For a felony committed in his presence;

(b) When the person to be arrested has committed a felony although not in his presence;

(c) When summoned by any peace officer to assist said officer in making an arrest."

The person making the arrest has the duty of informing the person to be arrested of the intention to arrest and the cause of the arrest, with exceptions made for circumstances when it would be impossible to do so. M.C.L. Sec. 764.20; M.S.A. Sec. 28.879. It is clear from the testimony below that Mulder never formally communicated to defendant that defendant was under arrest.

However, it is equally clear that the issue of a citizen's arrest did not go to the jury. The trial court's jury instructions, which were given without objection by defense counsel, did not include the question of a valid citizen's arrest.

As there was no objection or request for instruction, defendant's claim that the court erroneously charged the jury was not properly preserved for [112 MICHAPP 610] review. GCR 1963, 516.2, People v. Jackson, 98 Mich.App. 735, 739, 296 N.W.2d 348 (1980).

Furthermore, even if Mulder had made an invalid citizen's arrest, that fact alone would not make all subsequent proceedings void. See People v. Henry Robinson, 37 Mich.App. 115, 118, 194 N.W.2d 537 (1971), aff'd 388 Mich. 630, 202 N.W.2d 288 (1972); People v. Nawrocki, 6 Mich.App. 46, 53-54, 148 N.W.2d 211 (1967). Defendant's arrest was followed by a valid complaint and warrant, and he was afforded a preliminary examination. Finally, nowhere in the record does a motion to dismiss the case because of an illegal arrest appear. In light of the foregoing, the action of the trial court does not appear inconsistent with substantial justice as required for reversal under GCR 1963, 529.

Defendant next avers that the trial court erred in denying his motion for a directed verdict.

At the time of the trial, the rule regarding motions for directed verdicts was fully stated by the Supreme Court in People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547 (1976). ¹ The Court stated the rule as follows:

"An appellate court tests the correctness of the denial [112 MICHAPP 611] of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty * * *."

Defendant claimed that he was entitled to a directed verdict because, although the prosecution perhaps had presented sufficient evidence to support a charge of felonious assault, the intent to do great bodily harm had not been established by the prosecution.

The crime of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, requires proof of specific intent. People v. Joeseype Johnson, 407 Mich. 196, 220, 284 N.W.2d 718 (1979). The specific intent necessary to constitute the offense may be found in conduct as well as words. People v. Jackson, 25 Mich.App. 596, 598, 181 N.W.2d 794 (1970). Thus, based upon the facts established by the prosecution showing that defendant had brandished a meat cleaver, had threatened to chop Mulder into little pieces and had chased Mulder when he retreated, the trial court, viewing this evidence in a light most favorable to the prosecution, correctly denied defendant's motion for a directed verdict.

Defendant also argues that a trial judge may not make recommendations to the Department of Corrections, other than a recommendation of leniency, without imposing upon the function of that executive department.

It is well established that an appellate court will not substitute its judgment for that of the trial court when reviewing sentencing. People v. Burton, 396 Mich. 238, 243, 240 N.W.2d 239 (1976). Under GCR 1963, 785.8 the sentencing court shall:

[112 MICHAPP 612] "(1) require the presence of defendant's lawyer unless affirmatively waived by defendant;

"(2) give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence;

"(3) state the minimum and maximum sentence imposed by the court, together with any credit for time served to which the defendant may be entitled."

Further, the sentencing court is required to advise the defendant on his right to appeal and to obtain counsel. GCR 1963, 785.11.

Defendant's argument that a trial judge may not make harsh recommendations when announcing sentence, while ingenious, has no support in Michigan law. Defendant does not contend that the trial court abused its discretion by considering any unfounded allegations. See People v. Perez, 94 Mich.App. 759, 760, 289 N.W.2d 857 (1980).

The Legislature has adopted, and the judiciary has enforced, a policy requiring individualized sentencing. People v. Chapa, 407 Mich. 309, 311, 284 N.W.2d 340 (1979). As the Supreme Court stated in People v. McFarlin, 389 Mich. 557, 574, 208 N.W.2d 504 (1973):

"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential."

This principle was recently reaffirmed by the Court in People v. Triplett, 407 Mich. 510, 513, 287 N.W.2d 165 (1980).

Having reviewed the record thoroughly, we cannot say that the trial judge acted outside of the individualized sentencing principle outlined above. [112 MICHAPP 613] First, the events surrounding the instant case support the judge's statement that defendant is an assaultive offender. Second, defendant has twice been convicted of sexually aggressive crimes, both in Michigan and in Alabama. Also,...