People v. Montague

• Docket Number: s. 352089,352090
• Decision Date: 01 July 2021
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alize Zachary Dwayne MONTAGUE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

338 Mich.App. 29

979 N.W.2d 406

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Alize Zachary Dwayne MONTAGUE, Defendant-Appellant.

Nos. 352089

352090

Court of Appeals of Michigan.

Submitted May 4, 2021, at Grand Rapids.

Decided July 1, 2021

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Joshua Freed, Prosecuting Attorney, and Autumn A. Gruss, Assistant Attorney General, for the people.

F. Mark Hugger, Ann Arbor, for defendant.

Before: Murray, C.J., and Fort Hood and Gleicher, JJ.

Murray, C.J.

In Docket No. 352089, defendant appeals as of right his jury trial convictions of prisoner taking a hostage, MCL 750.349a ; and kidnapping, MCL 750.249. In Docket No. 352090, defendant appeals as of right his conviction of escaping from prison, MCL 750.193, rendered by the same jury. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 30 to 60 years’ imprisonment for both prisoner taking a hostage and kidnapping, and 6 to 20 years’ imprisonment for escaping from prison. We affirm.

I. STATEMENT OF FACTS

Defendant was imprisoned at the Newberry Correctional Facility on August 15 and 16, 2016. Sometime after 11:00 p.m. on August 15, he climbed out a window, boosted himself onto the roof, and jumped to the ground of the outside recreational facility. He then proceeded to climb the two barbed wire fences surrounding the facility, setting off an alarm, and ran into the woods. Michigan State Police troopers Nathan Grenfell and Adam Laninga were dispatched to the prison and, once there, were able to follow a blood trail until they were dispatched to a nearby motel. Heather Thornton was working the night shift at the motel's front desk, and around 1:30 a.m. she went into a back office to rest on a rollaway bed.

About an hour later, Thornton heard talking in the lobby, so she exited the back office and saw defendant behind the front desk talking on the phone. Defendant was bleeding profusely, and Thornton said that they should call 911, but defendant did not want to because he said that his cousin cut him, and he did not want his cousin to get in trouble. Defendant needed a ride, and Thornton directed him to go back into the lobby and around the other side of the front desk. When defendant complied, Thornton tried to shut the door separating the area behind the front desk from the lobby, but defendant stopped the door from closing with his foot. Thornton told defendant that he was making her feel threatened, defendant removed his foot, and the door shut and locked automatically. Defendant tried opening it, but then walked into the lobby and met Thornton at the front desk. Thornton dialed a number for defendant, and when someone answered, she handed defendant the phone.

As defendant was talking, Thornton ran to the back office to call the police from a landline telephone on a desk. As she was calling for help, defendant kicked down the locked door to the back office. Thornton tried to move behind the desk, but defendant threw her to the side, and she fell and dropped the phone. Defendant took a box cutter off the windowsill and Thornton's cell phone off the rollaway bed. As Thornton tried to get her cell phone back from defendant, they pushed each other, and she ended up on the ground. Thornton ultimately retrieved her cell phone and threw it under the bed.

Defendant gestured with the box cutter, blade open, for Thornton to get her cell phone, which she did and gave it to him. Defendant pulled the landline phone out of the socket and threw it. Defendant asked for Thornton's car keys, and he grabbed them from her purse as well as about $15 in cash from the top of the desk.

Defendant started telling Thornton that she had to go with him while gesturing with the box cutter. Thornton repeatedly told defendant that he could take her car, and she would get him more money and unlock her cell phone for him, but he kept insisting that she go with him. They left the back office, with Thornton walking in front of defendant, toward the main entrance doors in the lobby. As Thornton exited the motel, she saw police entering the parking lot, so she ran away from defendant and toward other parked cars.

En route to the motel, Grenfell and Laninga met the other dispatched troopers, Jeffrey Rogers and Zachary Drogowski. When the troopers pulled in to the motel lot, they all saw Thornton running across the parking lot waving her hands and pointing toward defendant, who was approaching a vehicle and trying to get inside. The troopers exited their vehicles with guns drawn, giving loud verbal commands for defendant to surrender and put his hands up. Defendant opened the car door, got in the driver's seat, and was fumbling in an attempt to start the car. Defendant ultimately surrendered, and was taken to the hospital. On the ground near the driver's side door, police found the box cutter, keys, and Thornton's cell phone. Subsequent tests revealed that the DNA on the box cutter and money found in defendant's waistband matched each other and matched defendant's DNA.

Defendant was charged with escape from prison, MCL 750.193, in Case No. 2017-001314-FC, and prisoner taking a hostage; armed robbery, MCL 750.529 ; kidnapping; and assault with a dangerous weapon (felonious assault), MCL 750.82, in Case No. 2017-001315-FC. The two cases were joined for trial, and the jury found defendant guilty of prisoner taking a hostage, kidnapping, and escape from prison, and not guilty of armed robbery and felonious assault.

II. ANALYSIS

A. JURY INSTRUCTIONS

Defendant first argues that he was denied due process because the trial court did not, within the instructions for both prisoner taking a hostage and kidnapping, include in its definition of "hostage" the key element of influence on a third party.

Claims of instructional error are reviewed de novo. People v. Perez , 469 Mich. 415, 418, 670 N.W.2d 655 (2003). This Court reviews the trial court's "determination whether a jury instruction is applicable to the facts of the case" for an abuse of discretion. People v. Heikkinen , 250 Mich. App. 322, 327, 646 N.W.2d 190 (2002). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." People v. Russell , 297 Mich. App. 707, 715, 825 N.W.2d 623 (2012) (quotation marks and citation omitted).

A criminal defendant has the right to "a properly instructed jury ...." People v. Mills , 450 Mich. 61, 80-81, 537 N.W.2d 909 (1995), mod 450 Mich. 1212, 539 N.W.2d 504 (1995). "[T]he trial court is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner." Id. The jury instructions "must include all the elements of the charged offenses and any material issues, defenses, and theories that are supported by the evidence."

People v. McKinney , 258 Mich. App. 157, 162-163, 670 N.W.2d 254 (2003). There is no error when the instructions "fairly presented the issues to be tried and sufficiently protected the defendant's rights." People v. McFall , 224 Mich. App. 403, 412-413, 569 N.W.2d 828 (1997) (quotation marks and citation omitted). Finally, jury instructions are reviewed in their entirety, and there is no error requiring reversal if the instructions sufficiently protected the rights of the defendant and fairly presented the triable issues to the jury. People v. Holt , 207 Mich. App. 113, 116, 523 N.W.2d 856 (1994). "The reviewing court must balance the general tenor of the instructions in their entirety against the potentially misleading effect of a single isolated sentence." People v. Waclawski , 286 Mich. App. 634, 675, 780 N.W.2d 321 (2009), citing People v. Freedland , 178 Mich. App. 761, 766, 444 N.W.2d 250 (1989).

The prisoner taking a hostage statute, MCL 750.349a, provides that "[a] person imprisoned in any penal or correctional institution located in this state who takes, holds, carries away, decoys, entices away or secretes another person as a hostage by means of threats, coercion, intimidation or physical force is guilty of a felony and shall be imprisoned in the state prison for life, or any term of years, which shall be served as a consecutive sentence." MCL 750.349(1)(b) provides that a person commits kidnapping when that person "knowingly restrains another person with the intent to ... [u]se that person as a shield or hostage." Neither statute provides a definition of the term "hostage."

The "pertinent model jury instructions ‘must be given in each action in which jury instructions are given’ if the model instructions ‘are applicable,’ ‘accurately state the applicable law,’ and ‘are requested by a party.’ " People v. Bush , 315 Mich. App. 237, 243, 890 N.W.2d 370 (2016), quoting MCR 2.512(D)(2). "The Michigan Court Rules do not limit the power of trial courts to give ‘additional instructions on applicable law not covered by the model instructions’ as long as the additional instructions are ‘concise, understandable, conversational, unslanted, and nonargumentative’ and are ‘patterned as nearly as practicable after the style of the model instructions.’ " Id ., quoting MCR 2.512(D)(4). See also Bouverette v. Westinghouse Electric Corp. , 245 Mich. App. 391, 401-402, 628 N.W.2d 86 (2001) ("When the standard jury instructions do not adequately cover an area, the trial court is obligated to give additional instructions when requested, if the supplemental instructions properly inform the jury of the applicable law and are supported by the evidence.").

1. PRISONER TAKING A HOSTAGE

Because there is no model criminal jury instruction pertaining to the prisoner taking a hostage statute, see M. Crim. JI 19.1 et seq.¹ , both parties requested a special jury instruction in their trial briefs for Count I, which included a definition of the term "hostage." Defendant requested that "taking a hostage" be defined as " ‘the unlawful taking, restraining, or confining of a person with the intent that the person, or...