People v. Perry, Docket No. 78682

Decision Date26 December 1985
Docket NumberDocket No. 78682
Citation145 Mich.App. 778,377 N.W.2d 911
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randy PERRY, Defendant-Appellant. 145 Mich.App. 778, 377 N.W.2d 911
CourtCourt of Appeal of Michigan — District of US

[145 MICHAPP 779] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary M. Gabry, Pros. Atty., Susan A. Harris, Asst. Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for people.

Frye, Mullendore & Carr by G.R. Pete Frye, Greenville, for defendant.

Before MAHER, P.J., and BEASLEY and SHEPHERD, JJ.

PER CURIAM.

Defendant appeals as of right from a jury conviction of possession of a weapon by an inmate, M.C.L. Sec. 800.283; M.S.A. Sec. 28.1623. He was sentenced to serve from three to five years imprisonment, said sentences to be served consecutively to his current sentence.

Defendant was charged with possessing a pipe, which he allegedly used to attack another inmate. At trial, defendant testified that he was attacked by the other inmate and that, in the struggle, he managed to pull the pipe from his attacker's hand. When the guards arrived on the scene, defendant was holding the pipe. In connection with this [145 MICHAPP 780] testimony, defendant requested that the trial court give the following instruction to the jury:

"I instruct you that the defendant has a right to defend himself whether in prison or not. The right of self defense extends to and permits the taking of a weapon from another who would use that weapon offensively.

"If you believe that the defendant obtained possession of the pipe by taking it from an aggressor, and thereafter possessed the weapon in order to keep it away from an aggressor, without using it for offensive purposes, then the defendant must be found not guilty."

The trial court declined to do so, reasoning (as did the prosecutor) that, if the jury believed defendant's story, the jury would not convict him of possession, even without the requested instruction.

During closing arguments, the prosecutor made the following arguments to the jury:

"The question arises, if it's even relevant, arises about whether or not Mr. Perry was okay in having it [the pipe]. Should you let him have it in that circumstance. Are you going to disregard the instructions that the Court gives you and say, "Well, gee, if it happened like Perry said it happened, it was okay, because the other guy was going to hit him with it.

"So what did we expect him to do? Well, you have to look at this from two different points of view. One is, okay, it happened the way Perry said. So what? You've promised you're going to follow the law, you've indicated to me the Judge--in your voir dire questions, the law will be read to you, the instructions will be given, if you find that the facts fit that law, then you have a duty, because I've done what I said I would do, to come back with a verdict of guilty.

"I haven't failed in any one of those elements. I've shown identity, I've shown that he had ahold of it, that he had it in his hand, possession, I've shown that he was a prisoner, and I've shown that he was at the [145 MICHAPP 781] institution, and for that matter, you might hear that if the warden says it's okay for prisoners to have weapons, then it's not illegal, but basically, you heard from the guard that this man wasn't authorized to be lugging this piece of pipe around.

* * *

"And the Judge is going to tell you what possession [means], and he's not going to tell you it means it's okay to have it if you're going to fight or if one fought another one, then that doesn't matter, he's going to tell you it means to have or to hold, knowing what you had, and he knew that he had a pipe. And he knew, and he told you that he wasn't to have a pipe.

"Ladies and gentlemen, please listen to the facts. Go into that court--into that jury room, see what was proven here today. The man had it, he held it, he didn't want anyone else to have it, he didn't want the guards to have it, and Mr. Scroggins wasn't hanging around to see what he intended on doing with it, and I don't want you to go in there and feel sorry for Mr. Scroggins either, I don't want you to go in there and feel sorry for anyone. I want you to listen as the Judge gives you the instructions. See if that defense is made out. Apply the facts as we have proven them to the law, and do what you're sworn to do." (Emphasis added.)

Following closing arguments, the trial court instructed the jury on the offense of inmate in possession of a weapon:

"Turning our attention now to the offense charged. [T]he statute of the written law of the State of Michigan provide[s] as follows: Unless authorized by the chief administrator of the correctional facility, a prisoner shall not have in his or her possession or under his or her control a weapon or other implement which may be used to injure a prisoner or other person. That's the simple statement of the law from the statute.

"As in every criminal offense, there are certain elements which you must find to have been satisfied by the evidence and that you must be convinced have been [145 MICHAPP 782] shown beyond a reasonable doubt. The elements in this offense, I will review those with you in a moment.

"The elements of this offense must all be shown, and if you find that any one of them have not been shown beyond a reasonable doubt, then you would find the defendant not guilty.

"In this case, you must find from the evidence that the defendant, Randal Perry--or Randy Perry was a prisoner of a correctional facility. You must find that he possessed an object or the object in question, and you must find that the object in question was a weapon or an implement which can be used to injure a person--injure a prisoner or another person.

"Now, in the absence of any evidence of authorization for him to possess this object, you may infer that the defendant did not have authorization to possess this object.

"To possess means to have or hold the property or a thing, in this case, under one's control while knowing the nature of the object or thing. The evidence must also convince you beyond a reasonable doubt that the crime occurred in Ionia County in the State of Michigan, and that occurred on or about August 24th, 1983."

Thirty-eight minutes after receiving these instructions, the jury returned a guilty verdict.

On appeal, defendant argues that he was denied his right to a properly instructed jury by the court's refusal to give his requested instruction. The prosecution responds to this claim by arguing that:

"[T]he offense charged was possession of a weapon. Consequently, the jury could have found (if they chose to accept the testimony of defendant-appellant) that he did not 'possess' the lead pipe but had merely removed it from the possession of inmate Scroggins in order to prevent any harm to himself.

"It is also clear that had the jury decided to give any...

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6 cases
  • People v. Ramsdell
    • United States
    • Court of Appeal of Michigan — District of US
    • June 23, 1998
    ...with this state's general rule of avoiding the presumption of strict liability in a criminal penal statute. People v. Perry, 145 Mich.App. 778, 783-784, 377 N.W.2d 911 (1985). In Perry, the defendant inmate was charged with possessing a pipe that he allegedly used to attack another inmate. ......
  • People v. Rau
    • United States
    • Court of Appeal of Michigan — District of US
    • February 24, 1989
    ...331, 338-339, 236 N.W.2d 72 (1975), lv. den. 397 Mich. 833 (1976). We are aware of this Court's decision in People v. Perry, 145 Mich.App. 778, 377 N.W.2d 911 (1985), lv. den. 424 Mich. 857 (1985). However, that decision turned on the issue of what constituted possession. People v. Blair, 1......
  • Commonwealth v. Valcarel
    • United States
    • Pennsylvania Superior Court
    • June 12, 2014
    ...temporary possession of the weapon which he has wrested from his attacker.” Vandiver, 757 S.W.2d at 311–12 (citing People v. Perry, 145 Mich.App. 778, 377 N.W.2d 911 (1985); Mungin, supra ). As the trial court noted, that is simply not what happened in the instant case. Appellant was not co......
  • People v. Blair, Docket No. 86019
    • United States
    • Court of Appeal of Michigan — District of US
    • June 3, 1987
    ...which may be used to injure a prisoner or other person, or to assist a prisoner to escape from imprisonment." In People v. Perry, 145 Mich.App. 778, 377 N.W.2d 911 (1985), this Court refused to hold that the statute imposed strict liability upon any prisoner found holding a weapon. The Cour......
  • Request a trial to view additional results

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