People v. Rau

Decision Date24 February 1989
Docket NumberDocket No. 101452
Citation436 N.W.2d 409,174 Mich.App. 339
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph RAU, Defendant-Appellant. 174 Mich.App. 339, 436 N.W.2d 409
CourtCourt of Appeal of Michigan — District of US

[174 MICHAPP 340] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary M. Gabry, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

David A. Hoort, Portland, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and BEASLEY and HARRISON, * JJ.


Defendant appeals as of right his conviction by jury trial of possession of a dangerous weapon by an inmate, M.C.L. Sec. 800.283; M.S.A. Sec. 28.1623. Defendant was sentenced to from two to five years, to be served consecutively to his current term. We affirm.

Defendant is an inmate at the Michigan Reformatory at Ionia. On July 17, 1986, prison guards were informed by another inmate that defendant had a weapon. They searched defendant and found a small metal rod, sharpened at one end and with tape and nylon cord wrapped around the handle. Prior to trial defendant gave notice of his intention to assert the defense of duress. The trial court ruled by pretrial motion that the evidence of the defense of duress would not be admitted at trial [174 MICHAPP 341] and also refused to instruct the jury on this defense. Defendant raises four issues on appeal.

Defendant first argues that he was denied a fair trial by the prosecution's failure to give notice of witness Deborah Conrad at least thirty days before trial, as required by M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1). The delay here was two days. Defendant has failed to preserve this issue for appeal by a timely objection at trial and therefore reversal is not required unless the error complained of has resulted in a miscarriage of justice. M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096. It is clear from the record that no miscarriage of justice resulted in the instant case. The sole purpose of Conrad's testimony was to establish that defendant was an inmate at the time of the incident, a fact defendant freely admitted at trial. Moreover defendant has failed to indicate any prejudice due to the delay. We find no miscarriage of justice.

Defendant next asserts that the trial court abused its discretion by precluding him from presenting evidence on the defense of duress and by refusing to instruct the jury on this defense. We disagree. A weapon was confiscated from defendant during a routine search by authorities and while defendant was clearly under no threat of imminent peril of death or serious bodily injury. Defendant had apparently been threatened by an "unknown" inmate in a dispute over locker space in the prison. The unknown inmate was supposedly going to "get" defendant at the cafeteria at some later date. However, the unknown inmate later told defendant that "he didn't want no smoke" (trouble). This occurred prior to the search of defendant which produced the weapon.

The trial court ruled, in limine, that even if the defense were available, defendant had failed to show any factual basis for that defense. Since [174 MICHAPP 342] defendant was unable to show a factual basis of immediate threat for his claim of duress at the pretrial hearing on the prosecution's motion, the trial court properly excluded the defense of duress from consideration by the jury. See People v. Hocquard, 64 Mich.App. 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, 157 Mich.App. 43, 403 N.W.2d 96 (1987), also reached a contrary result on facts similar to those in the matter before us. We decline, however, to follow that panel's analysis. The Blair Court based its holding on People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975), which allowed the defense of duress for the offense of prison escape. As a rule, there is no threat to individuals' safety by an escape. Moreover, duress has been specifically authorized by statute as a defense to prison escape. M.C.L. Sec. 768.21b(4); M.S.A. Sec. 28.1044(2)(4). The Legislature has not seen fit to extend such a defense to the instant offense, and we decline to do so.

On public policy grounds, we cannot sanction the possession of deadly weapons by inmates. To do so would invite an unwarranted threat to the safety of prison personnel and other inmates. In a prison setting there would be virtually no control over such weapons. To allow such would be to leave the door wide open for possession of life-threatening objects with later fabrication of the defense. The recent deaths of prison guards adequately demonstrate the folly of this approach. A ruling by this Court to extend the defense of duress to possession of weapons will in our opinion exacerbate a constant threat in a volatile situation. [174 MICHAPP 343] Absent exceptional circumstances such as those referred to in People v. Crooks, 151 Mich.App. 389, 390 N.W.2d 250 (1986), lv. den. 426 Mich. 870 (1986), citing Mungin v. State, 458 So.2d 293, 297 (Fla.App., 1984), an inmate should not possess a weapon.

Defendant also claims that the statute under which he was charged violates the title-object clause of the Michigan Constitution. The title-object clause of Const. 1963, art. 4, Sec. 24 provides: "No law shall embrace more than one object, which shall be expressed in its title." Defendant argues that to proscribe as to all persons the bringing of contraband into prisons is the object of the statute under which he was convicted, and that, when adding the section concerning punishment of inmates for possession of weapons, the Legislature also added another object which violates the title-object clause of the constitutional provision quoted above. We disagree.

The title of the liquor, narcotics and weapons act, M.C.L. Sec. 800.281 et seq.; M.S.A. Sec. 28.1621 et seq.; provides:

"AN ACT to prohibit or limit the access by prisoners and by employees of correctional facilities to certain weapons and to alcoholic liquor, drugs, medicines, poisons, and controlled substances in, on, or outside of correctional facilities; to prohibit or limit the bringing into or onto certain facilities and...

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15 cases
  • People v. Ramsdell
    • United States
    • Court of Appeal of Michigan — District of US
    • 23 Junio 1998
    ...has also declined to extend the defense of duress to the crime of possession of a dangerous weapon by an inmate. People v. Rau, 174 Mich.App. 339, 342, 436 N.W.2d 409 (1989). Where duress is available as an affirmative defense, a defendant has the burden of producing a prima facie defense o......
  • U.S. v. Marquez
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 10 Noviembre 2010
    ...47 Id. at 768 (quoting People v. Velasquez, 158 Cal.App.3d 418, 204 Cal.Rptr. 640, 641 (1984)). 48 Id. (citing People v. Rau, 174 Mich.App. 339, 436 N.W.2d 409 (1989); Velasquez, 204 Cal.Rptr. at 643). 49 Id. at 768-69 (holding that to establish a defense of duress "the defendant must produ......
  • State v. Baca
    • United States
    • New Mexico Supreme Court
    • 31 Agosto 1992
    ...the general rule that duress is not available to the charge of possession of a deadly weapon by a prisoner. In People v. Rau, 436 N.W.2d 409 (Mich.Ct.App.1989), the Michigan Court of Appeals reasoned against the duress defense for prisoners found with On public policy grounds, we cannot san......
  • People v. Strunk
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    • Court of Appeal of Michigan — District of US
    • 16 Julio 1990 trial or to request that the statement be redacted, he has failed to preserve this issue for appellate review. People v. Rau, 174 Mich.App. 339, 341, 436 N.W.2d 409 (1989); People v. Dupree, 128 Mich.App. 368, 373, 341 N.W.2d 134 Defendant also alleges prosecutorial misconduct in a numbe......
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