People v. Rice, 121873

• Decision Date: 16 December 1991
• Docket Number: No. 121873,121873
• Citation: 481 N.W.2d 10,192 Mich.App. 240
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Lee RICE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 10

481 N.W.2d 10

192 Mich.App. 240

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Lee RICE, Defendant-Appellant.

No. 121873.

Court of Appeals of Michigan.

Submitted July 16, 1991, at Detroit.

Decided Dec. 16, 1991, at 9:30 a.m.

Released for Publication March 10, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William D. Frey, Pros. Atty., and Lawrence J. VanWasshenova, Asst. Pros. Atty., for the People.

Gregory B. Jones, Monroe, for the defendant-appellant.

Before DOCTOROFF, P.J., and McDONALD and BRENNAN, JJ.

McDONALD, Judge.

Defendant appeals as of right from his jury trial conviction of obstructing an officer in the discharge of his duty to maintain, preserve, and keep the peace, M.C.L. Sec. 750.479; M.S.A. Sec. 28.747. We affirm.

Defendant's conviction arises out of an incident occurring in the evening hours of March 27, 1988. Deputy sheriff Greg Mominee, having just completed his shift, stopped at a store while on his way home. Mominee was still in uniform and was driving a marked patrol car. At the store, Mominee was approached by defendant's brother, who was very agitated and indicated a heated dispute was occurring between defendant and defendant's wife and that Mominee needed to go to defendant's home quickly.

The trial testimony revealed divergent stories with regard to what occurred upon Mominee's arrival at the home. Mominee testified that upon approaching the home, he looked through a picture window and saw defendant on top of defendant's wife with his hands around her neck. Defendant's wife was screaming and moaning. Mominee returned to his vehicle to call for backup. Defendant then left the house and entered the attached garage. Mominee told defendant that he wanted to speak with him, but defendant quickly returned to the house. Mominee approached the front door, and defendant opened the interior door while Mominee opened the screen door. Before Mominee could say anything, defendant struck him in the throat and pushed his shoulder, knocking him off the porch. Mominee thereafter kicked in the door and entered the home. Another altercation ensued and defendant was eventually arrested.

Defendant not only denies assaulting Mominee, but claims no incident occurred on the porch, alleging Mominee kicked in the front door without warning and entered his home while he and his wife were having a discussion in the living room. Defendant's defense at trial was that Mominee improperly entered defendant's home to make an arrest, rendering the arrest unlawful and defendant's resistance justified. Defense counsel persisted with this defense notwithstanding the fact defendant was not charged with resisting arrest but instead was specifically charged with interfering with Mominee while he was investigating a domestic disturbance.

The prosecutor's position, as evidenced by his closing argument, was that the charged crime, resisting and obstructing an officer maintaining the peace, was committed on the front porch during Mominee's attempt to investigate the domestic disturbance and before any entry into the home.

On appeal, defendant first claims his conviction should be reversed because his arrest was unlawful. In effect, this issue restates the defense put forth at trial. We find it inappropriate here as at trial. Although the lawfulness of an arrest is a necessary element of the crime of resisting arrest, CJI2d 13.1; People v. Julkowski, 124 Mich.App. 379, 335 N.W.2d 47 (1983), defendant was not charged with resisting arrest. The information charging defendant stated defendant

did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound deputy Greg Mominee, a police officer with the Monroe County Sheriff Department, while said officer was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: while said police officer was investigating a domestic disturbance.

Thus, defendant was charged with interfering with Mominee's investigation of the domestic disturbance, which, as the prosecution argued, occurred on the front porch before any later entry by Mominee. What did or did not occur following the alleged assault on the porch could not change the character of the offense already committed.

Assuming entry into defendant's home and subsequent arrest were improper, defendant's sole remedy here would be the suppression of evidence obtained as a result of the illegal arrest. The invalidity of an arrest does not deprive a court of jurisdiction to try a defendant. People v. Dalton, 155 Mich.App. 591, 400 N.W.2d 689 (1986). Defendant made no attempt to suppress the introduction of evidence stemming from Mominee's entry into the home, and was instead the chief proponent of such evidence. We find no error.

Defendant next contends the trial court improperly instructed the jury regarding the lawfulness of deputy Mominee's entry and defendant's arrest. Denial of defendant's request that the jury be instructed with regard to CJI 13:1:02, the charge regarding resisting arrest, was proper. As previously discussed, defendant was not charged with resisting arrest. See also People v. Kelley, 78 Mich.App. 769, 260 N.W.2d 923 (1977).

Although the court properly denied defense counsel's request that the jury be given the instruction with regard to resisting arrest, the court did succumb to counsel's...