People v. Salazar

• Decision Date: 28 February 1985
• Docket Number: Docket No. 76340
• Citation: 140 Mich.App. 137,362 N.W.2d 913
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo SALAZAR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 913

362 N.W.2d 913

140 Mich.App. 137

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo SALAZAR, Defendant-Appellant.

Docket No. 76340.

Court of Appeals of Michigan.

Submitted Nov. 7, 1984.

Decided Jan. 3, 1985.

Released for Publication Feb. 28, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by Gail Rodwan, Asst. Defender, Detroit, for defendant-appellant.

Before R.B. BURNS, P.J., and ALLEN and BROWN ^*, JJ.

PER CURIAM.

Following a bench trial on October 26, 1983, defendant was found guilty of two counts of inciting, inducing, or exhorting another to commit murder, M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2). Sentenced to two mandatory terms of life imprisonment, defendant appeals as of right raising six grounds of error, one of which we find controlling. We reverse.

At the preliminary examination the examining magistrate found probable cause to believe that defendant proposed to have Isidro Martinez, Jr., an undercover police informant, kill State Police Detectives Ronald Neil and Larry Kimmel. The circuit judge affirmed the finding of probable cause but sua sponte remanded the case to district court so that the district court could consider the defense of abandonment. The prosecution appealed by leave granted and in People v. Salazar, 124 Mich.App. 249, 333 N.W.2d 567 (1983), our Court ruled that the circuit court was without authority to remand after finding probable cause. We reversed and ordered trial by the circuit court.

In June, 1981, defendant had been convicted of conspiracy to defraud an insurance company. Testifying against him at the trial were State Police Detectives Ronald Neil and Larry Kimmel. In late August, 1981, rumors began to circulate that defendant, who was then confined in the Barry County jail, wanted to kill or have someone kill Neil and Kimmel. Local authorities determined to investigate the rumor and for this purpose arranged to have Isidro Martinez, Jr., a paid police informer, incarcerated in the Barry County jail on the guise that he had been "convicted" of possession of cocaine and sentenced to three years' probation, the first three months to be served in the Barry County jail in the work-release section.

Martinez entered the jail September 9, 1981, and soon was on a conversational basis with defendant. Defendant told Martinez that he had an appeal pending and said that he was going to talk to Kimmel to see if Kimmel would tell the truth at the "appeal trial". Martinez told defendant that he had a brother-in-law who, for $40 or $50, would break a person's arm to prompt him to tell the truth; defendant replied by refusing the offer and indicating that when he "[took] care of them" he would "take care of them for good", or words to that effect. Martinez replied by saying that his brother-in-law and other acquaintances could also take care of them, to which defendant replied that he would "see what happens". Martinez also testified that in a later conversation with defendant, defendant told Martinez that he had been in Viet Nam in the Army Special Forces (Green Berets) and that he had experience in building demolition bombs. Defendant purportedly also said that a car bomb was the way he wanted Neil and Kimmel to disappear. As the conversation about the bombs proceeded, defendant indicated that he had everything to make a bomb except a plastic explosive known as C-4, to which Martinez replied by saying that he had a friend in Chicago who might be able to obtain some C-4 for him.

In another conversation sometime later, Martinez informed defendant that his friend had the C-4, almost four pounds of it, and that his friend wanted a "fair" price for it. Defendant then allegedly told Martinez that payment for the explosives would be arranged through a "young attorney friend" of defendant. Martinez then set up a meeting to arrange for transportation of the C-4 from Chicago to Barry County. However, defendant indicated to Martinez that he did not want to meet with anybody and did not show up for the meeting.

Martinez also testified that at one point he asked defendant if he, Martinez, could get the contract to kill Neil or Kimmel, to which defendant replied in the affirmative. Defendant kept putting Martinez off as to specifics as defendant did not wish to talk inside the jail.

Defendant testified on his own behalf and stated that, during the time Martinez was in jail, he spent a lot of the time bothering defendant and kept asking defendant about his case. Finally, according to defendant, he told Martinez about his case and then Martinez kept telling defendant that he should kill Neil and Kimmel and that he had a friend who would break their legs or inflict some similar injury. Defendant testified that he became suspicious of Martinez because of things that were said, things that Martinez apparently knew, and the fact that Martinez said that he was from a village in Mexico called Tekalotai, which a co-worker of defendant explained to him was a slang Spanish word meaning a "policeman who worked at night". Further, he testified that Martinez had told him that he worked at Woodbury Elevator, but that he checked with Woodbury and Martinez did not work there.

Defendant also testified that he also made a transcript of the recordings obtained by Martinez while in jail and that he believed that they were recorded out of order. Apparently, the theory is that Martinez would put a question on the tape, shut the recorder off, and at some point later ask defendant a different question and turn the tape back on so as to get a different answer to the question on the tape.

Because M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2)--the statute under which defendant was convicted--is relatively new and the decisions thereunder sparse, it will be helpful to discuss the background and nature of the offense charged. Because this statute was enacted in the wake of Detroit's 1967 riots, it is not surprising that persons charged thereunder claim that the statute is limited to street riot situations. ¹ This argument was discussed at some length by Justice LEVIN in People v. Shafou, 416 Mich. 113, 133-141, 330 N.W.2d 647 (1982). In that opinion, the Supreme Court was unable to reach a consensus on whether the statute was intended to include nonriot behavior. However, in People v. Plyler, 104 Mich.App. 437, 445, 304 N.W.2d 859 (1981), this Court rejected the claim that Sec. 157b was concerned only with riot-type situations.

"Perhaps it might better be said that the unlawful happenings of the time alerted the Legislature to enact legislation to fill a void in the existing laws in order to punish persons who incite, induce, or exhort other persons to commit prohibited offenses, whether or not during civil disorders."

We agree with Plyler. Had the Legislature intended to limit Sec. 157b to riot-like behavior, we believe the Legislature would have explicitly said so, and the fact that the statute was not so limited leads us to conclude that the Legislature intended the statute to extend to situations similar to the case before us.

Defendant also argues that Sec. 157b is not violated unless there is proof of an overt act and actual incitement. With respect to an overt act requirement, the Court in Shafou, supra, considered that issue, but a majority of justices were unable to agree on whether or not such a requirement exists. This Court was also faced with the issue in Plyler, supra, pp. 445-446, 304 N.W.2d 859, but did not decide if an overt act was required as it found that, in any event, there had been an overt act in that case. Defendant argues that since Michigan does not require an overt act for conspiracy, to require an overt act for the crime of incitement would be the basis for distinguishing between incitement and conspiracy. However, this analysis is not correct. If there is no overt act requirement for incitement, the crime of incitement would still be distinguishable from conspiracy since conspiracy requires an agreement and incitement does not. Since Michigan does not require an overt act for a conviction for conspiracy and since defendant does not produce any authority for the proposition that an overt act is required for incitement, we conclude that there is no overt act requirement for incitement. See People v. Scotts, 80 Mich.App. 1, 14, 263 N.W.2d 272 (1977) (no overt act requirement for conspiracy).

Defendant next argues that there must be actual incitement but because Martinez was a police agent and in that capacity could not be incited, in fact, defendant was not guilty of the crime charged. This issue was addressed by this Court in People v. Dennis, 128 Mich.App. 235, 340 N.W.2d 81 (1983). In Dennis, the defendant approached an undercover detective who was posing as a professional "hit man" to arrange for the killing of certain people. This Court found it to be irrelevant that the detective could not actually be incited or induced to commit the crime. Dennis, p. 238, 340 N.W.2d 81. We agree and hold there is no requirement of actual incitement.

Defendant also argues that while there may be a crime of inciting another person to murder, there is no such crime as inciting another to aid and abet a murder. Defendant's argument is two-fold: First, that such a crime is unknown in Michigan and, second, that before a person can be an aider and abettor, there must be a crime, and since there was no murder in this case, there was no aider and abettor. People v. Burgess, 67 Mich.App. 214, 220, 240 N.W.2d 485 (1976). The issue raised is of first impression.

Section 157b provides as follows:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a...