People v. Wesley
| Decision Date | 01 February 1985 |
| Docket Number | 67162,67161,69533,Docket Nos. 66597,69532,69160,69195 and 69196 |
| Citation | 365 N.W.2d 692,421 Mich. 375 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe Frank WESLEY, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel TAORMINA, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald PHILLIPS and Phillip Phillips, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James THREET, Defendant-Appellee, Cross-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. Keith Darwin DOPP, Defendant-Appellee, Cross-Appellant. |
| Court | Michigan Supreme Court |
Wesley J. Nykamp, Pros. Atty., Ottawa County by Gregory J. Babbit, Asst. Pros. Atty., Grand Haven, for the people in Docket Nos. 69532, 69533.
James S. Lawrence, Detroit (Richard G. Chosid, Bloomfield Hills, of counsel), for Phillips.
Graham A. Teague, Adrian, for Threet.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harvey A. Koselka, Pros. Atty., Michael A. Nickerson, Asst. Atty. Gen., Lansing, for the people in Docket Nos. 69195, 69196.
Priscilla Ruesink Laidlaw, Adrian, for Dopp.
In these cases we are asked to construe the Michigan kidnapping statute. M.C.L. Sec. 750.349; M.S.A. Sec. 28.581 provides:
"Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly confined or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years." (Emphasis added.)
In form, the statute describes various types of conduct which must be done "wilfully, maliciously and without lawful authority" to constitute kidnapping. After listing the various forms of conduct, the statute describes several forms of intent.
The issue before us is whether the language of the statute emphasized above (the "intent section") applies to all of the forms of conduct which precede it or applies only to the form of conduct which immediately precedes it, i.e., "forcibly seize or confine, ... or inveigle or kidnap."
We hold that the "intent section" of the statute applies only to the form of conduct which immediately precedes it.
Thus, a person can be convicted of kidnapping if it is proven beyond a reasonable doubt that he or she wilfully, maliciously and without lawful authority,
(a) forcibly or secretly confined or imprisoned any other person within this state against his will, or
(b) forcibly carried or sent such person out of this state, or
(c) forcibly seized or confined, or inveigled or kidnapped any other person
(1) with intent to extort money or other valuable thing thereby, or
(2) with intent either
(A) to cause such person to be secretly confined or imprisoned in this state against his will, or
(B) [to cause such person to be] in any way held to service against his will.
Interpreted in this manner, we conclude that the statute includes several forms of "kidnapping" within its definition. 1
The portion of the statute contained in (a) above actually contains two separate descriptions of punishable conduct: forcible confinement or imprisonment and secret confinement or imprisonment. The forcible confinement section of the statute in (a) above, taken by itself, describes the common-law misdemeanor offense of false imprisonment:
Perkins, Criminal Law (2d ed.), p. 171.
It is the forcible confinement section of the statute which formed the basis for the charge in People v. Otis Adams, supra. As Justice Levin there carefully noted: "the people do not charge that the victim was secretly confined." In forcible confinement, "an asportation or movement ... is an essential element; [in secret confinement] movement is not an element, but secrecy of the confinement is required," 34 Mich.App. 546, 551, 192 N.W.2d 19 (1971).
The distinction between false imprisonment (forcible confinement) and secret confinement kidnapping is that the former describes an unlawful seizure of a person against his will; the latter is an unlawful seizure and detention of the person secretly against his will.
A forcible confinement kidnapping charge presents the most difficulties for several reasons. First, by its inclusion in the statute, it elevates a common-law misdemeanor to an offense punishable by life imprisonment. Second, as Justice Levin correctly pointed out while serving on the Court of Appeals:
Otis Adams, 34 Mich.App. p. 560, 192 N.W.2d 19.
Third, because of the first two factors, this section of the kidnapping statute could be used by prosecutors as a vehicle for overcharging a defendant:
"A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses." Id.
In order to preserve the forcible confinement section of the kidnapping statute from a charge of unconstitutionality, this Court has interpolated the element of asportation in connection with it. People v. Adams, 389 Mich. 222, 237-238, 205 N.W.2d 415 (1973). 2
The Court in Adams held that in connection with forcible confinement, asportation must be more than merely incidental to a lesser underlying crime. In other words, if the movement of the victim, the asportation, was merely incidental to the underlying crime, for example, of felonious assault, it would not be sufficient asportation to support a conviction of kidnapping.
In People v. Barker, 411 Mich. 291, 301, 307 N.W.2d 61 (1981), 3 this Court applied (Emphasis added.) 4
the Adams asportation requirement in the context of a charge of first-degree criminal sexual conduct, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, a crime which involves punishment equal to that imposed for kidnapping. The Court said:
The Court did not, however, overrule or disapprove of the following statement found in People v. Adams, 389 Mich. p. 238, 205 N.W.2d 415:
"If the underlying crime involves murder, extortion or taking a hostage, movement incidental thereto is generally sufficient to establish a valid statutory kidnapping."
See Barker, 411 Mich. p. 300, fn. 5, 307 N.W.2d 61. Thus, Barker did not stand for the proposition that movement incidental to a crime involving murder is not sufficient asportation to support a statutory kidnapping conviction.
This interpretation is entirely consistent with the underlying rationale for the asportation requirement. As detailed by this Court in Adams, 389 Mich. p. 230-235, 205 N.W.2d 415, the asportation element was necessary to distinguish "true kidnapping" from other crimes which carry less punishment and to protect against overcharging by prosecutors. See also People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965), and People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967).
But the asportation requirement was not designed to be applied indiscriminately to situations which do not present the evils which ought to be prevented:
People v. Miles, 23 N.Y.2d 527, 539-540, 297 N.Y.S.2d 913, 245 N.E.2d 688 (1969). (Emphasis added.)
We are persuaded that it is completely appropriate to hold that movement incidental to a crime involving murder, extortion, or taking a hostage is sufficient for kidnapping because such conduct does not present the danger of overcharging.
Therefore, when an information charges an offense under the forcible confinement part of the kidnapping statute designated as section (a) above, the following elements must be proved beyond a reasonable doubt:
(3) against the will of the person confined or imprisoned, and
(4) an asportation of the victim which is not merely incidental to an underlying crime unless the...
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