People v. White
Decision Date | 30 April 1974 |
Docket Number | No. 1,Docket No. 16498,1 |
Citation | 218 N.W.2d 403,53 Mich.App. 51 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William WHITE, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Elliott S. Hall, Hall, Stone, Allen, Archer & Glenn, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and QUINN and CARLAND,* JJ.
Defendant was jointly tried with Ronald Carney before a judge in the Detroit Recorder's Court on the charge of kidnapping (M.C.L.A. § 750.349; M.S.A. § 28.581) and was found guilty of attempted kidnapping (M.C.L.A. § 750.92; M.S.A. § 28.287). Defendant now brings this appeal urging several grounds for reversal of his conviction.
On October 8, 1972, at about 9:30 p.m., two men, Ronald Carney and Carl Brisco, appeared at the house of Erma Hill, the complainant, identified themselves as police officers, and exhibited a piece of paper which they described as an arrest warrant. Two two men, one of whom was armed with a gun, then instructed Miss Hill to accompany them 'downtown' where things would be explained. The complainant complied with these instructions, left the house, and entered a car driven by defendant William White. The car, with complainant in it, was then driven away by defendant. For approximately the next 24 hours, during which time several people were picked up and dropped off, defendant and complainant visited various hotels, motels, and shops. A number of drug and sexual activities were engaged in before complainant was returned home the next evening by Ronald Carney.
At the time these events took place defendant and complainant were not unknown to each other. Three weeks prior to the incident involved in this case, complainant met defendant and was given a skirt, a wig, and $10.00 to ride in a car with him. Despite this, the trial judge, based on the corroborating testimony of Edward Nealy, her boyfriend, found that Miss Hill, against her will, was forcibly taken from her home by Ronald Carney and Carl Brisco, who did so with the intent to confine her. The trial judge also stated, however, that he was not convinced beyond a reasonable doubt that everything which occurred subsequent thereto was done against complainant's will. He further stated that the acts of Ronald Carney and Carl Brisco inside the house were done with the connivance of and after entering into an agreement with the defendant, William White. The trial judge based his conclusion in this regard on defendant's conduct subsequent to the actual taking. Defendant and Ronald Carney, on the above facts, were found guilty of attempted kidnapping.
Defendant first contends that the trial judge erred in finding defendant guilty of attempted kidnapping because, defendant alleges, there was no evidence presented establishing that he was a party to any unlawful act, either directly or as an aider and abettor. We disagree. There was substantial competent evidence presented which, if believed, would support defendant's conviction for attempted kidnapping. We are not free to substitute our view of the facts for that of the trial judge's unless, on the entire record, we are left with the definite and firm conviction that a mistake has been committed. People v. Hubbard, 19 Mich.App. 407, 172 N.W.2d 831 (1969), aff'd 387 Mich. 294, 196 N.W.2d 768 (1972). We are not so convinced.
Defendant's second contention is that the trial court erred in finding him guilty of attempted kidnapping because consent by the complainant constitutes a complete defense to a kidnapping charge and vitiates any attempt to kidnap. It must be remembered that the trial judge, sitting as the trier of fact, specifically found that complainant was taken from her home against her will. Complainant did not, therefore, consent to all that occurred but, rather, only to those acts which occurred subsequent to the actual taking. The question thus becomes whether complainant's later consent to the acts of defendant and the others relates back to the time of the actual taking and serves as a complete defense. This question must be answered in the negative. It is true that consent, if satisfactorily shown not to have been obtained by fraud nor extorted by duress or threats, does constitute a complete defense to the crime of kidnapping. M.C.L.A. § 750.349; M.S.A. § 28.581. This does not mean, however, that consent obtained at any time during the subsequent confinement serves as such a defense. We believe that for consent to be a defense to the crime of kidnapping it must be present throughout the commission of the offense. This is so because the offense is not only an offense against a particular individual but, using a frequently quoted phrase, is also an offense against society as a whole. See, E.g., Miller, Criminal Law, §§ 57--58, pp. 171--176 (1934). This is particularly true where, as here, a weapon was used to achieve the desired result in the presence of persons other than the individual who is alleged to have subsequently consented.
Since we have determined that consent of the type which is said to have been present in the case before us does not constitute a defense to the crime of kidnapping, it is evident that it in no way requires reversal of defendant's conviction for attempted kidnapping.
Defendant next contends that the course and conduct of the trial, including conduct of the witnesses and spectators, was such as to deprive him of his right to a fair trial. During the trial, after a short recess had been taken, the trial judge returned to the courtroom and found that in his absence a general fracas had erupted. Defendant was restrained by a police officer and a spectator was forcibly ejected from the courtroom after making comments to defendant about 'raping my sister' and referring to a 'contract'. The trial judge offered to declare a mistrial but his offer was rejected. The next day, again after a short recess, defendant's attorney complained to the court that during the break a policewoman had been talking to certain prosecution witnesses urging them to 'give more' to help the prosecutor. Defendant's attorney also complained that the man who was forcibly ejected from the courtroom the day before had threatened him and the attorney representing defendant Carney. The trial judge again asked if defendant wanted a mistrial and defendant's attorney again declined the offer. Defendant alleges that the conduct outlined above served to deprive him of...
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