People v. Chatfield

372 N.W.2d 611, 143 Mich. App. 542

• Court: Michigan Court of Appeals
• Decided: June 18, 1985
• Docket: Docket 62979
• Status: Published

Opinions

D. E. Holbrook, Jr., P.J.

Defendant appeals as of right from his convictions following a jury trial for resisting and obstructing an arrest, MCL 750.479; MSA 28.747, and malicious destruction of police property, MCL 750.337b; MSA 28.609(2). He was sentenced to two concurrent 6-month terms of imprisonment.

Both convictions arose from an incident that occurred on May 20, 1981. Sergeant Sturgeon of the Coldwater police was dispatched to investigate a disturbance. When he arrived at the scene he discovered a number of people on the property, many of whom were pushing and shoving each other. Sturgeon testified that, while he was attempting to investigate, defendant ran up to him and began yelling and screaming obscenities at him, demanding that he leave the property. Sturgeon repeatedly told defendant not to interfere, but defendant continued his yelling and shook his finger in Sturgeon’s face. During much of his tirade defendant had his face within two inches of Sturgeon’s. Finally, defendant was arrested for disorderly conduct under Coldwater City Ordinance, § 9.¹ Sturgeon by that time was assisted by another police officer. There was a struggle to get defendant in the police car and once in the auto defendant continued to struggle. Defendant kicked the car door twice, resulting first in the door’s flying into Sturgeon’s midsection, and then shattering the window.

Defendant’s testimony alleged that he had calmly called the officer a bastard and that the window shattered because the car door was closed on his feet._

On appeal defendant contends that being convicted on both counts violated his right to be protected against double jeopardy, that the ordinance he was arrested under was unconstitutional, and that reversible error occurred in that the jury was not instructed that resisting an arrest is a specific intent crime. We do not agree and defendant’s convictions are affirmed.

Defendant argues that as both convictions arose from the same transaction he is receiving multiple punishments for the same offense. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The prosecution contends that there were two acts: one wherein defendant kicked the door in an attempt to resist arrest, and a second wherein defendant was angered and kicked to vent his anger. When the convictions are based on two separate acts, there is no double jeopardy problem. People v Haynes, 100 Mich App 306; 298 NW2d 732 (1980). Even if both convictions are based on one instance of kicking, defendant’s rights still have not been violated. Each statute under which defendant was convicted was intended to prevent a different type of harm. The resisting arrest statute is intended to prevent interference with an arrest. People v Gleisner, 115 Mich App 196; 320 NW2d 340 (1982), lv den 417 Mich 1095 (1983). The malicious destruction of police property statute is intended to protect property. People v Richardson, 118 Mich App 492; 325 NW2d 419 (1982), lv den 417 Mich 949 (1983) . Accordingly, as two different interests are protected, there is no double jeopardy violation. People v Robideau, 419 Mich 458; 355 NW2d 592 (1984) .

Defendant next argues that the trial court erred by failing to instruct the jury that resisting and obstructing an arrest is a specific intent crime. This argument is without merit. People v Landrie, 124 Mich App 480, 483; 335 NW2d 11 (1983); People v Van Wasshenova, 121 Mich App 672, 680; 329 NW2d 452 (1982); People v Gleisner, supra.

Defendant reasons that because the prosecutor, in his closing argument, stated that the use of the word "bastard” was sufficient in and of itself to arrest defendant, and since the trial judge refused to give an instruction² on this, his conviction must be reversed.

While we do agree that the use of the term "bastard” is constitutionally protected, we do not find the people’s one reference to the contrary in closing argument to constitute reversible error. Defense counsel corrected the prosecution’s error in his closing argument, elaborating on it for several pages, saying in part:

"Why was he arresting him? What was he arresting him for? Counsel says it’s the use of the word 'bastard5. He called them a bastard. Therefore he arrested him. In and of itself that should be sufficient, counsel says. Well, that isn’t what the city ordinance says. The Judge is going to read that to you.”

The trial judge did read the city ordinance under which defendant was arrested, as set forth in footnote 1, supra. Our review of this ordinance reveals that it is constitutional. Harass as defined by Webster’s Seventh New Collegiate Dictionary, means: "to worry and impede by repeated raids * * * to annoy continually * * Harm requires "physical or mental damage”. Reckless disregard is to be indifferent to the consequences, wanton and willful or careless, inattentive or negligent. Black’s Law Dictionary, Revised 4th ed, 1968, p 1435. Using the common, everyday meaning of the words, R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249; 361 NW2d 785 (1984), we believe that the only offensive coarse language prohibited is that which by its very utterance inflicts injury or tends to incite an immediate breach of the peace. Chaplinsky v New Hampshire, 315 US 568, 572; 62 S Ct 766, 769; 86 L Ed 1031, 1035 (1942).

"The existence of probable cause to arrest depends in every case upon the peculiar circumstances confronting the arresting officer.” People v Mitchell, 138 Mich App 163, 167; 360 NW2d 158 (1984).

We have carefully reviewed the facts and find the evidence sufficient to sustain defendant’s convictions. We believe the officer had probable cause to make a lawful arrest. A rational trier of fact could have found all the necessary elements present. People v Richardson, 139 Mich App 622; 362 NW2d 853 (1984).

We hold the prosecution’s one improper comment during its closing argument to be harmless error. GCR 1963, 529.1. The jury instructions, when viewed in their entirety, were not incorrect. People v Seabrooks, 135 Mich App 442, 452; 354 NW2d 374 (1984).

Accordingly, defendant’s convictions are affirmed.

P. R. Joslyn, J., concurred.

1 "That no person shall with the purpose to harass or harm another or with reckless disregard of the sensibility of another make a communication anonymously or at extremely inconvenient hours or in offensive coarse language. And no person shall make or assist in making any noise, disturbance, trouble, or improper diversion or any rout, or riot by which the peace and good order of the city of Coldwater will be disturbed.”

2 Defendant requested an instruction that he could not have been legally arrested for the use of the word bastard due to First Amendment protections.