People v. Little

456 N.W.2d 237, 434 Mich. 752

• Court: Michigan Supreme Court
• Decided: June 5, 1990
• Docket: Docket 87021
• Status: Published

Opinions

Per Curiam.

After being arrested for driving while intoxicated, the defendant allegedly assaulted a police officer. He was charged under the statute that prohibits obstructing an officer’s efforts to keep the peace. The circuit court granted a motion to quash, evidently concluding that the statute only applies to obstructive behavior that precedes or accompanies an arrest. The Court of Appeals affirmed. We reverse, because the plain language of the statute covers the events that are said to have taken place in this case.

i

In the early morning hours of June 1, 1988, a uniformed Oakland County Sheriff’s deputy stopped the defendant’s pickup truck because the defendant was driving erratically.¹ After the defendant failed field sobriety tests, and after a preliminary breath test indicated a blood-alcohol level of 0.237 percent, the deputy arrested the defendant. The defendant did not resist arrest. He was transported to the Walled Lake police station, where a second uniformed officer was waiting to administer a Breathalyzer test.

At the station, the defendant was verbally abusive. He also spat upon the officer who was attempting to administer the Breathalyzer test. As the defendant prepared to spit on the officer again, the officer raised a hand toward the defendant. At that point, the defendant kicked the officer twice in the groin area.

The defendant was charged with a violation of MCL 750.479; MSA 28.747, which is sometimes referred to as the resisting-arrest statute.² The complaint and warrant (and later the information) alleged that the defendant obstructed the officer’s attempts to keep the peace.³

ii

At the conclusion of the defendant’s preliminary examination, the assistant prosecutor moved that the defendant be bound over for trial, as charged. Defense counsel’s response included an argument that MCL 750.479; MSA 28.747 was inapplicable to these facts. Counsel said that the defendant had been overcharged, and that this case should instead be prosecuted as a simple assault and battery.⁴

The district judge rejected the argument, and bound the defendant over on the original charge.

In circuit court, the defendant moved that the information be quashed. In his motion, he relied upon a case in which the Court of Appeals had described the elements of the crime in terms of events that take place at the time of an arrest.⁵ In answering the motion, the prosecutor relied upon a case in which the Court of Appeals described the offense more broadly.⁶

The circuit court’s decision was that the information should be quashed, and that the case should be remanded to district court for trial on a charge of assault and battery. The circuit judge explained:

I think that if you take a look at the legislative intent in terms of the resisting a police officer in the performance of his duties, the purpose is to be able to maintain the peace, and I think that’s the maintaining the peace in the public. So that when we take a look at the broad scope and the definition of the obstruction, the resistance of a public officer in the performance of his duties, the reason they raised that from a misdemeanor to a high misdemeanor in essence was so that the public officer could not be interfered with in the public in terms of preserving the peace. That they would be able to continue their duties, that they would not be resisted in that and that they would not be preyed upon as in [People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967)].

But here you have someone who is already arrested and is incarcerated and it’s a matter of being able to maintain control within the Jail setting. And I don’t think that that’s what that statute is for, and I will grant the motion of the Defendant and remand the matter to the District Court for trial on assault and battery.

After granting the prosecutor’s application for leave to appeal, the Court of Appeals affirmed the order of the circuit court. 179 Mich App 445; 446 NW2d 309 (1989).

In stating its analysis, the Court of Appeals acknowledged some merit to the prosecutor’s argument:

The stated purpose of § 479 seems to support the people’s application of the statute, the purpose being to punish an assault upon a public officer in the discharge of his duty by a penalty more severe than that imposed for assaults on private citizens, People v Tompkins, 121 Mich 431; 80 NW 126 (1899), United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d 541 (1975), and protect officers from physical violence and harm. People v Kretchmer, 404 Mich 59; 272 NW2d 558 (1978), People v Baker, 127 Mich App 297; 338 NW2d 391 (1983). Additionally, in Weatherspoon, supra, a panel of this Court found the broad statutory clause "maintain, preserve and keep the peace” to include all duties legally executed by a police officer. In so finding, the Court relied on People v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965) [cert den 381 US 935 (1965)], wherein our Supreme Court recognized the statute’s tie to the common-law crime of obstructing an officer, and acknowledged the general rule: " 'Thé obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” [Id. at 448.]

However, the Court of Appeals then indicated that its research had "failed to uncover precedent wherein the statute in question has been applied to a postarrest in-custody defendant.” Id. at 448-449.

The Court of Appeals further noted that the Legislature has provided in MCL 750.506a; MSA 28.774(1)⁷ that a sentence for simple assault may be enhanced under the circumstances found in the present case. In reliance upon that statute, the Court of Appeals concluded that "the instant defendant should have been charged under MCL 750.506a; MSA 28.774(1),” and thus the Court of Appeals found "no abuse of discretion in the trial court’s dismissal of the resisting and obstructing charge.” Id. at 449.

The prosecutor has applied to this Court for leave to appeal.

hi

The Court of Appeals is correct that no previously reported decision is on point. However, it is clear that the events alleged in this case fall within the plain language of the statute.

Such an application of the statute accords with its purpose, which is to protect officers from physical harm. People v Kretchmer, supra at 64. Moreover, there is ample authority that an officer’s efforts to "keep the peace” include ordinary police functions that do not directly involve placing a person under arrest. People v Krum, supra at 362, People v John Weatherspoon, supra at 232.⁸

The Court of Appeals acknowledged the general applicability of these principles. It nevertheless concluded that the circuit court was correct, largely in reliance upon the existence of a sentence-enhancement provision that permits the imposition of a consecutive sentence when an assault is committed by a person who is already under arrest. MCL 750.506a; MSA 28.774(1). The Court of Appeals said that because this defendant "should” have been charged under that sentence-enhancement provision, the trial court did not abuse its discretion.

We disagree. The Legislature’s enactment of MCL 750.506a; MSA 28.774(1) does not indicate any legislative intent to limit the prosecutor’s charging discretion.⁹ As we explained in People v Ford, 417 Mich 66; 331 NW2d 878 (1982), the enactment of a statutory provision governing a set of facts does not automatically preclude the prosecutor from proceeding under a different statutory provision that also encompasses the alleged facts. See also, generally, People v Petrella, 424 Mich 221, 261-263; 380 NW2d 11 (1985), and People v Johnson, 427 Mich 98, 113-114; 398 NW2d 219 (1986) (opinion of Boyle, J.).

In deciding this case, it is not necessary for us to consider further the nature and extent of a prosecutor’s charging discretion. As the prosecutor has observed in his argument to this Court, MCL 750.506a; MSA 28.774(1) is a sentence-enhancement measure, not a prohibition of particular conduct. We therefore believe it clear under Ford that the legislative enactment of MCL 750.506a; MSA 28.774(1) does not prevent the prosecutor from making the discretionary decision to prosecute this case under MCL 750.479; MSA 28.747.

In lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for trial on the information. MCR 7.302(F)(1).

Riley, C.J., and Brickley, Cavanagh, Boyle, and Griffin, JJ., concurred. Archer, J. I concur in the result only.

1 To date, the only testimonial record is the transcript of the preliminary examination, at which two police officers testified. The defendant has yet to provide his account. For purposes of this opinion, we accept the testimony of the officers.

2 Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than two years, or by a fine of not more than one thousand dollars. [MCL 750.479; MSA 28.747. Emphasis supplied.]

3 These documents allege that the defendant "did knowingly and wilfully obstruct, resist, oppose, assault, beat or wound [the officer], while [he] was engaged in lawful acts, attempts and efforts to maintain, preserve and keep the peace, to-wit: assisting in taking of breathalyzer . . . .”

4 MCL 750.81; MSA 28.276.

5 The elements of the crime of resisting arrest are: (1) the defendant must have resisted arrest; (2) the arrest must be lawful; (3) the person making the arrest must have been at the time an officer of the law; (4) at the time of the arrest, the defendant must have intended to have resisted such officer; (5) at the time of the arrest, the defendant must have known that the person he was resisting was an officer; and (6) at the time of the arrest, the defendant must have known that the officer was making an arrest. See CJI 13:1:02. [People v Julkowski, 124 Mich App 379, 383; 335 NW2d 47 (1983).]

6 In People v John Weatherspoon, 6 Mich App 229; 148 NW2d 889 (1967), a police officer was sitting in his patrol car doing some paperwork, when the defendant opened the door of the police car and assaulted the officer. The Court of Appeals then offered this analysis of the statute’s applicability:

The position of the defendant is that the legislature did not intend this statute to punish offenders who commit a simple assault on any police officer while on duty. More simply stated, the argument is that when the officer was assaulted, he was not engaged in preserving the peace.

In People v Krum (1965), 374 Mich 356 [132 NW2d 69], the Supreme Court upheld a conviction based on the above quoted statutory excerpt where the accused interfered with a State trooper’s duty to inspect automobiles as they arrived at a blockade set up as part of a search for prison escapees. From a factual analysis, [the] "acts, attempts and efforts” [of the officer in John Weatherspoon] seem comparable to those being executed by the State trooper in People v Krum, supra. But more important than this parallel, is that on page 361 of the Krum Case, supra, the Court recognized the relationship between the statute and the general rule which provides:

" 'The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law, and by statute in all jurisdictions.’ (39 Am Jur, Obstructing Justice, § 8, p 506.)” (Emphasis supplied [by the Court of Appeals].)

The emphasized language leads us to conclude that the broad statutory clause "maintain, preserve and keep the peace” includes all of the duties legally executed by a police officer. A police officer is expected to be, and should be, in a constant state of readiness to quell any disturbance. [The officer] had parked his automobile at the intersection to watch for [John Weatherspoon’s brother] who was wanted for assault. The mere fact that this officer was not in the act of making an arrest when he was assaulted does not necessarily mean that he was not preserving the peace. [John Weatherspoon, 6 Mich App 231-232.]

7 (1) If a person, lawfully imprisoned in a jail or other place of confinement established by law, for any crime or offense, or lawfully imprisoned in a jail or other place of confinement after being sentenced for a crime or offense and awaiting or in transit to or from a prison or other place of confinement, commits any offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], the court may impose the appropriate penalties prescribed in [MCL 750.81 through 750.86; MSA 28.276 through 28.281] to run consecutively with any sentence which the person is already serving.

(2) If a person, lawfully detained in a jail or other place of confinement established by law, and awaiting arraignment, examination, trial or sentencing for any crime or offense, commits a subsequent offense defined in [MCL 750.81 through 750.86; MSA 28.276 through 28.281], if convicted of the crime or offense for which he was detained at the time he committed the subsequent offense, any sentences imposed for conviction of the prior offense and for conviction of the subsequent offense under [MCL 750.81 through 750.86; MSA 28.276 through 28.281] may run consecutively.

8 As noted above, the defendant has relied upon People v Julkowski, n 5 supra at 383, in which the Court of Appeals described the elements of the crime in terms that suggested that the offense can take place only in conjunction with a lawful arrest. For the Court of Appeals to have framed the elements in that fashion is quite understandable, in light of the facts of Julkowski, but those facts are quite unlike those of the present case. We observe that the Court of Appeals panel in Julkowski included a reference to CJI 13:1:02 which describes the elements in terms similar to those used by the Court of Appeals in Julkowski. But CJI 13:1:02 is only one of four alternatives to be employed in different factual scenarios. CJI 13:1:03 more closely corresponds to the facts of the present case, and we see no indication that the Court of Appeals meant in Julkowski that CJI 13:1:02 was the only correct account of the elements of this statutory offense.

9 An example of a clear legislative expression of its intent to limit prosecutorial charging discretion is found in 1988 PA 20, which established the offenses of first- and second-degree retail fraud. See MCL 750.356c(3), 750.356d(2); MSA 28.588(3X3), 28.588(4X2).