People v. Wesley

365 N.W.2d 692, 421 Mich. 375

• Court: Michigan Supreme Court
• Decided: February 1, 1985
• Docket: Docket Nos. 66597, 67161, 67162, 69160, 69195, 69196, 69532, 69533. (Calendar Nos. 15-19)
• Status: Published

Opinions

Boyle, J.

I

In these cases we are asked to construe the Michigan kidnapping statute. MCL 750.349; MSA 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 conñned 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

A

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:

"False imprisonment, sometimes called false arrest, is the unlawful confinement of a person. It results from any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or go where he does not wish to go. It is a common-law misdemeanor.” 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, 34 Mich App 546; 192 NW2d 19 (1971). 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 551.

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:

"It is obvious that virtually any assault, any battery, any rape, or any robbery involves some 'intentional confinement’ of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense.” Otis Adams, 34 Mich App 560.

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 NW2d 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 NW2d 61 (1981),³ this Court applied the Adams asportation requirement in the context of a charge of first-degree criminal sexual conduct, MCL 750.349; MSA 28.581, a crime which involves punishment equal to that imposed for kidnapping. The Court said:

"In all cases where the charge is kidnapping, except as noted in Adams, in order to find defendant guilty, the factfinder must be satisfied that there was movement sufficient to satisfy the asportation requirement or its equivalent. Where applicable, the asportation element is crucial, regardless of the length of punishment mandated by the Legislature.” (Emphasis added.)⁴

The Court did not, however, overrule or disapprove of the following statement found in People v Adams, 389 Mich 238:

"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 300, fn 5. 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 230-235, 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 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965), and People v Lombardi, 20 NY2d 266; 282 NYS2d 519; 229 NE2d 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:

"Moreover, the rule has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitute and should constitute a separately cognizable offense. Nor was the Levy-Lombardi rule intended to exclude from the ’traditional’ or 'conventional’ kidnapping abductions designed to effect extortions or accomplish murder.” People v Miles, 23 NY2d 527, 539-540; 297 NYS2d 913; 245 NE2d 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:

(1) a forcible confinement of another within the state,

(2) done wilfully, maliciously and without lawful authority,

(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 crime involves murder, extortion or taking a hostage. Asportation incidental to these types of crimes is sufficient asportation for a kidnapping conviction.

However, as previously noted, no movement is required where the victim was secretly confined, Perkins, supra, p 178.

B

The portion of the statute denominated (b) above defines historical common-law kidnapping. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly carry or send such person out of this state . . . shall be guilty” of kidnapping. As mentioned above, the crime is complete with the forcible asportation of the victim across the state boundary.

C

Section (c) of the outline of the statute produced above describes three additional forms of conduct punishable as kidnapping. The first of these is "[a]ny person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby . . . shall be guilty” of kidnapping.

This, of course, is kidnapping for ransom. It is regarded as one of the gravest of crimes and is appropriately punishable as a capital offense. See Perkins, Criminal Law (2d ed), p 180. Because it does not involve the dangers of inappropriate punishment or overcharging, there is no reason to interpolate asportation as an element when the charge is based on this portion of the statute.

The second form of conduct punishable as kidnapping under this section of the statute describes kidnapping with the intent to secretly confine. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person . . . with intent... to cause such person to be secretly confined or imprisoned in this state against his will . . . shall be guilty” of kidnapping. (Emphasis added.)

The elements of a charge under this section of the statute are:

(1) a forcible seizure, confinement, inveigling or kidnapping of another,

(2) done wilfully, maliciously and without lawful authority,

(3) with the intent to cause such person to be secretly confined or imprisoned within the state against his will.

Since this form of kidnapping does not present dangers of overcharging or inappropriate punishment, it is not necessary to interpolate asportation as an element. Although no movement is needed to establish the offense under (1) above, the proofs must establish a purpose to cause such secret confinement. Indeed, as Justice Kavanagh opined in his concurring opinion in People v Barker, 411 Mich 303:

"The overbreadth we feared in Adams is avoided by insisting on proof of the intent specified in the statute as the ultimate purpose of the criminal act. So interpreted the statute would not elevate a misdemeanor to a felony as we feared in Adams. See 389 Mich 222, 232-233.” (Emphasis in the original.)

We agree with the implicit suggestion by Justice Kavanagh that a specific intent requirement obviates the need to read an asportation element into the statute. The intent to cause the victim to be secretly confined substitutes for the requirement of asportation. See Perkins, Criminal Law (2d ed), p 178.⁵

The third form of conduct punishable under this section of the statute is kidnapping with the intent to hold to service. "Any person who wilfully, maliciously and without lawful authority . . . shall forcibly seize or confine, or shall inveigle or kidnap any other person . . . with intent ... to cause such person to be ... in any way held to service against his will, shall be guilty” of kidnapping. For the same reasons as outlined above, the specific intent requirement makes an element of asportation unnecessary.

In summary, asportation is required as an element of kidnapping only where the charge is forcible confinement (a). Where the charge is secret confinement (b), or forcible seizure, or forcible confinement with intent to secretly confine (c), asportation is not an element of the offense.

II

To summarize what has been stated above, the kidnapping statute sets punishment for six separate variations of conduct. The evidence presented in each of the cases at bar must be examined in order to assess the accuracy of the instructions in each case.

As the facts detailed in Justice Kavanagh’s opinion indicate, the record in each case shows only that the parties proceeded on a theory of what has been characterized here as false imprisonment kidnapping. See part I-A. Therefore, the jury instructions in each case must be examined to determine if they fairly and accurately apprised the jury of the elements of false imprisonment kidnapping hy forcible confinement.

Wesley

The trial court instructed the jury on the kidnapping charge as follows:

"For the crime of kidnapping the prosecutor must prove each of the following elements beyond a reasonable doubt; any person who shall wrongfully, intentionally and forcibly confine another person against her will and move her from one place to another or cause her to be moved from one place to another is guilty of the crime of kidnapping. Mr. Wesley pled not guilty to that charge.

"And to establish the charge of kidnapping, the prosecutor must prove each of the following elements beyond a reasonable doubt: first, the victim, Carol Agee, must have been forcibly conñned or imprisoned. Second, that such must have been done against her will and without lawful authority. Third, that during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping. Such movement is not sufficient if it’s part of a crime other than kidnapping. In this case, for instance, you should consider whether the movement was for the purpose of kidnapping or whether it was a part of the crime of murder.

"In determining whether or not the movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or for a substantial distance and whether it added any greater danger or threat to the victim than the crime of murder. If the underlying crime involves murder, movement incidental to that is generally sufficient to establish a valid statutory kidnapping. However, the evidence must convince you beyond a reasonable doubt that there was movement independent of the other crime and that it was for the purpose of kidnapping.

"Fourth, at the time of such confinement the defendant must have intended to kidnap the. victim. And fifth, that at the time of such confinement the defendant must have been acting wilfully and maliciously.

"Wilful and malicious means that the defendant intentionally confined the victim knowing such confinement to be wrong and that it was done without legal justification or excuse.” (Emphasis added.)

When these instructions are examined in light of the elements of false imprisonment kidnapping, it is clear that the jury was adequately instructed on all of the elements of the crime. The jury was told that the victim must have been forcibly confined against her will, and that the defendant must have acted wilfully, maliciously, and without lawful authority.

The jury was also correctly instructed on the element of asportation. It was told that the victim must have been moved from one place to another for the purpose of abduction and kidnapping, but that movement incidental to an underlying crime involving murder was sufficient.

There is no error contained in these instructions that requires reversal. The jury was properly instructed on the elements of false imprisonment kidnapping and that movement incidental to the underlying crime of murder was sufficient. Therefore, defendant Wesley’s conviction of first-degree felony murder, with kidnapping as the underlying felony, must stand.⁶

Taormina, Gerald Phillips, and Phillip Phillips

In connection with these defendants, the trial court instructed the jury in pertinent part as follows on the kidnapping charges:

"The elements or instructions with regard to kidnapping are as follows: Any person who shall wrongfully, intentionally and forcibly confine another person against his will and move him from one place to another or cause him to be moved from one place to another is guilty of this crime. The defendant pleads not guilty to this charge.

"To establish this charge the people must prove each of the following elements beyond a reasonable doubt. First, that the victim, J. P., or also known as James Grinwis, must have been forcibly conñned or imprisoned. Second, the victim must have been so confined or imprisoned against his will and without lawful authority. Third, during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping. Such movement is not sufficient if it is part of a crime other than kidnapping.

"In this case, for instance, you should consider whether or not the movement was for the purpose of kidnapping or whether it was a part of the crime of felonious assault.

"I will describe felonious assault to you in a few minutes. In determining whether or not the movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or whether it was for a substantial distance and whether it added any great danger or threat to ihe victim than the crime of felonious assault, however, the evidence must convince you beyond a reasonable doubt that there was a movement independent of the other crime and that it was for the purpose of kidnapping.

"Fourth, that at the time of such confinement the defendant must have intended to kidnap the victim. You will recall the instructions on specific intent which I said applies also to this charge of kidnapping.

"Fifth, at the time of such confinement the defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the defendant intentionally confined the victim knowing such confinement to be wrong and that he did so without legal justification or excuse.” (Emphasis added.)

These instructions correctly informed the jury of the elements of false imprisonment kidnapping. There is no error in these instructions which would support reversal of the defendants’ convictions.

Threet and Dopp

The trial court gave the following charge to the jury on the kidnapping count:

"To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt.

"First, the victim, John Korzek, must have been forcibly seized, conñned, or imprisoned.

"Second, the victim must have been so confined against his will.

"Third, during the course of such confinement the defendant must have forcibly moved the victim or caused him to be moved from one place to another for the purpose of abduction and kidnapping.

"Fourth, at the time of such confinement the defendant must have intended to so kidnap or confine the victim.

"Fifth, in addition such kidnapping must have been done with the intent to confine or imprison the victim in this state; cause him in some way to be held for service against his will, or to murder the victim.

"Sixth, at the time of such confinement the defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the defendant intentionally confined the victim, knowing such confinement to be wrong; and that he did so without legal justification or excuse.” (Emphasis added.)

These instructions correctly informed the jury that in order to convict the defendants it must find that the victim had been forcibly confined against his will and that the defendants must have acted wilfully, maliciously and without legal justification or excuse.⁷

The Court of Appeals found error requiring reversal in the portion of the trial court’s instruction which related to the asportation element:

"In the instant case, the trial court’s instructions were deficient under Barker. While the court told the jury in paragraph three of its kidnapping charge that the movement must be for the purpose of abduction and kidnapping, it did not go on to inform the jury what movement would be insufficient to sustain a kidnapping charge as CJI 19:1:01 does. More importantly, paragraph five of the kidnapping charge specifically allowed the jury to base a conviction on a finding that the abduction was committed to murder the victim. Thus, the charge suffered from the same basic defect that rendered the charge in Barker fatally erroneous. That is, it allowed the jury to base a kidnapping conviction on a finding that the movement was either for the purpose of kidnapping the victim or to commit the crime of assault with intent to murder.” Unpublished opinion per curiam of the Court of Appeals, decided on March 24,1982 (Docket Nos. 54352, 55305).

However, as the discussion of the asportation element above indicates, the Court of Appeals misapplied Barker. Barker, when read in connection with Adams, does not change the rule that movement of the victim incidental to an underlying crime which involves murder is sufficient asportation to support a kidnapping conviction. An underlying charge of assault with intent to commit murder is certainly a crime involving murder.⁸ Thus, there was no error in the charge attributable to the fact that the jury could have based its kidnapping conviction on movement incidental to the crime of assault with intent to commit murder. Accordingly, the kidnapping convictions of these defendants must be reinstated.

For the reasons stated above, we affirm the judgment of the Court of Appeals in Wesley, Taormina, Gerald Phillips, and Phillip Phillips and reverse the judgment of the Court of Appeals in Threet and Dopp, reinstating the judgments of the trial court. We find the assignments of error by Threet and Dopp as cross-appellants to be without merit, and we decline to address issues not raised in the Court of Appeals.

Williams, C.J., and Ryan and Brickley; JJ., concurred with Boyle, J.

1 This view is not inconsistent with the holding of People v Bergevin, 406 Mich 307, 311; 279 NW2d 528 (1979). That case recognized that the kidnapping statute contained alternative definitions of the crime, but held that each of these alternative formulations did not constitute a separate and distinct crime for purposes of trial, conviction, sentencing, and double jeopardy.

2 Although the holding in Adams was constitutionally based, the false imprisonment portion of the kidnapping statute is not the same as the completely standardless provision struck down in Giaccio v Pennsylvania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1965). Other jurisdictions which have limited the scope of their kidnapping statutes by interpolating asportation as an element have done so by relying on principles of statutory interpretation. See, e.g., People v Levy, 15 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965). Moreover, jurisdictions such as Wisconsin have read common-law kidnapping as beyond the scope of their statute because their Legislature had otherwise specifically criminalized false imprisonment as a misdemeanor, an option the Michigan Legislature has not undertaken.

3 It is unclear whether Barker and the companion cases also involved charges of what has been labeled here as false imprisonment kidnapping. What is clear is that they did not proceed on a theory of secret confinement or of forcible confinement with intent to secretly confine. See discussion in Section C infra. To the extent that Barker has been understood to require asportation where the charge is secret confinement or forcible confinement with intent to secretly confine, that understanding is erroneous.

4 In its holding in Barker, the Court seems to have departed from the intellectual underpinning of Adams, the need to prevent prosecutorial overcharging. We are not presented in these cases with underlying crimes involving equal punishment which do not also involve murder. Therefore we are not called upon to reexamine this aspect of Barker.

5 See also People v Otis Adams, 34 Mich App 550-551:

"There are two basic kidnapping patterns. In one, the victim is seized and removed to another place; in the other, the victim is confined in the place where he is found. In the first, an asportation or movement of the victim is an essential element; in the second, movement is not an element, but secrecy of the confinement is required.”

Although it appears that Justice Levin made this statement in the context of a discussion of secret confinement as a form of conduct (see discussion of false imprisonment section of the statute, supra, pp 3-7), the rationale is equally applicable to an intent to cause secret confinement. Movement of the victim may be involved under a particular set of facts, but it is not an essential element of the crime.

6 In each of these cases, the trial court instructed the jury that the specific intent to kidnap was an element of the crime charged. As indicated above, false imprisonment kidnapping is not a specific intent crime. However, defendant cannot complain concerning an error in a jury instruction which required more proof from the prosecutor than is necessary as a matter of law.

The same rationale applies to preclude defendant from complaining that the instruction seems to indicate at one point that asportation incidental to murder was not sufficient for kidnapping.

7 As in the Wesley, Taormina, and Phillips’ cases, defendants here cannot claim error in connection with a specific intent instruction which was not required. See fn 6.

8 When the rationale for the asportation rule is examined, there is no principled reason why a different rule should apply to a defendant who acts with the intent to murder, but who is unsuccessful in bringing that intent to fruition by causing the death of the victim. See discussion supra, pp 4-6. Indeed, in People v Miles, supra, in which the murder-kidnapping asportation rule was articulated, the victim was not killed.