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Docket Number

Docket No. 62673.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Bruce Plackowski, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people. State Appellate Defender (by Terence R. Flanagan), for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Case Summary: PEOPLE v BAKER, Docket No. 62673 (Mich. Ct. App. June 1, 1983)

Factual and Procedural Background

Defendant was convicted, following a jury trial, of resisting or obstructing a police officer in the discharge of his duty, in violation of MCL 750.479; MSA 28.747. He was placed on two years' probation with the first six months to be spent in jail. Defendant appealed his conviction as of right, challenging the trial court's refusal to give certain jury instructions.

At trial defendant did not deny using force to resist the arrest; instead he asserted that the arrest was unlawful because the officer used excessive force. Defendant testified that he knew the person attempting to arrest him was a police officer.

Legal Issues Presented

Whether the trial court erred by refusing to instruct the jury on the lesser offense of attempted resisting arrest.
Whether the trial court erred by refusing to instruct the jury on the misdemeanor offense of simple assault (MCL 750.81; MSA 28.276) as a cognate lesser-included offense.

Arguments of the Parties

Defendant's Arguments

The trial court should have instructed the jury on the lesser offense of attempted resisting arrest.
The trial court should have instructed the jury on the misdemeanor offense of simple assault as a cognate lesser-included offense.
At trial he asserted the arrest was unlawful and that the officer used excessive force; these claims, if believed, would negate criminal liability for resisting arrest.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Richard Banks, 51 Mich. App. 685; 216 N.W.2d 461 (1974)	The characterization that resisting arrest is in the nature of an assault and the proposition that there is no such crime as attempted assault (supporting refusal to give attempted-assault instruction).	The trial court relied on this authority in denying the requested attempted resisting arrest instruction; the appellate court noted it but found it unnecessary to decide the broader question of whether attempted resisting arrest exists.
People v Adams, 416 Mich. 53; 330 N.W.2d 634 (1982)	A judge is required to instruct on attempt only where there is evidence indicating that only an attempt was committed.	The court applied this principle to conclude that because there was no evidence that only an attempt occurred (defendant admitted using force), an attempt instruction was not required.
People v Stark, 120 Mich. App. 350; 327 N.W.2d 474 (1982)	Claims that an arrest was unlawful or that the officer used excessive force, if believed, can constitute complete defenses to resisting arrest.	The court observed that defendant's asserted defenses (unlawful arrest/excessive force) would, if credited, be complete defenses, but nonetheless there was no evidence of a lesser offense.
People v Stephens, 416 Mich. 252; 330 N.W.2d 675 (1982)	The Supreme Court retreated from the broad Chamblis rule and held that a requested misdemeanor instruction may be given if supported by a rational view of the evidence adduced at trial.	The appellate court used Stephens to frame the standard for giving a simple assault instruction and concluded the evidence did not rationally support such an instruction here.
People v Chamblis, 395 Mich. 408, 429; 236 N.W.2d 473 (1975)	Previously precluded giving misdemeanor instructions in most felony prosecutions (the rule later narrowed by Stephens).	Cited as the older rule from which Stephens departed; the court relied on Stephens rather than Chamblis in its analysis.
People v Kretchmer, 404 Mich. 59, 64; 272 N.W.2d 558 (1978)	The purpose of the resisting arrest statute is to protect police officers from physical violence and harm.	The court relied on this principle to explain that resisting arrest is aggravated by the fact that the victim is an officer, and therefore a simple assault instruction is appropriate only if evidence suggests the victim was not an officer or the defendant lacked knowledge of the victim's status.

Court's Reasoning and Analysis

The court first addressed defendant's claim for an instruction on attempted resisting arrest. It stated that it was unnecessary to decide the abstract question whether an attempt to resist arrest is a lesser-included offense, but proceeded on the assumption that such an attempt could exist. Even so, the court applied the principle from People v Adams that an attempt instruction is required only when the evidence indicates that only an attempt was committed. Here, because defendant did not deny using force to resist the arrest (and thus the evidence showed a completed offense), and because his trial theory was that the arrest was unlawful/excessive force (which, if credited, would be a complete defense rather than evidence of a lesser completed crime), there was no evidentiary basis to instruct on attempt. Consequently, an attempt instruction was inappropriate.

Next the court considered defendant's request for a simple assault instruction. Relying on the Supreme Court's decision in People v Stephens, the court noted that a misdemeanor instruction is permissible only if it is supported by a rational view of the evidence. The court explained the statutory purpose of resisting arrest (protecting officers) as articulated in People v Kretchmer, and observed that the distinguishing feature of resisting arrest as a felony is that the victim is an officer. Thus, a simple assault instruction is warranted only if evidence shows the victim was not an officer or that the defendant lacked knowledge of the victim's status. Because defendant testified that he knew the person attempting to arrest him was a police officer, the evidence did not rationally support a simple assault instruction. The court therefore held the trial court did not err in refusing that instruction.

Holding and Implications

Affirmed.

Direct effect: The defendant's conviction for resisting or obstructing a police officer and the imposed probation sentence (including the initial six months in jail) were affirmed by the Court of Appeals.

This opinion does not discuss any broader rule-making or establish a new precedent beyond its application of existing authorities to the record; it resolves the claimed instructional errors on the facts presented.

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PEOPLE v BAKER

PER CURIAM.

Defendant was convicted of resisting or obstructing a police officer in the discharge of his duty, MCL 750.479; MSA 28.747, following a jury trial. He was placed on probation for two years with the first six months to be spent in jail. Defendant appeals his conviction as of right.

Defendant claims that the trial court erred by refusing to instruct the jury on a lesser offense of attempted resisting arrest. The trial court ruled that, because the crime of resisting arrest is in the nature of an assault, it would be improper to give the requested instruction because there is no such crime as attempted assault. See People v Richard Banks, 51 Mich. App. 685; 216 N.W.2d 461 (1974).

We find it unnecessary to decide whether an attempt to resist arrest may be a lesser-included offense to this crime. Even assuming that the crime exists, we agree that it was inappropriate to give such an instruction in this case. A judge is only required to instruct on attempt where there is evidence indicating that only an attempt was committed. People v Adams, 416 Mich. 53; 330 N.W.2d 634 (1982).

Defendant did not deny that he used force to resist the arrest. Rather, he claimed that the arrest was unlawful in that the degree of force used by the officer was excessive. Those claims, if believed, would have constituted complete defenses to the charge. See People v Stark, 120 Mich. App. 350; 327 N.W.2d 474 (1982). There was no evidence that a crime was committed which was less than the completed offense. Therefore, an instruction on attempt was not appropriate. People v Adams, supra.

Defendant also complains that the trial court erred by refusing to instruct the jury on the misdemeanor offense of simple assault. MCL 750.81; MSA 28.276.

Assuming that defendant is correct in his claim that, because of the assaultive nature of his actions, simple assault was a cognate lesser-included offense to this charge, we do not believe that the trial court was required to give an instruction concerning that charge. In People v Stephens, 416 Mich. 252; 330 N.W.2d 675 (1982), the Supreme Court backed away from the rule stated in People v Chamblis, 395 Mich. 408, 429; 236 N.W.2d 473 (1975). Chamblis, supra, precluded the giving of instructions for misdemeanor offenses in most felony prosecutions. In Stephens, supra, the Court ruled that a requested misdemeanor instruction may be given if it is supported by a rational view of the evidence adduced at trial.

The purpose of the resisting arrest statute is to protect police officers from physical violence and harm. People v Kretchmer, 404 Mich. 59, 64; 272 N.W.2d 558 (1978). The Legislature has provided for an aggravated penalty for resisting arrest. The distinguishing feature which transforms the misdemeanor of simple assault into the felony of resisting arrest is the fact that an officer of the law is the victim where resisting arrest is charged. Therefore, an instruction on simple assault in a case in which resisting arrest is charged would be based on a rational view of the evidence only if there is some evidence that the victim was not a police officer or a question is raised concerning defendant's knowledge of the victim's status.

In the present case, defendant testified that he knew that the person who attempted to arrest him was a police officer. Therefore, the evidence did not support the requested misdemeanor instruction. People v Stephens, supra.

Affirmed.

PEOPLE v. BAKER