People v. Perez

22 Mich. App. 469 (1970) 177 N.W.2d 635

PEOPLE
v.
PEREZ

Docket No. 6,109.

Michigan Court of Appeals.

Decided March 24, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

George L. BeGole, for defendant.

Before: LESINSKI, C.J., and QUINN and V.J. BRENNAN, JJ.

QUINN, J.

November 30, 1967, at approximately 2 a.m. and in the vicinity of East Jefferson and Chene, a Detroit police officer observed an automobile driven by defendant traveling at a high rate of speed and subsequently observed that vehicle run a red light. The officer pursued defendant, pulled alongside, sounded his horn and motioned the driver to the curb. Defendant then accelerated, the officer again pulled alongside with blue and red flashers and siren on, and again motioned defendant to the curb. Defendant braked sharply and the officer went past him. Defendant immediately turned left onto Bellevue Avenue and the officer again pursued him. Defendant turned into a driveway and stopped. The officer pulled in behind defendant, alighted from the police vehicle, and observed defendant lying on the front seat of his vehicle with the lights and motor off and the doors locked. Receiving no response from defendant, the officer radioed for assistance. Defendant then got out of his car and was arrested.

Defendant was charged with violating MCLA § 257.602a (Stat Ann 1968 Rev § 9.2302[1]), which reads:

"A driver of a motor vehicle, who is given by hand, voice, emergency light or siren a visual or audible signal by a police officer, acting in the lawful performance of his duty, directing the driver to bring his motor vehicle to a stop, and who wilfully fails to obey such direction, by increasing his speed, extinguishing his lights, or otherwise attempting to flee or elude the officer, is guilty of a misdemeanor. The officer giving the signal shall be in uniform; and a vehicle driven at night shall be adequately identified as an official police vehicle."

The complaint reads:

"On the 30th day of November, 1967, at the city of Detroit, county of Wayne, Anthony Charles Perez, late of the city of Detroit, county of Wayne and state of Michigan, did operate a motor vehicle to-wit: Chevrolet coach, at 2:10 a.m. east on Jefferson between Crane and Bellevue, fleeing and eluding to avoid traffic arrest, speeding 60 miles per hour in a 35 mile per hour zone, then while being pursued by uniformed police in an adequately marked car with emergency flasher on, failed to stop for red traffic signal, drove 60 miles per hour in a 35 mile per hour zone; improper left turn, being in violation of Section 602A, Act 300, P.A. 1966."^[*]

Defendant's jury trial January 15, 1968, resulted in his conviction of the offense charged. He was sentenced and he appeals, raising five issues.

Defendant first claims reversible error because the trial court refused to ask juror no. 6, "Your Honor, would you ask juror no. 6, Mrs. Morrison, that if the proofs were even in this case, what her verdict would be?" The record indicates that defendant did not exhaust his peremptory challenges and that he announced his satisfaction with the jury. People v. Lambo (1967), 8 Mich App 320, precludes a finding of error.

At the close of the people's case, defendant moved for directed verdict for the reason that the complaint failed to allege willfulness. He now claims reversible error in the denial of that motion. The term willful must be included in the charge if it is necessary to indicate the offense. CL 1948, § 767.59 (Stat Ann 1954 Rev § 28.999). Here the offense charged is apparent from the complaint, with or without the term willful. People v. Driessen (1913), 178 Mich 118. The motion was properly denied.

The foregoing determination obviates discussion of defendant's claim of reversible error because the trial court, after permitting an amendment of the complaint to include "willful", failed to include "willful" when he read the complaint to the jury. In addition, the jury was instructed several times that they had to find the act willful before they could find guilt.

Defendant had two counsel. He claims error because the trial judge would not permit the counsel who was not examining a witness to make a legal objection. The judge ruled that one counsel or the other, but not both, could participate at one time. If this involved multiple objections by both counsel for defendant or witness examination by both, the trial judge can restrict participation to one counsel. In this case, defense counsel were dividing the work of the defense which is proper, Baumier v. Antiau (1887), 65 Mich 31. The restriction imposed was reversible error.

When the case was submitted to the jury, defendant orally requested the court to charge that if defendant did not know the vehicle which attempted to stop him was a police vehicle and if he fled as a result of fear and apprehension, he could not then willfully evade and elude a police officer. This request relates to defendant's theory of the case rather than to any basic element of the offense. Refusal to give it was not reversible error in view of the time the request was made. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 567.

Reversed and remanded.

All concurred.

NOTES

[*] This citation is in error; the correct citation is PA 1949, No 300, as amended by PA 1966, No 203.