*1 311 v Lucille Walker LUCILLE WALKER PEOPLE v TERESA WALKER PEOPLE v v COLLINS PEOPLE 66615, 67677, 3, 1984, January Docket Nos. 71998. Submitted denied, Lansing. appeal June 1984. Leave to —Decided Mich__ Walker, Walker, Lucille Teresa Lidra and J. C. Collins Walker Walker, counts of and Lucille tried on three Teresa and J. C. Collins were convicted all three counts, Court, Gage, Oakland Circuit Hilda R. J. Defendants appealed. Held: asportation to the ele- Secret confinement is an alternative force, kidnapping, accomplished by ment of but either must be is, amounting by physical coercion to more than mere support coercion. There was insufficient evidence to mental finding asportation of either confinement. forcible secret Reversed. J., Hoffius, R. S. He hold that there was dissented. would support
sufficient not evidence to the convictions and would disturb them. Kidnapping Asportation — — — Secret Confinement Force. asportation
Secret confinement an of is alternative to the element force, is, kidnapping, accomplished by but either must be by physical amounting coercion to more than mere mental (MCL 28.581). 750.349; coércion MSA Kelley, Frank J. Louis J. General, Attorney Caruso, Patterson, L. Brooks General, Solicitor Williams, Attorney, Robert C. Prosecuting Chief Davisson, F. and Robert Counsel, Appellate Assis- tant Prosecuting for the Attorney, people._ References for Points in Headnote 2d, Kidnapping 1 Am Jur Abduction and 14.§
Necessity sufficiency showing, kidnapping prosecution, "secretly” that detention was with intent to ALR3d 733. confine victim. 98 App 135 Opinion the Court Carter), A. Derrick (by Defender Appellate State Lucille Walker. for defendant S. Auslan- Auslander, Weiss Ira Babcock & (by *2 Kaufman), H. Teresa and Joel for defendant der Walker. Rubiner, J. S. Col-
Arthur James for defendant lins. Kelly, P.J., R. S.
Before: M. J. and Allen and Hoffius,* JJ. Lucille Defendants-appellants, P.J. Kelly,
M. J. Collins, Walker, and Teresa Walker were J. C. kidnapping, of three counts of jury convicted 28.581. Each defendant was 750.349; MSA MCL A three counts. fourth defen- found on all guilty Walker, Lucille dant, guilty. was found not Lidra prison, 4 20 in years was sentenced to 3 20 years was sentenced to J. C. Collins Teresa Walker to months prison, and defendant These years probation. in the and county jail as right have been consolidated appeals three of together. Our review of the defendants were tried briefs indicates that Lucille Walker the record and rights and civil guilty of federal state clearly elderly, of the and exploitation violations and trick and embezzle- probably guilty larceny by crimes, ment, other personation, perhaps false (We prosecutor’s not defer to the kidnapping. but crimes exercise of discretion in the matter of what legislation if charge, inadequate there is the attention regard brought this should be Legislature.) kidnapping miss- Since we find the elements of ing we reverse all three convictions._
* assignment. judge, sitting Appeals by Circuit on the Court of People v Lucille Walker
Facts penchant using Defendant’s aliases casts her in suspicion. legal conduct Lucille Walker is her name. She had been apparently born Lucille Cora Galvin and used the names Cora Galvin and Lu- cille Collins in her Miami activities and on her Florida bank accounts. She was also known vari- Ross, Miller, ously as Miss Mrs. Sylvia Kem- ble. Hereafter shé will be referred to as defendant. best, At the picture emerges of defendant as an opportunist regard to the infirm elderly. She operated an congregate living "adult facility” in Miami, Florida, for which she obtained one-year license on October 1980. She also maintained a home for herself and defendant J. C. (prin- Collins Collins) Gables, called Taft cipally Coral Flor- ida. The two were never married but had lived together for many years. Defendant also had own- *3 ership interests with Collins in homes in Detroit Park, and Michigan. Oak genesis The for her scheme or scam is best highlighted the of testimony Sylvia Goldstein. Witness Goldstein was old at years the time of trial. She had in lived defendant’s nursing/board- ing home in Miami during 1979 and 1980. She paid defendant a month for room and $800 board. Defendant and Collins purchased the house at 13341 West 10 Mile Road in Oak Park sometime in June of 1981 and brought defendant Mrs. Gold- stein to the 10 Mile address where she continued to pay per the month. She voluntarily $800 and willingly came to Detroit. She said she was well treated and liked it at the house on 10 Mile Road.
Defendant’s success Sylvia and Goldstein (Marian with another but elderly incompetent lady Rumsford), who was brought up after Mrs. Gold- stein and before complainants, apparently App 135 resi- it with four other to try defendant
prompted were 65- house. These boarding her Miami dents of Cham- Beneteau, Grace 63-year-old Felicia year-old Klassen, 75-year-old and berlain, 91-year-old Kathe receiving federal social Mizner. Two Lillian in living three had been security benefits for weeks to boarding house Miami defendant’s receiving apparently was not Mizner months. Mrs. benefits, her own home but owned security social containing account a bank in Miami $5,000 savings. approximately strongest testimony gave Mizner Mrs. met that she first She testified against defendant. on her door- appeared when defendant defendant herself as 1981 and identified of step July that defen- She stated investigator. security social Neighbors the bank. to take her to dant wanted to the they brought her testified Mrs. Mizner in late boarding July home Miami defendant’s for her to defendant paid Mrs. Mizner $400 1981. home at lodging, first month’s with the transported she was three before days Detroit. others to Mizner, Mrs. charges concerned Beneteau, Chamberlain, as and Felicia
Grace incompetent testify Kathe Klassen was declared dropped examination and was preliminary complainants’ as We find that complainant. charges. did not establish the testimony airport to the The four women were taken 1, 1981, accompanied August Miami on and were Teresa flight by on a Delta Airlines *4 Walker, group grandaughter. Lucille’s airport by boyfriend met at the in Detroit Teresa’s Park to the 10 Mile Road house Oak and driven than two weeks. where remained a little less did J. C. Collins Defendants Lucille Walker Lucille Walker v Opinion op the Court at group with the and did not arrive fly not 1981, August Road address until Mile from Miami perception trip The ladies’ of the emphasis all object major Detroit was defendants, it is clear from the record that and, although all felt protested manipulated, none thought Lillian Mizner she had been kid- Mrs. Mizner testified that she had no napped. that, leaving intention Florida but when it apparent airport became at Detroit, getting plane on a for she did not "feel say gave would be use to a word”. She also following testimony: got you airport, you say something As to the did
”Q. anyone? Well, them, said, anyone large, "A. I said to I kidnapping 'this looks like a for ransom’. you say that to? Who did
”Q. general, got response. "A. To the car but I no
[*] [*] [*] Why you say, did this seems like a ”Q.
ransom? Well, very
"A. it was obvious. do you What mean?
"Q. "A. Why would we city, be taken to another trans- ported lines, something over state if there was not suspicious about it?”
No one having else the car testified to heard bomb, drop Lillian Mizner and on that verbal impact cross-examination she diluted the of that testimony by saying that those remarks she made when she got plane. kidnap- She defined ping: put plane transported "We were on a over state lines.” She further testified: *5 App 135 op Opinion - the Court guards posted at policemen or you Did see ”Q. airport? Oh, everything. and plenty of them
"A. to them? say anything you Did ”Q. going be a bit of it was to I feel "A. I did not. didn’t incompetent and she going say we’re to use. She was charge of us.” inwas to Teresa Mizner referred Mrs. necessity By the four accompanied she alone because Mrs. Mizner testi- airplane. onto elderly ladies she to Detroit when going knew were fied she counter in the the Delta ticket sign saw the Airport. Miami Caron, brother-in-law, age Leo Mizner’s
Mrs. wife that he his He testified Quebec. lives in 31, 1981, night July phone call received Lillian was well said Galvin” who from a "Cora him boarding home and asked her at the and with He to sell Lillian’s house. get lawyer to try reported phone Lillian on the spoke with nervous, nervous, and she quite "sounded Lillian and that go to Detroit she didn’t want said test. through a put psychiatric her going also that”. Mr. Caron didn’t want certainly She he He said confusing testimony. gave fairly some call from a Mrs. phone another may have received Detroit. He going Lillian was saying Miller Detroit, 23591 Jerome an address for a house at as Lidra Walker’s which was later identified Park, of a house, about 3/4 also located in Oak (Lidra, Lu- mile from the 10 Mile Road address. in this case daughter, prosecuted cille’s was also Mr. Caron guilty by jury). but was found not to reach Lillian with which phone had a number area, it is not clear from in the Detroit told He also was phone record whose that was. someone, Miller, Attorney Mrs. to call presumably v Lucille Walker op Opinion the Court Weiner, Arnold a suburban Detroit area attorney. He believed his sister-in-law was located at 2433 East Grand Boulevard in Detroit and that he (The by phone. knew how to reach her 2433 East Grand Boulevard address turned out to be a va- lot, cant but defendant and J. C. Collins at some Boulevard). time had a house on East Grand *6 neighbor, Boston, Mrs. Mizner’s Miami John he spoke testified with Mrs. Mizner on Friday, 29, 1981, July bringing after her shortly to defen- boarding dant’s house. He appeared said she "afraid to talk” and "a little shaken” but she declined bring his offer to her back home with him. Florida,
A Vidana, social worker Eva placed the ladies with elderly defendant Lucille Walker and when she discovered the ladies had been removed from the boarding house she filed a missing persons report with the Miami police. The story became a media event and heavily publi- was cized all over the country. Around a.m. on the 13, night August the three complainants plus Marian Rumsford and Kathe Klassen were driven to Detroit Receiving Hospital and aban- doned there widespread after coverage television to the effect that five elderly missing women were from a nursing home in thought Florida and to be in the Detroit area. It is not clear who drove them to the hospital. One of the ladies testified that them, Teresa Walker drove another testified them, that defendant Collins drove defen- dant Lucille suggested that Ed Sosnowski and James Miles transported the ladies after see- ing their on a story television broadcast.
Conditions in the house on 10 Mile Road where the women living were were the subject of much conflicting testimony. complain- Each of the three App 135 op Opinion the Court ladies lived and three other that she ants testified identified the the women One of in the basement. Rumsford, others said two Marian lady fourth as Sosnowski, live-in Klassen. Kathe Edward house, testified 10 Mile Road handyman All lived in the basement. of the ladies that some two ladies testified that the defendants basement, smokers and those two lived in the were their habit. to accommodate lived in the basement and a toilet the basement leaky There was a the toilet repair he that went plumber testified he saw several 4, 1981. He said that August downstairs, there that he was elderly women watching hour, the women were about an beds, just walking television, on their lying them and found spoke that he around and being kept indicate that the ladies were nothing to against their will. The ladies phone. had more than one
The house phone not to use the were told testified that Mr. go told not outside. *7 go the ladies could not they said he told Sosnowski that. But he also testi- accepted and they outside on the except locked fied that the door was never the Two of premises. when he left the occasions tried the back door testified had never they ladies locked, Mizner testified if it was but Lillian see door and Beneteau did the back try that Felicia that she said found it bolted. Grace Chamberlain go that wanted complained they to defendant they her back to Florida. Defendant told control- due to the air traffic get flight could not a lers’ strike. inter- attorney arranged
Either defendant an or Mrs. power attorney try view to to obtain attorney, an wanted to talk with said she Mizner Ar- Mr. an interview with arranged so defendant People Lucille Walker v Opinion of Court the Mizner testified on direct exami- Mrs. nold Weiner. him being kidnapped, that she told she was nation admitted that she said but on cross-examination living her current situation to the nothing about talked was her money that all she about attorney, also took property. and her Florida Defendants Park, Miz- Kathe Klassen to a bank Oak Mrs. them, anything and neither said accompanied ner people the the bank about their current living conditions. appears testimony
It from the the house doors had locks but were often unlocked. Each open admitted she never tried to lady that, doors Mrs. Mizner if herself. testified if could they go asked outside and she could and did and yes, they said did sit on porch. the back appear primary legal
There to be two issues. kidnapping The first is whether can be accom- force, plished without and the second is whether inveigled complainants defendants into secret confinement or imprisonment. Stated an- other way issue is whether there was sufficient evidence of each of the elements of kidnapping sustain the convictions. determining
"When
whether
there is sufficient evi-
convictions,
support
dence to
their
this Court must view
light
prosecu-
evidence
most favorable to the
tion and determine whether a
trier of fact
rational
could have found that
the essential elements of the
proven beyond
crime were
a reasonable doubt.”
v Delongchamps,
159;
App
"Any person forcibly secretly or confine or authority shall lawful against any person within this state his imprison other person will, forcibly carry or send such out of or shall confine, state, forcibly or or shall or shall seize this person intent kidnap any other inveigle or thing thereby or with money or other valuable extort intent fined or any way of a person secretly con- either to cause such be will, against or in imprisoned in this state his will, against guilty to service his shall be held imprisonment in the felony, punishable by state any years.” term of prison for life or
Force
noted in
aptly
Court
v
Supreme
As
(1973),
Adams,
229;
her or shall other person secretly person with intent to cause such to be imprisoned against confined or state her will is this guilty of this crime.” pros-
The information on which defendants were mali- charged wilfully, ecuted that defendants "did con- ciously authority forcibly and without lawful each imprison” fine and/or confine and/or secretly transport- of the complainants against her will means and/ ing "by them from Florida fraudulent forcibly or against her will and did then and there in a house [complainant] secret or confine [sic] *9 321 Lucille Walker v Opinion op the Court 10 Mile Park located at 13341 W. Road Oak * * first, second, elements of the This contains (the categories kidnapping of third and fourth ransom, fifth, kidnapping for involun- involves service). tary trial instructions to the on the jury
The court’s proven to be the case at bar were elements 19:1:04: those contained CJI essentially "First, forcibly the victim must have been confined or imprisoned, secretly or the victim must have been confined.
"Second, have been confined or im- the victim must prisoned against authority. her will and without lawful confinement,
"Third, during the course of such the victim forcibly defendant must have either or moved place caused her to be moved from one to another for confinement purpose imprisonment by or the use of of fraud, deception inveiglement. kept must have hidden the victim and her in "Or secret confinement. part
"Movement is not sufficient if it is of a crime kidnapping. you other The than evidence must convince beyond a reasonable doubt that the movement was for purpose of abduction and alone and not other crime.
"Fourth, during the course of such confinement the kept defendant must have the whereabouts of the vic- determining tim secret. In whether the victim sowas imprisoned, you should consider whether there was confinement, length, persons its whether other not so victim, confined were made aware of the location of the confinement, and any secrecy whether this any, if added greater danger to the victim. "Fifth, during at or the time of such confinement the defendant kidnap must have intended to so or confine the victim.
"Sixth, at the time of such confinement the defendant acting must have been wilfully, maliciously and without lawful authority. Wilfully maliciously means the victim, intentionally knowing confined the App wrong, to be and that he or she did so such confinement legal justification or without excuse.” Jury However, the Criminal Instructions which prepared go with the first or fourth sec- tions of the statute contain five elements. The asporta- added, element, trial court as its "third” tion, is in the CJI for which found other sections kidnapping statute, but nowhere with the * * phrase "by the use of fraud *”. Supreme p supra, Adams, Court held in *10 that secret is an alternative confinement to asportation kidnapping. The CJI element com- mentary rarely notes that secret confinement is kidnapping prosecution the basis for a are no and there reported prosecution sought cases. The to prove forcibly that the ladies were either or se- prosecutor’s cretly appeal confined. The briefs including define force as "fraud or duress or prosecution authority threats”. The cites no for expanded this ply definition of force. The record sim- support prosecutor’s
does not assertions most, that the ladies were threatened. At testimony, failing ladies’ while to indicate that they made, threats were that does indicate that felt complaints they because, if would be futile complained, they would be characterized as incom- petent by the defendant. generally representations
Fraud connotes false part something which induce another value. Grace Chamberlain testified that defendant going overnight trip, first told her she on an picnic. then later mentioned a vacation and a go Whether of this induced Grace to on the airplane is unclear since she also testified that she get did want out of the Miami home change. Felicia Beneteau testified that she had going they been told that to Detroit on a were v Lucille the testimony suggests vacation. On whole none of the ladies had a clear idea where they that going they were when left Florida. Neither Lillian nor Felicia told defendant did not want they go; both testified that this was due to a fear that object they it would be useless because were compelled defendant’s care and were to do what testimony sug- told them to do. Their that, if gests they exactly they known where there, going and what would do would gone. Perhaps still have this sense of com- pulsion stemmed from their own lack of choices. apparently one who had anyplace else to go was Mrs. Mizner and she declined the Bostons’ invitation to come back to their home. She clearly had an alternative she which had refused. She had been staying Bostons’ for about a year going before to the boarding house in Miami. On cross-examination Mrs. Mizner indicated that al- though she did not say anyone had threat- ened or forced her thing "there is such a as coercing”.
Duress is distinct from fraud in that party under duress acts knowingly unwillingly whereas in fraud the acts party but on willingly *11 false representations. responses The ladies’ in this case seem akin more to duress since they least some idea that they going trip were on a apparently some did not go initially want some did not like ending up the basement. We do not believe that mental stemming coercion from the defendant’s exercise of authority assumed over complainants these require- satisfies the force ment of the kidnapping statute. 2d,
Cases cited in 1 Am Jur Abduction Kidnapping 51-52, pp indicate state several § threats, courts have extended "force” to include App 311 135 Mich the mean- to extend decline and duress. We fraud as mental coercion to include term force of the ing of this on the facts coercion physical opposed ladies’ confine- that is no evidence case. There was based on the Park at the house Oak ment ladies appears force. It of threat or use There is told to. they were because simply obeyed to them happened have what would no evidence defendant’s hold that obey. not We if did these ladies did over authority of assumed exercise forcible to constitute sufficient not create a duress in the statute. as used confinement Secret Confinement dealing not here that we are It is obvious sense. These in the conventional to a seized and removed forcibly were not women They of extortion. purpose for the hiding place a in tourist class seats on transported openly capacity was filled to flight Airlines which Delta Metro- Miami via Ft. Lauderdale from Detroit ter- through public exited Airport. They politan confinement must If there was secret minal. the ladies in the first instance when have occurred private in a airport transported left the and were Mile Road. The to the house on 10 automobile saw, house they ladies admitted that while at the clerk, to, a bank complain attorney, but did not an man, and two plumbers, gas two meter company who lived The handymen. caretaker/handyman, as construed the house and who would have be Sosnowski, charged. not jailer, their Mr. Ed was working there were He and others testified that said that there phones in the house. Defendant phones; were four this not contradicted. allowed were not complainants testified that phone to use the and Mr. Sosnowski testified *12 People v Lucille Walker 325 phone. he told them not to use the defendants examination None of the attempted phone. to use the On cross-
one said she never asked phone use "I whether she could have didn’t because complainants anybody call”. to One of the nephew phone had a in Lincoln Park whose num- could ber she knew and have but never dialed did. lawyer When Mrs. Mizner was taken to see a she apparently never discussed her at the situation 10 lawyer. Mile Road address with the only She talked money. about her Florida real and her estate complainants Two of the to a taken bank according testimony employee where of an joint opened 91-year- of the bank a old account was Kathe Klassen defendant under the name protestations of Lucille Collins. No were offered. busy very street, The house itself located on a shopping neighbors near a center with next door windows, on no curtains the basement and the ladies were often left alone and out of Certainly, they have could walked any
the house number occasions. up picked telephone could have and dialed zero at almost time. There were many open windows to world them. prosecution
The contends that the failure of the anybody ladies to communicate with does not mean that the confinement was not secret because the ladies did not out of communicate fear. No presented support proposition cases are of this concerning and we have none found confinement say, bar, similar to physical the case where no is Supreme force was involved. Missouri construing Court statute, Missouri’s Michigan’s, which is similar decided: confinement, 559.240, meaning "Secret within the of § require proof does not of total concealment and com- plete whereby isolation the victim is rendered invisible App *13 It is sufficient to show world. to the entire against effectively confined kidnapped has been person from prevented that he is in a manner his will such to others and accused’s communicating his situation predicament secret is keep the victim’s intention Weir, 437, (Mo, 506 440 manifest.” State v SW2d made 1974). driving through a woman The court held open prevent- City field and streets to Kansas ing an waving signaling consti- or to others her from opinion not does tuted secret confinement. "prevented” the vic- indicate how that defendant opinion waving. unhelpful from the tim from Mississippi An Supreme State, v 360 Court in Hinson (Miss, 1978), simply stated that a So 2d 935 evidence, the record discloses no "careful review of confinement”, all, of secret without ex- none at might plaining what evidence constitute secret in the confinement or what evidence was record. Mississippi case, State, Johnson v In another (Miss, 1974), ruled that So 2d 842 the court trans- gunpoint place porting by a man at car from a right place he had a to be to a unknown to where his friends ment of secret confinement. acquaintances require- satisfied the decline to so We construe secret confinement presence broadly as to include an occurance in the many in the view of so as were witnesses present gan Michi- and testified this case. The point, People App Nodine,
case on
v
(1971),
80;
We do not think was the intention of the Legislature kidnapping apply statute to a where these defendants situation overbore assigned facility. wills of ladies to their adult care perceive the situation to be an exercise We assumed
authority ladies, over the which these clearly have, not defendants did to remove them from a facility home in Florida to an licensed unlicensed Michigan. Exploitation elderly of these persons, clearly wrongful, cannot be converted into complainants record. All of the this going along plans, admitted with defendant’s ei- change ther because monotony, were excited from call, or because had no one to *14 protest because felt would be futile to anyone.
Having seizing confining no found forcible meaning and no secret within the confinement unnecessary statute, the address we find it urged by of the other claims of error the defendants in this case.
Reversed. J., concurred.
Allen, (dissenting). R. S. J. I dissent. The case Hoffius, jury proper approved was submitted to the jury standard case, instructions. On the facts this jury there was sufficient evidence for the guilty. jury find the defendants found three guilty acquitted defendants the fourth defen- upset dant. I would not the verdict.