PEOPLE OF MI V SAM W MILTON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
July 8, 2003
9:15 a.m.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 234080
Wayne Circuit Court
LC No. 00-001788
SAM W. MILTON,
Defendant-Appellant.
Updated Copy
August 29, 2003
Before: Meter, P.J., and Cavanagh and Cooper, JJ.
CAVANAGH, J.
Defendant Sam W. Milton appeals as of right his jury convictions of assault and battery,
MCL 750.81, and misconduct in office, MCL 750.505. We affirm.
Defendant was a lieutenant with the Ecorse Police Department and shift commander at
the police station when a boisterous and uncooperative prisoner was brought to the station for
lockup. While being processed in the squad room, dog feces dropped from the prisoner's pant
leg and, after refusing to clean up the mess, the prisoner was taken to the lockup area and
defendant was notified. Defendant entered the lockup area and demanded that the prisoner clean
up the mess. When the prisoner refused, defendant had the cell door opened, he then grabbed the
prisoner by his shirt, pulled him out of his cell, slammed him into some lockers, and proceeded
to hit him in the face, knocking him to the floor. While the prisoner was lying on his back on the
floor, defendant began striking the prisoner's arms and legs with nun-chucks.
Defendant then picked up the prisoner off the floor by his shirt, pushed him toward the
door of the cellblock, and knocked him down to the floor again with an open-hand strike to the
head. After the prisoner was once again on his feet and moving down the hallway toward the
squad room where the feces was located, defendant knocked the prisoner to the floor for a third
time, with a blow to the face. While the prisoner was on the ground, defendant kicked him in the
abdomen. When the prisoner again refused to clean up the mess, defendant stood on the
prisoner's hand and bounced up and down, causing the prisoner to wince in pain. The prisoner
then crawled into the squad room and was forced to use the shirt he was wearing to pick up the
feces and clean the floor. Defendant then instructed another officer to take the prisoner outside
to the dumpster so that he could throw his shirt and other cleaning materials away. Defendant
also instructed the officer to shoot the prisoner if he ran. Defendant then ordered another officer
to strip the prisoner naked and place him in a cell. Thereafter, the prisoner was stripped naked
-1-
and left in a cold cell where he apparently had a seizure and required emergency medical
attention.
Two officers who witnessed defendant's conduct reported the incident to the department's
deputy chief. Subsequently, defendant was charged with (1) the common-law offense of
misconduct in office under MCL 750.505 for the "mistreatment of [a prisoner] in the custody of
the Ecorse Police Department" and (2) assault with a dangerous weapon (nun-chucks) under
MCL 750.82. Before trial, defendant moved to quash the information regarding the charge of
misconduct in office, arguing that MCL 750.505 expressly barred the charge since the only
incident of misconduct was the assault, which was within the ambit of the assault statutes. The
trial court denied the motion. The matter proceeded to a jury trial and defendant was found
guilty of "misconduct in office, mistreatment of prisoner," and assault and battery, a lesser
offense of felonious assault. Defendant appeals.
Defendant argues that his motion to quash the misconduct in office count should have
been granted by the trial court because the statutory requirements of MCL 750.505 were not met
since defendant's conduct fell within the ambit of the assault statutes. We disagree. Whether
defendant could properly be charged with misconduct in office, as well as assault, presents a
question of law that we review de novo. See People v Coutu, 459 Mich 348, 353; 589 NW2d
458 (1999).
MCL 750.505 provides:
Any person who shall commit any indictable offense at the common law,
for the punishment of which no provision is expressly made by any statute of this
state, shall be guilty of a felony . . . .
Here, it is uncontested that "misconduct in office" by a law enforcement officer is an "indictable
offense at the common law." See Coutu, supra at 353-355. The common-law offense of
misconduct in office has been defined as "'corrupt behavior by an officer in the exercise of the
duties of his office or while acting under color of his office.'" Id. at 354, quoting Perkins &
Boyce, Criminal Law (3d ed), p 543. A charge of misconduct is sustainable when it sets forth
(1) malfeasance, committing a wrongful act, or (2) misfeasance, performing a lawful act in a
wrongful manner, or (3) nonfeasance, failing to do an act required by the duties of the office.
See People v Coutu (On Remand), 235 Mich App 695, 705-706; 599 NW2d 556 (1999), citing
People v Thomas, 438 Mich 448, 458; 475 NW2d 288 (1991), citing Perkins & Boyce, supra at
540.
To convict on the charge of misconduct in office, the prosecutor must prove that the
defendant (1) is a public officer, (2) the misconduct occurred in the exercise of the duties of the
office or under the color of the office, and (3) is corrupt behavior. See People v Carlin (On
Remand), 239 Mich App 49, 64; 607 NW2d 733 (1999). "'[C]orruption,' as an element of
misconduct in office, is used in the sense of depravity, perversion or taint." Perkins & Boyce,
supra at 542. "Pursuant to the definitions [of depravity, perversion, and taint], a corrupt intent
can be shown where there is intentional or purposeful misbehavior or wrongful conduct
pertaining to the requirements and duties of office by an officer." Coutu (On Remand), supra at
706. "If the acts alleged against defendants demonstrate a tainted or perverse use of the powers
-2-
and privileges granted them, or a perversion of the trust placed in them by the people of this
state, who expect that law enforcement personnel overseeing inmates will do so in a manner that
is fair and equitable, they are sufficient to sustain a charge of misconduct in office." Id. at 707.
Here, it is undisputed that defendant was a public officer and that the misconduct against
the prisoner occurred during the exercise of defendant's duties or under the color of the office.
Further, it is apparent that defendant's misconduct was intentional, i.e., resulted from a corrupt
intent, in that his acts "demonstrate a tainted or perverse use of the powers and privileges granted
them, or a perversion of the trust placed in them by the people of this state, who expect that law
enforcement personnel overseeing inmates will do so in a manner that is fair and equitable." Id.
Nevertheless, defendant claims that he cannot be convicted under MCL 750.505 because his
specific misconduct, assault and battery, was also prohibited by the assault statutes and, thus, is
not one "for the punishment of which no provision is expressly made by any statute of this state."
MCL 750.505. However, the misconduct in office charge is the "indictable offense at the
common law, for the punishment of which no provision is expressly made by any statute of this
state." Id. There is no statute that expressly provides punishment for misconduct in office;
therefore, defendant's argument is without merit.
Defendant's reliance on Thomas, supra, is misplaced. In Thomas, the defendant police
officer was charged under MCL 750.505 with a common-law count of obstruction of justice for
making a false statement in a police report. The circuit court quashed that charge on the ground
that it was precluded by the statutory offense of willful failure to uphold the law, MCL 752.11.
Our Supreme Court, quoting People v Davis, 408 Mich 255, 274; 290 NW2d 366 (1980), noted
that "when a 'charge sets forth all the elements of the statutory offense,' a conviction under MCL
750.505; MSA 28.773 cannot be sustained." Thomas, supra at 453. After comparing the
requirements of MCL 752.11 with common-law obstruction of justice, our Supreme Court held
that the defendant could be charged with obstruction of justice because the statute "merely
proscribes the wilful and knowing failure to uphold the law, acts of omission. It does not include
the act of the defendant police officer in this case of falsifying a police report, an act of
commission." Thomas, supra at 455. However, the Court held that the defendant could not be
convicted of obstruction of justice because, given the facts of that case, the defendant's conduct
did not constitute "obstruction of justice." Id. at 455-458.
Here, defendant was charged with misconduct in office and felonious assault, but was
convicted of the lesser offense of assault and battery and misconduct in office. We previously
set forth the necessary elements of misconduct in office, but summarize them as the corrupt
behavior by a public officer in the exercise of his official duties or under color of the office. In
contrast, an "assault is either an attempt to commit a battery or an unlawful act that places
another in reasonable apprehension of receiving an immediate battery," and "[a] battery is the
consummation of an assault." People v Terry, 217 Mich App 660, 662; 553 NW2d 23 (1996).
Obviously, the misconduct in office charge did not set forth all the elements of the statutory
offense of assault and battery, MCL 750.81; accordingly, a charge of misconduct in office was
not precluded.
Further, we reject defendant's claims that his misconduct consisted solely of his assaultive
behavior and that "[t]his result, if allowed to stand, will strike fear in the hearts of police officers
throughout this state." First, defendant was charged with misconduct in office for the
-3-
"mistreatment of [a prisoner] in the custody of the Ecorse Police Department." This
"mistreatment" consisted not just of beating the nonviolent prisoner but of demoralizing,
humiliating, oppressing, and intimidating the prisoner simply because defendant, cloaked in the
power and authority vested in him by the state, was in a position to do so. Defendant's conduct,
aside from the assault and battery perpetrated against the prisoner, was reprehensible and, at the
very least, constituted "misconduct" within the contemplation of the misconduct in office
offense. Therefore, to the extent that defendant is arguing that he is being punished twice for the
same predicate behavior, such claim is rejected. Further, the concern expressed in Coutu (On
Remand), supra at 705, that charges should not be brought under MCL 700.505 if the conduct
charged is more properly charged under another statute, is not present because there is no
specific statute that prohibits the kind of behavior that defendant, a public official, exhibited
against the prisoner.
Second, if our holding "will strike fear in the hearts of police officers throughout this
state" so that no public officer, under color of the office, will feel entitled to behave in the
egregious manner that this defendant did, it would achieve a result that will certainly benefit our
criminal justice system. A badge, although a shield offering protection against the imposition of
criminal and civil liability for legitimate acts attendant to the performance of official duties, is
not a license to perpetrate crimes against, or to terrorize, people during the performance of those
duties. When a misguided police officer abuses or contorts the special privileges and powers
afforded the officer, a public confidence is breached, resulting in a unique harm to society that
threatens our system of justice. See, e.g., Davis, supra at 277. Therefore, defendant's concern
that public officers will be afraid to mistreat prisoners for fear of criminal reprisal accomplishes
a reasonable objective behind criminalizing misconduct in office, and supports its continued
viability. Further, defendant's fear that, in light of this result, "any malfeasance on the part of a
police officer would constitute misconduct in office" is unfounded. Only malfeasance
committed during the exercise of the duties of office or under color of the office and that results
from corrupt behavior constitutes misconduct in office.
Finally, we reject defendant's claim that the trial court's jury instructions on the
misconduct in office charge were deficient. Claims of instructional error are reviewed de novo.
People v Hall, 249 Mich App 262, 269; 643 NW2d 253 (2002). In reviewing claims of error in
jury instructions, we examine the instructions in their entirety. People v Aldrich, 246 Mich App
101, 124; 631 NW2d 67 (2001). "Jury instructions must include all the elements of the charged
offense and must not exclude material issues, defenses, and theories if the evidence supports
them." People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). Even if the
instructions are imperfect, there is no error if they fairly presented the issues to be tried and
sufficiently protected the defendant's rights. Aldrich, supra.
Here, defendant claims that under the instruction given "any misconduct found by the
jury on the part of the Defendant whether it be indictable at common law or not would form the
foundation for a conviction." However, review of the record reveals that the trial court instructed
the jury on the elements of the misconduct in office offense, including that to convict defendant
they must find that (1) he was a public officer, (2) who, in the performance of his official duties
or under the color of his office, (3) acted with a corrupt intent when he performed any act that
was wrongful, or any lawful act in a wrongful manner, or failed to act when he was required to
act. The trial court also explained that "[c]orrupt intent can be shown where there is intentional
-4-
or purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of
office by the officer." Consequently, we conclude that the contested jury instructions accurately
stated the applicable law and that the jury was properly instructed.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.