People v. Robideau, Docket Nos. 78-520

Decision Date09 January 1980
Docket Number78-521,Docket Nos. 78-520
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert M. ROBIDEAU, Defendant-Appellant. 94 Mich.App. 663, 289 N.W.2d 846
CourtCourt of Appeal of Michigan — District of US

[94 MICHAPP 666] Herbert Robideau in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol, Gen., Donald A. Kuebler, Chief Asst. Prosecutor, for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and CYNAR, JJ.

CYNAR, Judge.

Following a jury trial, defendant was convicted of two counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and of criminal sexual conduct in the first degree, M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). Defendant was sentenced to 261/2 to 40 years on each armed robbery count, and to 20 to 35 years on the criminal sexual conduct count, these three sentences to be served concurrently, as well as to the mandatory two-year consecutive sentence for the felony-firearm violation. Defendant appeals as of right.

The evidence of guilt adduced at trial was overwhelming. The complainant testified that in the early morning hours of March 3, 1977, she and her boyfriend were asleep in front of the TV set in the living room of her home in the City of Flint. At about 12:30 a.m. she heard a knock on the front door. In response to the knock, she opened the [94 MICHAPP 667] door and a man with a shotgun forced his way in. While pointing a shotgun at her and her boyfriend, the first man into the house indicated that they would be killed if they did not do as they were commanded. Moments later, two other men entered. The complainant identified defendant as being the second man to come through her front door. She indicated that defendant was armed with a small pistol.

The robbers demanded money and drugs. They robbed complainant's companion of his wallet and while the first robber in the house held the two victims at gunpoint the two other men proceeded to ransack the house for the next 10 to 15 minutes.

About 15 minutes after the hold-up began, the robbers forced the victims to proceed to the second floor of complainant's home. The robbers directed them to remove their clothes and when this was done, the two were tied up and complainant's friend was ordered into a closet on the second floor of the house. While the other robbers were elsewhere, defendant first forced complainant to perform fellatio on him and some minutes later attempted to have intercourse with her in a closet.

After threatening to kill the victims, the robbers left the house taking with them a large quantity of jewelry, two guns and a clock.

Complainant's companion corroborated her testimony in every major respect.

Due to the alertness of a neighbor, Flint police were summoned when the robbers first entered complainant's home. A number of police officers waited in the street and throughout the nearby area during the course of the robbery. When defendant and his cohorts exited from the home, they were apprehended immediately as they [94 MICHAPP 668] sought to flee in a car owned by defendant but driven by a second robber.

The police officers and the victims both testified at length concerning identification of the various articles of jewelry, the two guns, and the clock stolen in the robbery and taken from the robbers' car immediately upon their arrest.

I. Effective Assistance of Counsel

Defendant initially contends that he was denied the effective assistance of counsel at trial, because of the failure of retained counsel to: (1) subpoena certain defense witnesses; (2) call any expert witnesses to establish defendant's insanity defense; (3) produce certain hospital records; or (4) properly examine or cross-examine witnesses at trial. Defendant's postsentencing motion for a new trial based on a claim of ineffective assistance of counsel was denied. We also reject defendant's contention.

With respect to the failure to subpoena certain witnesses, this allegation is not borne out by the record. Although counsel was not made aware of the existence of these witnesses by defendant until the third day of trial, he was successful in locating them. Indeed, an alleged alibi witness was served and did appear in court, but was not called to testify, following conversation with counsel.

A second "missing" witness, a Dr. Leech, was also located by counsel and found to be dying of cancer and unavailable. Dr. Leech's wife had no knowledge of where his records were stored or if they still existed. Counsel was further unable to discern whether Dr. Leech had even treated defendant for any psychological disorders which may have been germane to defendant's insanity defense. A second psychiatrist testified to seeing defendant and questioning him with regard to [94 MICHAPP 669] earlier treatment. Defendant stated to him that he had in fact previously received psychiatric treatment, but that this had occurred in 1975, two years prior to the commission of the instant crimes. Thus, expert testimony was heard but did not support defendant's insanity claim.

The keeper of the hospital records testified out of the jury's presence that the records defendant sought to have produced were totally unrelated to any psychiatric treatment.

As to the questioning of witnesses, this is properly attributable to trial strategy, and therefore not a basis for a claim of ineffective assistance of counsel. People v. Roberson, 90 Mich.App. 196, 204, 282 N.W.2d 280 (1979). In any event, the questioning by counsel appears to be reasonable strategy under the circumstances.

We therefore conclude that defendant received the effective assistance of counsel under both prongs of the test set out in People v. Garcia, 398 Mich. 250, 264-266, 247 N.W.2d 547 (1976).

II. Double Jeopardy

Next, we address defendant's claim that his convictions for armed robbery, 1 and for first-degree criminal sexual conduct 2 (penetration during the commission of another felony, viz., armed robbery) violate the double jeopardy provisions of both the Federal and state constitutions.

We initially note that defendant's argument that convictions for both armed robbery and felony-firearm are also violative of double jeopardy has been rejected in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793 (1979).

[94 MICHAPP 670] We conclude that the contested convictions violate neither the Blockburger 3 rule, nor the rule most recently reiterated in People v. Martin 4 and People v. Stewart. 5

In applying the Blockburger test, we look to Wayne Prosecutor, supra, for guidance. In order to convict defendant of armed robbery, the prosecution was legally required to prove an assault, a taking, and an intent to permanently deprive the owner of his or her property, all while the defendant was armed with a dangerous weapon, or an article fashioned so as to lead the victim to reasonably believe it was a dangerous weapon. Wayne Prosecutor, supra, 397-398, 280 N.W.2d 793. In order to convict defendant of first-degree criminal sexual conduct under M.C.L. § 750.520b(1)(c), the prosecution was legally required to prove: first, that a sexual penetration occurred, and second, that it occurred under circumstances involving the commission of any other felony. Thus, as in Wayne Prosecutor, the prosecution was not legally required to prove armed robbery, as any proper felony would have sufficed for conviction on the criminal sexual conduct charge.

Nor is there any constitutional infirmity under the standard in People v. Martin and People v. Stewart. As explicated in Wayne Prosecutor, supra, 399-402, 280 N.W.2d 793, the evil sought to be prevented in those cases was multiple convictions and cumulative punishments based on only one occurrence when the statutes involved failed to evidence a clear legislative intent to authorize the same. Such [94 MICHAPP 671] is not the case here. We find a clear expression of a legislative intent to authorize multiple convictions and cumulative punishments in the language of M.C.L. § 750.520b, just as the Court in Wayne Prosecutor, supra, 402, 280 N.W.2d 793, found similar legislative intent expressed in the felony-firearm statute. 6

III. Alleged Instructional Errors

Defendant raises a number of issues related to the giving of, or failure to give, instructions in the instant case.

First, defendant argues that the trial court reversibly erred in instructing the jury that in order to find defendant guilty of criminal sexual conduct in the first degree (CSC I) they must find that a sexual penetration occurred under circumstances involving the commission of an armed robbery. This, according to defendant, placed the jury in a position that forced them to find evidence for a conviction of armed robbery in order to convict defendant of CSC I, and, as such, was erroneous, for any other felony would suffice.

This argument is wanting in merit. The information filed in this case specified only armed robbery as the felony underlying the CSC I count. Proof of armed robbery thereby became an element of the offense, to the exclusion of any other felony. In addition, a failure to so specify the underlying felony(ies) would deprive defendant of his right to notice of the charges against which he would be required to defend.

Next, defendant assigns as reversible error the refusal of the trial judge, upon request, to instruct on the definition of fellatio. The prosecution argues that the trial judge instructed the jury in accordance with the Michigan Criminal Jury Instructions,[94 MICHAPP 672] and that the instructions were complete and proper. We agree with the prosecution.

The trial court instructed the jury in detail on the elements of both first- and second-degree criminal sexual conduct, which instructions adequately reflected the fundamental difference between CSC I and CSC...

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19 cases
  • People v. Robideau
    • United States
    • Michigan Supreme Court
    • 18 Septiembre 1984
    ...of the armed robbery counts was used as the "other felony" to establish the crime of first-degree criminal sexual conduct. 94 Mich.App. 663, 289 N.W.2d 846 (1980). We granted leave to appeal. 412 Mich. 871 Chester Bouknight was convicted of first-degree criminal sexual conduct, two counts o......
  • People v. Wilder
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    • 13 Julio 1981
    ...with the legislative intent if we were to adopt defendant's theory of merger." Id., 440, 274 N.W.2d 811. In People v. Robideau, 94 Mich.App. 663, 289 N.W.2d 846 (1980), the defendant brought a double jeopardy challenge against his convictions of armed robbery and first-degree criminal sexua......
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    • United States
    • Court of Appeal of Michigan — District of US
    • 17 Marzo 1981
    ...in court. Further, the decision not to use the preliminary examination testimony was a reasonable trial tactic, People v. Robideau, 94 Mich.App. 663, 669, 289 N.W.2d 846 (1980), since the prosecutor could have shown that Steven eventually picked defendant's picture three Another assertion i......
  • People v. Brown
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    • Court of Appeal of Michigan — District of US
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    ...but only that the CSC offense occurred under circumstances involving the commission of any other felony. See People v. Robideau, 94 Mich.App. 663, 289 N.W.2d 846 (1980), People v. Ferrell, 99 Mich.App. 609, 299 N.W.2d 366 (1980), citing Wayne County Prosecutor v. Recorder's Court Judge, 406......
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