People v. Laporte, Docket No. 47417

• Decision Date: 03 February 1981
• Docket Number: Docket No. 47417
• Citation: 303 N.W.2d 222,103 Mich.App. 444
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John W. LaPORTE, Defendant-Appellant. 103 Mich.App. 444, 303 N.W.2d 222
• Court: Court of Appeal of Michigan — District of US

Page 222

303 N.W.2d 222

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John W. LaPORTE, Defendant-Appellant.

Docket No. 47417.

103 Mich.App. 444, 303 N.W.2d 222

Court of Appeals of Michigan.

Feb. 3, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 446] H. William Martin, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Linda Berns Wright, Chief Appellate Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and ALLEN and BEASLEY, JJ.

V. J. BRENNAN, Presiding Judge.

On April 24, 1979, defendant was jury convicted of kidnapping and two counts of first-degree criminal sexual conduct contrary[103 MICHAPP 447] to M.C.L. § 750.349; M.S.A. § 28.581 and M.C.L. § 750.520b(1)(d); M.S.A. § 28.788(2)(1)(d), respectively. He was sentenced to from 7 to 20 years imprisonment. He now appeals as of right.

Defendant raises numerous issues on appeal. We discuss them seriatim.

Initially, we address the pivotal issue of complainant's competency to testify at trial. Throughout various stages of the proceeding, defendant attacked the victim's mental and moral capacity to testify truthfully and understandably at trial. ¹ The trial court, while acknowledging that the victim was "not mentally normal", consistently held that she nevertheless was competent to testify.

A determination of the competency of a witness is a matter within the sound discretion of the trial court. People v. Atcher, 65 Mich.App. 734, 238 N.W.2d 389 (1975), lv. den. 399 Mich. 866 (1977); People v. Johnson, 30 Mich.App. 284, 186 N.W.2d 94 (1971), lv. den. 384 Mich. 838 (1971); Mead v. Harris, 101 Mich. 585, 60 N.W. 284 (1894). Even though a witness may be mentally retarded, the trial court's decision to admit the testimony does not constitute reversible error absent an abuse of discretion since the weight and credibility of the testimony is for the jury. Johnson, supra, Harris, supra.

In the instant case, it is generally conceded by all parties, including the trial court, that complainant possessed less than average intelligence. This repeatedly was brought out in the presence of the jury. The trial court had numerous opportunities[103 MICHAPP 448] to listen to her testimony including that given at the separate trial of the codefendant as well as at pretrial hearings and motions. It concluded that she had sufficient mental capacity and sense of obligation to testify truthfully and understandably. Further, the trial court specifically inquired of trial counsel as to the possibility of holding a competency hearing regarding the complaining witness. Trial counsel, having been privy to the competency hearing in the companion case, expressly waived the competency hearing. Upon reviewing the record, we find no abuse of discretion by the trial court.

Defendant next contends that it was error for a police officer to testify that he had prior contacts or discussions with defendant prior to defendant's arrest. Defendant argues that this prejudiced the jury into thinking that defendant had constantly been a lawbreaker. This contention is without merit. When the testimony is placed into context, it is clear that the prosecutor was establishing the identity of the defendant and showing the officer's basis for identification. He elicited no testimony concerning any prior bad acts or criminal activities of the defendant, and therefore the cases cited by defendant are inapposite.

Defendant next contends that the trial court erred in denying his motion for a directed verdict and for a new trial as to the kidnapping charge. He premises this argument on the misplaced notion that complainant's initial consent to voluntarily get into defendant's automobile and drive around constitutes a complete defense to both the kidnapping charge and, more particularly, the requisite element of "asportation".

Consent, if not obtained by fraud nor extorted by duress or by threats, is a complete defense to [103 MICHAPP 449] kidnapping. M.C.L. § 750.349; M.S.A. § 28.581. However, the consent, to be a defense to the crime of kidnaping, must be present throughout the commission of the entire transaction. People v. White, 53 Mich.App. 51, 218 N.W.2d 403 (1974). Initial consent does not necessarily exonerate the defendant from all subsequent acts.

In the instant case, it is clear from the record that the victim initially consented to getting into defendant's automobile for the express purpose of finding her boyfriend. It is equally clear that she consented to being driven to five different locations in an attempt to locate him. However, she testified that, after they could not locate her boyfriend, she asked them to take her home. She repeated this request a number of times. Instead of taking her home as she requested, they drove her out into the country against her will. She testified that she was "screaming and hollering" and that defendant attempted to gag her. On this record, the trial court committed no error in submitting the charge of kidnapping to the jury. Considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the complainant revoked her initial consent when she requested four or five times to be taken home and that the subsequent journey to the country was without her consent. Further, a rational trier of fact could have found that this movement satisfied the requisite element of asportation. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979). Similarly, on this record, it cannot be said that the trial court abused its discretion in denying defendant's motion for a new trial. M.C.L. § 770.1; M.S.A. § 28.1098, Hampton, supra.

Defendant also claims that the prosecuting attorney[103 MICHAPP 450] asserted a prejudicial fact into evidence during his closing argument. In the closing argument, while discussing the elements of first-degree criminal sexual conduct and aiding and abetting, the prosecutor stated:

"There is no question that in fact that there was threatened there was (sic) threats made that she was in fact was forced.

"This was said by the victim. And this was said by Gerald Wells, when he talked to the police."

Gerald Wells was the accomplice who was tried and convicted in a separate trial. There was nothing in evidence as to any admission made by this accomplice to the police. However, defense counsel did not object to this statement. Thereafter, the trial court gave the usual instruction that any statements made by counsel were not evidence. After the jury returned the adverse verdict, the defense counsel moved for a mistrial on the grounds of this statement. The trial court expressed its belief that the instruction to disregard statements by counsel cured the defect if there was one.

In answer to this argument, we quote from People v. Wheat, 55 Mich.App. 559, 565, 223 N.W.2d 73 (1974):

"It is well settled that a prosecutor may not make a statement of fact to the jury which is unsupported by the evidence in the case. However, it is equally well settled that a verdict in a criminal case cannot be set aside unless it affirmatively appears that the error complained of has resulted in a miscarriage of justice. M.C.L.A. 769.26; M.S.A. 28.1096; People v. Green, 7 Mich.App. 346, 354, 151 N.W.2d 834, 838 (1967).

"A prosecuting attorney is properly held to a very [103 MICHAPP 451] high standard of performance. Nevertheless, the courts have recognized that infallibility will never be achieved:

" 'Great care should be taken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a defendant's right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.' People v. Burnstein, 261 Mich. 534, 538, 246 N.W. 217, 218 (1933)."

In the instant case, it is undisputed that the prosecutor acted in good faith. He had just completed the accomplice's trial and apparently misspoke himself as both defendants had given inculpating statements to the police. The defendant's statement, which was properly in evidence, admitted that both he and his accomplice made threats and used force on the complainant. Thus, this brief and apparently inadvertent reference to the accomplice's statement in this lengthy trial cannot be said to have resulted in a miscarriage of justice. Wheat, supra, People v. Thomas, 86 Mich.App. 752, 273 N.W.2d 548 (1978), lv. den. 406 Mich. 971 (1979). Further, had defendant made timely objection, any prejudicial effect could have been eliminated by a curative instruction. People v. Walker, 93 Mich.App. 189, 285 N.W.2d 812 (1979); People v....