People v. Brashier

• Decision Date: 29 December 1992
• Docket Number: Docket No. 150311
• Citation: 197 Mich.App. 672,496 N.W.2d 385
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Matthew BRASHIER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 385

496 N.W.2d 385

197 Mich.App. 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Matthew BRASHIER, Defendant-Appellant.

Docket No. 150311.

Court of Appeals of Michigan.

Submitted Sept. 25, 1992, at Lansing.

Decided Dec. 29, 1992, at 9:30 a.m.

Released for Publication March 18, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Robert C. Williams, Asst. Pros. Atty., for the People.

Theodore H. Friedman, Southfield, for defendant-appellant on appeal.

Before DOCTOROFF, C.J., and MURPHY, HOLBROOK, WAHLS, HOOD, SAWYER, WEAVER, McDONALD, BRENNAN, MARK J. CAVANAGH, NEFF, REILLY and CONNOR, JJ.

PER CURIAM.

This appeal is considered pursuant to the special panel conflict resolution provisions of Administrative Order No. 1990-6, 436 Mich. lxxxiv (1990), which were continued in effect by Administrative Order No. 1991-11, 439 Mich. xlv (1991). On May 20, 1992, we granted the petition of the Oakland County Prosecutor to convene a special panel of this Court, 194 Mich.App. 413, 487 N.W.2d 479, identifying the question in conflict to be resolved as:

Whether the definition of gross indecency of MCL 750.338; MSA 28.570 is the "common sense of society" definition from People v. Dexter, 6 Mich App 247; 148 NW2d 915 (1967), or the definition in People v. Lino, 190 Mich App 715; 476 NW2d 654 (1991), adopted from People v. Howell, 396 Mich 16; 238 NW2d 148 (1976).

See, also, People v. Emmerich, 175 Mich App 283; 437 NW2d 30 (1989), and People v. Lynch, 179 Mich App 63; 445

NW2d 803 (1989). [194 Mich.App. 413, 487 N.W.2d 479.]

We resolve the conflict in favor of the Dexter definition, because we find that Howell did not overrule binding Supreme Court precedent defining gross indecency.

The definition of gross indecency in terms of the "common sense of society" has a long pedigree. In People v. Carey, 217 Mich. 601, 187 N.W. 261 (1922), an information charged violation of 1915 CL 15511, which prohibited gross indecency between males with language very similar to that at issue here, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570. Citing People v. Hicks, 98 Mich. 86, 90, 56 N.W. 1102 (1893), the Supreme Court held that an information charging gross indecency was sufficient even though it did not describe the particular acts the defendant allegedly committed. The Supreme Court held that the information was sufficient without such description, because "the indelicacy of the subject" explains the lack of a definition of "gross indecency" in the statute, and because a court "will never allow its records to be polluted by bawdy and obscene matters," quoting from Hicks and People v. Girardin, 1 Mich. 90 (1848). In coming to this conclusion, the Court in Carey, supra 217 Mich. at 602-603, 187 N.W. 261, quoted the following language from the opinion in Hicks, supra 98 Mich. at 90, 56 N.W. 1102, which in turn quoted it from a Vermont decision, State v. Millard, 18 Vt. 577 (1846):

The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.

At issue in People v. Szymanski, 321 Mich. 248, 32 N.W.2d 451 (1948), was a statute that made criminal "indecent and improper liberties" by an adult male against a female child. Citing earlier cases construing the same statute, the Supreme Court held that the "statute penalizes conduct that is of such character that the common sense of society regards it as indecent and improper." Id. at 252, 32 N.W.2d 451.

In People v. Dexter, 6 Mich.App. 247, 252-253, 148 N.W.2d 915 (1967), this Court rejected a claim that the present gross indecency statute is unconstitutionally vague. Relying on Hicks, Carey, and Szymanski, the Court held that statutes regarding indecent liberties or gross indecency penalize "conduct that is of such character that the common sense of society regards it as indecent and improper," quoting from Szymanski.

The present controversy may be said to have begun with People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976). In Howell, two defendants argued that the gross indecency statute is unconstitutionally vague. Six justices participated in deciding the case. All six agreed with part I of the opinion, which held that the term "act of gross indecency," standing alone, fails to give adequate notice of the conduct proscribed. However, part I also held that neither defendant could claim that he did not know that acts of forced fellatio or fellatio with a minor were subject to prosecution under the statute, given prior decisions applying the statute to such conduct. The Court therefore affirmed one defendant's conviction and remanded the other defendant for trial.

In part II of the Howell opinion, the construction of the gross indecency statute that defined gross indecency in terms of the "common sense of society" was rejected because it was found to vest unstructured discretion in the trier of fact to determine whether a crime had been committed. Part II of the Howell opinion states that there is no "common sense of society" regarding sexual behavior between consenting adults in private, or indeed regarding many other practices that could be prosecuted as gross indecency. The Dexter interpretation of the statute was rejected, and "act of gross indecency" was construed "to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." 396 Mich. at 24, 238 N.W.2d 148.

Part II of the Howell opinion was supported by only three of the six justices participating. For this reason, panels of this Court continued to follow the Dexter-Carey-Hicks definition of gross indecency. However, in People v. Emmerich, 175 Mich.App. 283, 286, 437 N.W.2d 30 (1989), and People v. Lynch, 179 Mich.App. 63, 66, 445 N.W.2d 803 (1989), panels of this Court followed the definition given in part II of the Howell opinion. Finally, in Lino, a panel of this Court reviewed the split of authority and decided to follow Howell. Lino, supra 190 Mich.App. at 719-720, 476 N.W.2d 654.

Defendant, in separate informations, was charged with four counts of gross indecency between males in violation of M.C.L. Sec. 750.338; M.S.A. Sec. 28.570. Testimony at the preliminary examination showed that defendant would approach juvenile males and ask them if they wanted to earn some money by beating up the codefendant. The juveniles would then accompany defendant to a hotel room where both they and defendant were paid to verbally and physically abuse the codefendant while he masturbated.

Defendant's motion to quash the charges was denied, and he appealed by leave granted. This Court reversed. Unpublished opinion per curiam, decided February 27, 1992 (Docket No. 134343). Judges Holbrook, Jr., and Griffin held that preliminary examination testimony did not establish the offense of gross indecency under the restrictive definition adopted in Lino, which is binding precedent pursuant to Administrative Order No. 1990-6. They therefore reversed and remanded with instructions to the circuit court to quash the counts of gross indecency, but did so only because required to pursuant to Administrative Order No. 1990-6. Judge Marilyn Kelly, concurring in part and dissenting in part, agreed that Lino required reversal, but stated that Lino should be followed not only because it is binding, but also because it was correctly decided.

By an order dated May 20, 1992, we granted the prosecutor's petition to convene a special panel to resolve the implicit conflict.

Although a three to two decision of the Supreme Court is binding on the Court of Appeals and the trial courts until overruled by a later decision of the Supreme Court, plurality decisions in which no majority of the justices participating agree concerning the reasoning are not authoritative interpretations under the doctrine of stare decisis. Negri v. Slotkin, 397 Mich. 105, 109-110, 244 N.W.2d 98 (1976); People v. Anderson, 389 Mich. 155, 170-171, 205 N.W.2d 461 (1973).

Part II of the Howell decision, which supplies the definition of gross indecency adopted in Lino, was supported by only three of the six justices participating. It is therefore a plurality opinion that does not bind this Court.

If Carey defined gross indecency to mean conduct that the common sense of society regards as indecent and improper, then this Court is not free to ignore such binding precedent and choose instead to follow the plurality opinion in Howell. It has been argued that Carey is not binding precedent. At issue in Carey was the question whether an information charging gross indecency was defective because it did not describe the acts complained of. The Supreme Court held that it was not defective, but did so by referring in part to the ...