Oliphant v. Koehler

• Decision Date: 06 March 1979
• Docket Number: No. 78-1345,78-1345
• Citation: 594 F.2d 547
• Parties: Charles E. OLIPHANT, Petitioner-Appellant, v. Theodore KOEHLER, Warden, Marquette House of Corrections and Branch Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 547

594 F.2d 547

Charles E. OLIPHANT, Petitioner-Appellant, v. Theodore KOEHLER, Warden, Marquette House of Corrections and Branch Prison, Respondent-Appellee.

No. 78-1345.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 8, 1978.

Decided March 6, 1979.

Terance R. Flanagan, Asst. State App. Defender, Detroit, Mich., for petitioner-appellant.

Charles Edward Oliphant, Jr., pro se.

Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., Lansing, Mich., for respondent-appellee.

Before EDWARDS, ^* Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Circuit Judge.

The petitioner Oliphant has appealed from a judgment of the District Court denying his application for a writ of habeas corpus. The District Court's opinion denying the writ is reported in Oliphant v. Koehler, 451 F.Supp. 1305 (W.D.Mich.1978). Oliphant had been convicted by a jury, in the Circuit Court of Ingham County, Michigan on charges of forcible rape, in violation of M.C.L.A. § 750.520; M.S.A. § 28.788, and gross indecency, in violation of M.C.L.A § 750.338b; M.S.A. § 28.570(2) of an eighteen year old white girl who was a freshman at Michigan State University. His conviction followed a second trial on the above charges. He was sentenced on June 2, 1972 to a term of four to five years' imprisonment on the gross indecency conviction and twenty to thirty years' imprisonment on the rape conviction. He served his sentence on the gross indecency conviction and was discharged on February 19, 1975 and is now serving the unexpired sentence on his rape conviction. His first trial resulted in a mistrial when the jury was unable to reach a verdict. His conviction was affirmed by the Michigan Court of Appeals in People v. Oliphant, 52 Mich.App. 242, 217 N.W.2d 141 (1974), and by the Supreme Court of Michigan in People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976).

In his appeal from the denial of the writ of habeas corpus, Oliphant contends that in his trial, the admission of certain evidence under Michigan's "similar acts" statute put him in double jeopardy for the "same" offense and was barred by collateral estoppel, citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Oliphant also asserts an essentially frivolous claim that there was invidious discrimination against him in the exclusion of eighteen to twenty-one year old persons from the Michigan petit jury array. He never raised this question until after the commencement of his second trial.

We affirm. In our opinion, in his conviction for rape there was no double jeopardy or any violation of the doctrine of collateral estoppel. His rape of complainant involved a different person than the young women complaining in the similar acts shown. We are also of the opinion that Oliphant was too late in his challenge to the petit jury array and that he waived it under the rule announced in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

I

The trial in this case took several days. The testimony of the complainant was to the effect that on June 1, 1971, she had dinner with her grandparents and on her way back to the campus during the early evening hours she was window shopping when Oliphant, a black man, approached her indicating that he desired to talk to her about his racial problems. The two engaged in a friendly conversation. Complainant had never met Oliphant before. At Oliphant's invitation she accompanied him to a nearby bar to discuss his "problem." They each had a glass of beer. The two discussed race relations and Oliphant complained of having suffered racial discrimination in complainant's hometown. She sympathized with him. The subject of marijuana was also discussed. Thereafter, at his invitation, complainant agreed to accompany Oliphant in his car to a place where they might find a band and dance. Upon entering Oliphant's two-door Ford Mustang, complainant discovered that the door handle was missing from the inside of the passenger's side door. Once inside the car she could open this door only by rolling down the window and using the outside door latch.

Oliphant drove complainant to one bar which was closed, to a second where she was denied admission because of her age, and finally to a third which did not have a band. Oliphant also stopped at several gas stations and a car wash. Complainant testified that as the evening wore on, she indicated more than once her desire to return to her dormitory. She stated that Oliphant's demeanor remained friendly until after they left the third bar when his friendly attitude drastically changed. At that point he began driving through a part of the city which was unfamiliar to her. Oliphant then asked complainant if he could "screw" her. After she said "no" and also declined to engage in oral sex with him, Oliphant began driving away from the campus and ordered her not to "go for the door." Oliphant then told complainant to sit on the center console, so that they would appear as boyfriend and girlfriend. She testified that he threatened that he had a knife or a gun and would "take care" of her if she did not follow his wishes and he would also injure her parents and sisters. Oliphant then parked the car in a secluded area. By means of further threats he ordered complainant to remove her underclothing, and she complied. Oliphant then engaged in oral sex with his penis in her mouth which made her sick. He then had intercourse with her, lacerating her hymen and causing her excruciating pain and to bleed profusely.

At no time was she beaten or were her clothes torn. No weapon was exhibited. Following the intercourse, complainant replaced her clothing and was driven directly back to her dormitory. Oliphant advised her not to endeavor to prosecute him for rape, stating that she could not prove rape. He further stated that he had a tape recorder in the car although none was ever found. He asked her to sign an agreement not to prosecute, but could not find a pencil. Oliphant also told complainant that he was married and had children. As she was getting out of Oliphant's car, he told her to be sure to get the license plate number of his car. Complainant then returned to her dormitory crying and telling her girl friend that she had been raped. The campus police were called. She was taken to the Olin Health Center of Michigan State University where she was examined by the Center's attending physician. The doctor testified at trial that she had a laceration in her hymen three-quarters of an inch in length; that there was blood in her vagina which he absorbed with sponges and sutured her hymen with two stitches; that by bringing the edges of the hymen together he was able to approximate its original size; it could barely have admitted a finger and was thick; that she had been a virgin; that the laceration, in his opinion, had occurred about an hour before he examined her. The physician also found semen in her vagina. Oliphant, and not his attorney, cross examined the doctor.

After Oliphant dropped complainant off, he proceeded to the East Lansing Police Department. He told officers that he had engaged in sex with a girl that evening. Oliphant stated that when he complained of her body odor she became angry with him. Her alleged body odor, however, did not seem to deter Oliphant from committing the atrocities on her body. He indicated to the police that he feared she might charge him with rape. Shortly thereafter a report of her complaint of rape came in to the police and Oliphant was arrested.

Testifying in his own behalf, ¹ Oliphant admitted that he engaged in acts of fellatio and sexual intercourse with complainant. He claimed, however, that all of these acts were consensual. He also admitted that he was married and had two children. Oliphant's testimony largely corroborated that of complainant regarding the street encounter and initial discussion in the nearby bar. He further corroborated her version of the travels to the three bars, except that he denied that complainant ever insisted on returning to her dormitory. Oliphant also agreed that when he first indicated his desire for sex, complainant refused. Their testimony diverged when Oliphant drove to an unfamiliar section of the city. He testified that she agreed to engage in oral sex, and later intercourse. Finally, Oliphant testified that complainant became angry only when he complained to her about her unpleasant body odor. Oliphant denied that he attempted to orchestrate the events and circumstances of the evening in order to make proof of the alleged rape more difficult. Ordinarily a rapist is not cunning enough to devise such an elaborate scheme as was adopted by Oliphant to escape conviction, and he nearly succeeded as is evidenced by the result of the first trial.

In rebuttal, and in an effort to prove that Oliphant carried out such a planned orchestration of events, the people proposed to call three additional witnesses. Testimony was offered pursuant to Michigan's similar acts statute, which read as follows:

In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant. (M.C.L.A. § 768.27; M.S.A. § 28.1050)

Two of the rebuttal witnesses had been complainants in two prior rape trials involving Oliphant. In both prior trials he had been acquitted. The testimony of these two women is the basis of Oliphant's double jeopardy...