People v. Byrd

• Decision Date: 07 June 1984
• Docket Number: No. 68126,68126
• Citation: People v. Byrd, 133 Mich.App. 767, 350 N.W.2d 802 (Mich. App. 1984)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sharmon Lee BYRD, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 802

350 N.W.2d 802

133 Mich.App. 767

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sharmon Lee BYRD, Defendant-Appellant.

No. 68126.

Court of Appeals of Michigan.

Submitted Dec. 8, 1983.

Decided April 16, 1984.

Released for Publication June 7, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Kay F. Pearson, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Peter Jon VanHoek, Detroit, for defendant-appellant on appeal.

Before KELLY, P.J., and CYNAR and KINGSLEY, ^* JJ.

PER CURIAM.

Defendant appeals as of right his conviction after jury trial of one count of first-degree criminal sexual conduct (CSC), M.C.L. Sec. 750.520b(1)(d); M.S.A. Sec. 28.788(2)(1)(d), and one count of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(d); M.S.A. Sec. 28.788(3)(1)(d). Defendant was sentenced to concurrent terms of 12 to 20 and 9 to 15 years.

Original charges for CSC and kidnapping were brought against defendant, William Byrd, Leslie Grant (Tank), and Lee Grant. Subsequently, Lee and Leslie Grant entered guilty pleas. Attorney Thomas Frank was retained as counsel for defendant and William Byrd, defendant's brother. Prior to trial Frank raised several motions, including a request for separate trials. The trial court took the severance motion under advisement, but ultimately denied the motion. Attorney Frank then filed a motion to withdraw as counsel for both defendant and William Byrd. The trial court granted Frank's motion to withdraw as counsel for William Byrd and retained Frank as counsel for defendant.

Prior to trial, counsel for William Byrd, joined by defendant's counsel, moved for separate trials. The trial court denied the motion.

The complainant testified that on April 4, 1981, between 7 and 8 p.m. she was hitchhiking from Bay City to Petoskey, standing near the highway at a point where I-75 and M-23 intersect. A dark green car with a loud muffler stopped and picked her up. There were four occupants in the car, who identified themselves to complainant. Lee Grant was the driver. Codefendant William Byrd was the right front seat passenger. Complainant got into the back seat of the car and sat in the middle with defendant on her left and Tank on her right. Complainant stated that she listened and sang along to music on the car radio and smoked cigarettes and marijuana.

As they then drove on, complainant testified that defendant touched her hair and said he was going to make love to her. Complainant said she answered, "No you're not." Desiring at this point to get out of the car, complainant told the men that she had to go to the bathroom. Defendant then said, "you can have it the hard way or the easy way", and he touched her leg and reached under her dress. Complainant testified that she screamed and that defendant and Tank laughed and reached to pull her underwear off. When complainant protested, defendant told Tank to show her a knife. No actual knife was shown at that time. Complainant's underwear was then removed by her or the men, and defendant attempted unsuccessfully to have sexual intercourse with her.

After complainant smoked a cigarette, defendant and William Byrd pulled her legs apart and defendant took a lighter and held it up to her vagina. Defendant then put his finger into her vagina. Complainant testified that Tank and defendant then made her touch their penises with her hand.

At length the group stopped at a school, ostensibly to allow complainant to relieve herself. The driver, Lee Grant, hung onto complainant as they approached the school and descended a flight of stairs to a janitorial area. Complainant testified that Tank and defendant held her legs while Lee had sexual intercourse with her. Complainant screamed, Lee hit her several times and she broke away and ran across a field. She stated that Lee then tackled her, and that Tank and William Bryd held her legs while Lee again had sexual intercourse with her. Defendant and Tank then followed suit. While Tank was having sexual intercourse with complainant, the other men drove up in the car and threw out complainant's clothes. Complainant eventually managed to effect an escape.

The assailants' car became stuck in the mud near the school and was abandoned. Investigating officers located the vehicle and determined that it was registered to Lee Grant. Found near the rear of the school were a pair of underwear, a brown bag containing pajamas, and envelopes and papers bearing the complainant's name. Lee and Leslie Grant were arrested that evening, and William Byrd was picked up two days later.

Defendant turned himself in to the state police, was arrested, and made a statement. In defendant's statement he acknowledged that he was in the car with the Grants and William Byrd and that they picked up complainant while she was hitchhiking. According to defendant's statement, he and complainant laughed and joked with them and defendant held complainant around the neck as she held his penis. Defendant stated that complainant told the men that they could do anything they wanted with her as long as they did not hurt her and that they never threatened her at any time. Defendant stated that he, Tank, and Lee Grant had sex with complainant. Defendant testified that complainant wanted to have sex with him, that he never threatened her or hit her, and that she did not resist.

Defendant first contends that he was denied his due process right to fair trial when the lower court, in supplemental jury instructions, instructed on a theory which had not been charged in the information nor argued at trial. We agree that the supplemental instructions contained a defect, but we do not find cause for reversal.

In People v. Petrella, 124 Mich.App. 745, 762, 336 N.W.2d 761 (1983), we observed that first-degree CSC is in essence an aggravated third-degree CSC. The higher offense requires proof of sexual penetration accompanied by proof that the victim was under 13 years of age, that the victim was under 16 years of age but a member of the same household, that the penetration occurred during another felony, that the defendant was aided or abetted (under certain circumstances), that the defendant was armed, or that the victim suffered personal injury. M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1); Petrella, supra, pp. 762-763, 336 N.W.2d 761. The theory under which the prosecution alleged first-degree CSC, both at trial and in the information, was that defendant was aided or abetted by other persons and used force or coercion to accomplish the penetration.

The court's giving of the original instructions on the charged CSC offenses and their lesser-included offenses was uneventful. However, after the jury had deliberated for a period of time, it asked to be instructed once again as to the elements of those offenses. When the judge repeated his instructions on first-degree CSC, he included an extra element:

"Now, then, also that the defendant caused personal injury to the complainant. Now personal injury means a bodily injury. It also includes any disfigurement, chronic pain, pregnancy, loss or impairment. And mental anguish, by the way, means suffering which occurs at the time of the alleged act."

In explaining the difference between first-degree and third-degree CSC, the court stated "the third has the same elements as this with the exception of one thing. And that is without personal injury." One of the jurors then indicated that he was confused about the term "mental anguish". The trial court explained once again that "mental anguish means suffering which occurs at the time of the alleged act."

Defense counsel made no objection to the supplemental instruction. Where no objection to erroneous instructions is made at trial this Court will not reverse absent a showing of manifest injustice or that the charge omits an essential component of an offense. People v. Biegajski, 122 Mich.App. 215, 227, 332 N.W.2d 413 (1982), lv den. 417 Mich. 1080 (1983); People v. Crawford, 89 Mich.App. 30, 36, 279 N.W.2d 560 (1979); People v. Dixon, 84 Mich.App. 675, 270 N.W.2d 488 (1978), lv. den. 405 Mich. 837 (1979).

Defendant argues that when the trial court added the personal injury element in its supplemental instructions it was providing the jury with an alternate theory for conviction of first-degree CSC. Both in its initial and supplemental instructions, however, the trial court included the aiding and abetting element as an essential element of first-degree CSC. Thus, rather than providing the jury with an alternate theory of convicting defendant of first-degree CSC, the trial court in its supplemental instructions gave the charged offense an added element of personal injury to the complainant. Because the instruction placed an additional burden on the prosecutor, there was no prejudice to defendant. See People v. Love, 91 Mich.App. 495, 503, 283 N.W.2d 781 (1979).

This result obviates any need to consider defendant's challenge to the court's definition of "mental anguish" included in its instruction on personal injury. Compare People v. Gorney, 99 Mich.App. 199, 297 N.W.2d 648 (1980), lv. den. 410 Mich. 911 (1981), with People v. Jenkins, 121 Mich.App. 195, 328 N.W.2d 403 (1982). Review of this corollary issue would have been inappropriate in any event, given defense counsel's failure to object.

Defendant suggests in the alternative that we consider whether the failure of his trial counsel to object to the supplemental jury instructions denied defendant his right to effective assistance of counsel under the "big mistake" standard of People v. DeGraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). However, the failure to object to an instruction which in effect creates an extra hurdle for the prosecution is questionable grounds for an ineffective assistance claim and would, of course, not be an outcome-determinative mistake.

Defendant next...