People v. Clark, Docket Nos. 77-2311

• Decision Date: 07 August 1978
• Docket Number: 77-2187 and 77-2399,Docket Nos. 77-2311
• Citation: 270 N.W.2d 717,85 Mich.App. 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie B. CLARK, Harlin Martin, John Henry Young, Defendants-Appellants. 85 Mich.App. 96, 270 N.W.2d 717
• Court: Court of Appeal of Michigan — District of US

Page 717

270 N.W.2d 717

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie B. CLARK, Harlin Martin, John Henry Young Defendants-Appellants.

Docket Nos. 77-2311, 77-2187 and 77-2399.

85 Mich.App. 96, 270 N.W.2d 717

Court of Appeals of Michigan.

Aug. 7, 1978.

Released for Publication Oct. 20, 1978.

[85 MICHAPP 98] Green, Moon, Haldy, Gibbs & McCabe, P.C. by Delbert F. Green and Mark C. McCabe, Flint, for Clark and Young.

Frank L. Talkow, Flint, for Martin.

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

Before J. H. GILLIS, P. J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

On March 7, 1977, Willie [85 MICHAPP 99] Clark, Herlin Martin and John Young were found guilty by a jury of criminal sexual conduct in the second degree, contrary to M.C.L. § 750.520c; M.S.A. § 28.788(3). They were also found guilty of larceny from the person, contrary to M.C.L. § 750.357; M.S.A. § 28.589. On May 3, 1977, each defendant was sentenced from 7 1/2 to 15 years in prison on the criminal sexual conduct conviction and from 6 to 10 years in prison on the larceny from the person conviction. Defendants appeal as of right.

The testimony at trial disclosed the following facts: At approximately 2:30 a. m. on October 13, 1976, three women were sitting in a car outside a lounge in Flint. A blue car containing three black males drove up to the women's car and stopped. The men got out of the their automobile and approached the car in which the women were sitting. One of the men was carrying a gun.

One of the women was pulled from the car and her breasts and genital areas were fondled. At approximately the same time, the other two men molested the two women in the car. One of the women testified that Willie Clark put his hands on her breasts and the other woman stated that Herlin Martin sat down in front of her, unzipped her pants and touched her pubic hair. The woman dragged from the car was able to escape and the three men fled in a blue car taking two of the women's purses. The police were notified and shortly thereafter a blue car was stopped and the three defendants were arrested. The woman that had been dragged from the car subsequently identified John Young as her assailant and Willie Clark as one of the men.

Clark and Martin testified in their own behalf. They stated that they had driven a friend from Indiana to Flint and were on their way home when the police arrested them.

[85 MICHAPP 100] The defendants raise many issues on appeal. The first five issues were raised only by Herlin Martin and we will deal with them first.

I. Did the circuit court erred in denying the motion to quash the information, which charged criminal sexual conduct, second degree, due to the alleged failure of the prosecutor to present evidence that force had been used?

This issue is without merit. The testimony at the preliminary examination was sufficient to bind Martin over to circuit court as both a principal and an aider and abettor under the criminal sexual conduct, second degree, statute. The testimony of the three complaining witnesses indicates that the three men were together and each chose one of the women. One of the men brandished a gun and there is no dispute of the women's nonconsent. One of the women identified Martin as the person who unzipped her pants and touched her pubic hair. Thus, we find no error.

II. Did the circuit court err in denying defendant's motion for a bill of particulars?

The mandatory bill of particulars does not apply in the instant case because the defendants were not charged using the short form informations. People v. Jones, 75 Mich.App. 261, 268-269, 254 N.W.2d 863 (1977), Lv. den. 402 Mich. 822 (1977). The denial of a bill of particulars in cases where the long form of information is employed is reviewable only for abuse of discretion. Jones, supra, p. 269, 254 N.W.2d 863. We find no abuse of discretion.

III. Did the trial court err in denying defendant's motion to sever his trial from his two codefendants?

Generally, defendants do not have a right to separate trials in this state and joinder of defendants [85 MICHAPP 101] for trial normally rests within the sound discretion of the trial court. In moving for separate trials, defendants must clearly, affirmatively and fully show that substantial rights will be prejudiced by joint trials. People v. Gunter, 76 Mich.App. 483, 488-489, 257 N.W.2d 133 (1977). Martin made no such showing. Since no prejudice to Martin's substantial rights was shown, the competing interests of the benefit to the courts, public and administration of justice come into play and severance was properly denied. People v. Moore, 78 Mich.App. 294, 300, 259 N.W.2d 351 (1977).

IV. Did the trial court err in denying defendant's motion to suppress the gun taken from the car at the time of his arrest?

The police had received word that an armed robbery had taken place and to be on the lookout for a small blue car containing three black males. The facts indicate that the police had probable cause to search the vehicle in which Martin was riding and that the search without a warrant was reasonable and justified. People v. Tillman, 59 Mich.App. 768, 772, 229 N.W.2d 922 (1975), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970).

V. Did the trial court err in denying defendant's motion for substitution of attorneys?

On the first day of trial, the court refused defendant's request that he be allowed to substitute counsel. The decision regarding substitution of appointed counsel is entrusted to the trial court's discretion; the substitution should be granted upon a showing of good cause if it would not unreasonably disrupt the judicial process. People v. Eddington, 77 Mich.App. 177, 185-186, 258 N.W.2d 183 (1977). We hold that the trial judge did not abuse his discretion.

Martin also raised two issues in a supplemental brief. Both issues do not require discussion.

The following issue was only raised by Willie Clark:

VI. Did the trial court err in requiring defense counsel to show photographs of both lineups to the complaining witness instead of photographs of only one of the lineups?

The defense counsel failed to object when the court told him to show the witness photographs of both lineups, therefore, he has failed to preserve this issue for appellate review.

The next issue was raised only by Willie Clark and John Young:

VII. Did the trial court err by failing to declare a mistrial in regards to a question asked of a witness by the prosecutor?

The sole question asked by the prosecutor was whether the police officer had an opportunity to talk with John Young. The defense attorney objected and the court did not allow the witness to answer or the prosecutor to ask any more questions. We do not consider the challenged question to be a comment on Young's exercise of his right to remain silent and do not find any error.

The following issues were raised by all three defendants:

VIII. Is the second-degree criminal sexual conduct statute unconstitutionally vague and overbroad?

A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is [85 MICHAPP 103] prohibited and what is not in each particular case. People v. Posner, 79 Mich.App. 63, 71, 261 N.W.2d 209 (1977). We find that the second-degree criminal sexual conduct statute meets the requirements of the Due...