People v. Ellis

• Decision Date: 24 February 1989
• Docket Number: Docket No. 93479
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glenn Leroy ELLIS, Defendant-Appellant. 174 Mich.App. 139, 436 N.W.2d 383
• Court: Court of Appeal of Michigan — District of US

Page 383

436 N.W.2d 383

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glenn Leroy ELLIS, Defendant-Appellant.

Docket No. 93479.

174 Mich.App. 139, 436 N.W.2d 383

Court of Appeals of Michigan.

Submitted April 12, 1988.

Decided June 29, 1988.

Released for Publication Feb. 24, 1989.

[174 MICHAPP 141] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

Patricia S. Slomski, Detroit, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and SAWYER and MacDONALD, ^* JJ.

PER CURIAM.

Defendant was charged with kidnapping and first-degree criminal sexual conduct. Following a jury trial defendant was convicted of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Defendant was also found guilty of being a fourth-felony offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Defendant was sentenced to ten to fifteen years in prison.

Charges were brought against defendant based on defendant's actions on December 3 and December 4, 1985. The complainant, defendant's ex-wife, testified that on December 3, 1985, defendant came to her house and engaged in an argument with a visitor. Defendant and complainant were living apart and complainant had filed a divorce action. The police were called and defendant left. Later [174 MICHAPP 142] that evening, the complainant went to defendant's house, at his request, to discuss their marital difficulties. The complainant testified that at one point during the discussion defendant began to choke her and later would not allow her to have her car keys. Finally, she left. Unfortunately, complainant's car broke down. Defendant drove complainant home and indicated that he would pick her up in the morning to drive her to work.

On the way to work the following morning, defendant grabbed complainant by the neck, held a screwdriver to her chest and said "you're going to die." Complainant was then instructed to drive to defendant's home. Once there, she was ordered to take off her clothes. Defendant then provided complainant with a bathrobe. An hour and one-half discussion ensued. Although complainant indicated she wanted to go home defendant instructed her to lie down in his bedroom. Complainant was then forced to engage in fellatio.

Complainant testified that defendant did not threaten her once they were in the bedroom, however she did indicate that she thought defendant would attempt to kill her if she tried to leave. Defendant fell asleep and complainant made her escape. She rushed to the house next door and asked to use the telephone. She looked up the number of Dennis Robydek, defendant's parole officer, in the phone book. The owners of the home, Robert and Elizabeth Hill, and Robydek, all testified that complainant seemed extremely shaken and upset. Over defendant's objection, Robydek testified that complainant told him that she had been through "an ordeal" with defendant. Over defendant's objection the Hills testified to the effect that complainant told them that her husband had tried to kill her and raped her and had put a screwdriver in her chest.

[174 MICHAPP 143] Following complainant's direct examination, a separate record was made outside the presence of the jury. Complainant indicated that she did not want to testify against her husband. She indicated she felt uncomfortable in such a position. She further testified that her son was currently under court supervision and she feared that she would lose custody of her son if she did not testify. She further indicated that she had received a threatening letter from her husband, which indicated that he would attempt to have her prosecuted regarding an incident involving some checks. She further testified to being afraid of how her husband would react to her testimony. Nonetheless, complainant was further required to testify.

The jury was instructed as to kidnapping and the lesser cognate offense of felonious assault. In addition, the jury was instructed as to first-degree and third-degree criminal sexual conduct. Defendant objected to the felonious assault instruction. The trial court denied a request to instruct the jury on assault and battery.

On appeal, defendant first argues that the trial court erred in allowing the testimony related to complainant's statements made to defendant's neighbors and Dennis Robydek. The statements were allowed under the excited utterance exception to the hearsay rule. See MRE 803(2). To qualify as an excited utterance, a statement must arise out of an occasion startling enough to produce nervous excitement and to render the statement spontaneous and unreflecting. It must be made before there is time to contrive or misrepresent, and it must relate to the circumstances of the startling occasion. See People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979).

In this case, the complainant had escaped from her ex-husband only moments before the statements[174 MICHAPP 144] were made. She had been assaulted by her ex-husband shortly before her escape. Both the Hills' and Robydek's testimony was that complainant was badly shaken and nervous. We can find no error in the admission of the testimony.

Defendant next argues that Robydek's testimony impermissibly bolstered the credibility of the complainant when he stated that she told him she had been through an ordeal. Defendant made an objection based on hearsay at trial. Since the objection now argued on appeal was not made at trial it is not preserved for appellate review. In re Davis, 166 Mich.App. 735, 738, 420 N.W.2d 872 (1988).

Defendant next argues that the fourth-felony offender conviction should be reversed because a 1960 guilty plea conviction was obtained without a valid waiver of counsel. A transcript of the 1960 proceeding is in the record. Defendant clearly and unambiguously waived counsel. He was advised that counsel would be provided; he maintained his desire to waive counsel. We find no error.

At trial, defendant objected to having his ex-wife testify, claiming spousal privilege. The statute provides: "A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except ... where the cause of action grows out of a personal wrong or injury done by one to the other...." M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162. The exception here applies. Defendant further argues that defendant's wife should not have been compelled to testify. After defendant's wife's direct testimony at trial, a record was made which indicated that she did not want to testify. In People v. Love, 425 Mich. 691, 391 N.W.2d 738 (1986), four members of the Supreme Court subscribed to the proposition stated in Justice Boyle's dissenting opinion that, where an exception[174 MICHAPP 145] to the prohibition in M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162 applies, the defendant's wife could be required to testify. See Love at 714-717, 391 N.W.2d 738 (Boyle, J., dissenting). Therefore complainant was required to testify.

Defendant next argues that it was error for the trial court to deny his motion for directed verdict on the criminal sexual conduct and kidnapping counts. In reviewing this claim, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). The Michigan Supreme Court has stated that, when the jury is permitted to consider a charge that is not warranted by the proofs, there is always prejudice to defendant because the likelihood of his or her acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. See People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975). Defendant argues...