People v. Gratton, Docket No. 50775

• Decision Date: 19 June 1981
• Docket Number: Docket No. 50775
• Citation: 107 Mich.App. 478,309 N.W.2d 609
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald GRATTON, Defendant-Appellant. 107 Mich.App. 478, 309 N.W.2d 609
• Court: Court of Appeal of Michigan — District of US

Page 609

309 N.W.2d 609

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald GRATTON, Defendant-Appellant.

Docket No. 50775.

107 Mich.App. 478, 309 N.W.2d 609

Court of Appeals of Michigan.

June 19, 1981.

Released for Publication Sept. 1, 1981.

[107 MICHAPP 480] Janice M. Joyce, Detroit, for plaintiff-appellee.

George C. Edwards, Detroit, for defendant-appellant.

Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). He was sentenced to a term of from 20 to 30 years in prison. Defendant appeals as of right.

[107 MICHAPP 481] On appeal, defendant raises three issues which we address seriatim.

First, defendant contends that the trial court committed error requiring reversal when he cleared the courtroom of spectators during the testimony of the victim, an eight-year-old female. We disagree. The exclusion occurred while the prosecutor was attempting to establish, by the child's testimony, the details of the illicit sexual intercourse. Understandably, the child was nervous, reticent, and lacked the requisite verbal skills to correctly articulate the names of various anatomical organs and acts. The defendant raised no objection to the trial court's decision, rather he limited his request to the victim's mother's being allowed to remain in the courtroom.

The right to complain about an order of exclusion may be waived either expressly or by an accused's failure to object. People v. Smith, 90 Mich.App. 20, 23, 282 N.W.2d 227 (1979), lv. den. 406 Mich 996 (1979). Moreover, we are convinced that spectator exclusion for the limited purpose and limited duration found in the instant case falls within the ambits of extraordinary circumstances recognized in both Detroit Free Press v. Macomb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482 (1979), and Detroit Free Press v. Recorder's Court Judge, 409 Mich. 364, 294 N.W.2d 827 (1980).

The second issue on appeal is whether the trial court abused its discretion by questioning the eight-year-old victim-witness. Defendant, again, failed to raise timely objection and, hence, absent manifest injustice, the issue need not be considered on appeal. People v. Stinson, 88 Mich.App. 672, 278 N.W.2d 715 (1979). However, considering the issue on its merits, there was no error. A trial court may question witnesses in order to shed light [107 MICHAPP 482] on something unclear in the testimony or to elicit additional relevant information. People v. Gray, 57 Mich.App. 289, 225 N.W.2d 733 (1975); People v. Ray, 2 Mich.App. 623, 141 N.W.2d 320 (1966). Moreover, we do not interpret the trial court's solicitude toward the child as being evidence of any judicial partiality. Any plausible detriment to the defendant's case was amply rectified by the trial judge's extensive instructions to the jury that he, at no time, intended to convey his own impression of the merits of the case.

Lastly, defendant asserts error in the trial court's conditional ruling pertaining to impeachment by an unspecified felony. In the instant case, defendant previously had been convicted for criminal sexual conduct involving a minor. Defendant initially raised the issue by a motion to suppress evidence of the conviction if he later chose to testify. The record clearly reveals that the trial court carefully considered and balanced the countervailing factors to be considered in making such a determination. The trial court expressed acute awareness that the similarity of the offense might prevent the defendant from testifying in his own behalf. However, and dispositive, the court and both attorneys acknowledged that the motion was premature, the ruling was not conclusive, and defense counsel, sua sponte, stated that he would raise it again. He failed to renew the motion and now cannot predicate error on the conditional ruling. People v. Taylor, 98 Mich.App. 685, 689, 296 N.W.2d 631 (1980).

Relatedly, the similarity of the offense did not automatically preclude its admissibility for impeachment purposes. It is only one factor to be considered. People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979); People v. Jackson, 391 Mich. 323, [107 MICHAPP 483] 217 N.W.2d 22 (1974). The trial court's statement that it would allow impeachment by the specified criminal sexual conduct conviction should defendant offer testimony as to his "virtuous" behaviour with children is an indication that, at this point, the trial court deemed that the probative value of admitting the evidence on the issue of credibility would outweigh its prejudicial effect. People v. Jones, 98 Mich.App. 421, 296 N.W.2d 268 (1980).

However, assuming arguendo that there was any error as to the admissibility of the prior felony conviction, it was harmless. People v. Moseley, 94 Mich.App. 461, 465, 290 N.W.2d 39 (1979); People v. Stein, 90 Mich.App. 159, 282 N.W.2d 269 (1979). We cannot envision a single juror voting to acquit even if this alleged error had not occurred.

Affirmed.

BRONSON, Judge (concurring).

I write separately because I disagree with the majority's analysis concerning the trial court's ruling pertaining...