People v. Gwinn

• Decision Date: 26 January 1982
• Docket Number: Docket No. 48233
• Citation: 314 N.W.2d 562,111 Mich.App. 223
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oddis GWINN, Defendant-Appellant. 111 Mich.App. 223, 314 N.W.2d 562
• Court: Court of Appeal of Michigan — District of US

Page 562

314 N.W.2d 562

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oddis GWINN, Defendant-Appellant.

Docket No. 48233.

111 Mich.App. 223, 314 N.W.2d 562

Court of Appeals of Michigan.

Submitted May 13, 1981.

Decided Nov. 16, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 229] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the people.

Janet Tooley, Asst. State Appellate Defender, for defendant-appellant.

Before MAHER, P. J., and ALLEN and CYNAR, JJ.

CYNAR, Judge.

Defendant was convicted after a three-week jury trial of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, and four counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). After conviction, defendant pled guilty to being a second-felony offender, M.C.L. § 769.10; M.S.A. § 28.1082. On August 7, 1979, defendant received sentences of life for kidnapping, life for armed robbery, from 20 to 40 years for assault with intent to murder, and from 40 to 60 years for each of the four counts of criminal sexual conduct. He appeals as of right. ¹

The charges arose after the complainant told [111 MICHAPP 230] police that she had been taken from her trailer on the night of July 14, 1978, and forced to engage repeatedly in sexual acts. The defense was alibi and mistaken identification.

Defendant was arrested after complainant identified his picture from a book of photographs. Before the preliminary examination, defendant asked that a lineup be held for complainant. Before trial, defendant moved to suppress the photographic identification on grounds of suggestiveness and lack of counsel. These motions were denied.

Trial began on May 22, 1979. The complainant testified at length as follows: on July 14, 1978, at approximately 10 p. m., she was watching television in her living room. Her husband was at work, and her two daughters were in bed. At that point, she heard the screen door of her mobile home open and observed a man come into the trailer. She kept her eyes on him at all times because she was frightened by a gun being pointed at her. Her initial reaction was fear for her children and herself.

She identified the person with the gun as the defendant. Defendant asked complainant if anyone else was in the trailer and specifically asked when her husband got home. She told him to take her money and leave. She gave him $35 and her car keys. After she gave her car keys to defendant, defendant instructed complainant to come with him. In total, defendant was in the trailer for ten minutes.

When defendant entered the trailer, complainant was dressed in slippers, a pink nightgown, and a maroon-colored robe. While in the trailer, defendant wore gloves. The gun which defendant had was a short-barreled weapon.

Once outside the trailer, defendant and complainant[111 MICHAPP 231] entered complainant's automobile. At this time, not only did defendant have a gun, but he had a knife as well. She stated that the reason she entered the car was because she was afraid of defendant because he had weapons.

Once in the automobile, defendant and complainant traveled eastbound on North Union for some distance, then turned right at the intersection of North Union and Flajole Road. They traveled on Flajole Road for a while, turned around, and headed in the opposite direction on the same road. Finally, they turned off Flajole Road onto a dirt road which led to a driveway on property owned by Dow Chemical. Complainant had her eyes on defendant at all times while in the automobile.

Once on the Dow Chemical property, defendant and complainant left the automobile. Defendant then forced complainant to take off her robe and gown. Defendant forced his penis into complainant's mouth. While this act was taking place, the knife was in defendant's hand, and the gun was lying on the ground.

At the completion of this act, defendant required complainant to lay on her back. Defendant then placed his penis in complainant's vagina. While this act was taking place, she felt defendant's knife pressing hard over her chest. She was asked by the prosecutor what her state of mind was when this act was taking place, and she answered that she felt angry, embarrassed, and humiliated, and that she hated defendant. While the sex acts were taking place, the lighting was sufficient for complainant to observe defendant's face.

After withdrawing his penis from complainant's vagina, defendant forced complainant to turn over so that she was lying on her stomach. With his [111 MICHAPP 232] knife around complainant's neck, defendant forced her to submit to anal intercourse. At this point she was asked to describe her mental state. She stated that she was frightened, angry, humiliated, and just felt awful, and that when she tried to push the defendant off her he pushed her head down onto the ground, injuring her nose and mouth.

After completing the anal intercourse, defendant led complainant back to the automobile. Defendant still had his gloves on. The complainant and the defendant got back into the automobile, drove on Flajole Road to Salzburg Road, turned left, and proceeded on that road until turning left on Carter Road. Again, the gun was in defendant's lap, and the knife was pointed at complainant. Again, complainant had her eyes on defendant. As they drove along, she said she wanted to go home. He asked about her children and this frightened her since he also had her house key.

The automobile trip itself took about ten minutes. Once back at the mobile trailer park, complainant got out of the automobile and started to walk along a ditch with defendant. Defendant and complainant then walked behind some trailers and went to a pond covered by some tall weeds.

Once at the pond, defendant and complainant walked to the edge of it. Defendant removed his clothing and forced complainant to do the same. Defendant and complainant entered the water, and defendant forced complainant to wash herself and defendant.

After getting out of the water, defendant forced complainant on her knees. Defendant again placed his penis in complainant's mouth. At this moment she was upset and frightened as to what he would do when he was done. After withdrawing his penis [111 MICHAPP 233] from her mouth, defendant forced complainant to lie down. He again placed his penis in her vagina. When asked what her thoughts were at this point, complainant stated that she hated defendant and wanted to kill him.

After this last act of sexual penetration, complainant noticed defendant's knife on the ground. She wanted to pick up the knife and kill defendant but was afraid she might only wound him and that this would anger defendant. She took the knife and threw it into the pond reasoning that if she did not, defendant might stab her with the knife. If she was stabbed, complainant believed that she would lay there for a long time before she died. Complainant felt that if defendant had only the gun that he would shoot her, and at least somebody would hear it.

After the last act of sexual penetration, complainant was instructed by defendant to go into the water. She further was instructed to continue to walk until she was told to stop. Complainant thought that defendant was going to shoot her in the back.

However, complainant was allowed to come out of the water and get dressed. Defendant and complainant then entered the trailer park again. As they were walking in the trailer park, complainant heard some music, and she prayed that people outside would see her.

After observing some people, complainant decided to make a run for it. As she pulled away from defendant, she screamed for help. She took approximately 12 steps before tripping and falling. As she fell she heard a shot behind her. She then started crawling on her stomach on the grass toward the people. After a man helped her into a trailer where other people were laying on the [111 MICHAPP 234] floor, there was concern about further shooting, and she was concerned about defendant going to her children.

Defendant and complainant had returned to the trailer park after midnight. Thus, complainant was with defendant for over two hours. She was able later to inspect a trailer in the area and to observe that there were scattered indentations of metal in that trailer. During cross-examination she agreed that by far this was the most stressful situation in her entire life.

There were numerous other witnesses who identified defendant as the person who shot at complainant. One of those persons was Richard LaFontaine. He was one of the persons who was sitting in the yard at the time that defendant and complainant approached the group. He noted that the shot pattern on the trailer indicated defendant shot from a shotgun. At the time that he identified defendant at a lineup, he testified that he was sure of his identification of defendant as the person who shot at complainant.

Another person to identify defendant as the person who shot at complainant was Julie Hammond. It was this witness who first observed defendant and complainant. She testified that there was very good lighting in the area and that it was light enough to see defendant's features. She also identified defendant at a lineup.

A third person to identify defendant as the person who shot at complainant was Sharon Boulden. She testified that she was certain of her identification and that there is no doubt in her mind that defendant was the person involved. Her husband, Chris Boulden, was also able to identify defendant both at a lineup and in court as the person who shot at complainant. He testified that he also was certain of his identification.

[111 MICHAPP 235] The record further reveals that after complainant was taken to safety in a trailer the police were called....