People v. Harper

• Decision Date: 26 October 1972
• Docket Number: Docket No. 12957,No. 2,2
• Citation: 204 N.W.2d 263,43 Mich.App. 500
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Eddie HARPER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 263

204 N.W.2d 263

43 Mich.App. 500

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Eddie HARPER, Defendant-Appellant.

Docket No. 12957.

Court of Appeals of Michigan, Division No. 2.

Oct. 26, 1972.

Leave to Appeal Denied Jan. 22, 1973.

Released for Publication Feb. 28, 1973.

Charles R. Towner, Towner, Rosin & York, Mount Clemens, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for appellee.

Before HOLBROOK, P.J., and R. B. BURNS and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On April 3, 1970, a jury found the defendant John Eddie Harper guilty of statutory rape pursuant to M.C.L.A. § 750.520; M.S.A. § 28.788. He was sentenced to life imprisonment and appeals as of right.

The victim of the rape testified that on the evening of December 19, 1969, she retired to her room located in the upstairs portion of her parents' home and went to bed. Approximately an hour later, she was awakened by a man sitting on her bed. The man put a knife case to her throat, pulled down the bottoms of her pajamas, and forced her to submit to sexual intercourse.

The prosecutrix stated that she was able to discern the facial features of her assailant since her room was partially illuminated by the lights of a parking lot located next to her home. Moreover, she estimated that during the commission of the crime, the man's face was only five inches away from her.

After committing the act, the attacker ran down the stairway to the ground floor of her home. As he was running out of the front door, he tripped over a box. This noise coupled with the victim's cries for help woke her father, who was sleeping in the living room. He testified that when he awoke and looked out of the window, he saw a man run through the backyard and down a nearby alley. Upon learning of the incident in his daughter's bedroom, he summoned the Romeo City Police. The police were on the scene a few minutes later.

Since it had been snowing earlier in the day, the assailant's tracks were plainly visible in the snow. One set of tracks led to the complaining witness's home. A second set led from her home, through the backyard and down an alley to the next street. Investigating officers testified that both sets of tracks were made by the same person.

After reaching the street, the police were unable to follow the assailant's trail because heavy vehicular traffic had obliterated the tracks. In order to continue the tracking, the city police requested the use of a state police tracking dog.

The tracking dog, a German shepherd, and its handler reported to the scene of the crime about an hour later. The handler testified that the dog followed the assailant's trail across the street. The dog continued to follow the trail which eventually led to a house about three blocks away where the defendant resided with several other persons. The police were met at the door of the house by two residents of the dwelling. Upon discovering that the defendant also lived in the house, the police asked to see him. When the defendant appeared, the tracking dog began to bark and snarl at him. The handler testified that this was the dog's usual reaction when it found the person it was tracking. The dog did not bark at the other residents of the house.

The defendant was arrested and immediately driven back to the prosecutrix's home where she identified the defendant as the perpetrator of the rape.

The issues raised by the defendant on appeal will be treated in the manner presented below.

1. MAY A CRIMINAL DEFENDANT COMPLAIN FOR THE FIRST TIME ON APPEAL THAT THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY WHEN DEFENSE COUNSEL FAILED TO OBJECT THERETO AND EXPRESSED SATISFACTION WITH THE INSTRUCTIONS?

The defendant complains of three specific sentences in the trial court's instructions to the jury. ¹ It is the defendant's position that these sentences confused the jury to such an extent that they could not have known the proper law to apply to the facts of the case. We disagree.

This Court in People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972), recently set forth the guidelines which govern an appellate review of jury instructions. In Spaulding we said:

'When reviewing an instruction to determine whether or not it stated the applicable law or prejudiced the defendant, we will examine the instruction as a whole rather than in small excerpts. People v. Pearson, 13 Mich.App. 371, 164 N.W.2d 568 (1968), and People v. Haggai, 332 Mich. 467, 52 N.W.2d 186 (1952). Moreover, it is well settled that, absent a showing of manifest injustice, criminal defendants seeking a review of allegedly erroneous instructions to the jury must make a timely objection to those instructions in accordance with GCR 1963, 516.2 which provides:

"2. Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

'See also People v. Tubbs, 22 Mich.App. 549, 177 N.W.2d 622 (1970); People v. Keys, 9 Mich.App. 482, 157 N.W.2d 419 (1968); People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967), and People v. Cassidy, 4 Mich.App. 215, 144 N.W.2d 676 (1966).'

An examination of the record in the instant case reveals that defense counsel voiced no objection to the instructions here in question. In fact, he expressed satisfaction with the charge.

Furthermore, after a close reading of the trial court's instructions, we are not convinced that taken as a whole, defendant was prejudiced thereby.

Defendant's assignment of error to the instructions raised here for the first time on appeal is, therefore, without merit.

2. WAS THE VICTIM'S IN-COURT IDENTIFICATION OF THE DEFENDANT RENDERED INADMISSIBLE AS A RESULT OF A PRIOR ILLEGAL CONFRONTATION AND THE RACIAL BIAS OF THE VICTIM?

The defendant argues that the victim's in-court identification of him as the perpetrator of the rape was inadmissible for the reasons that: (1) it was tainted by the prior illegal identification at the victim's home after his arrest; and (2) the victim was biased against defendant's race. Defendant's argument is not well taken.

It is axiomatic that unless a defendant will be unjustly prejudiced, we will not entertain an allegation concerning the improper admission of identification testimony where there was no objection made to the testimony in the court below. People v. Council, 36 Mich.App. 682, 194 N.W.2d 34 (1971); People v. Grenier, 34 Mich.App. 93, 190 N.W.2d 742 (1971); People v. Schram, 23 Mich.App. 91, 178 N.W.2d 93 (1970), leave den. 384 Mich. 833 (1971).

Here, there was no objection to the victim's in-court identification of the defendant. Therefore, we must next turn to the question of whether the defendant was prejudiced by this testimony.

Even assuming arguendo that defendant's rights were violated when he was taken back to the victim's home for identification, ² the victim's subsequent in-court identification will not be deemed inadmissible or prejudicial if it had an independent basis. People v. Maniez, 34 Mich.App. 55, 190 N.W.2d 682 (1971).

The factors to be considered in determining whether or not the subsequent in-court identification had a sufficient independent basis were set forth in People v. Hutton, 21 Mich.App. 312, 326, 175 N.W.2d 860, 866 (1970) as follows:

'And among the facts to be considered in applying this test are: the witness' prior opportunity to observe the alleged criminal act; the existence of any discrepancy between any pretrial description and the defendant's actual appearance; any identification of another person before confrontation; photogenic identification before confrontation; failure to identify the defendant on a prior occasion; and the lapse of time between the alleged act and the confrontation identification.'

Applying the Hutton criteria to the case at hand, it is clear that the victim's in-court identification of the defendant was not colored by the prior identification at the victim's home. The complaining witness testified that she had seen the defendant in the neighborhood prior to the rape. She explained in detail how she was able to closely observe the defendant during the commission of the crime. She had not identified any other person prior to the confrontation at her home. Moreover, less than three hours had elapsed between the commission of the crime and her identification of the defendant.

Defendant further argues that the victim's in-court identification was rendered inadmissible because her alleged bias against the defendant's race. This argument cannot be sustained.

Defendant's assertion amounts to little more than an attack...