People v. Harris

• Decision Date: 07 June 1984
• Docket Number: Docket No. 63590
• Citation: 133 Mich.App. 646,350 N.W.2d 305
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Lee HARRIS, Defendant-Appellant. 133 Mich.App. 646, 350 N.W.2d 305
• Court: Court of Appeal of Michigan — District of US

Page 305

350 N.W.2d 305

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Lee HARRIS, Defendant-Appellant.

Docket No. 63590.

133 Mich.App. 646, 350 N.W.2d 305

Court of Appeals of Michigan.

Submitted May 3, 1983.

Decided April 16, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 649] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Randy H. Smith, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

[133 MICHAPP 650] Gemuend & Gemuend by Daniel K. Templin, Ionia, for defendant-appellant.

Before HOLBROOK, P.J., and MAHER and JOSLYN ^*, JJ.

HOLBROOK, Presiding Judge.

Defendant was convicted by a jury of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e), the theory of the prosecution being that defendant committed an act of sexual penetration while armed with a weapon. Defendant was sentenced to a prison term of 10 to 15 years. Defendant appealed as of right. Thereafter defendant moved in this Court to remand to the trial court for purposes of permitting a motion for a new trial. The matter was remanded. On September 27, 1982, the trial court heard oral arguments, resulting in its denial of a new trial.

Defendant's conviction arose out of an alleged forcible rape of Leonard Davidson while both defendant and Davidson were incarcerated at the Ionia Reformatory during the Memorial Day riots of 1981. Additional facts, where pertinent, will be included in a discussion of the issues.

Defendant first claims the trial court erred in failing to instruct the jury as to felonious assault. Where defense counsel requests instructions on a "cognage" lesser included offense, refusal to give the requested instruction is error if evidence has been presented which would support conviction of the lesser offense. People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975).

"Cognate" lesser included offenses share overlapping elements with the greater offense and such overlapping elements relate to a common statutory [133 MICHAPP 651] purpose. But the greater and the lesser may each include one or more elements not shared with the other. Ora Jones, supra, pp. 387-390, 236 N.W.2d 461.

The issue then becomes whether felonious assault is a cognate lesser included offense of first-degree criminal sexual conduct under M.C.L. Sec. 750.520b(1)(e). The elements of felonious assault are: (1) an assault; and (2) the use of a dangerous weapon in making the assault. People v. Stubbs, 110 Mich.App. 287, 312 N.W.2d 232 (1981). The elements of first-degree criminal sexual conduct under subsection 750.520b(1)(e) are that the defendant engaged in sexual penetration and that he was armed with a weapon. People v. Anderson, 111 Mich.App. 671, 314 N.W.2d 723 (1981). Having examined the elements, we find said offenses are not "cognate". The lesser does not have overlapping elements with the greater. Using a weapon to assist in making an assault is different from engaging in sexual penetration while armed. Additionally, we find that the two offenses do not serve a common statutory purpose but serve to remedy two distinct problems. See People v. Payne, 90 Mich.App. 713, 282 N.W.2d 456 (1979). We find the trial court's refusal to consider felonious assault as a cognate lesser included offense and instruct accordingly was not error mandating reversal.

Next defendant claims he was denied a fair trial by the trial court's denial of a pretrial motion for change of venue. We disagree. During voir dire, each juror stated that he or she had heard nothing of this particular case, although most jurors had read of the prison riots. Without exception, each juror stated that he or she could render a fair verdict based solely on the evidence presented in court. We find nothing in the record to indicate bitter prejudice or strong community feeling [133 MICHAPP 652] against defendant. People v. Prast (On Reh.), 114 Mich.App. 469, 319 N.W.2d 627 (1982).

Third, defendant claims he was denied his right to a prompt preliminary examination. This claim is without merit. People v. Weston, 413 Mich. 371, 319 N.W.2d 537 (1982), which requires discharge of a defendant not brought for preliminary examination within 12 days of arraignment, is prospective only and inapplicable herein. Moreover, defendant has shown no prejudice by the delay. People v. Haines, 105 Mich.App. 213, 306 N.W.2d 455 (1981).

Fourth, defendant claims he was prejudiced by the prosecution's refusal to supply a police report prior to or during trial. This case does not involve the kind of persistent obstruction and uncooperativeness condemned by the Court in In re Bay Prosecutor, 109 Mich.App. 476, 311 N.W.2d 399 (1981). The record shows only one attempt by defense counsel to obtain a copy of the report, that request being made prior to the preliminary examination. There is no showing that counsel made another attempt to secure a copy of the report until after trial. Further, trial counsel made no effort to obtain court assistance in obtaining the report, nor was this matter addressed to the trial court on remand. We find no error mandating reversal.

Fifth, defendant claims he was denied his right to be present at all critical stages of the proceeding by the two-minute in-chambers conference between counsel and the trial judge. This claim is without merit. See People v. Pulley, 411 Mich. 523, 309 N.W.2d 170 (1981). Nothing in the record reflects that any evidence was received outside defendant's presence nor has defendant shown or demonstrated any prejudice.

Defendant's sixth argument is that he was denied[133 MICHAPP 653] a fair trial by the allowance of certain questions by the prosecution of a witness and the prosecution's argument relating thereto. This claim is without merit. Defense counsel did not object to the questions or arguments or request a curative instruction. Reversal is not required, since a cautionary instruction could have cured any prejudice. People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976).

Defendant's seventh claim is that the trial court applied an incorrect standard to defendant's motion for a directed verdict. We disagree. We find the trial court correctly applied the standard set forth in People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979) and properly denied said motion. People v. Iaconnelli, 112 Mich.App. 725, 317 N.W.2d 540 (1982); People v. Anglin, 111 Mich.App. 268, 284-285, 314 N.W.2d 581 (1981). Moreover, we find no abuse of discretion in denying defendant's motion for new trial on the basis that the verdict was against the great weight of the evidence. Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App. 608, 623, 310 N.W.2d 15 (1981). See People v. Norwood, 70 Mich.App. 53, 57, 245 N.W.2d 170 (1976); People v. Carson, 87 Mich.App. 163, 274 N.W.2d 3 (1978).

Eighth, defendant claims that the trial court abused its discretion in permitting defendant to be impeached by evidence of a 1976 conviction for armed robbery. We find that the trial court...