People v. Howell
| Citation | 238 N.W.2d 148,396 Mich. 16 |
| Decision Date | 27 January 1976 |
| Docket Number | No. 3,J,A,No. 11,3,11 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael HOWELL, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Lee HELZER, Defendant-Appellee. pril Term 1975,une Term 1975. 396 Mich. 16, 238 N.W.2d 148 |
| Court | Michigan Supreme Court |
Page 148
v.
Michael HOWELL, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Richard Lee HELZER, Defendant-Appellee.
Jan. 27, 1976.
Page 149
[396 MICH 19] William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.
Kenneth M. Mogill, Detroit, for defendant-appellant, Michael Howell.
American Civil Liberties Union of Mich., amicus curiae, by Sheridan V. Holzman, Co-Chairman, Lawyers' Committee, Detroit.
Elmer L. Radka, Pros. Atty., Presque Isle County, Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Lee Wm. Atkinson, Howard C. Marderosian, Sp. Asst. Attys. Gen., Dept. of Atty. Gen., Lansing, Mich., for plaintiff-appellant.
State Appellate Defender Office, by Roger L. Wotila, Asst. Defender, Detroit, for defendant-appellee Helzer; Kenneth M. Mobill, Detroit, of counsel.
LEVIN, Justice.
The question is whether a prosecution may be maintained for assault with intent to commit the crime of gross indecency 1 on proof of forced fellatio (Howell) or for committing an act of gross indecency 2 on proof of fellatio with a minor (Helzer) against challenges that the statutes are unconstitutionally vague.
Howell sought dismissal of an information charging him with assault with intent to commit the crime of gross indecency on the ground that the statute is unconstitutionally vague. The trial judge denied the motion. 3 The Court of Appeals denied an application for interlocutory appeal. The people contend that Howell forced the complainant into his automobile and transported her to a private home where he forced her to perform an act of fellatio.
Helzer was jury convicted on evidence that he had taken a 9-year old boy to a secluded place and there stroked his penis and performed fellatio upon him.
We affirm Helzer's conviction and remand Howell for trial.
A statute may be challenged for vagueness on three grounds:
1. It does not provide fair notice of the conduct proscribed.
2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
Page 150
3. Its coverage is overbroad and impinges on First Amendment freedoms. 4
[396 MICH 21] Neither Howell nor Helzer claim that the sexual conduct of which they are accused is constitutionally protected. Nor do they contend that the statutes are overbroad in that they cover conduct which the state cannot constitutionally proscribe. 5
Howell and Helzer claim that the statutes fail to provide notice of what conduct is proscribed and fail to provide judges and jurors with standards to determine whether a crime has been committed.
At the outset we note that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
In deciding whether the term 'act of gross indecency' is constitutionally vague as applied to forced fellatio or fellatio with a minor, it is appropriate to note that the statutes have long been applied in the courts of this state to acts of forced fellatio and fellatio with a minor. Viewed in that context 6 we conclude that while the term 'act of gross indecency' standing alone fails to give adequate [396 MICH 22] notice of the conduct proscribed, neither Howell nor Helzer can be heard to say that they were not forewarned that the conduct they allegedly engaged in was subject to prosecution under the statutes. See Rose v. Locke, --- U.S. ---, 96 S.Ct. 243, 46 L.Ed.2d 185, 190 (1975). 7
Although the term 'act of gross indecency' as applied by the Michigan courts gives adequate forewarning that forced fellatio and fellatio with a minor are proscribed, the construction given the term by the Court of Appeals vests unstructured discretion in the trier of fact to determine whether a crime has been committed.
Page 151
In People v. Carey, 217 Mich. 601, 187 N.W. 261 (1922), this Court, in rejecting a challenge to the sufficiency of a gross indecency information on the ground it did not give the particulars of the act charged, referred to People v. Hicks, 98 Mich. 86, 90, 56 N.W. 1102 (1893), where 'indecent and improper liberties with the person of such child' was defined as meaning 'such liberties as the common sense of society would regard as indecent and improper.' Carey, supra, 217 Mich. p. 603, 187 N.W. p. 262, indicated that a like approach is appropriate in gross indecency [396 MICH 23] prosecutions: 'The gross indecency of the subject forbids' description of the act charged. 8
In People v. Dexter, 6 Mich.App. 247, 253, 148 N.W.2d 915, 918 (1967), the Court of Appeals, on the authority of the Hicks-Carey rationale, rejected the first appellate challenge to the gross indecency statute asserting unconstitutional vagueness:
'Statutes of the indecent liberties or gross indecency type penalize 'conduct that is of such character that the common sense of society regards it as indecent and improper'. People v. Szymanski (1948), 321 Mich. 248, 252, 32 N.W.2d 451, 453. The gross indecency statute is not vague or bereft of guidelines.'
While it no doubt would be the 'common sense of society' to regard as 'indecent and improper' the commission of an act of fellatio with a person under the age of consent or the forcible commission of such an act, there is no consensus regarding fellatio or other sexual acts between consenting adults in private. Some persons regard any ultimate sexual act other than intercourse between married persons for procreation as indecent and improper. However, a substantial segment of society believes it is neither indecent nor improper for consenting adults to engage in whatever sexual behavior they desire. Some would take that view only where the conduct is between persons of the opposite sex, while others would agree only if the persons were married.
There being no 'common sense of society' regarding [396 MICH 24] sexual behavior between consenting adults in private, that test leaves the trier of fact 'free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' Giaccio v. Pennsylvania, 382 U.S. 399, 402--403, 86 S.Ct. 518, 521, 15 L.Ed.2d 447 (1966). Accordingly, we reject the construction of the Court of Appeals in Dexter 9 and construe the term 'act of gross indecency' to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. 10
Page 152
III
Howell has not been tried. On remand, the issue will be whether he forcibly required another person to commit an act of fellatio.
In Helzer's case the jury was instructed without [396 MICH 25] objection that it should determine whether he had taken 'indecent liberties with the private parts or the penis of' the boy.
While the instruction was imprecise in failing to highlight the need to determine that an oral or manual sexual act had been committed, it was, in light of the proofs and the factual issue thereby posed, minimally adequate. The jury no doubt understood that it could convict Helzer only if it found that he had committed the oral or manual sexual act related in the testimony.
Helzer cannot now complain that the jury was additionally instructed to determine whether the 'common sense of society' would regard such conduct to be 'improper or indecent.' It is not contended that other persons charged with the commission of like acts with persons under the age of consent have been acquitted because the trier of fact concluded the common sense of society was not offended by such conduct. The standard applied to Helzer has, we are confident, been uniformly applied.
We turn to the other...
To continue reading
Request your trial
-
People v. Knapp
...A claim that a statute is impermissibly vague "must be examined in the light of the facts of the case at hand." People v. Howell, 396 Mich. 16, 21, 238 N.W.2d 148 (1976), citing United States v. Nat'l Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Further, "[w]hen a ......
-
Burns v. City of Detroit
...raise vagueness and overbreadth concerns under [Const. 1963, art. 1, § 5, and U.S. Const., Am. I]." As noted in People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976): A statute may be challenged for vagueness on three 1. It does not provide fair notice of the conduct proscribed. 2. It c......
-
People v. Lino, Docket Nos. 92352
...... The jury found the defendant guilty of gross indecency between males, M.C.L. § 750.338; M.S.A. § 28.570, under the standard announced by the plurality opinion in People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976). . On appeal, the defendant claimed that (1) there was insufficient evidence that the act took place in a public place, (2) the gross indecency statute is unconstitutionally vague as applied, and (3) the trial court erred by not instructing the ......
-
Stone v. Williamson
...principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.'" People v. Howell, 396 Mich. 16, 20 n. 4, 238 N.W.2d 148 (1976), quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "The void-for-vaguene......