People v. Johnson

• Decision Date: 21 January 1988
• Docket Number: Docket No. 91364
• Citation: 164 Mich.App. 634,418 N.W.2d 117
• Parties: PEOPLE of the State of Michigan Plaintiff-Appellee, v. Bruce Lee JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 117

418 N.W.2d 117

164 Mich.App. 634

PEOPLE of the State of Michigan Plaintiff-Appellee, v. Bruce Lee JOHNSON, Defendant-Appellant.

Docket No. 91364.

Court of Appeals of Michigan.

Submitted May 5, 1987.

Decided Dec. 7, 1987.

Released for Publication Jan. 21, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

Patterson, Gruber & Kennedy by Richard O. Milster, Bay City, for defendant.

Before WEAVER, P.J., and KELLY and KIRWAN, ^* JJ.

WEAVER, Presiding Judge.

Following a jury trial, defendant was found guilty of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a). He was sentenced to from ten to fifteen years in prison. Defendant appeals his conviction and sentence as of right. We affirm.

I

Defendant first argues that jury bias denied him a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by the Michigan Constitution, Const.1963, art. 1, Sec. 20, and that the trial court's denial of his motion for a mistrial was an abuse of discretion. We disagree.

The trial court's finding that a juror has the ability to render an impartial verdict may only be reversed for clear abuse of discretion. People v. Roupe, 150 Mich.App. 469, 474, 389 N.W.2d 449 (1986), lv. den. 426 Mich. 863 (1986). Similarly, the trial court's discretionary decision regarding a motion for a mistrial will only be reversed for abuse--error so gross that it deprived the defendant of a fair trial and resulted in a miscarriage of justice. People v. Green, 131 Mich.App. 232, 236, 345 N.W.2d 676 (1983). It is true that a mistrial may be granted where one or more jurors are shown to be biased against a defendant. People v. Johnson, 103 Mich.App. 825, 830, 303 N.W.2d 908 (1981), lv. den. 417 Mich. 962 (1983). However, error requiring reversal is not presumed merely because a juror has been exposed to prejudicial remarks about a defendant made by a stranger or passer-by, but only occurs where actual prejudice can be shown. The mere possibility of prejudice is insufficient. M.C.L. Sec. 768.10; M.S.A. Sec. 28.1033. People v. Hayes, 126 Mich.App. 721, 729, 337 N.W.2d 905 (1983). People v. Dean, 103 Mich.App. 1, 5, 302 N.W.2d 317 (1981).

We find no abuse of discretion, either in regard to the trial court's ruling on jury impartiality or in regard to its denial of the motion for a mistrial. ¹ Since there is no showing that any jurors overheard or learned anything adverse about defendant outside of courtroom testimony, there is no showing of juror prejudice or bias. Hayes, supra. Hence there is no basis for finding that the trial court abused its discretion in its ruling on jury impartiality. Although defense counsel contends that the trial court denied his in-chambers request to individually voir dire the jury, counsel never objected on the record to this denial, and declined to further question the jury when invited to do so. Defense counsel's only request was that the trial court engage in a general inquiry and present the informant, Mrs. Heppner, to jog the memories of the individual jurors. The trial court complied with this request. Hence there is no basis for finding abuse of discretion in the trial court's denial of defendant's motion for mistrial.

II

Defendant also argues that the trial court committed error requiring reversal by reprimanding defendant during cross-examination. This argument is without merit. Trial courts have a duty to control trial proceedings, with wide powers of discretion in fulfilling this duty. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052. People v. Burgess, 153 Mich.App. 715, 719, 396 N.W.2d 814 (1986). Reversal is not warranted unless the judge "pierces the veil of judicial impartiality" by commenting in such a way as to unduly influence the jury and deprive defendant of a fair trial. Id.

The record is clear that the trial court was merely exercising control over the proceedings to see that defendant's testimony did not wander from the facts in repeated unresponsive answers on cross-examination. Defendant had accused the prosecutor's chief witness, the fourteen-year-old boy who was the victim in this case, of having been caught selling marijuana at school, although defendant conceded that he had no basis for this assertion. When defense counsel asked the judge to assist defendant in answering questions in order to prevent the prosecutor from arguing with defendant, the judge admonished defendant in clear and certain terms. This the judge was entitled to do in fulfilling his duty to control the proceedings. Hence his reprimand of defendant did not "pierce the veil of judicial impartiality" and did not deny defendant a fair trial.

III

Likewise without merit is defendant's next argument, which he had previously presented at the motion to quash--that a "kiss" only involves the "lips," that the "lips" are not part of the "mouth," and that therefore at the preliminary examination insufficient evidence of "fellatio" existed to establish "sexual penetration" in order to bind defendant over on a charge of third-degree criminal sexual conduct.

We find this argument unpersuasive. The distinction is meaningless when determining whether oral stimulation of a penis occurred.

The "sexual penetration" defined by the third-degree criminal sexual conduct statute, M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4), includes "fellatio ... or any other intrusion, however slight, of any part of a person's body." M.C.L. Sec. 750.520a(l ); M.S.A. Sec. 28.788(1). Fellatio is defined generally as "oral stimulation of the penis" or "a sexual activity involving oral contact with the male genitals," but does not require an actual intrusion, since the activity is as offensive to the victim and society as is forcible penetration. People v. Camon, 110 Mich.App. 474, 487, 313 N.W.2d 322 (1981), lv. den. 414 Mich. 859 (1982). "Oral" is defined as "relating to the mouth." Stedman's Medical Dictionary 21st edition, p. 1132. "Mouth" is defined as "the system of related organs including the lips." The American Heritage Dictionary, 2d college edition, p. 818.

It is impossible to conceive that, when an adult "kisses" the penis of a fourteen-year old-child, such activity does not constitute "fellatio." Whether "lips" are considered part of the mouth or only related to the mouth, use of the lips on a penis certainly falls within the definition of "fellatio"--"oral stimulation of the penis" or "a sexual activity involving oral contact with the male genitals,"--since lips are, concededly, at least related to the mouth. ² This emphasis on using the "lips" to define kissing a penis as constituting "fellatio" is consistent with the belief that such contact is as offensive to a victim and society as is a forcible penetration. Camon, supra.

Thus the evidence at the preliminary examination indicating that defendant kissed the victim's penis was sufficient to support the amended information charging defendant with fellatio in violation of the third-degree criminal sexual conduct statute. The trial court properly denied defendant's motion to quash.

IV

Defendant next argues that error requiring reversal occurred in the trial court's jury instruction for third-degree criminal sexual conduct. Defendant's argument is essentially the same as that set forth in the previous issue. Defendant argues that, since the "lips" are not part of the "mouth," no sexual penetration occurred because defendant's "mouth" never came in contact with the victim's penis, and therefore the standard jury instruction for third-degree criminal sexual conduct (CJI 20:4:02) was inadequate.

We find no error in the court's instruction. As shown in analysis of the previous issue, contact between defendant's "lips" and the victim's penis was sufficient to establish the sexual penetration needed for fellatio and third-degree criminal sexual conduct. Hence the instruction was not erroneous when stating that the prosecutor must establish beyond a reasonable doubt that defendant's "mouth" came in contact with the victim's penis. To hold otherwise would contravene established law by extracting piecemeal one word from the jury instructions to find error requiring reversal. People v. Wesley, 148 Mich.App. 758, 761, 384 N.W.2d 783 (1985). Although the instruction was not perfect, there is no basis for reversal where the instructions in their entirety fairly presented the issues to the jury and tried sufficiently to protect the rights of the accused. People v. Federico, 146 Mich.App. 776, 785, 381 N.W.2d 819 (1985), lv. den. 425 Mich. 867 (1986). Further, defense counsel never objected to the instruction at trial; hence the alleged error does not require reversal absent a miscarriage of justice. Id., pp. 784-785, 381 N.W.2d 819. M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096. MCR 2.516(C). No miscarriage of justice is apparent here.

V

Defendant next argues that the trial court erred in denying his motion to indorse two witnesses as res gestae witnesses.

Although defense counsel was made aware at the preliminary examination of the existence of the two younger boys who were with the victim when he first separated himself from his friends and approached defendant, the record discloses no attempts by defense counsel at that time to have the boys indorsed and produced by the prosecutor. It was not until after the trial court denied defendant's motion for a mistrial that defense counsel moved to indorse and produce the two boys. Defense counsel argued that the boys could testify about the victim's condition and potential prior inconsistent statements.

When denying the motion, the trial court noted that the victim's condition when he left was not relevant because the victim had left with defendant voluntarily, the incident occurred several hours after the victim and defendant left together, and defense counsel could...