People v. Jordan, Docket No. 6964

• Decision Date: 27 April 1970
• Docket Number: No. 1,Docket No. 6964,1
• Citation: 178 N.W.2d 659,23 Mich.App. 375
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter JORDAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 659

178 N.W.2d 659

23 Mich.App. 375

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter JORDAN, Defendant-Appellant.

Docket No. 6964.

Court of Appeals of Michigan, Division No. 1.

April 27, 1970.

Released for Publication July 24, 1970.

Carl Levin, Arthur J. Tarnow, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN. P.J., and T. M. BURNS and O'HARA, ^* JJ.

T. M. BURNS, Judge.

Defendant Walter Jordan was convicted following a jury trial of rape, M.C.L.A. § 750.520 (Stat.Ann.1954 Rev. § 28.788). Defendant brings this appeal as of right.

We have examined the record in great detail and the following appear to be the facts of the case. The complainant, Barnie Bracey, a nine year old girl, lived in an apartment with her mother in the city of Detroit in December, 1966. Defendant, his wife and stepdaughter, who is the same age as complainant, lived on the same floor of the building, across the hall from the Bracey apartment.

Complainant testified that on Saturday, December 17, 1966, the defendant called her on the telephone while she was watching the 'Tom and Jerry Show' on television. ¹ Complainant testified that defendant then knocked on her apartment door and was admitted. She stated that after defendant removed a pencil and paper from her hands, he carried her into the bedroom, where, after she removed her pajamas and he his trousers, the defendant allegedly carnally knew her. She testified that when he finished there was 'snot' running down her legs. Defendant allegedly then took out a white handkerchief with blue stripes which he used to wipe the 'snot' off her thighs. He then allegedly threatened to 'whip' her if she told anyone, and promised to give her some candy if she did not. He left the apartment briefly, returned with some chocolate drops, and left again.

Complainant's testimony was extremely vague at trial regarding the chronology of events. Barnie's mother who was working elsewhere during the time of the alleged attack, testified, however, that she received a call from Barnie at approximately 3:45 p.m. and that the girl stated that defendant had attacked her. The investigating officers also testified that when they interviewed the complainant they were told the incident took place around 3:30 p.m. The police were called about 4:45 p.m. and Barnie was taken to the hospital where medical tests for sperm were immediately performed. These tests proved positive. ² The police returned to the apartment building and arrested defendant at approximately 5:30 p.m. At the time of his arrest, defendant had in his possession a white handkerchief with blue stripes which had certain unidentified stains. No attempt was made to identify the stains prior to trial.

From the moment of his arrest, defendant has consistently and vehemently denied any guilt at every stage of the proceedings. He testified that during the morning of December 17, 1966 he and his wife had gone out to get the car washed and stopped by Kresges to pick up an organ for his step-daughter's birthday which was the next day. After returning home at about 11:30 a.m., his wife made lunch. Then he, his wife and stepdaughter went shopping for Christmas presents. He stated they left the apartment at about 12:30 p.m. and did not return until approximately 5 p.m. He denied ever phoning complainant or seeing her that day.

Defendant's testimony was corroborated by his wife, who outlined the day's activities in substantial detail. She testified as to which stores were patronized and what items were purchased. In support of their testimony, defendant's wife produced sales slips, dated December 17, from the stores in which they had shopped. There was also testimony that defendant's wife was not licensed to drive and that, therefore, defendant of necessity went along with her to drive her to and from the stores. Defendant's stepdaughter also testified, describing the same series of events.

Defendant's alibi was further supported by the custodian of the apartment building. The custodian testified that he spent the entire afternoon, until 4:30 p.m., painting on the third floor of the building in an area which gave him a complete view of the building courtyard and driveway. He stated that it would not have been possible for anyone to either enter or leave the building during this period without being seen by him. He testified that he saw defendant leave the building at approximately 12:30 p.m. with his wife and step-child, get into his car and drive away. He further testified that he saw defendant, his wife, and step-child return late in the afternoon after the police had arrived. ³

The record below includes testimony throwing substantial doubt on complainant's credibility. Defendant's wife, the apartment caretaker, two other tenants and one of complainant's classmates all testified that complainant would often approach strange men and say such things as 'If you want to be my daddy, you give me a dime and you can be my daddy.' One tenant testified:

'I have brought Barnie off Twelfth Street twice. Once around on Twelfth and Philadelphia with little boys. The only little girl with all those boys, begging for dimes. And it is the most vulgar language I have ever heard. I spoke to the mother about it, and the mother didn't seem to believe me. And Barnie told her it wasn't true right to my face.

'And another time I saw her on the east side of the apartment building going toward Twelfth. There is a stairwell there on that side of the apartment. And here was a boy around ten or eleven years old. He was a large boy. He had picked Barnie up and had her dress raised up over her abdomen.'

On cross-examination complainant admitted rubbing her body against an exterminator man and asking for pennies and dimes and that he 'be her daddy.'

There was testimony from her mother and other witnesses that Barnie had had trouble with a teacher and had taken a knife to school to try to kill him. There was also testimony that she would throw temper tantrums upon being corrected. Several witnesses testified that complainant often lied. Further, Barnie's mother said that Barnie had a psychiatric examination after the attack on the teacher. This line of questioning was not pursued, however, to determine what conclusions, if any, were drawn from the examination.

Our review of complainant's testimony indicates that her memory was highly selective. For example, she remembered both her home phone number and the phone number at her mother's employment, although her call after the alleged incident was the only time she had ever called her mother at work. She did not remember, however, the name of her teacher or the fact that she tried to kill him. She also remembered the exact date of the crime at trial, a year and a half later. Yet, although complainant stated at trial that defendant had done 'the same thing' on previous occasions, she had no idea of when the previous events took place or how frequently.

There was also testimony by defendant, his wife and three disinterested witnesses that on various occasions when they had visited the Bracey apartment prior to the alleged incident, they had seen a man who was not complainant's mother's husband, lying on the bed or walking around in just his underwear. They said that Barnie was also present at these times. The apartment custodian testified that this same man paid the rent for the Bracey apartment. Barnie's mother denied all of this.

It appears from the record that defendant's wife often babysat for complainant, that complainant was often at defendant's apartment playing with his step-daughter, and that she had stayed there overnight on occasion. Also, when Barnie's mother worked, defendant and his wife usually took Barnie with them on errands or shopping trips. However, on the day in question, when the complainant's mother was informed that defendant and his wife would be away shopping during the day, she instructed defendant's wife that Barnie was to stay home. Defendant's wife testified that just before they left at 12:30 p.m., she went to the Bracey apartment and told Barnie that she would have to stay home and that Barnie was angry at not being allowed to accompany them.

In addition, the record indicates that some time before the incident in question, while Barnie was visiting defendant's stepdaughter, defendant gave the complainant a spanking in an attempt to end one of her temper tantrums.

Finally, there is substantial evidence by a number of witnesses who knew defendant, his family, complainant and her mother that defendant had an excellent reputation in the apartment and among his acquaintances for truth and veracity. As one witness stated: 'All I know of this gentleman is good.' The same witness indicated that complainant and her mother did not enjoy similarly good reputations.

The investigating officers testified that defendant was cooperative at all times. The arresting officer stated that after defendant was warned of his constitutional rights, he said 'he didn't do it; and that he was glad to go in because he wanted to get it straightened out.'

On appeal, defendant asserts that there is insufficient evidence to support his conviction. The conviction rests on three things: the complainant's testimony, the positive results of the medical examination and the fact that defendant possessed a white handkerchief with blue stripes when he was arrested, which was virtually identical to that described by complainant. There is also the testimony of complainant's mother and the investigating police officers to the effect that complainant told substantially the same story on the day of the alleged incident as she did a year and a half later at trial. If the complainant's testimony is believed, there is...