People v. Kelly, Docket No. 7371

• Decision Date: 25 August 1970
• Docket Number: Docket No. 7371,No. 1,1
• Citation: 182 N.W.2d 8,26 Mich.App. 148
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Robert KELLY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 8

182 N.W.2d 8

26 Mich.App. 148

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Robert KELLY, Defendant-Appellant.

Docket No. 7371.

Court of Appeals of Michigan, Division No. 1.

Aug. 25, 1970.

Released for Publication Jan. 4, 1971.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Assn., 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 McGREGOR, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

O'HARA, Judge.

On July 16, 1968, defendant was found guilty by a jury in Recorder's Court for the City of Detroit, the Honorable Geraldine Bledsoe Ford presiding, of the felonies of carnal knowledge of a female with force against her will, M.C.L.A. § 750.520 (Stat.Ann.1962 Rev. § 28.788), and robbery armed, M.C.L.A. § 750.529 (Stat.Ann.1962 Rev. § 28.797). On July 31, 1968, defendant was sentenced to a term of 30 years to life on each charge; the sentences to run concurrently. On April 10, 1969, the sentences were amended to a term of 30 years minimum to 35 years maximum. No motion for new trial having been made, claim of appeal was filed on May 14, 1969.

Defendant was tried for the rape and armed robbery of one Hattie Jeffery. The incident allegedly occurred on August 26, 1967 at the Rio Grande Motel located in Detroit. Mrs. Jeffery identified defendant as the man who burst into her room at the motel at 7:00 A.M. on the above date, ordered her at gun point to put a pillow case over her head, and proceeded forcibly to have sexual relations with her twice. He took some $74.00 in cash and a tape recorder from her upon leaving.

Defendant based his defense upon alibi. He took the stand in his own behalf.

In rebuttal to defendant's testimony, the prosecutor requested that he be allowed to call a witness who might reveal the commission of another crime for the purpose of showing a common scheme, plan or method of operation by the defendant. Cecilia Coleman testified that on March 16, 1968, she and Anderson Johnson were occupying room 29 of the Oaks Motel in the City of Detroit. At approximately 7:30 A.M. a man appeared in their room with gun in hand. He ordered them to put pillow cases over their heads. He locked Mr. Johnson in the bathroom and raped Miss Coleman three times. He then took some $75.00 in cash and Mr. Johnson's watch. Miss Coleman identified defendant as the man who had raped her and identified the gun as looking like the gun defendant had used in the motel room. The gun was received in evidence.

Also among the exhibits received were keys found in the possession of defendant at the time of his arrest. The keys fitted the doors of various rooms in the Oaks Motel, the Rio Grande Motel and the Algiers Motel. One of the keys fit room 29 of the Oaks Motel, the room occupied by Miss Coleman and Mr. Johnson.

Defendant assigns error in the admission of the testimony of the alleged separate offenses, failure to instruct the jury immediately as to the limited purpose for which the testimony was admitted, failure to grant a motion for a mistrial on that ground, and admitting in evidence the gun found on defendant at the time of his arrest.

The testimony of the separate offense was offered to show a scheme, plan or method of operation pursuant to M.C.L.A. § 768.27 (Stat.Ann.1954 Rev. § 28.1050), which rovides:

'In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

After hearing the arguments of counsel out of the presence of the jury, the trial court admitted the testimony, at the same time admonishing the Assistant Prosecuting Attorney that 'if you are talking about a scheme or plan or general device * * * testimony * * * must very closely parallel the testimony of your complaining witness in this case.' The admonishment was well-advised and under the statute, the trial court's ruling was proper.

Similarly, the trial court's denial of defendant's motion for a mistrial was proper. Defense counsel objected that the prejudicial effect of the testimony out-weighed its probative value. In denying the motion, the trial court ruled:

'I would say, without passing on the matter of credibility, which certainly is not my province in this trial, but only mere testimony and comparing the testimony of the witness--again, I don't pass on the matter of credibility--that is a matter for the Jury--but I do find as a matter of fact that the evidence offered by the People does very much comport with the standards set out in the statute in that there is a unique mode of operation, if the witnesses are to be believed. And there are many similarities between the two witnesses. And I think that, as I say, if the witnesses are to be believed, that the operation was so similar that it would qualify. And I understand the matter of prejudice.

'But I would find as a matter of fact that the probative value of the testimony by far outweighs the prejudicial effect. And I do not discount that, Mr. Gardner. But I think that the probative value much outweighs--in terms of what I believe you are trying to achieve--much outweighs the prejudicial effect.'

The ruling reveals sound discretion clearly and properly exercised by the trial court. People v. Shaw (1968), 9 Mich.App. 558,157 N.W.2d 811. There was no error.

The assignment of error as to the inadmissibility of the gun into evidence is without merit. There was testimony that the defendant was armed on both occasions and it might have been reasonably inferred that the weapon was connected with the offenses charged.

However, the assignment of error which raises the question of major significance to our jurisprudence is whether the trial court, upon admitting the testimony of the separate offense, was obligated Instanter to give the instruction as to the limited purpose for which the jury could consider it, irrespective of whether a request was made therefor. This question demands a discussion of the holdings of this court in several prior cases.

These cases are: People v. Askar (1967), 8 Mich.App. 95, 153 N.W.2d 888; People v. Shaw (1968), 9 Mich.App. 558, 157 N.W.2d 811; People v. Camel (1968), 11 Mich.App. 219, 160 N.W.2d 790; People v. Anderson (1968), 13 Mich.App. 247, 163 N.W.2d 793, and People v. Stevens (1970), 25 Mich.App. 181, 181 N.W.2d 31.

The question by its nature divides itself into three necessary subquestions.

First: When testimony of a separate offense is permitted under the statute, must the limiting instruction be given Irrespective of a request therefor?

Second: If the instruction is mandatory irrespective of a request therefor, must it be given Immediately after the testimony is received or may the instruction be included in the general charge at the conclusion of the proofs?

Third: Is there a difference as to when the instruction must be given dependent upon the type of offense with which the defendant is charged?

We begin the examination with Askar which is first in point of decisional time. Askar was a prosecution for sodomy. Relying on two prior Supreme Court decisions, this court held that the statute permitting proof of a separate crime did not apply at all, in this explicit language:

'* * * we hold that the statutory exception ^* to the general rule does not apply to the case at bar.' Askar, supra, 8 Mich.App. pp. 100, 101, 153 N.W.2d p. 891.

This court thereafter undertook a discussion of other exceptions to the 'rule' (without referring specifically to the statute) in prosecutions for 'certain sexual crimes.' Decisionally speaking, again the court held:

'In the case at bar there was no showing by the prosecutor of a proper ground for admitting evidence of prior offenses * * *. Consequently, evidence of prior offenses by defendant was erroneously admitted and a new trial must be ordered.' Askar, supra, pp. 101, 102, 153 N.W.2d p. 892.

However, prior to ruling the evidence inadmissible, the court observed at page 101, 153 N.W.2d at page 892:

'Moreover, once the requisite showing has been made and the evidence admitted, we perceive it to be incumbent upon the trial court, whether or not so requested by the defendant, to instruct the jury immediately that the evidence was admitted for a specific purpose and that they shall consider it only for that purpose.'

Having ruled the evidence inadmissible, what the court had to say about the requirements in a case in which it was admissible must, of course, be regarded as a prime example of Obiter dicta. Thus, it cannot be said that Askar stands for anything so far as instructional requirements are concerned. Reversal could not have been predicated upon any failure to instruct immediately or otherwise, since the court bottomed its reversal on the admission of the evidence itself.

The court later in the opinion again decisionally held:

'* * * this conduct (improper jury argument) vitiated the whole process of trial.' Askar p. 104, 153 N.W.2d p. 893.

Nowhere in Askar did the court speak decisionally to the instructional requirements. It stands as a conviction reversed for erroneous reception of evidence and erroneous jury argument by the prosecuting attorney.

People v. Shaw, Supra, at first reading, seems however to have elevated the Askar dicta to decisional level. Shaw was a prosecution for murder. Again this court makes a precise decisional holding,...