People v. Kelly
| Decision Date | 21 December 1971 |
| Docket Number | J,No. 12,12 |
| Citation | 192 N.W.2d 494,386 Mich. 330 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Robert KELLY, Defendant-Appellant. une Term. |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Leonard Meyers, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
State Appellate Defender by Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.
Before the Entire Bench.
This case places three issues before this Court: 1) whether the trial court erred in admitting evidence concerning prior and subsequent acts of the defendant which the court held illustrated a scheme, plan or system, when such evidence tended to prove the commission of other crimes by the defendant; 2) whether the trial court committed reversible error by failing to instruct the jury immediately as to the limited purpose to which the above mentioned evidence could be put; 3) whether the trial court erred in allowing into evidence the pistol taken from defendant at the time of his arrest.
The defendant John Robert Kelly was charged on March 25, 1968, with unlawful carnal knowledge of a female with force and against her will, and with robbery armed. On July 16, 1968, the defendant was convicted as charged by a jury in Detroit Recorder's Court. The Court of Appeals affirmed these convictions. 26 Mich.App. 148, 182 N.W.2d 8 (1970). This Court granted the defendant's application for leave to appeal on October 27, 1970.
Mrs. Hattie Jeffery testified for the prosecution that on August 26, 1967, at approximately 7:00 A.M., the defendant Kelly burst into her motel room at the Rio Grande Motel in Detroit. The defendant allegedly forced Mrs. Jeffery at gunpoint to place a pillow case over her head and then raped her twice. Mrs. Jeffery testified that the defendant did not wear any clothes when he raped her. The defendant then allegedly fled with a tape recorder and $74 in cash.
The defendant took the witness stand in his own behalf at trial and offered an alibi defense. On cross-examination the defendant was forced to explain over defense counsel's objection how he incurred a gunshot wound in June of 1967. The defendant stated that he had gone to a motel room with a prostitute in June of 1967 and was shot by her boy friend while in the room. The defendant further stated that he was carrying an unregistered concealed weapon, a pistol, at the time. The prosecutor stated that the defendant had been charged with armed robbery as a result of this incident, but that the charges were dismissed when the complaining witness failed to appear.
Miss Cecelia Coleman testified that she had been raped by defendant Kelly on March 16, 1968. She stated that the defendant appeared in a room at the Oaks Motel in Detroit at approximately 7:30 A.M. Miss Coleman and her fiance were sharing the room, and had locked the door before going to sleep. The defendant allegedly forced the boy friend into the bathroom at gunpoint, locked the bathroom door, made Miss Coleman put a pillow case over her head, and then raped her three times. The defendant then allegedly fled with a watch, a check, and about $75 in cash.
The prosecution also introduced into evidence a number of keys and a pistol found in the possession of the 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 in which Miss Coleman was raped and she and her boy friend were robbed.
The defendant contends that the trial court erred in admitting evidence of separate and different crimes for which the defendant had not been convicted. The People contend that such evidence was properly admitted as it tended to show a scheme, plan or system on the part of the defendant.
M.C.L.A. 768.27 (M.S.A. 28.1050) states:
'768.27 Same; proof of intent or motive by similar acts
The validity of this statute has been upheld in a number of cases by this Court. 1
In the instant case, the defendant allegedly entered the victim's motel room, forced her at gunpoint to put a pillow case over her head, and then raped her twice. The rapist in this case wore no clothes while perpetrating the crime. The defendant then allegedly fled with all of the victim's cash and her tape recorder.
The testimony of Miss Coleman reveals a strikingly similar crime. Again, the defendant allegedly entered Miss Coleman's motel room, forced her at gunpoint to put a pillow case over her head, and then raped her three times. The rapist wore no clothes during the rape. The defendant then allegedly fled with cash, a watch, and a check. Clearly this subsequent act of the defendant tends to show a scheme, plan or system on his part in performing these acts.
The defendant was also forced to testify on cross-examination about his altercation in a motel room with a lady and her boy friend. While there was no rape involved in that incident, the facts are sufficient to tend to show a common scheme, plan or system on the part of the defendant within the latitude of cross-examination.
The defendant contends that the trial court erred in failing to give immediately an instruction as to the limited purpose for which the jury could consider the evidence discussed in Part I of this opinion. The defendant argues that such an immediate instruction is necessary even if defense counsel does not request it.
When the evidence to show a scheme, plan or system was introduced, the defense counsel did not request a limiting instruction, and the trial court gave no such instruction. In its final charge, however, the trial court did give very specific instructions to the jury as to what purpose that evidence could serve. The exact language which the trial court used is set out in the footnote below. 2
In People v. Nawrocki, 376 Mich. 252, 136 N.W.2d 922 (1965), the prosecution introduced evidence of other offenses to show defendant's fraudulent scheme, plan or intent. Counsel for the defendant did not request a limiting instruction, and none was given at any time by the trial court. This Court affirmed the defendant's conviction in that case though no instruction was ever given, and stated:
'Defendant did not request any instructions which the court refused to give, nor did defendant call to the trial court's attention any objection to the instructions given.' 376 Mich. 252, 255, 136 N.W.2d 922, 924.
Therefore this Court in Nawrocki required no limiting instruction at all, unless such instruction was requested by defense counsel. In the instant case, a specific limiting instruction was given in the final instructions to the jury, though it never was requested by defendant's attorney.
The defendant cites People v. Askar, 8 Mich.App. 95, 153 N.W.2d 888 (1967) for the proposition that when evidence is admitted to show scheme,...
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People v. Chism
...at all, whether requested or not, Is reversible error.' 26 Mich.App. 148, 159, 182 N.W.2d 8, 13.In the Supreme Court, People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971), Judge O'Hara's dicta was not repeated and the affirmation of the Court of Appeals with this Dicta only noted there was......
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...v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975), or of the identity 6 of the perpetrator of the charged offense, People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971), where the purpose of such evidence is to prove that defendant (and not some other person) committed the act for which he s......
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People v. Duncan
...this case the prosecution testimony in question showed "defendant's scheme, plan or system" and was admissible. People v. Kelly, 386 Mich. 330, 333-335, 192 N.W.2d 494 (1971). LEVIN, Justice (for Albert Duncan and Leon McIntosh, police officers, were convicted of soliciting a bribe 1 and of......
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