People v. Khan

• Decision Date: 05 January 1978
• Docket Number: Docket No. 28122
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anwar Ali KHAN, Defendant-Appellant. 80 Mich.App. 605, 264 N.W.2d 360
• Court: Court of Appeal of Michigan — District of US

Page 360

264 N.W.2d 360

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anwar Ali KHAN, Defendant-Appellant.

Docket No. 28122.

80 Mich.App. 605, 264 N.W.2d 360

Court of Appeals of Michigan.

Jan. 5, 1978.

Released for Publication April 6, 1978.

[80 MICHAPP 606] Ward F. McDonough, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. [80 MICHAPP 607] Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and BASHARA and MAHINSKE, JJ.

PER CURIAM.

A Detroit Recorder's Court jury convicted defendant of third-degree criminal sexual conduct. M.C.L.A. § 750.520d(1)(b); M.S.A. § 28.788(4)(1)(b) (sexual penetration accomplished by force or coercion). He appeals.

I.

On August 25, 1975, between 6:00 and 7:00 p. m., the complaining witness, Angela B., her sister Terry and their infant children were looking for an apartment to rent on West Grand Boulevard. There they encountered their brother, Timothy, and the defendant. Defendant offered the women and children a ride home because it had begun to rain. Defendant then suggested that they stop for a drink and that immediately after he would drive them home; the women agreed. After arriving at the bar, defendant soon expressed dissatisfaction with the shortage of available pool tables. At his suggestion, he drove the group (four adults and two children) to another bar. The group did not leave this bar until 1:00 or 1:30 a. m., despite the women's requests for an early departure.

Instead of driving the women and children home, defendant drove the group (which now included[80 MICHAPP 608] another man, one "Little Jesus" or "Jessie") to an address on Chamberlain where defendant and Timothy resided. Defendant parked the car in the alley behind the garage. Timothy unlocked the garage and entered followed by defendant; the rest remained outside.

Upon hearing a conversation, Angela peered through the opening between the garage doors and saw defendant pointing a rifle at Timothy. She began to cry, whereupon defendant dropped the rifle and emerged from the garage with Timothy. On seeing Angela in tears, Timothy summoned an ambulance for her, but when it arrived she said she did not want to go to the hospital; thus, Timothy sent the ambulance away. Defendant then threatened to kill Terry if anything happened to Angela. At this, Terry ran from the scene with her child. Defendant directed "Little Jesus" to follow Terry and encourage her to return. Defendant then told Timothy to take Angela's child and attempt to locate Terry; Timothy complied.

According to the complainant, defendant then pulled her into the garage, flipped the overhead latch on the doors and began to undo her slacks. Upon complainant's resistance, defendant slapped her across her face and neck. He then allegedly forced himself upon her, requiring her to participate in acts of intercourse and fellatio. Unable to reach the door-latch overhead, complainant eventually escaped by suggesting to defendant that she heard someone tampering with his car. As he unlocked the doors, she ran from the garage and grabbed her child from the side of her brother who had since returned and fallen asleep in the car. Thus awakened, the brother chased complainant, eventually catching her a few blocks away. She allowed him to hail her a cab. Shortly before 4:00 [80 MICHAPP 609] a. m., she arrived at her parents' home and tearfully reported the rape to her mother. The next morning, at her father's behest, complainant related the incident to the police.

II.

Defendant's first argument, concerning the prosecutor's nonproduction of certain res gestae and indorsed witnesses, is not properly before us, defendant having failed to file a motion for new trial before the lower court. People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). Although the trial court, at the instance of defendant, took evidence and rendered findings on the failure to produce some of these witnesses, Robinson remains unsatisfied. See People v. Allen, 76 Mich.App. 585, 257 N.W.2d 263 (1977), People v. Ebejer, 66 Mich.App. 333, 239 N.W.2d 604 (1976), and People v. Carpenter, 69 Mich.App. 81, 244 N.W.2d 338 (1976). But see, People v. Schwartz, 62 Mich.App. 188, 233 N.W.2d 517 (1975), People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975), People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975), and People v. Staples, 68 Mich.App. 220, 242 N.W.2d 74 (1976).

III.

Next, defendant claims that the trial court erred in permitting, over defense objection, complainant's testimony regarding defendant's handling of the rifle. Defendant assails the relevance and materiality of the testimony, given the absence of any showing at trial that defendant ever threatened complainant with the rifle or that she noted its presence during the alleged crime.

The argument is not well taken. Third-degree criminal sexual conduct requires sexual penetration[80 MICHAPP 610] accomplished by force or coercion. M.C.L.A. § 750.520d(1) (b); M.S.A. § 28.788(4)(1)(b). This "includes but is not limited to " situations where "the actor overcomes the victim through the actual application of physical force or physical violence" or where "the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats". M.C.L.A. § 750.520b(1)(f)(i) and (ii); M.S.A. § 28.788(2)(1)(f)(i) and (ii). (Emphasis added.)

In the instant case, complainant had witnessed defendant pointing a rifle at her brother, had heard defendant threaten to kill her sister and had received a hard slap ¹ from defendant when she spurned his advances. At the very least, then, the jury could have interpreted the slap as a "(threat) * * * to use force or violence" and it could have considered the availability of the rifle together with defendant's previous threatening words and deeds as justifying a belief in complainant that defendant "ha(d) the present ability to execute these threats". Accordingly, we rule that testimony concerning the rifle constituted relevant and material evidence, People v. Oliphant, 399 Mich. 472, 488-489, 250 N.W.2d 443 (1976), properly admitted in the trial court's discretion. Id. at 490, 250 N.W.2d 443, People v. DerMartzex, 390 Mich. 410, 415, 213 N.W.2d 97 (1973).

IV.

Defendant's third assignment of error is answered by People v. Hooper, 50 Mich.App. 186, 197, 212 N.W.2d 786 (1973), People v. Gant, 48 Mich.App. [80 MICHAPP 611] 5, 8-10, 209 N.W.2d 874 (1973), and People v. Ford, 59 Mich.App. 35, 39, 228 N.W.2d 533 (1975).

V.

Defendant next raises an issue that has sparked considerable controversy among recent panels of this Court, namely, the extent to which M.C.L.A. § 750.520j; M.S.A. § 28.788(10) ² may constitutionally exclude evidence of complainant's previous sexual experiences with persons other than the defendant. See People v. Dawsey, 76 Mich.App. 741, 257 N.W.2d 236 (1977), People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268 (1977), and People v. Patterson, 79 Mich.App. 393, 262 N.W.2d 835 (1977). Relying on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), defendant maintains that the cited provision infringed his Sixth Amendment right to confront adverse witnesses.

In Davis, the United States Supreme Court held that on the facts at bar an Alaska statute and court rule designed to encourage juvenile rehabilitation by shielding a youth's record of delinquency [80 MICHAPP 612] from trial scrutiny must yield to a defendant's right to uncover the potential bias of an adverse witness:

"We do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25 (87 S.Ct. 1428, 1442, 18 L.Ed.2d 527) (1967). Here, however, petitioner sought to introduce evidence of Green's probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed, in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record if the prosecution insisted on using him to make its case is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness." 415 U.S. at 319, 94 S.Ct. at 1112, 39 L.Ed.2d at 355.

In a comparable setting, the Court again resorted to a balancing of competing interests when, in the face of a claim of executive privilege, it refused to quash the Watergate Special Prosecutor's subpoena seeking "demonstrably relevant" evidence:

"(T)he allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, [80 MICHAPP 613] whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal ca...