People v. Laidlaw

• Decision Date: 18 July 1988
• Docket Number: Docket No. 97901
• Citation: 425 N.W.2d 738,169 Mich.App. 84
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall Michael LAIDLAW, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 738

425 N.W.2d 738

169 Mich.App. 84

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall Michael LAIDLAW, Defendant-Appellant.

Docket No. 97901.

Court of Appeals of Michigan.

Submitted April 14, 1988.

Decided June 6, 1988.

Released for Publication July 18, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Gerald M. Lorence, Detroit, for defendant-appellant on appeal.

Before BEASLEY, P.J., and HOOD and TAHVONEN, ^* JJ.

BEASLEY, Judge.

In a nonjury trial, defendant, Marshall Michael Laidlaw, was convicted of eight criminal offenses. These offenses and the sentences imposed are:

(1) Entry without permission, contrary to M.C.L. Sec. 750.115; M.S.A. Sec. 28.310, ninety days.

(2) and (3) Two counts of breaking and entering an occupied dwelling with intent to commit larceny, contrary to M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, not less than ten years nor more than fifteen years in prison.

(4) Assault with intent to commit criminal sexual conduct involving sexual penetration, contrary to M.C.L. Sec. 750.520g; M.S.A. Sec. 28.788(7), not less than 8 1/2 years nor more than 10 years in prison.

(5) and (6) Two counts of first-degree criminal sexual conduct, contrary to M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), not less than fifty years nor more than one hundred years in prison on one count and life imprisonment on the other count.

(7) Breaking and entering an occupied dwelling with intent to commit larceny, contrary to M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, not less than ten years nor more than fifteen years in prison.

(8) Unlawfully driving away an automobile, contrary to M.C.L. Sec. 750.413; M.S.A. Sec. 28.645, not less than three years nor more than five years in prison.

Then, defendant pled guilty to being an habitual offender, second offense, contrary to M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082, after which the life sentence for first-degree criminal sexual conduct was vacated and defendant was resentenced to life imprisonment based on the habitual offender plea. Defendant now appeals as of right, raising four issues.

First, defendant claims that there was not sufficient evidence identifying him as the perpetrator of the offenses. The testimonial record of this crime spree indicates the contrary. These charges arise out of a connected series of incidents that occurred in Bloomfield Hills beginning in the early morning hours of Saturday, August 17, 1985.

Florence Miller testified that she was awakened about 4:00 a.m. by a tall young man leaning over her and whispering, "I've got a gun." Defendant never demanded anything of her, but kept repeating that he had a gun. Miller's response was to shout at him to get out. When her startled husband awoke, the intruder left. When Miller tried to use the phone to call the police, she discovered that the receivers had been removed from various extensions. Although she did not originally notice anything missing from the house, she later identified some towels of hers found in a car that defendant had used. Although Miller did not positively identify defendant as the man, she did testify that defendant looked like the man that was in her home.

Jim Nagy, sixteen years old at the time of the incident, testified that his parents and his brother were away that weekend, but that he and his sister were home. Jim was awakened about 6:26 a.m. by the family dog scratching on his bedroom door. When he opened the door to let the frightened dog in, he saw a man standing at the foot of his parents' bed. Groggy from sleep and not realizing his sister was in the parents' bedroom, he let the dog in and returned to bed. About the time that he began to realize that a stranger was in the house, his bedroom door opened and a man, with tube socks on his hands, entered. Calling Jim by name, the man instructed him to keep his head on the pillow and not to move. Jim stayed in his room until a police officer came to get him. At trial, Jim identified defendant as the person who was in his bedroom that night.

Jim's nineteen-year-old sister, Christine Nagy, testified that she was sleeping in her parents' bedroom that night because it was cooler. That bedroom has a sliding glass door which opens onto a balcony. The glass door was open, but the screen was shut. She was awakened by pressure on the back of her head and shoulders. She then heard a voice tell her that if she did not say anything, she would not be hurt. This statement was repeated several times in a nervous, fast, sort of whispered voice. When she asked him what he wanted, the man responded in vulgar terms that he desired sex. After ascertaining that the home had only one phone line, he took the receiver off the hook in the master bedroom. She could not see much, but said the man was slimy, muddy and smelled bad.

The family dog, which had been sleeping with her, jumped off the bed and left the room. She heard her brother open his door to let the dog in. In answer to the man's question, she informed him that her brother Jim was home. At that point, the man left the room, but returned before she could get a dial tone on the phone.

When the man grabbed at her covers and again indicated his desire, she yanked the covers back up and told him she had herpes. He then asked for money or keys to a car. After she denied she had either, he left the room. Christine then left the house by jumping off the balcony. As she was struggling to her feet, she saw the man looking down at her. She then ran to a neighbor's house for help. Just as she entered the neighbor's house, she saw the same man running in between the houses. The neighbors then called the police.

Another woman testified that her dog awakened her with furious barking between 6:30 and 7:30 a.m. She got up and opened the sliding glass door of her condominium to let the dog out. She then closed the screen door and started toward the bedroom door to use the bathroom down the hall. When she heard the screen door start to open, she turned and saw a man approaching her with his hands in front of his face. Because of the back lighting of the sun, she could not see his face, but saw that he had "loose material" on both of his hands. He told her he would not hurt her and to get on the bed. He then crudely indicated he intended to have sex. He performed cunnilingus on her and then succeeded in penile penetration of her vagina. He asked if she had a car and where he was. After she denied she had a car and told him where he was, he went and opened a closet door, then left towards the front door. At this point, she hit her security panic button. Police officers, already in the area, soon arrived with a police dog, but did not catch anyone in her home. She was taken to a hospital where a sexual assault kit was prepared. When she returned home, she found a pair of tube socks on her bed. She was unable to identify defendant as the man who raped her.

The next place a strange man was seen in the area was at the Kammer residence. At about 7:35 a.m., an unknown man drove the Kammer station wagon out of the driveway. They did not discover the car missing until about 8:30 a.m. when the police asked them to check. They found a set of keys in the car which had been in the Kammer house the night before. Some of the clothing defendant was wearing when he was arrested had been inside the Kammer house before the incident.

Greg Brighton, a Bloomfield Hills police officer, testified that he discovered a disabled car in a church parking lot at the corner of Woodward and Chesterfield about 2:30 a.m. At that time, he observed a pool of vomit near the car, but saw no towels in or near it. The car belonged to Billie Jean Dixon, who had loaned the car to defendant in the afternoon of the previous day. At about 9:00 a.m., another Bloomfield Hills police officer, Russell May, discovered some towels in the vehicle. He later took the same towels out of the police department property room and took them to Miller, who identified two of them as being hers.

Lawrence Jackson, a Bloomfield Township police officer, testified that he was called in to help secure the perimeter of the area being searched for the man who had entered some houses. From his position on the perimeter, he observed a man driving a station wagon out of the Kammer driveway. When he followed the car and turned on his overhead lights, the car turned up the next driveway, accelerated, then stopped abruptly when it crashed into an obstacle. The driver jumped out of the car and ran. Jackson took his shotgun and ran after the man, but did not apprehend him. Instead, he radioed the man's description, location and the direction in which he was running.

Charles Marchessault, another Bloomfield Township police officer, at the request of the Bloomfield Hills police department, arrived in the area with his police dog, Blitz, just after 6:30 a.m. Blitz was tracking the scent near the condominium when Jackson's radio call informed Marchessault where a suspect had been seen. Another officer drove Marchessault and Blitz to a spot closer to the sighting. He saw the suspect running and called to him to halt or he would set the dog on him. Blitz caught up with the running defendant and "indicated" that this was the person whose scent he was tracking.

Charlotte Day, a State Police crime lab scientist, testified that the swabbings taken from the rape victim, as well as her panties, showed the presence of semen. Under microscopic comparison, two foreign hairs, which were found on the victim's bed sheet, corresponded to the known pubic hairs from defendant. Although she could not say with certainty that the two hairs originated from defendant, the two sets could not be distinguished.

On appeal, defendant complains that identification testimony of Jim and Christine Nagy and Miller should have...