People v. Lewis, Docket No. 92282

• Decision Date: 15 October 1987
• Docket Number: Docket No. 92282
• Citation: 413 N.W.2d 48,162 Mich.App. 558
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mann LEWIS, Jr., a/k/a Man Lewis, Jr., a/k/a Junior Lewis, a/k/a Main Lewis Wilkins, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 48

413 N.W.2d 48

162 Mich.App. 558

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mann LEWIS, Jr., a/k/a Man Lewis, Jr., a/k/a Junior Lewis a/k/a Main Lewis Wilkins, Defendant-Appellant.

Docket No. 92282.

Court of Appeals of Michigan.

Submitted March 19, 1987.

Decided July 22, 1987.

Released for Publication Oct. 15, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

State Appellate Defender by Derrick A. Carter, for defendant on appeal.

Before: MacKENZIE, P.J., and BEASLEY and QUINNELL, ^* JJ.

PER CURIAM.

Defendant, Mann Lewis, Jr., was convicted by a jury of first-degree criminal sexual conduct, contrary to M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). Defendant later pled guilty to being an habitual offender, fourth offense, contrary to M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. On May 4, 1983, he was sentenced to serve not less than fifteen nor more than thirty years in prison, the sentence to run consecutive to a recently imposed felony sentence in another county. Defendant made a delayed application for leave to appeal, which this Court denied. However, on application for leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted. ¹ Defendant raises six issues, each of which we address in turn.

Defendant's first claim of error stems from the continuance of the preliminary examination. The original preliminary examination was held on November 24, 1982, within the twelve-day period required under M.C.L. Sec. 766.4; M.S.A. Sec. 28.922. The only witness at this examination was the twelve-year-old complainant, who stated that she did not recognize defendant as being the man who had sex with her and even went so far as to refuse to look around the courtroom to see if she saw the perpetrator there. She expressed her unwillingness to come to court, using profanity. She said that the perpetrator had different hair and a different complexion than did defendant, but did say that she knew the perpetrator as "Junior." The prosecutor said that, "to put it mildly," he was surprised by the complainant's testimony and asked for a continuance so that he could bring in other witnesses. He also said that he believed that defendant and others had been intimidating and threatening the complainant to keep her from testifying. Defense counsel asked for a dismissal of the charge on the ground that there was no identification of defendant as the perpetrator. The magistrate said that there were other eyewitnesses who could testify and that this witness was "not about to testify very much about who the individual is." The magistrate declined to dismiss the charge without hearing further testimony and continued the examination to December 7, 1982. The magistrate also substantially reduced defendant's bond from $50,000 to $5,000.

On December 14, 1982, the magistrate informed defendant that his counsel and the prosecutor had agreed on another date for the continuation of the preliminary exam. The examination was resumed on January 14, 1983. There, the complainant identified defendant and stated that she had been intimidated and was tired of lying. Her friend, Angie Gettis, also twelve years of age, who was driving with the perpetrator and complainant prior to the incident, did not identify defendant. The magistrate concluded that complainant had been lying during her earlier testimony and was telling the truth at the later examination and, consequently, bound defendant over for trial.

Defendant argues that the magistrate abused his discretion in granting the continuation of the preliminary examination. ² M.C.L. Sec. 766.7; M.S.A. Sec. 28.925 provides that a magistrate may not grant a continuance of a preliminary examination except for good cause shown. The same statute provides that a magistrate may not continue an examination by consent of the prosecution and defense unless "it shall clearly appear by a sufficient showing to the magistrate to be entered upon the record that the reasons for such consent are founded upon strict necessity and that the examination of the cause cannot then be had, or a manifest injustice will be done." "Good cause shown" has been interpreted to include the unavailability of prosecution witnesses because they were needed in federal court, because they were police officers on vacation, ³ or because they were hospitalized. ⁴ Further, the failure of the magistrate to place upon the record the reasons for delay establishing "good cause" is harmless error where the reasons and their sufficiency are self-evident from the record. ⁵

It is obvious from the record that the prosecutor expected to need to present only the complainant as a witness and was greatly surprised by complainant's recalcitrance. While it probably would have been better for the prosecutor to have had his other witnesses available at the first preliminary examination, the unexpected change in complainant's testimony constituted good cause for a continuance. The magistrate did not err in granting the continuance.

Defendant also complains that the continuance caused him undue hardship because of the long delay. The record discloses, however, that even the length of the original continuance, to December 7, 1982, from November 24, 1982, was due to defense counsel's unavailability on an earlier date. The later extension of the continuance was agreed to by defense counsel as well. There was no error in denying defendant's effort to take advantage of the court's grant of the continuance to defense counsel.

Defendant's second claim of error stems from four articles about the case appearing in local newspapers. The longest of these articles was only 150 words in length, and the most recent had been published on January 18, 1983, a full ten weeks prior to the start of trial. The trial court declined to grant defendant's pretrial motion for a change of venue because of the articles, saying "We'll see if we can get a proper jury." The court noted that the articles were short and were not of such a nature that they would tend to inflame the community, although they did contain some material which the court felt was inappropriate for the jury. Defendant asserts both that he should have been granted a change of venue and that the trial judge erroneously refused to ask the jurors about the articles during voir dire.

Contrary to defendant's latter assertion, the trial court did question the jury panel in more than a cursory fashion to determine whether they had seen the articles. He described the articles in sufficient detail for any prospective juror to know whether he had seen them before and then twice asked the panel whether any of them had seen the articles. There was no response. The court also noted that there were errors in the articles, particularly the use of the word "rape," which was emotionally charged as well as legally inaccurate. Defense counsel expressed no dissatisfaction with the jury selected.

Venue of a criminal case may be changed upon good cause shown by either party. ⁶ A motion for change of venue is addressed to the trial court's discretion, the exercise of which will be overturned on appeal only on a finding of abuse. It is not an abuse of discretion to defer determination of a request for change of venue until jury selection has been attempted in the original county; on the contrary, it is considered to be a preferable practice. Further, the existence of pretrial publicity does not, standing alone, require a change of venue. If jurors are able to set aside their impressions or opinions and render a verdict based upon the evidence adduced at trial, a change of venue is not necessary. A change of venue is proper only where there is a finding of a strong community feeling or a bitter prejudice against the defendant. ⁷

Defendant urges upon us a standard under which a change of venue would be required if there were circumstances such that there was a reasonable likelihood that he would not receive a fair trial. Even under this standard, however, a change of venue is unnecessary here. The trial court asked the jurors whether they had seen the articles complained of and received no answer. The court went out of its way to point out that the articles may have contained unfair representations of the facts. The articles were very simple and straightforward and not sensationalistic. There were only four articles, the last of which was published ten weeks prior to trial. There simply is not a reasonable likelihood that defendant would not receive a fair trial on these facts.

Defendant asserts error in the following instruction given by the trial court during its pretrial remarks:

"You decide what occurred. And having determined what occurred, then I will have given you the law that applies to those facts so that you will then be able to make a decision as to what the proper verdict is. Now, you have no right to interfere in my function. For example, you have an obligation and you--your oath will obligate you to take the law as I give it to you, to follow the law. Now, that isn't a contention on my part that I'm infallible, that I don't make mistakes. But if I do, that mistake can be corrected. But if a jury doesn't follow our instructions, there could be a miscarriage of justice that could result in something improper being done that could not be corrected. I have no right to interfere in your function, and that function being, for example, to determine what the facts are. And I make a studied effort not to do that. You decide that."

Defendant says that by telling the jury that his own mistakes of law could be corrected, but that the jury's failure to follow his instructions could not, the trial judge was effectively telling the jury that they could allow an injustice to pass because it would be corrected. Defendant says that the instruction interfered with...