People v. McPherson, Docket No. 10773

• Decision Date: 24 February 1972
• Docket Number: Docket No. 10773,No. 1,1
• Citation: 197 N.W.2d 173,38 Mich.App. 534
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, Road Commission stands.' Willie J. McPHERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 173

197 N.W.2d 173

38 Mich.App. 534

PEOPLE of the State of Michigan, Plaintiff-Appellee, Road Commission stands.' Willie J. McPHERSON, Defendant-Appellant.

Docket No. 10773.

Court of Appeals of Michigan, Division No. 1.

Feb. 24, 1972.

Released for Publication May 4, 1972.

Arthur J. Tarnow, State Appellate Defender, 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., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and DANHOF, JJ.

HOLBROOK, Presiding Judge.

This is an appeal from defendant's jury conviction of assault with intent to commit rape (M.C.L.A. § 750.85; M.S.A. § 28.280) following his third trial in the Recorder's Court for the City of Detroit on charges arising out of the same occurrence.

Originally, defendant was tried for the crime of rape (M.C.L.A. § 750.520; M.S.A. § 28.788) and convicted of the crime of assault with intent to commit rape by the recorder's court judge sitting without a jury. On a motion for new trial, the judge, because he had been the prosecuting attorney at the time of the filing of the information, ordered a new trial for the defendant. Upon his second trial before a jury, the defendant was charged with, and convicted of, the crime of rape.

The defendant having been acquitted of the crime of rape on his first trial, our Court set aside the second conviction and remanded for a new trial. People v. McPherson, 21 Mich.App. 385, 175 N.W.2d 828 (1970). On this appeal defendant raises five issues for determination.

I.

Was defendant's right to be protected from being twice put in jeopardy for the same acts, as guaranteed by the Fifth and Fourteenth amendments of the United States Constitution, violated because defendant was subjected to a trial, the scope of which defendant had already been acquitted?

Defendant argues that his trial, while not formally on a charge of rape, violated his right to be free from twice being put in jeopardy for the same act because the scope of his trial included the elements of rape, an offense of which he had already been acquitted.

The people argue that the defense was responsible for bringing in evidence of rape and, in addition, that no objection was made to the testimony.

Defendant's reason for claiming that the scope of the prosecution was too broad is that there was evidence of the element of penetration introduced into the trial. The crime of rape requires the element of penetration while the crime of assault with intent to rape does not.

As the primary authority for his argument, defendant cites United States, ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 867 (C.A. 2, 1965), cert. den., Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). In Wilkins, petitioner was tried three times for first-degree murder. The first trial resulted in a jury conviction of second-degree murder, the second of first-degree, and the third of second-degree. In all three, the jury was told it coudl find petitioner guilty of first-degree murder, second-degree murder, first-degree manslaughter, or not guilty. Since after the first trial, the greatest offense he could constitutionally be tried for was second-degree murder, the prosecution for first-degree constituted double jeopardy. In the instant defendant's first appeal, this Court agreed fully with this reasoning. People v. McPherson, Supra. In Wilkins, the final order of the Federal court states:

'The order below * * * is reversed, with instructions that the writ (habeas corpus) be granted unless, within a reasonable time, New York affords Hetenyi a new trial that conforms to the principles set forth in this opinion.'

Therefore, in Wilkins the trial court was permitted to try defendant therein for the fourth time for the crime of second-degree murder. Likewise, in this case, defendant was properly tried for the crime of assault with intent to rape.

Defendant cites two specific instances during trial where testimony to the higher offense was given:

(1) On direct examination by the prosecutor of the alleged victim (stepdaughter of defendant) of the assault, the following transpired:

'Q. Then what did he do after he got in the bed?

'A. He laid on top of me.

'Q. Did you make any effort to push him away?

'A. Yes.

'Q. What did he say when you did that?

'A. He told me, 'Don't push anymore.'

'Q. Did he say what he would do if you did it?

'A. He said that he was going to kill me. But I kept pushing him.

'Q. Now did you--did he at anytime that you could see make--take his private parts from under his clothing?

'A. Yes.

'Q. Did he make any effort to place his private parts inside your private parts?

'A. Yes.

'Q. Did you feel his private parts in connection with your private parts?

'A. Yes.

'Q. Then what happened?

'A. He finished. He got up.

'Q. All right, then what did he do and what did you do?

'A. I went in the bathroom with my mother.

'Q. Well, describe your condition at the time, the way you felt, the way you behaved.

'A. I was hurt.'

(2) On cross-examination of the same witness by defense counsel the following took place:

'Q. Have you ever had sexual relations before December 18, 1966?

'A. No.

'Q. Are you telling us then when your stepfather inserted his private parts into you that you were in pain, that you were hurt?

'A. Yes.

'Q. Did you tell your mother this?

'A. Yes.

'Q. Was there any blood?

'A. Yes.

'Q. Where?

'A. It was on the bed and on me.'

It is important to note that defense counsel made no objection to the direct testimony and, additionally, he elicited testimony as to penetration on cross-examination. Normally, failure to object precludes raising the issue on appeal absent a miscarriage of justice. People v. Panknin, 4 Mich.App. 19, 143 N.W.2d 806 (1966). There appears to be no such miscarriage of justice here.

Defendant also contends that he was prejudiced by the court's jury charge which set out the elements of the crime of assault with intent to commit rape, I.e., that the judge put too much emphasis on the term 'rape' as used in the element of intent. Upon reading the judge's instructions, the term 'rape' does not appear to be overly emphasized. It is only used in explaining the element of intent. The gist of the offense of assault with intent to rape is intent. People v. Petty, 234 Mich. 282, 207 N.W. 920 (1926). In addition, defense counsel, when asked if there were any objections to this charge, replied, 'no objections.' Absent manifest injustice, failure to object to an instruction at trial precludes appellate review. GCR 1963, 516.2; People v. McClure, 29 Mich.App. 361, 185 N.W.2d 426 (1971). There was no manifest injustice in the court's charge in the instant case.

II.

Do defendant's three trials and continuing imprisonment constitute sufficient jeopardy so that a retrial would be in violation of the double jeopardy prohibition of the United States Constitution?

Defendant asserts that should this Court reverse and remand for a new trial, it would subject him to 'continuing anxiety and insecurity' which the constitutional double jeopardy provision seeks to prevent.

The people counter with the assertion that no prejudice would result from a new trial since it would be for defendant's benefit.

Defendant's position is untenable because in the case cited by him, Wilkins, supra, the Court gave the State of New York the right to try the petitioner for the fourth time, under prescribed reasonable conditions. Wilkins is applicable to the instant case.

III.

Did the trial court err in failing to grant a mistrial because of the possible prejudicial effect of the statement as to defendant's prior imprisonment?

Defendant argues that the statement made by complainant's mother in regard to defendant having previously been in 'Jackson' was so prejudicial that a mistrial should have been granted.

The people assert that the statement was merely part of the Res gestae and was relevant to show a part of the transaction and why complainant's mother was in such fear that she could not stop defendant's attack upon her daughter.

The statement complained of on appeal was made by complainant's mother on direct examination by the prosecutor. The context in which it took place follows:

'Q. I am directing your attention back to the date of Sunday, December 18, '66. Do you remember that day?

'A. Yes, sir.

'Q. Did you go to--what time did you go to bed that day?

'A. I went to bed early.

'Q. What time?

'A. I couldn't exactly say what time.

'Q. I mean as best as you can remember.

'A. I can't say for sure whether it was after 12 o'clock or before.

'Q. I see. Was your husband home at that time?

'A. No, sir.

'Q. What about the children, any of the children? Did they stay awake after you went to bed?

'A. They was in bed before I was.

'Q. They went to bed before you. Now while you were sleeping did anything happen to wake you up?

'A. No, sir. Except that my husband, he came in about three or four o'clock that morning.

'Q. And tell us what happened when he came in.

'A. Well, he just came in, and as I woke up, like I usually do, and he came in and undressed and got to bed, got into bed, and he started having sexual relationships with me. And the whole time he was having it, he was asking me questions about did I love him, and I said, 'Why, sure.' I said, 'Why do you ask me something like that, did I love you.' He said, 'I want to know do you love me.' I said, 'Yes, I love you.' He said, 'There is something I want you to do.' I asked him what could I be doing this time of night. He said, 'You're going to do it regardless. You're going to do it.' And I asked him, 'What?' He said, 'You're going out and get out this bed and go in and tell * * * (name of victim) to come here.' I said, 'Tell * * * (name of victime) to come here, for what?'

'Q. Just tell it slowly. Just the way it happened.

'The Court: Would you get...