People v. Mustafa

Decision Date21 February 1980
Docket NumberDocket No. 78-3363
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mergim MUSTAFA, Defendant-Appellant. 95 Mich.App. 583, 291 N.W.2d 130
CourtCourt of Appeal of Michigan — District of US

[95 MICHAPP 584] Martin S. Baum, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief, Asst. Pros. Atty., Nels L. Olson, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and RILEY and QUINNELL, * JJ.

PER CURIAM.

Defendant was convicted by a jury of criminal sexual conduct in the third degree, M.C.L. § 750.520d; M.S.A. § 28.788(4), and sentenced to 10 to 15 years imprisonment. Defendant appeals as of right.

The defendant first argues that the trial court erred in refusing to suppress the use of evidence of defendant's prior conviction for criminal sexual conduct for impeachment purposes. The trial court apparently made its original ruling on this matter off the record; the present record contains only the [95 MICHAPP 585] statement that the court had previously ruled that it would deny defendant's motion to suppress evidence of the prior conviction. Thus, the present record does not clearly indicate that the judge was aware that he had discretion in determining whether to allow the admission of evidence of defendant's prior conviction. This was error. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). Further, the record is devoid of any indication that the trial court considered the factors enunciated in People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). This was also error. It is not necessary to a decision in this case to determine whether the record must reflect the trial court's balancing of the Crawford factors, but at a minimum the record must affirmatively show that the trial court was aware of those factors and did consider them, People v. Joyner, 93 Mich.App. 554, 287 N.W.2d 286 (1979); People v. Roberson, 90 Mich.App. 196, 204, 282 N.W.2d 280 (1979) (D. C. Riley, J., dissenting).

The improper admission of evidence of a prior conviction does not constitute reversible error, however, when there is overwhelming evidence of defendant's guilt. People v. Williams, 84 Mich.App. 226, 269 N.W.2d 535 (1978); People v. Makidon, 84 Mich.App. 287, 269 N.W.2d 568 (1978), modified 406 Mich. 953 (1979). The evidence of defendant's guilt in this case was overwhelming. In addition to the testimony of the complainant, Abraham Kazbour and Gamal Kazbour both testified that they lived on Wyoming near Dix Street in Dearborn and that they called the police at about 2:00 to 3:00 a.m. on the date of this incident because they heard someone screaming for help. Police officers Ronald Bunse and Peter Craven testified that they answered that "radio run" and upon arriving at the scene they found the defendant in a field on top of the complainant with his trousers and underclothing down [95 MICHAPP 586] around his knees. The complainant was screaming that she was being raped; she had a small abrasion underneath her lip, her hair was in disarray and her clothing was partially off; the keys to complainant's car were found in defendant's pocket. The blue jeans worn by the complainant on that evening were torn at the zipper and were introduced as an exhibit at trial. The defendant's statement to police that he had paid the complainant to perform an act of fellatio, that she had become angry when he took the money back, and that he was not taking her to the field to force her to have intercourse with him when the police came, was patently incredible. Since the evidence against defendant in this case was overwhelming, the silent record regarding the denial of defendant's motion to suppress the use of evidence of his prior conviction was not reversible error.

Defendant next contends that the trial court erred in allowing the admission of evidence of a similar act by the defendant. The trial court correctly admitted evidence of a similar act by the defendant after testing the evidence against the following three part analysis developed in People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976):

1. Were there sufficient similarities in the cases such that they tended to show a plan or scheme to orchestrate the events surrounding the rape so that the complainant could not show nonconsent and the defendant could escape punishment?

2. Was the defendant's scheme, plan or system in doing the act material to a matter in issue, in this case, lack of consent?

3. Was the probative value of the evidence substantially outweighed by unfairly prejudicial effects?

The first requirement in Oliphant was met in [95 MICHAPP 587] this case because the defendant by...

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3 cases
  • People v. Kramer
    • United States
    • Court of Appeal of Michigan — District of US
    • July 28, 1981
    ...84 Mich.App. 287, 289, 269 N.W.2d 568 (1978); People v. Moseley, 94 Mich.App. 461, 465, 290 N.W.2d 39 (1979); People v. Mustafa, 95 Mich.App. 583, 585, 291 N.W.2d 130 (1980); People v. Ovegian, 106 Mich.App. ---, 307 N.W.2d 472 (1981). As set forth later in this opinion, 1 the evidence agai......
  • People v. Davis
    • United States
    • Court of Appeal of Michigan — District of US
    • June 7, 1984
    ...Compare People v. Karam, 106 Mich.App. 383, 395-396, 308 N.W.2d 220 (1981), lv. den. 414 Mich. 870 (1982); People v. Mustafa, 95 Mich.App. 583, 585-586, 291 N.W.2d 130 (1980). II Defendant next argues that the trial court abused its discretion in refusing to strike the testimony of sequeste......
  • People v. Stoker, Docket No. 46663
    • United States
    • Court of Appeal of Michigan — District of US
    • February 18, 1981
    ...and identification cards to be admitted into evidence. See People v. Major, 407 Mich. 394, 285 N.W.2d 660 (1979); People v. Mustafa, 95 Mich.App. 583, 291 N.W.2d 130 (1980); People v. MacMillan, 95 Mich.App. 292, 290 N.W.2d 125 Since we must reverse and remand for a new trial, we find it un......

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