People v. Penn, Docket No. 23048

CourtCourt of Appeal of Michigan (US)
Writing for the CourtBefore DANHOF; D. E. HOLBROOK
Citation247 N.W.2d 575,70 Mich.App. 638
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Lee PENN, Defendant-Appellant.
Docket NumberDocket No. 23048
Decision Date23 August 1976

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

[70 Mich.App. 640] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Noecker, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C.J., and D. E. HOLBROOK and MUNRO, * JJ.

D. E. HOLBROOK, Judge.

Defendant Daniel Lee Penn and his codefendant Jeffery Clark Lock were convicted

by a jury on October 23, 1974, of gross indecency between males. M.C.L.A. § 750.338; M.S.A. § 28.570. On November 12, 1974, defendant was sentenced to a term of from 3 to 5 years in prison

This matter arose out of certain alleged events [70 Mich.App. 641] occurring on Monday, June 17, 1974, involving some of the inmates of Cell B in the St. Joseph County Jail. At the time, there were six men held in Cell B, defendant Daniel Lee Penn, codefendant Jeffery Lock, prosecution witnesses Arthur Waters and Alvin Wooster, and two remaining inmates, Steven Boals 1 and Al Halferty. Neither Boals nor Halferty were indorsed on the information or produced at trial. Testimony at trial indicated that defendant Penn and codefendant Lock forced Waters to perform fellatio upon Lock and Boals. There was testimony indicating that whips had been made from shreds of bedsheets and employed to coerce Waters into performing these sexual acts. It was not contended at trial that defendant Penn had actually engaged in these sexual acts with Waters. The prosecution based its case on the theory that Penn had forced Waters to commit these acts, had stood guard while they were performed, and testimony was given that Waters was later to engage in this sexual act with Penn, but that the act had been prevented because of outside factors. Defendant and codefendant Lock denied that the acts occurred and denied making whips and beating Waters.

On appeal defendant challenges the constitutionality of the statute. Defendant also raises several procedural errors arising during the trial. We will first address the constitutional questions.


We note at the outset that Penn is challenging M.C.L.A. § 750.338; M.S.A. § 28.570, which only applies to acts of gross indecency between males. We also observe that a challenge to the constitutionality of [70 Mich.App. 642] the statute was not raised below. Since no objections were made in the proceedings below on this question of the constitutionality of the statute, the issue is not preserved for appellate review in the absence of clear and manifest injustice. People v. Spencer, 61 Mich.App. 392, 395, 232 N.W.2d 413, 414 (1975). We rule defendant's challenge to the constitutionality of this statute is so without substance as to illustrate no clear and manifest injustice, particularly in light of the Supreme Court's decision in People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976). However, we feel that for proper guidance in future cases a discussion of the constitutional issue is appropriate.

In People v. Howell, the Court considered several of the claims made in the instant case. The Court considered whether the statute was void for vagueness because it did not provide fair notice of the criminality of the conduct. In the instant case, the prosecution maintained that the defendant had forced Waters to engage in acts of oral sex by beating Waters with homemade whips. The sole defense was that these acts did not occur. Although the jury was not required to find that force was used 2 the record is more than adequate to find such force. The defendant below failed to object or request instructions which would have required a finding of force as apparently required by Howell, [70 Mich.App. 643] 396 Mich. at 24, 238 N.W.2d at 152. In the Court's opinion in Howell, the Court noted

that a vagueness challenge to statutes which do not involve First Amendment freedoms must be examined in light of the case at hand. People v. Howell at 21, 238 N.W.2d at 150, citing United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599--600, 9 L.Ed.2d 561, 568 (1963). We expressly find that Penn cannot be heard to say that he was not forewarned that the conduct engaged in was subject to prosecution

Defendant also contends that the statute is vague because it fails to provide ascertainable standards of guilt. We similarly rule that there was no manifest injustice in the instant case in light of People v. Howell, supra. In Part II of the opinion in Howell the Court provides new standards under the gross indecency statute as prohibiting oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. 3 396 Mich. at 24, 238 N.W.2d at 152. This apparently overruled this Court's prior decision in People v. Dexter, 6 Mich.App. 247, 253, 148 N.W.2d 915, 918 (1967), which held: 'Statutes of the indecent liberties or gross indecency type penalize 'conduct that is of such character that the common sense of society regards it as indecent and improper'.' 4 This case was tried in light of Dexter and before the decision in Howell. Nevertheless, [70 Mich.App. 644] the record indicates no manifest injustice. The sexual acts described in the record were forced and without consent, meeting the Howell standards. We also note that Howell Part II was concurred in by three Justices. We assume the other three Justices participating would adhere to the Dexter standard. We feel that the conduct described in this record meets either standard and therefore is not void for vagueness and does not result in manifest injustice.

One final contention made by defendant is that this statute is overbroad and it impinges on the constitutional right of privacy protected by both the Federal and state constitutions. U.S.Const. Am. XIV; Const.1963, art. 1, § 17.

Defendant contends that this case is similar to Detroit v. Sanchez, 18 Mich.App. 399, 171 N.W.2d 452 (1969), where an over-breadth challenge was upheld, invalidating an ordinance which by its imprecise terminology made innocent as well as culpable conduct criminal. This is based on an analysis such as in Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), where the Court invalidated a vagrancy ordinance which made criminal the 'wandering or strolling around from place to place without any lawful purpose or object'. We do recognize that a criminal statute which by its terms covers innocent as well as criminal conduct is constitutionally deficient. We feel, however, the subject statute does not sweep so broad as to be constitutionally infirm.

Defendant contends that this statute could punish conduct which is protected by the fundamental right of privacy.

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), held that a Connecticut law which made the use of contraceptives [70 Mich.App. 645] criminal was an unconstitutional infringement of the right of marital privacy. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), extended the Griswold decision to a statute which prohibited dissemination of contraceptives to unmarried persons because it intruded into the 'decision whether to bear or beget a child'. 405 U.S. at 453, 92 S.Ct. at 1038, 31 L.Ed.2d at 362. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Reh. den. 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973), the Court again extended

the right of privacy to invalidate certain statutory restrictions on a woman's right to abortion. The question, therefore, becomes whether the gross indecency between males statute could sweep too broadly and infringe upon a fundamental right

In People v. Holland, 49 Mich.App. 76, 211 N.W.2d 224 (1973), this Court commented on M.C.L.A. § 750.338b; M.S.A. § 28.570(2) which prohibits gross indecency between a male and a female. The Court decided the case on nonconstitutional grounds. The Court did indicate that the statute might be overbroad, But only because it could act upon the marriage relationship. 49 Mich.App. at 78--79, 211 N.W.2d at 225--226.

We rule that this statute prohibiting gross indecency between males does not contain such an infringement on a fundamental right. People v. Howell, supra, upheld the statute against the vagueness challenge and apparently gave guidelines for its construction. The United States Supreme Court recently affirmed a three-judge District Court for the Eastern District of Virginia which held similar conduct was not protected by the right of privacy. The District Court drew a distinction between the privacy rights of married couples and the consensual private activities of [70 Mich.App. 646] homosexuals in upholding a Virginia sodomy statute against a constitutional challenge. The majority held that Griswold, supra, was concerned only with government trespass upon the sanctity of home and family life and offered no privacy protection to the plaintiffs. The majority did not see any constitutional barriers which would prevent the state from regulating the activity of homosexuals. Doe v. Commonwealth's Attorney for Richmond, 403 F.Supp. 1199 (E.D.Va.1975). Aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). 5 The conduct described in this record was not consensual and involves the use of force. A constitutional overbreadth challenge in the instant case is of even less merit than that made in Doe. 6


Defendant's first procedural contention is that the prosecutor's failure to indorse and produce Al Halferty constituted reversible error. At trial the following conversation between counsel and bench took place:

'The Court: Very well.

'What about the other, with respect to Halferty, he is in prison and he was a possible defendant, what do you say, Mr. Enix?

'Mr. Enix (defense attorney): I...

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