People v. Perry

• Decision Date: 16 December 1988
• Docket Number: Docket No. 97144
• Citation: 432 N.W.2d 377,172 Mich.App. 609
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James PERRY, Defendant-Appellant. 172 Mich.App. 609, 432 N.W.2d 377
• Court: Court of Appeal of Michigan — District of US

Page 377

432 N.W.2d 377

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James PERRY, Defendant-Appellant.

Docket No. 97144.

172 Mich.App. 609, 432 N.W.2d 377

Court of Appeals of Michigan.

Submitted May 5, 1988.

Decided Nov. 7, 1988.

Released for Publication Dec. 16, 1988.

[172 MICHAPP 611] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

State Appellate Defender's Office by Richard G. Ginsberg, Ann Arbor, for defendant-appellant on appeal.

Before GILLIS, P.J., and MURPHY and GAGE, ^* JJ.

J.H. GILLIS, Presiding Judge.

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct (CSC), M.C.L. Sec. 750.520b(1)(g); M.S.A. Sec. 28.788(2)(1)(g), armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, breaking and entering an occupied dwelling with intent to commit CSC, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to 75 to 150 years imprisonment for the CSC and armed robbery convictions and to ten to fifteen years imprisonment for the breaking and entering conviction. While these sentences ran concurrently with each other, they ran consecutively with defendant's mandatory two-year sentence[172 MICHAPP 612] for the felony-firearm conviction. Defendant appeals as of right. We reverse.

At trial, the victim testified that defendant lived next door to her. On cross-examination, she admitted that defendant did not live next door to her, although his mother did. Defendant, however, did visit his mother. The victim had met defendant the previous summer. The victim denied defendant was her friend. The victim claimed that defendant came to her door on March 28, 1986, at 11 p.m. and knocked. The victim looked out, but did not answer the door or indicate that she was home. Defendant then left.

The victim fell asleep on the couch and was awakened at 3:05 a.m. when a sheet was placed over her head and she heard defendant say: "Nezzie, get up." The victim stated that she recognized defendant's voice because she had had ten conversations with him. On cross-examination, she was impeached by her preliminary examination testimony in which she stated that she had had only five conversations with defendant and she admitted that her conversations with defendant were short. The victim claimed that defendant's voice was deep. The victim, still groggy, stated: "Hum." Defendant stated: "Get your ass up." The victim stated: "All right." Defendant then pulled the victim up from the couch by her hand and tied his shirt around her eyes, under the sheet. On cross-examination, the victim admitted that defendant tied her boyfriend's T-shirt around her eyes. As defendant tied the T-shirt around her eyes, she saw his skin from the wrist down. The room was lit with a red light and the victim claimed that she recognized defendant's black skin. Defendant then removed the sheet.

The victim felt a steel circle behind her left ear and believed it to be the tip of a gun. Defendant [172 MICHAPP 613] took her by the hand and told her to follow him. He led her to the bathroom and removed her gown, bra and panties. He told the victim to bend over. Defendant then placed his penis in the victim's vagina from behind. Defendant then told the victim to get down and struck her on the back of the neck with his arm. Defendant again vaginally penetrated the victim. On cross-examination, the victim also claimed that defendant attempted anal penetration.

Defendant then told the victim to get up and asked her if she had some money. The victim said she did not. Defendant placed the gun to her neck and told her not to lie. The victim told defendant that she had some money. He asked her where it was and she told him that it was in the living room on a stand. Defendant took the victim by the hand and told her that he did not see any money there. She told him to look in the white vase. The victim heard the money rattling.

Defendant then pushed the victim. The victim asked defendant if he was finished because the T-shirt was hurting her eyes. The victim heard defendant's footsteps in the kitchen and then heard the back door shut. The victim removed the shirt and ran to the back door, but did not see anyone.

The victim looked at the clock and stated that twenty minutes had passed from the time she woke up at 3:05 a.m. to the time defendant left at 3:25 a.m. The victim put on her clothes, gathered up the three children in the home and went to her boyfriend's house. The victim told her boyfriend that defendant had committed the crimes.

The victim called the police at 5 a.m. and stated that defendant was the culprit. The victim testified that she had locked her doors and her windows before she fell asleep. The police discovered[172 MICHAPP 614] that the bars on the victim's basement window had been bent back.

The victim went to the hospital at 7 a.m. The victim claimed that her neck only hurt for a minute and that it did not bother her.

The victim further testified that a week before this incident occurred defendant had made a sexual remark to her in a store. The victim was impeached by her preliminary examination testimony that she had not spoken with defendant for two weeks before the incident.

The victim's boyfriend testified that he was at the victim's house and left between 11 p.m. and midnight. He did not see defendant. The victim came to his house at 4 a.m. and told him that defendant had raped her.

Because the trial court had granted the prosecutor's motion to introduce evidence of similar prior bad acts to prove identity, Miss B. was allowed to testify. She claimed that, in July or August of 1978 at between 3:30 and 4 a.m., defendant broke into her second-story apartment through a partially-opened window. Miss B. was awakened when defendant touched her on the shoulder and started shaking her. Defendant placed a knife to Miss B.'s throat and told her to do what he told her or else. Miss B. described defendant's voice as a deep male voice. Defendant asked Miss B. to remove her nightgown. Because she had her children sleeping in the same room, she went into another bedroom and told defendant that she would do what he wanted. Miss B., with defendant's help, removed her nightgown. Defendant told Miss B. that they were going to have intercourse. Miss B. told defendant that she had just gotten out of the hospital and could not have intercourse. He told her to turn over and had anal [172 MICHAPP 615] intercourse with her. Defendant then made her perform fellatio on him.

Defendant then asked her if she had money or anything of value. She told him that she had money in a diaper bag and credit cards. Defendant and the victim went to the bathroom and turned on the lights. Defendant put a towel over Miss B.'s head so that he could look at her. As he was doing so, she saw defendant for one or two seconds. Defendant asked her if she saw him. She told him that she had not because she feared what he might do. Defendant told her that if he found out she was lying, he would come back and hurt her and the children.

Miss B. told defendant that she did not have anything of value. She gave him the money from the diaper bag and he took her credit cards and driver's license. Defendant told her not to call the police or she would be sorry. Defendant left at daybreak, approximately 5:30 a.m. Miss B. did not know defendant before the incident. We note that at the hearing concerning the admissibility of this prior bad act testimony there was evidence that defendant had also assaulted one of Miss B.'s children. This evidence was not introduced during trial on the instant charges.

Dr. William Taylor, II, testified that he examined the victim in this case at the hospital. Dr. Taylor noted tenderness in the back of the victim's neck. Dr. Taylor performed a urinalysis test, but his report indicated that a vaginal smear was not taken. Dr. Taylor noted that there was no trauma to the vaginal area. The victim told Dr. Taylor that she was raped by a friend.

After the prosecution rested, the trial court denied defendant's motion for a directed verdict.

Defendant's girlfriend testified that she left work, picked up their son and went to the home [172 MICHAPP 616] where she lived with defendant. That home was apparently not close to the victim's home. Defendant's girlfriend arrived at the home at 6 p.m. and defendant was there. The trio went to the cleaners, the grocery store and to a delicatessen. At approximately 9 p.m., defendant dropped his girlfriend off at her mother's house and went home to put away the groceries and feed their child. At 11:15 p.m., defendant returned to his girlfriend's mother's house with his son and picked up his girlfriend. At 11:40 p.m., the trio arrived at their home. Defendant's girlfriend put their son to bed and she and defendant watched television until 1:30 a.m. The couple then went to bed. Defendant's girlfriend testified that she was a light sleeper and that defendant did not leave their home that night. At 6:23 a.m., defendant's brother called their home. Defendant's girlfriend woke him up so that he could talk to his brother. A telephone bill confirmed that a collect call was made at that time.

Defendant's brother testified that he made the telephone call and that, before he did so, the police had stopped by his mother's house and told her about the rape.

Defendant's mother testified that defendant had last been to her home two weeks prior to the date of the rape and that he was not at her house on the day of the rape. Defendant's mother claimed that the father of one of the victim's children went into the victim's home between 10:30 and 11 p.m.

We note that defendant did not testify because the trial court had...