People v. Phillips, 4

• Decision Date: 02 June 1971
• Docket Number: J,No. 4,4
• Citation: 385 Mich. 30,187 N.W.2d 211
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald PHILLIPS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael C. LEE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry LENGYEL, Defendant-Appellant. an. Term.
• Court: Michigan Supreme Court

Page 211

187 N.W.2d 211

385 Mich. 30

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Ronald PHILLIPS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Michael C. LEE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Larry LENGYEL, Defendant-Appellant.

No. 4, Jan. Term.

Supreme Court of Michigan.

June 2, 1971.

William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Dept.Angelo A. Pentolino, Asst. Pros.Atty., Detroit, for appellees.

Marvin Blake, Detroit, for Ronald Phillips, defendant-appellant.

Maile, Leach & Schreier, Sherwin Schreier, Detroit, for Michael C. Lee and Larry Lengyel, defendants-appellants.

Norman L. Zemke, P.C., Detroit, of counsel for all defendants-appellants.

Before the Entire Bench.

PER CURIAM.

FACTS AND PROCEEDINGS

Defendants Phillips, Lee and Lengyel, together with three others, were charged in a single-count information with forcible rape of a 16-year old complainant.All six defendants were tried jointly before a jury without objection and in the absence of any prior motions for separate trials.One defendant was acquitted.The five convicted defendants appealed to the Court of Appeals where their convictions were affirmed.(20 Mich.App. 103, 173 N.W.2d 804).The facts are sufficiently detailed in the majority and dissenting opinions of that Court and need not be repeated here.We granted leave to appeal to defendant Phillips on February 3, 1970.(383 Mich. 765).Leave to appeal was granted to defendants Lee and Lengyel on May 20, 1970, and the three cases ordered consolidated.(383 Mich. 784).No requests for leave to appeal were filed by the remaining two defendants.

QUESTIONS INVOLVED

The trial of defendants covered a period of four weeks.There are numerous assignments of error.We consider only two to merit discussion.

First, appellants contend they were denied a fair trial and due process of law because of the conduct of the prosecutor during the trial.Appellants describe the situation this way:

'Throughout the trial the prosecuting attorney persisted in making side comments and additional remarks, generally nonlegal in character, many times after the court had made its ruling upon objections raised.Often motion was made to have the comment stricken, and sometimes they were.Most of the time, however, the remarks were permitted to stay in the record.'

Objections made during the trial to the comments and added remarks supplied by the prosecutor were addressed to the judgment and discretion of the trial judge in ruling on each occasion as it arose.We are not convinced that a condition of prejudice prevailed which prevented a fair trial.Appellants concede there was no motion for mistrial made in the trial court on the ground of misconduct of the prosecutor.On such record we are unwilling to find reversible error.

Second, appellants urge that the trial judge committed reversible error in admitting in evidence photographs of them taken at the time of their arrest, some ten no twelve hours after the alleged offense, and in allowing testimony describing their appearance when arrested.The arresting officer testified that at the time of the arrest certain writings, generally considered to be obscene sexual expressions, were on the bodies of each man.He stated further that defendant Lengyel had a torn brassiere around his neck and that defendants Lee and Phillips had prophylactics hanging from their clothing.Shortly after their arrival at the police station, the three were photographed nude from the waist up in both front and rear positions which is admittedly unusual police procedure.

During the trial, Phillips defended on the ground that whatever acts he committed with reference to the complainant were done with her consent and that, due to his drinking for the better portion of the previous two days, he was physically incapable of engaging in an act of sexual intercourse even though the opportunity was present; Lengyel denied he had relations of any kind with the complainant; and Lee denied having intercourse with the complainant, claiming she rejected him because he was married.

In the cross-examination of defendant Lengyel, the prosecutor inquired into the facts and circumstances of his arrest and whether there was any writing on his body when arrested.Over the objection of defense counsel, the prosecutor was permitted to show photographs to Lengyel and inquire if they served to refresh his memory as to the writings on his body at the time of his arrest.Lengyel agreed as to the presence of the writings but could not recall that anyone had put them there.He was also shown photographs of defendants Phillips and Lee, purporting to show writings on their bodies at the time of arrest, and was interrogated regarding the identity of those defendants as shown in the photographs.

Appellants argue that the admission of the photographs in evidence was error, claiming they were neither relevant nor material to the offense charged, and that any probative value of the pictures was nullified by their inflammatory character and prejudicial effect.The people's response is that the photographs served to characterize the mental attitude and intent of the defendants to carnally ravish and that they are corroborative of the testimony of the complainant.The prosecutor relied on the statute which provides:

'In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'M.C.L.A. § 768.27;Stat.Ann.1954 Rev. § 28.1050.

Defendants were charged in the information with feloniously and unlawfully by force and against her will ravishing, etc., a female over the age of 16 years.The crime is commonly known as rape.M.C.L.A. § 750.520(Stat.Ann.1954 Rev. § 28.788).In a prosecution for rape, intent is not an essential element.4 Gillespie Michigan Criminal Law and Procedure (2d ed), § 2176, p. 2396.

Assault with intent to rape is a crime separate from rape and is likewise punishable as a felony by M.C.L.A. § 750.85(Stat.Ann.1962 Rev. § 28.280).The gist of this offense is intent.People v. Petty(1926), 234 Mich. 282, 207 N.W. 920;People v. Guillett(1955), 342 Mich. 1, 6, 69 N.W.2d 140.

An accused charged with rape may be convicted of assault with intent to commit rape, assault and battery, or simple assault.People v. Gibbons(1932), 260 Mich. 96, 244 N.W. 244.These are lesser included offenses in a charge of rape.People v. McKee(1967), 7 Mich.App. 296, 151 N.W.2d 869, leave to appeal denied(379 Mich. 785).

Where a request has been made to charge the jury on a...