People v. Roberson

• Decision Date: 21 May 1979
• Docket Number: Docket No. 77-3575
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence ROBERSON, Defendant-Appellant. 90 Mich.App. 196, 282 N.W.2d 280
• Court: Court of Appeal of Michigan — District of US

Page 280

282 N.W.2d 280

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence ROBERSON, Defendant-Appellant.

Docket No. 77-3575.

90 Mich.App. 196, 282 N.W.2d 280

Court of Appeals of Michigan.

May 21, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 199] Rose Mary C. Robinson, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and HOLBROOK and RILEY, JJ.

CYNAR, Judge.

On May 11, 1977, defendant was convicted by a jury of first-degree criminal sexual conduct, a violation of M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1). On May 20, 1977, he was sentenced to 70 to 110 years imprisonment, with a recommendation that he not be paroled for at least 50 years. Defendant now appeals as of right.

Defendant's conviction arose out of events occurring in the early morning hours of June 11, 1976. Two days previously, the complaining witness, Yvette Brown, age 14, had run away from home. She feared her parents would punish her because she had failed almost all of her classes at school. On the evening of June 10, 1976, she boarded a bus to Northland Shopping Center and stayed on the bus until being told that the day's run had ended. Upon alighting from the bus, she walked toward a restaurant, but was accosted by a man, later identified as defendant, who threatened her with a gun. The two walked to an alley, where he forced her to commit fellatio. They entered a house, where he forced her again to commit fellatio. He then told her to go home and threatened to kill her and her mother if she called the police.

Ms. Brown returned to her home, which was located about 2 miles from the scene of the offense. Upon arriving there, she told her mother what [90 MICHAPP 200] had occurred. The police were notified, and Ms. Brown was taken to the area where the incident occurred. She identified the house where she had been taken and later identified defendant at a police lineup. Defendant was arrested at his home at 5:30 a. m. A handgun, found in his bedroom, was seized.

The police officer, who interviewed Ms. Brown that morning, took a statement from her that defendant had accosted her at about 9:50 p. m. on June 10, 1976. However, the complainant's mother testified, over objection, that her daughter had returned at about 1:30 or 2:00 a. m. and that her daughter had told her that she had left defendant's house 30 or 45 minutes earlier. At the preliminary examination, Ms. Brown adopted the later time as the time of the offense.

At trial defendant called Barbara Waters, an employee of the City of Detroit Department of Transportation, as a witness. She testified that bus number 24 was the only bus operating from Northland that ended its run on the evening of June 10, 1976. This bus went out of service at 10:57 p. m. Defendant also called three witnesses, who testified they were with him from 8:30 or 9:00 p. m. until about 11:30 p. m. in the evening in question.

Defendant initially contends that the trial judge erred in denying defendant's request for the substitution of counsel.

On the day of the trial, defense counsel brought to the trial judge's attention the existence of a dispute between him and his client. Defendant desired counsel to call three alibi witnesses to testify and also complained that no evidentiary hearing had been held to determine the admissibility of the gun and some clothing seized at the time of his arrest. In response, defense counsel agreed [90 MICHAPP 201] to call the alibi witnesses and the trial judge held a pretrial hearing regarding the admissibility of the seized evidence. The judge also denied defendant's motion for the appointment of new counsel.

We find no error in the action taken by the trial judge. In order to be entitled to the appointment of a new counsel, defendant must show, among other things, a legitimate reason for asserting this right. People v. Williams, 386 Mich. 565, 578, 194 N.W.2d 337 (1972). Since defendant's complaints as to counsel's representation were resolved before trial, defendant failed to meet his burden of establishing the need for the appointment of substitute counsel. See for example People v. Bradley, 54 Mich.App. 89, 94-96, 220 N.W.2d 305 (1974).

Defendant next contends that the trial judge abused his discretion in admitting evidence of defendant's prior felony convictions.

The decision to admit evidence of prior convictions is left to the discretion of the trial judge. People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974). When called upon to exclude evidence of prior convictions, a trial judge must recognize his discretion on the record, People v. Cherry,393 Mich. 261, 224 N.W.2d 286 (1974), and should exercise his discretion with reference to three specific criteria, People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). ¹ Error has been found where [90 MICHAPP 202] the trial judge places the burden on the defendant to justify exclusion, People v. McCartney, 60 Mich.App. 620, 624, 231 N.W.2d 472 (1975), where the trial judge delegates the decision regarding admissibility to the parties, People v. Johnson, 85 Mich.App. 181, 183-184, 270 N.W.2d 734 (1978), where the trial judge affirmatively indicates his belief that the defendant will be convicted if the prior convictions are put before the jury, People v. Crawford, supra, and where the judge erroneously construes a factor to favor admission, rather than exclusion, People v. Baldwin, 405 Mich. 550, 275 N.W.2d 253 (1979).

In the present case, the trial judge recognized his discretion in admitting the evidence of defendant's prior convictions and indicated this on the record. Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. Indeed, had the Supreme Court desired to impose such a rule on trial judges, it could have easily done so in People v. Baldwin, supra. In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence. Since the trial judge recognized and exercised his discretion in admitting the evidence, no error occurred.

Defendant next claims that the trial judge erred in admitting, over objection, the testimony of complainant's mother concerning the complainant's account of the incident. He claims this evidence was inadmissible hearsay. We disagree. This testimony falls within the res gestae exception to the [90 MICHAPP 203] hearsay rule, as the statement was made within 45 minutes of the sexual assault, at a time when the victim was still under the strain of the incident. People v. Spalding, 42 Mich.App. 492, 499-500, 202 N.W.2d 450 (1972), overruled on other grounds in People v. Reed, 393 Mich. 342, 350-351, 224 N.W.2d 867 (1975). Furthermore, since the victim testified at trial, her mother's testimony concerning her prior account of the evidence was cumulative in nature and could not have prejudiced defendant. See People v. Carson, 87 Mich.App. 163, 274 N.W.2d 3 (1978).

Defendant next contends that the trial judge erred in failing to instruct the jury on the issue of identification. The trial transcript indicates that the jury was instructed that they must determine beyond a reasonable doubt that defendant was the person who committed the charged offense. No request for further instructions on this subject was made by defense counsel. Under these circumstances, no error occurred. People v. Johnson, 58 Mich.App. 347, 355-356, 227 N.W.2d 337 (1975).

Defendant next argues that the prosecutor's closing argument contained numerous prejudicial remarks. We conclude that no error occurred. No objection was made to these comments at trial. The prosecutor's repeated references to the details of the offense, although unnecessary, were limited to the facts and were made using the phraseology of the witnesses at trial. The remarks concerning the dubious credibility of the alibi witnesses offered by defendant was a fair inference drawn from their testimony, People v. Caldwell, 78 Mich.App. 690, 692, 261 N.W.2d 1 (1977). Nor did the brief reference to the notion of "reasonable doubt" in any way usurp the court's role in instructing [90 MICHAPP 204] the jury. People v. Adams, 48 Mich.App. 595, 603, 210 N.W.2d 888 (1973).

Defendant also alleges that the trial judge erred at sentencing by imposing a sentence merely on the basis of the nature of the offense and not on the basis of defendant's own unique characteristics. He further claims that he was punished for exercising his right to a trial. These arguments are totally without merit. The record indicates that the trial judge considered defendant's past record and imposed a sentence commensurate thereto. Since the sentence imposed falls within the statutory limits, we decline to disturb it. People v. McLott, 70 Mich.App. 524, 527, 245 N.W.2d 814 (1976). Nor does the record in any way support defendant's claim that he was punished for exercising his right to a trial in this case.

Defendant's final contention is that he was denied the effective assistance of counsel at trial. He asserts 11 different errors or omissions he claimed were committed by defense counsel. Several of these, such as the content of the opening statement and the decision to eschew instructions on lesser-included offenses, relate to trial strategy and will not support a claim of ineffective assistance of counsel. People v. White, 81 Mich.App. 226, 229, 265 N.W.2d 100 (1978). Our review of the other alleged deficiencies leads us to conclude that no violation of the standard set forth in People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), occurred.

Affirmed.

RILEY, Judge (dissenting).

I write separately in order to...