People v. Ross

Decision Date26 December 1985
Docket NumberDocket No. 77445
Citation145 Mich.App. 483,378 N.W.2d 517
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Ray ROSS, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Margaret G. Horenstein, Asst. Pros. Atty., for the people.

John D. Lazar, Madison Heights, for defendant.

Before ALLEN, P.J., and WAHLS and O'BRIEN *, JJ.

PER CURIAM.

Defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520 (1)(b)(i); M.S.A. Sec. 28.788(2)(1)(b)(i). He was sentenced to from 30 to 100 years in prison. His appeal as of right raises a myriad of issues, none of which require reversal.

The complainant in this case was defendant's 13-year-old stepdaughter. At trial, she testified that on December 25, 1981, she and the defendant had sexual intercourse. Approximately a month later, she told her mother about the incident and prosecution resulted. Defendant admitted having sexual intercourse with his stepdaughter. While he knew it was against the laws of the State of Michigan and the laws of man, he believed that, according to the laws of God, incest is the key to the kingdom of heaven.

Dr. George F. Evseeff, a psychiatrist, testified on defendant's behalf and it was his opinion that defendant was legally insane on the date of the offense. Dr. Charles Clark, a psychologist with the forensic center, was called as a rebuttal witness by the prosecution. He felt that defendant was not legally insane on the date of the offense.

The first issue on appeal is whether reversible error occurred when evidence of the defendant's prior sexual acts with the complainant and other members of his household was admitted. The question of whether evidence of prior sexual acts between the complainant and the defendant, when they are members of the same household, is admissible was answered in People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973). Recognizing that the credibility of the alleged victim is generally a principal issue in a criminal sexual conduct case, the Court held that "the probative value outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense". 390 Mich. 413, 213 N.W.2d 97. The Court also pointed out that prior sexual intimacy between the parties is not always admissible; the trial judge has the discretion to exclude relevant evidence if its probative value is outweighed by the risk of unfair prejudice, confusion of the issues, or misleading the jury.

While in this case the credibility of the complainant was not at issue because defendant admitted he had sexual intercourse with her, defendant failed to object or ask the trial court to exercise its discretion to disallow the testimony. Absent manifest injustice, failure to object to evidence at trial will preclude appellate review. People v. Woods, 416 Mich. 581, 610, 331 N.W.2d 707 (1982). We find that no manifest injustice occurred.

In the same vein, defendant also complains of testimony by the prosecutor's expert witness, Dr. Clark, about four other charges of criminal sexual conduct against defendant relating to sexual activity with other children. The DerMartzex exception has not been extended to prior sexual acts between the defendant and persons in the same household other than the alleged victim. People v. Jones, 417 Mich. 285, 286, 335 N.W.2d 465 (1983). The Court reasoned that "[p]rior sexual acts between the defendant and persons other than the complainant are not part of the principal transaction". 417 Mich. 289-290, 335 N.W.2d 465.

In this case, the prosecutor and defense counsel entered into a stipulation that there would be no reference to other sexual acts by the defendant with the brother and sisters of the victim. As a matter of policy, this Court should carefully review and enforce agreements entered into by the prosecutor in order to protect the integrity of the judicial system.

However, we note that the court fashioned an exception to the stipulation:

"And there is an exception to that stipulation and that is with the exception of possibly the defendant's expert. The prosecution's questioning only relating to these other facts as a basis for an opinion.

"That exception is to be reconsidered by the Court if defense counsel requests before the expert takes the stand."

Defendant did not object to Dr. Clark's testimony. Absent objection, appellate review is precluded unless there is manifest injustice. Woods supra. A review of the trial transcript indicates that the prosecutor's expert, Dr. Clark, referred to certain statements made by defendant during Dr. Clark's examination of him. The statements by defendant referred to the effects of his sexual abuse upon "the children". There was no other testimony regarding any specific sexual acts between defendant and the other children.

Because the only contested issue at trial was the defendant's mental state at the time of the offense and Dr. Clark's brief references about defendant's sexual acts with other children were made in order to help him explain how he formulated his opinion as to defendant's sanity, we find no manifest injustice. Dr. Clark was only given the same opportunity to explain the basis for his opinion that the court gave to defendant's expert.

The second issue on appeal is whether the prosecutor improperly impeached defendant's expert witness regarding the witness's propensity to testify on behalf of criminal defendants on the issue of insanity. MRE 611(b) provides that a "witness may be cross-examined on any matter relevant to any issue in the case, including credibility". The scope of cross-examination rests in the sound discretion of the trial court and an appellate court will not reverse absent a clear showing of abuse. People v. Johnston, 76 Mich.App. 332, 336, 256 N.W.2d 782 (1977); People v. Richmond, 35 Mich. App. 115, 121, 192 N.W.2d 372 (1971). MRE 611(b) confers "broad discretion on the trial judge to decide the proper scope of cross-examination. Where no request to exercise its discretion is made, no error can be committed." People v. Goddard, 135 Mich.App. 128, 140, 352 N.W.2d 367 (1984). Absent manifest injustice, defendant's failure to object at trial to testimony elicted by the prosecutor precludes appellate review. People v. Cleveland Wells, 103 Mich.App. 455, 463, 303 N.W.2d 226 (1981).

We find no manifest injustice. The testimony was admissible as it pertained to the credibility and bias of the witness. We note that it was only after defense counsel, on redirect, elicted testimony from Dr. Evseeff that he sometimes found defendants to be legally sane and had, on previous occasions, testified on behalf of the prosecution, that the prosecutor questioned Dr. Evseeff about the percentage of times he had testified that a criminal defendant was insane. Thus, defendant opened the door to the line of questioning and no error resulted when the prosecutor followed up with additional questions on the same issue.

Defendant next argues that he was denied his right to a speedy trial because he was incarcerated for approximately 16 months prior to trial. Our Supreme Court has adopted a balancing test of four factors, originally expounded in Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), as a test for determining whether there has been a violation of the right to a speedy trial. People v. Grimmett, 388 Mich. 590, 601-606, 202 N.W.2d 278 (1972). The factors to be balanced are: (1) length of delay; (2) reason for delay; (3) defendant's assetion of his right; and (4) prejudice to the defendant. Id.

A delay of six months is necessary to trigger investigation into a claim that a defendant has been denied his right to a speedy trial. People v. Lowenstein, 118 Mich.App. 475, 487, 325 N.W.2d 462 (1982). Where the delay is 18 months or greater, the burden shifts to the prosecutor to prove that defendant has not been prejudiced. 118 Mich.App. 487, 325 N.W.2d 462. In this case, the delay between arrest and trial was 15 months and 12 days, long enough to trigger investigation into defendant's claim, but not long enough to shift the burden of proving lack of prejudice to the prosecution.

The reasons for delay are examined by this Court and each period of delay is assigned to either the prosecutor or the defendant. See People v. Chism, 390 Mich. 104, 112-113, 211 N.W.2d 193 (1973). Where a delay is unexplained, it is charged to the prosecution. People v. Carner, 117 Mich.App. 560, 577, 324 N.W.2d 78 (1982). Although the lower court record does not make entirely clear the reasons behind the numerous delays and adjournments, we can infer from the record that approximately 9 1/2 months of the delay was attributable to the prosecution and the remaining 6 months was due to the defendant and was usually caused by preparation for his insanity defense.

Defendant first asserted his right to a speedy trial on May 19, 1983, when he moved for a firm trial date, asking that he be guaranteed his right to a speedy trial. On June 6, 1983, defendant moved to dismiss the charge alleging that he had been denied his right to a speedy trial. Thus, defendant did not assert his right to a speedy trial until 14 months after his arrest and less than 1 month prior to his trial. Failure to promptly assert the right does not preclude a speedy trial claim, but it is one of the factors to be balanced. People v. Farmer, 127 Mich.App. 472, 479, 339 N.W.2d 218 (1983).

We next examine whether defendant was prejudiced by the delay. There are two types of prejudice that may result: prejudice to a defendant's person and prejudice to his defense. People...

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