People v. Sharbnow

• Decision Date: 24 February 1989
• Docket Number: Docket No. 99066
• Citation: 174 Mich.App. 94,435 N.W.2d 772
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest SHARBNOW, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 772

435 N.W.2d 772

174 Mich.App. 94

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest SHARBNOW, Defendant-Appellant.

Docket No. 99066.

Court of Appeals of Michigan.

Submitted Oct. 18, 1988.

Decided Jan. 3, 1989.

Released for Publication Feb. 24, 1989.

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 Mary Sue Czarnecki, Asst. Pros. Atty., for people.

Gerald M. Lorence, Detroit, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and MURPHY and WARSHAWSKY, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of seven counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and one count of child cruelty, M.C.L. Sec. 750.136; M.S.A. Sec. 28.331. Defendant was sentenced to seven concurrent thirty- to fifty-year prison terms for the CSC convictions and a concurrent term of twenty-six to forty-eight months imprisonment for the child cruelty conviction.

The victim, who was born in April, 1973, testified that she lived with defendant, her father, from the summer of 1984 through February, 1986. The first instance of sexual conduct occurred in the summer of 1984 when defendant asked the victim to go to his bedroom because he wanted to feel her tan. When she went into the bedroom, defendant told her to pull her pants down. Defendant then penetrated her vagina with his penis, his tongue and his finger. Defendant told her that he did not do anything wrong and not to tell anybody, that it was their secret. Defendant also indicated that he would get into a lot of trouble and go to prison if anyone found out.

In the fall of 1984 defendant penetrated the victim on two different occasions. The fourth instance occurred around Christmas, 1984. The fifth and sixth sexual incidents which involved defendant penetrating the victim's vagina with his penis occurred in the summer of 1985. Finally, during Christmas of 1985 defendant repeated the same act.

Defendant also allowed the victim to watch pornographic movies. On one occasion he told her to watch a movie and that he wanted to have sex with her. The victim also indicated that she had twice taken a bath with her father. At that time, defendant asked her to wash his penis.

Police Officer Michele Marshall testified that on May 30, 1986, she searched defendant's residence after obtaining a search warrant. Marshall seized a videotape which showed multiple sex acts between men and women. The prosecutor played at trial two ten-minute portions of this tape which had been described by the victim earlier.

Dr. Barbara Lucas, a pediatrician, testified that she examined the victim on May 6, 1986. Lucas spent about 1 1/2 hours taking the victim's history and conducting a physical examination. The victim told Lucas that her father had been having sex with her and that he put his privates inside her and moved his body up and down on her. The victim also said defendant asked her to give him a blow job but she refused.

During the physical examination, Lucas found that the victim's hymen was completely ruptured. There was hymenal tissue around the edges of the vagina. This tissue was very minimal and was completely rounded off. Lucas said that the victim had the equivalent of a married woman's vagina. Lucas also testified that she had no difficulty in inserting three fingers in the vagina, which is highly unusual for a child of thirteen years. Lucas' diagnosis was that defendant's daughter was the victim of chronic sexual abuse with full vaginal penetration on several occasions.

Defendant denied sexually assaulting his daughter. Moreover, he denied watching the videotape with her. In addition, he said that he did not drink liquor and never offered his daughter schnapps or vodka.

After defendant was convicted, he moved for a new trial based on newly discovered evidence. An evidentiary hearing was held on January 30, 1987. Dr. Ellen Alano testified that on December 2, 1986, she gave the victim a vaginal examination because of a suspected vaginal rash. The victim complained of pain when two fingers were inserted in her vagina. The hymenal tissue indicated that intercourse probably had occurred on more than one occasion. Alano's only dispute with the previous medical testimony was regarding the attempt to fix the number of times intercourse had taken place. The trial court found that Alano's testimony was not material and further that it was generally consistent with Lucas' and therefore denied defendant's motion.

Defendant now raises nine issues on appeal, none of which requires reversal.

Defendant first contends that the trial judge made numerous comments during the course of the trial which indicated bias and aroused suspicion in the minds of the jurors. Moreover, defendant contends that the trial judge belittled defense counsel, answered questions for the complainant and chastised defense witnesses. In total, these actions allegedly deprived defendant of a fair trial. We disagree.

Initially, we note that defendant failed to object to the alleged improper comments and therefore this issue has not been preserved for appeal absent manifest injustice. People v. Collier, 168 Mich.App. 687, 697, 425 N.W.2d 118 (1988). In Collier, p. 698, 425 N.W.2d 118, this Court set forth a standard of review for conduct of the trial judge:

"Michigan case law provides that a trial judge has wide discretion and power in matters of trial conduct. This power, however, is not unlimited. If the trial court's conduct pierces the veil of judicial impartiality, a defendant's conviction must be reversed. The appropriate test to determine whether the trial court's comments or conduct pierced the veil of judicial impartiality is whether the trial court's conduct or comments 'were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial.' " (Citations omitted.)

We have carefully and thoroughly considered each of defendant's nine contentions on this issue and conclude that the trial judge's conduct and comments did not unduly influence the jury to the extent that it deprived defendant of a fair and impartial trial.

Defendant next claims that the record discloses actual bias or prejudice which should have required that the trial judge disqualify himself sua sponte. Our review of the record reveals no actual bias or prejudice which would have required the judge to excuse himself.

Defendant's third contention is that prosecutorial misconduct denied him a fair trial. Again, there was no objection by defense counsel to the now-challenged comments. The absence of an objection during trial precludes appellate review of alleged prejudicial prosecutorial remarks unless the prejudicial effect was so great that it could not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v. Jansson, 116 Mich.App. 674, 692, 323 N.W.2d 508 (1982). However, since this issue is related to defendant's allegations of ineffective assistance of counsel, we will briefly address the merits of this argument.

This Court in Jansson, supra, p. 693, 323 N.W.2d 508, set forth the following guidelines for prosecutorial comment:

"Further, as an advocate, the prosecutor is free to relate the facts to his theory of the case and to argue the evidence and all reasonable inferences from it to the jury. People v. Ernest Smith, 87 Mich App 18; 273 NW2d 573 (1978). A prosecuting attorney has the right to comment upon the testimony in a case, to argue upon the facts and evidence that a witness is not worthy of belief and to contend that a defendant is lying. People v. Caldwell, 78 Mich App 690; 261 NW2d 1 (1977).

"Finally, where improper prosecutorial remarks are made in response to issues previously raised by a defense counsel, they do not constitute reversible error. A prosecutor may properly respond to the innuendos of defense counsel that his witness is fabricating testimony. People v. Giombetti, 97 Mich App 399, 405; 296 NW2d 41 (1980), rev'd on other grounds sub nom [People v.] Adkins 411 Mich 934; 308 NW2d 98 (1981)."

A complete review of the alleged improper comments reveals that the prosecutor was relating the evidence which he intended to present to the jury. During closing argument, the prosecutor emphasized to the jurors that they had to judge the credibility of the witnesses. Finally, defendant contends that the prosecutor improperly compared defendant's character to Richard Nixon's. During trial, defense counsel argued that defendant was worthy of belief because he did not destroy or otherwise dispose of the videotape for over two months during which he had notice of the allegations. Defendant argued that this proved that he had nothing to hide. During closing argument, the prosecutor compared this act of not destroying the videotape to Richard Nixon's act of turning over his incriminating tapes. Defendant argues that this comment requires reversal because of the likelihood that the jury would compare defendant's character to Richard Nixon's. Defendant relies on People v. Kelley, 142 Mich.App. 671, 370 N.W.2d 321 (1985), where the prosecutor referred to John Wayne Gacey, a man convicted of murdering boys after having homosexual relations with them, during a criminal sexual conduct trial. The Court found the comment improper because of the great likelihood that the character of the defendant would be compared to Gacey's, and distinguished People v. Jerry Smith, 122 Mich.App. 106, 332 N.W.2d 428 (1982), rev'd on other grounds 417 Mich 1100.39, 338 N.W.2d 890 (1983), and People v. Rowen, 111 Mich.App. 76, 314 N.W.2d 526 (1981) (references to Charles Manson and Jack Ruby not error).

In this case, the crimes of defendant and Nixon were not similar. The prosecutor was merely arguing that the fact that...