People v. Spaulding

• Decision Date: 29 August 1972
• Docket Number: No. 3,Docket No. 12034,3
• Citation: 42 Mich.App. 492,202 N.W.2d 450
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Benjamin SPAULDING, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 450

202 N.W.2d 450

42 Mich.App. 492

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Benjamin SPAULDING, Defendant-Appellant.

Docket No. 12034.

Court of Appeals of Michigan, Division No. 3.

Aug. 29, 1972.

Leave to Appeal Denied Dec. 6, 1972.

Released for Publication Dec. 8, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, Chief Appellate Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and HOLBROOK and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On March 18, 1971, defendant Edward Spaulding was convicted by a jury of statutory rape pursuant to M.C.L.A. § 750.520; M.S.A. § 28.788. He was sentenced May 10, 1971, to a term of from 5 to 15 years imprisonment. Defendant appeals as of right.

The victim of the rape testified that while she was walking down the street on the evening of October 5, 1970, a man came out of the bushes and put his hand over her mouth and eyes. Her assailant then dragged her in back of a house and there forced her to submit to sexual intercourse. She testified that he told her to lie down and that when she did, she was face to face with him and could identify him. Thereupon he put his hands over her eyes, took off his clothes and committed the act. Afterwards, he told her to turn over and count to twenty. She did so, got up, and saw no one.

The victim immediately reported the incident to a relative who promptly summoned the police. When the police arrived, the victim told them that defendant Spaulding was the man who had perpetrated the rape. She also told the officers where the defendant resided. After they had finished their questioning, the police, accompanied by the victim, drove by the scene of the rape and by the house where the defendant lived. The police cruiser nearly came to a stop in front of the Spaulding home. One of the officers shone a spotlight on the front of the house for the purpose of ascertaining the street number. The officer obtained the number and shut off the light. At this juncture, the porch light of the house came on and defendant Spaulding appeared on the porch. The victim turned around, looked through the rear window of the police cruiser and stated, 'There he is, that is him.' Thereupon defendant was arrested.

On March 4, 1971, defendant timely filed a notice of alibi. At the trial, defendant's wife and two stepsons testified that at the time the rape occurred, defendant was home with them watching television.

At the beginning of defendant's trial, both the prosecution and the defense stipulated that shortly after the rape had been committedA physician examined the victim and found lesions and the presence of sperm in her vaginal area. It was also agreed that she was fourteen at the time the offense was committed.

On appeal defendant raises six issues. We will discuss them in the order presented below.

1. DID THE TRIAL COURT'S CHARGE TO THE JURY SHIFT THE BURDEN OF PROVING AN ALIBI TO THE DEFENDANT, THEREBY VIOLATING DUE PROCESS?

The particular portion of the instruction which forms the heart of defendant's claim is quoted below:

'If you find that they haven't proved that (defendant was the man) to your satisfaction beyond a reasonable doubt and you believe the alibi, it would be your duty to find the respondent not guilty.'

From this, defendant argues that the trial court reversibly erred in its instruction to the jury on alibi by shifting the burden of proof from the prosecution to the defendant by stating that in order to find the defendant not guilty, the jury would have to 'believe the alibi.' Moreover, defendant contends that such error was not harmless and defense counsel's failure to object to the error at the trial does not preclude raising it on appeal. We disagree.

When reviewing an instruction to determine whether or not it stated the applicable law or prejudiced the defendant, we will examine the instruction as a whole rather than in small excerpts. People v. Pearson, 13 Mich.App. 371, 164 N.W.2d 568 (1968), and People v. Haggai, 332 Mich. 467, 52 N.W.2d 186 (1952). Moreover, it is well settled that, absent a showing of manifest injustice, criminal defendants seeking a review of allegedly erroneous instructions to the jury must make a timely objection to those instructions in accordance with GCR 1963, 516.2 which provides:

'2. Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

See also People v. Tubbs, 22 Mich.App. 549, 177 N.W.2d 622 (1970); People v. Keys, 9 Mich.App. 482, 157 N.W.2d 419 (1968); People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967), and People v. Cassiday, 4 Mich.App. 215, 144 N.W.2d 676 (1966).

A review of the record in the instant case indicates that although defense counsel was given ample opportunity to object to the instruction given by the court before the jury retired, no such objection was voiced.

Furthermore, after a close reading of the trial court's entire alibi instruction, we are not conviced that, taken as a whole, defendant was prejudiced thereby.*

Defendant's argument raised here for the first time on appeal is, therefore, without merit.

2. DID THE TRIAL COURT ERR BY WITHDRAWING FROM THE JURY'S CONSIDERATION THE FACT THAT THE CRIME HAD BEEN COMMITTED, THEREBY LIMITING THE SCOPE OF THE JURY'S CONSIDERATION TO THE QUESTION OF IDENTIFICATION?

The defendant contends that the trial court erred in its instruction to the jury by eliminating the question of whether or not a rape had been committed, leaving only the question of whether the defendant was the perpetrator of the crime.

The portion of the charge criticized by defendant reads as follows:

'So, the only question that the jury has to decide is, was this offense committed by the Defendant, Mr. Spaulding, that is your only question.

'So, take this case and analyze all the evidence, determine what the facts are and if you find that the prosecution has proved by evidence beyond a reasonable doubt that Mr. Spaulding was the man, then it would be your duty to find him guilty as charged.'

Defendant's position is not well taken. Defense counsel neither made an objection nor requested a correction of the instruction here in question. Any objections to the trial court's instructions must be raised at the time instructions are given or else, absent manifest prejudice to the defendant, they are waived, GCR 1963, 516.2; People v. Tubbs, Supra.

Notwithstanding defense counsel's failure to object, we will next turn to the question of whether defendant was prejudiced by the trial court's instruction.

In People v. Griffen, 36 Mich.App. 368, 371, 194 N.W.2d 104, 105 (1971), which involved a prosecution for second-degree murder, the trial judge in his charge to the jury stated:

"I may say that I don't believe this jury is going to have much difficulty in arriving at the conclusion that a felonious homicide was committed, and that the homicide was second degree murder."

This Court held:

'The comment was improper, and if the fact that a homicide had been committed had been disputed, it would require reversal, People v. Wichman (1968), 15 Mich.App. 110, 166 N.W.2d 298. However, the fact that a homicide had been committed was not disputed at trial. The contest was over who did it and defendant's defense was that he did not do it. If the comment was error, it was not reversible error.'

Such is the case here. The prosecution and the defense stipulated that the victim was fourteen, and that shortly after the rape, a physician found torn tissue and sperm in her vaginal area. Furthermore, defense counsel in the closing argument admitted the victim had been raped and stated that the only question for the jury to determine was whether or not defendant was the perpetrator. The fact that a statutory rape had been committed was not in dispute. The sole controversy was over who did it.

We hold, therefore, that the defendant was not prejudiced by the trial court's instruction which limited the jury's consideration to a question of identification of the perpetrator of the crime, where the fact that the crime had been committed was not in dispute.

3. WAS THE DEFENDANT DENIED A FAIR AND IMPARTIAL TRIAL DUE TO THE BIAS AND PARTIALITY EXHIBITED BY THE TRIAL COURT?

Next defendant asserts that he was prejudiced by various remarks and interruptions made by the trial judge during the course of the trial. Defendant's assertion is without merit.

The standard by which a trial judge's conduct is reviewed was recently stated in People v. Roby, 38 Mich.App. 387, 389, 196 N.W.2d 346, 348 (1972):

'In determining the effect of comment and interrogation by the trial judge, the applicable test is whether what occurred prevented defendant from having a fair and impartial trial. People v. Cole, 349 Mich. 175, 84 N.W.2d 711 (1957); People v. O'Hara, 278 Mich. 281, 270 N.W. 298 (1936).'

After a thorough review of the transcript in the present case, we find no indication that the trial court's comments and interruptions caused the jury to be prejudiced against the defendant. The trial judge's remarks for the most part were confined to clearing up ambiguities in the testimony elicited on direct and cross-examination.

We find, therefore, that the trial in the instant case as opposed to the one in People v. Roby, Supra, was handled fairly, impartially, and without prejudice to the defendant.

4. DID THE TRIAL COURT ERR BY ALLOWING THE ARRESTING OFFICERS TO REPEAT STATEMENTS MADE BY THE VICTIM OF THE RAPE ABOUT THE DESCRIPTION OF HER ATTACKER?

It is the defendant's position that it was reversible error to allow the arresting...