People v. Stinson, Docket No. 51184

• Decision Date: 04 May 1982
• Docket Number: Docket No. 51184
• Citation: 113 Mich.App. 719,318 N.W.2d 513
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Joseph STINSON, Defendant-Appellant. 113 Mich.App. 719, 318 N.W.2d 513
• Court: Court of Appeal of Michigan — District of US

Page 513

318 N.W.2d 513

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

Docket No. 51184.

113 Mich.App. 719, 318 N.W.2d 513

Court of Appeals of Michigan.

Submitted Nov. 10, 1981.

Decided March 2, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 721] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Janis L. Blough, Chief Appellate Asst. Pros. Atty., and Muriel Winter, Asst. Pros. Atty., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant.

[113 MICHAPP 722] Before KELLY, P. J., and HOLBROOK and KAUFMAN, JJ.

KELLY, Presiding Judge.

Defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), and breaking and entering with the intent to commit a felony, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to from 7 1/2 to 15-years imprisonment on the criminal sexual conduct charge and from 5 to 15 years for the breaking and entering charge. The two sentences were to run concurrently. Defendant appeals his convictions by right, GCR 1963, 806.1.

On the night of April 1, 1979, the victim was in bed when she heard a noise at her front door. Thinking it was her dog, she went to the door and unlocked it. Before opening the door, she remembered that her dog was in the basement so she asked if someone was at the door. Her inquiry was answered by a heavy pounding which caused the victim to run to her room. She returned to the living room where she saw a person wearing a plastic bag over his face. She ran to her room again, called the telephone operator, and asked that the police be called.

While she was on the phone, defendant entered her room, grabbed her by the hair and dragged her into the living room. A struggle ensued which ended when defendant dragged the victim out of her house onto a neighbor's front yard. Sitting on the victim's chest, defendant attempted to gouge her eyes out, pull on her tongue, and choke her. Defendant removed the plastic bag from his head and placed it over the victim's head. He again tried to poke out her eyes and, when he met resistance, he hit the victim on her head. After dragging the victim to another part of the yard, [113 MICHAPP 723] defendant commenced a sexual assault on the victim.

As the victim was struggling with defendant, her son was found by neighbors. The neighbors called the police who went to the victim's residence. Upon arriving, the police searched her home finding it in disarray from the struggle. Leaving the house, the police heard a low moan and proceeded to the source of the sound where they found defendant in the act of sexual intercourse. Defendant was arrested and convicted of first-degree criminal sexual conduct and breaking and entering with the intent to commit a felony. Defendant appeals his convictions, raising several issues.

I

Defendant's first allegation of error concerns the trial court's grant of a continuance to allow the prosecution to file a notice of rebuttal to defendant's insanity defense. During the jury voir dire, defendant objected to the trial judge's asking questions about a proposed rebuttal witness. Defendant argued that the prosecutor's failure to file a notice of rebuttal, as required by M.C.L. Sec. 768.20a(7); M.S.A. Sec. 28.1043(1)(7), prohibited the prosecution from calling any rebuttal witnesses. The prosecution countered by claiming that it had informed defense counsel of its intention to call the witness to rebut defendant's insanity defense. The trial court found that defendant would not be surprised by the witness and granted a one-week adjournment to allow the prosecutor to file a notice of rebuttal.

M.C.L. Sec. 768.20a(7); M.S.A. Sec. 28.1043(1)(7) requires:

"Within 10 days after the receipt of the report from [113 MICHAPP 724] the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity which shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal."

Failure to file the required notice of rebuttal results in the exclusion of the rebuttal evidence. M.C.L. Sec. 768.21(2); M.S.A. Sec. 28.1044(2).

M.C.L. Sec. 768.20a(7); M.S.A. Sec. 28.1043(1)(7) clearly provides that the notice of rebuttal can be filed "at such other time as the court directs". This phrase has been interpreted as giving the trial judge discretion to allow the prosecution to file a late notice of rebuttal even though the trial has commenced. People v. Williams, 107 Mich.App. 798, 800-801, 310 N.W.2d 246 (1981), People v. Fisher, 87 Mich.App. 350, 355, 274 N.W.2d 788 (1978).

However, this Court has reached a different conclusion when interpreting a similar requirement concerning notice of rebuttal to an alibi defense, M.C.L. Sec. 768.20(2); M.S.A. Sec. 28.1043(2). In People v. Wilson, 90 Mich.App. 317, 321, 282 N.W.2d 2 (1979), lv. den. 407 Mich. 947 (1979), this Court stated that the statute contemplated service of written notice of rebuttal prior to trial. Id., 321, 282 N.W.2d 2. This Court refused to find that the phrase allowing the rebuttal to be filed "at such other time as the court may direct" allowed the trial court to permit the prosecutor to file a notice of rebuttal after the trial began. Id., 321, 282 N.W.2d 2. Judge Allen dissented, claiming the statute gave the judge discretion to allow the filing of a notice of rebuttal after the trial began. Id., 323, 282 N.W.2d 2.

[113 MICHAPP 725] When interpreting a statute, the primary objective is to discover and give effect to the legislative intent. People v. Goulett, 103 Mich.App. 381, 384, 303 N.W.2d 21 (1981). Apparent inconsistencies in different provisions of a statute should be reconciled if possible so as to arrive at a meaning that gives appropriate effect to all parts of the statute. Arbor Sales, Inc. v. Dept. of Treasury, 104 Mich. 181, 185, 304 N.W.2d 522 (1981).

In explaining the legislative intent behind the enactment of the rebuttal-of-alibi notice requirement, this Court stated that the requirement was meant to prevent surprise at trial. People v. Alexander, 82 Mich.App. 621, 627, 267 N.W.2d 466 (1978), lv. den. 406 Mich. 936 (1979). Because of the similarities between the statutory requirements for rebuttal-of-alibi notice and rebuttal-of-insanity notice, the same legislative intent applies to M.C.L. Sec. 768.20a(7); M.S.A. Sec. 28.1043(1)(7). Furthermore, when reading M.C.L. Sec. 768.20a(7); M.S.A. Sec. 28.1043(1)(7) as a whole, it is clear that the Legislature intended to give the trial court discretion to allow the defendant or the prosecutor to file his notice late. Any other interpretation of the statute would render the phrase "at such other time as the court directs" meaningless.

In this case, defendant was notified three weeks prior to trial that the prosecutor intended to call Dr. Poythress as a rebuttal witness if he did not manage to have defendant examined by an independent psychiatrist before trial. During the jury voir dire, defense counsel objected to questions concerning Poythress. After listening to arguments, the trial court found that defendant would not be surprised by the Poythress testimony. The trial court granted the prosecution a one-week continuance in order to file a rebuttal-of-insanity [113 MICHAPP 726] notice. Because defendant was aware of the prosecution's intention and of how Poythress would testify, no surprise occurred when the prosecution was allowed to use Poythress as a rebuttal witness. The trial judge did not abuse his discretion when he ordered a continuance to enable the prosecutor to file a notice of rebuttal.

II

Defendant's second allegation of error concerns defense counsel's cross-examination of Detective Weinman. During the cross-examination, the following colloquy occurred:

"Q. [Defense Counsel] Did you make any inquiry prior to going through the rights form concerning Mr. Stinson's educational history?

"A. [Detective Weinman] No sir.

"Q. So you didn't ask him how far he went in school either?

"A. I was pretty familiar with Mr. Stinson, so I had known that--"

The trial court immediately instructed the witness to answer the questions more precisely and instructed the jury to disregard any possible inference of previous wrongdoing by the defendant. After instructing the jury, the trial judge heard arguments on whether a mistrial was necessary. The trial court refused to grant a mistrial and again instructed the jury at great length to disregard Detective Weinman's answer. Finally, the trial judge polled each juror to insure that no prejudice occurred.

Evidence of a defendant's past criminal record is inadmissible until such time as the defendant takes the witness stand and raises the issue of his [113 MICHAPP 727] character or credibility. People v. Buffa, 51 Mich.App. 680, 683, 216 N.W.2d 494 (1974), MRE 404. However, an unresponsive, volunteered answer to a proper question is not cause for granting a mistrial. People v. Kelsey, 303 Mich. 715, 717, 7 N.W.2d 120 (1942), People v. Stegall, 102 Mich.App. 147, 151, 301 N.W.2d 473 (1980). Furthermore, where the trial court sustains an objection to an answer and instructs the jury to disregard the answer, no error occurs. People v. Missouri, 100 Mich.App. 310, 329, 299 N.W.2d 346 (1980).

In this case, defendant argues that the officer's answer was an attempt to bring defendant's prior juvenile record before the jury. If that was the purpose of the officer's answer, it was unresponsive to defense counsel's question. Furthermore, the trial court immediately cautioned the officer to answer defense counsel's questions more...