People v. Sturgis, Docket No. 10106

• Citation: 35 Mich.App. 380,192 N.W.2d 618
• Decision Date: 29 July 1971
• Docket Number: No. 1,Docket No. 10106,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Homer STURGIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 618

192 N.W.2d 618

35 Mich.App. 380

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Homer STURGIS, Defendant-Appellant.

Docket No. 10106.

Court of Appeals of Michigan, Division No. 1.

July 29, 1971.

Released for Publication Dec. 29, 1971.

Carl Ziemba, Detroit, for Defendant-Appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

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

PER CURIAM.

Defendant was found guilty by a jury of rape. ¹ On appeal, he raises numerous errors, which fall into four general categories: (1) prejudice arising out of the trial judge's conduct of the trial, (2) improper impeachment by the prosecution of its own witness, (3) improper limitations upon the defense counsel's cross-examination of the complainant, and (4) an improper charge to the jury regarding complainant's behavior prior to the rape.

A review of the record discloses no foundation for the allegation of bias on the part of the trial court. The alleged errors on the part of the trial court are so insubstantial as not to warrant any detailed discussion. It is sufficient to say that the alleged errors in no way denied defendant his right to a fair and impartial trial.

As to the alleged improper impeachment by the prosecution of its own witness, we would first note that the witness was Res gestae. A review of the records reveals no improper use of prior extra-judicial statements by the witness; in fact, the only indication of any prior inconsistent statements is solely by inference from the nature of the prosecutor's questions. While complainant later gave testimony contrary to the testimony of this witness, the thrust of such testimony was to prove the truth of material facts, rather than merely to impeach. See People v. Lee (1943), 307 Mich. 743, 12 N.W.2d 418; People v. Lamson (1970), 22 Mich.App. 365, 177 N.W.2d 204.

The trial court apparently refused to allow defense counsel to cross-examine complainant as to her prior sexual activities. While cross-examination is sometimes permissible to discredit a witness by showing a lack of morality, the extent of such cross-examination is within the discretion of the trial court; such rulings will not be disturbed absent a clear showing of abuse. People v. Weems (1969), 19 Mich.App. 553, 172 N.W.2d 865. We cannot say that the trial...