PEOPLE
v.
ROBERSON
Docket No. 77-3575.
Michigan Court of Appeals.
Decided May 21, 1979.Frank J. Kelley, Attorney General, Robert A. *199 Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Rose Mary C. Robinson, for defendant on appeal.
Before: CYNAR, P.J., and D.E. HOLBROOK, JR., and D.C. RILEY, JJ.
CYNAR, P.J.
On May 11, 1977, defendant was convicted by a jury of first-degree criminal sexual conduct, a violation of MCL 750.520b(1); MSA 28.788(2)(1). On May 20, 1977, he was sentenced to 70 to 110 years imprisonment, with a recommendation that he not be paroled for at least 50 years. Defendant now appeals as of right.
Defendant's conviction arose out of events occurring in the early morning hours of June 11, 1976. Two days previously, the complaining witness, Yvette Brown, age 14, had run away from home. She feared her parents would punish her because she had failed almost all of her classes at school. On the evening of June 10, 1976, she boarded a bus at Northland Shopping Center and stayed on the bus until being told that the day's run had ended. Upon alighting from the bus, she walked toward a restaurant, but was accosted by a man, later identified as defendant, who threatened her with a gun. The two walked to an alley, where he forced her to commit fellatio. They entered a house, where he forced her again to commit fellatio. He then told her to go home and threatened to kill her and her mother if she called the police.
Ms. Brown returned to her home, which was located about two miles from the scene of the offense. Upon arriving there, she told her mother what *200 had occurred. The police were notified, and Ms. Brown was taken to the area where the incident occurred. She identified the house where she had been taken and later identified defendant at a police lineup. Defendant was arrested at his home at 5:30 a.m. A handgun, found in his bedroom, was seized.
The police officer, who interviewed Ms. Brown that morning, took a statement from her that defendant had accosted her at about 9:50 p.m. on June 10, 1976. However, the complainant's mother testified, over objection, that her daughter had returned at about 1:30 or 2:00 a.m. and that her daughter had told her that she had left defendant's house 30 or 45 minutes earlier. At the preliminary examination, Ms. Brown adopted the later time as the time of the offense.
At trial defendant called Barbara Waters, an employee of the City of Detroit Department of Transportation, as a witness. She testified that bus number 24 was the only bus operating from Northland that ended its run on the evening of June 10, 1976. This bus went out of service at 10:57 p.m. Defendant also called three witnesses, who testified they were with him from 8:30 or 9:00 p.m. until about 11:30 p.m. in the evening in question.
Defendant initially contends that the trial judge erred in denying defendant's request for the substitution of counsel.
On the day of the trial, defense counsel brought to the trial judge's attention the existence of a dispute between him and his client. Defendant desired counsel to call three alibi witnesses to testify and also complained that no evidentiary hearing had been held to determine the admissibility of the gun and some clothing seized at the time of his arrest. In response, defense counsel agreed *201 to call the alibi witnesses and the trial judge held a pretrial hearing regarding the admissibility of the seized evidence. The judge also denied defendant's motion for the appointment of new counsel.
We find no error in the action taken by the trial judge. In order to be entitled to the appointment of a new counsel, defendant must show, among other things, a legitimate reason for asserting this right. People v Charles O Williams, 386 Mich. 565, 578; 194 NW2d 337 (1972). Since defendant's complaints as to counsel's representation were resolved before trial, defendant failed to meet his burden of establishing the need for the appointment of substitute counsel. See for example People v Bradley, 54 Mich. App. 89, 94-96; 220 NW2d 305 (1974).
Defendant next contends that the trial judge abused his discretion in admitting evidence of defendant's prior felony convictions.
The decision to admit evidence of prior convictions is left to the discretion of the trial judge. People v Jackson, 391 Mich. 323, 336; 217 NW2d 22 (1974). When called upon to exclude evidence of prior convictions, a trial judge must recognize his discretion on the record, People v Cherry, 393 Mich. 261; 224 NW2d 286 (1974), and should exercise his discretion with reference to three specific criteria, People v Crawford, 83 Mich. App. 35, 39; 268 NW2d 275 (1978).[1] Error has been found where *202 the trial judge places the burden on the defendant to justify exclusion, People v McCartney, 60 Mich. App. 620, 624; 231 NW2d 472 (1975), where the trial judge delegates the decision regarding admissibility to the parties, People v Dennis Johnson, 85 Mich. App. 181, 183-184; 270 NW2d 734 (1978), where the trial judge affirmatively indicates his belief that the defendant will be convicted if the prior convictions are put before the jury, People v Crawford, supra, and where the judge erroneously construes a factor to favor admission rather than exclusion, People v Baldwin, 405 Mich. 550; 275 NW2d 253 (1979).
In the present case, the trial judge recognized his discretion in admitting the evidence of defendant's prior convictions and indicated this on the record. Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. Indeed, had the Supreme Court desired to impose such a rule on trial judges, it could have easily done so in People v Baldwin, supra. In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence. Since the trial judge recognized and exercised his discretion in admitting the evidence, no error occurred.
Defendant next claims that the trial judge erred in admitting, over objection, the testimony of complainant's mother concerning the complainant's account of the incident. He claims this evidence was inadmissible hearsay. We disagree. This testimony falls within the res gestae exception to the *203 hearsay rule, as the statement was made within 45 minutes of the sexual assault, at a time when the victim was still under the strain of the incident. People v Spalding, 42 Mich. App. 492, 499-500; 202 NW2d 450 (1972), overruled on other grounds in People v Reed, 393 Mich. 342, 350-351; 224 NW2d 867 (1975). Furthermore, since the victim testified at trial, her mother's testimony concerning her prior account of the evidence was cumulative in nature and could not have prejudiced defendant. See People v Carson, 87 Mich. App. 163; 274 NW2d 3 (1978).
Defendant next contends that the trial judge erred in failing to instruct the jury on the issue of identification. The trial transcript indicates that the jury was instructed that they must determine beyond a reasonable doubt that defendant was the person who committed the charged offense. No request for further instructions on this subject was made by defense counsel. Under these circumstances, no error occurred. People v Manuel Johnson, 58 Mich. App. 347, 355-356; 227 NW2d 337 (1975).
Defendant next argues that the prosecutor's closing argument contained numerous prejudicial remarks. We conclude that no error occurred. No objection was made to these comments at trial. The prosecutor's repeated references to the details of the offense, although unnecessary, were limited to the facts and were made using the phraseology of the witnesses at trial. The remarks concerning the dubious credibility of the alibi witnesses offered by defendant was a fair inference drawn from their testimony, People v Caldwell, 78 Mich. App. 690, 692; 261 NW2d 1 (1977). Nor did the brief reference to the notion of "reasonable doubt" in any way usurp the court's role in instructing *204 the jury. People v Adams, 48 Mich. App. 595, 603; 210 NW2d 888 (1973).
Defendant also alleges that the trial judge erred at sentencing by imposing a sentence merely on the basis of the nature of the offense and not on the basis of defendant's own unique characteristics. He further claims that he was punished for exercising his right to a trial. These arguments are totally without merit. The record indicates that the trial judge considered defendant's past record and imposed a sentence commensurate thereto. Since the sentence imposed falls within the statutory limits, we decline to disturb it. People v McLott, 70 Mich. App. 524, 527; 245 NW2d 814 (1976). Nor does the record in any way support defendant's claim that he was punished for exercising his right to a trial in this case.
Defendant's final contention is that he was denied the effective assistance of counsel at trial. He asserts 11 different errors or omissions he claimed were committted by defense counsel. Several of these, such as the content of the opening statement and the decision to eschew instructions on lesser-included offenses, relate to trial strategy and will not support a claim of ineffective assistance of counsel. People v Malchi White, 81 Mich. App. 226, 229; 265 NW2d 100 (1978). Our review of the other alleged deficiencies leads us to conclude that no violation of the standard set forth in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976), occurred.
Affirmed.
D.E. HOLBROOK, JR., J., concurred.
D.C. RILEY, J. (dissenting).
I write separately in order to express my disagreement with the majority's conclusion that a trial judge is not required to *205 balance the factors enunciated in People v Jackson, 391 Mich. 323, 333; 217 NW2d 22 (1974), and People v Crawford, 83 Mich. App. 35, 39; 268 NW2d 275 (1978), on the record. Judicial consideration in an area of law which results in the promulgation of carefully demarcated guidelines should not be rendered nugatory by cursory reference to the discretionary nature of an activity required of trial judges, but should rather involve a legitimate attempt to gauge the prejudicial and probative impact of admitting felony convictions for impeachment purposes. As People v Crawford, supra, at 38 noted, the rule "envisions a true exercise of discretion by balancing the competing factors involved". While it is correct that no Michigan case has yet expressly required an on-the-record discussion of the Jackson-Crawford components, it seems rather anamolous, indeed, that trial judges should be admonished to consider and balance those elements as part of their decision-making process, and yet provide no method for ensuring by way of appellate review that those requirements are complied with. The rule as it stands effectively shields trial court impeachment determinations from review by a higher court. The present case serves as a sufficient example. Before empaneling the jury, defendant moved to suppress the admission of his prior felony convictions. The record offers the following dialogue:
"THE COURT: Are there any other matters?
"MR. ZACK [Defense Attorney]: Yes, I would move to suppress the prior record of the defendant in this matter.
"THE COURT: Now what is his prior record?
"MR. ZACK: His prior record I don't have a copy of it. The prosecutor has.
"MR. BAHEN [Assistant Prosecuting Attorney]: The *206 prior record indicates he was convicted of assault with intent to rape on January 11 of 1966. He has a sodomy charge excuse me a charge of sodomy. He was convicted of gross indecency in December 23rd, 1970. He has a receiving and concealing stolen property December 3rd, 1970. That's the extent of his record.
"We have one case pending which is not part of this record.
"THE COURT: The Court makes the following rulings:
"All misdemeanor convictions are hereby suppressed.
"As far as felony convictions, that's a discretionary matter with the Court. I'll permit the prosecuting attorney to show any felony convictions if the defendant takes the witness stand."
The trial judge's perfunctory disposition followed immediately after he was informed by the prosecution of defendant's previous record. Although the court recognized its power of discretion, the record is barren of any evidence that the Jackson-Crawford factors were considered (or any showing that the court was cognizant of them). Nor, as the passage of time between the trial judge's awareness of defendant's felony record and his decision to admit the convictions indicates, was there sufficient time to support even an inference that any balance of considerations occurred. Here, defendant had three previous felony convictions, all of which were at least six years old. Two were for sexual offenses, one occurring 11 years before the present trial. People v Jackson, supra, cautioned against the danger inherent in the admission of similar crimes for impeachment purposes, and indicated that the trial courts were to be guided in the exercise of their discretion by the criteria discussed in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), and Luck v United *207 States, 121 US App DC 151; 348 F2d 763 (1965). Gordon included the following excerpt:
"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that `if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity." 127 US App DC at 347. (Emphasis supplied.)
It should further be noted that defendant elected not to take the stand as a result of the court's decision. But again, no weight was given these considerations by the lower court.
In sum, if the Jackson-Crawford criteria are to exist as something more than an ineffectual assemblage of hollow directives, care should be taken, by means of an on-the-record deliberation, that their requirements are given full consideration. Inasmuch as defendant may have been precluded from testifying due to the court's faulty impeachment inquiry, as he made no inculpatory statements, nor was any physical evidence tying him to the offense produced, I cannot conclude that the error was harmless beyond a reasonable doubt.[1]People v *208 Robinson, 386 Mich. 551; 563; 194 NW2d 709 (1972), People v Sherman Hall, 77 Mich. App. 456, 461; 258 NW2d 517 (1977), lv den 402 Mich. 909 (1978), People v Heard, 58 Mich. App. 312, 316; 227 NW2d 331 (1975), lv den 400 Mich. 812 (1977). Defendant's conviction should be reversed.
NOTES
[1] In Crawford, the Court set out the criteria as follows:
"The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a `bad man' or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?)."
[1] To this may be added the rule that the people, not the defendant, must justify to the court the use of prior convictions for impeachment. People v Crawford, 83 Mich. App. 35, 38; 268 NW2d 275 (1978), People v McCartney, 60 Mich. App. 620; 231 NW2d 472 (1975). The transcript discloses nothing by way of prosecutorial argument in favor of their admission.