People v. Clark , 62 Mich. App. 740 ( 1975 )

62 Mich. App. 740 (1975) 233 N.W.2d 856

PEOPLE
v.
CLARK

Docket No. 22274.

Michigan Court of Appeals.

Decided July 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

Leonard Townsend, for defendant on appeal.

Before: T.M. BURNS, P.J., and M.F. CAVANAGH and O'HARA,^[*] JJ.

M.F. CAVANAGH, J.

The defendant was convicted in a jury trial of rape, MCLA 750.520; MSA 28.788, and armed robbery, MCLA 750.529; MSA 28.797. He was sentenced to two concurrent life imprisonment terms and now appeals as of right.

The defendant contends that the trial court committed reversible error in allowing another alleged rape victim to testify as to a prior occurrence involving the defendant and in allowing the prosecutor to read a guilty plea transcript in which the defendant admitted committing an assault and battery on another woman.

The trial judge allowed a witness to testify that the defendant had raped her on a prior occasion under MCLA 768.27; MSA 28.1050, which states as follows:

"In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant."

The defendant argues on appeal that the use of this statute was misplaced since intent is not an element of forcible rape. This argument ignores the fact that separate acts by the defendant may be introduced to show "the defendant's scheme, plan or system in doing the act".

Our review of the record convinces us that the witness's testimony was properly admitted since the two acts were so similar as to show a common scheme. The two sexual attacks demonstrate a single modus operandi. First, the attacks occurred in the same neighborhood of Detroit. They both occurred at approximately 9:30 p.m. to 10 p.m. The method for overpowering the two women was the same: the perpetrator approached them from behind and put a pistol to their heads. The women were then forced to accompany him to a vacant house. The two vacant houses used were located within two blocks of each other. At both locations, the defendant broke through a window to gain entrance.

The sex acts forced upon the two women were also similar. Once inside, both women were ordered under threat of violence to remove their clothing. The defendant then forced both women to perform fellatio upon him and then to have intercourse with him. Afterwards, the defendant robbed the present complainant of a watch, some cash, and the stenographic machine which she had been carrying home from school. The other witness testified that after she had been raped, she managed to escape. Both women clearly identified the defendant as the perpetrator of the sexual attacks.

The trial judge gave cautionary instructions to the jury prior to the witness's testimony and as part of his charge. During his final instructions, the judge informed the jury that testimony by the witness could only be used to establish the defendant's identity because of the characteristic method or scheme of the two acts.

It is within the discretion of the trial court to determine whether the unfair prejudice or confusion which may result from admission of evidence of prior acts outweighs the probative value of that evidence. People v DerMartzex, 390 Mich. 410; 213 NW2d 97 (1973). People v Duncan, 55 Mich. App. 403; 222 NW2d 261 (1974). We recognize that the danger of prejudice may be especially present in sex offenses and that a trial court may have to scrutinize the similarities in the two acts carefully for a common scheme. But in this case, the parallels between the two acts, from the method of overpowering the women and the time and location to the particular nature of the sex act, were striking. The introduction of the witness's testimony was relevant to the determination of the identity of the perpetrator and was not erroneous. Two Michigan cases, also involving robbery and rape, support this conclusion by allowing evidence of strikingly similar acts under MCLA 768.27; MSA 28.1050. People v Kelly, 386 Mich. 330; 192 NW2d 494 (1971). People v Davis, 46 Mich. App. 80; 207 NW2d 419 (1973).

As to the second issue raised in this appeal, the defendant, prior to testifying, moved to exclude reference to his prior record. The prosecution explained that it planned, inter alia, to ask the defendant about his assault and battery on a third woman under circumstances similar to the sexual assaults described above.

In this regard, the following colloquy occurred:

"Mr. La Bret: Now, I will tell the Court in front. I am going to ask him specifically about these acts, and I think I am entitled to because that would go under plan, scheme, the same modus operandi, and I am prepared to bring these people in to court if he denies this. (Emphasis added.)

"The Court: Well, the criminal record will not be admitted on the misdemeanor.

"Mr. La Bret: But I can ask him about that particular incident.

"Mr. Murphy: I don't think he can, your Honor. That's using it — That's the same — That's even worse than using the misdemeanor conviction because then he's going into the details of the conviction.

"The Court: He doesn't have to say it was a conviction or even that it went to court.

"Mr. Murphy: That's particularly a prior bad act, your Honor.

"The Court: But it might show a common scheme."

And further:

"Mr. La Bret: I am asking your client questions. If he lies, I'm going to bring the witnesses in." (Emphasis added.)

Defense counsel then objected to this threatened procedure as being impeachment on a collateral matter and thus improper. The court specifically stated repeatedly at this juncture that this was not for impeachment purposes but solely for showing a common plan and scheme. Thereafter, upon receiving from the defendant a negative response to his question as to whether he had ever assaulted a woman in a vacant house, the prosecutor presented the defendant with a copy of his assault and battery guilty plea transcript to refresh his recollection. The following exchange then ensued:

"Q. Does this refresh your recollection?

"A. Yes.

"Q. Do you want to tell the jury the truth?

"A. I'm telling them the truth.

"Q. You mean you never assaulted a person by the name of Sharon Smith on September 3, 1971, at 7694 Sherwood, in the City of Detroit?

"A. No.

"Q. You never did?

"A. No.

"Mr. Murphy: Objection; asked and answered and irrelevant.

"Q. Did you ever admit to anybody you did?

"A. No."

Again, for the stated purpose of showing a common scheme the court allowed the prosecutor over objection to continue questioning the defendant about this assault and another incident. The defendant remained steadfast in his denial of commission and/or admission.

Outside of the presence of the jury, the prosecutor then informed the court that it intended to call as a witness Glenn Rose, an official court reporter for Detroit Recorder's Court, to testify as to the content of the misdemeanor transcript. Over defendant's objection, the trial court allowed the testimony. Mr. Rose then read the transcript of the defendant's guilty plea, which stated in pertinent part:

"The Court: You have heard your attorney offer a plea of guilty that on September 3, 1971, at 7694 Sherwood in the City of Detroit, in that vacant house you did commit assault upon Sharon Smith and touch her unlawfully.

"Do you concur and agree with your attorney's offer of a plea of guilty?

"The Defendant: Yes."

* * *

"The Court: Why are you pleading guilty?

"The Defendant: Because I am guilty."

After Mr. Rose's testimony, the trial court instructed the jury that the statement was to be used solely for the purpose of impeachment.

In the recent case of People v Renno, 392 Mich. 45; 219 NW2d 422 (1974), the Michigan Supreme Court held that the use of municipal ordinance or misdemeanor convictions for impeachment purposes is prohibited. Renno, however, stated that such convictions may be used under MCLA 768.27; MSA 28.1050. In Renno the prosecutor during cross-examination repeatedly questioned the defendant concerning the details of a guilty plea to the municipal ordinance charge of drunk and disorderly. The defendant admitted the conviction but denied the prosecutor's assertion that the charge stemmed from an incident in which he had beaten up his wife.

No question of the retroactivity of People v Renno is involved in this case since the trial in the present case took place four months after Renno was decided. Cf. People v Phelps, 57 Mich. App. 300; 225 NW2d 738 (1975).

Renno clearly would have allowed this misdemeanor to be used if the similarities were sufficient under the common plan statute. This Court is rather perplexed as to why the prosecutor failed to produce the victim of this assault in his case in chief inasmuch as he stated several times that he was prepared to bring this witness in. He apparently chose not to and elected to attempt to show the similarity of this assault through the defendant's own admission.

When the defendant denied this incident, the prosecutor abandoned his efforts to show a common plan. The prosecutor's impeachment of this denial by use of the misdemeanor guilty plea transcript became the sole, paramount purpose and this was not proper. Having chosen not to call the victim for direct testimony, he was bound by the defendant's answer. The ensuing impeachment was collateral, impermissible and unnecessary. See People v Foley, 299 Mich. 358; 300 N.W. 119 (1941), People v MacCullough, 281 Mich. 15; 274 N.W. 693 (1937), and People v Renno, supra.

While the rebuttal testimony concerning the defendant's misdemeanor guilty plea was erroneously admitted, we must determine whether this error is sufficiently prejudicial to require a new trial. The Michigan Supreme Court in People v Robinson, 386 Mich. 551, 563; 194 NW2d 709 (1972), is instructive on the proper standard:

"``First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?'"

We conclude that the application of these standards results in the conclusion that the rebuttal testimony was harmless in the context of this case. Although it is unnecessary to decide the issue, the circumstances of the assault of Sharon Smith are compelling that the evidence would have been admissible under the common plan statute. The defendant assaulted Ms. Smith in a vacant house at 7694 Sherwood Street in Detroit. He was originally charged with assault with intent to commit gross indecency, but negotiations with the prosecutor resulted in a guilty plea to the misdemeanor, assault and battery.

In addition to the relatively minor nature of the error, the evidence against the defendant was overwhelming. The complainant described the events of the evening of May 1, 1974, in great detail. The striking similarities between this occurrence and one a few months earlier with another woman have been noted. At trial, both women made an unwavering identification of the defendant as the perpetrator. Finally, several members of the police evidence laboratory testified that the defendant's fingerprints were found on a piece of glass at the vacant house where the criminal offense of this case took place.

A review of the entire record in this cause shows an abundance of proof of the defendant's guilt, including the corroborating testimony of a prior victim, fingerprints, and the overall incredulity of the defendant's own testimony. Accordingly, we hold this error to be harmless. People v Heard, 58 Mich. App. 312; 227 NW2d 331 (1975).

Affirmed.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.