People v. Gaines , 129 Mich. App. 439 ( 1983 )

129 Mich. App. 439 (1983) 341 N.W.2d 519

PEOPLE
v.
GAINES

Docket No. 60794.

Michigan Court of Appeals.

Decided October 10, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

Angela R. Sims, for defendant on appeal.

Before: R.M. MAHER, P.J., and MacKENZIE and M.B. BREIGHNER,^[*] JJ.

MacKENZIE, J.

Defendant was charged with three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). After a jury trial, he was convicted of three counts of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4). He was sentenced to imprisonment for three concurrent terms of 10 to 15 years, and he appeals as of right.

I

Defendant first argues that the trial court erred by permitting him to be cross-examined concerning a West German conviction. In People v Braithwaite, 67 Mich. App. 121; 240 NW2d 293 (1976), the Court held that a foreign conviction could not be considered in sentencing. The Court reasoned that constitutionally infirm convictions may not be considered in sentencing, that many foreign countries do not afford criminal defendants the due process safeguards existing in this country, and that a case-by-case determination of whether sufficient safeguards were afforded would be too burdensome. However, in People v Wallach, 110 Mich. App. 37, 67-72; 312 NW2d 387 (1981), the Court criticized the Braithwaite panel's absolute prohibition of the use of foreign convictions and held that a foreign conviction could be used for impeachment purposes if the foreign country provided criminal defendants with sufficient due process safeguards. The Court placed the burden of proof concerning the foreign country's criminal justice system on the prosecution.

We agree with the Wallach panel that a case-by-case approach is preferable. Defendant points out that here the prosecution produced no evidence concerning the West German criminal justice system. However, defendant did not object to the cross-examination concerning the West German conviction at trial. In cases involving the trial court's discretion to exclude prior convictions pursuant to MRE 609, defendants have not been permitted to contend on appeal that their convictions should have been excluded if they raised no such issue at trial. People v Moore, 391 Mich. 426, 435-436; 216 NW2d 770 (1974); People v Henry, 395 Mich. 367, 376-377; 236 NW2d 489 (1975). The Wallach panel placed the burden of proof on the prosecution by drawing an analogy to cases involving MRE 609. We draw the same analogy and conclude that the prosecution need not present evidence concerning the foreign country's criminal justice system unless defendant objects to the use of the foreign conviction.

II

Defendant complains of various remarks made by the prosecutor during closing argument. Two of the remarks concern the West German conviction. Defendant made no objection at trial to the remarks, and appellate review is therefore foreclosed unless our failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 15-16; 260 NW2d 58 (1977).

Defendant points to the following remarks:

"He tells you that he has been convicted once in Western Europe for a felony involving cocaine.

"He told you yesterday though, no I wasn't using any narcotics on November 4, 1980."

Defendant correctly points out that the testimony showed only a conviction for possession of narcotics, not cocaine. However, we cannot say that "cocaine" is so much more inflammatory a term than "narcotics" that our failure to consider this issue would result in a miscarriage of justice. Defendant also argues that the second remark quoted above implied that defendant was using narcotics on the day of the crime. There was no evidence that defendant used narcotics on the day of the crime and evidence of such use of narcotics would not have been relevant to anything at issue in the case. However, because the remark was indirect and isolated, we cannot say that our failure to consider this issue would result in a miscarriage of justice.

Defendant also complains of the prosecutor's argument that use of force or coercion by defendant could be inferred from the fact that the complainant's eardrum was ruptured. Defendant argues that this argument was not supported by the evidence. No objection was made when the prosecutor made this argument, but defendant subsequently moved for a mistrial. We will assume without deciding that such a procedure was adequate to preserve this issue for appellate review.

Defendant points out that the doctor who examined the complainant after the crime was unable to recall whether he saw any signs that the rupture of the complainant's eardrum was recent. However, the complainant testified that defendant struck her and kicked her repeatedly and that among her injuries was a ruptured eardrum. Defendant himself testified that he slapped complainant hard, possibly in the ear, but that he doubted that he ruptured her eardrum. The prosecutor is entitled to comment on the evidence and to draw reasonable inferences from it. People v Terry, 86 Mich. App. 64, 68; 272 NW2d 198 (1978). The testimony of complainant and defendant was sufficient to support an inference that it was defendant who ruptured the complainant's eardrum.

III

Defendant also argues that the trial court's instruction on the defense of consent was erroneous. The trial court instructed the jury:

"In determining whether or not the complainant did in fact consent you must consider all of the testimony and evidence including the conduct of the complainant witness."

Objections to jury instructions must be made specifically and before the jury retires. GCR 1963, 516.2. The failure to make a timely objection precludes appellate review unless the instructions given omitted an essential element of the crime or unless a failure to review the instructions would result in manifest injustice. See, for example, People v Elmore, 94 Mich. App. 304, 307; 288 NW2d 416 (1979).

At trial, defendant objected to the trial court's instruction on consent and argued that the instructions should indicate that the defense of consent is available if defendant's perception of the circumstances gave him reason to believe that there was consent. Defendant also argued that lack of consent was an element of the crime. On appeal, defendant makes no argument and cites no authority in support of these positions. Defendant has therefore abandoned them. Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).

Now, defendant argues that the trial court's use of the word "must" precluded the jury from drawing on their experiences and common sense and that the trial court's express mention of the conduct of the complaining witness, coupled with the word "must", precluded the jury from considering defendant's conduct. No such objection was made at trial. Moreover, defendant's argument is fundamentally illogical. Telling the jury that it must consider one thing does not tell the jury that it must not consider something else. The jury was told to consider all of the evidence. No essential element of the crime was omitted and no manifest injustice is presented.

IV

Defendant argues that the trial court erred by declining to instruct the jury on fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5). Defendant claims that, under the facts presented here, fourth-degree criminal sexual conduct was a cognate lesser offense of the charged offense of first-degree criminal sexual conduct. See People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975). However, in view of People v Stephens, 416 Mich. 252; 330 NW2d 675 (1982), we need not consider this claim.

MCL 750.520e; MSA 28.788(5) specifies that fourth-degree criminal sexual conduct is a misdemeanor punishable by imprisonment for not more than two years, or by a fine of not more than $500, or both. Fourth-degree criminal sexual conduct also falls within the definition of "misdemeanor" stated in MCL 750.8; MSA 28.198. In People v Chamblis, 395 Mich. 408, 429; 236 NW2d 473 (1975), the Court held:

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less."

Of course, the Chamblis rule did not prevent instruction on fourth-degree criminal sexual conduct here. However, when in Stephens the Court overruled the foregoing holding from Chamblis, the Court adopted a new rule concerning when lesser offense instructions may be given. The Stephens rule applies to misdemeanors but not to felonies, 416 Mich. 264. The Court's repeated use of the term "misdemeanor" and the distinction drawn between "misdemeanors" and "felonies" convinces us that application of the Stephens rule was not intended to be limited merely to those misdemeanors to which the old Chamblis rule applied.

The Stephens Court held, at 416 Mich 262-263:

"[T]he requested misdemeanor must be supported by a rational view of the evidence adduced at trial. This means that not only must there be some evidence which would justify conviction of the lesser offense, but that ``proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.' [United States v Whitaker, 144 US App DC 344, 347; 447 F2d 314 (1971).] (Footnote omitted.)"

The essential difference between fourth-degree criminal sexual conduct and the crimes of which defendant was convicted is that the latter involved sexual penetration but the former involves merely sexual contact. Here, however, defendant admitted the sexual penetrations but relied on a defense of consent. Therefore, fourth-degree criminal sexual conduct was not supported by a rational view of the evidence at trial. Because Stephens would prevent an instruction on fourth-degree criminal sexual conduct if we were to order a new trial, any claim that the law at the time of trial required such an instruction is now moot.

V

Defendant also raises two issues concerning sentencing. Defendant first argues that the court erred by considering his West German conviction. The record does not clearly show that the conviction was considered, but we will assume without deciding that it was. We agree with the panel in People v Wallach, supra, pp 69-70, that a better case can be made for consideration of foreign convictions in sentencing than at trial. A judge needs complete information to set a proper individualized sentence. People v McFarlin, 389 Mich. 557, 574; 208 NW2d 504 (1973). We therefore hold that foreign convictions may be considered in sentencing, subject to the requirement of a showing on a case-by-case basis that the criminal justice system of the country in question provided defendant with sufficient due process safeguards. No such showing was made here, but the record contains no objection to the court's consideration of the conviction. A defendant waives a claim that the court considered inaccurate information in sentencing by failing to object at the time of sentencing or to move in the lower court for vacation of the sentence. See, for example, People v Czerwinski, 99 Mich. App. 304, 308; 298 NW2d 16 (1980). This rule convinces us that at sentencing, as at trial, the prosecution should not be obligated to produce evidence concerning the criminal justice system of the foreign country unless defendant objects to consideration of the foreign conviction.

Defendant also argues that a remark by the court showed that the court mistakenly believed that defendant kicked the complainant to cause her ruptured eardrum. Actually, the testimony at trial shows that defendant kicked the complainant, but that the ruptured eardrum was caused by defendant's hitting the victim. Defendant made no objection to the remark at issue. Moreover, while due process requires that sentencing be based on accurate information, some inaccuracies are so obviously unprejudicial that resentencing is not required. People v Malkowski, 385 Mich. 244, 249-250; 188 NW2d 559 (1971). It is impossible to believe that the sentence here might have been different had the court known that the ruptured eardrum was caused by one of the blows defendant struck with his hand rather than one that defendant struck with his foot.

Affirmed.

M.B. BREIGHNER, J., concurred.

R.M. MAHER, P.J. (dissenting).

I respectfully dissent. Although I agree that the defendant's convictions should be affirmed, I believe that he is entitled to resentencing.

In People v Braithwaite, 67 Mich. App. 121; 240 NW2d 293 (1976), this Court held that convictions rendered in a foreign country should never be considered by sentencing judges. The Court recognized that some foreign convictions may comport with due process standards employed in the United States. It could have required the sentencing court to examine the law of the country in which the conviction was obtained. The court rejected that approach, however, as imposing "a burdensome, difficult, and often impossible task". 67 Mich. App. 123.

In People v Wallach, 110 Mich. App. 37; 312 NW2d 387 (1981), the Court considered the use of a foreign conviction for impeachment purposes. Disagreeing with Braithwaite, the Court held that a foreign conviction may be used for that purpose if the prosecution establishes that "the specific legal system in which defendant was convicted is fundamentally fair". 110 Mich. App. 71.

In principle, I agree that a conviction obtained in a jurisdiction that provides basic safeguards to the accused should not be excluded from sentencing. However, as Braithwaite emphasizes, the inquiry into the law of a jurisdiction to determine its fairness will not work out in practice. It does not simply require researching a single point of foreign law, but instead, demands a survey of that country's entire system of criminal justice in search of the basic components of due process. The problem is compounded when, as in the present case, the law to be researched is written in a language other than English. One cannot expect the busy prosecutors, defense attorneys, and courts of this state to shoulder such a burden. Thus, I believe that Braithwaite expresses the better view. I would hold that a trial court cannot consider a foreign conviction at sentencing.

In the present case, the record does not indicate whether or not the court considered the defendant's West German conviction at sentencing. However, rather than remanding for an evidentiary hearing to determine whether that conviction was considered, I would simply remand for resentencing without consideration of that conviction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.