People v. Terry

86 Mich. App. 64 (1978) 272 N.W.2d 198

PEOPLE
v.
TERRY

Docket No. 77-2137.

Michigan Court of Appeals.

Decided September 21, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and David Dalenburg, Assistant Prosecuting Attorney, for the people.

Hopping & Boyer, P.C., for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and BEASLEY and P.R. MAHINSKE,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of felony murder in violation of MCL 750.316; MSA 28.548. After sentence to life imprisonment, he appeals as of right.

The felony-murder charge was based upon an allegation that defendant perpetrated or attempted to perpetrate a rape of a 14-year-old victim.

Prior to trial, defendant moved to quash the information on the grounds that the crime of rape had been abolished as of April 1, 1975. Defendant argued that the information should have charged murder in the commission or attempted commission of criminal sexual conduct in the first degree, taking the position that the criminal sexual conduct statute operated to repeal the previous rape statute and that, therefore, at the time of this alleged offense, namely, August 27, 1976, there was not any crime of rape. The trial court denied this motion, holding that rape still has a common-law meaning and that, therefore, the felony murder here charged against defendant involves the common-law definition of rape. We do not believe that in enacting the criminal sexual conduct statute the Legislature intended to repeal or modify the felony-murder statute. If the Legislature had wished to modify the felony-murder statute so as to provide that a charge should describe the offense of criminal sexual conduct rather than rape, it would have been a simple matter to so provide in the statute. For example, when the Legislature changed the legal age of majority to 18, the Legislature specifically referred to those statutes which were affected by the new legal age law.^[1] In this case, we conclude that the Legislature did not intend to change the felony-murder statute. Consequently, we do not believe that the finding of the trial court in this regard was clearly erroneous.

In instructing the jury, the trial judge defined rape in traditional terms of common-law rape as has been customary in felony murder-rape cases. Although the victim was only 14, no reference was made to statutory rape. Defendant argues that it was reversible error to instruct regarding rape when the rape statute had been repealed. Consistent with our conclusion regarding legislative intention in enacting the criminal sexual conduct statutes, we reject this argument. The Legislature did not amend the felony-murder statute. The trial judge's instruction regarding common-law rape was not clearly erroneous.

Defendant makes the novel argument that he had a constitutional right to make a complete statement to the police, on the theory that it would have constituted evidence favorable to him regarding alleged extensive drug involvement going to his capacity to entertain the requisite intent.

A police officer testified that when defendant said he wanted to make a statement, he looked "tired" and "irritated". The officer then told defendant he would have a prosecutor and reporter available the next morning if he wanted to make a statement. On the following morning, defendant attempted suicide in the officer's presence, during which he volunteered the statement, "Let me kill myself. I killed her."

The record indicates no error. Like counsel for appellant, we are not aware of any authority supporting a view that a defendant has a constitutional right to confess or make a statement. Neither are we inclined to fault the police officer. The statements defendant did make were correctly ruled admissible, since they were spontaneous, volunteered and not the result of custodial interrogation.^[2]

Last, defendant claims the prosecutor made improper closing argument by asserting, "I think the defendant knew what he was doing at the time". While it is improper for the prosecutor to express a personal belief in the guilt of the defendant, it is not erroneous for the prosecutor to comment on the evidence and to suggest for the jury inferences from that evidence.^[3] In this case, the statement to which defendant objects was inextricably interwoven with references to the evidence. The addition of the words "I think", the fact there was evidence to support the prosecutor's claim and the further fact that it was in response to defense counsel's assertion that defendant had not known what he was doing, make it clear that defendant was not denied a fair trial.^[4]

Affirmed.

NOTES

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

[1] MCL 722.53; MSA 25.244(53).

[2] People v Leffew, 58 Mich. App. 533, 536; 228 NW2d 449 (1975), People v Coppernol, 59 Mich. App. 745, 750; 229 NW2d 913 (1975).

[3] People v Caldwell, 78 Mich. App. 690, 692; 261 NW2d 1 (1977).

[4] People v Page, 63 Mich. App. 177, 179-180; 234 NW2d 440 (1975).