DocketNumber： Docket 3,676, 3,725, 3,886, 4,079, 5,142
Citation Numbers： 173 N.W.2d 804, 20 Mich. App. 103
Judges： Holbrook, McGregor, Bronson
Filed Date： 5/20/1970
Status： Precedential
Modified Date： 11/10/2024
The five defendants were convicted of rape, MCLA § 750.520 (Stat Ann 1951 Rev § 28.788). The 16-year-old complainant testified that on May 29, 1966, she was raped by four of the defendants at the home of defendant Lee, and that the other defendants assisted. She testified further in the course of the trial that she was physically beaten, thrown to the floor and kicked; that defendants, after tearing all her clothes from her body, pushed her onto the bed and held her, while some had intercourse and/or acts of oral perversion with her. The evidence clearly discloses that all the named defendants during the weekend had consumed a substantial amount of intoxicants.
After the complainant arrived home, she phoned the police relative to the alleged rape and was told by them to go to Wyandotte General Hospital; there she was examined by Dr. Marion Chown, the family doctor. The doctor testified at the trial that the complainant had bruises and fingermarks on the insides of her legs and toward her genitalia, teeth marks on her breasts, and bruises on the sides of her head and arms.
Defendants Lee, Lengyel and Phillips were arrested at 6:00 the following morning, approximately 11 hours after the alleged rape, at a neighborhood drive-in. The three were taken to the Taylor police
Trial began on January 24,1967, in "Wayne county circuit court, and lasted until February 28, 1967. Defendants contended, in part, that the complainant consented to any sexual intercourse which took place and that it was, if anything, an “evening of misadventure of which there was acquiescence.” Of the six men charged, one was acquitted. The five convicted defendants raise several issues on appeal which will be dealt with seriatim.
During cross-examination of defendant Lengyel, the prosecutor inquired about the facts and circumstances of his arrest and, over objection as to its relevance, the court permitted the inquiry. Lengyel was asked about any writing that was on his body when arrested and, over objection by counsel, the court permitted the questioning to continue. The arresting officer testified that at the time the three boys were arrested, defendant Lengyel had part of a torn brassiere around his neck and shoulders, that defendant Phillips had prophylactics hanging from both a hat and a T-shirt he was wearing, that an iron cross was painted on his shirt and obscene language on his arms and back, and that defendant Lee also had prophylactics hanging from his shirt.
Photographs taken of defendants after arrest showed the words “fuck you” were painted on defendant Lengyel’s back. On the front of defendant Lee’s body was the word “fuck” and on defendant Phillips’ back appeared words “blow —” and the other words were indistinguishable. The prosecution contended that the photographs were admissible under MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050) which reads:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident*109 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.”
Two photographs each of defendants Lengyel, Lee and Phillips were admitted into evidence and were shown to the jury. Defense counsel objected on the ground that the evidence of the appearance of the defendants at the time of their arrest was inadmissible.
The first question is whether the trial court committed reversible error in admitting the photographs and allowing testimony concerning the circumstances of the arrest of some of the defendants.
Judge J. H. G-illis, in a well-developed opinion concerning the admissibility of photographs as evidence, said, in People v. Turner (1969), 17 Mich App 123, 130,
“In every case, the determination of the admissibility of photographs is left to the sound discretion of the trial court.”
and again, in People v. Turner, supra, 132, we read,
“It may be presumed that today’s jurors, inured as they are to the carnage of war, television and motion pictures, are capable of rationally viewing, when necessary, a photograph * * *”
The rule in Michigan is that photographic evidence of a potentially prejudicial nature is admissible only if its probative value outweighs its possible prejudicial effect (see People v. Turner, supra; People v.
Assuming without deciding that the photographic and testimonial evidence relative to defendants’ arrest was inadmissible because it may have lacked probative value, the Court does not find that it was so prejudicial and inflammatory in nature as to constitute reversible error. It is regrettable that under contemporary standards the use of the words inscribed on the defendants’ bodies have become so prevalent, but since they have, the Court does not consider them to be ipso facto inflammatory. In any event, the final analysis must be whether the evidence so tainted and permeated the trial proceedings that a fair and impartial trial could not result. These photographs were helpful to the jury in weighing the denial of guilt by the defendants and the probability of their having committed the offense charged, vis., forcible rape. The claim of the prosecution that the photographic evidence was not inflammatory is further buttressed by the fact that one of the six defendants was acquitted.
Defendants further contend that prosecutory misconduct denied them a fair trial. Sixteen volumes of transcript, of approximately 2,624 pages, attest to a long and arduous trial. In answer to the charges by defendants on this point, the defense counsel must assume a considerable share of the criticism, if any should lie. This Court finds the following quotation applicable to this difficult trial:
“Great care should be taken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a do*111 fendant’s right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether ’ impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.” People v. Burnstein (1933), 261 Mich 534, 538.
“Burnstein, supra, is quoted with approval in People v. Logie (1948), 321 Mich 303, and People v. Hoffman (1965), 1 Mich App 557. The latter two cases again state that the test to be applied is not whether there were some irregularities but instead did the defendant have a fair and impartial trial.” People v. Williams (1968), 11 Mich App 62, 66.
“We have examined the record carefully, and note that the case was hotly contested, but we are not convinced the remarks complained of influenced the jury adversely to the rights of the defendants.” People v. Delano (1947), 318 Mich 557, 569.
Although some of the defendants contend that they should have been tried separately, an examination of the trial transcript does not reveal that any motion for separate trial or objections to the joint trial were made.
In the charges to the jury, the court instructed the jurors that while the defendants were being tried together, it was their duty to consider the case of each defendant separately, as though he were on trial alone. The fact that the jury was able to sift all the evidence, acquitted one defendant (Larry Beech) and convicted the five defendants herein, shows no apparent prejudice by the jury.
“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of
Our system of criminal justice is based upon the idea of striking a fair balance, of providing a minimum risk" that an innocent person will not he convicted. This the learned trial judge did, even in the frustrating heat' of a bitterly ■ contested trial. The trial record does not disclose a miscarriage of justice.
Other errors complained of are without sufficient merit to change the outcome of this opinion.
Convictions affirmed.