Summary
In People v Cheatham, 135 Mich. App. 620; 354 N.W.2d 282 (1984), this Court determined that the trial court was not obligated sua sponte to give any instruction setting forth either party's theory.
Summary of this case from People v. WalkerOpinion
Docket No. 66661.
Decided April 24, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Linda D. Ashford, for defendant.
Defendant appeals as of right his conviction by a jury of two counts of criminal sexual conduct (CSC) in the first degree, MCL 750.520b(1)(c), 750.520b(1)(e); MSA 28.788(2)(1)(c), 28.788(2)(1)(e). Defendant was sentenced to a term of 6 to 20 years on each count of CSC.
In earlier proceedings, defendant was charged with two counts of CSC while armed with a weapon, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), and separately charged with armed robbery. Defendant was found guilty on the CSC charges, acquitted of the separate armed robbery charge and, instead, found guilty of attempted armed robbery. This Court affirmed the attempted robbery conviction, but reversed the CSC convictions due to errors in instruction. The case was remanded for retrial of the CSC charges. On remand the jury returned the CSC convictions which defendant now appeals.
Defendant points out that the original information alleged CSC under circumstances involving commission of another felony, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). The "other felony" was armed robbery, as noted above. Defendant goes on to point out that the prosecution amended the information to allege CSC while armed with a weapon, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). According to defendant, the decision to so amend the information at the first trial amounted to a permanent election of theories and precluded any reprosecution under MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) on remand. We disagree.
We note that defendant failed to preserve this issue for appeal; at the post-remand trial, defendant did not challenge the information realleging CSC under circumstances involving commission of a felony. Absent some showing of a miscarriage of justice, a defendant may not challenge an information for the first time on appeal, People v Hernandez, 80 Mich. App. 465; 264 N.W.2d 343 (1978), lv den 406 Mich. 938 (1979).
Even if defendant had properly preserved this issue, his argument would be without merit. This Court's order reversing and remanding defendant's original CSC conviction had the effect of nullifying all actions taken during the first trial with respect to those convictions, including the prosecution's decision to amend the information. See United States v Mischlich, 310 F. Supp. 669 (D NJ, 1970), aff'd 445 F.2d 1194 (CA 3, 1971); cert den 404 U.S. 984; 92 S Ct 449; 30 L Ed 2d 368 (1971), quoted in People v Hamm, 100 Mich. App. 429; 298 N.W.2d 896 (1980), lv den 411 Mich. 888 (1981). In Hamm, this Court found that a defendant's waiver of a jury in one trial was nullified by a subsequent order declaring a mistrial. As noted in Mischlich, supra, and again in Hamm, supra:
"The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all. [Citation omitted.] The situation which exists is analogous to that which results from an appellate reversal and remand for new trial. [Citation omitted.] The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial." (Emphasis added.) 310 F. Supp. 669, 672, quoted at 100 Mich. App. 435.
In Hamm, the Court reasoned that, when defendant made his jury waiver, the waiver only related to his original trial. Similarly, in the present case the prosecutor's decision to amend the information to allege CSC while armed with a weapon, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), only related to the original trial, and on remand the prosecution was returned to its original position. That position was manifested in the allegations of the original information which alleged CSC under circumstances involving commission of another felony, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). It follows that reprosecution under the original information was not only proper, but necessary, based upon the rule announced in Mischlich, supra, and Hamm, supra.
Defendant next contends that he was prejudiced by the nonproduction of two witnesses who had been endorsed by the prosecution, Dr. Brooks Bock and Officer Michael Ledbetter. We find no reversible error. Dr. Bock, a physician who examined the complainant shortly after the incident, was located outside of the jurisdiction at the time of trial. Even if he did qualify as a res gestae witness, People v LaPorte, 103 Mich. App. 444, 452; 303 N.W.2d 222 (1981); People v Kirtdoll, 391 Mich. 370, 394; 217 N.W.2d 37 (1974), due diligence excuses production of a witness who is no longer within the state, People v Fournier, 86 Mich. App. 768; 273 N.W.2d 555 (1978); People v Serra, 301 Mich. 124; 3 N.W.2d 35 (1942). More importantly, even if defendant could show a lack of due diligence in producing Dr. Bock, the fact remains that defense counsel effectively waived production of Dr. Bock. Counsel stipulated to the trial court's proposal to have Bock's medical report read into evidence in lieu of having Bock appear at trial to testify. See People v Johnston, 76 Mich. App. 332; 256 N.W.2d 782 (1977), where a similar stipulation precluded any objection to the nonproduction of a medical witness. In the present case, neither party disagreed with the trial court's observation that Bock's testimony would have added nothing to the medical report which was read into evidence in lieu of that testimony. In short, it is apparent that the parties acquiesced in the nonproduction of Dr. Bock and that the failure to produce him was a harmless error, if error at all.
As to Officer Ledbetter, defendant offers no description of this witness's role in the incident nor any indication of the potential significance of his testimony. Defendant's failure to object at trial to this witness's nonproduction forecloses appellate review absent some showing of manifest injustice. People v Davis, 122 Mich. App. 597, 605; 333 N.W.2d 99 (1983). Given defendant's complete failure to allege, let alone demonstrate, any prejudice which might have resulted from the nonproduction of witness Ledbetter, we conclude that the issue of his nonproduction is not properly before this Court.
Defendant next points to the prosecution's failure to endorse and produce a witness who was present but asleep at the time of the offense. The witness was identified only as the girlfriend of a Mr. Frank Smith; her name was not known to either the prosecution or defendant at the time of trial. Smith was an eyewitness to the incident; he testified that he saw what occurred by looking out of his bedroom window. Smith later talked to the complainant and testified that his girlfriend had been present in the bedroom at the time, but that she slept through the entire incident and saw nothing of what had taken place. Under these circumstances, we find no basis for defendant's argument that Smith's girlfriend was a res gestae witness whose endorsement might have been required by MCL 767.40; MSA 28.980.
A res gestae witness is defined as "one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts". People v Hadley, 67 Mich. App. 688, 690; 242 N.W.2d 32 (1976). In the present case, Smith's girlfriend was not an eyewitness to any event in the criminal transaction. Her status is analogous to that of the "witness" in People v Meatte, 98 Mich. App. 74; 296 N.W.2d 190 (1980), a neighbor who was infirm, hard of hearing and asleep at the time of an altercation. She was not in any position to view any of the events underlying the transaction and her testimony would not have aided in reproducing the events in question. Hadley, supra.
Defendant has similarly failed to properly preserve this issue for appeal. Defendant did not seek a hearing at the trial court level, either during or after trial, to determine this witness's identity and status as a possible res gestae witness. Thus, even if we could agree that this witness was a res gestae witness, defendant's failure to meet this requirement precludes appellate review. People v Willie Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979); People v Caldwell, 122 Mich. App. 618; 333 N.W.2d 105 (1983).
Defendant next contends that he was deprived of a fair trial when the trial court sua sponte gave a cursory instruction describing defendant's theory of the case. The court merely stated: "The defendant has suggested to you in his theory of the defense [sic], that the prosecutor has not sustained his burden." This instruction cannot serve as grounds for reversal where defendant failed to object at trial. Neither party requested specific jury instructions on their respective theories of the case, GCR 1963, 516.7. Accordingly, we do not believe that the trial court was obliged to give any sua sponte instruction setting forth either party's theory. In this regard, we choose to follow the reasoning set forth in People v Gary Wilson, 122 Mich. App. 1; 329 N.W.2d 513 (1983); People v Janson, 116 Mich. App. 674; 323 N.W.2d 508 (1982); People v Trammell, 70 Mich. App. 351; 247 N.W.2d 311 (1976), and People v Peery, 119 Mich. App. 207; 326 N.W.2d 451 (1982). We disagree with those panels which have held that a trial court must give a full sua sponte instruction describing a defendant's theory even in the absence of a request for such an instruction, Cf. People v Gayton, 81 Mich. App. 390; 265 N.W.2d 344 (1978); People v Stanley Jones, 69 Mich. App. 459; 245 N.W.2d 91 (1976); People v Hearn, 100 Mich. App. 749; 300 N.W.2d 396 (1980). The rule announced in those cases is inconsistent with the language of GCR 1963, 516.7, which presupposes a request for an instruction as to a party's theory. Even if a sua sponte instruction were required, the trial court did take the step of giving an instruction, however cursory it might have been.
We note that once again defendant has failed to properly preserve this issue for appeal. Defendant did not object at trial to the court's formulation of his theory and the absence of any timely objection precludes appellate review absent a showing that manifest injustice resulted from the instruction. People v Jackson, 98 Mich. App. 735; 296 N.W.2d 348 (1980); People v Branner, 53 Mich. App. 541; 220 N.W.2d 183 (1974), lv den 392 Mich. 814 (1974). We conclude that there was no manifest injustice, given defendant's complete failure to explain how the challenged instruction might have prejudiced his case.
Defendant's final argument on appeal does have merit and requires reversal of his earlier conviction for attempted armed robbery. Defendant contends that, given his initial conviction of attempted armed robbery, his subsequent conviction of CSC under circumstances involving commission of a felony violated the constitutional prohibition against double jeopardy. We agree. The felony underlying the CSC conviction now on appeal is the same armed robbery for which defendant has already once been tried. There is a split of opinion among panels of this Court as to whether it is a due process violation to convict a defendant of CSC "under circumstances involving commission of a felony", MCL 750.520b(1)(c); MSA 28.788(2)(1)(c), while separately charging and convicting for the underlying felony. People v Robideau, 94 Mich. App. 663; 289 N.W.2d 846 (1980), lv gtd 412 Mich. 871 (1981); People v Ferrell, 99 Mich. App. 609; 299 N.W.2d 366 (1980). Cf. People v Charles Thompson, 117 Mich. App. 522; 324 N.W.2d 22 (1982); People v Swearington, 84 Mich. App. 372; 269 N.W.2d 467 (1978); People v Peete, 102 Mich. App. 34; 301 N.W.2d 53 (1980), lv den 411 Mich. 962 (1981); People v Bouknight, 106 Mich. App. 798; 308 N.W.2d 703 (1981), lv gtd 412 Mich. 871 (1981).
So long as the double jeopardy question remains unresolved by the Supreme Court, we choose to follow the rule announced in Thompson, supra, Swearington, supra, Peete, supra, and Bouknight, supra. Defendant has already been charged and tried once for armed robbery, and has been convicted of the lesser included offense of attempted armed robbery, People v Lovett, 396 Mich. 101; 238 N.W.2d 44 (1976), reh den 396 Mich. 976 (1976). To convict him now for CSC "under circumstances involving commission of another felony" violates the double jeopardy clause, since the underlying felony is the same armed robbery for which defendant has already been placed in jeopardy.
Although we find a double jeopardy violation in defendant's multiple convictions, we would not go so far as to find a violation in the mere fact that defendant was retried for CSC "under circumstances involving commission of" the felony of armed robbery. The present case is distinguishable from that cited by defendant, People v MacPherson, 21 Mich. App. 385; 175 N.W.2d 828 (1970). In that case the defendant was acquitted of rape but convicted of a lesser charge, assault with intent to commit rape. He successfully moved for a new trial, and was retried on the greater charge, rape. This Court found a double jeopardy violation in the decision to reprosecute on the greater charge, of which the defendant had already been acquitted. Here, defendant is not being reprosecuted for armed robbery itself, but instead for a specific type of criminal sexual conduct which merely includes that felony as an element of the offense. He does not face unconstitutional multiple punishment so long as his conviction for attempted armed robbery is vacated and only a single sentence is imposed for the conduct involved in this offense.
The conviction for attempted armed robbery is superfluous and should be vacated. The matter is remanded for entry of an order vacating the conviction for attempted armed robbery. The convictions of two counts of CSC in the first degree are affirmed.
Affirmed in part and reversed in part.