Opinion
Docket No. 51184.
Decided March 2, 1982. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janis L. Blough, Chief Appellate Attorney, and Muriel Winter, Assistant Prosecuting Attorney, for the people.
Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
Before: M.J. KELLY, P.J., and D.E. HOLBROOK, JR., and N.J. KAUFMAN, JJ.
Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), and breaking and entering with the intent to commit a felony, MCL 750.110; MSA 28.305. He was sentenced to from 7-1/2 to 15 years imprisonment on the criminal sexual conduct charge and from 5 to 15 years for the breaking and entering charge. The two sentences were to run concurrently. Defendant appeals his convictions by right, GCR 1963, 806.1.
On the night of April 1, 1979, the victim was in bed when she heard a noise at her front door. Thinking it was her dog, she went to the door and unlocked it. Before opening the door, she remembered that her dog was in the basement so she asked if someone was at the door. Her inquiry was answered by a heavy pounding which caused the victim to run to her room. She returned to the living room where she saw a person wearing a plastic bag over his face. She ran to her room again, called the telephone operator, and asked that the police be called.
While she was on the phone, defendant entered her room, grabbed her by the hair and dragged her into the living room. A struggle ensued which ended when defendant dragged the victim out of her house onto a neighbor's front yard. Sitting on the victim's chest, defendant attempted to gouge her eyes out, pull on her tongue, and choke her. Defendant removed the plastic bag from his head and placed it over the victim's head. He again tried to poke out her eyes and, when he met resistance, he hit the victim on her head. After dragging the victim to another part of the yard, defendant commenced a sexual assault on the victim.
As the victim was struggling with defendant, her son was found by neighbors. The neighbors called the police who went to the victim's residence. Upon arriving, the police searched her home, finding it in disarray from the struggle. Leaving the house, the police heard a low moan and proceeded to the source of the sound, where they found defendant in the act of sexual intercourse. Defendant was arrested and convicted of first-degree criminal sexual conduct and breaking and entering with the intent to commit a felony. Defendant appeals his convictions, raising several issues.
I
Defendant's first allegation of error concerns the trial court's grant of a continuance to allow the prosecution to file a notice of rebuttal to defendant's insanity defense. During the jury voir dire, defendant objected to the trial judge's asking questions about a proposed rebuttal witness. Defendant argued that the prosecutor's failure to file a notice of rebuttal, as required by MCL 768.20a(7); MSA 28.1043(1)(7), prohibited the prosecution from calling any rebuttal witnesses. The prosecution countered by claiming that it had informed defense counsel of its intention to call the witness to rebut defendant's insanity defense. The trial court found that defendant would not be surprised by the witness and granted a one-week adjournment to allow the prosecutor to file a notice of rebuttal.
MCL 768.20a(7); MSA 28.1043(1)(7) requires:
"Within 10 days after the receipt of the report from the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity which shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal."
Failure to file the required notice of rebuttal results in the exclusion of the rebuttal evidence. MCL 768.21(2); MSA 28.1044(2).
MCL 768.20a(7); MSA 28.1043(1)(7) clearly provides that the notice of rebuttal can be filed "at such other time as the court directs". This phrase has been interpreted as giving the trial judge discretion to allow the prosecution to file a late notice of rebuttal even though the trial has commenced. People v Williams, 107 Mich. App. 798, 800-801; 310 N.W.2d 246 (1981), People v Fisher, 87 Mich. App. 350, 355; 274 N.W.2d 788 (1978).
However, this Court has reached a different conclusion when interpreting a similar requirement concerning notice of rebuttal to an alibi defense, MCL 768.20(2); MSA 28.1043(2). In People v Wilson, 90 Mich. App. 317, 321; 282 N.W.2d 2 (1979), lv den 407 Mich. 947 (1979), this Court stated that the statute contemplated service of written notice of rebuttal prior to trial. Id., 321. This Court refused to find that the phrase allowing the rebuttal to be filed "at such other time as the court may direct" allowed the trial court to permit the prosecutor to file a notice of rebuttal after the trial began. Id., 321. Judge ALLEN dissented, claiming the statute gave the judge discretion to allow the filing of a notice of rebuttal after the trial began. Id., 323.
When interpreting a statute, the primary objective is to discover and give effect to the legislative intent. People v Goulett, 103 Mich. App. 381, 384; 303 N.W.2d 21 (1981). Apparent inconsistencies in different provisions of a statute should be reconciled if possible so as to arrive at a meaning that gives appropriate effect to all parts of the statute. Arbor Sales, Inc v Dep't of Treasury, 104 Mich. 181, 185; 304 N.W.2d 522 (1981).
In explaining the legislative intent behind the enactment of the rebuttal-of-alibi notice requirement, this Court stated that the requirement was meant to prevent surprise at trial. People v Terry Alexander, 82 Mich. App. 621, 627; 267 N.W.2d 466 (1978), lv den 406 Mich. 936 (1979). Because of the similarities between the statutory requirements for rebuttal-of-alibi notice and rebuttal-of-insanity notice, the same legislative intent applies to MCL 768.20a(7); MSA 28.1043(1)(7). Furthermore, when reading MCL 768.20a(7); MSA 28.1043(1)(7) as a whole, it is clear that the Legislature intended to give the trial court discretion to allow the defendant or the prosecutor to file his notice late. Any other interpretation of the statute would render the phrase "at such other time as the court directs" meaningless.
In this case, defendant was notified three weeks prior to trial that the prosecutor intended to call Dr. Poythress as a rebuttal witness if he did not manage to have defendant examined by an independent psychiatrist before trial. During the jury voir dire, defense counsel objected to questions concerning Poythress. After listening to arguments, the trial court found that defendant would not be surprised by the Poythress testimony. The trial court granted the prosecution a one-week continuance in order to file a rebuttal-of-insanity notice. Because defendant was aware of the prosecution's intention and of how Poythress would testify, no surprise occurred when the prosecution was allowed to use Poythress as a rebuttal witness. The trial judge did not abuse his discretion when he ordered a continuance to enable the prosecutor to file a notice of rebuttal.
II
Defendant's second allegation of error concerns defense counsel's cross-examination of Detective Weinman. During the cross-examination, the following colloquy occurred:
" Q. [defense counsel]: Did you make any inquiry prior to going through the rights form concerning Mr. Stinson's educational history?
" A. [Detective Weinman]: No sir.
" Q. So you didn't ask him how far he went in school either?
" A. I was pretty familiar with Mr. Stinson, so I had known that — "
The trial court immediately instructed the witness to answer the questions more precisely and instructed the jury to disregard any possible inference of previous wrongdoing by the defendant. After instructing the jury, the trial judge heard arguments on whether a mistrial was necessary. The trial court refused to grant a mistrial and again instructed the jury at great length to disregard Detective Weinman's answer. Finally, the trial judge polled each juror to insure that no prejudice occurred.
Evidence of a defendant's past criminal record is inadmissible until such time as the defendant takes the witness stand and raises the issue of his character or credibility. People v Buffa, 51 Mich. App. 680, 683; 216 N.W.2d 494 (1974), MRE 404. However, an unresponsive, volunteered answer to a proper question is not cause for granting a mistrial. People v Kelsey, 303 Mich. 715, 717; 7 N.W.2d 120 (1942), People v Stegall, 102 Mich. App. 147, 151; 301 N.W.2d 473 (1980). Furthermore, where the trial court sustains an objection to an answer and instructs the jury to disregard the answer, no error occurs. People v Missouri, 100 Mich. App. 310, 329; 299 N.W.2d 346 (1980).
In this case, defendant argues that the officer's answer was an attempt to bring defendant's prior juvenile record before the jury. If that was the purpose of the officer's answer, it was unresponsive to defense counsel's question. Furthermore, the trial court immediately cautioned the officer to answer defense counsel's questions more directly and cautioned the jury to disregard the officer's answer. While the trial judge did caution the jury again at great length, we do not find that his cautionary instructions overemphasized the error. The trial court acted properly when it gave the jury cautionary instructions to disregard the officer's unresponsive answers to defense counsel's question.
III
Defendant next alleges that the trial court erred when it failed to sustain defense counsel's objection to the prosecutor's opening statement. During his opening statement, the prosecutor referred to defendant's proposed insanity defense. Defense counsel immediately objected, claiming the prosecutor was prohibited from putting the question of defendant's sanity before the jury prior to defendant's placing his sanity at issue. The trial court overruled the objection and the prosecutor continued with his argument concerning defendant's sanity.
In People v Plummer, 37 Mich. App. 657, 659; 195 N.W.2d 328 (1972), this Court held that a prosecutor must withhold evidence of defendant's sanity until defendant has placed in issue the question of his sanity by offering supporting testimony. A panel of this Court has also expressed its disapproval of the prosecution's reference to a defendant's insanity defense during the opening statement. People v Corsa, 50 Mich. App. 479, 482; 213 N.W.2d 579 (1973), lv den 397 Mich. 864 (1976). However, the Court ruled that the error was not reversible because defendant failed to object and there was no contention by the defense that the insanity defense would not have been pursued absent the prosecutor's comments. Id., 483.
Another panel addressed the issue of prosecutorial comments concerning defendant's proposed insanity defense in People v Staggs, 85 Mich. App. 304, 312; 271 N.W.2d 211 (1978). In Staggs, the prosecutor referred to the defendant's insanity defense during his opening argument. Defendant did not object to the remarks. This Court held that the remarks did not violate the rule established in Plummer, supra, because they were not testimony and the insanity issue was covered in both the voir dire questions and defense counsel's opening statement. Staggs, supra, 312-313.
As in Staggs, we do not find the prosecutor's remarks require reversal. While defendant did object, the reasoning of Staggs still applies. The comments were made during the opening statements and were not testimony concerning defendant's sanity. Furthermore, the defendant's sanity had already been placed before the jury during the voir dire questioning. Finally, the prosecution's comments did not force defendant to pursue his insanity defense. It is clear from the overwhelming evidence presented at trial that the defendant's only defense was insanity.
Defendant also argues that the prosecutor's opening statement shifted the burden of proof concerning defendant's sanity to defendant. We find this argument unpersuasive. Throughout the trial, the judge instructed the jury that the prosecution and not defendant had the burden of proving defendant was sane when he committed the crime. In light of these instructions, we cannot say that the prosecutor's opening remarks shifted the burden of proof.
IV
Defendant's fourth allegation of error concerns the voluntariness of defendant's postarrest confession. Prior to trial, a Walker hearing was conducted. After the hearing, the trial judge stated that he believed defendant understood his rights before he gave the police his statement. However, the judge ruled that defendant's inability to read might be construed as a factor prohibiting the confession from being voluntary and ruled that the confession was inadmissible. The prosecutor appealed this ruling to this Court, which reversed the trial court in an order dated April 30, 1979. This Court found that the confession was voluntary. Defendant sought to appeal this finding to the Supreme Court, which denied leave to appeal, 407 Mich. 869 (1979). During defendant's trial, his confession was entered into evidence. He now appeals, claiming it was error to admit his confession.
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
Where a prior ruling of this Court concerns the same question of law in the same case, the doctrine of law of the case applies and the prior ruling is controlling. People v Conte, 104 Mich. App. 73, 76; 304 N.W.2d 485 (1981). A legal issue raised in one appeal may not be raised in a subsequent appeal after proceedings held on remand to a lower court. Id., 76. In this case, the voluntariness of defendant's conviction was decided by this Court. In the previous appeal we reviewed the whole record of the Walker hearing and found the statement admissible. We therefore decline to examine the alleged error in this appeal.
V
Defendant next contends that the delay between his arrest and arraignment requires that any confessions obtained during that period be declared inadmissible. MCL 764.13; MSA 28.871(1) and MCL 764.26; MSA 28.885 prohibit unnecessary delays between arrest and arraignment. These sections have not been interpreted as requiring the exclusion of every confession obtained during an unreasonable delay. A confession made during prearraignment detention should not be excluded unless the delay was used as a tool to extract a confession. People v White, 392 Mich. 404, 424; 221 N.W.2d 357 (1974), People v Ewing (On Remand), 102 Mich. App. 81, 85; 300 N.W.2d 742 (1980).
Defendant was arrested at 3 a.m. on April 2, 1977, but was not arraigned until 4 p.m. that day. After defendant was arrested, the police took the victim to the hospital, where she stayed until 7:16 a.m. From the hospital, she was taken to the police station, where she was interviewed by the police. After the interview, the police interrogated defendant, who confessed to the crimes. The police then went to the prosecutor's office where a complaint and warrant were obtained. Defendant was arraigned at 4 p.m.
The 13-hour delay in this case was not used to extract a confession from defendant. The initial delay was caused by the victim's being taken to the hospital. Another 4-hour delay occurred after the police had taken defendant's confession. Finally, while interrogating defendant, the police complied with the requirement established in Miranda. Under the circumstances in this case, we do not find that the delay in arraigning defendant was caused by police efforts to secure a confession.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
VI
Defendant also argues that it was error for the prosecutor to introduce evidence that defendant exercised his constitutional right to remain silent. During the trial, the prosecutor asked the arresting officer if he read defendant his Miranda rights and if he questioned defendant. After receiving an affirmative answer, the prosecutor asked what defendant said. The officer answered that defendant remained silent. After these questions, the prosecutor asked the trial court to instruct the jury that defendant's silence could not be used against him. The trial court gave the jury instructions as requested.
It is improper for a prosecutor to elicit answers which show that a defendant exercised his right to remain silent. People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973). However, where the trial court realizes that an error has occurred and properly instructs the jury that defendant's silence cannot be used against him, reversal is not required. People v Wade, 93 Mich. App. 735, 740; 287 N.W.2d 368 (1979), lv den 408 Mich. 941 (1980). In this case, it was improper for the officer to testify about defendant's silence. While error occurred, it does not require reversal because the trial judge properly instructed the jury that defendant's silence could not be used against him.
VII
Finally, defendant argues that his convictions for breaking and entering and criminal sexual conduct violate the double jeopardy rule. This Court faced the same contention in People v Armstrong, 100 Mich. App. 423; 298 N.W.2d 752 (1980), and rejected it. In this case, the aggravating factor which raised the criminal sexual conduct in the third degree charge to a charge of criminal sexual conduct in the first degree was not the breaking and entering but the fact that defendant used force and coercion causing personal injury to the victim. Therefore, the breaking and entering is not an underlying felony of the criminal sexual conduct charge. It is a totally unrelated charge and proof of one did not require proof of the other.
Defendant has failed to raise any errors requiring reversal and his convictions are affirmed.