Docket No. 78-5461.
Decided October 22, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.
Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and R.M. MAHER and D.F. WALSH, JJ.
Defendant was charged with five offenses, all arising from a single incident. The charges included: kidnapping, felonious assault, two counts of criminal sexual conduct, and possession of a firearm during the commission of a felony. The felony-firearm charge was dismissed. At his first trial, defendant was acquitted of kidnapping and felonious assault, but the jury was unable to reach a verdict on the criminal sexual conduct counts. Defendant was tried a second time on those counts, with the same result. A third trial on the criminal sexual conduct charges ended with a jury conviction. Defendant was subsequently sentenced to life imprisonment.
The sexual intercourse occurred during the early morning hours of December 13, 1977. Complainant's version of the facts was that she and her boyfriend checked into a motel, they heard a knock at the door, and defendant entered the room and pointed a gun at the two occupants. As a result of the boyfriend's observation that gunfire would alert anyone in the area, defendant removed the bullets from the gun. He then produced a knife and threatened complainant and her boyfriend, saying he would "slice them up". They were then forced to accompany the defendant in his car. After a short drive, they were ordered out of the automobile. Defendant then hit complainant's boyfriend over the head with the gun and drove away with the complainant. The boyfriend memorized the license plate number and informed the police, who subsequently located the defendant's car. The complainant, found crying and hysterical in defendant's vehicle, stated that she had been raped. She was treated at a local hospital, where tests for the presence of seminal fluid proved positive.
A different version of events was offered by defendant who testified that he found the complainant hitchhiking in front of the motel, he picked her up and she requested a ride to Wyandotte, the complainant voluntarily had sexual intercourse with him in the car and then requested a ride back to the motel, where she was to meet a friend, the police stopped defendant's car along the way, the gun belonged to the complainant, defendant did not show his pocket knife to anyone, and he neither entered the motel room nor hit the complainant's boyfriend.
Defendant was charged with criminal sexual conduct in the first degree. MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). At trial, defendant testified that the sexual relations were consensual. The trial court, however, failed to instruct on consent. Defendant argues that the trial court erred in failing to instruct on his theory of defense. We agree and reverse.
Although defendant did not request a jury instruction on consent at trial, we are not precluded from considering this claim of error on appeal. The trial court is required to charge the jury concerning the law applicable to the case. People v Liggett, 378 Mich. 706, 714; 148 N.W.2d 784 (1967), People v Oberstaedt, 372 Mich. 521, 526; 127 N.W.2d 354 (1964), People v Lewis, 91 Mich. App. 542; 283 N.W.2d 790 (1979). As stated by the Supreme Court in People v Reed, 393 Mich. 342, 349-350; 224 N.W.2d 867 (1975):
"The instruction to the jury must include all elements of the crime charged * * * and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them."
The prosecutor argues that consent cannot be a defense to a charge of criminal sexual conduct under MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), since the only elements of that offense are, first, that there be sexual penetration and, second, that the sexual penetration occur while the actor is armed. Although the explicit language of the 1974 statute, 1974 PA 266, effective April 1, 1975, may seem to support the prosecutor's position we find that consent remains a defense to the charged offense of sexual misconduct. The 1974 statute provides:
"Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
* * *
"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon." MCL 750.520b(1)(e); MSA 28.788(2)(1)(e).
In People v Khan, 80 Mich. App. 605; 264 N.W.2d 360 (1978), we considered the continued viability of consent as a defense to a charge of criminal sexual conduct under the provision of the 1974 statute.
"Although the statute is silent on the defense of consent, we believe it impliedly comprehends that a willing, noncoerced act of sexual intimacy or intercourse between persons of sufficient age who are neither `mentally defective', MCL 750.520a(c); MSA 28.788(1)(c), `mentally incapacitated', MCL 750.520a(d); MSA 28.788(1)(d), nor `physically helpless', MCL 750.520a(e); MSA 28.788(1)(e), is not criminal sexual conduct. Otherwise, there would be no reason for the foregoing definitional sections to employ terms referring to an ability to appraise or control one's conduct or to communicate unwillingness to an act. Nor would there be any apparent reason for permitting the discretionary use of evidence of the victim's past sexual conduct with the actor, MCL 750.520j(1)(a); MSA 28.788(10)(1)(a), other than to show previous instances of consensual sex." People v Khan, supra, 619, fn 5.
"The new criminal sexual conduct act does not speak in terms of the victim's consent or will but of whether `force or coercion is used to accomplish the sexual penetration' or `contract'. MCL 750.520a, et seq.; MSA 28.788(1) et seq. The act provides that the `victim need not resist the actor'. MCL 750.520; MSA 28.788(9).
"The primary issue is whether force or coercion is used; non-consent may, it would appear, be an inference from evidence of force or coercion. Consent would, of course, be a defense." People v Oliphant, supra, (LEVIN, J., dissenting) 510, fn 8. (Emphasis supplied.)
Although the statute does not specifically address the defense of consent, its various provisions when considered together clearly imply the continuing validity of that defense. Certainly the Legislature, in eliminating the necessity of proof of nonconsent by the prosecution, did not intend to preclude an accused from alleging consent as a defense to the charge.
The defense of consent seems to have been recognized by this Court on other occasions. See People v Dawsey, 76 Mich. App. 741, 751-752; 257 N.W.2d 236 (1977), People v Perez, 86 Mich. App. 604, 607; 273 N.W.2d 496 (1978), and People v Payne, 90 Mich. App. 713; 282 N.W.2d 456 (1979).
In the instant case, Hearn's theory of defense was that the sexual intercourse was consensual. The court instructed the jury solely as to the two elements of the offense, that is, sexual penetration and the defendant being armed with a weapon. This was not sufficient. Defendant's theory of defense should have been presented to the jury in the instructions.
Defendant also argues that the trial court abused its discretion in ruling that the prosecutor had exercised due diligence in attempting to produce a res gestae witness at trial. We agree. The witness at issue was Dr. Orihuelah, the physician who examined and treated the complainant at the hospital. Dr. Orihuelah was endorsed on the information as a witness.
33 Mich App 254; 189 N.W.2d 740 (1971), People v Kelly, 30 Mich. App. 154; 186 N.W.2d 72 (1971). Further, once an individual is endorsed on an information, the prosecution is obligated to produce that endorsed witness or satisfactorily explain the reasons for the absence. People v Baines, 68 Mich. App. 385, 386 fn 1; 242 N.W.2d 784 (1976), People v Kern, 6 Mich. App. 406; 149 N.W.2d 216 (1967).
The prosecution's duty to produce a res gestae witness is excused upon a showing that due diligence was used in attempting to secure the witness. People v McPherson, 84 Mich. App. 81; 269 N.W.2d 313 (1978), People v Buero, 59 Mich. App. 670; 229 N.W.2d 880 (1975). The level of diligence required of the prosecution is "devoted and painstaking application to accomplish [the] undertaking". People v McPherson, supra, 85.
In the instant case, the testimony given concerning the prosecution's efforts in securing the witness showed that the investigating officer contacted a hospital where the physician had been working and was informed that the witness had taken employment at another hospital and that at the second hospital, the officer found out that the witness "was leaving" for Texas in order to practice medicine there. After these initial efforts in June, 1978, no further inquiry was made. The trial was conducted three months later.
Based on the above, we conclude that the efforts expended by the prosecution were insufficient to meet the McPherson standard of due diligence. The fact that the witness was leaving for Texas did not excuse the prosecution from any further effort to locate him. Three months passed between the ascertaining of this knowledge and the commencement of the trial. Further reasonable efforts, including the contracting of the Texas Medical Association, could have been pursued.
Due to the disposition of the case on the previous issues, several additional matters raised by defendant need not be addressed.
The defendant's conviction is reversed and the case is remanded for a new trial.