Michigan Court of AppealsApr 18, 1983
124 Mich. App. 745 (Mich. Ct. App. 1983)
124 Mich. App. 745336 N.W.2d 761

Docket No. 55742.

Decided April 18, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janis L. Blough, Chief Appellate Attorney, and Charles R. Toy, Assistant Prosecuting Attorney, for plaintiff.

Lick, Emery and DeVine (by Lawrence J. Emery), for defendant.

Before: BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.


On October 3, 1980, defendant was convicted by a jury of breaking and entering with intent to commit criminal sexual conduct, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), and was subsequently sentenced to concurrent terms of from 7-1/2 to 15 years and 10 to 20 years imprisonment. He appeals as of right.

The question of when defendant cut his hair and shaved was one of the major factual issues. The complainant testified that defendant had long hair and a mustache during the rape, but was clean shaven with short hair when she identified him a few hours later. Defendant testified that his wife had cut his hair on March 5, 1977 — four days before the crime. His wife testified that she did it the day before the crime. On the other hand, three other witnesses testified that they saw defendant very early on March 9, 1977, with long hair and a mustache.

During cross-examination, defendant specifically denied telling a police officer that he had his hair cut and mustache shaved the day of the crime. The police officer later testified in rebuttal that he had in fact told her that. Although she saved the written report of this interview, she destroyed her preparatory notes. Defendant now argues that her testimony violates the rule of People v Rosborough, 387 Mich. 183, 194-195; 195 N.W.2d 255 (1972):

"We conclude that if the reports of the officers prepared at the end of a day's work are to be allowed in evidence, they must be accompanied by the fragmentary notes from which each report was prepared. Only in this fashion will it be possible for counsel for a defendant to proceed with a meaningful cross-examination of the officer."

However, the police report in the present case was not admitted as evidence. Rosborough applies only where the report itself is admitted into evidence as a past recollection recorded. This distinction was brought out in People v Matuja, 77 Mich. App. 291, 294; 258 N.W.2d 79 (1977):

"When, as here, a witness testifies from memory, with his recollection having been stirred by a writing, his testimony is what he relates, not the writing."

Defendant's next argument, however, is more serious. He claims that destroying the notes violates his right to due process. Where evidence has been suppressed, we look to see: (1) whether the suppression was deliberate; (2) whether the evidence was requested; and (3) whether "hindsight discloses * * * that [the] defense could have put the evidence to not insignificant use". People v Dorsey, 45 Mich. App. 230, 235; 206 N.W.2d 459 (1973), lv den 389 Mich. 793 (1973).

The prosecutor, relying on People v Gibson, 115 Mich. App. 622, 629; 321 N.W.2d 749 (1982), lv den 414 Mich. 889 (1982), argues that defendant has not shown that these destroyed notes would have been favorable. However, since they were destroyed soon after they were made and were never shown to defendant, we fail to see how defendant could have shown this.

These original notes of defendant's statement were material evidence. People v Wallace, 102 Mich. App. 386; 301 N.W.2d 540 (1980). The prosecution and the police have the duty to retain such notes: "We cannot stress too strongly the importance of retention by the police of their original notes and records * * *". People v Poe, 388 Mich. 611, 620; 202 N.W.2d 320 (1972).

If the police destroyed the notes in bad faith or intending to deprive the defendant of evidence, this Court would reverse. People v Albert, 89 Mich. App. 350; 280 N.W.2d 523 (1979). However, not every failure to keep these notes requires reversal. People v Fiorini (On Rehearing), 59 Mich. App. 243; 229 N.W.2d 399 (1975), lv den 395 Mich. 790 (1975). Even though the police destroyed these notes "intentionally", they did not do it either in bad faith or to deprive defendant of evidence. The police officer testified that the evidence was destroyed pursuant to departmental policy to save space. In People v Jeffrey Johnson, 113 Mich. App. 650, 657; 318 N.W.2d 525 (1982), this Court addressed a similar issue:

"The police policy of destroying fingerprint evidence after 30 days, when it has been determined that a positive matchup is not possible from the latent prints, is not looked on by this Court with great favor. Although we recognize the need to control the number of files or the types of materials that are kept in police files from growing too large, we must bear in mind the importance of maintaining evidence which may play a crucial part in a defendant's proving of his case. In the instant case where the fingerprints evidence was destroyed in accordance with police policy and procedure and there has been no evidence presented of intentional misconduct, suppression or bad faith, the facts do not compel us to use the destruction of this evidence as a basis for the reversal of defendant's conviction * * *."

See also People v Oliver, 111 Mich. App. 734; 314 N.W.2d 740 (1981); People v Hardaway, 67 Mich. App. 82; 240 N.W.2d 276 (1976).

In this case, reversal is not required even though defendant's cross-examination was unnecessarily restricted. First, defendant did not request the notes before their destruction. Second, the witness testified that she was testifying from memory and not from her report which was written from the notes. Third, the evidence was admitted merely for impeachment. Fourth, this evidence was cumulative: three others testified that defendant had long hair and a mustache that morning. Fifth, the evidence against defendant was very strong.

Defendant next argues that the complainant's identification testimony at trial should have been suppressed. He first argues that he should have been given the opportunity to have counsel present when the complainant identified him at the gas station.

Although a defendant is generally entitled to counsel during identifications, this is not always true during a prompt on-the-scene identification. People v Anderson, 389 Mich. 155, 187, fn 23; 205 N.W.2d 461 (1973). There are different types of on-the-scene identifications. The first type of situation is where the defendant is taken to the witness or where the witness is taken to the defendant who is being detained. Examples can be found in People v Purofoy, 116 Mich. App. 471; 323 N.W.2d 446 (1982), and People v Starks, 107 Mich. App. 377; 309 N.W.2d 556 (1981), lv den 413 Mich. 901 (1982). Whether or not defendant is entitled to counsel in this situation depends on whether or not "the police have very strong evidence that the person stopped is the culprit". People v Turner, 120 Mich. App. 23, 36; 328 N.W.2d 5 (1982). The on-the-scene identification is justified because it allows confirmation or denial while the witness's memory is still fresh and it expedites the release of innocent suspects. People v Johnson, 59 Mich. App. 187; 229 N.W.2d 372 (1975). These advantages are balanced against the inherent suggestiveness of the one-on-one identification itself. Turner, supra; People v Dixon, 85 Mich. App. 271; 271 N.W.2d 196 (1978), lv den 406 Mich. 906 (1979).

Another type of on-the-scene identification situation occurs when the victim accompanies the police while searching the area for the criminal. The situation in People v Nathaniel Johnson, 113 Mich. App. 414; 317 N.W.2d 645 (1982), is very close to this type of situation. In this type of situation, counsel is obviously not required because the suspect is not even really a suspect until after the victim has identified him. Requiring counsel here would be clearly impractical.

The present situation presents a third variation of an on-the-scene identification, because the complainant already knew who her assailant was before the "identification". She was not taken to see defendant in hopes of stirring a recollection upon seeing him but rather merely to point out to the police the man she had already designated to them as her assailant. As such, an identification of the type described in People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974), did not occur, and the inherent suggestiveness normally present in an on-the-scene identification is therefore absent.

Defendant next argues that the identification at his preliminary parole revocation hearing without the presence of his counsel should have been suppressed at trial. However, because defendant has failed to provide us with a transcript of the preliminary parole violation hearing, we can only deem the issue as waived. People v Kelly, 122 Mich. App. 427; 333 N.W.2d 68 (1983).

Because we realize that this lapse is defense counsel's and not defendant's, we might have been inclined to remand to allow defendant to obtain the necessary records. However, we do not believe that the in-court identification was sufficiently tainted even if defendant were deprived of his right to counsel at this particular identification. See People v Kachar, 400 Mich. 78; 252 N.W.2d 807 (1977).

Defendant also argues that the two identifications were impermissibly suggestive. However, the fairness of the procedure is evaluated in the light of the totality of the circumstances. People v Lee, 391 Mich. 618; 218 N.W.2d 655 (1974). The test is not whether it is suggestive but rather whether the totality of the circumstances shows it to be reliable. Neil v Biggers, 409 U.S. 188; 93 S Ct 375; 34 L Ed 2d 401 (1972). Viewing the facts in this case, we do not believe that the identifications were impermissibly suggestive.

Defendant also argues, based on People v Solomon, 391 Mich. 767; 214 N.W.2d 60 (1974), that the identification at the preliminary examination confrontation was unnecessarily suggestive as well. However, in this case, the complainant had already identified defendant before the preliminary examination. Furthermore, the length of time between the crime and the preliminary examination was only about a month. In addition, the complainant testified that she had plenty of time to see the defendant clearly during the crime itself. As such, this case is controlled by People v Belenor, 71 Mich. App. 10; 246 N.W.2d 355 (1976), rev'd on other grounds 408 Mich. 244; 289 N.W.2d 719 (1980), and People v Manuel Johnson, 58 Mich. App. 347; 227 N.W.2d 337 (1975), lv den 396 Mich. 851 (1976).

Citing People v Morris, 77 Mich. App. 561; 258 N.W.2d 559 (1977), lv den 402 Mich. 844 (1977), defendant next argues that his conviction should be reversed with prejudice because of prosecutorial misconduct. Defendant's first trial was aborted after a mistrial was declared during the prosecutor's opening argument. His second trial was reversed on a peremptory order (the prosecutor conceding) because the prosecutor had improperly questioned some of defendant's witnesses about defendant's religious beliefs and practices. Although conceivably these two instances could be considered in determining a pervasive pattern of prosecutorial misconduct, they are not sufficient in and of themselves. Neither error occurred at defendant's last trial. The normal remedy for prosecutorial misconduct is a new trial, not total dismissal.

The prosecutor mentioned certain prior criminal acts without being able to prove that they were committed by defendant.

The three other instances are more pertinent. First, a report written by Detective Bauer indicated that defendant's employer saw defendant at the gas station at 10 a.m. when defendant came in to pick up a calculator. However, the employer testified that defendant came there at about 8:30 a.m. Defendant now claims that the document itself was altered by changing the time noted in the report from 10 to 8:30. Second, the prosecutor cancelled a line-up identification. Finally, defendant claims the prosecutor in his opening statement in one of the earlier trials misrepresented the time marked on a traffic ticket defendant claimed he witnessed. Defendant argued the time on the ticket supported his alibi defense and that the prosecutor stated the time was a half hour later than that actually written on the ticket.

However, looking at these instances, we do not believe that any misconduct here was so prevalent and crucial as to require reversal. See People v Tait, 99 Mich. App. 19; 297 N.W.2d 853 (1980). The police document alteration seems neither crucial nor sinister on closer examination. First, Officer Bauer testified at trial that the gas station owner had in fact told him that he had seen defendant at 10 a.m. As such, defendant was able to bring this discrepancy before the jury. Furthermore, the crucial part of the owner's testimony was that he had seen defendant unshaven that morning. Whether this occurred at 8:30 or 10 a.m. is immaterial.

The cancelling of the line-up identification was not in and of itself pernicious. Defendant could have requested a line-up himself, as he retained counsel only about five or six days later.

We agree that the prosecution should not have argued that the traffic ticket was issued at 9:45 a.m. However, the ticket itself was available at this trial. This initial "failure to investigate properly" did not prejudice defendant in the present trial.

Defendant next argues that improper hearsay evidence was admitted when the complainant's friend testified that complainant told her, "My God, I know him, it's my mechanic". About a half hour after the rape, the complainant telephoned a friend, who arrived at her apartment about ten minutes later. This statement was made soon afterward. The only rule that would conceivably permit this hearsay evidence is MRE 803(2): "Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition." The admission of such evidence is usually within the trial judge's discretion. Browning v Spiech, 63 Mich. App. 271; 234 N.W.2d 479 (1975). For evidence to be admitted under this exception, the statement must arise out of a startling occasion, must have been made before the declarant has had time to contrive and misrepresent, and must relate to the startling occasion's circumstances. People v Gee, 406 Mich. 279, 282; 278 N.W.2d 304 (1979). The circumstantial probability of reliability is furnished through the excitement of the moment. People v Cunningham, 398 Mich. 514; 248 N.W.2d 166 (1976).

Obviously, the declarant's statement arose out of a startling occasion and related to that startling occasion's circumstances. The chief question is whether or not it was made before there had been time to contrive and misrepresent. Actual contrivance or misrepresentation is not necessary to disqualify the evidence. "How long can excitement prevail? Obviously, there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor." Slough, Spontaneous Statements and State of Mind, 46 Iowa L Rev 224, 243 (1961).

MRE 803(2) is identical to FRE 803(2). The Federal Advisory Committee Note states: "Spontaneity is the key factor * * *". Michigan Court Rules Annotated — Evidence Rules, p 679. In People v Ivory Thomas, 14 Mich. App. 642, 649; 165 N.W.2d 879 (1968), Judge (now Justice) LEVIN wrote in concurrence:

MRE 803(2) did not change prior Michigan law. Michigan Court Rules Annotated — Evidence Rules, p 674.

"[T]he emotional impact of a startling event, `which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.'"

See also Carter v C F Smith Co, 285 Mich. 621; 281 N.W. 380 (1938).

The prosecutor failed to establish a sufficient foundation in the present case to have this evidence admitted. First, the record is unclear whether or not the statement was made in response to a specific question. The witness testified that she had spoken to the complainant before the complainant made the statement. Although the fact that a statement has been made in response to questions does not in and of itself preclude the statement from being an excited utterance, it is a factor militating against admitting it. Holtz v L J Beal Son, Inc, 339 Mich. 235, 240; 63 N.W.2d 627 (1954).

Second, the statement was made at least 40 minutes after the event. In Rice v Jackson, 1 Mich. App. 105; 134 N.W.2d 366; 13 ALR3d 1104 (1965), this Court upheld the admission of a statement made 20-25 minutes after a fire started. However, in Rice the fire, a continuing event, was still raging. In the present case, the rape had ended by the time the statement was made.

The witness testified that the complainant was upset and crying when she arrived at the complainant's residence. However, we cannot really say that the statement was a spontaneous response to the event. The complainant composed herself enough in the half-hour period following the rape to make the phone call. The statement was not made until ten minutes after that phone call. We cannot conclude, based on this record, that the complainant was still within the grip of the event.

"Proof that between the event and the statement the declarant performed tasks requiring relatively careful thought, of course, is strong evidence that the effect of the exciting event has subsided." McCormick, Evidence (2d ed), § 297, p 706.

However, this error is harmless. Because complainant had already identified defendant as the assailant, it was cumulative. Cunningham, supra, 398 Mich. 523 (WILLIAMS, J., concurring); People v Roberson, 90 Mich. App. 196; 282 N.W.2d 280 (1979), lv den 407 Mich. 908 (1979); People v Debreczeny, 74 Mich. App. 391, 397; 253 N.W.2d 776 (1977) (KELLY, J., concurring). In addition, the other evidence against defendant was very strong.

Defendant next argues that the term "mental anguish" as used in the criminal sexual conduct statute, MCL 750.520a(f); MSA 28.788(1)(f), is unconstitutionally vague. It has been held that:

"A criminal statute is impermissibly vague if it does not provide fair notice of the conduct proscribed, confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed, or if its coverage is overbroad and impinges on First Amendment freedoms * * *." People v Thompson, 76 Mich. App. 705, 709; 257 N.W.2d 268 (1977), lv den 402 Mich. 829 (1977).

On the other hand:

"Even though the statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly construed so as to render it sufficiently definite to avoid vagueness, and where defendant's conduct falls within that proscribed by the properly construed statute." People v Harbour, 76 Mich. App. 552, 558; 257 N.W.2d 165 (1977), lv den 402 Mich. 832 (1977).

The prosecutor argues that any vagueness problem has been cured by People v Gorney, 99 Mich. App. 199; 297 N.W.2d 648 (1980), lv den 410 Mich. 911 (1980). Declaring that it was trying to avoid "finding the statute unconstitutionally vague" and "to preserve the integrity of the criminal sexual statute as a whole", 99 Mich. App. 207, Gorney interpreted the words "mental anguish" to mean "extreme mental anguish" even though the Legislature had expressly rejected using the words "extreme mental anguish or trauma" to define "physical injury" as that term is used in the criminal sexual conduct statute. This interpretation has since been criticized by other panels on this Court. People v Reese, 114 Mich. App. 644; 319 N.W.2d 610 (1982); People v Baker #2, 103 Mich. App. 704; 304 N.W.2d 262 (1981), held in abeyance 412 Mich. 859 (1981). The most telling criticism of Gorney, however, was made in People v Jenkins, 121 Mich. App. 195, 200-201; 328 N.W.2d 403 (1982):

"In our opinion, the Gorney panel's substitution of `extreme' mental anguish for the statutory phrase `mental anguish' is merely a semantic exercise which results in redundancy and unnecessary confusion. The term `anguish' is defined in Webster's Third New International Dictionary as `extreme pain' and `excruciating distress'. Therefore, in common usage, the term `mental anguish' means extreme pain or excruciating distress of the mind. Viewed in this light, the Gorney panel's requirement of `extreme' mental anguish results in a redundancy." Jenkins then went on to state:

We do realize, however, that Minnesota's criminal sexual conduct statute, Minn § 609.342(e)(i), uses the term "severe mental anguish".

"[T]he proper inquiry to determine whether there is sufficient evidence of the mental anguish element is whether the victim suffered any significant degree of mental distress greater than that normally attendant to criminal sexual assaults accomplished by force or coercion." 121 Mich. App. 201.

See also People v Gwinn, 111 Mich. App. 223, 257; 314 N.W.2d 562 (1981) (MAHER, J., dissenting).

We agree with Jenkins. In viewing the criminal sexual conduct statute as a whole, we note that, overall, the basic distinction between first-degree and third-degree criminal sexual conduct is that first-degree criminal sexual conduct is an aggravated form of third-degree criminal sexual conduct. The crime of first-degree criminal sexual conduct involves proof of sexual penetration accompanied by proof that the victim was under 13 years of age, that the victim was under 16 years of age but a member of the same household, that the penetration occurred during another felony, that the defendant was aided or abetted (under certain circumstances), that the defendant was armed, or that the victim was personally injured. These six different factors are all aggravating factors elevating a criminal act of sexual penetration to a crime whose maximum punishment is life imprisonment. Therefore, as a matter of statutory construction, the emotional distress that a victim suffers must be more than the average victim suffers. As such, testimony that the victim is hysterical, upset, and crying is insufficient by itself to establish "mental anguish" within the meaning of the statute.

We note that soon after Jenkins was decided, the Prosecuting Attorneys Coordinating Counsel newsletter asked: "Query: What is a `normal' response to being raped?". We agree that this is a good question and that its resolution will require sensitivity to both the victim's plight and the legal question involved.

To solve this problem, we return to Gorney. Although we do not believe it was correctly reasoned, we believe Gorney was correctly decided. In defining "extreme mental anguish", Gorney stated that it "may include the need by the victim for psychiatric care or some interference with the victim's ability to conduct a normal life, such as absence from the workplace". 99 Mich. App. 207. These factors are helpful in now determining whether the victim suffered significantly more mental distress than the average victim. We believe that one key to this determination is whether or not the victim has suffered lasting effects. In one instance, this standard may be met where the rape has so unnerved the victim that he or she is unable to go to work for a while. See Baker #2, supra. In another instance, the psychological effects may last inordinately long, although the victim is able to work. In Jenkins, the victim was given a prescription for Valium two days after the rape. Twelve days later, she discontinued the Valium and another medicine was prescribed to treat her insomnia.

Gorney also seems to have reached its result in redefining "mental anguish" out of a fear that the statute would be unconstitutional if second-degree criminal sexual conduct and fourth-degree criminal sexual conduct proscribed precisely the same activities. Although good statutory interpretation shows that the two statutes do not cover precisely the same conduct, as a matter of federal law such a result would not be unconstitutional:
"So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.
"* * * [W]hen an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants * * *.
"The Court of Appeals * * * [concluded that] when two statutes prohibit `exactly the same conduct,' the prosecutor's * * * discretion could produce `unequal justice,' [and such] * * * legislative redundancy was [dubiously] constitutional. * * * We find this analysis factually and legally unsound.
"* * * The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. * * * Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced." United States v Batchelder, 442 U.S. 114, 123-125; 99 S Ct 2198; 60 L Ed 2d 755 (1979).
See also People v Ford, 417 Mich. 66; 331 N.W.2d 878 (1982).

A similar situation is present here. The victim testified that she still had trouble sleeping three years after the rape. Furthermore, she missed three days from work. We believe that this evidence, coupled with the evidence that she was very upset and crying after the incident, is sufficient to constitute "mental anguish" under the act.

Defendant next argues that his convictions for both first-degree criminal sexual conduct and breaking and entering with intent to commit criminal sexual conduct violate the prohibition against double jeopardy. We disagree. Because the aggravating factor elevating the criminal sexual conduct to first-degree criminal sexual conduct is not the breaking and entering, double jeopardy does not preclude convictions for both. People v Stinson, 113 Mich. App. 719; 318 N.W.2d 513 (1982); People v Armstrong, 100 Mich. App. 423; 298 N.W.2d 752 (1980), lv den 412 Mich. 865 (1981); People v Flores, 92 Mich. App. 130; 284 N.W.2d 510 (1979), lv den 407 Mich. 932 (1979). In People v Davenport, 122 Mich. App. 159; 332 N.W.2d 443 (1982), we held that a breaking and entering is completed once the defendant is inside the building. Therefore, a conviction for a crime he subsequently commits once inside the building does not constitute double jeopardy.

Therefore, People v Swearington, 84 Mich. App. 372; 269 N.W.2d 467 (1978), is distinguishable.

Defendant next argues that the trial judge erred in allowing a prosecution rebuttal witness to testify, even though the notice of alibi rebuttal statute had not been complied with. MCL 768.21(2); MSA 28.1044(2). See People v Terry Alexander, 82 Mich. App. 621; 267 N.W.2d 466 (1978), lv den 406 Mich. 936 (1979). However, notice was not required here because the witness was not an alibi rebuttal witness but an impeachment witness. People v Haisha, 111 Mich. App. 165; 314 N.W.2d 465 (1981); People v Gillman, 66 Mich. App. 419; 239 N.W.2d 396 (1976).

Defendant also argues that his due process rights were denied when this Court denied his motion to remand. Some cases have held that such a denial is the law of the case. People v Douglas, 122 Mich. App. 526; 332 N.W.2d 521 (1983); People v Wiley, 112 Mich. App. 344; 315 N.W.2d 540 (1981). Whether or not we have the power to remand, we do not believe that defendant would benefit. The instances of prosecutorial misconduct that support his claim for a remand to establish a factual basis are just not that sinister. We cannot see how such evidence would merit reversal. Anyway, defendant should have appealed this Court's denial of his remand petition to the Supreme Court or have filed a motion for rehearing in this Court rather than attacking it collaterally.