Opinion
Docket No. 77-3549.
Decided August 20, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offender Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Cooper, Shifman Gabe (by Philip H. Seymour), for defendant on appeal.
Defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520(b)(1); MSA 28.788(2)(1), and one count of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to life imprisonment on each count and appeals by right.
On July 17, 1976, Linda Hollins was at a motel with a friend, Stephen Harris. At or about 3:30 a.m., defendant forcibly entered the room with a gun in his hand. He ordered Harris to get into the closet. Defendant then asked Ms. Hollins for money and dope and took approximately $25 from her purse.
After taking the money, defendant made Ms. Hollins perform fellatio while he held the gun to her head. He then told her to get into the closet and stay there for five minutes. When Harris and Ms. Hollins came out of the closet they noted that Harris's shoes and money from his pants were missing.
Defendant was identified by Ms. Hollins in a lineup held on November 26, 1976.
Defendant's initial arguments concern the trial court's instructions. He contends the trial court failed to specifically instruct the jury that to be guilty of first-degree criminal sexual conduct defendant must have committed a sexual act. Furthermore, defendant contends the trial court failed to instruct the jury on intent and asportation as elements of armed robbery.
While defendant did not object to the court's instructions at trial, it is incumbent upon the judge to instruct on all elements of the charged crime even in the absence of a request by the defendant. Failure to object does not waive the defendant's right to review in these circumstances. People v Price, 21 Mich. App. 694; 176 N.W.2d 426 (1970).
Defendant's contention that the trial court should have given CJI 20:2:04 which defines "sexual act" is without merit. The note to that section indicates the instruction must be given when there is any question about the sexual nature of the act. Here, the facts indicate defendant forced Ms. Hollins to perform fellatio. There is no question about the sexual nature of this act. Hence, it was not error to omit CJI 20:2:04.
We also reject defendant's argument concerning the armed robbery instructions. A review of the transcript reveals that the jury was instructed on both specific intent and asportation.
Defendant next argues that the trial court committed reversible error by sua sponte instructing the jury regarding the disposition of defendant should he be found not guilty by reason of insanity. In the absence of an objection this Court will not reverse unless manifest injustice is shown. People v Samuelson, 75 Mich. App. 228; 254 N.W.2d 849 (1977). Defendant has failed to demonstrate such a result.
Defendant also argues that the prosecutor's comments regarding the disposition of defendant as a result of a verdict of not guilty by reason of insanity mandate reversal. While the general rule proscribes such comment by either counsel, no reversible error occurs where, as here, the comments of the prosecutor were in response to defense counsel's remarks and were brief and not prejudicial. People v Hall, 83 Mich. App. 632; 269 N.W.2d 476 (1978), People v Blake, 58 Mich. App. 685; 228 N.W.2d 519 (1975).
Defendant also argues that the trial court committed reversible error by admitting the testimony of an expert witness, Dr. Margolis, who testified that in his opinion defendant was not insane at the time of the offense.
Dr. Margolis was a psychiatrist who examined the defendant pursuant to a court ordered evaluation. Dr. Margolis based his opinion, in part, upon a chart compiled during defendant's 30-day stay at the forensic center. MCL 330.2028(3); MSA 14.800(1028)(3) provides in part:
"Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation."
We find that Dr. Margolis's testimony was admissible under this provision. Furthermore, a foundation did not have to be laid prior to the witness's testimony, but was properly brought out upon cross-examination. GCR 1963, 605, People v King, 58 Mich. App. 390; 228 N.W.2d 391 (1975).
Defendant's argument that the trial court erred in considering incorrect information contained in the presentencing report was not preserved for appeal. See People v Powell, 87 Mich. App. 192, 194; 274 N.W.2d 16 (1978).
Defendant's contention that the constitutional protection against double jeopardy was violated when he was convicted on two separate counts of criminal sexual conduct where there was only one act is correct. People v Willie Johnson, 406 Mich. 320; 279 N.W.2d 534 (1979). Therefore, his conviction on the second count of first-degree criminal sexual conduct is reversed and the sentence imposed for that charge is vacated.
Defendant's other two convictions are affirmed.