Opinion
Docket No. 77-1546.
Decided June 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels L. Olson, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for defendant.
Before: M.J. KELLY, P.J., and D.E. HOLBROOK, JR. and BEASLEY, JJ.
Defendant was convicted by a jury of kidnapping, armed robbery and two counts of criminal sexual conduct in the first degree. The convictions stemmed from an incident in which a Windsor woman whose car had become disabled on a Detroit freeway was abducted by a group of men and taken to an apartment where she was held against her will for over 12 hours and was raped repeatedly. A motorist who had been assisting the woman with her car was robbed by the same men and locked in the trunk of his car. Following sentencing to four life terms, defendant appeals as of right.
MCL 750.349; MSA 28.581.
MCL 750.529; MSA 28.797.
MCL 750.520b; MSA 28.788(2).
The first claim of error raised by defendant is that his motion for a mistrial was improperly denied when a juror had to be excused during the trial after becoming emotionally upset by the proceedings. The claim is without merit. Defendant has failed to allege either specific facts or circumstances warranting a holding that the remaining jurors were prejudiced against defendant as a result of the incident. We decline to hold that there was a clear abuse of discretion by the trial court in denying defendant's motion for a mistrial.
People v Jenkins, 10 Mich. App. 257; 159 N.W.2d 225 (1968).
People v Diamond, 231 Mich. 484, 487; 204 N.W. 105 (1925).
Defendant next contends that exposure of some members of the jury to media coverage of the trial resulted in prejudice to defendant. The record indicates three jurors admitted they had heard radio reports about the trial. Two heard reports regarding the general course of the trial, and the third said he heard a report that four other men involved in the incident had been convicted. None of the three had communicated what they had heard to other jurors, and all three asserted that hearing the reports had not affected their ability to remain impartial. Absent a stronger showing of prejudice, defendant is not entitled to relief. There was no abuse of discretion by the trial court in denying defendant's motion for a mistrial on this ground.
People v Parker, 76 Mich. App. 432; 257 N.W.2d 109 (1977).
It is next argued by defendant that the criminal sexual conduct act is unconstitutionally overbroad. Some authorities have expressed the view that a statute may be overbroad if, by its terms, it covers innocent as well as criminal or proscribed conduct. The criminal sexual conduct act suffers no such infirmity. Defendant contends further that the statute must fall because it "allows the prosecution to go to the jury with several charges of Sexual Activity when in fact only one act of intercourse may have occurred". Neither of the cases cited by defendant support that proposition.
MCL 750.520a et seq; MSA 28.788(1) et seq.
People v Penn, 70 Mich. App. 638; 247 N.W.2d 575 (1976).
Defendant cited People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), in which it was held that a defendant may not be charged on two separate occasions and put through separate trials for criminal acts that arise out of one transaction. He also cited People v Willie Johnson, 75 Mich. App. 221; 255 N.W.2d 207 (1977), which held contrary to defendant's position that presentation to the jury of several counts as alternatives under the criminal sexual conduct statute was not improper. Even if we assume the Supreme Court adopts the so-called lenity rule of People v Willie Johnson rather than the exposition of legislative intention articulated in People v Nelson, 79 Mich. App. 303; 261 N.W.2d 299 (1977), there would not appear to be error here.
Nor do we find under the facts of the within case that defendant was charged or convicted of several counts of sexual misconduct based on "only one act of intercourse". Complainant was kidnapped and held captive for over 12 hours. During that time she was raped numerous times by at least four or five people. Defendant was identified as one of the persons who had raped her and who was present during some of the other incidents of rape during her period of captivity. Defendant was charged with raping complainant with the assistance of aiders and abettors or by force. He was also charged with aiding and abetting one Joseph Evans in engaging in criminal sexual conduct in the first degree, i.e., forced penetration during the perpetration of a felony-kidnapping. Defendant was also convicted on this charge. The acts of Joseph Evans represent a separate criminal transaction from the penetration committed by defendant. We decline to hold that a separate sentence for each conviction under such circumstances would amount to impermissible multiple punishment for a single criminal act.
Defendant's other claims of error are equally without merit.
Affirmed.
D.E. HOLBROOK, JR., J., concurred.
I dissent as to the affirmance of the conviction on the second count of criminal sexual conduct in the first degree. There is a division on our Court between the position adopted in People v Robinson, 80 Mich. App. 559; 264 N.W.2d 58 (1978), People v Secreto, 81 Mich. App. 1; 264 N.W.2d 99 (1978), as against Judge BEASLEY'S view in People v Nelson, 79 Mich. App. 303; 261 N.W.2d 299 (1977). I subscribe to the reasoning in People v Robinson, supra, that the legislative intent is not so clear as to permit multiple punishments for a single act of criminal sexual penetration.
Although defendant could have properly been charged and convicted as an aider and abettor to his companions in addition to his conviction as principal for a separate act, because of the charge given, his conviction on the second count must be reversed.
I concur as to affirmance on the other three counts.