People v. Smith , 30 Mich. App. 34 ( 1971 )

30 Mich. App. 34 (1971) 186 N.W.2d 61

PEOPLE
v.
THOMAS SMITH
PEOPLE
v.
WATROS

Docket No. 8686.

Michigan Court of Appeals.

Decided January 22, 1971. Leave to appeal granted August 12, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.

Fred D. Falkinburg, for defendants on appeal.

Before: FITZGERALD, P.J., and QUINN and McINTYRE,^[*] JJ.

Leave to appeal granted August 12, 1971. 385 Mich. 778.

QUINN, J.

Defendants were charged with and tried for the statutory rape^[1] of defendant Watros' 15-year-old daughter Jacqueline. They were found guilty by a jury; they were sentenced and they appeal.

Defendant Watros and her children, including Jacqueline, were living with defendant Smith in a house rented by him. Defendants decided that Jacqueline should marry defendant Smith and there is testimony indicating that Smith and Jacqueline became engaged, although she testified that she did not wish to marry Smith.

Jacqueline testified that on March 8, 1968, the defendants came to her bedroom where she was in bed. That her mother told Jacqueline to have sexual intercourse with Smith and that the act of sexual intercourse was accomplished in the presence of the mother. Although defendants agree that there were plans for Jacqueline to marry Smith, they deny that Smith had sexual intercourse with Jacqueline. Other facts pertinent to the appeal will be stated in the discussion of the issues raised on appeal.

Over objection, Jacqueline was permitted to testify to subsequent acts of sexual intercourse with Smith. On the theory that this testimony was relevant to Smith's intent, the testimony was admitted under MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050). At the time he ruled that this testimony was admissible, the trial judge said he would instruct on it, and he did. In essence, the court instructed the jury to disregard the testimony of subsequent acts of sexual intercourse, except for the limited purpose of showing the relations between the parties and Smith's opportunity to have sexual relations with Jacqueline on the occasion charged.

Defendants contend that the admission of this testimony was reversible error. We do not agree. The testimony was relevant to "opportunity and disposition of the parties". People v. Askar (1967), 8 Mich. App. 95. Once relevancy of the testimony is established, it is discretionary with the trial judge to admit or reject it. In exercising that discretion, he must weigh the probative value of the testimony as opposed to its prejudicial effect on defendants. People v. Shaw (1968), 9 Mich App 558. The trial judge did not abuse his discretion in this instance.

Defendant Smith claims it was reversible error to admit in evidence a statement he gave to the police because he was not advised that interrogation would cease at his request. He contends that such a warning is required by Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974). This contention is incorrect. If a defendant under interrogation requests that the interrogation cease, it must cease, but he does not have to be forewarned of that fact. People v. Tubbs (1970), 22 Mich. App. 549. There is no indication on this record that defendant Smith requested cessation of interrogation.

Defendants assert reversible error occurred from prejudicial remarks of the prosecuting attorney in closing argument. No objection was made to these remarks at trial, nor did defendants request an instruction on these remarks. This error is not preserved for appeal unless a showing of miscarriage of justice is made. People v. Panknin (1966), 4 Mich. App. 19. There is no showing of miscarriage of justice.

Defendants contend that they were denied due process of law because they were not arrested until August 21, 1968, for an offense allegedly occurring March 8, 1968. In support of this contention, they cite People v. Hernandez (1968), 15 Mich. App. 141. The majority opinion in Hernandez did hold that delay in arrest could violate due process rights. Only one judge of this Court signed that opinion and we have not found a single case which relied on Hernandez as precedent for the error here asserted. In People v. Noble (1969), 18 Mich. App. 300, three judges of this Court declined to follow Hernandez and held "there is no constitutional right to be arrested". Hoffa v. United States (1966), 385 U.S. 293 (87 S. Ct. 408, 17 L. Ed. 2d 374).

At sentencing, defendants' appointed counsel was not present but an attorney from that counsel's firm was present. Relying on People v. Theodorou (1968), 10 Mich. App. 409, defendants claim reversible error. In Theodorou, there was no representation at sentencing. The case before us is controlled by People v. Edwards (1969), 18 Mich. App. 526, and no error is shown.

Affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCLA § 750.520 (Stat Ann 1954 Rev § 28.788).