People v. Ford , 47 Mich. App. 420 ( 1973 )

47 Mich. App. 420 (1973) 209 N.W.2d 507

PEOPLE
v.
FORD

Docket No. 14277.

Michigan Court of Appeals.

Decided May 24, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Judith K. Munger, Assistant State Appellate Defender, for defendant.

Before: V.J. BRENNAN, P.J., and DANHOF and BASHARA, JJ.

Decided May 24, 1973. Remanded to Court of Appeals for reconsideration in lieu of grant of leave to appeal, 391 Mich ___.

DANHOF, J.

Defendant was convicted by a jury of rape, MCLA 750.520; MSA 28.788, and kidnapping, MCLA 750.349; MSA 28.581. He was sentenced to concurrent terms of 10 to 20 years on each count. We affirm defendant's conviction of rape and reverse the kidnapping conviction, remanding for a new trial.

The complaining witness testified at trial that at approximately 11:15 p.m. on the evening of November 28, 1970 she was on her way home from work at Harper Hospital. After taking two buses, she decided to walk the remaining distance to her home. A car went past her and then made a U-turn. There were two men in this car, one of whom shouted, "Hey you, babe, come here". The complaining witness stated that she kept on walking, but the two men got out of the car, subdued her, and dragged her into the back seat of the car where she was subsequently blindfolded. One of the men had a gun. They drove about two or three blocks and then stopped. One of the men got into the back seat, went through the complainant's purse, then ordered her to remove her clothing. This man then raped her. Next, the other man in the car raped her. All three persons then got in the front seat of the car. The complainant was still blindfolded. She stated that she submitted to these acts because of the threat of the pistol and because she overheard the men arguing over whether or not to kill her.

The complainant testified that after each man had raped her, they drove around for about 15 minutes. She stated that she believed they stopped at one place but left because one man said, "Too many people in there". She testified that they next stopped at another place, identified as the Oaks Motel located at 6075 Fourteenth Street in Detroit, and that one of the men, whom she identified as the defendant, Lindberg Ford, went into the motel in order to get a room. The other man remained in the car with the complainant, but removed her blindfold. She further stated that it was the defendant who first raped her in the back seat of the car, identifying him by his sideburns. When the defendant returned, both men got out of the car with the complainant and proceeded to look for the room which had been rented. They encountered a maid who informed them that only one man and one woman were permitted in a room at the same time. The complainant stated that the "older man", not the defendant, went back to the car. The defendant then took the complainant to the room where he again allegedly raped her. She further stated that she went to the room because the defendant had a gun in her back. The defendant, after raping her, ordered her to remain in the room because his friend would be coming in soon. As soon as the defendant left the room, the complainant grabbed her clothes, ran to another room, and closed the door. She overheard the two men looking for her. She waited in this room for about two hours. She stated that the telephone in this room was not working.

The complainant testified that she notified the motel clerk that she had been "kidnapped and raped". The police were summoned. She testified that at a later date she was shown some photographs by the police from which she identified one as being a picture of the defendant.

The testimony of most of the other witnesses need not be considered because the defendant, who did not take the stand, does not challenge the weight or sufficiency of the evidence. Three defense witnesses testified as alibi witnesses, claiming that they and the defendant were at a party on the night in question.

We must reverse defendant's conviction of kidnapping in the light of a recent opinion by our Supreme Court, People v Adams, 389 Mich. 222 (1973). The Adams decision holds that asportation or movement is an essential element of the crime of kidnapping, except perhaps kidnapping involving secret confinement; that the existence of asportation is a question of fact; that a jury charge omitting an instruction on asportation is inadequate, even absent a request. There was no instruction on asportation in the instant case. Upon retrial of the kidnapping charge, the jury should be instructed on the element of asportation as required by Adams, supra.

Defendant contends that certain remarks by the prosecutor made in reference to the defendant's alibi witnesses constitute reversible error. We disagree. While we do not condone such remarks, we point out that they were made in closing argument and passed without objection. Had objection been made, it is clear that an immediate cautionary instruction would have eliminated any prejudice arising from the prosecutor's conduct. This precludes review. People v Oliver, 29 Mich. App. 402 (1971); People v Page, 27 Mich. App. 682 (1970); cf. People v Humphreys, 24 Mich. App. 411 (1970). Furthermore, an examination of the instructions to the jury reveals a specific reference to the difference between argument and evidence.

Defendant contends that the prosecutor committed reversible error by failing to produce all of the photos which were shown by the police to the complaining witness, even in the absence of a defense request to do so. On the day after the alleged rape and kidnapping, the complainant was shown eight photos by the police, one of which was a photograph of the defendant. She identified the defendant as her assailant. The defendant was not yet in custody and he makes no claim of any Sixth Amendment right to counsel violations.

At trial, defendant did not object to the testimony with respect to this photograph, nor to the complainant's ability to make an untainted incourt identification of the accused. Yet now, for the first time on appeal, defendant contends that the police intentionally discarded the other seven photos so as to deprive him of any means of testing whether any unfairness was involved in the showing of these photos to the complainant.

There is absolutely nothing in the record to substantiate defendant's claim in this regard. In People v Anderson, 42 Mich. App. 10 (1972), cited by the defendant, the accused had made a motion at trial with respect to the fairness involved and the inability of police to produce all of the photos. This Court remanded for an evidentiary hearing to ascertain whether or not the investigation had focused on the accused, who was being held by another police department on an unrelated charge. The trial court was also ordered to consider the inability of the prosecutor to produce all of the photos in assessing whether or not the prosecution could meet its burden of proving that the photographic display was not suggestive. In the instant case, there was no motion by the defendant at trial. Absent such a motion, and confronted only with defendant's conjecture that the photographic identification might have been suggestive, we hold that the issue has not been properly preserved for review. People v Council, 36 Mich. App. 682, 684-685 (1971).

Lastly, defendant contends that the trial court relied upon impermissible and misleading information in determining his sentence. Defendant alleges error in this regard because the presentence report included an arrest for uttering and publishing which resulted in a refusal to issue a warrant. Defendant also contends that the presentence report was misleading because it listed the same crime of aggravated assault five times without clearly indicating that it was only one crime.

First of all, there is no basis for determining that the trial judge was misled by the fact that defendant's conviction of aggravated assault was listed five times. There is no foundation in the record to indicate that the trial judge read this list otherwise than just as it was intended, that is to show the various places where defendant was incarcerated for the commission of this crime.

Concerning the listing of defendant's arrest for uttering and publishing, which arrest resulted in a refusal to issue a warrant, we are referred to the case of People v Zachery Davis, 41 Mich. App. 683, 686 (1972). In that case, the court made repeated references to pending charges and, in spite of defendant's protestations of innocence, these charges, together with the fact that defendant felt no remorse for the allegations contained therein, were clearly taken into account when defendant was sentenced. In the instant case, an examination of the transcript of defendant's sentencing yields no evidence whatsoever to the effect that the trial judge affirmatively relied upon the arrest which resulted in a refusal to issue a warrant in assessing the sentence imposed.

Affirmed in part, reversed in part.

All concurred.