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Docket Number

No. 4 January Term 1971, Docket Nos. 52,687, 52,793, 52,800.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people. Marvin Blake ( Norman L. Zemke, P.C., of counsel), for defendant Ronald Phillips on appeal. Sherwin Schreier ( Norman L. Zemke, P.C., of counsel), for defendants Michael C. Lee and Larry Lengyel on appeal.

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Smart Summary

Case Summary: People v. Phillips; People v. Lee; People v. Lengyel

Factual and Procedural Background

Ronald Phillips, Michael C. Lee, and Larry Lengyel, together with three others, were charged in a single-count information with the forcible rape of a 16-year-old complainant. All six defendants were tried jointly before a jury for a four-week trial without objection and without prior motions for separate trials. One defendant was acquitted; five defendants were convicted.

The five convicted defendants appealed to the Court of Appeals, which affirmed their convictions (20 Mich. App. 103). Leave to appeal to this Court was granted to Phillips on February 3, 1970 (383 Mich. 765), and to Lee and Lengyel on May 20, 1970 (383 Mich. 784); the cases were consolidated. No leave to appeal was filed by two of the convicted defendants.

At trial, defendants advanced differing factual defenses: Phillips asserted the acts were consensual and that heavy drinking rendered him physically incapable of intercourse; Lengyel denied any relations with the complainant; Lee denied intercourse, claiming the complainant rejected him because he was married. Approximately 10–12 hours after the alleged offense, arresting officers observed writings on the defendants' bodies and certain items (e.g., a torn brassiere around Lengyel's neck, prophylactics on Phillips and Lee). Photographs were taken at the police station showing the men nude from the waist up; those photographs and testimony about their appearance at arrest were admitted at trial.

Legal Issues Presented

Whether appellants were denied a fair trial and due process by the prosecuting attorney's conduct (side comments and additional remarks during trial).
Whether admission of photographs of the defendants taken at arrest (10–12 hours after the alleged offense) and testimony describing their appearance at arrest was reversible error given relevance and potential prejudice.

Arguments of the Parties

Appellants' Arguments

The prosecutor repeatedly made side comments and nonlegal remarks during trial, often after court rulings; although sometimes the remarks were stricken, most remained in the record; this misconduct denied appellants a fair trial and due process.
The photographs taken at arrest and testimony describing the defendants' appearance were neither relevant nor material to the charged offense and were inflammatory and prejudicial, outweighing any probative value.

People's (Prosecution's) Arguments

The photographs and related testimony were admissible to characterize the defendants' mental attitude and intent and to corroborate the complainant's testimony.
The prosecution relied on MCLA § 768.27 to show that evidence of other acts tending to show motive or intent is admissible when motive or intent is material.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
20 Mich. App. 103	The Court of Appeals' decision affirming the convictions on appeal.	Referenced as the intermediate appellate decision affirmed by this Court; factual detail was said to be sufficiently covered in that opinion.
People v. Petty (1926), 234 Mich. 282	That assault with intent to rape is a distinct crime from rape and punishable as a felony.	Cited to support that intent is the gist of the assault-with-intent offense, distinguishing it from rape.
People v. Guillett (1955), 342 Mich. 1, 6	Support for the rule that assault with intent to rape focuses on intent as its gist.	Used with Petty to show the separate nature of assault with intent to rape and relevance of intent.
People v. Gibbons (1932), 260 Mich. 96	An accused charged with rape may be convicted of lesser included offenses (assault with intent to rape, assault and battery, simple assault).	Supports the proposition that lesser included offenses are possible convictions in a rape prosecution.
People v. McKee (1967), 7 Mich. App. 296 (leave to appeal denied 379 Mich. 785)	Identifies lesser included offenses in a rape charge.	Cited to affirm that the listed offenses are recognized lesser included offenses.
People v. Jones (1935), 273 Mich. 430	The trial judge's duty to instruct on lesser included offenses depends on evidence and requests; refusal to give a requested instruction is reversible error, but absence of a request means no error in failing to instruct.	Applied to explain when a trial court must give instructions on included offenses and to frame the issue of requests for instructions in this case.
People v. Milhem (1957), 350 Mich. 497	Where evidence would support conviction of a lesser offense, the trial judge may, sua sponte, instruct on the lesser offense even absent a request.	Invoked to justify the trial judge's sua sponte instruction to the jury on included offenses despite absence of a request by some defendants.
People v. Blanchard (1904), 136 Mich. 146	Even if evidence supports guilt of the higher offense, conviction of a lesser offense is not precluded.	Used to support the proposition that a jury may convict of a lesser offense even when evidence could support the greater charge.
People v. Norman (1968), 14 Mich. App. 673	Same principle as Blanchard regarding lesser offenses being possible despite evidence of the greater crime.	Reinforced the court's statement that lesser convictions remain possible.
United States v. Summerour (ED Mich, 1968), 279 F. Supp. 407	Intent is a state of mind that may be inferred from facts and circumstances.	Applied to support that the defendants' physical condition at arrest could be used to infer intent.
People v. Manchester (1926), 235 Mich. 594	Admissibility and permissible use of evidence of other acts with respect to intent and related purposes; related to limiting instructions.	Listed among authorities supporting that evidence of other acts may be considered for intent and that omission of a limiting instruction without request is not error.
People v. Digione (1930), 250 Mich. 206	Similar authority on admissibility of other acts and use for proving intent.	Combined with other cited cases to justify admission and use of the arrest-appearance evidence.
People v. Clark (1954), 340 Mich. 411	Authority concerning admission of evidence of other acts and the role of limiting instructions.	Cited in support of allowing the jury to consider such evidence on intent and related issues absent a requested limiting instruction.
People v. George Baker (1967), 7 Mich. App. 7	Authority on admission of other acts evidence and the jury's consideration of such evidence.	Included among cases supporting the court's approach to evidentiary use for intent.
People v. Anderson (1968), 13 Mich. App. 247	Authority on the same evidentiary principle and limiting instruction practice.	Used with other cases to justify the court's conclusion that omission of a limiting instruction was not error absent a request.

Court's Reasoning and Analysis

The Court considered numerous assignments of error raised on appeal but focused on two principal issues: prosecutorial conduct and the admission of photographs/testimony concerning the defendants' appearance at arrest.

Prosecutorial Conduct: The Court reviewed appellants' allegations that the prosecutor repeatedly made side comments and nonlegal remarks, often after rulings on objections, and that the remarks remained in the record. The Court observed that objections were made trial-by-trial and that the trial judge ruled on those objections as they arose. Crucially, appellants conceded they did not move for a mistrial on the basis of prosecutorial misconduct. Given the absence of a motion for mistrial and on the record presented, the Court found no basis to conclude a prejudicial condition existed that deprived appellants of a fair trial, and therefore declined to find reversible error regarding the prosecutor's conduct.

Admission of Photographs and Arrest-Testimony Evidence: The Court analyzed whether photographs taken at arrest (10–12 hours after the alleged offense) and testimony about the defendants' appearance were admissible. The Court noted that intent is not an essential element of rape, but that assault with intent to rape is a separate crime where intent is the gist. The Court explained that where evidence would support conviction of a lesser included offense (such as assault with intent to rape), the jury may convict of that offense; the duty to instruct on such offenses depends on requests and the evidence. Although two defendants did not request instructions on lesser offenses, the trial judge nevertheless instructed the jury on those offenses; the Court held that this was not error and that a trial judge may, sua sponte, instruct on lesser offenses when warranted by the evidence.

The Court further stated that intent may be inferred from facts and circumstances, and that the defendants' physical condition at arrest (including writings on their bodies and other items observed by officers) constituted part of the facts and circumstances. Therefore, the photographs and descriptive testimony had a material bearing on state of mind and were properly considered by the jury on the issue of intent. The Court also addressed the absence of a limiting instruction: it held that failure to instruct the jury that the arrest-related evidence could be considered solely for intent was not error because no request for such a limiting instruction was made. The Court cited MCLA 768.29 and applicable court rules and cases in support of this point.

Finally, viewing the evidence in its totality, the Court concluded that, if believed by the jury, the evidence was ample to sustain the convictions.

Holding and Implications

Holding: The convictions of defendants Ronald Phillips, Michael C. Lee, and Larry Lengyel were affirmed.

Implications: The direct consequence is that the defendants' convictions stand. The Court found no reversible error in the prosecutor's in-trial comments given the record (including absence of a mistrial motion) and affirmed the admissibility and jury consideration of photographs and testimony concerning the defendants' appearance at arrest as relevant to intent. The opinion does not state that it establishes a new legal rule or broader precedent beyond applying existing statutes and case law to the facts; it affirms that a trial judge may instruct on lesser included offenses sua sponte and that evidence of other acts may be considered for intent, subject to the procedural requirement that a limiting instruction must be requested to be required.

Opinion delivered per curiam. T.M. Kavanagh, C.J., and Justices Black, Adams, T.E. Brennan, T.G. Kavanagh, Swainson, and Williams concurred.

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PEOPLE v. PHILLIPS PEOPLE

PER CURIAM.

FACTS AND PROCEEDINGS

Defendants Phillips, Lee and Lengyel, together with three others, were charged in a single-count information with forcible rape of a 16-year-old complainant. All six defendants were tried jointly before a jury without objection and in the absence of any prior motions for separate trials. One defendant was acquitted. The five convicted defendants appealed to the Court of Appeals where their convictions were affirmed. ( 20 Mich. App. 103.) The facts are sufficiently detailed in the majority and dissenting opinions of that Court and need not be repeated here. We granted leave to appeal to defendant Phillips on February 3, 1970. ( 383 Mich. 765.) Leave to appeal was granted to defendants Lee and Lengyel on May 20, 1970, and the three cases ordered consolidated. ( 383 Mich. 784.) No requests for leave to appeal were filed by the remaining two defendants.

QUESTIONS INVOLVED

The trial of defendants covered a period of four weeks. There are numerous assignments of error. We consider only two to merit discussion.

First, appellants contend they were denied a fair trial and due process of law because of the conduct of the prosecutor during the trial. Appellants describe the situation this way:

"Throughout the trial the prosecuting attorney persisted in making side comments and additional remarks, generally nonlegal in character, many times after the court had made its ruling upon objections raised. Often motion was made to have the comment stricken, and sometimes they were. Most of the time, however, the remarks were permitted to stay in the record."

Objections made during the trial to the comments and added remarks supplied by the prosecutor were addressed to the judgment and discretion of the trial judge in ruling on each occasion as it arose. We are not convinced that a condition of prejudice prevailed which prevented a fair trial. Appellants concede there was no motion for mistrial made in the trial court on the ground of misconduct of the prosecutor. On such record we are unwilling to find reversible error.

Second, appellants urge that the trial judge committed reversible error in admitting in evidence photographs of them taken at the time of their arrest, some 10 to 12 hours after the alleged offense, and in allowing testimony describing their appearance when arrested. The arresting officer testified that at the time of the arrest certain writings, generally considered to be obscene sexual expressions, were on the bodies of each man. He stated further that defendant Lengyel had a torn brassiere around his neck and that defendants Lee and Phillips had prophylactics hanging from their clothing. Shortly after their arrival at the police station, the three were photographed nude from the waist up in both front and rear positions which is admittedly unusual police procedure.

During the trial, Phillips defended on the ground that whatever acts he committed with reference to the complainant were done with her consent and that, due to his drinking for the better portion of the previous two days, he was physically incapable of engaging in an act of sexual intercourse even though the opportunity was present; Lengyel denied he had relations of any kind with the complainant; and Lee denied having intercourse with the complainant, claiming she rejected him because he was married.

In the cross-examination of defendant Lengyel, the prosecutor inquired into the facts and circumstances of his arrest and whether there was any writing on his body when arrested. Over the objection of defense counsel, the prosecutor was permitted to show photographs to Lengyel and inquire if they served to refresh his memory as to the writings on his body at the time of his arrest. Lengyel agreed as to the presence of the writings but could not recall that anyone had put them there. He was also shown photographs of defendants Phillips and Lee, purporting to show writings on their bodies at the time of arrest, and was interrogated regarding the identity of those defendants as shown in the photographs.

Appellants argue that the admission of the photographs in evidence was error, claiming they were neither relevant nor material to the offense charged, and that any probative value of the pictures was nullified by their inflammatory character and prejudicial effect. The people's response is that the photographs served to characterize the mental attitude and intent of the defendants to carnally ravish and that they are corroborative of the testimony of the complainant. The prosecutor relied on the statute which provides:

"In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant." MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050).

Defendants were charged in the information with feloniously and unlawfully by force and against her will ravishing etc., a female over the age of 16 years. The crime is commonly known as rape. MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). In a prosecution for rape, intent is not an essential element. 4 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 2176, p 2396.

Assault with intent to rape is a crime separate from rape and is likewise punishable as a felony by MCLA § 750.85 (Stat Ann 1962 Rev § 28.280). The gist of this offense is intent. People v. Petty (1926), 234 Mich. 282; People v. Guillett (1955), 342 Mich. 1, 6.

An accused charged with rape may be convicted of assault with intent to commit rape, assault and battery, or simple assault. People v. Gibbons (1932), 260 Mich. 96. These are lesser included offenses in a charge of rape. People v. McKee (1967), 7 Mich. App. 296, leave to appeal denied. ( 379 Mich. 785.)

Where a request has been made to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error but, in the absence of such a request, the trial court does not err by failing to instruct on the included offenses. People v. Jones (1935), 273 Mich. 430.

In the case at bar, there was no request by defendants Phillips and Lengyel for an instruction on included offenses. There was such a request by defendant Lee. Nonetheless, the trial judge instructed the jury as to all defendants on the included offenses. This was not error. Where no request to charge has been made but there is evidence during the trial which would support a conviction of a lesser offense, the trial judge may, sua sponte, instruct on the lesser offense. People v. Milhem (1957), 350 Mich. 497.

Even though the evidence for the people, if believed, shows the defendant to be guilty of the offense charged, this does not preclude a conviction of a lesser offense. People v. Blanchard (1904), 136 Mich. 146; People v. Norman (1968), 14 Mich. App. 673.

In this case, each of the defendants denied forcibly raping the complainant and each testified as to the details of his conduct with complainant at the time of the alleged offense. If their testimony was believed by the jury, there was no concert of action among them or with the other defendants to commit a forcible rape. The jury could have found each defendant guilty of assault with intent to rape. Such a verdict would be substantiated by proof of a specific intent. The presence or absence of such specific intent was a question for the jury.

Intent is a state of mind which may be inferred from facts and circumstances established beyond a reasonable doubt. United States v. Summerour (ED Mich, 1968), 279 F. Supp. 407. Part of the facts and circumstances of this case was the physical condition in which defendants were found at the time of their arrest — about 12 hours after the alleged offenses had been committed. The photographs and description of the appearance of these defendants at the time of their arrest had a material bearing on their state of mind which the jury was entitled to consider as to the issue of intent. The fact that the trial judge did not instruct the jury that this evidence could be considered solely for that purpose was not error since there was no request for a limiting instruction. MCLA 768.29 (Stat Ann § 28.1052); GCR 1963, 516.2, and 785.1; People v. Manchester (1926), 235 Mich. 594; People v. Digione (1930), 250 Mich. 206; People v. Clark (1954), 340 Mich. 411; People v. George Baker (1967), 7 Mich. App. 7; People v. Anderson (1968), 13 Mich. App. 247.

Viewed in its totality, the evidence presented during the four-week trial, if believed by the jury, is ample to sustain the conviction of these defendants. The convictions are affirmed.

T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.

PEOPLE v. PHILLIPS