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People v. Brooks9/9/2003
UNPUBLISHED
A jury convicted defendant of criminal sexual conduct in the first and third degrees. The victim was vaginally penetrated resulting in injury and orally penetrated. Defendant claimed consent and challenges the dismissal of a 13th juror when the juror was stranded with car trouble, identification through a photographic lineup, the admission of a claimed involuntary statement, the effective assistance of counsel, the admission of photographic evidence depicting the car where the oral sex occurred, the admission of testimonial evidence concerning the victim's physical and mental distress, sufficiency of the evidence, instructional error concerning a missing witness, and the proportionality of concurrent sentences of 16 to 50 and 12 to 30 years' imprisonment respectively.
Because we find no abuse of discretion on the issues of dismissal of the 13th juror, the admission of testimonial and photographic evidence, denial of a missing witness instruction, or sentencing within the prescribed guideline ranges, the claims of error fail. Unpreserved issues concerning the identification process and defendant's statement fail for want of plain error affecting substantial rights that are outcome determinative. The failure of counsel to preserve the identification and statement issues does not constitute ineffective assistance of counsel because the positions taken by counsel were strategic and consistent with the theory of defense. And the challenge to the sufficiency of the evidence fails because the credibility of witnesses is an issue for the jury together with the evidence presented as opposed to assertions of evidence not presented. We affirm.
I. Facts
This case arises from an incident that took place on the night of March 31 and April 1, 2000, beginning in Detroit and concluding in Madison Heights. The complaining witness testified that she had been drinking heavily at a club with her boyfriend, the two started arguing on the way home, and the complainant asked and was let out of the vehicle. After the complainant wandered the streets without finding a way home, defendant approached in his car and offered to assist her. Once she was in defendant's car he drove to a secluded area and physically forced her to perform oral sex on him. The complainant testified that she was allowed leave the vehicle to urinate near a dumpster. But defendant grabbed her and forcibly penetrated her with his penis.
Defendant was charged and convicted of first-and third-degree criminal sexual conduct. The trial court denied defendant's motion for new trial. This appeal followed.
II. Dismissal of a Juror
On the second day of trial, the trial court announced that car trouble had stranded one of the jurors, and that the juror would accordingly be dismissed. The court elaborated, " hat is the reason we select 13 jurors. He, in essence, is self-excluding him[self]." Defense counsel objected on the ground that the juror was only five or ten minutes away, to which the court replied, "I'd have to get a Sheriff, I'd have to get a car, they'd have to go pick him up, find him, and then we'd have to turn around and get him back here, transport him. That's an hour. I've been this route." The court added, "he could be the 13th juror picked by draw. God has picked him by draw right now."
A trial court's decision to excuse a juror in the course of trial is reviewed for an abuse of discretion. An abuse of discretion occurs only when a court's action is "so violative of fact and logic as to constitute perversity of will or defiance of judgment." MCL 768.18 provides that " hould any condition arise during the trial of the cause which in the opinio
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