PEOPLE OF MI V RODRICK ROBERT STRELAU
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 1, 1997
Plaintiff-Appellee
v
No. 171679
Oakland Circuit Court
LC No. 93-122706
RODRICK ROBERT STRELAU,
Defendant-Appellant.
Before: Gribbs, P.J., and Sawyer and Young, JJ.
PER CURIAM.
A jury convicted defendant of second-degree criminal sexual conduct, MCL 750.520c; MSA
28.788(3). Defendant was sentenced to two and one half to fifteen years’ imprisonment. Defendant
appeals as of right. We affirm.
Defendant assaulted his estranged wife who was four and one half months pregnant. According
to the complainant, defendant threw her to the ground, lifted her skirt, pulled down her nylons and
underwear, and touched her vagina.
Defendant first raises multiple instances in which he argues he was denied the effective
assistance of counsel. We do not find any merit to his arguments. Each instance that defendant raises
was either trial strategy, which we decline to review, or did not prejudice the defendant in any way.
People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
Defendant next argues that the trial court erred in striking his motion for a new trial as being
untimely. Even assuming arguendo that there is merit to defendant’s claim, any error was harmless.
After striking defendant’s motion as untimely, the trial court held a Ginther1 hearing and, on its merits,
again denied defendant’s motion for a new trial based upon the ineffective assistance of counsel. The
other issues raised by defendant in his motion for a new trial have been raised on appeal, and we find
them to be without merit. Accordingly, any error was harmless.
Defendant also argues that he was denied his right to a fair trial because he was prevented from
questioning the complainant, his estranged wife, about an incident that happened two days before the
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CSC incident. Defendant raised this issue during pre-trial motions and the trial court reserved its ruling
for a later time, and instructed defendant to raise this issue again later. Defendant failed to do so, and
therefore, has not preserved this issue for appellate review. Because the record indicates that defendant
had the opportunity to raise the issue during trial, no manifest injustice will result from our failure to
review this issue. People v King, 210 Mich App 425, 432; 534 NW2d 534 (1995).
Defendant also argues that he was denied due process and a fair trial because the police
testified about evidence that had been destroyed. We note at the outset that defendant did not object to
the testimony below and therefore, we review the issue for manifest injustice. Unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law. Arizona v Youngblood, 488 US 51, 58; 109 S Ct
333; 102 L Ed 281 (1988). Because defendant does not offer any evidence to indicate bad faith on the
part of the police, nor does the record indicate any, manifest injustice will not result by this Court’s
failure to review this issue. People v Hunter, 201 Mich App 671, 677; 506 NW2d 611 (1993).
Defendant next argues that the trial court erred in failing to grant a mistrial, or instruct the jury to
disregard the evidence, when the complainant testified about a subsequent physical attack on her. We
disagree and note that defendant did not object to the complainant’s testimony nor did he request a jury
instruction.
Since defendant failed to request a mistrial on this basis, this Court will not reverse absent
manifest injustice. People v Wise, 134 Mich App 82, 105; 351 NW2d 255 (1984). Nor will this
Court reverse the trial court’s failure to give an unrequested jury instruction absent manifest injustice.
Haywood, supra at 230. In any case, an unresponsive, volunteered answer to a proper question is not
grounds for the granting of a mistrial. Id. We find no manifest injustice.
Defendant also argues that the trial court erred when it allowed in the testimony of the two
attending nurses and the police officers because the testimony was hearsay and did not fall under the
hearsay exception of statement made for medical purposes, MRE 803(4). Again, no objection was
raised below. See People v Todd, 186 Mich App 625, 629: 465 NW2d 380 (1980). Although there
was no reasonable necessity for defendant to be identified as the attacker, manifest injustice did not
occur since the challenged testimony was merely cumulative to that of the complainant’s testimony.
People v Van Tassel (On Remand), 197 Mich App 653, 655; 496 NW2d 388 (1992).
Defendant next argues that the trial court abused its discretion in making its sentencing
determination. Because defendant did not present unusual circumstances that would justify a downward
departure to the sentencing judge, this issue may not be raised on appeal. People v Sharp, 192 Mich
App 501, 505-506; 481 NW2d 773 (1992).
Defendant finally argues that he was denied his rights under MCR 6.425 because he was not
given the opportunity to review the PSIR before sentencing, and therefore, his sentence must be vacated
and this case remanded for resentencing. We disagree.
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MCR 6.425(B) in pertinent part states:
The court must permit the prosecutor, the defendant’s lawyer, and the defendant to
review the presentence report at a reasonable time before the day of sentencing.
MCR 6.425(D)(2)(a) requires the court at sentencing to confirm on the record that the defendant, his
attorney, and the prosecution have had an opportunity to read and discuss the PSIR. The staff
comments to this provision state the following:
The provision found in former 6.101(G) declaring that a failure to comply with the
provisions of that subrule “shall require resentencing” has been deleted from this
subrule. Whether failure to comply with a provision in this subrule will entitle a
defendant to resentencing depends on the nature of the noncompliance and must be
determined by reference to past case law or on an individual basis.
In People v Syakovich, 182 Mich App 85; 452 NW2d 211 (1989), the defendant argued that
he did not have the opportunity to review the report pursuant to MCR 6.101(K), now MCR 6.425.
This Court disagreed and held that the sentencing transcript showed that defense counsel had reviewed
the report and that he did not have any disagreements with it. Id. at 90. Furthermore, the defendant
had not raised the issue in his motion for resentencing and did not order that the motion hearing be
transcribed. Id.
In the case at bar, the trial court did not confirm on the record that defendant read the
presentence report. Thus, whether defendant is entitled to resentencing is determined by reference to
past case law or on an individual basis. Similar to Syakovich, defense counsel indicated he had
reviewed the report and found no inaccuracies. Furthermore, defendant does not cite any inaccuracies
with the report on appeal. Moreover, the trial court allowed defendant the opportunity to speak and
defendant freely raised numerous issues in his own defense, which were also set forth in the report.
Thus, based upon case law and the circumstances of this case, defendant is not entitled to resentencing.
Affirmed.
/s/ Roman S. Gribbs
/s/ David H. Sawyer
/s/ Robert P. Young, Jr.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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