PEOPLE OF MI V PETER JOSEPH SUTTON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 12, 2002
Plaintiff-Appellee,
v
No. 234680
Roscommon Circuit Court
LC No. 00-004003
PETER JOSEPH SUTTON,
Defendant-Appellant.
Before: Owens, P.J., and Talbot and Meter, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of third-degree criminal sexual conduct,
MCL 750.520d(1)(c) and was sentenced as an habitual offender, second offense, MCL 769.10, to
a prison term of 84 to 270 months. He appeals as of right. We affirm.
The female victim and two of her male friends, defendant and “Nate” went together on an
overnight hunting trip. The three friends drank beer and liquor around the campfire. Nate left
the other two and went to sleep in a trailer. The victim and defendant later went to sleep fully
clothed in a tent. According to the victim, at some time before five a.m., she awoke and found
herself partially unclothed with defendant penetrating her vaginally with his penis. She
exclaimed, “What the f*** are you doing?” He said, “I can’t believe you are not Tish,” a
reference to the name of his girlfriend.
Defendant was charged with violating MCL 750.520d(1)(c), which prohibits sexual
penetration when “the actor knows or has reason to know that the victim is mentally incapable,
mentally incapacitated, or physically helpless.” “Physically helpless” includes being asleep.
MCL 750.520a(i).
Defendant first argues that the case should be remanded for a Ginther1 hearing to develop
a record concerning whether trial counsel was ineffective for failing to investigate the victim’s
actions on the evening after the incident. We note that another panel of this Court previously
denied defendant’s motion to remand for an evidentiary hearing, filed with a supporting
affidavit, because the Court was not persuaded of the need for remand at that time. We likewise
conclude that remanding the case is unnecessary. The affidavit is signed by an individual who
1
People v Ginther, 390 Mich 426; 212 NW2d 922 (1973).
-1-
claims to have seen the victim “partying throughout the evening as if nothing traumatic or out of
the ordinary occurred.” Contrary to defendant’s argument, this affidavit does not suggest that
trial counsel failed to investigate. The individual who signed the affidavit was listed as a
possible witness for the defense. Although trial counsel did not call the witness to testify at trial,
this decision does not suggest a lack of investigation. Defendant has not shown that the case
merits a remand for an evidentiary hearing on this issue. People v Ho, 231 Mich App 178, 191;
585 NW2d 357 (1998).
Defendant next argues that the case should be remanded for an evidentiary hearing
concerning the “newly discovered evidence,” specifically the account of the potential witness
referenced above. To obtain a new trial on the basis of newly discovered evidence, a defendant
must show that the evidence is newly discovered, not cumulative, would probably have caused a
different result and was not discoverable and producible at trial with reasonable diligence.
People v Davis, 199 Mich App 502, 515; 503 NW2d 457 (1993). Trial counsel’s inclusion of
this individual on the defense witness list shows that this evidence is not newly discovered and
was discoverable and producible at trial. Moreover, newly discovered evidence is not a ground
for a new trial where, as here, it would be used for impeachment purposes. Id. 516. Therefore,
defendant is not entitled to relief on this basis.
Finally, defendant argues that the court abused its discretion by precluding defendant
from arguing consent as a defense during closing argument.
Defense counsel asked the court to instruct the jury concerning consent pursuant to CJI2d
20.27. The court refused the request because the court determined that there was no evidence of
consent.2 Defense counsel asked the court if its ruling precluded counsel from arguing consent
to the jury on the basis of reasonable inferences from the facts. Defense counsel asserted that the
victim’s consent could be reasonably inferred from her choice to sleep in a tent with defendant,
the implausibility of her claim to be asleep while defendant removed her clothing and penetrated
her, and the physical evidence that did not show injury consistent with forced intercourse. The
court disagreed with counsel’s assessment of the evidence and explained that, in the absence of
evidence of consent, counsel’s argument would in effect be a request for jury nullification. In
addition, the court expressed its concern that the prosecution had not had the opportunity to
present evidence showing the absence of consent because there had not been any evidence to put
the affirmative defense of consent into controversy.3 The court ruled that defense counsel could
not raise the issue of consent during his closing argument, but could argue “general credibility.”
The general principles concerning the proper scope of closing arguments in criminal trials
are most often stated in the context of defense challenges to the prosecution’s closing arguments.
Case law establishes that the prosecution may argue the evidence and all reasonable inferences
from the evidence as it relates to the prosecution’s theory of the case. People v Bahoda, 448
Mich 261, 282; 531 NW2d 659 (1995). However, we have held that there must be a factual basis
for the intimations made, and “[i]nnuendo has no place in a criminal trial.” People v Marchese,
2
Defendant does not challenge the court’s refusal to instruct the jury concerning consent
pursuant to CJI2d 20.27.
3
In this regard, the court cited People v Thompson, 117 Mich App 522; 324 NW2d 22 (1982).
-2-
84 Mich App 775, 777; 270 NW2d 687 (1978); People v Pauli, 138 Mich App 530, 543; 361
NW2d 359 (1984). These holdings are equally applicable in determining whether the court
abused its discretion by limiting the scope of defendant’s closing argument. People v Green, 34
Mich App 149, 152; 190 NW2d 686 (1971); People v Edwards, 55 Mich App 256, 264; 222
NW2d 203 (1974). The court has a duty to limit the argument of the prosecution and the defense
to “relevant and material matters, with a view to the expeditious and effective ascertainment of
the truth regarding the matters involved.” MCL 768.29.
Consent was not a material issue in this case. There was no evidence that prior to the
incident, the victim consented to sexual relations with defendant. To the extent that defense
counsel wanted to make such an argument, the trial court properly excluded it. Consent during
the incident was relevant only inasmuch as the victim’s ability to indicate consent shows that she
was not “physically helpless” i.e. “unconscious, asleep, or for any other reason is physically
unable to communicate unwillingness to an act.” MCL 750.520a(i). Thus, the disputed issue in
this case was not whether the victim consented, but rather whether she was “physically helpless,”
and therefore, unable to consent. The trial court did not abuse its discretion by refusing to allow
defense counsel to argue consent when that issue was not material to the outcome of the case.
Moreover, the error, if any, was harmless. The court’s ruling did not prevent defense counsel
from arguing that the victim’s account was implausible and not supported by the physical
evidence. Defense counsel further suggested that her objection to the sexual activity was due to
defendant’s ejaculation, which caused her to be concerned about pregnancy. Although defense
counsel did not explicitly refer to “consent” during closing argument, the trial court’s ruling did
not prevent defense counsel from effectively arguing the defense theory of the case.
Affirmed.
/s/ Donald S. Owens
/s/ Michael J. Talbot
/s/ Patrick M. Meter
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
