Defendant was charged with and, after a two-day jury trial, convicted of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant was sentenced on November 4, 1980, to serve 8 years minimum and 14 years maximum. Defendant appeals as of right.
The alleged victim of this crime, Victoria (Vicki) Stoneburner, testified that she is six years old and that when she was five defendant put his "thingie” (penis) in her mouth. He also put it in her "cooter” (vagina). She testified that when she screamed and cried, defendant slapped her on the face and the chest. Defendant told her she would get a whipping if she told anyone.
On cross-examination she testified that she told her mother the next day that defendant said to suck it and that he put it in her "cooter”. She further testified that she never saw her mother with her mouth on defendant’s penis.
Deborah Stoneburner, Vicki’s mother, testified that she was with defendant on September 21, 1979, and Vicki was present also. Around 9 p.m., defendant asked her to get a clock from defendant’s mother’s home. She testified that she went home with Vicki the next day. She then testified as to what her daughter told her concerning this incident. It appeared that Vicki initiated the conversation without being prompted by Deborah.
Mason County Deputy Ray Anderson testified that he took a statement on October 18, 1979, from defendant after informing him of his rights under
Miranda v Arizona,
The written statement given by defendant on October 18, 1979, was read into the record, there being no objection.
The prosecutor then sought a court ruling on two statements made by defendant on January 3, 1980, and January 4, 1980, one of which was suppressed while the other was admitted.
The jury found defendant guilty of criminal sexual conduct in the first degree.
I
The prosecutor made an offer of proof for the purpose of having the court rule on the admissibility of two statements taken from defendant on January 3, 1980, and January 4, 1980. He indicated that he and defense counsel agreed that defendant would take a polygraph examination and defendant did in fact take that examination. After the examination was finished, Lieutenant Garchow gave defendant his Miranda rights and defendant indicated he would talk to Garchow. Defendant said that "what Vicki Stoneburner had previously said in her statement was the truth”. That statement was overheard by officer Kreig who was in the next room observing the examination and the statement through a one-way mirror and could hear the entire conversation. In suppressing the January 3, 1980, statement, the court said:
"And, prior to the transporting occurring, the defense attorney had represented the defendant and the officers *371 were aware that the defense attorney had instructed the defendant not to communicate or to answer any questions. The court in this situation finds that the defense attorney agreed to the application of a polygraph test, and that that agreement would be limited to an application of a polygraph test, and that no permission would’ve been given for a follow through questioning or interrogation to take place. And, for that reason, the court finds that any statements that were made to the officer following that polygraph test would not be admissible in evidence against the defendant at this trial.”
The January 4, 1980, statement which the prosecutor wished to have admitted was taken at the sheriffs department by officer Kreig on the day following the polygraph examination. The court ruled that this statement was admissible because it felt "that when the defendant was back in Mason County, and that an overnight time period had taken place, that the defendant was then out of the influence or the effect of the polygraph situation. And, that he was also then removed from the effects of any stipulation that pertained to the allowance of the taking of a polygraph.”
In
Massiah v United States,
The Sixth Amendment right to counsel
"prohibits law enforcement officers from 'deliberately *372 eliciting]’ incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and the Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of 'interrogation’ under the Fifth and Sixth Amendments, if indeed the term 'interrogation’ is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional provisions are quite distinct.” Rhode Island v Innis,446 US 291 , 300, fn 4;100 S Ct 1682 ;64 L Ed 2d 297 (1980).
In
Edwards v Arizona,
— US —;
In the instant case, defendant had a preliminary examination on October 29, 1979, some two months prior to the challenged statement.
Finally, in
People v Paintman,
Accordingly, the statement was erroneously admitted at trial. The statement was taken in violation of defendant’s Sixth Amendment right to counsel under
Massiah
and its progeny and of defendant’s Fifth Amendment rights under
Miranda
and
Edwards,
no valid waiver having been shown. A reading of
Miranda
rights and the fact that defendant responds to subsequent questions is insufficient to establish a valid waiver.
Edwards, supra,
II
The information charged defendant with one count of sexual penetration with a person under 13 years of age. The prosecution backed up the charge with two different factual situations: fellatio and vaginal penetration. The district court bound the defendant over on the one and only crime charged — criminal sexual conduct in the first degree. The district judge then ruled that:
"[B]ased on the evidence that it has heard today that there is not probable cause to believe, nor is there competent proofs regarding the matter of actual penetration of the vagina of this alleged victim in this particular case. Court realizes that there was some testimony to that effect and I’m not going to take that away from the people in this case, but the court simply does not feel that the testimony in that regard was competent.
*374 "So, just so you understand me completely, what I’m binding this defendant over on is on the crime charged, the oral penetration with this alleged victim and the defendant, wherein the defendant allegedly placed his penis in her mouth.”
Defense counsel, prior to trial, objected to the endorsement of Dr. Carney who would testify on vaginal penetration. Defense counsel indicated that the circuit court did not have jurisdiction of the vaginal penetration claim by reason of the limitation stated by the district judge at the preliminary examination. The circuit court ruled as follows:
"The court then, this court would then interpret the language to simply mean that the district court was finding sufficient evidence to bind over. But, it was leaving it for further proceedings, including the trial stage, for any additional development of elements to be performed by the prosecution.”
Defendant is not arguing, nor has he ever argued, that it is improper to charge one crime based upon alternative facts. It is improper to charge a defendant with multiple counts of criminal sexual conduct when there was but one act.
People v Willie Johnson,
*375
Defendant’s main claim is that the circuit court was without jurisdiction to hear evidence relative to vaginal penetration. The district judge’s function was to determine whether a crime had been committed (which it found), and whether probable cause existed for charging defendant with that crime (it so found).
People v King,
"[I]f upon an examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which he is so satisfied.” Id., 154.
The ruling of the district judge did not limit the jurisdiction of the trial court because its ruling held that the crime had been committed, with probable cause to believe that defendant committed it. Consequently, the testimony of Dr. Carney was admissible.
To hold otherwise would place an unreasonable burden on the prosecution and would convert a threshold preliminary proceeding into a "dress rehearsal” of the actual trial.
We are more troubled by defendant’s argument that the jury may have convicted defendant without a unanimous determination of guilt. This possibility arises from the fact that some jurors may have been convinced that defendant committed the act of fellatio while others may have been convinced only that vaginal penetration had occurred, or vice versa. While we regard this as unlikely, we note that the potential recurrence of this problem can be avoided on retrial either by charging defen *376 dant with separate counts or by instructing the jury that they must find unanimously that defendant committed either one or the other of the acts in question.
Ill
Defendant argues that the trial court erred by permitting the mother of the five-year-old victim to testify to what the victim told her about his crime.
The tender-years exception to the hearsay rule has been defined as a spontaneous voluntary statement of a child to another person, despite a lapse of time between the incident and the statement, if the delay is adequately explained.
People v Davison,
The recent trend has been to allow this type of testimony under MRE 803(2).
People v Turner,
Although the tender-years exception as it once existed has not been specifically embodied in the Michigan Rules of Evidence, the statement of Vicki to her mother would appear to qualify as an excited utterance. It was a statement which related to a startling event. It was made within 24 hours after the event occurred and she could be considered still under the stress of excitement caused by that event. In Lovett, statements were found admissible even though made a week after *377 the event. Accordingly, the trial court did not err when it admitted this testimony.
In any event, since Vicki was present for cross-, examination and substantiated the allegedly inadmissible testimony, any error in the admission of that testimony can be considered harmless.
People v Payne,
Defendant argues that the court should have
sua sponte
disqualified itself from sentencing defendant on the basis of the trial court’s knowledge of the polygraph examination undergone by defendant. In general, a defendant must move to disqualify the judge or the issue is waived.
People v McLeod,
Even if the court should have raised the issue of disqualification,
People v Dockery,
In
People v Towns,
"The mere passing reference or mere mention of a polygraph test does not automatically give rise to prejudice necessitating reversal.”
People v Murry,
Defendant also claims that the trial court was prejudiced by hearing defendant’s involuntary confession which the court excluded. Even had a motion been made by defendant to disqualify the judge, he would have to show that the judge was prejudiced or biased in fact. The record in the instant case discloses neither.
People v Minier,
Defendant contends the sentencing was improper because it was based upon defendant’s refusal to admit guilt.
A court may not consider a defendant’s failure to admit guilt in imposing sentence.
People v Yennoir,
It does not appear that the court, in the instant case, was considering defendant’s failure to admit guilt in the imposition of sentence. The court noted that defendant had on occasion admitted *379 guilt but also that he denied guilt. The court did believe that defendant was guilty. The court’s main concern was that defendant could not deal with reality which would be a problem for him in the future.'The court did not take into consideration defendant’s failure to admit guilt, because in fact he had admitted guilt on other occasions.
In his remaining allegation of error defendant argues that he is entitled to be resentenced because he was not present at an in-chambers conference which dealt with sentencing.
Since defendant has not shown or alleged that he was prejudiced by his absence at this conference, his absence alone does not require resentencing.
People v
Pulley,
Reversed.