People v. Lester , 50 Mich. App. 725 ( 1973 )

50 Mich. App. 725 (1973) 213 N.W.2d 793

PEOPLE
v.
LESTER

Docket No. 15340.

Michigan Court of Appeals.

Decided December 6, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, First Assistant Prosecuting Attorney, for the people.

Keyes, Creal & Hurbis, P.C. (by Thomas R. Burns), for defendant.

Before: T.M. BURNS, P.J., and V.J. BRENNAN and VAN VALKENBURG,^[*] JJ.

V.J. BRENNAN, J.

Defendant, Clark Lester, was convicted by a jury in the Washtenaw County Circuit Court of murder in the first degree (MCLA 750.316; MSA 28.548). A motion for new trial was filed on August 1, 1968. An evidentiary hearing on the motion was begun but was, on defense counsel's request, adjourned without date. A supplement to the motion for new trial was filed in August of 1971, and an evidentiary hearing held thereon. On August 4, 1972, the motion was denied. Defendant now appeals.

Defendant first contends that the admission of certain time cards into evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const 1963, art 1, § 20 and the Sixth Amendment to the United States Constitution. Although defendant objected to the admission of these cards when they were offered into evidence, his objection was based on relevancy. The prosecution contends that this Court should not now consider this issue because the objection below did not encompass the grounds for reversal now urged. We disagree. It is settled law in this state that failure to object does not preclude this Court from reviewing a claim where a constitutional right is likely to have been infringed. People v Thomas, 44 Mich. App. 649; 205 NW2d 604 (1973); People v Cotton, 38 Mich. App. 763; 197 NW2d 90 (1972).

In People v Lewis, 294 Mich. 684; 293 N.W. 907 (1940), our Supreme Court held that it was error to admit business records into evidence in a criminal proceeding under an exception to the hearsay rule because to do so deprives the defendant of his right of confrontation.^[1] The admission of the time cards in the case at bar, therefore, clearly constituted error. This does not mean, however, that we are required to reverse defendant's conviction on this point. The business records admitted in Lewis directly corroborated testimony of the complaining witness and reversible error was, therefore, found to have been committed. In People v Gauthier, 28 Mich. App. 318; 184 NW2d 488 (1970), leave den, 384 Mich. 812 (1971), however, this Court held that although error was committed when certain business records were admitted into evidence, the error was harmless beyond a reasonable doubt because of the overwhelming convicting evidence which had been presented. We are convinced that the error in the case at bar was harmless beyond a reasonable doubt also. See People v Parm, 15 Mich. App. 303; 166 NW2d 536 (1968); People v Wolke, 10 Mich. App. 582; 159 NW2d 882 (1968). The time cards in no way related to defendant's presence at the scene of the crime and in no way directly corroborated the eyewitness's account of what occurred. We cannot say that reversible error was committed by allowing these cards into evidence.

Defendant next contends that the trial court committed reversible error by allowing the prosecutor to raise and put into issue the defendant's character and reputation before the defendant had done so. An examination of the record reveals that although defendant's counsel initially objected to the line of questioning sought to be pursued by the prosecutor in his cross-examination of defendant, an agreement was subsequently reached between the parties as to the permissible scope of the cross-examination. The questioning by the prosecutor thereupon continued with defense counsel raising and then withdrawing an objection to one specific question. In light of these facts it is clear that this issue has not properly been preserved for appeal. People v Robert Lee, 40 Mich. App. 239; 198 NW2d 818 (1972), leave den, 387 Mich. 795 (1972); People v Ray Clifton Smith, 20 Mich. App. 243; 174 NW2d 22 (1969). Defendant, for whatever reason, acquiesced in this line of questioning and cannot now be heard to complain.

Defendant finally contends that he was deprived of due process of law by the prosecution's failure to disclose to defense counsel the fact that a .22-caliber pistol and a ballistics test performed thereon were in the possession of the police at the time of trial. This issue was first raised by defendant in his motion for new trial and is thus properly before us for our consideration. People v Stedman, 41 Mich. App. 393; 200 NW2d 370 (1972).

A hearing was held on defendant's motion for new trial at which testimony was presented revealing that, from the time defendant was first questioned, the police had in their custody a.22-caliber pistol and ballistics tests which had been performed thereon. Defendant was apprised of the fact that the gun was in the possession of the police during questioning but his counsel was never so informed. No request was made prior to or during trial for disclosure of evidence of this type. There is no allegation that the prosecutor deliberately withheld this information from defendant's counsel and the record does not reveal any bad faith on the part of the prosecutor. A police officer who participated in the initial investigation of this crime testified that there was nothing in the police file to indicate that this was the gun used to murder the deceased. Under these circumstances we feel that this case falls within the class of cases the Second Circuit Court of Appeals was speaking about in United States v Keogh, 391 F2d 138, 148 (CA 2, 1968), quoted with approval in Giglio v United States, 405 U.S. 150; 31 L. Ed. 2d 104; 92 S. Ct. 763 (1972), wherein it was said:

"To invalidate convictions in such cases because a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties."

An examination of the trial transcript reveals that defendant's account and theory of what transpired on the night in question was effectively presented to the jury who chose to disbelieve him. We are unable to perceive how the evidence complained of on this appeal would have changed that result. At the hearing on his motion for new trial, defendant, with respect to this issue, failed to establish anything beyond the fact that his counsel was not apprised of the existence of these items. The statement that this weapon was not involved in the case remains undisputed.

Affirmed.

VAN VALKENBURG, J., concurred.

T.M. BURNS, P.J. (dissenting).

I cannot subscribe to the majority's conclusion that the admission of the time cards was harmless error.

The theory propounded by the defense in its opening statement and pursued throughout the trial was that either the prosecution's only eyewitness to the homicide, the eyewitness's brother, or their companion, perpetrated the killing and that the eyewitness accused the defendant of the killing in order to protect himself or the other two parties. To support this theory the defense introduced evidence to show that prior to the killing the eyewitness's brother had established an intimate relationship with another man's wife and that her husband had threatened the eyewitness's brother. For that reason the defense contended that the brother had borrowed the defendant's auto on three occasions, i.e., a week before the homicide, the day prior to the homicide, and on the day of the killing itself. The defense theorized that on the day of the homicide the eyewitness, his brother, and their companion left work in the brother's vehicle which was a make similar to the defendant's, that they came upon an auto resembling that of the husband who had threatened the brother, that they panicked and shot the driver of the other vehicle who, as it turned out, was someone other than the husband. Moreover the eyewitness admitted that a day or two before the homicide his brother and the defendant traded autos and that the husband followed the defendant in this auto for an extended period of time before they went to their respective employment.

The admission of the time cards contrary to the mandate of People v Lewis, 294 Mich. 684; 293 N.W. 907 (1940), which proscribes the admission of business records in criminal cases, indicated the companion and the eyewitness's brother were at work at the time of the killing thus negating the defendant's theory of the case that the eyewitness, his brother, or their friend committed the crime and that the eyewitness implicated the defendant in order to protect one or more of the trio. Therefore the admission of the time card evidence was highly prejudicial to the defendant.

Clearly the evidence produced against the defendant was not overwhelming. Only one witness was produced who could identify the defendant as the killer. The admission of the time cards not only undermined the defendant's theory of the case but also impermissibly bolstered the credibility of the eyewitness. It cannot be said that the jury completely ignored the import and purpose of the time card evidence.

Accordingly to cure the prejudice engendered by the time card evidence, I vote to reverse and remand for a new trial.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] The holding of the Supreme Court in Lewis was subjected to vigorous criticism in People v Gauthier, 28 Mich. App. 318; 184 NW2d 488 (1970), leave den, 384 Mich. 812 (1971), and is presently being reconsidered in People v Kirtdoll, 44 Mich. App. 237; 205 NW2d 44 (1972), leave granted, 389 Mich. 784 (1973). Until the Supreme Court overrules Lewis we are bound by that decision.