*1 ALDRIDGE PEOPLE Charged Burglary Not —Res Gestae. 1. —Evidence—Offenses weapon a concealed was had carried Evidence that defendant charge breaking trial on a properly at his admitted weapon, taken from the entering where person entered, at the scene of the crime place on defendant’s necessary the larcenous intent element of the to establish was part charged, admissible as was where offense notwithstanding tendency to show the gestae its the res com- crime, any prejudice caused and where another mission of appropriately by the cured this evidence the admission of 750.227). (MCLA750.110, instruction Duty. 2. Criminal Law-Fair Trial —Prosecutor’s duty with which prosecutor to insure fairness has a A interposing obstacles to are conducted criminal trials of the facts. the disclosure Discovery. on Jurors — Law —Dossier 3. Criminal possession jurors upon prospective in the a dossier Disclosure of upon his prosecutor made to a must be request. Discovery. on Jurors — 4. Law —Dossier Criminal dossier on to him a to have disclosed a defendant prosecutor neither possession jurors prospective absolute; requires that defendants nor exclusive preserving prosecutor’s dossier while of a not seek investigative reports secrecy on of their own jurors, his file if a believes staff, theories, projections he impressions, of his or contains product” by the "work request as afforded nondisclosure can doctrine. [2] [1] [3 6]— 13 Am Jur 21 Am Jur Am Jur 2d, Burglary 2d, Prosecuting Attorneys 27.§ References 2d, Criminal §§ for Points in Law 330. 41, 52, 69, § Headnotes App 47 Discovery—Appeal on Jurors — Law —Dossier Er- 5. Criminal ror. request grant judge a defendant’s Failure of a trial disclo- *2 jurors possession in the of a dossier on sure require prosecutor a reversal defendant’s conviction did proceedings further but rather necessitated' determine prosecu- a fair trial in that was denied whether defendant may information contained tor’s dossier challenges jurors upon cause could have been based. by Danhof, Part, Part P. Dissent J. Concurrence Discovery—Constitutional on Jurors — Criminal Law —Dossier 6. Law. requiring prospec- disclosure of a dossier on A rule of possession of a should be made uni- tive by promulgated by Supreme application a rule in its form by Appeals Court; imposition a rule the Court of would of such application piecemeal trial courts and confusion in lead to 5). (Const 1963, art § the criminal law Salmon, J. J. Sub- Ingham, Marvin Appeal from 11, 1972, Lansing. 2 October mitted Division 12524.) (Docket Decided June No. breaking Aldridge was convicted of H.
William appeals. Remanded entering. Defendant proceedings. further instructions A. General, Robert Kelley, Attorney J. Frank L. Scodel- General, Raymond Derengoski, Solicitor Ramsey, R. ler, and James Prosecuting Attorney, people. for the Prosecuting Attorney, Assistant Bennett, for defendant. Eugene H. T. M. J., P. and Bronson
Before: Danhof, JJ. Burns, was convicted J. Defendant Bronson, entering in violation breaking and
verdict trial court’s From the 750.110; MSA 28.305. MCLA sentence of 15 years, 2-1/2 to defendant appeals as a matter right. The facts precipitating defend- ant’s conviction be briefly summarized follows.
On the afternoon of December Frankie Scott locked the windows and doors of his house prior to leaving for work as was his customary practice. He also checked to see whether pistol and holster were in their usual location between springs. Upon mattress returning from work at p.m., 11:45 Scott was told that someone was running out of his house by Leeks, Michael neighbor. Scott found his back door open and observed two running men out the front door. He began chasing these men and ultimately caught during one the pursuit. Scott’s captive, subse- quently defendant, identified as was turned over to *3 police responding officers to the reported crime. The officers frisked defendant and pistol found a and holster pocket. rear The pistol and holster were identified as those Scott kept between his mattress and springs. Defendant was arrested carrying a concealed weapon1 and subsequently indicted breaking entering.
The two issues raised for consideration our upon based alleged errors during committed de- upon fendant’s trial the breaking and entering offense. Immediately after the selection of the jury, defense requested counsel the disclosure of the prosecution’s dossier of impaneled jury. This disclosure motion was upon based defense coun- sel’s understanding existed, the dossier police collected by agencies area, in the immediate (1) and possibly contained regarding information jurors’ and their families’ adverse contact with (2) the law and information of whether 1 MCLA MSA 750.227; 28.424. App 47 Defense minded. counsel prosecution
were offered matter, but the trial supply proofs judge on specifying his motion without denied reason It is this denial therefor. issue for our raises the primary considera-
tion. prosecution offered
During Martin, the arresting testimony of William officer, part its case chief. This officer received arriving the information described and the the scene of the crime search defend- In ant, suspected response to the participant. a making do after you "What did question, defendant?”, stated, witness search W., placed I him under arrest for C. C. "First weapon; put then I him in carrying a concealed a moved for mistrial since this the car”. Defendant interjected the commission of another testimony was not on trial.2 The for which defendant offense motion, finding the error judge denied appro- he stating give would harmless cautionary instruction. This priate issue for our considera- ruling raises second tion: of testimony Did the introduction
I. into the trial record consti- separate charge tute reversible error? first, it finding issue consider the second
We referred challenged testimony of merit. The devoid offense independent for an to defendant’s arrest *4 tried. issue created being he was not The for which was this of evidence type the admission of by Smedley, People by this Court considered Smedley panel The App, Mich pending weapons was offense An indictment the concealed entering. breaking and the one for its trial was scheduled to follow by quoting issue
disposed following of the Savage, language from (1923): acts, elementary that conduct "It is and de- charged of, person with a crime at the
meanor of a time shortly or after offense is claimed to or before committed, part as a res may be shown of the been gestae. Proof of such acts is not rendered inadmissible they may tend to show the by the fact that commission of another crime.” testimony regarding the present
The holster on defendant’s pistol person was necessary the scene of the crime to establish intent element larcenous offense charged. Similarly, admissible gestae notwithstanding of the res its part tend- the commission of another ency show crime. degree prejudice caused by The incidental was appropriately admission of evidence cured judge’s cautionary instruction that by disregard references to other crimes in jury any guilt their deliberation as to defendant’s or inno- context, charged. of the crime In this cence judge properly trial denied defendant’s motion for mistrial. denial of Did the defendant’s re-
II. prosecution’s quested discovery impaneled prepared upon agencies constitute reversible error? of disclosure type The question impression for this creates first below implicit discovery problem raised jurisdiction. reasonable, challenges thinking upon our what fair, upon the just. Our evaluation is founded of fundamental fairness rather than concept *5 Mich 639 underpinnings the current of criminal discovery. upon the area of We draw criminal discovery guidance of its effect and because interrelationship raised, but do not problem with the treat it as one requiring interpretation an or extension of current the disclosure of evidence valuable governing rules to defendant. With this preface, we proceed to holding delineate the for our basis that disclosure prosecutor’s upon request. must be made to defendant recognize We discovery a criminal is a area of the rapidly developing law. The extent permitted to which defendants are to discover particular depends upon items the rules employed, Federal, jurisdiction state or and the selected for gleaned review. But this much be from the is a developing favoring case law —there trend expansion of criminal discovery.3 This trend is no apparent Michigan.4 less Unlike many jurisdic- tions, Michigan’s progressive attitude toward crim- People v inal had an In early impetus. Dellabonda, (1933), Mich the Court held right inspect that a defendant had a a witness report regular officer’s written course duty immediately of his forwarded to his supervisor. Although sought was 3 See, States, g., 870; e. Dennis v United US 86 S Ct (1966), 1849; 16 L Ed 2d in which the Court stated: developments entirely growing consonant with "These disclosure, suppression, realization that rials rather than of relevant mate- ordinarily promotes proper jus- administration of criminal tice.” Anno, See, also, Anno, 819; 8; Anno, 5 ALR3d 7 ALR3d 7 ALR3d Anno, 181; 20 ALR3d 7. 4Recently, Michigan Supreme People Wimberly, Court in stated: emergent form of trent toward the broadest observe “[W]e duty discovery produce in both criminal and civil trials and the guilt or at trial all the evidence relevant to the defendant’s innocence.” the Court . necessary such finding a
justified impeach exercise defendant’s concepts to several referred witness, issue. The Dellabonda present *6 relevant stated: Court prosecution is to legitimate object only "The was, as it whether its the whole transaction
show
guilt or innocence of the
tendency is to establish
[1872]; People
v
People, 25 Mich
Hurd v
accused.
no
Etter,
public
A
has
81 Mich
[1890].
People,
v
30 Mich
testimony. Wellar
suppress
prosecuting attorney
duty
It
of
is
16 [1874].
power bearing upon
within his
all the evidence
furnish
in relation to the main
guilt or innocence
the issue of
doing
good excuse for not
so.
give some
or to
issue
People
Swetland,
[1889];
v Ger
77 Mich
People v
pp
(Emphasis
maine,
added.)
At
500-501.
guilty; legitimately tend to that can its officers information prosecution, or to show for the the case made overthrow credence, should be unworthy the defense it is therefore, was, privi- no it. There given the benefit of which preclude giving lege to ” added.) (Emphasis p 504. called.’ At the defense prosecu- recognizes language this Significantly, trials which insure the fairness duty tion’s interposing obstacles by conducted of the facts. Wimberly, approval language was cited with This p supra, App 639 Mich encompasses purpose The criminal adversary obfuscated climate must not be in The Court conducted. in which it (1959), 619, 621 Johnson, described 356 Mich stating that: purpose by changed criminal trial has concept of a legal
"The times. It is seen less as an considerably in modern gladiators duel with lawyer the ac arena where two cused’s fate and more hanging on the outcome as an the fair toward ascertain inquiry primarily directed ’6 added.) (Emphasis ment of the truth. office, people’s representa our system within tive, the fairness insures of truth as a the ascertainment seeking justice by In Peo function. adversary to its in addition goal Jordan, ple language from Hurd v following quoted
Court *7 (1872): 405, prosecuting "The 416 People, 25 Mich interest, which can public the represents officer the inno the conviction of promoted by be never by the adhered were principles These cent”. 62, 69 Wimberly, v 384 Mich Court "prior to trial (1970), held that interests of a in the the discretion possesses judge grand jury of the and all fair trial any to release of the guilt or innocence to the relevant 7 (Second empha charged”. crime to the added.) the cited cases recognizing that While sis dis involving the distinguishable factually are defendant, their valuable of evidence closure fair fundamental envisage the pronouncements judicial system. to our indispensable ness of fundamental concept the upon reliance Our 6 375, Jordan, Accord, People 387 v (1972), the Bellanca, in which See, also, People Mich 708 v grand testimony of the include extended criminal Court jury witnesses. fairness the area disclosure is supported the Court’s Roviaro v States, statement United 623, 628; 1 60; 353 US 77 S Ct L Ed 2d (1957), that further limitation on applica- "[a] privilege bility arises from the [informer’s] requirements fundamental of fairness”. (Emphasis added.) Supreme United States Similarly, in Brady Maryland, 87; Court 373 US 83 S Ct 1194, 1197; 2d (1963), 10 L Ed stated that "[s]ociety only wins not when the guilty con- but victed when trials are fair; criminal our sys- tem of the administration of justice suffers when any unfairly”. accused is principle treated provides for our disposition vehicle prosecu- defendant’s disclosure of the impaneled tion’s jury. Smith, 600;
In Commonwealth Mass NE2d the court was confronted with a request defendant’s to examine before trial prosecution’s investigative reports upon prospec- tive jurors. judge The trial denied defendant’s motion but examined to determine whether they prejudiced by police were investiga- tions conducted at request. The Smith Court upheld rejection argument defendant’s that prejudice pre- must be Significantly, proceeded sumed. this Court to rec- ognize the propriety requested discovery stating: believe, nevertheless, practice using "We gather appropriate officers to information about prospective jurors subject general should be supervision of the trial court and that the information *8 should
obtained be as available to the defendant as to * * * attorney. public the district The interest assur- ing public wealth. The is, think, equal the defendant a fair trial to the we assuring interest in such trial to the Common- police, not, agents public, as should App 639 648 47 purpose, be investigatory available only for pp for such an 350 Mass at pending contest.” side in the 603- one 604; added.) (Emphasis p at 901. 215 NE2d furnishing defendant with prose- propriety prospective jurors was cutor’s records — —; Mayber, v Colo P2d sustained Losavio (1972). public There defender’s office police inspection of arrest and sought convic- jurors upon the records of basis tion public records. The that such were discoverable finding Court affirmed Losavio not subject records were large but stated: public petitioners, "However, request of the as we view seeking no more from these records than they were attorney. provided to the district As thus what framed, petitioners eminently request of the reasonable, view, In just fair. our reasons prospec- annotated lists of denying these advanced office, or, for that public defender’s tive matter, attorney, completely devoid any áre defense — —; p (Emphasis p 496 P2d at of added.) Colo at merit.” was enti- held The Losavio Court pro- routinely of these records to disclosure tled department by the vided the requirements of fundamental since "[t]he — —; 496 pat no less”. Colo dictates justice at 1035. P2d a con- adopted
Although jurisdictions other Losavio Smith and think the position,8 we trary is consist- represent approach a better cases 502; 309; People Quicke, Anno, See, e.g., 71 Cal 2d 78 ALR2d 277; Brawley, (1969); 787; Rptr 1 Cal 3d 78 Cal P2d Falange, 361; Rptr (1969); 426 F2d United States 82 Cal P2d (1970); den, 149; (CA 906; 2, 1970), 27 Ed 2d 144 91 S L cert 400 US Ct Foster, Super 127; 280 A2d Commonwealth v 219 Pa *9 Opinion op the Court with the toward liberal ent trend discovery. The Dellabonda, supra, posed in Court question find same which we troublesome: "Why not defendant entitled this?” At p 504. The be reports sought discovered in the present case local allegedly agencies were collected currently possession the prosecutor. reviewing After carefully arguments advanced opposition discovery,9 to liberal we are unper- suaded that a rational basis exists for treating unequally denying the requested disclosure. Our sense fundamental re- upon quires placing equal defendánt an footing by prosecutor’s requiring disclosure investiga- tory report upon prospective jurors. Since jurors so important system to our justice, of criminal nondisclosure of information upon which defend- may peremptory ant exercise challenges places a premium upon "gamesmanship” to the subversion trial’s search for truth.
This right of disclosure is not the exclusive property of the defendant. It our intention one-way to create a street the benefit defend- ant and his people by representa- counsel. The its tive —the entitled to equality —are treatment. The doctrine fairness does not mean that permitted defendants are seek disclosure of prosecutor’s dossier while se- preserving crecy investigative of their report upon own pro- spective jurors.
Neither can
say
we
of disclosure
argument
is absolute. One
advanced for denying
provides
modern
a
meritorious
limitation
discovery.
recognized
We
contain information
Tune,
Compare State v
203;
13 NJ
tant functions information vital to the beneficial exercise peremptory challenges, (2) upon challenges for cause can be ignored potential based. Defendant value of such disclosure vis-a-vis peremptory challenges request. Although his belated defendant had knowledge of the existence of the prosecutor’s trial, one hour before he waited until his peremptory challenges had been exhausted notice give chosen of his request. This timing may well have been tactical decision since one of the reasons defendant offered request was to obtain additional peremptory chal- lenges. Discovery for this purpose unavailing *11 the challenges since number of such statutorily is context, governed.13 In this defendant was not prejudiced with respect exercise peremptory challenges by the trial judge’s denial of disclosure. reach contrary
We a with respect conclusion to the purpose second by fulfilled dis- closure. The prosecutor’s con- challenges tained information for cause could ruling be based. The trial foreclosed important determination to defend- We, therefore, ant’s detriment. direct that disclo- sure be made and remand for the appropriate by determination trial judge. If the trial judge finds that the dossier contains justify- information ing cause, a challenge for defendant’s conviction granted. shall be reversed a If the new trial 768.12; 768.13; See MCLA MSA 28.1035 MCLA MSA 28.1036. App 639 Danhof, P. J. Partial Concurrence justifying information judge finds no a chal- cause, conviction lenge defendant’s shall for be trial denied. affirmed and a new proceedings further Remanded consistent jurisdiction. do not retain opinion. We Burns, J., M. concurred. T. (concurring part in and dissenting
Danhof, P. J. the result part). I reached concur with holding testimony regarding majority an independ- arrest which showed the defendant’s gestae the res part of ent offense was case and hence was admissible. instant however, dissent, from the decision re- I must judge matter exami- manding this prepared by nation of the dossiers appears me that under It prospective jurors. on majority guise of fundamental impose as law rule discov- substantive seeks majority seeks to If what in criminal cases. ery state, it law of this accomplish to become the by a application uniform in its should be made under Supreme Court by the promulgated rule would lead 5. To do otherwise Const art § by the trial courts and application piecemeal state. practice in this the criminal confusion agree law I with the As a matter substantive Falange, of United States 426 F2d opinion (CA 1970), stated: wherein Court 932-933 jurors pointedly di- investigation of "An against gov- uncovering possible bias toward rected Costello, 255 F2d in United States v ernment was made *12 1385, 2 (2d 937, L Cir), 78 S Ct 876, cert den US 16, 858, 3 L Ed 2d 1551, den, 79 S Ct 358 US Ed 2d 93 reh (1958). for income prosecution a case of a That was evasion, made examination was where an tax many mem- of tax returns government of the income Danhof, Partial Concurrence P. J. jury panel 'in an bers effort to find out whether [they] had tax income troubles their own or had unfavorably disposed other reasons to be to the Govern- ment.’ Id. at 255 F2d 882. We held in Costello that investigation furnished. " 'utterly basis for the no contention that it resulted to jury "specially in a conditioned” convict or otherwise against most, prejudiced biased or the defendant. At practice challenges of jurors might led to who unduly been biased favor of the defendant. The peremptory challenges exercise of rejective, is a rather selective, process appellant than of which the has no complain.’ Id. "The fact that panel some members of the were challenged does not mean that those who were not were prejudiced. biased or arguments "The permit defendants’ such an
investigation
prospective jurors
as occurred here will
discourage
serving
citizens from
were dis-
bogies.’
missed in Costello as 'far fetched
Id. at 883. The
it
fundamentally
additional contention that
deprive
unfair to
opportunity
defendants
a similar
was re-
(1st
States,
jected
131,
in Best United
184 F2d
Cir
1950),
939,
den,
480,
cert
340 US
71 S Ct
I would affirm.