*1 1975] BRASSELL
PEOPLE Opinion Hearsay—Exceptions—Past 1. Evidence — Recollection Recorded —Elements. qualify writing objectionable hearsay To a as otherwise to be recorded, past admitted in evidence as a recollection a (a) consisting showing foundation must be laid of: that the (b) facts, showing no witness has recollection of the upon that the not witness’s is refreshed reference to (c) document, showing original the that the is document an by personal observation, memorandum made the witness from (d) showing prepared that the document was contemporaneously with the event was an accurate record- (e) and, ing showing of the occurrence that the substance of proffered writing the is admissible. otherwise
Dissent Hearsay—Exceptions—Admissibility—Past 2. Evidence — Recollec- Preserving tion Question. Recorded — propriety of the admission into evidence of a written memo- incriminating randum anof interview with a defendant under past exception hearsay recollection recorded to the rule is properly preserved appellate not for review where defense objection not counsel chose to raise an to the admission of the unnecessary in order an memorandum to avoid fuss before the might weigh against jury which him when the memorandum either in or form. was allowed substance Attorney Attorney 3. Trial — and Client — Error —New Trial— Timely Objection But For Test — —Trial Tactics —Miscar- riage op Justice. grant party may despite A a new to a court failure to have preserved question by timely objection party’s where [1, 29 Am Jur [3] 58 Am Jur 2d, References 2d, New Trial 56 et Evidence 498. for Points § § seq. in Headnotes .446 Mich Court lawyer proportions may makes a mistake of such serious that it decisive, lawyer’s have been or where but mistake a convicted; defendant not have been but conduct of coun- fairly sel which can be *2 ascribed to reasonable trial tactics should not be the basis for a new trial or a reversal where miscarriage justice. there has been no of Appeal Berrien, Hughes, from Julian J. Submit- (Docket 3, 1975, ted March Rapids. at Grand No. 19681.) 23, 1975. September Decided
Elbert of Brassell was convicted armed robbery. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Smietanka, John A. General, Solicitor Prosecuting Attorney, and John Jeffery Long, As- Prosecuting sistant Attorney, people. for the Zebot, Francis Assistant State Appellate De- fender, for defendant. J.,
Before: D. E. P. Holbrook, and Bronson and JJ. D. E. P. Holbrook, J. On November jury convicted defendant of armed con- robbery, 750.529; trary to MCLA MSA 28.797. On January 17, 1974, defendant was sentenced to 8 to 25 years in prison. Defendant has consistently maintained appeals his innocence. He his conviction as of right. 24, 1973, August
On several men robbed a Ben- ton tavern at gunpoint. Harbor Neither the bar- any patrons tender nor of the who were in the bar the time of the were robbery able to identify defendant as one of the holdup men. aAs matter fact, of one of the witnesses testified that defend- ant one of them”. "wasn’t While the fingerprints People v Brassell of some of suspects the other were found in the alleged car, get-away fingerprints defendant’s were not found. linking defendant question crime in an unsigned typewritten confession. Defendant took the stand in his own behalf, defense, entered an alibi denied ever making the statements contained the confes- sion. having Defendant admitted a conversation with the question officer in on the date the confes- made, sion was he allegedly but claims that con- versation was promises restricted to leniency younger defendant’s brother should defendant de- cide to make a statement. The of the of the admissibility conversation was decided at a Walker hearing well trial; in advance of but admissibility subject conversation is not the of this appeal. We are here concerned with the manner *3 in which the purported confession was introduced into evidence. trial,
At the detective allegedly who took the statement from defendant was allowed to read into the record verbatim "past under recollec- tion exception recorded” to the hearsay rule. De- fendant makes several allegations error con- cerning the application of the past doctrine of recollection recorded to the facts of this case. We agree constrained with one of defendant’s allegations, and feel that it requires reversal. De- fendant correctly proper contends that a founda- tion was not laid to allow the admission of this past statement as evidence as a recollection re- in Jaxon v corded. rule in Michigan The is stated Detroit, 405, 413; 813, 151 NW2d 816 (1967): qualify writing a objectionable "To otherwise as hear-
say recorded, past to be admitted in evidence as a recollection proper a foundation must be laid. That foun- (a) following: dation should a showing consist in the facts, that the witness has no recollection of the (b) showing that the is not witness’ refreshed (c) upon document, showing reference to the that document original is an memorandum made by the (d) observation, personal showing witness from that prepared by contempora- document the witness was neously with recording the event and was an accurate (e) and, showing of the occurrence the substance proffered writing of the is otherwise admissible.” Jaxon, Applying the in the Michigan Supreme rule in Court Rodgers, (1972), NW2d said: "The written jury. memorandum was read to the This constituted its admission evidence. This was error. writing The prepared by Taylor, was the Detective out of court signed by King. and was not writing hearsay. extrajudicial It was an statement (by Taylor) (that prove thing offered to truth said him). King spoken imputed had the words nothing prevent Taylor testifying "There was from verbally. He could have related his conversation with King. conversation, If he could not recall he could have been shown the memorandum to refresh his mem- ory. If testify he could not then without the aid of the memorandum, the written memorandum then have been introduced in provided jury evidence and read to the foundation was laid.”
Thus, requirement the first in laying a founda- past tion for the recollection exception recorded is *4 that the witness have no recollection of Banks, People the facts. 50 Mich App 213 NW2d This was never shown in the case before us: prosecutor].
”Q. [by you assistant And do recall each Opinion of the Court every question you may and have asked the defendant gave? every and each and answer he No, [by police sir, "A. Popp]. officer not offhand. ”Q. you Do copy you have of record made of you? that with conversation the defendant with Yes, sir, I do.
[A. "Q. you? you you O.K. ask have it with do Yes, sir, "A. I do.
”Q. it, you please? Would remove Yes, "A. sir. ”Q. right. All you At will this time ask to look at record, officer,
that looking you and I will ask whether you every question at it can recall each and and just by answer at it? look it, sir, just looking enough ’A. Not testify not to supplied.) in (Emphasis a court of law.” Obviously, big there is a difference between having no recalling recollection whatever "each and every question and answer”. Few humans with blessed total recall. our Fortunately, courts witnesses; do not demand total recall of will nor they allow a document be read into merely per- because witness cannot remember fectly conversation the document embodies. Had been established that no had question, recollection of the conversation in step next in laying foundation would have been reading show document would not his memory. refresh is not whether will, reading of in the document the witness’s own opinion, his "enough testify refresh in questioned a court of He have law”. should been or order to determine whether not testify be could without aid memorandum after he had read it.
Reversed and remanded a new trial. Bronson, J., concurred. *5 App
450 445 M. J. J. Dissent Kelly, (dissenting). disagree I J. re- Kelly, versal is warranted here.
The admissibility defendant’s was decided at a Walker confession hearing well in advance of was hearing trial. The conducted No- 1, 1973, vember following which defense counsel made a suppress motion to a motion quash, each denied. of which was Those orders are not challenged appeal. on this The voluntari- ness of defendant’s confession is not at issue. Trial commenced November 20th and concluded Novem- 21, commenced, ber 1973. Before that a tran- Walker script of the hearing was ordered and produced. Defendant had transcript prior trial and he and his trial counsel well knew what was coming when the police officer who conducted the interrogation took the stand. dispute
The appeal on involves Popp’s Officer reading verbatim his memorandum of the incrimi- nating interview. The exchange quoted in the majority opinion appears to me to have been a predetermined attempt laying the foundation People Rodgers, required by (1972). 201 intent, NW2d 624 prosecutor’s surmise, I give was to the officer a question he could not answer affirmatively so as to lead him into the reading of the memorandum. Defendant did not object good for a very reason. He knew because of the Walker ruling. coming what was If he made an unnecessary fuss before jury weigh against would him when the confession was allowed either in substance inor transcript. The defense attorney knew what coming, was he chose fight not to procedural technical battle evidentiary lose the war. This issue not pre- Farmer, served for our review. People v 198, 208; Ames, (1968), 156 504 People v NW2d 60 451 Dissent M. J. App 168, (1975), Mich 172; People v NW2d Duncan, 403, 408-409; Mich NW2d 261
I also find no merit
in defendant’s
alternative
claim of ineffective assistance of counsel. Defend-
*6
on appeal
ant
states that defense counsel’s failure
object
reading
to the
of the memorandum with-
out
foundation
is a serious mistake of
counsel
for which he can receive
relief under
v Degraffenreid,
App
715;
NW2d 317
The rule is:
lawyer’s
"Where the
pro-
mistake is of such serious
portion
decisive,
it may have been
where but for
lawyer’s
mistake the defendant
not have
convicted,
may, despite
been
the court
failure to have
preserved
by timely objection, grant
the error
a new
App
trial.” 19 Mich
at 716.
This clearly appears
to me to be no mistake at
People Bottany,
qualifies
all and
under
(1972)
App
Appellate guess counsel turns the second on trial counsel wherever the case has been lost. We practice should not countenance such where there miscarriage has justice. been no I would affirm.