*1 515 v. Mosden. Dissenting Opinion Brennan, E. C. T. J. trial, cannot made tbe of a original basis motion new upon grounds newly for trial discovered evidence. v. Sain
Townsend 372 293 US S Ct 9 L Ed 2d is 770), not involved. Blackwell’s affidavit not does constitute a “substantial allegation of newly discovered evidence.” No hear- evidentiary necessary. ing was
The trial court should be affirmed.
Black, J., concurred with T. E. Brennan, J. C. T. G-. Kavanagh, J., took no part in the decision of this case. PEOPLE v. GORKA.
Opinion op the Court. Appeal Delay—New and Error — Trial —Pull Review. Delay year providing in one criminal a defendant with transcript, appellate counsel, unnecessary dilatoriness of in perfecting waste of time plenary appeal partially a caused by defendant’s person numerous made in motions while he was represented by counsel, held, require giving not a new trial where he had a full his in review of case Su- preme appellate Court and received the same review he would right. have Appeals appeal received the Court of on an References Points Headnotes Jur, seq. Am39 et New Trial [1] [2] [3] [4] T5] § 2d, Appeal Am seq. Jur and Error et § 2d, Am21 Jur Criminal Law 315. § 2d, 21 Am Jur Criminal Law 339. § 2d, seq. Am29 Jur Evidence 56 et § seq. 162 et Jur, [6] 39 Am Trial New 381 Mich Right. Appeal Appeal Delayed Application — as of 2. Same — fob delayed a petition file appellate an court a Consideration right guaranteed appeal as of equivalent appeal is delayed re- crime, petition sinee one accused of *2 delay not due defend- showing was to quires an affirmative in the claim negligence is merit culpable and that there ant’s right requires no such affirma- appeal, appeal an of of whereas 1963, 806.4). 1, 20; GCR showing (Const art tive § Counsel—Representation of Accused. 3. Law- — Criminal delay filing neeessary appeal Appellate elaim of of counsel’s days entry appointing him, right of of order within 60 without delay, necessarily good did or reason for not show that cause represent ably competently and he did not accused. 4. of Notes. Same —Evidence—Destruction officers, police had con- of of who Destruction handwritten notes defendant, they made ducted a surveillance of after individual held, typewritten to reports detailing defendants’ activities right be a of of and cross- violation defendant’s confrontation sup- showing of examination where there is no or claim wilful pression (CLS 1961, 750.529). of evidence § Appeal. 5. Same —Judicial Notice —Codefendant’s presented sepa- Judicial is taken and in a notice of facts issues robbery from rate codefendant conviction of armed join permit and ease is remanded to trial court to permit- motion for new trial and defendant is eodefendant’s subpoena bring and in all witnesses a full ted relevant for evidentiary hearing and fair to determine whether a new (CLS 1961, 750.529). granted should be Dissenting Opinion. J., Black, E. J. Brennan, T. C. Trial —New Criminal Law —New Evidence —Affidavit—Suffi-
6. ciency. Hearsay previously he another that admitted of affidavit was tried the commission crime whieh defendant for officers newly allegation discovered evidence is not a substantial hearing evidentiary warranting trial. on motion new for Appeals, Appeal Burns, Division 1, from Court of ap- Fitzgerald denying Holbrook, JJ., J.,P. delayed appeal plication from Recorder’s Court for Gorka. (Calendar June Detroit. Submitted February 51,735.) Decided No. 5, No. Docket robbery armed. P. convicted Jerome Gorka Delayed Defendant denied. motion new trial Appeals. appealed. Court Denial affirmed evidentiary appeals. Remanded Defendant hearing on motion for new trial. Kelley, Attorney Robert A. General,
Franh J. Derengoshi, Gahalan, L. William General, Solicitor Ap- Attorney, Prosecuting Torina, J. Chief Samuel Angelo Lawyer, pellate Pentolino, Assistant A. Attorney, people. Prosecuting for the Kurs, for defendant Walter A. *3 January 20, 1964, M.T. J. Kavanagh, jointly Henry were tried and Mosden
Gorka robbery jury guilty in re of armed found 1 a term of 10 Bach sentenced to corder’s court. years. attorney who had been trial 1964, March 2, Mosden for became counsel for both counsel Mosden proceed- postconviction and defendant Gorka in the ings motion a new trial. filed a for
April Mosden, act- 1964, defendant Gorka 6, propria persona, ing in filed a motion to obtain trans- cripts and trial records. persona, acting propria in 3,1964, defendant,
June appeal. pending a motion for filed bond propria August in the trial court denied the 4,1964, transcripts persona and free motions assistance day pending appeal. trial court de- The same (Stat 1961, Supp 28,797).—Re- Ann CLS 750.529 1968 Cum § porter. 515. the Court. propria persona
nied motion defendant Gorka’s appeal. pending for bail August the trial 28,1964, court denied defendant’s for new filed March 2, motion trial 1964. September having 30, this 1964, Court, before appointment it on defendant’s motion for transcript, of counsel and for remanded the matter providing recorder’s court enter an order both por- Gorka and Mosden and with with counsel such transcript require may tion of the trial as counsel proper postconviction proceedings. appointed October 28, 1964, the trial court Paul legal R. Jackman as counsel for both Gorka appearance, Mosden. An filed dated October 8,1964, was by attorney 28, Jackman October 1964. February acting 9, 1965, defendant Mosden, propria persona, compel compli- filed a motion to reporter ance of the court with the court order furnishing directing transcript. judge, upon
March 10, the trial motion of reporter, the court ordered that the time within transcript which the was to be furnished be ex- to and tended include June reporter petitioned 5, 1965, June the court for a court further extension of time within transcript. which to furnish The trial court August ordered an extension to include given, No further extensions were but it was not reporter until 22, 1965, October the court filed filing with the clerk a notice the record on The record discloses an affida- mailing Attorney vit of but no notice to Jackman, *4 defendants,
notice was sent to the who had propria acting persona. been Attorney 14, 1965, December Jackman filed con- attorney. and notice of of sent substitution On Attorney document, A. Walter this same en- Kurz v. GoLka. op the Court. attorney appearance as for defendant Gor- Ms tered attorney to of was sent of substitution ka. Notice people. appellate for the counsel Attorney appear- January 17, 1966, Kurz filed an post- attorney for for Gorka ance as conviction appeal. procedures and Attorney applica- filed an Kurz 26, 1966, October delayed appeal in the Court for to file tion leave application Accompanying one Appeals. of disposition pending setting of for of bail January Appeals of 14, 1967, the Court denied delayed application appeal for the reason grounds presented. is not on the merit shown rehearing Application for was denied the Court Appeals February of granted
Defendant Gorka is here on leave
this
on June
Defendant Gorka also wrongfully appointed failed or refused counsel days necessary claim of within file the entry appointing failed him and thereafter of order year, approximately file and one refused, or process good appeal, any or reason cause without *5 381 520 op
Opinion the Court. though shown, even defendant he demanded file plenary appeal.
Defendant further contends that the trial court stenographer improper obtained and took un- authorized extensions of time to file the trial trans- cript not file did said trial until approximately year entry one after of order there- Michigan Appeals for; also, that the Court of wrongfully grant failed and refused to or to restore right appeal defendant his absolute to his conviction, through Lost no fault of his own. deplore delays providing
We the in defendant transcript, Gorka with a trial the dilatoriness of appellate unnecessary certain of counsel, and the waste energy perfecting plenary appeal. time and in to However, a certain extent defendant Gorka hin- progress by propria dered his own in numerous persona motions which conflicted with the course appellate procedures by of dictated his counsel.
Nevertheless, the defendant has had a full review appellate his case in this Court. The circuitous part by route in this case, caused in the dilatoriness by reporter and violations of court rule the court right appeal. not counsel, has diminished the appellate He has received from this Court same review would he have received from the Court Appeals appeal right. under an The fact that appellate defendant, his nu- route, encountered procedural making, merous of his some own detours, compel grant does not Court him a trial.2 new 2 This, course, deny not does the defendant’s contention that Appeals granting application Court of erred not for leave to delayed appeal. file a factual of this ease Under circumstances problem a serious if constitutional would have been raised this Court granted appeal. petition had not leave to of a file Consideration equivalent delayed appeal right guaran is an a teed as of 1963, 1, requires Const art The former affirmative showing delay negligence culpable not due that to defendant’s is requires there merit the elaim of The latter 806.4, showing. no affirmative GCR such 521 v. G-oska. the Court. are not appli cited the defendant cases The Ellis v. States instant case. United to the cable 1060); L Ct Ed 2d (78 US S S (1967) 386 US and Anders California that an 493), appointed 18 L 2d require Ed Ct advocate for the truly act as an counsel *6 to the court. On curiae as amicus merely and not and actively was to this Court defendant counsel. by appellate eommendably represented (87 Ct 748 S (1967), v. Iowa 386 US Entsminger Eskridge Washington v. State L Ed 2d 1402, 18 501); 357 Paroles (1958), Prison Terms ancl Board of v. 2d Lane 1269); 2 L Ed (78 1061, 214 S Ct US L Ed 768, 9 372 477 S Ct (1963), (83 Brown US 375 States (1964), United 892); Hardy 2d v. 11 L 331), require Ed 2d 424, 277 S Ct US an de provided indigent that a trial transcript the fendant. did with Here, comply this Court fur a free Federal authorities a long nished to defendant after regrettably 52 (82 Alabama 368 US Hamilton v. delay. 114); (CA L Wilson v. Rose Ct 7 Ed 2d S Warden, Maryland F2d Whitaker v. 611; 366 F2d and Jones (CA 4, 1966), 838; 362 Penitentiary (CA 4, 1963), 347, express 313 F2d Cunningham n Amendment to the rule that under the Sixth means “assistance of counsel” Federal Constitution It appears counsel. “adequate and effective” counsel3 from a whole that trial the record as defend- counsel, although hampered appellate however, See Jones v. showing known on tain We appeal discloses alibi witnesses by the seriously question of dereliction condemn trial counsel him at trial. is an people Cunningham adequate preparation produced putting which Although trial whether (CA 4, 1963), prejudiced the defendant. counsel raised as defendant, a 15-minute consultation trial counsel alibi being inadequate, for a trial of witnesses this defect F2d 347. did argued fail absent a clear was eured capital ease. to note cer stand. We The all with cannot, reeord issues at Opinion op the Court. independent legal ably
ant’s and com- maneuvers, petently represented tbe accused.
A review of the entire record does not disclose procedural any infirmity which would warrant re- versal of the defendant’s conviction. only
The substantive issue raised is whether the police destruction of the notes of the officers con- ducting the surveillance violated the defendant’s right of confrontation and cross-examination.
The record discloses that five detectives from the intelligence criminal bureau of the Detroit department kept had defendant G-orkaand codefend- period ant Mosden under surveillance for a of two During period hours. of surveillance each of the detectives made handwritten notes of the details of his observation. After the ar- defendants were gathered rested, the five detectives in one room and, using each his own handwritten notes, made an in- typewritten report detailing dividual the defend- destroyed ants’ activities. Each detective thereafter *7 reports his handwritten notes. These were not by prosecution, offered as evidence the but were objection by police used—over the detectives at the — specific trial to refresh their memories toas details. argues systematic The defendant here the original deprived destruction of the notes him of an effective means of im- cross-examination of peaching testimony. each witness’
Research discloses that there is one case which supports position. apparently the defendant’s In People (1947), App v. Betts Div police 794), “bugged” the had the de- NYS2d telephone made shorthand of notes fendant’s incriminating incorporating conversations. After report, police, by notes in a the these shorthand destroyed prevent admission, their own the notes to using them from cross-examination People v. Gorka. the Court. purposes. reports At trial the witnesses used the to refresh their memories. The New York court, appeal, page held at 741: general any paper “While rule is that whatso- may ever used refresh the recollection of a provided actually purpose it witness, serves that [citations omitted], where, as here, an officer of the attempts which law ing to refresh his recollection from a writ- purports original to be a secondary wilfully destroyed by notes him to frustrate be cross-examination, witness should not permitted use such document to aid him.” distinguishing supra,
The Betts, factor in how- ever, is the zeal of misdirected officersin wilfully knowingly suppressing evidence favor- able to the The defendant. record the case before support, us would not and neither does defendant- appellant any suppression claim, wilful of evidence. appears
There to be Federal considerable author- ity dealing fragmentary with destruction of *8 stating (pp 193, 194):
4 18 use, 381 tub Court. testimony think the officers that the the .“We although a correct record,
memoranda constituted together copies, matter with of their notes not exact qualified ad- them for memories, from drawn their judge as the to credibil- mission and consideration ity who accuracy. They prepared officers were knowledge personal, of the mat- had firsthand that, the fact memoranda and recorded the ters in the to preparation, to their *9 People Gorka. v. the Court. original *10 hearing to determine whether new trial should granted. and Adams, JJ., concurred Dethmers, Kelly, with T. M. Kavanagh, J. (dissenting). T. E. Brennan, 0. J. expressed
I
dissent for the reasons
Mosden,
Black, part T. G. Kavanagh, took J., no the decision of this case. notes theory contrary which is to the advanced the de- uniformly fendant. cases, however, These concern the administration of the act.4 Jencks Michigan only A review of authorities discloses pertinent two criminal cases. People (1963), In v. Hobson Mich Court affirmed the court’s admission into evi report composed typewritten of a dence from sur subsequently destroyed. veillance notes which were admissibility The main issue decided dealt with the of the report past under rule recollection re ancillary corded. The issue whether destruction deprived of the surveillance notes “best evidence” was defendant of the disposed upon the Court, authority Johnson 215 Mich
Notes
the officersreferred notes supplement not render the memories, their did secondary and make them in- evidence memoranda admissible.” People supra, this held that Johnson, In v. Court prosecuting permit attor- it ney’s stenographer not error to the was memory her from to refresh rather of the defendant’s statement the than The Court original only requiring of her notes. use the (p 225): stated any stenographer one else who heard or “The competent to statement would be defendant’s the testify stenographer may and the said; what he purpose refreshing her for the her minutes use the defendant stated.” as to what recollection supra, joined I Hobson, Justice In present criticizing police his dissent Souris important practice destroying surveillance notes practice unnecessarily holding that such safeguards of a fair the constitutional threatens by denying of wit- effective cross-examination majority I accede must to the However, nesses. it not error to which held that was Court, of the permit prosecution into evi- have admitted report typewritten and that defend- dence right confrontation and cross- constitutional ant’s examination impaired, by the destruction present For the notes. at surveillance Michigan. law in this is the least,
the destruction of the notes hold that We deprive by did not defendant five detectives and of im- means of cross-examination an effective testimony. peaching each witness’ arguments, in no merit defendant’s we find While by must considered the Court for final matter be one proper disposition this case. a People (1968), companion Mosden In case of v. appealed separately to this 381 Mich which was deny- alleged erred in it that the trial court Court, is upon application ing a trial based for new Mosden’s predicat- newly This claim is discovered evidence. Page of a Blackwell con- ed an affidavit Charles on robbery fessing of the armed to the commission were convicted. Mosden and Gorka which defendants Upon hearing a was held on motion, Mosden’s oppor- denied the but Mosden was 2, 1966, March subpoena by tunity to in- witnesses, the trial court opinion judge’s cluding denied Blackwell. The trial concerning motion because “the matter Mosden’s thoroughly investigated Page Blackwell was Charles by (Em- to be false.” and determined added.) phasis People opinion in its Per Curiam This Court v. supra, procedure held that was Mosden, evidentiary squares hearing full which and fair a holding process in Townsend v. or the with due 9 L Ed 2d Ct 372 US S Sain 770), to recorder’s court the case and remanded evidentiary hearing. proper regarding question, affidavit con- Blackwell’s This were fessing jointly defendants of which both a crime never raised convicted, accused or for new trial motion either Gorka defendant judicial can take this Court However, presented in facts issues notice of the supra. Mosden, 381 Opinion op the Court. any miscarriage justice, To avert which would necessarily result to Gorka if Blackwell’s proves confession to be remand true, we this case to purpose permitting recorder’s court for the de- join fendant Gorka defendant Mosden’s motion permitted for new trial. Defendant shall Gorka subpoena bring in all relevant witnesses, in- cluding evidentiary Blackwell, for a full and fair