*1 1973] v LESTER
PEOPLE Opinion Appeal Rights— Error —Constitutional
1. Criminal Law — Preserving Question. Appellate right likely a of a claim where constitutional review precluded infringed been is not have defendant’s object failure to at the trial. 2. Criminal Law —Evidence—Business Records —Constitutional Rights —Confrontation—Harmless Error. of business records in the form
Admission into evidence of time cards in a criminal case violated a defendant’s constitutional right beyond but the error was harmless of confrontation way reasonable doubt where the time cards in no related to the presence way at the scene of the crime and in no defendant’s occurred, directly corroborated an account of what convicting overwhelming pre- and where evidence had been sented. Appeal Preserving
3. Issue. Criminal Law — Error — preserve precluded A defendant failed to issue and is from complaining appeal questioning by about a line of prosecutor acquiesced in which he at the trial. 4. Criminal Law —Due Process —Evidence—Disclosure—Prosecu- Duty. tor’s deprived process The defendant was not due law prosecution’s failure to disclose to defense counsel that possession were in at the time of the trial of a .22-caliber pistol performed it there was no and a ballistics test on where during request for disclosure of made to trial or trial [1] [2, 30 Am Jur [3] [4] What constitutes books of 53 Am 29 Am Jur 5 Am Jur bility of books of Jur, 2d, Appeal 2d, Trial 827. References 2d, Evidence 178. Evidence § account, and Error § Points for original entry §§ 17 ALR2d 235. 945, §§ 950. 624-627. in Headnotes within rule as to admissi- App 725 op the Court prosecutor type, allegation evidence of this no deliber- ately this information defendant’s withheld part nrosecutor, faith on the the record reveals no bad *2 nothing and where there was file to indicate that this was the used to murder deceased. by Burns, T. M. Prejudice—Credi- 5. Records — Criminal Law —Evidence—Business bility. form The admission of business records of time cards companion indicating eyewitness’s brother and a that an killing highly prejudicial of a was at work at the time to the not harmless error where such defendant and was records negated eyewitness, of the case that the the defendant’s brother, or their friend committed the crime and that the implicated eyewitness the defendant to one or more of trio; only of the time cards not the admission undermined impermissibly of the case the defendant’s but also credibility eyewitness. bolstered Washtenaw, Jr., F. Ager, William Appeal 8, 1973, Submitted Division October Lans- J. 15340.) (Docket 6, Decided December 1973. ing. No. was convicted of murder the first Clark Lester appeals. Affirmed. degree. Defendant J. Robert A. General, Kelley, Attorney Frank F. General, Derengoski, Delhey, William Solicitor Hensel, and John J. First Prosecuting Attorney, Prosecuting people. for the Attorney, Assistant Hurbis, R. P. Thomas Keyes, Creal & C (by Burns), for defendant. J., T. M. P. and V. J. Brennan
Before: Valkenburg,* and Van JJ. * assign- Appeals by judge, sitting Former circuit on the Court of 6, Í963, pursuant in 1968. to Const art 23 as amended §
ment People v op the Court Defendant, Lester, Clark Brennan, J. J.V. in the Washtenaw County a convicted (MCLA degree in the first murder Court of Circuit 28.548). A for new trial motion 750.316; MSA 1, evidentiary hearing 1968. An on August filed was, on defense coun- begun but motion was supple- without date. A request, adjourned sel’s trial was filed in motion for new ment 1971, evidentiary hearing held and an August of 4, 1972, the motion was de- August thereon. On appeals. Defendant now nied. the admission of contends first into evidence constituted time cards
certain
right of confronta-
of his constitutional
violation
1963,
1,
art
20 and
Const
guaranteed
§
tion
to the United States Consti-
Amendment
the Sixth
*3
to the admis-
objected
Although
tution.
were offered into
they
cards when
sion
these
evidence,
relevancy.
was based on
objection
this Court should
contends
prosecution
objection
this issue because the
not now consider
grounds for reversal
encompass
not
did
below
in this
disagree.
It is settled law
urged.
now
We
preclude
not
object
failure to
does
state that
where a constitu-
reviewing a claim
infringed. People
right
likely
to have been
tional
Thomas,
(1973);
649;
In
(1940),
it was error
Supreme Court held that
our
in a crimi
records into evidence
to admit business
hearsay
exception to the
proceeding under an
nal
of his
deprives
to do so
the defendant
rule because
App
50 Mich
Opinion op the Court
right of confrontation.1 The admission of the time
bar,
therefore,
in
cards
the case at
clearly consti
mean, however,
tuted error.
This does
that we
are required to reverse defendant’s
conviction on
this point. The business records admitted in Lewis
directly
testimony
corroborated
of the complaining
was,
witness and
error
therefore,
found
reversible
In People
to have
Gauthier,
v
been committed.
App
of due of law failure to disclose to defense counsel fact that a .22- pistol performed caliber ballistics test possession police of the thereon were trial. This was first raised time of issue defend prop for new trial and is ant erly his motion thus our before us for consideration. (1972).
Stedman, NW2d hearing A on defendant’s motion for was held presented testimony new trial at which re- vealing that, from the time defendant was first police questioned, custody had in their a .22- pistol caliber performed and ballistics tests which had been apprised
thereon. Defendant was of the possession fact that was in the police during questioning counsel was but his request so informed. made never No during trial for of evidence of this disclosure allegation prosecutor type. There is no deliberately from de- withheld this information does not reveal fendant’s counsel and the record part prosecutor. any A bad faith on the participated officer in the initial inves- who tigation of this crime there was testified *5 50 Burns, Dissent T. M. P. J.
nothing file to indicate that this was the to murder the deceased. used Under these feel that this case circumstances we falls within the cases the Second Circuit class of Court of United States v in Appeals speaking about Keogh, (CA 2, 1968), quoted F2d 138, 148 with Giglio States, United approval US L Ed 2d 92 S Ct wherein it was said: "To in such invalidate convictions cases because a
combing prosecutors’ files after the trial has possibly useful to the disclosed evidence defense but not changed likely to have the verdict would create unbear- able uncertainties.” burdens and
An transcript examination trial reveals that defendant’s account and of what tran- on spired night question was effectively presented who chose to disbelieve him. perceive We are unable to how the evidence com- plained of this appeal changed would have hearing trial, result. At the on his motion for new defendant, issue, respect with this failed to anything beyond establish the fact that his counsel apprised was not of the existence of these items. weapon The statement involved undisputed. in the case remains Affirmed. J., concurred. Valkenburg,
Van (dissenting). T. M. P. J. I cannot sub- Burns, scribe to the conclusion that the admis- majority’s sion time cards was harmless error. propounded in its by the defense opening statement pursued throughout only trial was either prosecution’s by M. T. homicide, eyewitness companion, perpetrated kill- brother, their eyewitness ing accused and that *6 killing or to himself the in order the of support parties. the de- To two other prior to show that to the evidence introduced fense killing eyewitness’s had established an brother the relationship man’s and with another wife intimate eyewitness’s threatened the her husband had that the defense contended that reason For brother. the defendant’s had borrowed the brother that occasions, i.e., a week before the on three auto day homicide, to the and on homicide, the killing day The defense theorized itself. the eyewitness, day the his the homicide on the of that companion left brother, work and their a make similar to the which was vehicle brother’s upon they defendant’s, came an auto resem- bling who had threatened the the husband that of they panicked the brother, and shot driver out, who, it turned was some- the other vehicle Moreover the husband. one other eyewitness than day or before the admitted that a two traded and the defendant homicide his brother followed the defendant and that the husband autos period of time before in this auto for an extended they respective employment. to their went contrary of the time cards The admission People Lewis, 684; 293 NW mandate proscribes of busi- the admission which cases, the com- indicated ness records panion criminal at work and the brother killing negating the defend- thus the time of eyewitness, the case that ant’s brother, the crime their friend committed eyewitness implicated trio. Therefore one or more of the order by T. M. the time card evidence admission of was highly prejudicial to the defendant. produced against the evidence
Clearly the de- overwhelming. Only fendant was not one witness could produced identify who defendant as the killer. The admission of the time cards not only undermined the defendant’s theory of the impermissibly case but also bolstered the credibil- It cannot ity eyewitness. be said that ignored import completely purpose of the time card evidence. prejudice cure the
Accordingly engendered evidence, the time card I vote to reverse remand for a trial. new