*1 App PEOPLE ROWAN Opinion the Court of Tape Warrant — Re- Without 1. Searches and Seizures —Search cordings —Evidence. having tape recordings first obtained made without a Secret requires decision which warrant Court’s participant prior procurement for such moni- of a warrant toring procedures in evidence. are inadmissible 2. Searches Without Warrant —Partici- and Seizures —Search pant Monitoring Evidence—Admissibility. — spoken directly may to him An as to statements informant though tape defendant even he had with a conversations through recordings and obtained made of such conversations prior procure- participant monitoring procedure without the
ment of a warrant are inadmissible. 3. Evidence —Witnesses—Use Recollec- of Memoranda —Refreshed Knowledge. tion-Tape Recordings Independent — memory may testifying recollection A refresh his witness listening tapes prepared he himself from notes defendant, though even conversations between himself and trial, are not admissible at where the themselves knowledge memory independent and refreshed witness used his to make his notes. by Quinn, Delay Prejudice—Bail Speedy Trial — 4. Criminal Law — in Trial — —Representation Counsel. delay the arrest and trial of a defendant A of months between [1] [2] [3] [4] [6] [7] [5] 30 Am Jur 68 Am Jur 68 Am Jur 76 Am Jur 21 Am Jur 4 Am Jur 68 Am Jur Am Jur 2d, Appeal and Error 413. 2d, Evidence 1080. 2d, 2d, Trial 2d, 2d, Searches and Seizures 24.§ 2d, 2d, References Evidence 65. § Searches Searches and Seizures Criminal §§ 173-176. § and Seizures 61. Law for Points §§ § in Headnotes §§ § 44. v Rowan require does not conviction reversal of his where there is no showing prejudice, no demand was made where for a trial, represented out bail where the defendant was during question. counsel time *2 Participant Monitoring 5. Searches and Seizures — —Search With- Tape Recordings Prospective Application. out Warrant — — may taped Prosecution witnesses conversations be- police sergeant tween a defendant and a where the were participant monitoring proce- obtained without a warrant for a prior holding requires dure to the Court’s which a monitoring applies prospec- search warrant for but which such tively police occurring conduct after its decisional date. Appeal Transcript—Final Arguments Prejudice. 6. and Error — — arguments A trial court’s failure make a record of ñnal of counsel in a criminal trial is not reversible error where the prejudice deprive defendant fails to show sufficient to him of a appeal complete transcript. fair due the lack of Defenses—Entrapment—Walker Hearings. 7. Criminal Law — A defendant in a criminal trial Walker-type is entitled to a where the of defense entrapment is raised. Appeal from Muskegon, Larnard, Charles J. 6, 1977, (Docket April Submitted at Rapids. Grand 27648.) No. Decided June 1977.
Nathan Rowan was convicted of eleven counts of bribery and eleven counts of obstruction of justice. appeals. Remanded issue. If the trial court finds entrap- ment, defendant is to discharged; be if no entrap- found, ment is affirmed.
Frank J. Kelley, Robert A. General, Attorney Derengoski, Ward, General, and Robert C. Solicitor Jr., General, Assistant Attorney people.
Bell, McSorley, Daniel, C., Hudson & P. for de- fendant. App 76 Mich Opinion op the Court J., Jr., P.
Before: D. E. Holbrook, and Quinn JJ. Allen, and Judge
Allen,
agree
in full with
Quinn
issues
affirm for
On issue we
reasons
different
rule of Bea
non-retroactivity
than the
Plamondon,
vers.
v
People
413;
Mich
App
(1975),
NW2d 86
we held
warrantless
secret
tape recordings
even
made
Beavers,
decisional
date
(1975),1
Defendant filed a motion to dismiss on June 1975. No was held on The this motion. 7, 1975; renewed on motion was November a hear- held on mo- was December and the App 76 Quinn, on December commenced Trial tion was denied. 17, Sgt. was John witness prosecution
The main
defendant
several
met with
Jurkas
Sgt.
Jurkas.
1974. At
June,
May,
these
1973 to
times
the officer with infor-
meetings,
supplied
defendant
operations
the
concerning
gambling
mation
each of these
recorded
Sgt.
secretly
area.
Jurkas
at trial but
were offered
conversations.
However,
into evidence.
were not admitted
his recollection of
refresh
was allowed to
officer
to his field notes
reference
the conversations
listening
compiled
*5
People
129
v Rowan
by Quinn, Concurrence
hearing
request
grant defendant’s
entrapment?
the issue of
jury
of the
on
presence
not a
case was
denial of
delay
present
was out
trial. Defendant
on
right
speedy
to a
during the time in
represented
counsel
bail
for a
trial.
There was no demand
question.
Further,
to show the preju-
has failed
defendant
Abram,
v
App 546;
40 Mich
People
to
dice
his case.
(1972).
511
Court
procurement
of a
monitoring requires prior
pant
further held that Bea-
warrant. The Court
search
It
vers was to
applied
is to be
apply prospectively.
occurring
its decisional
police
conduct
321;
People Pulley,
v
App
66 Mich
239 NW2d
date.
Livingston,
People
v
(1976),
App 247;
64 Mich
366
(1975).
case,
In the
present
defendant was
charged.
entrapment,
there was
finds
If the trial court
stand affirmed. We
case shall
this
jurisdiction.
retain no further
notes
own
should not
make his testimony objectionable.
making
Prior to
his notes he would sometimes listen to the tapes
but would
use
independent
knowledge
then
his
memory
making
refreshed
the notes. Wit-
nesses
testifying
traditionally
are
memory
allowed to refresh their
recollection
from their
Battle
Food
own
notes.
Creek
Co v Kirk-
prepared
land,
(1941).
298 Mich
Notes
to notes typewritten tapes. meetings, defendant re- At several of these operation. gambling his protection for quested supplied Sgt. defendant protection, return for the and various bribes. with information Jurkas chief, defendant case prosecution’s After requested a The trial court entrapment. issue of jury on the refused, untimely. Defend- the motion was stating solely based argue was allowed to ant prosecu- in the presented as upon evidence to dismiss on case. The defendant moved tion’s was denied and the motion entrapment, basis of his case. defendant rested on appeal: raises four issues to a right denied his 1. Was defendant trial? prosecution’s it witnesses 2. Was error taped conversations between recordings Sgt. Jurkas where a warrant? obtained without were arguments final the failure to record the 3. Was error? reversible of counsel it for the trial court refuse 4. Was error