*1 App 102 v WHITE PEOPLE 6, 1980, ng. Lansi at No. 43473. Submitted June Docket Decided 2, 1980. December first-degree of criminal sexual was convicted Lawrence White Noble, Court, conduct, E. Defendant Circuit Russell Jackson alleging type appeals, and secretor evidence which that blood could not be excluded from the defendant indicated admitted, improperly a possible was assailants class of improperly prior was referred to of a statement witness testimony closing argument, two prosecutor and that the of improper police Held: was rebuttal. detectives Appeals ruling the trial this case of the Court of since of 1. A of evidence be- the exclusion the blood would mandate low value of such evidence when cause of the confuse, mislead, weighed ability against or otherwise However, improperly evidence influence the because such acceptance widespread and because retroactive has use and had may signifi- against application the rule admission have justice, the administration cant adverse effect ruling retroactive effect. will not adopted, prior at least 2. statement of the witness was The prosecutor’s part, by trial. The the witness he testified at when error. later statement not reference police was not detectives 3. rebuttal improper. Affirmed. Kelly, J., concurred, separately qualify his M. but wrote
prior opinion People 91 Mich [1, 20 Am [2] [4] [3] 81 Am Jur Witnesses 643. Prospective Am75 2] 29 Am Am75 Blood 504. ALR3d Am grouping Jur Jur Jur Jur Jur 2d, 2d, 2d, 2d, 2d, or retroactive References 2d, Trial 166. Evidence §§ Trial 218. Evidence 370. tests. ALR2d Courts § § §§ § § for Points 1104, 233, application 236. 1147. 1000. in Headnotes overruling decision. v White (1979), regarding admissibility NW2d 669 of blood suggest may evidence. He would that such evidence be admissi- place ble where the evidence would the defendant within *2 sufficiently population group. defined In this case the evidence to, objected should been it have excluded had been but its presented fully admission was harmless because case was adequate proofs jury with and the of informed the limited value of the evidence. Future cases which the evidence more points accurately particular significantly to a defendant aor smaller class a should be decided on case case basis.
Opinion of the Court — — Application 1. Criminal Law New Rule of Law Retroactive of Case Precedent. determining to factors be taken into consideration in give only prospec- whether to a new rule of or law retroactive (1) application purpose tive are to be served the new (2) rule, rule, (3) upon the extent of reliance the old and its justice. effect on the administration of Type — — — 2. Criminal Law Blood Rule Evidence New of Law. opinion Appeals testimony An of of the Court which held regarding types place population used to a in a defendant group possible perpetrators of a crime should excluded weighed against because its low value when possible confuse, mislead, ability improperly or otherwise jury application influence should not be retroactive previously accepted testimony where such had been inwas widespread give use and where to rule new retroactive application may significant have adverse effect justice. administration of — — 3. Witnesses Criminal Law Prior Statement Witness. prosecutor referred, properly closing A argument, to a state- inculpating ment the defendant which witness had made police adopted where the witness in trial his statement; properly the statement was therefore in the record proper prosecutor and it was to the refer statement adopted by to the extent that it had been the witness. M. J. Type — — — 4. Criminal Law Evidence Blood Within Inclusion Population Group. Evidence of blood which includes a within a population group requires comprising of all males a limit- 20% 102 Opinion of the Court ing jury objected be excluded if instruction to the and should error, to; was harmless how- the admission such evidence ever, to, fully presented objected case was where it was not adequate proofs, prosecutor closing and the commented in with argument on the limited value of the evidence. Kelley, General, Robert A. Frank J. Attorney Derengoski, Grant, Edward J. General, Solicitor Wildeboer, and John C. Prosecuting Attorney, people. for the Appellate Attorney, Chief Bennett, P. E. Appellate State De- Assistant fender, appeal. for defendant on Kelly Danhof, C.J., and M. J. and G. R.
Before: JJ. Corsiglia,* Corsiglia, Defendant-appellant
G. R. was con- 2, 1978, of crimi- first-degree victed on November *3 conduct, 750.520b(l)(f); to MCL contrary nal sexual 28.788(2)(l)(f), a four-day MSA after trial before a Jackson Circuit Court He was sen- County tenced to 6 to 15 Defendant years imprisonment. appeals right. as of trial, complaining
At the witness testified that verbally she was followed and harrassed a walking number of men in a car while home from Jackson, a of 1978. Michigan, February bar car, Terrified out of the got when one the men her, she ran. and pursued eventually Two men she attempted get into a friend’s house. Unfortu- locked, nately complainant the home was and the grabbed, raped by was assaulted and physically one of the men. from penetrated Because she was snow, behind while on her in the hands and knees face. get good she did not look at her attacker’s However, cloth- based her recollection of his size, characteristics, ing, and while certain other * judge, sitting Appeals by assignment. Circuit on the Court of People v White op Opinion the Court police riding scené, with from few blocks the and shortly assault, after she identified defen- custody. was dant. He plainant then into taken com- hospital police. was taken to the Michigan trial, Schehr, At Frank of the State Unit, Serology Division, Police Forensic Science analyzed clothing testified that he of the com- plainant specimens defendant, and the taken from complainant, samples and and saliva from the taken complaining defendant. He that testified type B
witness had blood and was a secreter that the defendant had A blood specimens also a and was secreter. The taken from complainant’s vagina showed A se- according analysis, speci- cretions, to his and such mens were consistent type. with defendant’s blood they addition, were also consistent with an AB secreter. Further in a similar given, indicating vein was all that the defendant possible could not excluded from the class upon laboratory analysis. based assailants deny riding The defendant did not that was he kept pace complainant in car with the morning. early the occupants hours of the One of the other car, Wheeler, Fred stated that he telling days did not recall a detective a few after the incident that the defendant said that he going to "fuck that white bitch” when he left the finally car. Wheeler if stated the detective (Wheeler) said that he statement, made the then memory it, he must have said that his was better *4 date, at the earlier and that he was not which sure of the two men who exited from the car made the statement. testify
The defendant took the on stand to his own behalf. He that claimed after he the car left complainant he did not see the or other man the App op Opinion the Court to he walked According testimony, his got out. who home, to ask an but decided toward his mother’s Curtis, he met just named whom acquaintance mother’s, to for a ride his arriving at his before the defendant person gave house. This sister’s found his and left. defendant ride When requested home, six blocks he walked back sister was not taken into home. He was toward his mother’s house. Defen- the of a friend’s custody porch on the friend’s house stopping he at dant claims her a question. to ask rebuttal, recalled a detective prosecution defendant. The witness interviewed
who had
did not mention the
the defendant
testified
him the ride to his sister’s
who offered
Curtis
story
details of
or other
similar
house
the stand.
told on
interview,
who observed
Another detective
prosecution
not been called
and who had
rebuttal,
that he had not heard
to
testified
prior
offered the defen-
about
the Curtis who
anything
regarding ride or the other new details
dant a
day.
on that
defendant’s activities
did not believe the defen-
apparently
The jury
events, and he was convicted.
dant’s version of the
He
several errors
law.
appeals, alleging
predates
trial
in this case
decision
Sturdivant, 91 Mich
283 NW2d
App
(1979).
implicit approval
Prior
as
such
given
had been
See, e.g., People Newby,
given
this case.
lv den
400; 239
66 Mich
NW2d
(1976).
with
Mich 867
Hence we are confronted
in Sturdivant
the rule set forth
issue
whether
retroactive
effect.
ought
to be
into considera-
taken
generally
Three factors are
a new rule
give
determining
tion
whether
*5
People v White
op
Opinion
the Court
or prospective
law retroactive
es-
application. As
Denno,
v
Stovall
293;
S
tablished
388 US
87 Ct
1967;
(1967),
Indication
the reliance
upon the
rule
old
regarding
on
expert
types
given
widespread
use
acceptance
in similar
Indeed,
cases.
this
able
case
defense counsel did
even
not
object
prior
its introduction. No
indica-
tion was
given
trial counsel of the imminent
demise of the
Placek v
Compare,
established rule.
Sterling Heights,
405 Mich
Further, in this opinion, Court’s ap- retroactive Sturdivant, plication rule of lack prior precedent in similar or cases indication higher bench, from courts to the trial may have significant adverse effect the administration of justice. Sturdivant
Consequently, we give decline to ret- roactive application. decide, Since we so hold- this ing ought not ap- be construed either as an App M. 102 Mich Kelly, of Sturdivant proval or disapproval (except Judge the writer of who still it). approves of argues also reversible error
occurred when the judge trial prosecu- allowed the tion to argue that the statement made Mr. *6 Wheeler was evidence of guilt. defendant’s After a record, review of the it is apparent that Mr. Wheeler adopted prior his at testimony, least inso- far as one of the two men who exited from the car made the statement. Consequently, the statement properly record and referred in properly to closing argument to the extent it was Couch, People v adopted. 69; 49 Mich App (1973). NW2d 250 We find no reversible error in prosecution’s the references to Mr. Wheeler’s testi- in his mony closing argument.
Likewise, the use of the detectives to rebut the story told by the defendant was not improper. Detective Smith had testified during prosecu- the tion’s in case chief. Detective Crawford merely supported his further testimony in rebuttal to the contrary testimony offered the defendant. Peo- by ple Gibson, v Rosemary 543; Mich App (1976). NW2d 613
Affirmed.
Danhof, C.J., concurred. Kelly,
M. J.
(concurring).
I
concur
majority
opinion, but
take
this
opportunity
qualify my opinion in People
Sturdivant,
v
Mich App 128;
(1979),
Two cases in this Court have held blood recently type evidence In People v Spencer, admissible. Mich App 605; 286 (1979), NW2d 879 a case de- People v White M.J. three months after only
cided
prior
cited
cases which admitted
Court
such evi-
dence,
comment”,
"without
as the basis
its
Hor-
decision,
In a
more recent
decision.
ton,
40;
99 Mich App
App 3d
NE2d 398
from
case
own
which,
bar,
showing
like the case at
involved a
that one
population
of 'nonsecretors’ was connected with a
Gillespie,
crime. In
evidence was admitted to show that
burglary
person
was committed
aby
having blood
occurring
only
characteristics
of the black
2.7%
in Sturdivant considered
population.
panel
great
Gillespie
'specificity’ of the
evidence in
distin
guished it from the
grouping shown
80%/20%
secretor characteristic.
all,
"If
established data such as this is
used at
we believe that
the statistics
are
no
themselves
signiñcance. As
population group
connected
awith
grows larger,
crime
force of that connec-
*7
will
tion
decrease
accordingly.
As
observed
[State
Thomas,
78 Ariz
(1954)]:
The language emphasized above pinpoints specific problem considering incurred admission of this point percent- evidence. At what does the of age group in which is to be 102 M. J. significant enough included become so probative outweighed value of the evidence is not prejudicial effect? MRE 403. The Horton analysis point. opinion is inconsistent on this group first states that defendandt is the size of the in which a lumped significance”; is "of no there- probative after, value of such evidence group numerically decreases as the becomes larger. group Where does the size of the become large enough preclude admission of the evi- dence?
Obviously, if the defendant is included in a class consisting population, of the 2.7% it is more probative than if he is included in a class consist- ing population. 20% This leads me to an altogether nonagonizing reappraisal of Sturdivant. good
What is about Sturdivant it if is followed is bright that it is understandable. It draws a line. It expert testimony appears disallows so-called which polygraph1 to me to be less scientific than evidence certainly devoid of the identifiable characteris- fingerprints, fingernail, tics of hair and even voice identification evidence. hand, On the other I precise should have been more in Sturdivant when describing the New York rule. I said: "we adhere expressed to the view in the New York cases2 which accords inclusion no value.” Sturdivant, 132. The New York rule is not that hard and fast. The decisions leave the door ajar type to admit blood inclusion evidence certain instances. Robinson, the New York Appeals Court did not find all blood evi- 1 Law enforcement officials use evidence to rule out a suspect they as polygraph often do in Accepting the case of evidence. purposes the results of the for determining tests innocence does not alchemy involve establishing the same guilt. *8 2People Robinson, 864; v 19; 27 NY2d 317 NYS2d 265 543 NE2d (1970), People Macedonio, 944; 1002; v 42 NY2d 397 NYS2d 366 NE2d (1977). 1355 People 165 v White M. probative value; without entirely
dence rather, the evidence there was "in inadmissible large proportion general of the of the popula- view Sturdivant, having blood of this type”. tion [A] Thus, while not proscribing inclusionary 131. blood evidence across the board New York type it impression court left the outlawed future inclu- very use.3 At least it can be seen to sionary part have an exercise of discretion on the required to find proportional of the trial court some dimen- having suggest I relevancy. hesitatingly sion this could be a rule of future treatment we could all abide. value of a
Perhaps
per-
narrow
centage
outweigh
potential
classification would
132,
prejudice.
distinguished
we
Gillespie, supra,
v
People
"where
the decision
expert
an
testified that
only
witness
2.7%
'A’
Negro
positive
had
with a
population
Type
3
company.
New York and Sturdivant
are in each other’s
The
People Horton,
majority position
supra.
following
is
v
followed
type
states have found blood
Alabama,
Arizona,
evidence both relevant and admissible:
State,
564;
(1959),
Dockery
269
v
Ala
114 So 2d 394
Thomas,
52;
(1954), Colorado,
State v
78 Ariz
however, from the of 20% non-se- including cretors4 herein. The limited value of group comprising in a of all males defendant must 20% against necessarily be measured the effect limiting on a such evidence MRE A403. mandatory perhaps instruction is the but evidence presented authenticity an assumes aura of if through persons with scientific credentials in theo- retical white smocks. In this case I think it should objected have been if excluded defendant admission. fully he did and Since not since the case was
presented adequate proofs, with I find the particularly light harmless, error in the of the testimony occurring reference to this at the end of prosecutor’s closing argument the rebuttal fol- as lows: important
"The essential testimony testimony from the from fellow the Crime Lab is in the analysis of the comparison blood and then from the with the say it, semen. That doesn’t the Defendant did but says it also not eliminate him. why That is —does testimony brought just in from the lab. It’s like in a paternity suit. can You eliminated blood test. Obviously, if the child does not your type have of blood or is not a combination that would your come from blood, that you. eliminates You could not be the father. It’s same type situation here. not He’s eliminated 4The cases cited type in footnote 3 are all blood cases. Two prosecutor, State, 396; cases cited 725 v Evans 235 Ga 219 SE2d (1975), Beard, 50; (1954), and State v 16 NJ not A2d do involve blood evidence of the defendant. nor Neither cases any meaningful the writer offer factor and the blood distinction between the secretion Further, type. Lindsey, 84 Cal Rptr point 3d 149 Cal the court did not address the at entirely which such evidence becomes irrelevant inclusive of too as large segment population. people’s expert of the In this case the on testified include cross-examination that "A” or "A/B” secreters would approximately per population. cent of the People White M. J.
but, obviously, say this doesn’t he is one. He is not only type. one that has that blood That is the importance from the lab man.” proof beyond
A criminal case in which a reason- required ought convict, able doubt is depend upon not to prosecutor’s ability place group within a of all males. 20% group provides Inclusion of the defendant this *10 probative inculpatory almost no At evidence. danger jury giving time, same of a undue weight apparent, such evidence and should be large groupings avoided. including cases of the benefit of consisting defendant in class 20% outweighed clearly potential all males is cases, adverse influence on the Future which blood and secreter evidence accu- more rately points particular signifi- defendant, to a or a cantly necessarily class, must smaller be decided on a case case basis.