*1 App v WESLEY PEOPLE 1980, 3, Lansing. September at 47368. Submitted Docket No. —Decided 23, applied appeal January for. 1981. Leave to Jr., kidnap- felony Wesley, murder and F. was convicted Joe prison felony-murder ping. for the convic- He was sentenced conviction, for the and received no sentence tion Newblatt, Court, appeals, Harry P. J. He Circuit Genesee determining alleging in a Walker that the court erred trial voluntary, admitting hearing that his was in statement evidence, fingernail-identification determining in his code- incompetent testify denying was and him his fendant thus witnesses, right denying to confront his directed motion for a kidnapping, instructing jury charge on verdict on asportation, sentencing defendant. Held: the element of and determination, that 1. The trial defendant’s statement court’s implicated charged voluntarily in the crimes which him made, was not erroneous will not be reversed appeal. admitting fingernail-identification

2. The trial court erred evidence, beyond was harmless a reasonable but error ^[2] [7,10]1 ^[4] ^[1] ^[5] ^[3] ^[6] ^[8] 5[9] Application 21 Am Jur 81 Am 29 Am Jur 21 Application 29 Am Jur 29 Am Jur 5 Am Jur 29 Am 5 Am Jur 1 Am Jur upon Am Jur Am Jur Am Jur Am Jur Jur is an is an includible offense with the homicide. Jur 2d, 2d, Appeal 2d, Appeal 2d, Appeal 2d, Appeal 2d, 2d, 2d, 2d, Evidence 251. 2d, 2d, 2d, includible References 2d, Abduction and Witnesses § Criminal Law 338. Criminal Evidence §§ Evidence 832. Evidence 818. Abduction and felony felony and Error 786. and Error § and Error §§ offense with Law §§ § § § for Points in murder murder Error 772. 139. 831, 831.5. § Kidnapping 11. Kidnapping § § 9. doctrine where the doctrine where the 839 et homicide. Headnotes seq., § 9.§ 948. 40 ALR3d 40 ALR3d felony felony 1341. 1341. relied relied Wesley proofs doubt since the not touched the taint of error were overwhelming jurors and were such as to enable all reasonable guilty beyond to find defendant a reasonable doubt. properly 3. The trial court determined that a codefendant *2 incompetent incompetent was to stand trial and thus was testify. deny right This determination did not defendant his confront witnesses. proofs during 4. The offered trial were sufficient to allow a guilty kidnapping rational trier of facts to find defendant beyond asportation a reasonable doubt. The element of of the any victim not shown was to be incidental to the murder or to properly other offense. trial court denied defendant’s mo- kidnapping charge. tion for a directed verdict on the 5. The instructions of the trial court on the element of whole, asportation, jury taken as a left with the correct requirement kidnapping view of that conviction charge. properly recognized 6. The trial court on the record that it prohibited convictions, sentencing defendant for both expressly kidnapping but did not vacate the conviction as required. express The case is remanded for such vacation. part

Affirmed in and remanded. Kelly, J., However, M. J. concurred in the result. he would fingernail-identification conclude that the evidence was admissi- ble at the trial court’s discretion and that the court’s determi- admissibility appeal nation of should not be set aside on absent an abuse of discretion. He would also note that defendant’s felony preclude conviction for murder should his conviction for underlying felony Jeopardy under the Double proof felony necessarily prove Clause since murder would all kidnapping. the elements of

Opinion of the Court Appeal Findings — of Trial Courts. Appeals give findings The Court of will deference to a trial court’s where, upon record, an examination of the whole it does not erroneous, find that the trial court’s determination was especially important where the demeanor of witnesses is credibility major where is a factor. Polygraph — Admissibility Expert — — 2. Evidence Tests Wit- nesses. expert

Testimony by polygraph-examiner witnesses is insufficient polygraph to render evidence of the results of tests admissible trial; there is a during must be offered tests, recognition general contemporaneous scientific establishment absent the of such evidence the admission certainty tests constitutes error. obtains from such reasonable Admissibility — — Voiceprint — Ex- Identification 3. Evidence pert Witnesses. reputations and careers are Testimony by whose witnesses voiceprint does not with identification on their work built voiceprint recognition general provide scientific necessary to allow its admission. Comparisons — Fingernail-Identification — Admissi- 4. Evidence Appeal — Expert — bility — Error. Witnesses comparisons regarding a by specialist hair Testimony in human technique fingernail-comparison insufficient to establish a is recognition fingernail-identification general scientific degree certainty necessary to warrant procedure or the evidence, procedure but of such into of the results admission error, constituting testimony, while of such the admission require does not beyond a reasonable doubt and harmless *3 proofs appeal not tainted the error are where reversal on jurors overwhelming as to enable all reasonable and are such beyond guilty doubt. a reasonable to find a defendant Competency Right — — — 5. Judicial Discretion to Criminal Law Appeal — — Witnesses Rules of Evidence. Confront A in a criminal case that a determination a trial court competent testify not an of its is not is abuse codefendant discretion, right deny it a defendant his to confront nor does witnesses, and such determination will not be disturbed on 601). (MRE appeal an of absent abuse discretion — Kidnapping — — — 6. Murder Motions Directed Verdicts Asportation. kidnapping A count of motion for a directed verdict on a because asportation properly denied a claimed lack of evidence of is where, upon presented, of facts the evidence a rational trier merely not find that the movement of the victim was could to, of, independent underlying of crime but was an incidental asportation. necessary supplied of thus element murder and Sentencing — Kidnapping — — of Convic- Vacation Murder 7. —tions Remand. court, imposing convicted on a defendant a sentence A trial kidnapping, felony felony underlying of both murder and the Opinion of the Court recognize prohibited must on it is the record that from sentenc- ing the defendant for both and convictions that where the necessary felony- conviction is a element of the prosecution’s theory murder conviction under the of the case vacated, underlying felony must conviction and failure requires expressly so for vacate remand such vacation. M.J. Admissibility. — — Techniques 8. Evidence Scientific technique gained Scientific evidence is admissible where a has general acceptance particular belongs. it field in which Relevancy Admissibility — — — 9. Evidence Judicial Discretion Appeal. — Relevance of evidence offered for admission is matter within a discretion, admissibility by trial court’s and a determination of appeal will be set on trial court aside an absent abuse discretion. — — Kidnapping — Homicide Cumulative Punishments Consti- Jeopardy. — tutional Law Double Legislature prohibited imposing The state cumulative punishments charges felony convictions murder and underlying felony kidnapping by an Jeopardy the Double proof Clause of United States Constitution where necessarily prove murder would all elements of the under- lying felony. Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Weiss, Solicitor E. Robert Prosecuting Attorney, Kuebler, A. and Donald Appellate people. Chief, Division, for the Drew, Richard J. for defendant. Kelly P.J., F. M. M. J. Cavanagh,

Before: JJ. Beasley, *4 Per Curiam. Defendant was as convicted charged felony murder, 750.316; MCL MSA kidnapping, 28.548, and 750.349; MCL MSA 28.581 jury. prison a He was sentenced to life for felony murder and no received sentence for App 240 Mich Opinion of the Court appeals The conviction. defendant right. prosecution from an incident in a bar arose This approached parking each men lot Flint. Two the car women sat with which two side of car grabbed the men women down. The windows rolled escaped through woman and ran windows. One help. was driven five blocks from The other struggle men, ensued, a shot was two bar fired, found dead. the victim was which of error asserts several claims

Defendant agree. require do not reversal. We he contends the defendant’s The court determined trial hearing that the statement the defendant Walker1 gave voluntary. Upon implicating an himself was record, do not find of the whole we examination clearly determination was errone- court’s "give to the trial court’s and so will deference ous findings, especially where demeanor of the wit- police defendant] officers and the [here, two nesses credibility major important, fac- is a as where People Terlisner, 431; tor”. (1980), People Hummel, 19 Mich 292 NW2d (1969). App 266, 270; 172 NW2d corpus estab- of the crime was The delicti prior independently to the admission of and lished into statement evidence. defendant’s prosecution proven had been had the victim prior to the admission of shot and had died statement. judge’s trial next in the

Defendant claims error relating to identifica- admission of fingernail of a means tion analysis the defendant comparison. found A oc- the crime in the of the car where back seat (On Rehearing), 132 NW2d v Walker (1965). *5 245 v Opinion of Court hearing pres- The

curred. court held a out of the jury admissibility ence of the to determine of comparison evidence of the of this with fingernail samples from taken the defendant. The admissibility fingernail analysis of a is an issue of impression Michigan and, first in indeed, in the United States. Supreme People Barbara, Court in v 400 (1977), discussing 352, 364;

Mich 255 171 NW2d admissibility poly- of evidence of results of graph tests stated: " '[Testimony offered which would indicate [must be] general

that there is at this time a recognition scientific of such tests. Until it that is established reasonable tests, certainty follows such it would be error Davis, People v admit evidence the result thereof.’ 348, 370; quoting People 343 Mich 269 NW2d Becker, (1942).” 562, 566; 2 300 Mich NW2d 503 Barbara, Several witnesses had had a great experience personal polygraph deal of with operation analysis, years personal of involve- polygraph examinations, ment with and testified polygraph that results obtained use of a were a respected of form But evidence. testimony polygraph

held of examiners enough. themselves special "While the record before us establishes the polygraph accepted as reliable by polygraphers, it does not establish that polygraph analysis is accepted as reliable the scientific community. Credentials witnesses, although outstanding polygraph techni- cians, are Therefore, not those of scientists. unless we depart from the Davis/Frye States, standard United [v US DC 293 F (1923)] test for admissibil- ity, defendant has failed to convince us that graph should be admitted into evidence at poly- in our trial Id., State.” App op Opinion the Court 141, 146; Tobey, The Court accept voiceprint refused 257 NW2d (a experts profes- despite experienced in officer police sor and a audiology had been student audiology who the area *6 per- Tobey The was not the professor’s). reputations "whose that these witnesses suaded voiceprint their built on careers have been and or disinterested”. work, impartial to can be said be instant case a civilian expert in the The State Police with a Michigan employee comparisons. in This human hair specialty fingernail identifi- had read of the testified that he (two were journals five forensic technique cation German). There were no and another was English technique was admitted cited such cases where response questioning about as In a evidence. in the scientific acceptance technique’s general expert responded: community, of people to a number personally "I have talked boss, meetings. Nassar went My I to Lieutenant know American of Society Crime Labo- meeting of meeting of all a national ratory Directors which is them, asking asking them examine crime directors things questions, the two arose. One is the same that eral that and gen- there to be everybody everybody seemed — community agreement this forensic science within individual, unique and fingernails were indeed and one ever had used evidence. But that no had could be involving one.” case and expert’s own experience analyzing has consisted comparing fingernail specimens his boss nail those of clippings, his own studying 1972, and those of had since which been collected samples with a "number three other individuals expert’s this do find that each”. We not general "a to establish sufficient was Opinion op the Court recognition scientific identification procedure” "degree certainty” or the from the fingernail technique use of the that would warrant supra. admissibility. Barbara, testimony regarding The admission finger- the defendant use of identification of comparison analysis nail error was where the recognition accep- evidence did not show a technique community. tance of the forensic however, find, We this error was "harmless beyond a reasonable doubt” based the over- whelming proofs, error, the taint touched jurors guilt which all reasonable could find beyond People Christensen, a reasonable doubt. App 23; NW2d 50 lv den 397 (1976). Mich 839

As to the defendant’s contention that he was right denied his to confront witnesses because his incompetent codefendant found to to stand *7 causing trial, incompetent the trial court rule to that he was testify,

to we affirm the trial court’s ruling. testimony by After an witness that clearly incompe- demonstrated the codefendant’s tency trial, to stand the trial court determined capacity that the codefendant would have the knowingly intelligently to waive his Fifth and against rights Fourteenth Amendment self-incrim- Accordingly, ination. the codefendant was not al- testify. lowed to The trial did court not abuse its determining discretion in the whether codefendant competent testify, to MRE 601. This Court on appeal findings will not disturb the trial court’s People the absence an abuse of v discretion. Eugene App Johnson, 30 284; Mich 186 NW2d 94 (1971), People 384 lv den Mich v 838 App Atcher, 734; 65 Mich 238 NW2d 389 lv (1977). den 399 Mich 866 App Mich 240 248 Opinion op the Court the trial court Defendant contends that abused denying for a directed its discretion in a motion charge kidnapping on the because there verdict was not sufficient support "asportation” to the proof charge. sufficient that defendant There was got car and drove his into the victim’s friend against will. A rational trier of her her five blocks kidnapping the were find elements facts could proven beyond 750.349; MCL a reasonable doubt. Hampton, People 28.581, 354; v MSA NW2d (1979), appeal to the United States pending. Supreme Court showing asportation of that

There was no merely to the murder incidental the victim was jour- five-block at the end occurred which any ney. it to be incidental to Nor was shown App Jones, other offense. (1979), People Adams, Otis 284 NW2d Mich (1971). 546; 192 NW2d charges that the instructions The defendant asportation jury given on the element of did to the requisite jury to the that not make it clear asportation must determined to be Although underlying independent any crime. indicates "if sentence of instruction one underlying murder, inci- movement crime involves generally sufficient establish dental statutory kidnapping”, several sentences valid asporta- indicate that the instructions tion Taken separate of murder. had from the to be crime whole, instructions find that we impression jury would leave the with correct asportation been inde- must be found to have supra, pendent underlying Jones, *8 the offense. recognized Finally, the on record trial court the People App 358, 364; 266 Wilder, 82 Mich that NW2d 847 v

(1978), prohibited from sen- court the Wesley v Kelly, M. J. J. tencing the for defendant convictions of fel- both ony kidnapping, underlying murder the fel- ony. necessary "[When] latter is a the element of prosecution’s theory the former under the underlying felony] case, [the must be vacated.” Court This is satisfied that the trial sen- court first-degree the tenced defendant the murder only, however, conviction expressly the trial court did not kidnapping

vacate conviction. We express remand for an vacation charge supra. Wilder, with accordance As to all appeal, other issues raised defendant on we affirm. part,

Affirmed in and remanded. (concurring). M. J. I concur in the majority. However, result reached I dis- agree with the Court’s conclusion as to the admis- sibility of defendant’s for identification purposes. People Tobey,

In 141, v 145; 257 NW2d (1977), People Barbara, 352; Supreme 255 NW2d 171 Court reaf- admissibility firmed its reliance the test for espoused Frye scientific evidence United (1923). States, US DC 293 F 1013 test, Under this scientific evidence is admissible technique gains "general acceptance when the the particular field which it belongs”.1_ ruling 1 A Frye recent Iowa has criticized the test Hall, and announced that it will In followed. State v (Iowa, 1980), majority NW2d 80 announced four criticisms Reporter rule summarized at 28 Criminal Law follows: "First, Frye imposes admissibility rule standard of not re- quired expert Second, appears of other testimony. areas of rule concepts inconsistent with modern allow an testify any knowledge long about area of so as the assists trier fact. *9 App Kelly, M. J. J. Concurrence I offered establish As the view prosecutor’s appears admissibility, it that the ex- acceptance finger- pert general of the did establish necessary its admission. The identification nail Bisbing having majority as characterizes witness presum- comparisons”, specialty in hair human "a concerning testifying suggest ably he was that professional exper- scope of his an area outside Bisbing’s testimony However, a closer look tise. general professional had more discloses he that individuality” "biological of interest fingernail species and that identification human study of the human [his] "an of was being individuality”. extension Bisbing such, could offer As opinion restrictive than the view more informed permit. majority’s majority Also, the would refusing prior courts cases to ac- reference to Tobey, supra, cept voiceprint identifications, and supra, despite polygraph mony verifying Barbara, results, testi- acceptance, their scientific voiceprint persuasive. polygraph and Unlike the methods, relies method of identification instant parts comparison body and thus a direct fingerprint closely resembles identifications. more reviewing case, of his In this after results limited tests and the more extensive results own reported scientific conducted and in various tests Bisbing journals early as witness stated gained had his belief that identification recognition acceptance in the field of forensic previously held that identification. We have * * * "Third, difficulty has distin- Iowa Court] [the guishing some scientific evidence from nonscientific evidence. "Fourth, acceptance concept since seems a 'nebulous’ scientific acceptance.” among disagree as to a method’s scientists themselves " opinion proffered 'need not wait an concludes that community; the scientific the foundation evidence assessment understandability reliability provided itself of the evidence inherent its sufficient bases for admission’ ”. M.J. relevance evidence offered for admission is a matter within the trial court’s discretion. See App Brooks, Aetna Life 310, 314; Ins Co v 96 Mich (1980), citing 292 Co, holding NW2d Jarecki v Ford Motor 78, 83; NW2d "[admissibility within rests the trial *10 court’s discretion and his determination will not set aside be unless there been has an abuse of appears The discretion”. decision below to me to been a rational one have ity based the credibil- testimony supporting admission. ruling The trial court’s decision such evidence should, therefore, be admissible not disturbed. possible separately I also write to note shift thinking the United States garding multiple Court’s re- punishments

convictions and In States, therefor. Whalen v 684; United 445 US 1432; 100 S 63 L Ct Ed 2d 715 the Court analyzed governing imposition a statute punishments cumulative committed in the District provides: of Columbia. The statute " imposed 'A person sentence on a for conviction of shall, an imposing offense unless the court such sen- provides otherwise, tence expressly run consecutively to any other imposed person sentence on such for convic- (1) offense, tion of an whether or not the offense arises (2) transaction, out another or out of arises the same requires proof transaction and of a fact which the other does original). not.’” DC Code (emphasis 23-112 § High majority interpreted initially provision legislative this aas codification of the Blockburger rule of States, 299; v United 284 US 52 S Ct L76 Ed 306 which held that " applicable '[t]he rule is that act where same or transaction constitutes a violation of two dis- statutory provisions, applied tinct the test to to App J. M. or only there two offenses whether are determine one, requires proof provision each is whether ” Whalen, supra, not.’ the other does fact which Thus, subject offenses presumably, produce rule cumulative Blockburger could However, ruling out cumulative punishments. Whalen, the Court did not rely punishments Instead, left open the Court rule. its constitutional punishments for cumulative possibility Blockburger if the same under considered offenses Congress so chose: 23-112, only way read think that the correct § "We purpose, is to history its evident light of its

in read it as Blockburger rule for constru- embodying the of Columbia ing penal provisions of District statutory offenses are not Accordingly, where two Code. the same under the imposed test, Blockburger the court the sentences 'shall, expressly provides oth- unless are erwise, consecutively.’ And where offenses run *11 test, sentences are not cumulative the same under specially authorized permitted, unless elsewhere added.) Whalen, Congress.” supra, (Emphasis Thus, withdrawn from apparently the Court has making constitutionally position prior its cases imposition pun cumulative impermissible See North Caro ishments for the "same offense”. L 711, 717; Ct Pearce, 395 US 89 S lina (18 85 US citing Lange, Ex parte Ed 2d Wall) holding that 163; 21 L Ed multiple against guarantee "the constitutional de requires for a punishments the same offense” full fendant, retrial, given to be upon convicted conviction. original served after the credit for time despite Whalen, legislature, a Under state Clause, would Jeopardy restrictions of the Double punishments impose be able to cumulative Concurrence M.J. legisla- offense same sufficient indication of tive intent. brought

The confusion about Whalen was length opinion discussed some a recent Supreme Court, State, Delaware Hunter v 420 A2d 1980). (Del, Court, The Delaware inter- bearing preting similarity a statute some factual felony-firearm law, to our own noted that it was question validity faced with Jeopardy under the Double legislature Clause when the intends mul- tiple punishments for the same offense. The Court held: opinion

"We are Jeopardy Double prevent punishment Clause was intended to regardless double procedural context in which it basis, found. where, canWe find no sound in Whalen or else- exempt Legislature from adherence to this doctrine in Multiple constitutional the instant case. sentences as abhorrent the same trial for the same equally act are guarantee, to the constitutional in our view, multiple sentences for the act resulting same multiple trials. "We are not convinced that Whalen controls the instant case in ambiguities view of the contained unexplained therein find in prior which we conflict with jeopardy principles thought double which we settled. We unwilling are principles abandon those until the Supreme United States Court has more definitely abandoned them.” join

I would the Delaware Court in its suggest critical view of the Whalen decision. To Jeopardy applies one hand that the Double Clause against punish- a constitutional ban cumulative *12 supra, offenses, ments for the Pearce, same Ex parte Lange, supra, apparently and then with- position specific draw from this without mention prior supra, suggests decisions, Whalen, more App M. J. oversight than a turnabout constitutional of an analysis. Michigan it, I

As view proper scope recognized the Double People Martin, Jeopardy 398 Mich Clause People v Stewart NW2d (On Rehearing), 540; 256 NW2d pro- applying the constitutional each case multiple scription and sen- convictions to both offense. for the same tences surrounding are instant case The facts proof parallel effect, largely In in Whalen. to those (felony greater in- in both murder offense of the stances) prove necessarily all the elements would (kidnapping felony case, underlying in this Whalen). Blockburger test, rape Under the "same constitute case thus offenses in either Supreme Court United States Until offense”. prohibiting position affirmatively mul- disavows its tiple punishments more violative of for conduct validity question of a statute, I would one than alternative. Whalen