People v. Albert

• Decision Date: 02 April 1979
• Docket Number: Docket No. 77-4082
• Citation: 89 Mich.App. 350,280 N.W.2d 523
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith D. ALBERT, Defendant-Appellant. 89 Mich.App. 350, 280 N.W.2d 523
• Court: Court of Appeal of Michigan — District of US

Page 523

280 N.W.2d 523

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith D. ALBERT, Defendant-Appellant.

Docket No. 77-4082.

89 Mich.App. 350, 280 N.W.2d 523

Court of Appeals of Michigan.

April 2, 1979.

Released for Publication July 12, 1979.

[89 MICHAPP 351] Josephson & Fink, by Sally Claire Fink, Ann Arbor, for defendant-appellant.

[89 MICHAPP 350] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., James S. Sexsmith, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and KELLY and HOEHN, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant, Keith D. Albert, was charged with the armed robbery of Edward Nicholas, Jr., in violation of MCL § 750.529; MSA § 28.797. On August 18, 1977, following a jury trial defendant was found guilty as charged. On September 9, 1977, defendant was sentenced to 15 months to 5 years in prison, with credit for 27 days already spent in jail. Defendant appeals as of right.

Defendant raises four issues the first of which warrants reversal.

The case involved misconduct by a police officer in destroying a tape-recorded statement of a prosecution witness, which admittedly was beneficial to the defendant. It was the prosecution's theory that the armed robbery which occurred at Putnam Hall on the Eastern Michigan University campus was perpetrated by Thornton Logan, Willy Franks and Christopher Hayes. The defendant, being an accomplice, drove the perpetrators to the building, showed an escape route and drove the get-away car.

The defendant testified that he took the various individuals to the Putnam dormitory in order to buy marijuana so as to keep Logan's mind off criminal activity.

Logan testified on behalf of the prosecution as part of a plea bargain wherein he was allowed to plead guilty to the lesser charge of assault with intent to commit robbery while armed. Logan [89 MICHAPP 352] testified to defendant's direct involvement in the crime.

During Logan's cross-examination it was disclosed that on February 3, 1976, 21/2 weeks after the robbery, he was arrested and made a taped confession to Sergeant Garland of the Eastern Michigan University Police Department. This statement described the events of the evening in question but did not implicate defendant as a participant in the robbery. On February 5, 1976, a second statement was made by Logan and taped by Sergeant Garland wherein the defendant was implicated.

The first tape-recorded confession was "discarded" by Sergeant Garland. It is the destruction of this statement and its unavailability at trial which defendant claims warrant reversal.

This Court in People v. Amison, 70 Mich.App. 70, 245 N.W.2d 405 (1976), detailed the impact of loss of evidence through actions of the police or prosecutor. The following quote from People v. Amison, supra, pp. 79-80, 245 N.W.2d pp. 409, 410, represents a concise articulation of Michigan law on point:

"This Court has uniformly held that, absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. People v. Eddington, 53 Mich.App. 200, 218 N.W.2d 831 (1974), People v. Bendix, 58 Mich.App. 276, 227 N.W.2d 316 (1975), People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472 (1975). This Court has also held that the * * * (destruction of taped police broadcasts regarding a defendant's description under the routine departmental policy of erasing broadcast tapes 30 days after their making) where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal. People v. Hardaway, 67 Mich.App. 82, 240 N.W.2d 276 (1976). It is only where this Court has found that there was no effort made to [89 MICHAPP 353] preserve the evidence initially, People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972), Remanded on other grounds, 391 Mich. 419, 216 N.W.2d 780 (1974), or where there was the possibility that certain test results may have been actually suppressed, People v. Drake, 64 Mich.App. 671, 236 N.W.2d 537 (1975), that this Court has found possible suppression mandating reversal."

The pertinent inquiry in the present case is whether the action of Sergeant Garland in "discarding" the tape-recorded confession was performed in bad faith or for the purpose of destroying evidence for a forthcoming trial. People v. Kelson, 71 Mich.App. 410, 248 N.W.2d 564 (1976); People v. Hardaway, supra. Our inquiry need go no further than the following colloquy between the defense attorney and Sergeant Garland:

Mr. Pitts: "Q: Sure. He (Logan) indicated something about a previous tape or previous statement, correct?

Sgt. Garland: "A: Correct.

"Q: Where is that?

"A: It was discarded.

"Q: Why did you discard it?

"A: Because It had no relevancy. He wanted to change his testimony.

"Q: That was an opinion that you made and a decision that you acted upon, correct?

"A: It was at his request that I

"Q: To throw it away?

"A: To discard anything that he had said.

"Q: But you don't always do what a person tells you to do, certainly not a suspect, do you?

"A: It wasn't anything that I wanted to hear.

"Q: It wasn't anything you wanted to hear?

"A: No.

"Q: Do you know...