People v. Amison

• Decision Date: 19 July 1976
• Docket Number: Docket No. 22001
• Citation: 70 Mich.App. 70,245 N.W.2d 405
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James AMISON, Defendant-Appellant. 70 Mich.App. 70, 245 N.W.2d 405
• Court: Court of Appeal of Michigan — District of US

Page 405

245 N.W.2d 405

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James AMISON, Defendant-Appellant.

Docket No. 22001.

70 Mich.App. 70, 245 N.W.2d 405

Court of Appeals of Michigan.

July 19, 1976.

Released for Publication Sept. 15, 1976.

[70 MICHAPP 72] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and CAVANAGH and McGREGOR, JJ.

McGREGOR, Judge.

Defendant was convicted by a [70 MICHAPP 73] Washtenaw County Circuit Court jury of delivery of a controlled substance, heroin, M.C.L.A. § 335.304; M.S.A. § 18.1070(4). He was subsequently sentenced to a term of from 7 1/2 to 20 years in prison and now appeals of right.

On appeal, defendant propounds three claims of error. Defendant first contends that remarks made by the prosecutor, some over defense objection, so prejudiced defendant as to deny him a fair trial. His primary objection focuses on the prosecutor's introduction to the jury of defendant's alias, 'Dirty Red'. Prior to trial, defense counsel requested an order deleting all references to defendant as 'a/k/a Dirty Red'. The trial court apparently granted the order Ex parte and failed to give notice to plaintiff. The order provided that the court files be reformed to delete all references to the alias. Further, the court ordered '(t)hat in all future proceedings the court and the prosecutor's office will refrain from including the a/k/a 'Dirty Red".

During plaintiff's opening statement, the following interchange took place:

'The People will prove in this case that on July 12, 1972 in the Derby Bar on East Ann Street, right over there (indicating) in the city of Ann Arbor, the County of Washtenaw, that the Defendant; James Amison also known as--

'MR. HENRY: (Interposing) Objection, Your Honor. We have been over that particular matter in this case on several different occasions.

'That was stricken from the file at the request of the Court.

'THE COURT: I will strike the reference at this time but if it properly comes out on evidence, we will have to handle that again.

'MR. HENRY: Thank you, Your Honor.' (Emphasis supplied.)

[70 MICHAPP 74] During the testimony of an Officer West, the prosecutor asked West to relate to the jury whether he knew defendant by any other name. Defense counsel objected on the basis of materiality and the lack of a proper foundation. Counsel did not, however, claim that the answer would be in violation of the pretrial order. The trial court overruled the objection and allowed West to answer that he knew defendant as 'Dirty Red', since he was introduced to defendant by that name.

We find no error in the admission of this answer, either based on evidentiary considerations or on the court's own order. The admissibility of evidence is a matter consigned to the discretion of the trial court. People v. Deblauwe, 60 Mich.App. 103, 230 N.W.2d 328 (1975). We find no abuse of that discretion here. Officer West's knowledge of defendant as 'Dirty Red' was probative in that it displayed the officer's familiarity with defendant and added to his explanation of the res gestae. While, as defendant argues, the name 'Dirty Red' may not indicate an individual of the best character, its introduction cannot be deemed so prejudicial as to completely outweigh its probative value. See People v. Basemore, 36 Mich.App. 256, 193 N.W.2d 335 (1971).

We find no merit in defendant's claim based on the court's order. The language of the pretrial order is subject to the interpretation that the court meant it to prohibit the use of defendant's alias only in the court files. The emphasized portion indicates that the court did not intend its order to restrict the testimony of witnesses. We presume that the court knew the intent of its order and enforced it accordingly. Further, defense counsel's failure to object to West's testimony on the basis that it was in violation of the pretrial [70 MICHAPP 75] order, rather basing his objection upon materiality and lack of foundation, lends additional weight to the conclusion that the order was never intended to restrict the testimony of witnesses.

We similarly reject defendant's assertion that a police officer's description of him as a major drug supplier constituted reversible error. The answer was made in response to a defense question which defense counsel should have anticipated would cause this very response. We refuse to consider such invited error. People v. Collins, 63 Mich.App. 376, 234 N.W.2d 531 (1975). Defendant also challenges as reversibly inflammatory certain statements made by the prosecutor during his closing argument. In its full context, the challenged statements represent a proper, non-prejudicial response to statements made during defense counsel's closing argument.

Defendant's second assertion of error is that the trial court committed reversible error by allowing the investigating officers to relate remarks made by defendant to an undercover policeman at the time of the alleged sale of heroin. The undercover policeman had been outfitted with a transmitting device, and his transaction with defendant was monitored and recorded by other officers. Defendant objected to this testimony because police did not procure a warrant prior to engaging in the monitoring. As defendant notes, the Supreme Court promulgated a warrant requirement for such monitoring in People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), Cert. den. 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975). However, Beavers was accorded expressly prospective treatment and, as such, does not apply here. Panels of this Court have split on the application of a warrant requirement to Pre-Beavers electronic monitoring. One [70 MICHAPP 76] panel imposed such a requirement in People v. Plamondon, 64 Mich.App. 413, 236 N.W.2d 86 (1975), Lv. granted 395 Mich. 813 (1975). Other panels have refused to do so. People v. Pulley, 66 Mich.App. 321, 239 N.W.2d 366 (1976), People v. Livingston, 64 Mich.App. 247, 236 N.W.2d 63 (1975). We choose to follow the latter precedent and rule that no error was committed in the instant case.

Defendant's final and most meritorious claim also relates to the monitoring activity. It was brought out at trial that the police had lost the tape made of the alleged heroin sale. Despite the absence of the tape, several officers testified, over defense objection, to what they heard while monitoring the transaction. Defendant now claims that the negligent loss of the tape denied him a fair trial in violation of his due process rights and deprived him of his Sixth Amendment right to fully cross-examine witnesses against him.

In response to this serious allegation, plaintiff blithely asserts that defendant's 'argument is completely esoteric'. We find it interesting that plaintiff considers fundamental constitutional rights 'esoteric'. Perhaps plaintiff also finds too esoteric for comprehension the GCR 1963, 814.3 requirement that he respond in a comprehensive and authoritative manner to claims made in appellant's brief. This Court and the people of Washtenaw County are ill-served by plaintiff's argument, one which cites no authority except an anonymous and invalid old English homily and relies instead on the personal feelings of the writer. We have reprinted plaintiff's argument in the appendix. No further criticism is necessary. We do, however, take this opportunity to remind plaintiff's appellate counsel that a brief should not be confused with an affidavit, and legal arguments with personal reminiscences.

[70 MICHAPP 77] The United States Supreme Court detailed the constitutional impact of evidence lost through actions of the police or prosecutor in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Such a loss is deemed a 'suppression' regardless of intent. In Brady, the Court focused on the harm caused by such suppression rather than on the intent which caused the loss of evidence. The Brady Court held that:

'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, Irrespective of the good faith or bad faith of the prosecution.' Id. at 87, 83 S.Ct. at 1196. (Emphasis supplied.)

Under the Brady line of decisions, the important factors to be considered on appeal are:

'(a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense and (c) the materiality of the evidence.'

Moore v. Illinois, 408 U.S. 786, 794--795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972), Reh. den. 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972). People v. Drake, 64 Mich.App. 671, 681, 236 N.W.2d 537 (1975). Evidence is material if the evidence 'could * * * in any reasonable likelihood have affected the judgment of the jury'. Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959). Favorable evidence is defined as all 'evidence which * * * might have led the jury to entertain a reasonable doubt about * * * guilt'. Levin v. Katzenbach, 124 U.S.App.D.C. 158, 162, 363 F.2d 287, 291 (1966). These tests should be liberally construed especially when 'substantial room for doubt' exists as to the effect disclosure might [70 MICHAPP 78] have. United States v. Bryant, 142 U.S.App.D.C. 132, 138, 439 F.2d 642, 648 (1971). See also People v. Eddington, 53 Mich.App. 200, 218 N.W.2d 831 (1974).

In the instant case, defendant made a request for the tape. It is clear that the missing tape would have been material to the case inasmuch as it might have affected the credibility of key prosecution witnesses. Whether the tape could have been exculpatory is difficult to determine. In determining whether suppression of evidence requires the vitiation of a defendant's conviction, a growing number of cases have applied...