People v. Bell

• Decision Date: 28 March 1977
• Docket Number: Docket No. 24787
• Citation: 74 Mich.App. 270,253 N.W.2d 726
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Titus James BELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 726

253 N.W.2d 726

74 Mich.App. 270

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

Docket No. 24787.

Court of Appeals of Michigan.

March 28, 1977.

Released for Publication May 31, 1977.

State Appellate Defender, James R. Neuhard, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., by Samuel Damren, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and T. M. BURNS and BEASLEY, JJ.

ALLEN, Presiding Judge.

Where a complaining witness has, under a grant of immunity, previously given testimony in court under oath that he committed perjury in a prior trial, may such admission be used to impeach the credibility of such witness in a subsequent unrelated trial? Or is the admission precluded by People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973)? This issue of first impression, as well as a second issue of first impression relating to information received in the LEIN system, arises on the following facts.

On a complaint brought by patrolman Raymond Smith of the Ecorse Police Department, defendant was charged with unlawful possession of the controlled substance, heroin, in contravention of M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was tried by jury in the Circuit Court for Wayne County, found guilty and, on January 6, 1975, sentenced to a term of two to four years in prison. Motion for a new trial was granted January 21, 1975, and defendant was released upon a $2,500 surety bond. ¹ At the beginning of the second trial in March 1975, defense counsel moved to dismiss based upon information that the complainant, Raymond Smith, was the object of a pending perjury investigation and that his testimony lacked credibility. The motion was denied and defendant was again tried by jury.

At trial, defense counsel sought to impeach Officer Smith by twice inquiring why he was no longer employed as a police officer. Objection to the questions was sustained and defendant was found guilty of the offense charged. May 8, 1975, he was sentenced to a term of 14 months to 4 years in prison and, having served the minimum sentence, is now on parole. On appeal to us he initially briefed four issues. On the day of oral argument he raised two new issues and moved to remand to the trial court for a full evidentiary hearing on newly discovered evidence or, in the alternative, that leave be granted to file a supplementary brief discussing the new issues. The second request was granted.

Of the four errors ² initially briefed, alleged errors (2), (3) and (4) may be disposed of summarily. Contrary to appellant's claim, juror # 13 was not dismissed arbitrarily. The transcript discloses that the juror absented herself and was not present and the sheriff had no knowledge of where the juror was. Broad discretion is given the trial judge to empanel a jury of not less than 12 but not more than 14, with further discretion to reduce the number to 12. M.C.L.A. § 768.18; M.S.A. § 28.1041. Given the facts that 12 jurors would still be left, we find no abuse of discretion.

Due diligence is required of the people to produce witnesses whose names are endorsed on the information. People v. Zabijak, 285 Mich. 164, 171-172, 280 N.W. 149 (1938). What constitutes "due diligence" is set forth in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Application of the Barber standard to the transcript discloses multiple attempts to locate the three witnesses. Police efforts to track down the persons named commenced several weeks before trial and continued through the first day of trial. Two of the three witnesses had testified at the first trial and when presented with the availability of their testimony, defense counsel did not press for production of the witnesses.

The question of whether due diligence has been shown is a matter for the discretion of the trial court whose decision will be overturned on appeal only where a clear abuse of discretion is shown. People v. Rimson, 63 Mich.App. 1, 233 N.W.2d 867 (1975). On the basis of the record we find no abuse of discretion.

Ten days prior to trial, defendant moved to permit the taking of a sample of the heroin allegedly seized from defendant. The motion was denied without opinion. It is argued that the independent sampling was crucial since the substance introduced at trial was tan or brown-tan in color whereas the substance allegedly thrown beneath the automobile was described as a white powder. The law on criminal discovery is evolving ³ but, in this state, has not yet reached the point where the opportunity to conduct an independent scientific examination with an expert of one's own choice is a right inherent in due process. The controlling Michigan decision, People v. Maranian, 359 Mich. 361, 102 N.W.2d 568 (1960), leaves discovery to the trial court's discretion. GCR 1963, 785.1(2) prohibits civil discovery rules from being applied in criminal cases and, to date, special rules for discovery in criminal cases have not been promulgated. Generally, a trial court's denial of criminal discovery is not reversible if, as in the instant case, defendant is afforded full opportunity of cross-examination. People v. Maranian, 359 Mich. 361, 369, 102 N.W.2d 568 (1960). See People v. Ranes, 58 Mich.App. 268, 274, 227 N.W.2d 312 (1975).

Was the stop of the automobile unreasonable because it was based on incorrect information in the LEIN system? The question posed presents an issue of first impression, the resolution of which necessitates a further statement of facts. Early in the evening of August 22, 1974, while on routine patrol duty in the city of Ecorse, police officers Raymond Smith, Alvin Demings and Jimmie King spotted defendant driving a four-door Oldsmobile. At the time, defendant was not speeding or violating any laws. However, Officer Smith had run a license plate check on defendant's car several days earlier when he had observed the car parked in front of a known drug house and found there was an outstanding traffic warrant against defendant. A radio call, sometimes known as a LEIN check, was made and a response received that the warrant was still outstanding for failure to pay a traffic ticket fine. Unbeknownst to the officers, the traffic ticket had been paid earlier that day. ⁴ Promptly, the officers pulled their car in front of the Oldsmobile which was then stopped. Upon being stopped, the defendant leaped from his car and started running. As he did so, Officers Smith and Demings saw him reach into his shirt pocket, pull out a coin envelope and throw it on the ground under the front end of the car. The envelope was retrieved by Officer Smith and later found to contain heroin. Conceding that a police stop on the basis of an outstanding warrant is reasonable, even if knowledge of the warrant comes second-hand through the LEIN system, defendant argues that when the LEIN system is in error the stop is no longer reasonable. In support of this assertion Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), is cited. In that case a patrolman, relying on information transmitted over the state radio network that there was an outstanding warrant for petitioner, stopped and then searched petitioner's car. Subsequently it was found that the warrant had been issued without probable cause. We find Whiteley distinguishable. There, unlike the instant case, the warrant relied upon by the arresting officer was not supported by probable cause and was invalid ab initio. The Whiteley situation is similar to People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974), where the initial stop of the vehicle was without a reasonable basis. But, in the instant case, the warrant was based on probable cause and was valid from the beginning. In People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974), the Supreme Court stated that a police officer may rely on information transmitted by radio from another police officer examining an official record. ⁵ Since the patrolling Ecorse officer had a right to rely on the information which, in turn, was based on a valid warrant, the officers had a reasonable basis on which to make the stop. The sole issue is whether the officers were lawfully in a position to see defendant throw a coin envelope beneath his car. Provided there is no undue delay between the time the ticket underlying a valid warrant is paid and the time that the LEIN system cancels the warrant, we find officers may rely on information conveyed by the LEIN system. For the foregoing reasons we hold in plaintiff's favor on the four issues initially briefed on appeal.

At oral argument two additional grounds for reversal were raised on a motion to remand. ⁶ We reject the allegation of suppression since it appears to us that a substantial portion of the facts relied upon were either not known by the prosecution at the time of trial or, in fact, occurred after defendant's trial. As to the second ground for error, viz., newly discovered evidence, we ordered supplemental briefs. ⁷ Two issues emerge upon examination of the comprehensive supplemental briefs submitted in response to our order: (1) if the newly discovered evidence is admissible, is a different result probable on retrial, and (2) if so, is such evidence admissible under the present rules of evidence?

In response to the first question, we note that at trial defendant presented two defenses. One was the technical legal defense, rejected by us, that the original stop, being based upon inaccurate LEIN information, was unreasonable. The second was factual, namely, that defendant did not throw a coin envelope on the ground. The chief witnesses for the prosecution were Ecorse police officers Raymond Smith and Al Demings, especially Raymond Smith who testified he retrieved the coin envelope in which the narcotic was subsequently found. Obviously, the credibility of officers Smith and...