People v. Brocato

• Citation: 17 Mich.App. 277,169 N.W.2d 483
• Decision Date: 05 May 1969
• Docket Number: Docket No. 3590,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Justin BROCATO, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 483

169 N.W.2d 483

17 Mich.App. 277

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Justin BROCATO, Defendant-Appellant.

Docket No. 3590.

Court of Appeals of Michigan, Division No. 3.

May 5, 1969.

Released for Publication July 30, 1969.

Rehearing Denied June 19, 1969.

Charles C. Wickett, Kalamazoo, Victor E. Bucknell, Vicksburg, of counsel, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

Before R. B. BURNS, P.J., and J. H. GILLIS and CORKIN, ^* JJ.

J. H. GILLIS, Judge.

This is an appeal from a conviction of taking indecent liberties with a famale under the age of 16. ¹ Seventeen persons, including defendant, were separately charged with crimes upon the complaint of a 14-year-old girl, alleging either statutory rape or other sexual offenses. These cases were of great public interest in Kalamazoo, not only because of the nature of the charges, but because some of the defendants were business and professional men.

The complainant testified that on the evening of September 28, 1965, an attorney, Larry Eldridge, took her to a basement apartment below defendant's law office in Kalamazoo. She stated that in defendant's presence she and Eldridge had sexual intercourse. Eldridge then left the room and defendant took off his clothes and laid down next to the complainant. She charged that he touched her breasts and vagina. Immediately thereafter, without any attempt by defendant at sexual intercourse, they dressed. Eldridge then returned and took the complainant home. Both defendant and Eldridge vehemently denied that the event ever occurred.

A number of questions are raised in this appeal relating to establishing probable cause at the examination, validity of the information, reception of evidence, misconduct of the prosecutor, suppression of evidence, instructions to the jury and sufficiency of evidence. We will consider them under separate headings.

I. Probable Cause was Established at the Examination

Although the evidence at the preliminary examination was extremely thin and another magistrate might well have discharged defendant based upon the same evidence, we hold that there was legally sufficient evidence to justify the magistrate in holding defendant for trial. Since his finding of probable cause was not an abuse of discretion, we do not disturb it. People v. Medley (1954), 339 Mich. 486, 64 N.W.2d 708.

II. The Criminal Information Charged an Offense

Appellant argues that knowledge on the part of defendant that the complainant was under the age of 16 is an element of the crime and was neither pleaded nor proven, nor was the jury properly instructed. ²

Whether such Scienter is an element of the crime is immaterial on the record before us and we will not rule on it. If required, it was sufficiently alleged in the information by the charge that defendant acted 'willfully'. United States v. Amorosa (C.A. 3, 1948), 167 F.2d 596. People v. Bailey (1954), 341 Mich. 592, 67 N.W.2d 785, cited by defendant, also militates against his argument. Bailey held that the statute made knowledge of age an element of the crime because it used the words 'knowingly and willfully'. If 'willful' used in a statute creates Scienter as an element, then logic demands that 'willful' used in an information charges Scienter.

III. Refusal to Grant Pretrial Discovery to Defendant

Before trial defendant sought discovery of a written statement which the complainant had made to the police, a stenographically reported statement she had made to the prosecutor, certain juvenile court records relating to the complainant and psychiatric reports on the complainant. The motion was granted as to the written statements and 'that portion of the stenographic statement that relates to respondent.' The balance of the requested discovery was denied. This limitation on discovery is challenged by defendant. ³

Pretrial discovery, as well as discovery at trial, has received increasing attention from the courts recently. Often intertwined with the issue of discovery is that of suppression of evidence by the prosecution. See Giles v. Maryland (1967), 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737. The problem is vexing and clear constitutional guidelines have not yet been drawn by the United States Supreme Court. ⁴ We decline defendant's invitation to prophesy the future course of the Supreme Court in this area. The record is inadequate for us to break new ground here. None of the material to which defendant was denied access was made a part of the record before us. Furthermore, his argument on constitutional grounds is so vague that it all but dissipates on close examination. ⁵

We do conclude, however, that the limitations placed on the pretrial discovery granted defendant were contrary to Michigan law. The complete stenographic statement should have been turned over to defendant, including that portion which related to the complainant's sexual adventures with other individuals.

Lest this opinion be read as giving a defendant the right, in all cases, to pretrial disclosure of a complainant's statements to the prosecuting officials, we point out that the trial judge In his discretion turned over to the defense, in advance of trial, the written statement of the complainant and the edited copy of the stenographic statement. In doing so he acted well within his discretion. In other circumstances, and perhaps in this case (we do not decide), it would have been within his discretion to refuse the statement to the defense until the witness had completed her direct testimony at trial. ⁶ However, the excised portion of the stenographic statement was refused the defendant solely on the grounds of relevancy. In this respect we hold that the trial judge was in error.

People v. Johnson (1959), 356 Mich. 619, 97 N.W.2d 739, and People v. Maranian (1960), 359 Mich. 361, 102 N.W.2d 568, deal with pretrial criminal discovery. The rule was stated in Maranian, supra, p. 368, 102 N.W.2d p. 571, to be:

'Discovery will be ordered in all criminal cases, when, in the sound discretion of the trial judge, the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression.'

Applying this test, the statement of the complainant's sexual adventures with other men was relevant under People v. Cowles (1929), 246 Mich. 429, 224 N.W. 387. ⁷

As to the balance of the requested discovery by defendant, the record is inadequate for us to make any rule precise enough to be of any use in the future administration of criminal justice. It would appear that under People v. Smallwood (1943), 306 Mich. 49, 10 N.W.2d 303, 147 A.L.R. 439, the complainant's experience with juvenile authorities was a proper subject of trial inquiry. Perhaps the records would contain something that would have a legitimate bearing on the credibility of the complainant. But we can only guess because these records are not before us. We suggest that before retrial of this case, the trial judge inspect the juvenile records as well as the other materials requested by the defense, and after determining what portions should be discoverable to the defense, preserve a copy of what is refused in the event that his rulings are reviewed.

IV. The Court Erred in Failing to Confine the Jury's Deliberations to the Date Alleged in the Information

The information charged that the offense occurred 'on or about the 28th day of September, 1965.' All of the testimony of the People which tended to establish the crime fixed the date as September 28. Complainant knew 'positively' that the date was September 28, a Tuesday.

Shortly after the jury retired the foreman sent the following inquiry to the court:

'Our question is, was the 28th of September established as the night of the alleged crime, or was it on or about the 28th of September? There is dispute about the Judge's instructions, if it had to happen on the 28th, according to testimony.'

After conferring with counsel, the trial judge recalled the jury and gave a supplemental instruction, part of which was:

'If you would find in this case, and there is some evidence to support that, and that is your function as the judge of the facts, if you would find that it occurred on some other date and you can substantiate that finding, and you find all the other elements, then, it wouldn't matter if it happened on some other date. But, you have to analyze that problem carefully--was there any other date that the proofs show it could have happened or did happen.

'There's something else I was going to say--this latest case, let me give you it because I want you to fully understand this, the latest case, being the People v. King, 365 Mich. 543 (114 N.W.2d 219), the holding in that case is as follows:

'Where there is a slight uncertainty as to or mistake as to the actual date of the specific occasion or offense intended to be relied upon, some variance between the charge and the proofs is not fatal if time is not of the essence of the offense,' and, I told you, time is not of the essence of this offense.' ⁸

To repeat, as the trial judge did, that time is not of the essence did not respond to the point raised by the jury, i.e., to convict must they confine their deliberations to whether the alleged offense occurred on September 28. Based on all the testimony at trial they should have been so confined in clear instructions, People v. Hunter (1965), 374 Mich. 129, 132 N.W.2d 95. Cf. People v. King (1962), 365 Mich. 543, 114 N.W.2d 219.

'It is well settled that the prosecution is entitled to some latitude in fixing the date, but, having once identified and selected a particular transaction, it must then stand or fall by the election.' 1 Gillespie, Michigan Criminal Law and Procedure (2d ed.), § 349.

The instruction allowed the jury to find that the offense occurred on some date other than September 28, when in fact there was...