People v. Camon, Docket No. 45196

• Decision Date: 20 October 1981
• Docket Number: Docket No. 45196
• Citation: 313 N.W.2d 322,110 Mich.App. 474
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew CAMON, Defendant-Appellant. 110 Mich.App. 474, 313 N.W.2d 322
• Court: Court of Appeal of Michigan — District of US

Page 322

313 N.W.2d 322

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew CAMON, Defendant-Appellant.

Docket No. 45196.

110 Mich.App. 474, 313 N.W.2d 322

Court of Appeals of Michigan.

Oct. 20, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 477] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Don W. Atkins, Asst. Pros. Atty., for the People.

Lynn Chard, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before DANHOF, C. J., and KELLY and SULLIVAN ^*, JJ.

SULLIVAN, Judge.

On February 2, 1979, defendant was found guilty by a Detroit Recorder's Court jury of two counts of criminal sexual conduct in the first degree, M.C.L. § 750.520b; M.S.A. § 28.788(2). He was sentenced to serve concurrent terms of from 20 to 30 years in prison and appeals as of right.

On the evening of June 16, 1977, the complainant was accosted by defendant as she walked down [110 MICHAPP 478] Lahser Road in Detroit. He grabbed her arm and told her to be careful because he had a knife. Holding the knife in his left hand and with his left arm around the complainant, defendant took complainant down Lahser Road to Hope Park, where she was forced to engage in intercourse and two acts of fellatio.

Although the complainant kept her eyes closed during intercourse, she testified that she had several opportunities to clearly view defendant's face. The first came when the two crossed a sidestreet on the way to Hope Park. The second occurred when the complainant stopped beneath a streetlight to tie her shoe. Finally, after the sex acts, the complainant lit a marijuana cigarette that defendant had rolled and again observed his features. She also took particular note of defendant's brown square-toed shoes.

Following the assault, the defendant asked to see the complainant again and she told him to meet her in the park the following evening. As the complainant walked home, the defendant disappeared. The complainant summoned the police and directed them to the area of the assault. After a futile attempt to locate possible witnesses, the police took the complainant to police headquarters where she gave her underwear to an officer. The following night, the complainant and the police waited without success in Hope Park for the defendant to appear.

On July 24, 1977, while being driven to work, the complainant saw the defendant hitchhiking on Telegraph Road. She recognized his boots and face and called the police, who arrived and arrested the defendant.

The defendant raises a variety of issues on appeal. He initially argues that reversible error [110 MICHAPP 479] was committed when the trial court admitted evidence regarding the analysis of seminal fluids found on the complainant's clothing and evidence of the defendant's blood type. Evidence from a secretor test, which detects blood type from other body fluids, indicated that fluids present on the complainant's panties came from persons who were secretors with type A and type O blood. Blood and saliva samples revealed the complainant to be an A k secretor and the defendant to be an O k secretor. Approximately 80% of the population secretes; type O is the most common blood group, comprising about 45% of the population. Thus, 36% of the population at large are type O secretors.

The defendant argues that the introduction of the evidence was improper, citing People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669 (1979). In Sturdivant, evidence was introduced which showed that both the defendant and the person whose sperm was found on the complaining witness's panties were nonsecretors. This Court concluded that blood-type evidence has no probative value when used solely to include a defendant in a class of possible defendants. The Court took note of the fact that the evidence only limited the inclusive group of nonsecretors to 20% of the population. The decision found support in the provisions of the Paternity Act, M.C.L. § 722.716; M.S.A. § 25.496, banning the use of blood-test evidence in paternity proceedings except to protect the putative father. However, in Sturdivant the error was deemed harmless, since the complaining witness had otherwise positively identified the defendant. Id., 133-134, 283 N.W.2d 669. See also People v. Sommerville, 100 Mich.App. 470, 299 N.W.2d 387 (1980).

The Sturdivant analysis has subsequently been [110 MICHAPP 480] rejected by a second panel of this Court in People v. Horton, 99 Mich.App. 40, 297 N.W.2d 857 (1980). That decision, while acknowledging that the probative value of such evidence decreases as the population group connected with the crime grows larger, concluded that the weight of such evidence was properly a matter for the jury's determination. The panel considered the Paternity Act inapplicable to criminal proceedings. See also People v. Spencer, 93 Mich.App. 605, 608, 286 N.W.2d 879 (1979).

We are persuaded that the Horton decision signals the correct approach. The test of relevancy is whether evidence has "any tendency to make the existence of any (material) fact * * * more probable or less probable * * * ". MRE 401. The blood-type evidence admitted at trial provided one additional circumstance contributing to the identification of the defendant. The objection of remoteness goes to weight and is more appropriately a matter for argument before the jury.

In any event, the complainant's testimony regarding identification provided sufficient evidence to convict defendant. She indicated that she had several opportunities to observe the defendant's face and stated unequivocally that he was, indeed, the person who assaulted her. Thus, even if admission of the blood type evidence was considered an error, it would be harmless beyond a reasonable doubt. People v. Sturdivant, supra, 91 Mich.App. 134, 283 N.W.2d 669.

The defendant next argues that reversible error was committed when his ex-wife, Millie Gatin, was permitted to testify for the prosecution. The defendant had previously testified that on June 16, 1977, he had stitches and a bandage over his left eye. He had also stated that he had limited use of his left forearm and hand due to an injury received[110 MICHAPP 481] in 1975 while he was in the armed forces. Mrs. Gatin revealed that, although she and the defendant were separated during June and July of 1977, she had occasion to see him and observed no eye injury. She testified that they were married when the defendant left the armed forces and that she had observed the defendant use both hands to perform a variety of tasks. The couple were divorced on December 1, 1978.

The defendant contends that Mrs. Gatin's testimony regarding her observations revealed privileged communications. The marital privilege is contained in M.C.L. § 600.2162; M.S.A. § 27A.2162, which provides, in part:

"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent * * * nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage * * *."

Since the statute only protects confidential "communications", the critical question here is whether Mrs. Gatin's observations were such communications.

In People v. Gessinger, 238 Mich. 625, 214 N.W. 184 (1927), the Court held that it was error to admit testimony of the defendant's ex-wife as to her observations of stolen property while she was married to the defendant. The concurring opinion explained:

"The communications to which neither husband nor wife can testify for or against the other during the marriage or after it has ceased should not be confined to mere statements by one to the other, but should embrace all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for [110 MICHAPP 482] the confidence growing out of it, would not have been known." Id., 631 (Sharpe, C. J., concurring).

Mrs. Gatin's observations were not made by reason of her marriage to the defendant but rather were observations that could have been made by any third person outside of the marital home and relationship. In fact, the observation of the defendant's eye took place when the defendant and Mrs. Gatin were separated and any confidential intercourse or communication had ended. Cf. People v. Zabijak, 285 Mich. 164, 177-179, 280 N.W. 149 (1938). Thus, the observations are not comparable with an observation of stolen property within the marital home, where a defendant might have an expectation that the confidence of the marriage would protect the secrecy of his acts. They were not confidential communications.

For this reason, defendant's reliance on Pierson v. Illinois Central R. Co., 159 Mich. 110, 123 N.W. 576 (1909), is misplaced. In Pierson, the Court held that it was error to admit the plaintiff's ex-wife's testimony that when they were married he "was troubled with his back and constipation, that he often used plasters on his back, and that he was constantly taking mineral water for his constipation". Id., 112, 123 N.W. 576. These were plainly observations that occurred because of the marriage relation and the confidence growing out of it, and are therefore distinguishable from the observations in the present case.

The defendant also claims that reversible error took place when the prosecutor elicited police testimony regarding a prior arrest. The defendant was arrested on July 23, 1977, the day before he was seen hitchhiking by the complainant. On direct examination, the arresting officer testified as follows:

[110 MICHAPP 483] "Q. And did you have an occasion to place Mr. Camon under arrest on that particular day?

"A. Yes, I did.

"Q. And in placing him under arrest did you have an occasion to search Mr. Camon?

"A. Yes, he was patted down for offensive weapons.

"Q. And...