People v. Collins, Docket No. 10896
| Decision Date | 24 October 1972 |
| Docket Number | No. 1,Docket No. 10896,1 |
| Citation | 204 N.W.2d 290,43 Mich.App. 259 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Norman COLLINS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Neil H. Fink, Liberson, Fink, Feiler, Crystal, Burdick & Schwartz, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.
Before QUINN, P.J., and McGREGOR and VanVALKENBURG, * JJ.
Charged with the first degree murder of Karen Sue Beineman, defendant was convicted by jury verdict of that offense. He was sentenced and his motion for new trial was denied and he appeals.
The appeal raises the following issues:
1. Did the trial court commit reversible error by denying defendant's various motions for change of venue?
2. Did impermissible pretrial identification procedure taint in-court identification testimony to the extent that it should have been excluded?
3. Was defendant identified in a line up in the absence of his attorney?
4. Was testimony concerning neutron activation analysis of hair samples inadmissible?
5. Was testimony concerning microscopic analysis of hair samples inadmissible?
6. Is the failure of the trial court to define the term 'premeditation' in its jury instructions reversible error?
Facts pertinent to the issues raised will be stated in connection with a discussion of those issues.
M.C.L.A. § 762.7; M.S.A. § 28.850 governs change of venue in criminal cases. Grant or denial of the requested change is discretionary. The exercise of that discretion is reviewable, but there must be a definite, clear showing of abuse of discretion for an appellate court to overturn the action of the trial court, People v. Freeman, 16 Mich.App. 63, 71, 72, 167 N.W.2d 810 (1969).
There are two facets to defendant's claim of error in the denial of his motions for change of venue. First, in view of the pretrial publicity in this case, defendant says it was an abuse of discretion to attempt to draw a jury in Washtenaw county. Since People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912), it has been the rule that it is proper for a trial court to defer determination on a request for a change of venue until an attempt has been made to select a jury in the county where the crime occurred. Defendant has not cited, nor has independent research disclosed, any authority which overrules Swift. Following an established rule is not an abuse of discretion.
Secondly, does this record demonstrate that denial of charge of venue was a definite, clear abuse of discretion? Our answer is no, and it is based on the following:
1. The crime occurred on or about July 23, 1969. The bulk of the pretrial publicity complained of occurred in 1969. Jury selection commenced June 2, 1970 and trial commenced July 20, 1970.
2. A jury selection process was conducted meticulously, running from June 2, 1970 to July 9, 1970, and the voir dire examination transcript comprises 12 volumes. After general questioning of the entire panel of jurors, each prospective juror was examined individually alone. At a point in the jury selection process when he had three peremptory challenges remaining, defendant announced through his counsel, 'We have a jury'.
3. There is no showing of publicity adverse to defendant which continued up to and through the trial and which pervaded the trial. There is no showing that the news media interfered with pretrial or trial proceedings, which both sides concede were conducted with exemplary decorum.
4. The trial court found that there was no strong community feeling or a pattern of deep and bitter prejudice against defendant and the record does not establish that this finding was clearly erroneous, GCR 1963, 517.1.
5. The record does not demonstrate that defendant had an unfair trial by a partial jury nor that the verdict of guilty was based on evidence outside the record.
Prior to trial, defendant moved to suppress any in-court identification testimony by witnesses Goshe and Spaulding. The basis of the motion was that prior impermissible identification procedure tainted any in-court identification to the extent it was inadmissible. The impermissible procedure was that the police showed photographs of defendant to these witnesses after his arrest, prior to a line up and in the absence of defendant's attorney. At the hearing on this motion testimony was taken. The trial court denied the motion to suppress on the finding that the witnesses were able to identify defendant from observations separate and distinct from the photographs. The record supports the finding of the trial court and it was not error to permit witnesses Goshe and Spaulding to identify defendant in court.
Defendant's contention that he was identified at a line up when the attorney was not present is not supported by the record.
It was the theory of the people that the crime was committed at the home of Sergeant David Leik, a member of the Michigan State Police and an uncle of defendant. The Leiks were on vacation from July 18 to July 29, 1969 and they left a key to the house under the door mat to the side door so defendant could feed the Leik dog. A spot of blood found under some black paint on the basement floor was determined to be type A. The victim's blood was type A. Hairs found on the floor of the Leik basement were compared with hairs found on the pants of the victim by a process known as neutron activation analysis. 1 The neutron activation analysis of the hairs was performed by Howard Schlesinger.
Prior to trial, defendant moved to suppress the testimony of Howard Schlesinger. At the hearing on this motion, extensive testimony was taken on behalf of defendant and the prosecution. The motion to suppress was denied. Howard Schlesinger testified at trial that with a distinct and high level of probability the hair recovered from decedent's pants came from the same source as hair found on the floor of the Leik basement. Defendant asserts that this was reversible error.
Defendant does not question the validity of neutron activation analysis as a reliable technique. Defendant does not claim that Howard Schlesinger was not a qualified expert witness, that his analysis procedure was improper, that the equipment used was defective or was used improperly. In fact, defendant's expert indicated that the technique employed by Schlesinger was the generally accepted technique. Defendant's claim of error is based on two arguments. First, in order to be accurate, neutron activation analysis must compare at least ten components in a hair sample out of a possible 18 to 20 components. Schlesinger used only five components. Secondly, where the analysis is of a maxture of hair, as here, the mixture must be of known proportions, and the proportions of the mixture involved were unknown.
We note that defendant's expert employed the Schlesinger data in reaching a conclusion contrary to that of Schlesinger. We have examined the authorities relied on by defendant to establish the error asserted, and we find none which holds that the expert's testimony is inadmissible for the reasons here advanced. The arguments of defendant go to the weight of the Schlesinger testimony, not to its admissibility. It was proper to receive the Schlesinger testimony.
Dr. Guinn testified after Howard Schlesinger. Error is claimed with respect to this testimony, but we defer consideration of this claim of error until we have disposed of the error asserted with respect to witness Holz.
Walter Holz is chief of the criminalistics division of the crime detection laboratory at the Michigan Department of Health. He conducted a microscopic examination of hairs he removed from the victim's pants and hairs from the Leik basement floor. Over objection, Holz gave his opinion based on reasonable scientific certainty that the hairs removed from the pants and the hairs from the Leik basement floor had a common origin. His opinion was based solely on what he saw...
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