People v. Eddington, Docket No. 17081

• Decision Date: 02 May 1974
• Docket Number: No. 3,Docket No. 17081,3
• Citation: 53 Mich.App. 200,218 N.W.2d 831
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William H. EDDINGTON, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 831

218 N.W.2d 831

53 Mich.App. 200

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William H. EDDINGTON, Defendant-Appellee.

Docket No. 17081.

Court of Appeals of Michigan, Division No. 3.

May 2, 1974.

Released for Publication June 19, 1974.

James A. Brisbois, Saginaw, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Pros. Atty., for defendant-appellee.

Before J. H. GILLIS, P.J., and QUINN and O'HARA,* JJ.

J. H. GILLIS, Presiding Judge.

Prior to defendant's retrial mandated by People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972), defense counsel sought discovery of certain glass particles once imbedded in defendant's shoes which expert testimony at the first trial indicated matched certain broken back-door glass in the murder victims' home. The prosecution agreed to produce the glass particles for defense examination. When they could not be located, defendant moved to suppress the prosecution's expert testimony. The trial judge granted that motion, unless the missing samples could be subsequently produced. He did not find an intentional loss, but ruled nevertheless that nonproduction violated defendant's constitutionally protected rights to confrontation ¹ and due process of law. ² We granted the prosecutors leave to appeal to consider the significant questions raised.

Although the trial court opinion did not address the issue, defendant-appellee also contends that nonproduction of the samples infringes his right to compulsory process to obtain witnesses in his favor, ³ and his right to 'produce witnesses and proofs in his favor', ⁴ since the defense expert's testimony will be less meaningful without the opportunity to examine the samples.

Michigan's increasingly progressive approach to criminal discovery has its foundation in the trial judge's inherent discretionary powers, rather than any statutory grant. People v. Maranian, 359 Mich. 361, 102 N.W.2d 568 (1960); People v. Dellabonda, 265 Mich. 486, 251 N.W. 594 (1933); People v. Wimberly, 384 Mich. 62, 179 N.W.2d 623 (1970); People v. Aldridge, 47 Mich.App. 639, 209 N.W.2d 796 (1973). Wimberly, supra, reaffirmed the prosecutor's duty to produce for defense examination at trial all evidence relevant to defendant's guilt or innocence. We conclude however that the trial judge abused that discretion in ordering suppression of the state's expert testimony.

I IS DEFENDANT'S RIGHT TO CONFRONT ADVERSE WITNESSES INFRINGED BY GOOD-FAITH NON-PRODUCTION OF EVIDENCE?

Both the trial judge and defendant-appellee relied on Johnson v. Florida, 249 So.2d 470 (Fla.App.1971), which the Florida Supreme Court later affirmed, Florida v. Johnson, 280 So.2d 673 (1973). Johnson, supra, required production of hearsay sources upon which the prosecution's expert based his opinion. Johnson, supra, principally offered United States v. Williams, 424 F.2d 344 (CA 5, 1970), to support its confrontation analysis. However, United States v. Williams, 447 F.2d 1285 (CA 5 en banc 1971), retracted the Fifth Circuit's prior view in light of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), finding that the opportunity to cross-examine the state's expert at trial satisfied the confrontation guarantee. The confrontation clause does not require production of the hearsay sources from which the expert drew his opinion. Green, supra, analyzes the guarantee:

"Our own decisions seem to have recognized at an early date that it is this literal right to 'confront' the witness at the time of the trial that forms the core of the values furthered by the Confrontation Clause * * *' 399 U.S. at 157, 90 S.Ct. at 1934 (--1935), 26 L.Ed.2d at 496.

'* * * (T)he Court quoted with approval from Mattox v. United States, 156 U.S. 237, 242--243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895):

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." United States v. Williams, Supra, 1289.

Green, supra, makes it clear that the confrontation guarantee focuses upon 'the right of the accused to confront and probe each of his accusers-- a narrow adversary activity'. ⁵ United States v. Williams, Supra, 1289.

Willams' confrontation rationale is widely shared. In United States v. Sewar, 468 F.2d 236 (CA 9, 1972), a trial judge suppressed certain test results after learning that a lab technician inadvertently destroyed a blood sample which should have been preserved. Finding no violation of the confrontation guarantee, because the expert was available for cross-examination, the Court held the test results admissible even in the absence of a defense opportunity to make its own test.

'Not every blunder by investigators should result in the exclusion of relevant competent, important evidence. While we would be naif to believe that no investigator would ever behave in the manner conjured up by the trial judge, we cannot administer justice upon the assumption that all or even most investigators will behave in that manner.

'This case is governed by United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). it involved the unexplained loss of a tape on which was recorded a conversation between the accused and an investigator. The tape had been unaccountably lost and so could not be used in cross-examining the investigator, who testified about the conversation. The conviction was by a military court, and the question was raised in a subsequent action for pay, in which Augenblick claimed that the conviction was constitutionally infirm. The Court of Claims held that the failure to produce the tape denied the accused due process of law. The Supreme Court reversed, in a unanimous opinion by Mr. Justice Douglas, in which he emphasized that the tapes were not suppressed, and held that the question was not one of constitutional dimension.' United States v. Sewar, Supra, 237--238.

See also: United States v. Augello, 451 F.2d 1167 (CA 2, 1971) (deliberate destruction of 'unintelligible' tape did not preclude police officer witnesses' testimony); United States v. Shafer, 445 F.2d 579 (CA 7, 1971); United States v. Musgrave, 483 F.2d 327 (CA 5, 1973).

In United States v. Love, 482 F.2d 213 (CA 5, 1973), tests performed 10 days after the accused's arrest confirmed the presence of nitrate and dynamite traces on defendant at the time of arrest. However, the acetone swabs containing the samples were consumed in the testing process. Defendant claimed failure to summon the defense expert for testing denied him effective assistance of counsel in confronting the evidence. Even though defendant's expert should have been permitted to participate, the opportunity to probe the authenticity and accuracy of the expert's sources and reasoning process satisfies the confrontation guarantee.

Even Augenblick, supra, interpreting the Jencks Act, 18 U.S.C. § 2500, ⁶ indicates that circumstances of evidence destruction Jencks Act, 18 U.S.C. § 3500, ⁶ indicates sanction of exclusion attaches. A goodfaith loss not trigger exclusion, and does not even rise to the dignity of constitutional dimension.

In light of the persuasive, reliable authority to the contrary, we hold the trial judge abused his discretion in concluding that good-faith unintentional nonproduction of evidence requires suppression of expert testimony because defendant's right to confrontation is violated.

II IS SUPPRESSION OF EXPERT TESTIMONY MANDATED BY DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW?

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court fashioned its current test of due process in the area of disclosure to the defendant. ⁷ That standard essentially turns on whether the evidence is material and favorable to the defendant, a standard articulated in Michigan 90 years ago. People v. Davis, 52 Mich. 569, 18 N.W.2d 362 (1884).

'(I)f there shall be in the possession of any of its officers information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it.' People v. Davis, Supra, 574, 18 N.W. 363, cited in People v. Aldridge, Supra, 47 Mich.App. 645, 209 N.W.2d 796.

While hindsight eases appellate courts' judgments as to what is favorable evidence, neither prosecution, defense, nor trial judges are so blessed. Favorable evidence is elsewhere 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). The test should be liberally construed especially when 'substantial room for doubt' exists as to the effect disclosure might have. United States v. Bryant, 142 U.S.App.D.C. 132, 138, 439 F.2d 642, 648 (1971).

We might escape the problem completely by finding that the expert testimony at the original trial provides sufficient indicia to judge this evidence unfavorable. Yet, because these glass samples are highly relevant and important evidence, and because recently conducted tests of Other glass particles from defendant's shoes are not identical to samples from the victims' home, 'substantial room for doubt' exists. The purpose of the constitutional duty to disclose, in addition to correcting an imbalance of advantage as to evidence chiefly in the state's custody, is to make the trial a search for the truth informed by all relevant sources....