People v. Gauthier

• Decision Date: 02 December 1970
• Docket Number: Docket No. 8794,No. 1,1
• Citation: 184 N.W.2d 488,28 Mich.App. 318
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee GAUTHIER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 488

184 N.W.2d 488

28 Mich.App. 318

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee GAUTHIER, Defendant-Appellant.

Docket No. 8794.

Court of Appeals of Michigan, Division No. 1.

Dec. 2, 1970.

Leave to Appeal Denied March 5, 1971.

Released for Publication March 5, 1971.

Charles T. Burke, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and DANHOF and MAHINSKE, ^* JJ.

J. H. GILLIS, Presiding Judge.

This case requires an interpretation of the right of confrontation guaranteed to criminal defendants by Const. 1963, art. 1, § 20, ¹ as well as by virtue of the Sixth Amendment to the United States Constitution. ² At issue is the scope of the confrontation right in criminal cases when read in light of a recognized exception to the hearsay rule--specifically, the business records hearsay exceptions. ³ We acknowledge at the outset that People v. Lewis (1940), 294 Mich. 684, 293 N.W. 907, stands firmly against the admission of business record hearsay in criminal cases, the statutory exception notwithstanding. In Lewis, the Michigan Supreme Court, per Mr. Justice Wiest, held at 688, 293 N.W. at 908:

'(The) Act * * *, relative to entries and writings made in the usual course of business, does not apply to criminal cases.'

We proceed here on the assumption that Justice Wiest's declaration is decisionally binding on this Court and that the Supreme Court did not intend its holding in Lewis to be limited to the facts of the case. ⁴ However, on this appeal the people contend, and we agree, that Lewis was incorrectly decided. Our research leads us to the view that Lewis' general prohibition against the use of business record hearsay in criminal cases rests upon an unsound--if indeed any--analysis of the scope of the confrontation clause. We write in the hope that the Lewis rule will, on an appropriate record, be re-examined by its creating tribunal. Cf. Abendschein v. Farrell (1968), 11 Mich.App. 662, 679, 162 N.W.2d 165. To the extent that Lewis required exclusion of people's exhibit no. 24 in this case, as argued by defendant on appeal, it should be overruled.

I

Between 2 and 6 a.m. on the morning of December 27, 1966, the St. Regis Hotel in Detroit was robbed. Money was taken from the front-desk cash drawer in the amount of $516. Financial records maintained by the desk clerk indicated both the amount and the denominations of the bills taken. These records established that twenty-one 20's, six 10's, three 5's and thirteen 1's were missing.

During the robbery, Godfried R. Englehard, the night desk clerk at the St. Regis was shot and killed. Bullets removed from Englehard's body indicated that the gun used in the robbery and shooting was a .38 caliber Smith and Wesson revolver.

On the afternoon of the 27th, Detroit police detectives, acting on information received during the course of their investigation, went to David Gauthier's apartment in Detroit and arrested him for the robbery of the St. Regis Hotel and for the murder of Godfried Englehard. Gauthier was a former employee of the St. Regis Hotel. He had been seen early in the morning of the 27th under circumstances which led the arresting detectives to believe that Gauthier had committed the crimes. ⁵ A search of Gauthier's person and his apartment incident to his arrest disclosed that he was in possession of exactly $516 in the precise denominations taken from the St. Regis Hotel. ⁶

Defendant was subsequently tried by a jury and convicted of the murder, committed in the perpetration of robbery, of Godfried Englehard. M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548). He was sentenced to a term of life imprisonment on August 25, 1967. We granted defendant's application for delayed appeal on April 23, 1970.

II

At trial, the prosecution moved to have the jury visit the St. Regis Hotel, the scene of the alleged crime. The trial judge granted this motion and the jury, together with the Court, the prosecution, and defense counsel, visited the hotel. Defendant, however, was not present at the scene; he was being held in the county jail without bond. Defendant alleges as error the trial court's action in allowing the jury to visit the hotel without defendant's personal presence.

There was no error. Defense counsel expressly joined the people's motion: 'I also ask that the jury be taken there under guard, of course.' No testimony was taken at the scene. Under these circumstances, we hold that defendant waived any right to be personally present.

'It is not necessary that the respondent accompany the jurors upon a view of the premises. A respondent may waive his right to accompany the jury upon a view of the premises, but nothing in the nature of testimony may be taken during his absence.' 2 Gillespie, Michigan Criminal Law and Procedure, § 579, p. 748.

See, also, 2 Gillespie, Michigan Criminal Law and Procedure, § 601, pp. 779, 780; People v. Auerbach (1913), 176 Mich. 23, 141 N.W. 869; People v. Raider (1931), 256 Mich. 131, 239 N.W. 387; People v. Connor (1940), 295 Mich. 1, 294 N.W. 74.

We pass to a consideration of the alleged error in the admission in evidence of people's exhibit no. 24.

III

The exhibit itself was a message written in the handwriting of the deceased night clerk, Godfried Englehard. The message reads:

'David, former acting manager, has been here.'

This message was written on a long distance telephone call voucher. Such vouchers were ordinarily kept at the hotel's front desk in order that the clerk on duty might record the calls of hotel guests for appropriate billing. The voucher in question was time- and date-stamped on the hotel's time recorder, which was also kept at the front desk for use by the hotel's desk clerks. The time and date were recorded as 2:23 a.m., December 27, 1966, followed by two question marks and initialed, 'G.E.'

There is no dispute concerning the authenticity thenticity of people's exhibit no. 24. Mrs. Englehard, as well as Frank Bromber, manager of the St. Regis Hotel, testified at trial that the handwriting on the voucher was that of Godfried Englehard.

The note, however, was challenged as inadmissible hearsay by defense counsel at trial. ⁷

It was the people's theory at trial that exhibit 24 was a business record and, as such, admissible to prove the truth of the matter therein stated, I.e., that David Gauthier, who the people's proofs established was a former acting manager of the St. Regis Hotel, was present in the hotel on December 27, 1966, at 2:23 a.m. Such evidence, if admissible, together with the people's other circumstantial evidence, tended to show that defendant Gauthier had committed the crime as alleged.

The people established the following foundation for admission in evidence of exhibit 24 as a business record: Frank Bromber, the deceased's supervisor, testified that he discovered exhibit 24 on January 27, 1967, approximately one month after the robbery and murder. The voucher was found among traffic sheets used by the hotel in the ordinary course of its business to record long distance telephone calls. Bromber testified that the hotel maintained a log book for use by its desk clerks. The clerks were to enter any unusual occurrences in the log, including suspicious conduct on the part of individuals entering the hotel. This information was to be related to the management. Bromber further testified that the deceased, Godfried Englehard, was obliged as a desk clerk to record suspicious looking individuals in the log book and that Englehard, in the past, had made regular entries in the log book.

Bromber's testimony established that it was part of the hotel's regular business routine, supported by a legitimate business interest, to record such entries in the log book and that Engelhard's duties specifically included making such entries. Bromber further testified that, although the entry in this case was not made in the log book, he did not consider this unusual.

There was testimony that Englehard had been introduced to the defendant Gauthier on at least one occasion and that Englehard, had he seen defendant on the night in question, would have been able to recognize him.

On this foundation, we think exhibit 24 was a 'business record' within the meaning of the business records hearsay exception and the business entries statute, M.C.L.A. § 600.2146 (Stat.Ann.1962 Rev. § 27A.2146). The foundation here fairly duplicates the record made in Keeble v. United States (CA 8, 1965), 347 F.2d 951, cert. den. (1965), 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 350, in support of admission under the Federal Business Records Act ⁸ of a log entry to prove an individual's whereabouts on an occasion in question:

'The log was offered for the purpose of proving that appellant entered the Project at 10:40 a.m. on May 9 and not at some earlier hour. The log was, of course, hearsay, and appellant objected to its admission on that basis.

'In support of its contention that the log was admissible the Government relies on the Federal Business Records Act, as amended, 28 U.S.C.A. § 1732(a).

'Appellant argues that the log is not such a document as falls within the terms of the statute and, further, that in any event the concessions of Crawford in the course of his cross-examination so impugned the reliability of the log as to render it inadmissible. We do not agree.

'That the log consists of a series of 'business entries' and falls within the scope of the statute seems clear. The contractors on the Taum Sauk Project had a legitimate interest in recording visits to the Project and in knowing when visitors entered and left the premises, and according to the testimony of Barker and Crawford those records were kept regularly and as part of the contractors' regular routine of business. That...