People v. Johnson

• Decision Date: 04 May 1982
• Docket Number: Docket No. 44375
• Citation: 318 N.W.2d 525,113 Mich.App. 650
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Warren JOHNSON, Defendant-Appellant. 113 Mich.App. 650, 318 N.W.2d 525
• Court: Court of Appeal of Michigan — District of US

Page 525

318 N.W.2d 525

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Warren JOHNSON, Defendant-Appellant.

Docket No. 44375.

113 Mich.App. 650, 318 N.W.2d 525

Court of Appeals of Michigan.

Submitted Nov. 13, 1981.

Decided March 2, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 652] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Michael F. Bakaian, Asst. Pros. Atty., for the people.

Mark J. Kriger, Detroit, for defendant-appellant.

Before CAVANAGH, P. J., and ALLEN and MacKENZIE, JJ.

CAVANAGH, Presiding Judge.

Defendant was convicted by a jury of first-degree murder, M.C.L. Sec. 750.316; [113 MICHAPP 653] M.S.A. Sec. 28.548, two counts of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant received the statutory sentence on the first-degree murder charge, and 2 to 20 years imprisonment for each of the assault charges. The sentencing judge refused to sentence defendant on the felony-firearm charge on double jeopardy grounds. The sentencing judge had presided at defendant's first trial which ended in a mistrial when the jury could not agree upon a verdict.

On October 2, 1978, defense counsel mailed a claim of appeal on defendant's behalf to this Court. However, this Court has no record of receiving that document. Upon being apprised that no claim of appeal was pending in this Court, counsel filed a delayed motion for new trial in Recorder's Court. That motion was denied.

On April 9, 1980, defense counsel presented this Court with a delayed application for leave to appeal. That application was granted.

The charges in the instant case arose out of an incident which occurred in Detroit on January 20, 1978. The two complaining witnesses and the decedent were walking down an alley when a man jumped from behind some bushes and started shooting at them. The two complaining witnesses identified this man as the defendant. Upon hearing the shots, all three started running but the decedent, Kevin May, fell after only a few steps.

Officer Harold Butts testified that on the evening of January 20, 1978, he received a radio run concerning a felonious assault. At the scene, the officer noted some footprints leading from the gate of defendant's house going south in the alley. The footprints led south through the alley and then turned east by a church. The officer observed a [113 MICHAPP 654] long gun sticking in the snow in front of the church. The officer also found shotgun shells in the alley and in a backyard off the alley.

The defendant testified that on the evening of January 20, 1978, while shoveling snow near his garage he heard gunshots. Upon hearing the shots, defendant walked toward the alley and saw "a tall, slender guy dressed in dark clothing, black coat running past". He testified that the man walked toward a neighbor's yard, hesitated, found the gate closed, ran to defendant's gate, saw defendant and took off down the alley. Defendant then ran to his backdoor, knocked, and after waiting a couple of seconds and receiving no answer, ran to the front door, entered the house and told his father what had happened. Defendant then called 911, the police emergency number, and told the operator what had happened.

Defendant also testified that on December 11, 1977, he purchased a shotgun from a K-Mart department store. An employee of the K-Mart store testified that on that date defendant purchased a shotgun with a serial number L-728621. The serial number found on a gun which was found near the scene of the homicide was L-728621.

The defendant raises several issues on appeal. We discuss these seriatim.

The defendant sought to introduce testimony about threats alleged to have been made by one of the complaining witnesses to the brother of a defense witness in an alleged attempt to keep testimony favorable to the defendant from being presented. There is much evidence on the record to demonstrate hostility and the likelihood that threats were made by both sides. In the specific [113 MICHAPP 655] incident to which the defendant draws this Court's attention there is no direct link to the defendant and so, taken with the fact that the witness did testify, the testimony concerning the alleged threats would have been lacking in probative value, People v. Shelden, 407 Mich. 539, 287 N.W.2d 176 (1980), irrelevant, MRE 402, and a waste of time, MRE 403.

The defendant's next claim of error merits some discussion by this Court. A shotgun found near the scene of the homicide was dusted for fingerprints and taken to Central Photo by the officer who made the discovery. Subsequently, a photograph of the latent prints on the shotgun was attached to an index card labeled "DPD 267" and sent to the latent prints department. Officer John Flelick of the latent prints department testified that he received negatives and photographs of latent fingerprints found on the weapon. According to police department records, the prints were "no good" because there were less than nine points of comparison. The prints, therefore, lacked a sufficient number of points of comparison to make a positive identification. Pursuant to departmental policy, the photographs and negatives were kept for 30 days and then destroyed. Officer Flelick never received a set of defendant's fingerprints for comparison. He testified that one point of denial would establish that the two sets of prints, those found on the gun and those taken from the defendant, were not one and the same.

Defense counsel never asked to examine the prints or requested that they be preserved past the 30-day period. However, there is no indication that defense counsel knew of the existence of this evidence until after it had been destroyed. At trial, defense counsel moved for a mistrial based on the [113 MICHAPP 656] suppression of the print evidence. The motion was denied.

On appeal, defendant argues that the police department's destruction of the latent prints deprived defendant of possible exculpatory evidence and thereby denied him due process of law as guaranteed by the United States and Michigan constitutions. U.S.Const., Am. XIV, Const.1963, art. 1, Sec. 17. The prosecutor argues that the loss of evidence which occurs before a defense request for it does not require reversal.

This Court considered a similar question in People v. Amison, 70 Mich.App. 70, 245 N.W.2d 405 (1976), lv. den. 402 Mich. 815 (1977). In Amison, the defendant was convicted of delivery of heroin. It was brought out at trial that the police had lost the tape made at the alleged heroin sale. Despite the absence of the tape, several officers testified, over defense counsel's objection, to what they heard while monitoring the transaction. On appeal, defendant claimed that the negligent loss of the tape denied him a fair trial in violation of his due process rights and deprived him of his Sixth Amendment right to fully cross-examine witnesses against him. After a careful review of state and federal law, the Amison Court stated:

"This Court has uniformly held that, absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. * * * People v. Bendix, 58 Mich.App. 276, 227 N.W.2d 316 (1975); People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472 (1975). This Court has also held that the intentional destruction of tape recordings, where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal. People v. Hardaway, 67 Mich.App. 82, 240 N.W.2d 276 (1976). It is only where this Court has found that there was no effort made to preserve the evidence [113 MICHAPP 657] initially, People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972), remanded on other grounds, 391 Mich. 419, 216 N.W.2d 780 (1974), or where there was the possibility that certain test results may have been actually suppressed, People v. Drake [64 Mich.App. 671, 236 N.W.2d 537 (1975) ], that this Court has found possible suppression mandating reversal. In Anderson and Drake, hearings were required to determine the quality of plaintiff's conduct and the nature of the lost evidence." Amison, 79-80, 245 N.W.2d 405.

The Amison Court found that as "[t]he facts requisite to our determination of defendant's due process claim are of record" no hearing was required. Id., 80, 245 N.W.2d 405. The Court held that the facts did not constitute a denial of due process and affirmed defendant's conviction.

As in Amison, the facts requisite to this Court's determination on the defendant's due process claim are also of record. The police policy of destroying fingerprint evidence after 30 days, when it has been determined that a positive matchup is not possible from the latent prints, is not looked on by this Court with great favor. Although we recognize the need to control the number of files or the types of materials that are kept in police files from growing too large, we must bear in mind the importance of maintaining evidence which may play a crucial part in a defendant's proving of his case. In the instant case where the fingerprints evidence was destroyed in accordance with police policy and procedure and there has been no evidence presented of intentional misconduct, suppression or bad faith, the facts do not compel us to use the destruction of this evidence as a basis for the reversal of defendant's conviction, nor do we believe that any further light would be shed upon this question by a remand for an evidentiary hearing on the matter.

[113 MICHAPP 658] Defendant next contends that the trial court erred in failing to identify its discretion whether to admit evidence of a prior bad act by the defendant directed toward the deceased. The trial judge ruled that evidence of the altercation between the defendant and the...