People v. Kelson
| Decision Date | 28 September 1976 |
| Docket Number | Docket No. 26303 |
| Citation | 248 N.W.2d 564,71 Mich.App. 410 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Birden KELSON, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., Robert M. Morgan, Asst. Pros. Atty., for plaintiff-appellant.
Robert E. Slameka, Detroit, for defendant-appellee.
Before V. J. BRENNAN, P.J., and KAUFMAN and CAMPBELL, * JJ.
Defendant Birden Kelson was charged with delivery of heroin contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), on May 29, 1973. Prior to trial the People discovered that the alleged heroin had been inadvertently destroyed by the police. On May 8, 1975, the date scheduled for trial, defendant made a motion to dismiss which was granted on May 12, 1975. This Court granted the People's application for a delayed appeal on December 12, 1975.
The circumstances surrounding the loss of the alleged heroin were as follows. Defendant was also charged with delivery of heroin in two other cases arising out of separate incidents, Recorder's Court No. 73--03801 and 73--03802, along with a co-defendant, David Vincent. One case, No. 73--03802, was tried on February 28, 1974. Defendant Birden Kelson was found not guilty. Defendant David Vincent was found guilty of delivery of heroin and sentenced to one year probation. Apparently the police department inadvertently destroyed the heroin that was to be used as evidence in the case at bar after defendant's acquittal in case No. 73--03802.
Prior to defendant's motion to dismiss, he had filed a pretrial motion for discovery. The record on appeal does not indicate that there was any further action taken on this motion. The trial court granted defendant's motion to dismiss in a written opinion. The trial court reasoned:
'The question before this Court is whether or not the destruction of such evidence against claim made by Defense counsel that he desires the production of such evidence for his own analysis is fatal to the People's interest.
'There is a long line of cases which suggest that the People need not produce the evidence, itself, in such circumstances. Those cases seem to hold that in the absence of proof of deliberate suppression of the evidence, that the People may proceed at trial with their secondary proof.
'The concept of suppression, however, in People v. Miller, 51 Mich.App. 117, 120 (214 N.W.2d 566 (1974)), is said to include that of negligent destruction of proprty in police custody. Such destruction though inadvertent, does place the Defendant in a position where he cannot in any way support his claim that the material seized in the alleged delivery was not heroin.
'This court distinguishes cases where the evidence destroyed would have been a circumstantial link from which guilt could be inferred, or evidence supportive of merely cumulative of other competent evidence, and the instant case where the very essence, the 'res', of the People's case the narcotics themselves, are destroyed.'
On appeal, the People argue that the trial court abused its discretion by dismissing the delivery of heroin charge against defendant where the police inadvertently destroyed the heroin held in evidence for the trial. We agree.
This Court has held that absent bad faith, reversal of defendant's conviction is not required where the prosecution fails to disclose or produce evidence which is both favorable and material to the defendant. People v. Eddington, 53 Mich.App. 200, 218 N.W.2d 831 (1974). We stated there where defense counsel moved to suppress expert testimony regarding certain glass particles found in defendant's shoes which could not be located or produced at trial:
'Under ordinary conditions, this evidence would fall within the duty to disclose which due process imposes. However, absent a showing of bad faith, the due process clause does not require suppression of the expert's testimony. The government has the duty to preserve the evidence, and the burden to explain nonproduction; here, the burden was met....
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People v. Till
...is no evidence of bad faith or purposeful suppression in the instant case, and reversal is therefore not required. People v. Kelson, 71 Mich.App. 410, 248 N.W.2d 564 (1976). It appears from the testimony at trial that the tape was lost through inadvertence. We note also that defendant's ref......
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People v. Albert
...confession was performed in bad faith or for the purpose of destroying evidence for a forthcoming trial. People v. Kelson, 71 Mich.App. 410, 248 N.W.2d 564 (1976); People v. Hardaway, supra. Our inquiry need go no further than the following colloquy between the defense attorney and Sergeant......