People v. Lee

• Citation: 212 Mich.App. 228,537 N.W.2d 233
• Decision Date: 21 July 1995
• Docket Number: Docket No. 140902
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert LEE, III, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 233

537 N.W.2d 233

212 Mich.App. 228

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert LEE, III, Defendant-Appellant.

Docket No. 140902.

Court of Appeals of Michigan.

Submitted April 13, 1995, at Grand Rapids.

Decided July 21, 1995, at 9:10 a.m.

Released for Publication Sept. 15, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, for the people.

State Appellate Defender (by Charles J. Booker) and Albert Lee, III, in pro. per., for defendant on appeal.

Before GRIBBS, P.J., and MARKMAN and SHELTON, ^* JJ.

MARKMAN, Judge.

This case has had a long procedural history. Defendant was first tried and convicted of first-degree felony murder. M.C.L. § 750.316; M.S.A. § 28.548, in 1979. In 1983, this Court affirmed defendant's conviction (summary opinion, Lee I ), but the Michigan Supreme Court remanded the case to this Court for reconsideration in 1985, People v. Lee, 422 Mich. 928, 368 N.W.2d 871 (1985) (Lee II ). Defendant's conviction was again affirmed on remand (summary opinion, Lee III ). The Michigan Supreme Court subsequently granted leave to appeal. In January 1990, the Court by a 4-3 vote reversed defendant's conviction and remanded this matter for a new trial. People v. Lee, 434 Mich. 59, 450 N.W.2d 883 (1990), cert. den. 498 U.S. 879, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990) (Lee IV ).

This matter was retried in February 1991. On March 1, 1991, defendant was again convicted of first-degree felony murder. He was sentenced to mandatory life imprisonment without the possibility of parole. Defendant appeals as of right. We affirm.

This case involved the kidnapping and murder of Linda VanderVeen in Grand Rapids in February 1979. Linda was eleven years old and worked as a school safety at the corner of Orville and Rosewood Streets.

On the morning of February 12, 1979, Linda left for her post at approximately 8:00 a.m. Witnesses observed her abduction and reported it to the police. Tragically, Linda's body was found later in the afternoon on the same day, over a snow embankment near the Regency Park Apartments.

Linda's hands had been bound behind her back and a sock was used to gag her mouth. The cause of death was strangulation with a necklace. She was killed at a location other than where her body was found and there was evidence that she had been sexually assaulted. The time of death could only be roughly estimated at between 9:00 a.m. and 1:00 p.m. on February 12.

Defendant was initially investigated in this matter on February 23 because he owned a car--a black Pontiac Grand Prix--similar to that observed by witnesses who saw the abduction.

Jack Hill was driving near Orville and Rosewood Streets on February 12 at about 8:05 a.m. when he noticed a black, shiny, two-door car parked on the wrong side of the road. He thought the car was a Chrysler model by its shape. Because he thought the car was stuck, Hill offered to assist the driver. He saw a well-dressed black male between twenty-five and thirty years old. The man was about five feet, eleven inches tall with neatly trimmed hair.

When Hill asked the man what he was doing, the man replied that it was none of Hill's business and that everything was all right. Hill looked in the back of the man's car and saw a young, white girl with blonde hair in the back seat, waving her arms at Hill. The girl looked frightened. Hill realized that something was wrong. Before he could do anything, the man in the car drove off and knocked Hill down with the car. Hill was able to follow the man to an intersection. The man drove through the intersection ignoring a stop sign, but Hill stopped at the intersection.

At about the same time, James Vos was driving his children to school and observed a black male driving a black Grand Prix at an excessive rate of speed fail to stop at a stop sign. Vos described the man as having a short Afro hairstyle and being about twenty-five years old. As the driver of the Grand Prix turned a corner, he nearly struck Vos' car. Vos got out of his car. Hill approached Vos and informed him that the driver of the car had kidnapped a young girl down the street.

Vos and Hill tried to follow the car, but had to ask some boys, working as safeties, which way the car had gone. Greg Start first told the men that he did not see a black Grand Prix go by. Douglas Bowman told the men that he did see a black car. Vos and Hill did not see the car or driver again. Both men immediately reported the incident to the police.

Start later realized that he had, in fact, seen the black Grand Prix earlier that day and had incorrectly told Vos and Hill that he had not seen the car. He described the driver as a black male with a short Afro hair style and about twenty-five to thirty years old.

Vos' son, Jack Vos, saw a young girl with blonde hair in the back seat of the car as it sped by. He thought she was about eight to ten years old and had her mouth open as if she was screaming. The girl was also waving her hands. Jack recalled that the girl looked terrified. He later saw a picture of Linda VanderVeen and believed that the girl in the car was her. He also described the car as a black Grand Prix.

Jim Bonnema was driving his son to school on February 12 when, at approximately 8:17 a.m., he saw a black Grand Prix accelerating toward his car not far from Linda's post. He observed that the car was unusually clean for the weather conditions.

Residents of the Regency Park Apartments saw a black male drive a black, shiny, clean car into the parking lot of the apartments at a fast rate of speed at about 8:24 a.m.

Shortly after the kidnapping was reported, a police officer found a wood-handled kitchen knife in the snow at the intersection where Linda had been kidnapped.

Tim Wilcome and David Orr helped a black male who had his car stuck in the snow at the Georgetown Condominiums on a dead-end road at about 10:00 or 10:30 a.m. on February 12. Orr saw the man place something in a nearby dumpster before he left. Linda's knapsack was subsequently recovered from a dumpster at the Georgetown Condominiums on Wednesday, February 14. It was determined to have been placed there sometime between 8:00 a.m. on February 12 and noon on February 14.

The medical examiner found hair-like fibers on Linda's skin underneath her clothing. Some of the fibers, which were possibly hair, were black. Other fibers, which were pink or red, were found on both Linda's skin and clothing.

A sample of defendant's hair, when analyzed, showed that his hair was dyed black at the time of the kidnapping. Hairs that were found inside the victim's sock (which was used to gag her) and on her sweater were consistent with defendant's hair, including both the dye and that it was Negroid-type hair. Defendant was a likely source of the hair found in both the sock and the sweater.

The pink or red fibers found on the victim were identical to the fibers from the carpet in defendant's car. Fibers found inside the sock also matched the carpet in defendant's car.

A hair barrette was found in defendant's car, under the back seat, which matched the type that Linda wore in her hair to school the day she was killed. Feathers found in defendant's car also matched the type that were in Linda's mittens.

In a snow brush located in defendant's back seat, two long, blonde hairs were found intertwined in the bristles. Fourteen long, blonde hairs were also found in defendant's back seat. A visual inspection indicated that the hair was consistent with the victim's hair.

An expert in DNA ¹ testing, Dr. Edward Blake of Forensic Science Associates (FSA), tested DNA found in one of the hairs on the snow brush in defendant's car. The DQ alpha genotype of the hair was the same as Linda VanderVeen's genotype. Dr. Blake therefore was of the opinion that the hair found in the snow brush could have come from the victim. Statistically, the victim's genotype was the same as about five percent of the Caucasian population. Dr. Blake therefore could not positively identify the hair as the victim's.

The jury also heard expert testimony from Dr. Bonnie Blomberg, a molecular geneticist and immunologist at the University of Miami School of Medicine. She also believed, on the basis of DNA testing, that the hair from the snow brush could have come from the victim.

I

Following defendant's initial conviction after a jury trial, the Supreme Court reversed and remanded this matter for a new trial because several of the eyewitnesses had been hypnotized in order to assist them in recalling facts about their observations. The Supreme Court held that "testimony of the hypnotized witnesses is inadmissible absent proof by clear and convincing evidence that the testimony being offered was based on facts recalled and related prior to hypnosis." Lee IV, supra at 86, 450 N.W.2d 883. The Court did not specify the testimony that was affected by its holding, but, in the course of its discussion, focused on the testimony concerning the identification of the defendant. Id. at 75-86, 450 N.W.2d 883.

At the time of the second trial, the court was faced with the difficult task of how to implement the Supreme Court's ruling. ² Because a long time had passed, witnesses could not recall what they had originally related to police and others about this crime. Furthermore, police officers who took statements from the witnesses had no independent recollection of what the witnesses originally stated. ³

The approach taken by the trial court was to allow witnesses to testify consistent with the substance of the statements they gave to the police before undergoing hypnosis. For this reason, the trial court did not think it was necessary to conduct extensive pretrial hearings. However, the court did choose to hear certain testimony before determining its admissibility. The defendant was afforded some leeway in this area, for instance for any exculpatory evidence that witnesses...