People v. Lester

• Citation: 50 Mich.App. 725,213 N.W.2d 793
• Decision Date: 06 December 1973
• Docket Number: No. 2,Docket No. 15340,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clark LESTER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 793

213 N.W.2d 793

50 Mich.App. 725

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clark LESTER, Defendant-Appellant.

Docket No. 15340.

Court of Appeals of Michigan, Division No. 2.

Dec. 6, 1973.

Released for Publication Jan. 21, 1974.

Rehearing Denied Jan. 21, 1974.

C. J. Hurbis, Keyes, Creal & Hurbis, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros.Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and V. J. BRENNAN and VanVALKENBURG,* JJ.

V. J. BRENNAN, Judge.

Defendant Clark Lester, was convicted by a jury in the Washtenaw County Circuit Court of murder in the first degree (M.C.L.A. § 750.316; M.S.A. § 28.548). A motion for new trial was filed on August 1, 1968. An evidentiary hearing on the motion was begun but was, on defense counsel's request, adjourned without date. A supplement to the motion for new trial was filed in August of 1971, and an evidentiary hearing held thereon. On August 4, 1972, the motion was denied. Defendant now appeals.

Defendant first contends that the admission of certain time cards into evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const.1963, art. 1, § 20 and the Sixth Amendment to the United States Constitution. Although defendant objected to the admission of these cards when they were offered into evidence, his objection was based on relevancy. The prosecution contends that this Court should not now consider this issue because the objection below did not encompass the grounds for reversal now urged. We disagree. It is settled law in this state that failure to object does not preclude this Court from reviewing a claim where a constitutional right is likely to have been infringed. People v. Thomas, 44 Mich.App. 649, 205 N.W.2d 604 (1973); People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90(1972).

In People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940), our Supreme Court held that it was error to admit business records into evidence in a criminal proceeding under an exception to the hearsay rule because to do so deprives the defendant of his right of confrontation. ¹ The admission of the time cards in the case at bar, therefore, clearly constituted error. This does not mean, however, that we are required to reverse defendant's conviction on this point. The business records admitted in Lewis directly corroborated testimony of the complaining witness and reversible error was, therefore, found to have been committed. In People v. Gauthier, 28 Mich.App. 318, 184 N.W.2d 488 (1970), leave den. 384 Mich. 812 (1971), however, this Court held that although error was committed when certain business records were admitted into evidence, the error was harmless beyond a reasonable doubt because of the overwhelming convicting evidence which had been presented. We are convinced that the error in the case at bar was harmless beyond a reasonble doubt also. See People v. Parm, 15 Mich.App. 303, 166 N.W.2d 536 (1968); People v. Wolke, 10 Mich.App. 582, 159 N.W.2d 882 (1968). The time cards in no way related to defendant's presence at the scene of the crime and in no way directly corroborated the eyewitness's account of what occurred. We cannot say that reversible error was committed by allowing these cards into evidence.

Defendant next contends that the trial court committed reversible error by allowing the prosecutor to raise and put into issue the defendant's character and reputation before the defendant had done so. An examination of the record reveals that although defendant's counsel initially objected to the line of questioning sought to be pursued by the prosecutor in his cross-examination of defendant, an agreement was subsequently reached between the parties as to the permissible scope of the cross-examination. The questioning by the prosecutor thereupon continued with defense counsel raising and then withdrawing an objection to one specific question. In light of these facts it is clear that this issue has not properly been preserved for appeal. People v. Robert Lee, 40 Mich.App. 239, 198 N.W.2d 818 (1972), leave den., 387 Mich. 795 (1972); People v. Ray Clifton Smith, 20 Mich.App. 243, 174 N.W.2d 22 (1969). Defendant, for whatever reason, acquiesced in this line of questioning and cannot now be heard to complain.

Defendant finally contends that he was deprived of due process of law by the prosecution's failure to disclose to defense counsel the fact that a .22-caliber pistol and a ballistics test performed thereon were in the possession of the police at the time of trial. This issue was first raised by defendant in his motion for new trial and is thus properly before us for our consideration. People v. Stedman, 41 Mich.App. 393, 200 N.W.2d 370 (1972).

A hearing was held on defendant's motion for new trial at which testimony was presented revealing that, from the time defendant was first questioned, the police had in their custody a .22-caliber pistol and ballistics tests which had been performed thereon. Defendant was apprised of the fact that the gun was in the possession of the police during questioning but his counsel was never so informed. No request was made prior to or during trial for disclosure of evidence of this type. There is no allegation that the prosecutor deliberately withheld this information from defendant's counsel and the record does not reveal any bad faith on the part of the prosecutor. A police officer who participated in the initial investigatin of this crime testified that there was nothing in the police file to indicate that this was the gun used to murder the deceased. Under these circumstances we feel that this case falls within the class of cases the Second Circuit Court of Appeals was speaking about in United States v. Keogh, 391 F.2d 138, 148 (C.A.2, 1968), quoted with approval in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), wherein it was said:

'To invalidate convictions in such cases because a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties.'

An examination of the trial transcript reveals that defendant's account and theory of what transpired on the night in question was effectively presented to the jury...