People v. Marra

• Decision Date: 01 October 1970
• Docket Number: Docket No. 7740,No. 3,3
• Citation: 183 N.W.2d 418,27 Mich. App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene MARRA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 418

183 N.W.2d 418

27 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Eugene MARRA, Defendant-Appellant.

Docket No. 7740.

Court of Appeals of Michigan, Division No. 3.

Oct. 1, 1970.

Rehearing Denied Jan. 25, 1971.

Released for Publication Feb. 12, 1971.

Carl Ziemba, Louisell & Barris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., James K. Miller, Pros.Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and LEVIN, JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted by a jury of the crimes of abortion and conspiracy to commit abortion.His claim of appeal raises five questions for the Court's consideration.

1) Did the trial court err in refusing defendant's request for a jury instruction to the effect that in order to find the defendant guilty they must find there was a living being within the uterus of the complaint at the time of the alleged act of abortion?

M.C.L.A. § 750.14(Stat.Ann.1962 Rev. § 28.204) states:

'Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in the case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

'In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.'

The word 'pregnant' is not defined in the statute.In other jurisdictions whose statutes read 'pregnant woman'the Courts have held that the viability of the fetus need not be proved.See16 A.L.R.2d 949, § 3, p. 951.The medical testimony in this cse was that a woman could be pregnant with a dead fetus.The important factor is intent.There was testimony from which the jury could find that defendant intended to procure a miscarriage on the complaining witness.The defendant's requested instruction was properly denied.

2) Did the trial court err in refusing to grant defendant's pretrial motion to conduct a 'Walker'¹ type hearing to determine whether the out-of-court photographic identification of defendant by complainant was so tainted and colored by impermissibly suggestive procedures as to vitiate her in-court identification?

Defendant cites United States v. Wade(1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149;Gilbert v. California(1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178;andSimmons v. United States(1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in support of his contention that he was entitled to a hearing to determine the circumstances of the photographic identification by complainant.We are not persuaded that Wade and Gilbert, dealing with the right to counsel at lineups, are applicable.In Simmons, the Supreme Court recognized the hazards of misidentification, but said:

'The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential error.We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'

The decision to grant such a hearing was within the discretion of the trial court.Although we would encourage that such discretion be freely exercised in favor of a defendant, we cannot say, after a thorough review of the facts and circumstances of this case, that the trial court abused its discretion.Defendant's motion was properly denied.

3) Did the trial court err in refusing defendant's request to order the prosecution to furnish defense counsel the police officer's notes of complainant's statements or interviews?

The notes in question were notes which an officer had taken on a yellow legal pad in his initial interviews with the complaining witness.Defendant's request for these notes at trial was denied by the trial court on the basis that they were the private and personal notes of the policeman.Defendant contends he was entitled to inspect these notes under the authority of People v. Dellabonda(1933), 265 Mich. 486, 251 N.W. 594andPeople v. Johnson(1967), 8 Mich.App. 462, 154 N.W.2d 671, and he was thus deprived of an effective opportunity to cross-examine both complainant and the officer.

While Dellabonda and Johnson say that inspection of police reports should be allowed for purposes of impeachment, those cases dealt with reports and notes already turned over to higher authorities in the official line of communication.It should be noted that defense counsel was furnished at the preliminary examination, with a 23 1/2 page stenographic copy of the statement of the complaining witness taken in the prosecutor's office and, at trial, was given the official police reports.The Courts in other jurisdictions are divided on this question.See Anno: 7 A.L.R.3d 181.However, there is no reason to refuse a defendant notes at trial if they are a substantial transcription of the complaining witness's own words or if the officer has refreshed his recollection with the notes and based his testimony on them.If, however, they are more fragmentary jottings of the officer's own interpretation or a privilege is asserted, then the notes need not be produced.The trial judge should have at least examined the notes and exercised his discretion whether to allow their use for impeachment purposes.We think such a rule would comply with the rationale of Dellabonda, supra, 'One of the elementary principles of cross-examination is that the party having the right to cross-examination has a right to draw out from the witness and lay before the jury anything tending or which may tend to * * * elucidate the testimony or affect the credibility of the witness.'We, thus, remand to the circuit court to examine the notes in question and to take any further action its determination shall require.

4) Did the trial court err in denying defendant's motion for a mistrial at the conclusion of the testimony of Charlotte Bitker.The motion contended that Bitker was not called to give any testimony against defendant but merely to recite to the jury that she had been charged with defendant and others on an information for this crime, knew the defendant, and had pled guilty, all to the prejudice of defendant.

Defendant contends that Miss Bitker's testimony was prejudicial because she was called to establish guilt by association and not to show defendant committed the crime in issue.The reason she was called was to show the existence of the abortion conspiracy before defendant became involved in it.If the jury believed the complainant's testimony that defendant committed an abortion on her, then Miss Bitker's testimony regarding the prior abortion attempts was relevant to show a conspiracy.SeePeople v. Newsome(1966), 3 Mich.App. 541, 143 N.W.2d 165andPeople v. Thomas(1967), 7 Mich.App. 519, 152 N.W.2d 166.There was no error in allowing this testimony.

5) Did the trial court err in not declaring a mistrial upon defendant's motion when the prosecutor in his closing argument to the jury referred to a photograph of defendant identified by the complainant as being in a 'mug file'.Defendant claims that this was an impermissible comment on defendant's criminal record which had not been put in issue.

While the remark was undesirable, we do not find that the trial court's instructions to the jury to disregard the remark were insufficient to correct the possible prejudice to defendant.We must presume the jury heeded those instructions.

The case is remanded to the trial court for an evidentiary hearing to determine whether the police officer's notes are mere fragmentary jottings of the officer's interpretation of the facts, or whether the notes are a substantial transcription of the complainant's own words and were used by the officer to refresh his memory before testifying.If the trial judge determines that the notes are mere fragmentary jottings of the police officer's interpretations and not used to refresh his memory, the conviction is affirmed.However, if the notes are a substantial transcription of the complainant's words, used by the officer to refresh his memory, and there is any Prejudicial conflict between the notes and the testimony, the trial judge will grant the defendant a new trial.

LEVIN, Judge (concurring in part and dissenting in part).

I am in agreement with my colleagues that the people need not prove that the fetus was viable when the pregnancy was aborted.I also agree that the case should be remanded to the trial court for an evidentiary hearing regarding the officer's notes of the interviews with the complaining witness.I cannot, however, join in the Court's opinion for several reasons.

It is an established rule of law that, with exceptions not here pertinent, ¹ the admissions of an alleged accomplice of a defendant are admissible only against the accomplice, not against the defendant.²Similarly, an accomplice's plea of guilty ³ or his conviction ⁴ for the offense charged may not be shown in evidence against the defendant.

The force of this rule has been eroded by the practice of conducting joint trials at which admissions of an accomplice are provable with cautionary instructions that the admissions may be...