People v. Mattison

• Decision Date: 28 September 1970
• Docket Number: Docket No. 6198,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. LaVaughn MATTISON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 604

182 N.W.2d 604

26 Mich.App. 453

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. LaVaughn MATTISON, Defendant-Appellant.

Docket No. 6198.

Court of Appeals of Michigan, Division No. 2.

Sept. 28, 1970.

Released for Publication Jan. 19, 1971.

James R. Buckley, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Judge.

The defendant, LaVaughn Mattison, appeals his conviction under a two count information of, count 1, conspiring to violate the statutes prohibiting pandering ¹ and accepting the earnings of a prostitute ² and, count 2, attempted pandering. ³

Mattison claims that the trial judge erred in admitting into evidence a recording purporting to reproduce a conversation among Mattison, Leland Hyde, who is the other alleged conspirator, and Carol Mason, a policewoman. He also claims that, because of the evidence of entrapment and a polygraph test, the judge, who tried the case without a jury, erred in finding him guilty.

The testimony of the people's witnesses tended to show that Mattison sought to persuade a woman to become a prostitute. She notified the county prosecutor's office of these overtures. It was arranged that she would inform Mattison that, although she was disinclined to accept his offer, a friend of hers had expressed interest in it. Mattison was twice scheduled to meet the friend, Miss Mason, at a bar but was unable to keep the appointments. Finally he agreed to meet Miss Mason at a local motel at 11:30 p.m. on March 9, 1967.

Other police officers, in collaboration with Miss Mason, installed a microphone in the room where the meeting was to take place and a recording device in an adjoining room. Miss Mason testified that the conversation in the motel room among herself, Mattison, and Hyde was almost exclusively concerned with a description of her prospective duties and compensation as a prostitute working for them.

The people then sought to introduce the recording in evidence. The officer who made the recording testified that only 80% Or perhaps 90% Of the words spoken in the motel room would be audible upon a playback of the recording. Mattison's lawyer objected to its introduction on the grounds that it lacked clarity, that the entire conversation was not audible, and that Miss Mason's testimony was the best evidence. These objections were overruled, the recording was admitted, and a portion was played. It corroborated her testimony.

Mattison took the stand and said that Miss Mason's testimony was essentially correct, but that his purpose was to persuade her to have sexual intercourse with him, not to have her go to work for him as a prostitute. He explained that he had found that he could frequently obtain the services of a prostitute without charge or at a reduced rate by telling her that he was interested in having her go to work for him, promising her clientele and emoluments, such as a new car, and new clothes, and telling her, as he told Miss Mason, whom he had been led to believe was a prostitute, that in order to have a proper relationship with a girl working for him it is necessary that he have a sexual relationship with her. Several of Mattison's acquaintances testified that they had heard him use this ploy. There was also testimony that Mattison and others had sexual intercourse with the informant and that her telephone call to the prosecutor's office followed a falling out between her and Mattison and was due to vindictiveness on her part.

On appeal it is urged that the admission of the recording violated Mattison's Fourth Amendment right to be secure against unreasonable searches and seizures and his Fifth Amendment right not to be compelled to be a witness against himself.

Mattison's lawyer did not move to suppress the recording. Nor did he object at the trial on constitutional grounds to its introduction in evidence. In People v Degraffenreid (1969), 19 Mich.App. 702, 716, 713 N.W.2d 317, 324, we said:

'Where the lawyer's mistake is of such serious proportion that it may have been decisive, where but for the lawyer's mistake the defendant might not have been convicted, the court may, despite the failure to have preserved the error by timely objection, grant a new trial.'

We also said, however, that where an issue has not been preserved by timely objection, a new trial will not be ordered if the Court is convinced that it would not serve a useful purpose.

In this case the defense was not that the conversation related by Miss Mason and reflected in the recording had not in fact occurred. The recording added little, if anything, to Miss Mason's testimony. Mattison's conviction cannot, therefore, be attributed either to the recording or to a mistake of his lawyer in having failed to challenge the admissibility of the recording on constitutional grounds. The judge simply didn't believe Mattison's explanation. Under the circumstances we note, but neither consider nor decide, the constitutional question. ⁴ Mattison alternatively argues that the recording should be excluded because it was obtained in violation of M.C.L.A. § 750.539c (Stat.Ann. 1970 Cum.Supp. § 28.807(3)) and related sections prohibiting eavesdropping on a private conversation 'without the consent of all parties thereto.' However, M.C.L.A. § 750.539g (Stat.Ann. 1970 Cum.Supp. § 28.807(7)) lists several exceptions to the coverage of the act: 'This act shall not be construed to prohibit: (a) Eavesdropping or surveillance not otherwise prohibited by law by a peace officer or his agent of this state or federal government while in the performance of his duties.'

The exception for surveillance by police officers was added by P.A.1966, No. 319, which became effective March 10, 1967. The conversation began at 11:30 p.m. on March 9, 1967, and did not conclude until after 1:00 a.m. March 10, 1967. No objection based on the statute was made at the trial. If the defendant had called the judge's attention to the effective date, and that it was after the conversation had commenced, he might have excluded the recording. To now recognize the defendant's statutory claim and to require a new trial is not called for in the light of Mattison's concession that the conversation took place and the consequent relative unimportance of the recording.

Finally, Mattison contends that the verdict was contrary to the great weight of the evidence. His argument is that he was entrapped by the police into making the proposals to Miss Mason. He points to the fact that the police twice arranged for Miss Mason, their decoy, to meet him at a bar. When those plans miscarried, they were instrumental in arranging an encounter at the motel where he made the statements upon which he was convicted.

An objection going to the Weight of the evidence can be raised only by a motion for a new trial. On appeal, we review a denial for abuse of discretion. ⁵ Here, no motion for a new trial was filed. The trial judge's discretion was, therefore, not invoked. ⁶

Mattison's lawyer did not at the time of trial claim entrapment. This is understandable because the defense was based on a contrary premise, namely, that it was Mattison who was attempting to entice Miss Mason to engage in sexual intercourse and the conversation with her was an elaborate prelude to that desired end. Without a claim of entrapment and a hearing focused on the question of whether the criminal act originated in the mind of the defendant ⁷-- whether the police merely provided an opportunity for the commission of the crime or whether they instigated or induced it ⁸--and findings of fact on that issue, ⁹ we have nothing before us to review.

A report of a polygraph examination prepared by a private operator favorable to Mattison's claim of innocence was introduced in evidence as a defense exhibit without objection by the people. ¹⁰ The trial judge, however, correctly ruled that he, as trier of the facts, was not obliged to treat such evidence, which under present law is inadmissible, as having probative value. ¹¹

Affirmed.

1 M.C.L.A. § 750.455 (Stat.Ann.1954 Rev. § 28.710).

2 M.C.L.A. § 750.457 (Stat.Ann.1954 Rev. § 28.712).

3 M.C.L.A. § 750.92 (Stat.Ann.1962 Rev. § 28.287); M.C.L.A. § 750.455 (Stat.Ann.1954 Rev. § 28.710).

4 In Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the United States Supreme Court ruled that antecedent judicial authorization was a constitutional precondition of the kind of electronic surveillance there involved, namely, the attachment of an electronic recording device to the outside of a public telephone booth from which the defendant placed calls transmitting wagering information. In Desist v. United States (1969), 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, reh. den. 395 U.S. 931, 89 S.Ct. 1766, 23 L.Ed.2d 251, the Court held that the Katz decision governed electronic surveillance after December 18, 1967, the date on which Katz was decided. (The meeting in the motel took place on March 9--10, 1967.)

A number of courts have held that the search warrant requirement enunciated in Katz does not apply to situations where one party to the conversation has consented to having it electronically monitored. See Dancy v. United States (C.A.5, 1968), 390 F.2d 370; United States v. Jackson (C.A.2, 1968), 390 F.2d 317; Holt v. United States (CA 10, 1968), 404 F.2d 914.

The Court of Appeals for the Seventh Circuit has ruled, however, following an En banc hearing, that a defendant's Fourth Amendment rights were infringed when narcotics agents heard his conversations with the informant by means of an electronic device concealed on the informant. The court concluded it was immaterial whether one party to the conversation was 'cognizant' of the use of the device stating that, 'The crucial fact in each case is that the respective...