People v. Matuja

• Decision Date: 09 August 1977
• Docket Number: Docket No. 28822
• Citation: 258 N.W.2d 79,77 Mich.App. 291
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark MATUJA, Defendant-Appellant. 77 Mich.App. 291, 258 N.W.2d 79
• Court: Court of Appeal of Michigan — District of US

Page 79

258 N.W.2d 79

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark MATUJA, Defendant-Appellant.

Docket No. 28822.

77 Mich.App. 291, 258 N.W.2d 79

Court of Appeals of Michigan.

Aug. 9, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 292] Austin A. Howard, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

DANHOF, Chief Judge.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, contrary to M.C.L.A. § 750.110; M.S.A. § 28.305. He was sentenced to a term of 5 to 15 years in prison and now appeals by right.

Ross Matuja, defendant's brother, testified for the defense that he purchased two of the rifles stolen in the breaking and entering with which defendant was charged from Donald McComb, and that McComb kept a third rifle for himself. Trooper Maskey testified, however, that Ross Matuja had stated to him during an interview that he paid defendant for the two guns and that McComb had not taken the third gun with him after the sale. Maskey had taken notes of this interview and later typed a report from his notes. Although Maskey reviewed the typed report before testifying, he did not refer to it on the witness stand.

Maskey's testimony tended to show that defendant[77 MICHAPP 293] reaped the profits of the larceny, and weakened defendant's theory that McComb and another unidentified individual committed the breaking and entering. Defendant contends that it was reversible error to admit Maskey's testimony because the unavailability of Maskey's original notes, which were destroyed after his report was typed, effectively denied defendant the right to meaningful cross-examination of Maskey.

Defendant relies on People v. Rosborough, 387 Mich. 183, 195 N.W.2d 255 (1972), in contending that Maskey's testimony was inadmissible because his original notes were unavailable. Defendant's reliance is misplaced. In Rosborough the officers' reports themselves were admitted as past recollections recorded and the Court held:

"We conclude that if the reports of the officers prepared at the end of a day's work are to be allowed in evidence (as past recollections recorded), they must be accompanied by the fragmentary notes from which each report was prepared. Only in this fashion will it be possible for counsel for a defendant to proceed with a meaningful cross-examination of the officer." Rosborough, supra, at 194-195, 195 N.W.2d at 261. (Emphasis added.)

In the present case Maskey's report was not admitted in evidence. Although he had refreshed his memory by reviewing his report prior to testifying, Maskey testified from present recollection of his conversation with Ross Matuja, and admission of his testimony was not error, at least absent any indication that the original notes were destroyed as part of a calculated attempt to suppress evidence. People v. Gorka, 381 Mich. 515, 522-523, 525, 164 N.W.2d 30 (1969). As former Justice O'Hara noted in People v. Banks,50 Mich.App. 622, 625, 213 N.W.2d 817, 818 (1973):

[77 MICHAPP 294] "(Rosborough ) is principally concerned with possible discrepancies which might exist between the two sets of memoranda and the difficulty confronting a defendant who might wish to challenge the reports' accuracy without the availability of the original writings (particularly in view of the fact that the officers likely would have little actual recall of the countless observations at a point much later in time)." (Emphasis added.)

When, as here, a witness testifies from memory, with his recollection having been stirred by a writing, his testimony is what he relates, not the writing. People v. Turner, 59 Mich.App. 589, 594-595, 229 N.W.2d 861 (1975). Thus it was the accuracy of Maskey's recollection and testimony, and not the accuracy of his report, that was properly the subject of cross-examination. The unavailability of Maskey's original notes did not render his testimony inadmissible, absent clear indication that defendant was unfairly prejudiced by admission of Maskey's testimony without making his original notes available for purposes of cross-examination. See People v. Fiorini, 53 Mich.App. 389, 397-398, 220 N.W.2d 70 (1974). We find no such indication here; indeed, defense counsel used the unavailability of Maskey's notes to attack his credibility, and defense counsel thoroughly explored the gaps in Maskey's recollection of the interview on cross-examination. Cf. People v. Fiorini (On Rehearing ), 59 Mich.App. 243, 251, 229 N.W.2d 399 (1975). Ac...