People v. McMillen

• Citation: 126 Mich.App. 211,336 N.W.2d 895
• Decision Date: 05 August 1983
• Docket Number: Docket No. 60546
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Timothy McMILLEN, Defendant-Appellant. 126 Mich.App. 211, 336 N.W.2d 895
• Court: Court of Appeal of Michigan (US)

Page 895

336 N.W.2d 895

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

Docket No. 60546.

126 Mich.App. 211, 336 N.W.2d 895

Court of Appeals of Michigan.

Submitted Dec. 20, 1982.

Decided June 6, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 213] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civ. and Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.

State Appellate Defender (by Rolf E. Berg), Detroit, for defendant-appellant.

[126 MICHAPP 214] Before V.J. BRENNAN, P.J., and KELLY and GRAVES ^*, JJ.

V.J. BRENNAN, Presiding Judge.

After a jury trial, the defendant was convicted of two counts of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1); M.S.A. Sec. 28.788(4)(1), and one count of breaking and entering with intent to commit criminal sexual conduct, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Defendant was sentenced to concurrent prison terms of 5 to 15 years for each of the convictions and appeals as of right.

Defendant's first claim on appeal is that the trial court's failure sua sponte to give a cautionary instruction on tracking dog evidence was reversible error.

In People v. Perryman, 89 Mich.App. 516, 524, 280 N.W.2d 579 (1979), this Court held that a trial court has a duty, even absent a request by counsel, to inform the jury that tracking dog evidence must be considered with caution, is of slight probative value, and cannot support a conviction in the absence of other direct evidence of guilt. However, in People v. McRaft, 102 Mich.App. 204, 210-211, 301 N.W.2d 852 (1980), lv. den. 411 Mich. 987 (1981), the Court found that the trial court's failure sua sponte to give a cautionary instruction on tracking dog evidence was harmless error. The Court stated that the failure to give the cautionary instruction was not so offensive to the maintenance of a sound judicial system that it could never be regarded as harmless, that the prosecutor did not deliberately inject the error into the proceedings, that the error did not deny the defendant his fundamental rights, and that the error was not particularly inflammatory or persuasive. Further, the Court found that the error was harmless beyond a reasonable[126 MICHAPP 215] doubt because of the overwhelming evidence against the defendant.

In the present case, we find that any error on the part of the trial court in failing to give the cautionary instruction was harmless. Defense counsel did not object to the admissibility of the evidence and did not request jury instructions regarding the evidence. Although the prosecutor commented on the evidence, his comments were not inflammatory. Further, defense counsel emphasized the inconclusive nature and deficiencies of the evidence in his closing argument. In addition, the evidence presented identifying the defendant as the assailant was overwhelming.

When the police arrived shortly after the assault, the complainant gave them a description of the man who had assaulted her and who she believed lived in the apartment complex. She described him as 5'7" or 5'8" tall, skinny, with olive colored skin, moustache, dark brown feathered hair, and "whisker holes" in his face. Although the complainant had observed her assailant for only a short time during the assault, she was able to give a detailed description because the man placed his face alongside hers and spoke to her continuously throughout the assault. The man told her that he was in a hurry and lived nearby. She noted that she had seen him before around the apartment building and at a barbecue. They occasionally exchanged "hellos" when she saw him near the shed in back of the apartment, but they had never met or talked. She believed that her assailant had seen her before because he told her that he always thought she was pretty.

She also noted at the time of the attack that the assailant was wearing a leather jacket and brown fur-lined gloves which were stretched out at the [126 MICHAPP 216] knuckles. The jacket had ribbed cuffs and epaulets. At trial, she identified defendant's jacket and gloves as the same ones worn by the assailant. The assailant also wore a dark blue or black knit winter hat.

The complainant further testified that the man had a low, slow distinctive voice. She later heard the same voice over an extension phone at the state police post when defendant telephoned to speak to one of the troopers about the case. After listening to the defendant speak in the hallways outside the courtroom, she confirmed that his voice was the same as her assailant's.

The day after the attack, the complainant and her sister returned to the apartment to pick up her car. As they were turning onto the service drive, the complainant observed the defendant driving a car. She immediately contacted the police. She also saw him later working near the garbage dumpster behind the apartment complex. The complainant was certain that the defendant was the man who raped her. Thus, based upon the overwhelming evidence identifying the defendant as the assailant, we find no reversible error.

Defendant's next claim is that the trial court erred in admitting blood type evidence.

At the trial, the testimony revealed that the complainant's assailant was a type O secretor, that 35% of the population have this blood type, and that the defendant is a type O secreter. Defense counsel objected to the admissibility of the evidence and argued that the evidence was more prejudicial than probative. Therefore, this issue has been preserved for our review.

This Court is split on whether blood type evidence is admissible for inclusory purposes. In People v. Sturdivant, 91 Mich.App. 128, 131, 283 N.W.2d [126 MICHAPP 217] 669 (1979), lv. den. 407 Mich. 933 (1979), the Court ruled that it was error to admit blood type evidence which serves "to include the defendant in a class of possible assailants * * * thereby increas[ing] the probability of the defendant's guilt without connecting him, in any way, to the charged offense".

On the other hand, in People v. Horton, 99 Mich.App. 40, 50-51, 297 N.W.2d 857 (1980), vacated and remanded on other grounds 410 Mich. 865, 301 N.W.2d 775 (1980), the Court held that such evidence is admissible in accordance with the rules for the admission of other physical evidence. The Court further stated that, as the population group connected with a crime grows larger, the probative force of the evidence decreases but that the weight to be given to the evidence is for the jury's determination. Several panels of this Court have followed the rule announced in Horton. People v. Eaton, 114 Mich.App. 330, 336, 319 N.W.2d 344 (1982); People v. Camon, 110 Mich.App. 474, 480, 313 N.W.2d 322 (1981), lv. den. 414 Mich. 859 (1982); People v. Young, 106 Mich.App. 323, 331, 308 N.W.2d 194 (1981), lv. granted 414 Mich. 865 (1982).

The author of Sturdivant, Judge Kelly, subsequently modified the position he took in Sturdivant in his concurring opinion in People v. White, 102 Mich.App. 156, 162-167, 301 N.W.2d 837 (1980). Judge Kelly stated that blood type evidence for inclusory purposes was less scientific than polygraphs and devoid of the identifiable characteristics of fingerprint, fingernail, hair and voice identification evidence. Further, the probative value of a narrow percentage classification would outweigh the potential for prejudice and such evidence would, therefore, be admissible. Judge Kelly also found that, in a criminal case which requires proof [126 MICHAPP 218] beyond a reasonable doubt, a conviction should not depend upon the prosecutor's ability to place the defendant within a group of 20% of all males as in Sturdivant and Horton. In such large groupings, the benefit of including the defendant in the group is clearly outweighed by the potential for adverse influence on the jury. Judge Kelly opined that future cases involving smaller groupings or test results which more accurately point to a particular defendant would have to be decided on a case-by-case basis. The determination of admissibility should be left to the discretion of the trial court. Also, see People v. Nixon, 114 Mich.App. 233, 239, 318 N.W.2d 655 (1982).

We find that the rule expressed by Judge Kelly is the better view and, therefore, find that the blood type evidence in the present case should have been excluded. The evidence placed the defendant in a class consisting of over one-third of the population and had little probative value, but the potential for prejudicing the jury was great.

However, we further find that any error in admitting the evidence in this case was harmless....