People v. McRaft, Docket No. 46087

• Decision Date: 02 December 1980
• Docket Number: Docket No. 46087
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gail Yvonne McRAFT, Defendant-Appellant. 102 Mich.App. 204, 301 N.W.2d 852
• Court: Court of Appeal of Michigan — District of US

Page 852

301 N.W.2d 852

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gail Yvonne McRAFT, Defendant-Appellant.

Docket No. 46087.

102 Mich.App. 204, 301 N.W.2d 852

Court of Appeals of Michigan.

Dec. 2, 1980.

Released for Publication Feb. 20, 1981.

[102 MICHAPP 206] James R. Neuhard, State Appellate Defender, Gail O. Rodwan, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief Asst. Pros. Atty., Jeffrey Caminsky, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J. and BASHARA and CYNAR, JJ.

CYNAR, Judge.

Defendant was convicted of assault with intent to rob and steal, being armed, M.C.L § 750.89; M.S.A. § 28.284, and of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and was sentenced to from 10 to 20 years imprisonment on the former conviction and from 6 years 8 months to 10 years imprisonment on the latter, said sentences to run concurrently. Defendant appeals as of right.

The complaining witness, Louis Barrow, testified that, on the afternoon of December 11, 1978, he entered a small store in the area of St. Clair and Mack in the City of Detroit, purchased four bottles of pop, paid for the pop with a $50 bill, and received $48 in change. He further testified that he was in the neighborhood that day doing ministerial work for the Jehovah's Witnesses. Mr. Barrow testified that Ms. McRaft was also in the store and that she apparently noted his receipt of the $48. He testified that he left the store and walked to his car, drove a short distance, and was waiting at the traffic light at the corner of Mack and Hastings when someone, whom he identified as the defendant, opened the passenger door and entered the car. Continuing his testimony, he said that she told him to give her his money and, that when he [102 MICHAPP 207] answered that he had no money, she stated that she would "cut off (his) mother fucking head * * * ". The complainant testified that he had observed that she had her hands inside the pockets of her jacket and that he "figured she had something", however, he saw no weapon at that time. Mr. Barrow related that the assailant then "hit" him in the throat and fled, and that, though he was bleeding profusely from his wound, complainant did not know until later that the instrument used was believed to be a knife. Mr. Barrow described his wound and exhibited the scar on his neck to the jury.

Mr. Barrow testified that he was in intensive care for approximately two days, and that at some point, possibly the day after his admission, the police came to his hospital room and showed him some photographs. He testified that he identified defendant from the group of seven photographs shown to him by the police.

Previously, at defendant's preliminary examination, Mr. Barrow gave the following testimony regarding the photographic showup:

"Q. How long were you in the hospital before you were shown the photographs? Do you remember how many days?

"A. If I don't make a mistake I thought they showed them to me the next day. I'm not sure but, you know, with a person losing that much blood he's lucky to have any senses at all, because I was so weak I couldn't stand up.

"Q. If I can just paraphrase what you said, were you pretty you were pretty you were going in and out of consciousness at that time and you were not all that coherent?

"A. You mean when he showed me the pictures?

"Q. Yes, that next day after .

"A. Well, I don't know how many pints of blood you [102 MICHAPP 208] got in your body, but the doctor told me afterwards because I asked him how many pints of blood did I lose and he said, 'You lost five pints.'

"Q. So the very next day then the sergeant came and showed you some photographs?

"A. That's right. I'm pretty sure it was the next day."

Prosecution witness Donald Penny testified during trial that he observed an automobile parked on the corner of Mack and St. Jean at the time of the incident in question and that he observed two people in the car. He stated that the two occupants had appeared to be struggling. He identified defendant as the female occupant of the car.

Detroit Police Officer Roger McGee testified that he was at the police mini-station at Mack and St. Jean on the afternoon of December 11 when he saw the injured complainant crossing the street and that he observed another officer begin to chase a suspect and that he followed in pursuit. He further testified that, in a nearby alley, he observed the defendant coming from the rear of a building, breathing heavily, and that, after attempting to question the defendant in the alley he placed her under arrest. Officer McGee testified that, after the arrest, he returned to the alley and discovered a pocket knife. Tracking-dog evidence regarding the knife was introduced at trial. The officer had apparently left the knife in place; it was later "re-discovered" by a tracking dog and admitted as an exhibit. However, the dog's handler, officer Michael Kenley, had been hospitalized due to a nervous breakdown and was unable to testify. The prosecutor asked that he be allowed to present officer Kenley's supervisor, officer John Dunkin, to establish the qualifications of both the handler and the dog.

A due diligence hearing was held, and the court [102 MICHAPP 209] determined that the prosecutor had exercised due diligence in attempting to produce officer Kenley. Officer Dunkin was permitted to testify as to the general qualifications of officer Kenley and his dog. Officer James Younger, the person in charge of the crime scene, was permitted to testify as to the dog's behavior at the time in question. He stated that the dog "sniffed up" a pocket knife adjacent to a building "a few feet out of the alley" into which the assailant had fled. Detroit evidence technician, William Lagore, testified that no attempt was made to obtain fingerprints from the knife.

The trial judge deferred ruling on the prosecutor's initial request that the knife be admitted into evidence. Defense counsel argued that the prosecutor had failed to tie the knife to any particular crime and stated: "I would have to have a continuing objection to that".

Defense counsel moved for a directed verdict on the charge of assault with intent to rob, being armed, arguing that the prosecutor had failed to prove the weapon element of the offense; the motion was denied. At no point in the trial did the court caution the jury as to the weight or credibility to be afforded tracking-dog evidence.

Defendant did not present witnesses or testify in her own behalf.

Defendant raises a number of issues on appeal. Defendant first claims that the trial court erred in admitting tracking-dog evidence without the necessary foundation therefor first being established or without giving any cautionary instruction relative thereto. The evidence admitted by the trial court included a knife, purported to be the weapon involved in the criminal transaction. No objection was made in the court below to the admission of [102 MICHAPP 210] the knife into evidence on the ground that a proper foundation for its admission had not been established. Since any error relative thereto could have cured upon a timely objection by defendant, we find the issue not to be preserved for appellate review. People v. Harris, 64 Mich.App. 503, 508-509, 236 N.W.2d 118 (1975). The knife, itself, was sufficiently connected with defendant by other tracking-dog evidence so as to allow its admission into evidence. People v. Williams, 46 Mich.App. 165, 171-172, 207 N.W.2d 480 (1973), lv. den. 389 Mich. 813 (1973).

As to the trial court's failure, sua sponte, to give a cautionary instruction regarding the tracking-dog evidence, we are unpersuaded that any error occasioned thereby necessitates reversal. Assuming, arguendo, that the Court's holding in People v. Perryman, 89 Mich.App. 516, 524, 280 N.W.2d 579 (1979), ¹ applied to the trial of the defendant herein, the court's error in failing to comply with its duty to instruct on tracking-dog evidence, even in the absence of any request therefor, is subject to the application of the two-pronged test for harmless error. Under the first inquiry involved in that standard, we do not perceive this error to be so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972), inter alia. The error here was not deliberately injected into the proceedings by the prosecutor. It did not deny defendant a fundamental element of the adversary process, nor was it of a particularly inflammatory or persuasive [102 MICHAPP 211] kind. See People v. Swan, 56 Mich.App. 22, 31-32, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975). Moreover, Perryman, supra, was decided less than three weeks prior to defendant's trial which indicates, in all likelihood, a lack of awareness of its existence on the part of the trial judge. This fact reinforces our conclusion that the first prong of the harmless-error test was not offended.

Under the second part of the standard, we declare a belief that the error was harmless beyond a reasonable doubt. Robinson, supra. We find no reasonable possibility that the error complained of might have contributed to the conviction, i.e., that it helped to convince an otherwise undecided juror of defendant's guilt beyond a reasonable doubt. Swan, supra, 33, 223 N.W.2d 346. The proofs, aside from the taint of error, were so compelling that all reasonable jurors would find guilt beyond a reasonable doubt, even if the instruction had been given.

Next, we address defendant's argument that the complainant's weakened condition at the time of the photographic showup gave rise to a very substantial likelihood of misidentification, requiring suppression of the identification...