People v. Petrella, Docket No. 55742

CourtCourt of Appeal of Michigan (US)
Writing for the CourtT.M. BURNS
Citation124 Mich.App. 745,336 N.W.2d 761
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry PETRELLA, Defendant-Appellant. 124 Mich.App. 745, 336 N.W.2d 761
Docket NumberDocket No. 55742
Decision Date06 July 1983

Page 761

336 N.W.2d 761
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Jerry PETRELLA, Defendant-Appellant.
Docket No. 55742.
124 Mich.App. 745, 336 N.W.2d 761
Court of Appeals of Michigan.
Submitted Dec. 8, 1982.
Decided April 18, 1983.
Released for Publication July 6, 1983.

Page 764

[124 MICHAPP 750] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Janis L. Blough, Chief Appellate Asst. Pros. Atty., and Charles R. Toy, Asst. Pros. Atty., for plaintiff-appellee.

Lick, Emery & DeVine by Lawrence J. Emery, Lansing, for defendant-appellant.

Before BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

T.M. BURNS, Judge.

On October 3, 1980, defendant was convicted by a jury of breaking and entering with intent to commit criminal sexual conduct, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and first-degree criminal[124 MICHAPP 751] sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), and was subsequently sentenced to concurrent terms of from 7 1/2 to 15 years and 10 to 20 years imprisonment. He appeals as of right.

The question of when defendant cut his hair and shaved was one of the major factual issues. The complainant testified that defendant had long hair and a mustache during the rape, but was clean shaven with short hair when she identified him a few hours later. Defendant testified that his wife had cut his hair on March 5, 1977--four days before the crime. His wife testified that she did it the day before the crime. On the other hand, three other witnesses testified that they saw defendant very early on March 9, 1977, with long hair and a mustache.

During cross-examination, defendant specifically denied telling a police officer that he had his hair cut and mustache shaved the day of the crime. The police officer later testified in rebuttal that he had in fact told her that. Although she saved the written report of this interview, she destroyed her preparatory notes. Defendant now argues that her testimony violates the rule of People v. Rosborough, 387 Mich. 183, 194-195, 195 N.W.2d 255 (1972):

"We conclude that if the reports of the officers prepared at the end of a day's work are to be allowed in evidence, 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."

However, the police report in the present case was not admitted as evidence. Rosborough applies only where the report itself is admitted into evidence as a past recollection recorded. This distinction[124 MICHAPP 752] was brought out in People v. Matuja, 77 Mich.App. 291, 294, 258 N.W.2d 79 (1977):

"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."

Defendant's next argument, however, is more serious. He claims that destroying the notes violates his right to due process. Where evidence has been suppressed, we look to see: (1) whether the suppression was deliberate; (2) whether the evidence was requested; and (3) whether "hindsight discloses * * * that [the] defense could have put the evidence to not insignificant use". People v. Dorsey, 45 Mich.App. 230, 235, 206 N.W.2d 459 (1973), lv. den. 389 Mich. 793 (1973).

Page 765

The prosecutor, relying on People v. Gibson, 115 Mich.App. 622, 629, 321 N.W.2d 749 (1982), lv. den. 414 Mich. 889 (1982), argues that defendant has not shown that these destroyed notes would have been favorable. However, since they were destroyed soon after they were made and were never shown to defendant, we fail to see how defendant could have shown this.

These original notes of defendant's statement were material evidence. People v. Wallace, 102 Mich.App. 386, 301 N.W.2d 540 (1980). The prosecution and the police have the duty to retain such notes: "We cannot stress too strongly the importance of retention by the police of their original notes and records * * * ". People v. Poe, 388 Mich. 611, 620, 202 N.W.2d 320 (1972).

If the police destroyed the notes in bad faith or intending to deprive the defendant of evidence, this Court would reverse. People v. Albert, 89 Mich.App. 350, 280 N.W.2d 523 (1979). However, not [124 MICHAPP 753] every failure to keep these notes requires reversal. People v. Fiorini (On Rehearing ), 59 Mich.App. 243, 229 N.W.2d 399 (1975), lv. den. 395 Mich. 790 (1975). Even though the police destroyed these notes "intentionally", they did not do it either in bad faith or to deprive defendant of evidence. The police officer testified that the evidence was destroyed pursuant to departmental policy to save space. In People v. Jeffrey Johnson, 113 Mich.App. 650, 657, 318 N.W.2d 525 (1982), this Court addressed a similar issue:

"The police policy of destroying fingerprint evidence after 30 days, when it has been determined that a positive matchup is not possible from the latent prints, is not looked on by this Court with great favor. Although we recognize the need to control the number of files or the types of materials that are kept in police files from growing too large, we must bear in mind the importance of maintaining evidence which may play a crucial part in a defendant's proving of his case. In the instant case where the fingerprints evidence was destroyed in accordance with police policy and procedure and there has been no evidence presented of intentional misconduct, suppression or bad faith, the facts do not compel us to use the destruction of this evidence as a basis for the reversal of defendant's conviction * * *."

See also People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981); People v. Hardaway, 67 Mich.App. 82, 240 N.W.2d 276 (1976).

In this case, reversal is not required even though defendant's cross-examination was unnecessarily restricted. First, defendant did not request the notes before their destruction. Second, the witness testified that she was testifying from memory and not from her report which was written from the notes. Third, the evidence was admitted merely for impeachment. Fourth, this evidence [124 MICHAPP 754] was cumulative: three others testified that defendant had long hair and a mustache that morning. Fifth, the evidence against defendant was very strong.

Defendant next argues that the complainant's identification testimony at trial should have been suppressed. He first argues that he should have been given the opportunity to have counsel present when the complainant identified him at the gas station.

Although a defendant is generally entitled to counsel during identifications, this is not always true during a prompt on-the-scene identification. People v. Anderson, 389 Mich. 155, 187, fn. 23, 205 N.W.2d 461 (1973). There are different types of on-the-scene identifications. The first type of situation is where the defendant is taken to the witness or where the witness is taken to the defendant who is being detained. Examples can be found in People v. Purofoy, 116 Mich.App. 471, 323 N.W.2d 446 (1982), and People v. Starks, 107 Mich.App. 377, 309 N.W.2d 556 (1981), lv. den. 413 Mich. 901 (1982). Whether or not defendant is entitled to counsel in this situation depends on whether or not "the police have very strong evidence that the person stopped is the culprit". People v. Turner, 120 Mich.App. 23, 36, 328 N.W.2d 5 (1982). The on-the-scene identification is justified because it allows confirmation or

Page 766

denial while the witness' memory is still fresh and it expedites the release of innocent suspects. People v. Johnson, 59 Mich.App. 187, 229 N.W.2d 372 (1975). These advantages are balanced against the inherent suggestiveness of the one-on-one identification itself. Turner, supra; People v. Dixon, 85 Mich.App. 271, 271 N.W.2d 196 (1978), lv. den. 406 Mich. 906 (1979).

Another type of on-the-scene identification situation[124 MICHAPP 755] occurs when the victim accompanies the police while searching the area for the criminal. The situation in People v. Nathaniel Johnson, 113 Mich.App. 414, 317 N.W.2d 645 (1982), is very close to this type of situation. In this type of situation, counsel is obviously not required because the suspect is not even really a suspect until after the victim has identified him. Requiring counsel here would be clearly impractical.

The present situation presents a third variation of an on-the-scene identification, because the complainant already knew who her assailant was before the "identification". She was not taken to see defendant in hopes of stirring a recollection upon seeing him but rather merely to point out to the police the man she had already designated to them as her assailant. As such, an identification of the type described in People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), did not occur, and the inherent suggestiveness normally present in an on-the-scene identification is therefore absent.

Defendant next argues that the identification at his preliminary parole revocation hearing without the presence of his counsel should have been suppressed at trial. However, because defendant has failed to provide us with a transcript of the preliminary parole violation hearing, we can only deem the issue as waived. People v. Kelly, 122 Mich.App. ---, 333 N.W.2d 68 (1983). 1

Defendant also argues that the two identifications were impermissibly suggestive. However, the fairness of the procedure is evaluated in the light [124 MICHAPP 756] of the totality of the circumstances. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974). The test is not whether it is suggestive but rather whether the totality of the circumstances shows it to be reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Viewing the facts in this case, we do not believe that the identifications were impermissibly suggestive.

Defendant also argues, based on People v. Solomon, 391 Mich. 767, 214 N.W.2d...

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