People v. Rosborough

• Decision Date: 09 March 1972
• Docket Number: No. 3,3
• Citation: 387 Mich. 183,195 N.W.2d 255
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myrene ROSBOROUGH et al., Defendants-Appellants.
• Court: Michigan Supreme Court

Page 255

195 N.W.2d 255

387 Mich. 183

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myrene ROSBOROUGH et al., Defendants-Appellants.

No. 3.

Supreme Court of Michigan.

March 9, 1972.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Dept., Patricia J. Boyle, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Louisell & Gillis, Detroit, for defendants and appellants; Frank N. MacLean, Detroit, on the brief.

Before the Entire Bench.

ADAMS, Justice.

On September 11, 1964, defendants were charged with conspiracy to violate the State gaming laws. The information charged violation of those laws in three counts over a period from July 15, 1964, up to and including August 5, 1964. At arraignment on May 20, 1965, all defendants stood mute and not guilty pleas were entered for them.

On August 5, 1964, a search warrant had issued for 5656 Lawton, Detroit. Numerous items of gambling and office paraphernalia, including a large quantity of mutuel tickets were seized. Motions to suppress evidence and quash the information on the basis that the warrant for 5656 Lawton and other warrants executed in the case were issued without probable cause, were filed on behalf of defendants and denied on January 4, 1966. Defendants were found guilty on October 12, 1966. Upon appeal to the Court of Appeals, that Court affirmed the convictions. (22 Mich.App. 410, 177 N.W.2d 697). Defendants' application for leave to appeal to this Court was granted. (384 Mich. 792)

Leave was granted in this case primarily to reexamine the holdings of this Court in People v. Hobson, 369 Mich. 189, 119 N.W.2d 581 (1963), and People v. Gorka, 381 Mich. 515, 164 N.W.2d 30 (1969). The controlling opinion in Hobson, written by Justice Dethmers, was joined in by Justices Kelly and Carr. Justice Black concurred in the result. Justice Souris wrote a dissenting opinion in which he was joined by Justices T. M. Kavanagh and Otis Smith. The Dethmers' opinion affirmed the ruling of the trial court admitting into evidence various reports of police officers made over a period of time of their observations with regard to a gambling operation. As in this case, the officers made fragmentary notes each day. At the end of the day, a report was prepared from their notes and their memory of the day's events. The fragmentary notes made during the day were destroyed. The officers' reports were ruled to be admissible in evidence as past recollection recorded. The officers were called to testify and to be cross-examined as to the contents of the reports. Justice Souris' opinion contains a strenuous dissent on the grounds that defendants' constitutional right to confrontation and to effective cross-examination had been violated.

In Gorka, once again the situation was much the same as in Hobson, and as in this case. However, in Gorka, the reports were not admitted in evidence but were used to refresh the recollection of the police officers. This Court held that the reports prepared at the end of each day could be so used and that the destruction of the fragmentary notes made during the course of the day did not deprive defendants of effective means of cross-examination.

In the present case, Officer Aldo Corso testified that he did not have any independent recollection as to any of the facts of his investigation and surveillance without referring to his notes. The prosecuting attorney, proceeding on the theory of Hobson, stated that he intended to offer the officer's reports into evidence. The Court ruled them inadmissible, whereupon the following took place:

'Mr. Sage: (Assistant Prosecuting Attorney) Well, I would be glad to lay a further foundation as to whether or not we can refresh the witness's recollection.

'The Court: Well, refreshing it of course is a totally different thing. What the witness has indicated so far is that he has no independent recollection of the facts of this case without referring to his notes.

'Mr. Sage: That's true.

'The Court: Now, I would think that if that were true, the next step is to refer to the notes to see if it does refresh his recollection and if it does then to testify and the evidence then is the testimony given by the witness, not the document.'

A recess was taken by the Court to give Officer Corso an opportunity to read his report. He was then questioned by the assistant prosecutor as follows:

'Q. After having read it, does it refresh your recollection as to the events that occurred and the things which you observed on that day from 12:00 noon on?

'A. Not in its entirety, no.'

'Q. (By Mr. Sage): In order to make these notes which you indicated that you made, did you draw on just written memoranda or did you draw on something else?

'A. I also drew from memory in my own mind, what I saw that particular day and fragmentary notes that I had written down.

'Q. When did you write down or type up the notes in connection with your observations?

'A. When I wrote them down or when I typed them?

'Q. Well, let me ask you this: When did you type up the notes which you have there in your hand, People's Proposed Exhibit 1?

'A. Well, I came into the office at 4:30 or 5:00, whatever time it might have been. I typed them immediately.

'Q. The same day you made the observations?

'A. The same day, that's correct.

'Q. Your express purpose in making these notes was to help prepare the case for court?

'A. Yes, sir.

'Mr. Sage: I have no further questions. I might say that at this time I intend to use the notes which the officer has in his hand for the purpose that he might read them in as a past recorded recollection--past recollection recorded.'

One of the attorneys for defendants objected, stating that he wished to see the original memoranda used by the officer to prepare his report in order to compare them with the report the prosecutor was offering in evidence. Thereupon the Court took over as follows:

'The Court: I doubt that we need to get to the original memoranda or whatever you want to call the fragmentary notes.

'Mr. Massey: I think that the--

'The Court: Excuse me. The witness has indicated that by looking at those observations they do refresh his recollection as to these events but not in their entirety. In other words, I gather he could testify in substance as to what his observations were by looking at that document and refreshing his recollection. There would be I take it certain details of the observation that would not be refreshed by looking at this memoranda and as to those he really wouldn't be refreshed in his recollection; is that correct, witness?

'A. That's correct, your Honor.

'The Court: In other words, I take it that if you read over your observations on the days in question, that you could probably put down the memorandum in substance as to what you saw; is that correct?

'A. That's correct.

'The Court: You might not remember a license plate or an exact time or color of dress of a person, that type of thing, but I take it that you would remember that on this day, you followed Mary Doe No. 1 and saw her go into certain addresses and remain a few minutes and come out; is that right?

'A. Yes, sir. that's correct.

'The Court: Well, as I understand the witness's position, he doesn't need the document. Let me put it this way: There is no necessity to put the document in evidence because the witness could testify to substantially what happened based upon refreshing his recollection. When you talk about refreshing recollection, it doesn't matter whether you have the original document or copy of the document or a picture, a record. Anything that refreshes a witness's recollection may be used to refresh that recollection because it is not the picture or the document or the note or the paper that is the evidence but rather the testimony of the witness based upon a refreshed recollection.

'So in view of that, it seems to me we don't need to go into the question were there fragmentary or original notes destroyed or why they were destroyed. If the document is the evidence and is admitted as evidence under the past recollection recorded rule--

'Mr. MacLean: Now, your Honor, I think that the rule of evidence--the original document is the best evidence. This is something that just happened. This man testified he has been here for years and been through other cases.

'The Court: Mr. MacLean, I don't think--either I am not making my position clear or you don't follow it. The original document is pertinent perhaps when you're speaking possibly of the best evidence but that deals with documentary evidence. When you speak of best evidence you are talking about a document that is the evidence. Now, in this case, the document is not the evidence. It is the testimony, the verbal testimony of this witness that is the evidence.'

As a result of the Court's ruling, the police officers were permitted to testify from their reports on the basis that their recollection had been refreshed. A few samples of the testimony of the police officers follow. The first excerpts are from the testimony of Officer Corso.

'Q. And can you recall what your first observation was that day without refreshing your recollection or do you have to refresh your recollection?

'A. As I stated before, I have to testify accurately and honestly. I would have to refer to my notes to give you the correct times, the correct type vehicle, the correct license number, and so on.

'Q. All right. And would you please look at your first day's notes on your first day's observation to see if you can refresh your recollection?

'A. As I stated earlier, I was in position at 12:00 noon in the vicinity of Blaine and Dexter. I was observing a 1956 Chevrolet, license number Adam Lincoln 3503. At 12:30 P.M., I observed a lady later identified as Janie Cade enter the Chevrolet, Adam Lincoln 3503 and she drove away. At this time I followed.

'Q. What was the next day and date of your observations?

'A. Monday, July the 20th, 1964. And at 11:30 P.M. I took up--

'The Court...