People v. Smith
| Decision Date | 28 January 1975 |
| Docket Number | Docket No. 18782,No. 2,2 |
| Citation | 227 N.W.2d 233,58 Mich.App. 76 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Darrell SMITH, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence L. Hayes, Jr., Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and BASHARA and ALLEN, JJ.
The defendant was convicted in a nonjury trial of delivering marijuana to a person under 18 years of age and more than five years defendant's junior, contrary to M.C.L.A. § 335.346(1), M.S.A. § 18.1070(46)(1) and M.C.L.A. § 335.341(1)(c), M.S.A. § 18.1070(41)(1)(c). On September 17, 1973, defendant received a sentence of 2 1/2 to 8 years in prison, and appeals.
Defendant raises three issues on appeal:
I That the tests used by the state police crime laboratory were so deficient as to be insufficient and incompetent to serve as a basis for identification of the controlled substance II That the trial court erred in admitting the arresting officer's testimony regarding defendant's age and in admitting a public record of defendant's birth;
III That the factfinder failed to confine its deliberations as to the date of the offense to May 25, 1973.
Hugh M. Fish, employed at the State Police Crime Laboratory testified that he used the 'Duquenois' reagent test and a microscopic test to identify the substance in question. He then said that he determined this to be marijuana. Defense counsel specifically said that he had no objection to Fish's qualifications as an expert witness, and failed to voice an objection to the use of the various tests. On appeal, defendant asserts that these tests are unreliable. In light of People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974), we are constrained to hold the contrary. Generally, issues not raised below are not considered for the first time on appeal. See People v. White, 53 Mich.App. 51, 57, 218 N.W.2d 403 (1974), and cases cited therein. Defense counsel moved to strike Fish's testimony on the theory that defendant had been denied due process of law because Fish was an expert employed by the state whereas defendant lacked the means and ability to secure a 'counter expert' to confront Fish's findings. This issue was not raised on appeal, and we find no clear injustice presented that would require us to find that the tests used to identify the controlled substance are unreliable.
The prosecutor has agreed that the police officer's testimony and report regarding defendant's date of birth were hearsay and should have been excluded by the trial judge. See Sterling v. Detroit, 134 Mich. 22, 25, 95 N.W. 986 (1903). However, the prosecutor argues that because a birth certificate from the county clerk's office was properly admitted, the error in admitting the police officer's testimony was harmless beyond a reasonable doubt. People v. Harrison, 49 Mich.App. 546, 551, 212 N.W.2d 278 (1973). Defendant, on the other hand, argues that the certificate from the county clerk's office was improperly admitted on the grounds that no proper foundation had been established, and that the public record was not authenticated. Finally, even if our Court finds the record to have been authenticated, defendant argues that the record was irrelevant to defendant's case on the grounds that the people failed to establish that the certificate at issue proves the date of birth of defendant rather than the date of birth of some other Steven D. Smith.
At trial, the prosecutor offered 'the official public records of the county clerk's office regarding the certificate of live birth of Steven Darrell Smith'. Although the prosecutor said that he would ask 'Miss Pish whether these are the records', he stated 'I don't think it's necessary to do'. Defense counsel objected to the admission of this record on the grounds that there was no proof to show that this was the record of defendant instead of some other Steven Darrell Smith, stating 'I object as irrelevant and immaterial'. The trial court overruled the objection, and read the record. The judge stated that it 'evidences the birth of one Steven Darrell Smith on April 9, 1951'. The father of the child was listed as Fred J. Smith. The mother's maiden named was shown as LaVerna Parcell. Having stated that portion of the record in the transcript, the judge returned the volume of birth certificates to the county clerk.
Unlike the situation in Breitmayer v. United States, 249 F. 929, 933 (CA6, 1918), no testimony was specifically presented to indicate that the Steven Darrell Smith in the birth certificate was indeed defendant. Also, the people failed to show that the Fred J. Smith listed in the certificate was defendant's father. While defendant's sister testified that her mother's name was LaVina, the people failed to show that she was in fact the person listed as the mother in the birth certificate. Although such records are prima facie evidence of the name, sex, color, and date and place of birth of the child listed therein, M.C.L.A. § 326.16(6), M.S.A. § 14.236(6), the people failed to show the relevance of the birth certificate at issue. Generally, 'the materiality and relevancy of evidence' is within the trial court's discretion, and our Court will not reverse its determination 'unless there (has been) an abuse'. People v. Moore, 51 Mich.App. 48, 52, 214 N.W.2d 548, 550 (1974). If there was in fact an abuse of discretion and error was committed, it was harmless beyond a reasonable doubt and did not contribute to defendant's conviction. People v. Robinson, 386 Mich. 551, 562--563, 194 N.W.2d 709 (1972).
The official records showed that a Steven Darrell Smith was 22 years old as of April 9, 1973. Michael Gary, the prosecutor's main witness against defendant, testified that defendant had told him that he was 22 years old. This statement clearly falls within the admissions exception to the hearsay rule. McCormick, Evidence, (2d Ed.), § 262, p. 628. Since the trial court had before it evidence of defendant's age, no miscarriage of justice resulted when the record of birth certificates was admitted at trial. M.C.L.A. § 769.26, M.S.A. § 28.1096 and GCR 1963, 529.1. The birth record was merely cumulative and if the trial court abused its discretion in admitting the record into evidence, we find no miscarriage of justice. People v. Hall, 56 Mich.App. 10, 19, 223 N.W.2d 340, 345 (1974).
Defendant's final argument is a three-pronged attack upon the trial court's failure to confine its deliberations as to the date of the offense to May 25, 1973, the specific date set forth in the complaint, warrant, return to circuit court, and in the videlicet of the information, the body of which recited that the offense occurred 'on or about the date of the offense set forth above'. Defendant argues that Michael Gary was the only witness who connected defendant with the delivery of marijuana, and that Gary said that the event took place May 25. Relying upon People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), and United States v. Henderson, 434 F.2d 84 (CA6, 1970), defendant argues that the prosecutor was bound to limit his proofs to that day, and that the trial court's decision to allow the prosecutor to prove that the delivery took place sometime previous to that date violated defendant's presumption of innocence and allowed the people to shift the burden of proof to defendant. Second, relying upon Commonwealth v. Boyer, 216 Pa.Super. 286, 264 A.2d 173 (1970), and the cases cited therein, defendant argues that his assertion of an alibi defense makes 'time of the essence', and that any variance between the proofs and the date alleged in the information is fatal to defendant's conviction. Third, defendant argues that even if a variance is allowed, the prosecutor failed to allege and prove an alternate date, thus depriving defendant of his right to prepare an adequate defense. It is alleged that the people failed to offer proof of another specific date, and that this vague charge against defendant violated his right to due process of law and the right to be informed of the nature of the accusation against him. U.S.Const. Am. XIV, Const.1963, Art. 1, §§ 17, 20. A recitation of the relevant facts is necessary to enable one to understand and comprehend this issue.
At the preliminary examination held July 9, 1973, defense counsel initially raised objection to the warrant which had been issued upon a detective's 'information and belief'. Counsel stated that there as no allegation as to time and place. After the detective was questioned, defense counsel argued that his client was not prepared for the examination on the grounds that he was not apprised of a specific date, time and place of the offense. The trial court then ordered the people to prepare a new complaint and warrant. After a short recess, a new complaint was prepared and defense counsel offered no objection thereto.
At the examination, Michael Gary, the people's main witness against defendant, and the purchaser of the controlled substance, testified that he obtained the marijuana from defendant on May 25, 1973. In response to the prosecutor's question as to whether the witness had 'ever' smoked marijuana with defendant or had 'ever' received marijuana from defendant, defense counsel objected on the grounds that defendant had been charged with a specific act on a specific date, May 25, and the trial court told the prosecutor to limit his questions to the event of May 25. Although the prosecutor couched his question in terms of 'on or about May 25', Gary continued to testify that the event took place May 25. However, upon cross-examination by defense counsel, he was unable to remember what day of the week was the 25th, and in fact stated...
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