People v. Somma
| Decision Date | 06 May 1983 |
| Docket Number | Docket No. 60483 |
| Citation | 123 Mich.App. 658,333 N.W.2d 117 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Duane SOMMA, Defendant-Appellant. 123 Mich.App. 658, 333 N.W.2d 117 |
| Court | Court of Appeal of Michigan — District of US |
[123 MICHAPP 660] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.
Metry, Metry & Sanom by Mark S. Metry, Detroit, for defendant-appellant.
Before MacKENZIE, P.J., and MAHER and SIMON *, JJ.
Defendant was charged with obstruction of justice pursuant to M.C.L. Sec. 750.505; M.S.A. Sec. 28.773, which provides for punishment of offenses indictable at common law. After a jury trial, defendant was found guilty and sentenced to serve 30 days in the county jail and two years on probation. Defendant appeals by right.
The information charging defendant stated:
"One Steven Duane Somma, late of 47128 Forton, Mt. Clemens, Michigan, did, with intent to obstruct the due course of justice, then and there wilfully and unlawfully dissuade, hinder, or bribe a person, to-wit: Gary [123 MICHAPP 661] Treumer, for the purpose of influencing said Gary Treumer to make false statements to authorities to seek dismissal of a criminal charge to which said Gary Treumer was a complaining witness, to-wit: the charge of assault with a dangerous weapon then pending against one Dennis William Berger, being Case number S-2936-79, before the 76th District Court for Isabella County, Michigan; Contrary to Law as punishable by M.C.L.A. Sec. 750.505; M.S.A. Sec. 28.773."
Defendant contends that this information was improper in that it charged defendant with obstruction of justice but listed the elements of the separate crime of incitement or procurement of perjury, M.C.L. Sec. 750.425; M.S.A. Sec. 28.667. Perjury, however, involves a false statement while under oath, M.C.L. Sec. 750.423; M.S.A. Sec. 28.665. The information does not charge defendant with inciting or procuring a false statement under oath.
Defendant also argues that the information omits an essential element of obstruction of justice, namely that defendant prevented or attempted to prevent a witness from testifying at trial. Defendant points out that the trial court's instructions to the jury also contained no such element. It is true that in People v. Boyd, 174 Mich. 321, 140 N.W. 475 (1913), and People v. Coleman, 350 Mich. 268, 86 N.W.2d 281 (1957), the crime of obstruction of justice involved preventing a witness from testifying at trial. However, a large number of offenses at common law have come with the passage of time to be collected under the name of "obstruction of justice". People v. Davis, 408 Mich. 255, 286-292, 290 N.W.2d 366 (1980) (opinion of Levin, J.). An obstruction of justice has been defined as an interference with the orderly administration of the law. People v. Ormsby, 310 Mich. 291, 299, 17 N.W.2d 187 (1945). See also 58 Am.Jur.2d, Obstructing Justice, Sec. 2, p. 855, and 67 C.J.S., [123 MICHAPP 662] Obstructing Justice or Governmental Administration, Secs. 2-3, pp. 120-121. It was an offense at common law to willfully and corruptly hamper, obstruct, and interfere with a proper and legitimate criminal investigation. 67 C.J.S., Obstructing Justice or Governmental Administration, Sec. 9, p. 134. We are persuaded that the elements of the offense stated in the information and the instructions here fall within the definition of obstruction of justice. Moreover, it appears to us that, by bribing the complaining witness to make false statements to the police to obtain dismissal of the charge, defendant was attempting to prevent a trial on that charge and thus attempting to prevent the complaining witness from testifying at such a trial.
Evidence produced at a pretrial hearing showed that the police gave the complaining witness a tape recorder to record telephone conversations with defendant. After some conversations were recorded, the tape was listened to by police officers, who then returned the tape to the complaining witness so that subsequent conversations could be recorded on the same tape. Apparently the tape was then accidentally erased by the complaining witness's wife. There was no evidence that the police acted in bad faith and no evidence that anything material to the case, exculpatory or inculpatory, had been recorded. The conversation in which defendant offered to bribe the complaining witness took place before the tape recorder was obtained. No request by the defense for the tape had been made before erasure.
Defendant argues that the foregoing requires reversal of his conviction and dismissal of the [123 MICHAPP 663] charge, or at least a new trial at which the jury would be instructed that it could infer that the contents of the tape would be favorable to defendant. Defendant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in which the Court held that defendant was denied due process where the prosecution withheld specifically requested material evidence irrespective of whether the evidence was withheld in good faith or in bad faith. However, where the withheld evidence was not requested, a denial of due process exists only where the evidence was sufficient to create a reasonable doubt which might not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Nothing suggests that the contents of the tape were material, much less sufficient to create a reasonable doubt.
Even if we were to accept defendant's suggestion and assume that the contents of the tape were material despite the evidence to the contrary, defendant would not be entitled to reversal. Absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not require reversal. People v. Amison, 70 Mich.App. 70, 77-80, 245 N.W.2d 405 (1976), lv. den. 402 Mich. 815 (1977); People v. Oliver, 111 Mich.App. 734, 744-745, 314 N.W.2d 740 (1981). See also United States v. Augenblick, 393 U.S. 348, 355-356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969). This was not a case like People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972), in which the Court held that the prosecution had a duty to preserve evidence of photographs shown to the victim for identification purposes; the prosecution here had no duty to have defendant's conversations taped because defendant had access to those conversations as a party to them. Oliver, supra, p. 746, 314 N.W.2d 740.
On the last day of trial, after the defense had rested, counsel for defendant...
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