People v. Spencer, Docket Nos. 78-1024

• Citation: 93 Mich.App. 605,286 N.W.2d 879
• Decision Date: 17 October 1979
• Docket Number: 78-1025,Docket Nos. 78-1024
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher SPENCER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 879

286 N.W.2d 879

93 Mich.App. 605

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher SPENCER, Defendant-Appellant.

Docket Nos. 78-1024, 78-1025.

Court of Appeals of Michigan.

Oct. 17, 1979.

Released for Publication Jan. 29, 1980.

Jack L. Jaffe, Howard Hertz, Detroit (of counsel), for defendant-appellant.

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

Before J. H. GILLIS, P. J., and BEALSEY and RANSOM, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of two counts of criminal sexual conduct in the third degree, M.C.L. § 750.520d; M.S.A. § 28.788(4), and one count of assault with intent to commit criminal sexual conduct. M.C.L. § 750.520g(1); M.S.A. § 28.788(7)(1). He was sentenced to prison terms of 3 to 15 years on the first two counts and 3 to 10 years on the assault count. Defendant appeals as of right raising two issues for our consideration.

Defendant first contends it was error to admit into evidence certain clothing which was seized without a search warrant.

The police arrested defendant on October 12, 1977, and took him to the police station. The arresting officer, believing defendant's underwear contained evidence, ordered defendant to disrobe and took his undershorts. Chemical analysis revealed blood stains of blood type A as well as seminal fluid ascertained to have come from a person with blood type A. Both defendant and the complaining witness had blood type A. Moreover, the complaining witness testified she started menstruating heavily immediately after defendant had intercourse with her.

In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the defendant was arrested for attempted breaking and entering. The attempted entry had been made through a wooden window leaving paint chips on the window sill and screen. The defendant's clothes were seized the morning after the arrest and examination revealed paint chips matching samples taken from the window.

In upholding the validity of the warrantless seizure, the Court stated that the police were entitled to take any evidence of the crime in his immediate possession, including his clothing. 415 U.S. at 806, 94 S.Ct. 1234. The Court also noted that the police had probable cause to believe that the articles of clothing were themselves material evidence of the crime for which he had been arrested.

Defendant's arguments that Edwards is distinguishable from the instant case are without merit.

Defendant also contends that even if the underpants were legally seized, admission of laboratory analysis of the blood type into evidence should have been denied since the evidence was more prejudicial than probative. Defendant argues that the blood sample on the underpants, although of the same type as the complainant's, was an extremely common type.

We do not believe the trial court abused its discretion in admitting this evidence. While evidence of matching blood type has been held inadmissible to prove paternity, People v. Nichols, 341 Mich. 311, 67 N.W.2d 230 (1954), Shepherd v. Shepherd, 81 Mich.App. 465, 265 N.W.2d 374 (1978), it has been admitted in criminal cases without comment. See, E. g., People v. Lapsley, 26 Mich.App. 424, 182...