People v. Sturdivant

• Decision Date: 09 July 1979
• Docket Number: Docket No. 77-4093
• Citation: 91 Mich.App. 128,283 N.W.2d 669
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry STURDIVANT, Defendant-Appellant. 91 Mich.App. 128, 283 N.W.2d 669
• Court: Court of Appeal of Michigan — District of US

Page 669

283 N.W.2d 669

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry STURDIVANT, Defendant-Appellant.

Docket No. 77-4093.

91 Mich.App. 128, 283 N.W.2d 669

Court of Appeals of Michigan.

July 9, 1979.

Rehearing Denied Aug. 29, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 129] Garber, Haslick & Bramlage, P. C. by James N. Garber, Plymouth, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty. by Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and BASHARA and R. B. BURNS, JJ.

KELLY, Presiding Judge.

On February 16, 1977, at 10 p. m., the complainant, Bonita Jones, was accosted near her home in Detroit by defendant, Terry Sturdivant, who told her that he had a gun. As they were standing near a streetlight, the complainant was able to clearly see the defendant's face. The defendant then took her to the attic of a vacant house where he raped her and took $66 from her pants pocket. In the course of the assault, defendant used a cigarette lighter to illuminate the room and the complainant was again given the opportunity to observe him. After a second penetration, defendant fled the house.

On March 3, 1977, in the course of the police investigation, the complainant viewed a photographic show-up containing defendant's picture. Although unable to positively identify defendant at this time, she did observe similarities between defendant's picture and her assailant. Subsequently,[91 MICHAPP 130] on March 14, 1977, the complainant positively identified defendant as her assailant at a police line-up. She again identified defendant at a preliminary examination held on March 21, 1977, and twice identified him at trial. At a pretrial evidentiary hearing, the trial court ruled that neither the photographic show-up nor the line-up were unnecessarily suggestive.

On August 4, 1977, following a jury trial, defendant was convicted of criminal sexual conduct in the first degree, M.C.L. § 750.520b(1); M.S.A. § 28.788(2) (1), criminal sexual conduct in the third degree, M.C.L. § 750.520d(1); M.S.A. § 28.788(4)(1), and larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589. The trial court sentenced defendant to 191/2 to 55 years on the first offense, 10 to 15 years on the second and 6 years and 8 months to 10 years on the third.

Defendant raises a host of issues in this appeal; however, we find that only one merits extended discussion. Did the trial court commit reversible error in admitting expert scientific testimony regarding the analysis of seminal fluids found on complainant's clothing?

During the trial, two serologists from the police crime lab testified as to the results of tests they had conducted on the underpants worn by complainant at the time of the offense. The first to testify, Officer Ronald Badaczewski, testified that he found seminal fluid, but no blood, on the garment. The second serologist to testify, RaNell Davis, stated that she tested a swath of cloth from the same sample, performing a secretory test typing on it. This test is used to determine blood types from other secreted body fluids, (semen, tears, saliva, etc.). She testified that 80% Of the general population secrete their blood type in their [91 MICHAPP 131] body fluids and 20% Do not. Ms. Davis then testified that the complainant's panties contained no blood type secretion; this meant, in all likelihood, that the male whose sperm was on the panties, and the female who wore them, were both nonsecreters. She then testified that she did a blood typing on both the complainant and the defendant and that the results indicated that both were nonsecreters. Finally, she noted that it was relatively rare for both individuals in a rape case to be nonsecreters.

In sum, the testimony of Ms. Davis established only that the complainant's attacker was a member of that segment of the population who were nonsecreters, as was the defendant. Because this testimony served to include the defendant in the class of possible assailants, it thereby increased the probability of defendant's guilt without connecting him, in any way, to the charged offense. We hold that the admission of blood type evidence solely for the purposes of inclusion was error.

There is no Michigan criminal case on point with the instant case. However, the case law of other jurisdictions and our own case law developed in the context of the quasi-criminal paternity suit, where blood type testimony is often used as evidence, is instructive in resolving the posited issue.

New York represents the view that inclusion evidence has no probative value. In People v. Robinson, 27 N.Y.2d 864, 317 N.Y.S.2d 19, 265 N.E.2d 543 (1970), it was held that proof that the defendant in a murder prosecution had Type "A" blood and that semen found in and on the body of the decedent was secreted by a man with Type "A" blood was of no probative value in view of the large proportion of the general population having blood of this type, and therefore, should not have [91 MICHAPP 132] been admitted; however, it was further held that, in view of the careful limitation on its consideration by the jury in the court's instruction and of the fully adequate case made out by the other proofs, the admission of such evidence was held not to be prejudicial. See also, People v. Macedonio, 42 N.Y.2d 944, 397 N.Y.S.2d 1002, 366 N.E.2d 1355 (1977).

However, the case of People v. Gillespie, 24 Ill.App.3d 567, 321 N.E.2d 398 (1974), represents the opposing view. In Gillespie, it was held that blood type evidence was admissible as one link in a chain of circumstantial evidence tending to prove the defendant's participation in a burglary where an expert witness testified that only 2.7% Of the Negro population had Type "A" with a positive rheumatoid arthritis factor, as did defendant. See also State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977).

In our opinion, the latter cases are not persuasive authority for the proposition that blood type evidence, when used for purposes of inclusion, is admissible. In Gillespie, there was extensive testimony as to the frequency of Type "A" blood with a positive rheumatoid arthritis factor which ultimately limited the inclusive group to 2.7% Of the black population. We have no such specificity here. The people's expert witness was able to limit the inclusive group of nonsecreters to only 20% Of the general...