People v. White, Docket No. 43473

• Decision Date: 02 December 1980
• Docket Number: Docket No. 43473
• Citation: 102 Mich.App. 156,301 N.W.2d 837
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence WHITE, Defendant-Appellant. 102 Mich.App. 156, 301 N.W.2d 837
• Court: Court of Appeal of Michigan — District of US

Page 837

301 N.W.2d 837

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence WHITE, Defendant-Appellant.

Docket No. 43473.

102 Mich.App. 156, 301 N.W.2d 837

Court of Appeals of Michigan.

Dec. 2, 1980.

Released for Publication Feb. 20, 1981.

[102 MICHAPP 158] James R. Neuhard, State Appellate Defender, P. E. Bennett, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

CORSIGLIA, Judge.

Defendant-Appellant was convicted on November 2, 1978, of first-degree criminal sexual conduct, contrary to M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), after a four-day trial before a Jackson County Circuit Court jury. He was sentenced to 6 to 15 years imprisonment. Defendant appeals as of right.

At trial, the complaining witness testified that she was followed and verbally harassed by a number of men in a car while walking home from a bar in Jackson, Michigan, in February of 1978. Terrified when one of the men got out of the car, she ran. Two men pursued her, and eventually she attempted to get into a friend's house. Unfortunately the home was locked, and the complainant was grabbed, physically assaulted and raped by one of the men. Because she was penetrated from behind while on her hands and knees in the snow, she did not get a good look at her attacker's face. However, based upon her recollection of his clothing, size, and certain other characteristics, while [102 MICHAPP 159] riding with police a few blocks from the scene, and shortly after the assault, she identified the defendant. He was then taken into custody. The complainant was taken to the hospital by the police.

At trial, Frank Schehr, of the Michigan State Police Forensic Science Division, Serology Unit, testified that he analyzed the clothing of the complainant and the defendant, specimens taken from the complainant, and blood and saliva samples taken from the defendant. He testified that the complaining witness had type B blood and was a secreter, and that the defendant had type A blood and was also a secreter. The specimens taken from the complainant's vagina showed type A secretions, according to his analysis, and such specimens were consistent with the defendant's blood type. In addition, they were also consistent with an AB secreter. Further testimony in a similar vein was given, all indicating that the defendant could not be excluded from the class of possible assailants based upon laboratory analysis.

The defendant did not deny that he was riding in the car that kept pace with the complainant in the early hours of the morning. One of the other occupants of the car, Fred Wheeler, stated that he did not recall telling a detective a few days after the incident that the defendant said he was going to "fuck that white bitch" when he left the car. Wheeler finally stated that if the detective said that he (Wheeler) made the statement, then he must have said it, that his memory was better at the earlier date, and that he was not sure which of the two men who exited from the car made the statement.

The defendant took the stand to testify on his own behalf. He claimed that after he left the car he did not see the complainant or the other man [102 MICHAPP 160] who got out. According to his testimony, he walked toward his mother's home, but decided to ask an acquaintance named Curtis, whom he met just before arriving at his mother's, for a ride to his sister's house. This person gave defendant the requested ride and left. When defendant found his sister was not home, he walked back six blocks toward his mother's home. He was taken into custody on the porch of a friend's house. Defendant claims he was stopping at the friend's house to ask her a question.

In rebuttal, the prosecution recalled a detective who had interviewed the defendant. The witness testified that the defendant did not mention the Curtis who offered him the ride to his sister's house or other similar details of the story the defendant told on the stand.

Another detective who observed the interview, and who had not been called by the prosecution prior to rebuttal, testified that he had not heard anything about the Curtis who offered the defendant a ride or the other new details regarding the defendant's activities on that day.

The jury apparently did not believe the defendant's version of the events, and he was convicted. He appeals, alleging several errors of law.

The trial in this case predates the decision of People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669 (1979). Prior to Sturdivant, implicit approval had been given to blood type testimony such as that given in this case. See, e. g., People v. Newby, 66 Mich.App. 400, 239 N.W.2d 387 (1976), lv. den. 397 Mich. 867 (1976). Hence we are confronted with the issue of whether the rule set forth in Sturdivant ought to be given retroactive effect.

Three factors are generally taken into consideration in determining whether to give a new rule of [102 MICHAPP 161] law retroactive or prospective application. As established in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), a court should take into consideration: (1) the purpose to be served by the new rule; (2) the extent of reliance upon the old rule; and (3) its effect on the administration of justice. Accord, People v. Kamin, 405 Mich. 482, 275 N.W.2d 777 (1979); Stewart v. Stewart, 91 Mich.App. 602, 283 N.W.2d 809 (1979).

As expounded in Sturdivant, the purpose of excluding blood type testimony relates to its low probative value when weighed against other considerations such as its possible ability to confuse, mislead, or otherwise improperly influence the jury. MRE 401, 403; People v. Sturdivant, supra. Such a concern is dissimilar to a focus upon a right such as a defendant's right under the jury system to a properly requested instruction. Compare, People v. Kamin, supra, 405 Mich. at 495, 275 N.W.2d 777.

Indication of the reliance upon the old rule regarding expert testimony on blood types is given by its widespread use and acceptance in similar cases. Indeed, in this case able defense counsel did not even object to its introduction. No prior indication was given to trial counsel of the imminent demise of the established rule. Compare, Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

Further, in this Court's opinion, retroactive application of the rule of Sturdivant, given the lack of prior precedent in similar cases or indication from higher courts to the trial bench, may have a significant adverse effect upon the administration of justice.

Consequently, we decline to give Sturdivant retroactive application. Since we so decide, this holding ought not to be construed as either an approval[102 MICHAPP 162] or disapproval of Sturdivant (except for Judge Kelly, the writer of Sturdivant, who still approves of it).

The defendant also argues that reversible error occurred when the trial judge allowed the prosecution to argue that the statement made by Mr. Wheeler was evidence of defendant's guilt. After a review of the record, it is apparent that Mr. Wheeler adopted his prior testimony, at least insofar as one of the two men who exited from the car made the statement. Consequently, the statement was properly of record and properly referred to in closing argument to the extent that it was adopted. People v. Couch, 49 Mich.App. 69, 211 N.W.2d 250 (1973). We find no reversible error in the prosecution's references to Mr. Wheeler's testimony in his closing argument.

Likewise, the use of the detectives to rebut the story told by the defendant was not improper. Detective Smith had testified during the prosecution's case in chief. Detective Crawford merely supported his further testimony in rebuttal to the contrary testimony offered by the defendant. People v. Rosemary Gibson, 71 Mich.App. 543, 248 N.W.2d 613 (1976).

AFFIRMED.

KELLY, Judge (concurring).

I concur in the majority opinion, but take this opportunity to qualify my opinion in People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669 (1979), concerning the admissibility of blood type evidence in criminal prosecutions.

Two cases in this Court have recently held blood type evidence admissible. In People v. Spencer, 93 Mich.App. 605, 286 N.W.2d 879 (1979), a case decided[102 MICHAPP 163] only three months after Sturdivant, the Court cited prior cases which admitted such evidence, "without comment", as the basis for its decision. In a more recent decision, People v. Horton, 99 Mich.App. 40, 297 N.W.2d 957 (1980), the Court held:

"Neither are we persuaded by the Sturdivant opinion's attempt to distinguish (People v. Gillespie, 24 Ill.App.3d 567; 321 N.E.2d 398 (1974)) from its own case which, like the case at bar, involved a showing that one of the population of 'nonsecretors' was connected with a crime. In Gillespie, evidence was admitted to show that a burglary was committed by a person having blood characteristics occurring in only 2.7% of the black population. The panel in Sturdivant considered that the great 'specificity' of the evidence in Gillespie distinguished it from the 80%/20% grouping shown by the secretor characteristic.

"If established data such as this is to be used at all, we believe that the statistics themselves are of no significance. As the population group connected with a crime grows larger, the probative force of that connection will decrease accordingly. As observed in (State v. Thomas, 78 Ariz. 52, 275 P.2d 408 (1954)):

" 'To exclude evidence merely because it tends to establish a possibility, rather than a probability, would produce curious results not heretofore thought of.' 78 Ariz. 52, 64, 275 P.2d 408.

"We conclude that deposits of blood and other identifiable bodily substances do not differ from other pieces of physical...