People v. Wilson, Docket No. 78-4984

Decision Date22 April 1980
Docket NumberDocket No. 78-4984
Citation293 N.W.2d 710,96 Mich.App. 792
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Erwin Clifton WILSON, Defendant-Appellant. 96 Mich.App. 792, 293 N.W.2d 710
CourtCourt of Appeal of Michigan — District of US

[96 MICHAPP 794] David M. Lawson, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief App. Asst. Pros. Atty., Counsel, Lawrence J. Bunting, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BEASLEY and CYNAR, JJ.

DANHOF, Chief Judge (On Rehearing).

We granted the defendant's application for rehearing 95 Mich.App. 93, 290 N.W.2d 89 in this case to consider whether our original opinion incorrectly suggests that in an appeal from a criminal trial the prosecution is without responsibility to preserve its trial exhibits and to produce them for review in this Court.

At issue is an exhibit consisting of a stack of nine "mug shots" from which the victim selected the defendant's photograph in a pretrial identification procedure. The procedure and the victim's in-court identification of the defendant were presented at trial without protest. The defendant unsuccessfully objected to the prosecution's subsequent[96 MICHAPP 795] offer of the photographs themselves, on the ground that the photograph of the defendant bore a mark that singled it out from the others in the stack.

The defendant's brief on appeal challenged the admission of the array but did not indicate that it had not been made available to appellate counsel or this Court. After the briefs of both parties had been filed, our staff sought the exhibit from the trial court and from the prosecutor. The search led to the investigating police agency, which was able to produce six of the photographs that had comprised the exhibit. The six photographs were forwarded to us by the prosecutor; among the three missing photographs was that of the defendant. It soon became apparent that the defendant's photograph was irretrievably lost. Attached to the defendant's application for rehearing are copies of letters written about this time by the defendant's appellate counsel to the police agency and the prosecutor, requesting production of the missing photographs.

The trial court had treated the defendant's objection to the admission of the "suggestive" array as an attack on the admissibility of the identification testimony as well, and the issue was presented in this posture on appeal. We wrote in our original opinion: "Pressing this issue on appeal, having apparently made no effort to produce the array for our inspection, the defendant asks this Court to substitute its assessment of the unseen photographs for the informed judgment of the trial court. This we will not do."

The defendant asserts that he made strenuous efforts to secure the array for us and that the preservation of the exhibit was exclusively the duty of the prosecution.

[96 MICHAPP 796] The answer to the defendant's claim lies in GCR 1963, 812.4:

"Within 20 days after filing of claim of appeal, attorneys for appellant or appellee having possession of any exhibits offered in evidence shall file them with the clerk for transmission to the Court of Appeals, as part of the record on appeal, unless by stipulation of counsel, or order of the trial court, it is provided that they shall not be transmitted, or that copies or summaries or excerpts shall be transmitted in lieu thereof, and provided further, that photostatic copies may be filed in lieu of originals of any exhibits, unless the trial court shall otherwise require. Upon final disposition of the case, such exhibits shall be returned to the persons who filed them."

This rule is mandatory in its direction that exhibits be filed. See People v. Drake, 64 Mich.App. 671, 236 N.W.2d 537 (1975). 1 Because the prosecutor failed to file his exhibit with the trial court, the primary legal responsibility for their absence from the record is his.

We are aware that the rule refers to "attorneys * * * having possession of any exhibits", and that the record does not show whether, when the filing deadline passed, the prosecutor had the photographs in his possession. However, he has assumed, we believe correctly, that the rule required him to make every effort to preserve his exhibit until the period for filing the defendant's claim of appeal had passed.

Failure to observe this mandate is a serious omission, even where, as here, there is no sign of improper motive on the part of the prosecutor. [96 MICHAPP 797] Insofar as our original opinion implied that the defendant's then-apparent failure to seek the exhibit for our inspection impaired his right to review of his claim on appeal, we correct it here. The court rule makes it clear to us that consideration of a defendant's appeal may not be precluded by his failure to produce a prosecution exhibit that was never in his possession and was not properly filed with the trial court. 2

An incomplete lower court record can jeopardize the one appeal guaranteed to criminal defendants by Const.1963, art. 1, § 20. However, not every gap in a record on appeal requires reversal of a conviction. When the surviving record is sufficient to allow evaluation of the appeal, the defendant's right is satisfied. See People v. Drake, supra, and People v. Dunn, 50 Mich.App. 529, 213 N.W.2d 832 (1973). Whether a record is sufficient in a particular case will of course depend upon the questions that must be asked of it.

We note at the outset that...

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