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upholding the trial court's reading of an adverse inference instruction when the police erased a tape recording of a police radio broadcast
Summary of this case from People v. CressOpinion
Docket No. 24199.
Decided January 27, 1976.
Appeal from Wayne, Thomas Roumell, J. Submitted January 16, 1976, at Detroit. (Docket No. 24199.) Decided January 27, 1976.
Ralph Hardaway was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Barry A. Siegel, Assistant Prosecuting Attorney, for the people.
Anthony C. Lutostanski, for defendant.
Before: McGREGOR, P.J., and BASHARA and ALLEN, JJ.
Defendant, charged with breaking and entering the Allstate Auto Wash, a business establishment in Dearborn, Michigan, with intent to commit larceny therein, MCLA 750.110; MSA 28.305, was found guilty by a jury and sentenced to a term of 5 to 10 years in prison. On appeal he raises an issue of first impression, viz. was defendant denied his right to meaningful cross-examination when tapes of police broadcasts made at the time of the offense were erased prior to trial based on a police departmental policy of erasing such tapes within 30 days. Defendant also advances two other grounds for reversal which we briefly discuss in advance of the issue of first impression.
Citing People v Sullivan, 392 Mich. 324, 334; 220 N.W.2d 441 (1974), defendant contends reversible error occurred because the trial court substantially departed from the American Bar Association standard jury instructions. We reject this claim. Defendant stated he was satisfied with the instructions given and thus the issue is not preserved on appeal. People v Teaque, 57 Mich. App. 347; 225 N.W.2d 761 (1975), People v Szymarek, 57 Mich. App. 354; 225 N.W.2d 765 (1975). Even if defendant had raised an objection, we would find no error for the multiple reasons noted below.
People v Sullivan, supra, was primarily directed at the coerciveness of an "Allen" type charge given after the jury deadlocked. In the instant case the charge was given before the jury retired but later reported it was unable to reach agreement. As to the "Allen" type charges given before the jury retired People v Sullivan did not hold per se error but held that error would be found only where the charge was a "substantial" departure from the standard ABA jury instruction. In this connection we find that contrary to defendant's contention the trial court did instruct that (a) the verdict must be unanimous, (b) the jury should listen to one another's opinion (c) the jury should arrive at the truth as required by oath. Admittedly, the trial court did not explicitly instruct that no juror should surrender his honest conviction solely because of the opinions of other jurors but the court did include instructions that the jury should arrive at their verdict strictly on the basis of the evidence. A charge of like wording was found to be without error in People v Coleman, 21 Mich. App. 193; 175 N.W.2d 308 (1970). Thus we do not find the charge as given a "substantial" departure from the ABA standard jury instructions.
Defendant was charged as a principal in a breaking and entering. When charging the jury, the trial judge stated that defendant could be found guilty if he was found to have aided or abetted. Since other persons were involved in the offense, defendant claims the charge was error. Again, we note that exception was not taken to the instructions and consequently the issue is not preserved on appeal. Additionally, we find that this same objection was rejected by this Court in People v Lamson, 44 Mich. App. 447; 205 N.W.2d 189 (1973). See also People v Dockery, 20 Mich. App. 201; 173 N.W.2d 726 (1969). Indeed, the record reveals facts upon which the jury could find defendant guilty either as a principal or as an accessory or as both.
The trial judge charged the jury that: "Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, commits, aids or abets in its commission, may thereafter be prosecuted, indicted, tried and on conviction, shall be punished as if he had directly committed such offense."
We now turn to the main issue. Three police officers arrived at the auto wash while the offense was taking place. Officer LaFrinere saw one man (later identified as James Price) jump from a rear window. The officer gave chase but was unable to apprehend this man. Officers Palka and Szczygiel testified they saw defendant in the car wash building crouching by a cigarette machine. Moments later Szczygiel saw defendant and another man run out of the rear of the building heading south on the sidewalk whereupon Szczygiel made two radio broadcasts in which he described defendant as a black male with a pulled down hat and a short brown jacket. The broadcast was heard by a fourth officer some distance away who, later, while driving through a restaurant parking lot, saw a man matching defendant's description. Defendant was then apprehended. Counsel for defendant subpoenaed the tapes prior to trial but found they were unavailable by reason of the routine departmental policy to erase broadcast tapes 30 days after their making. Over the prosecutor's strenuous objection the court gave an instruction favorable to defendant as follows:
"When court reconvened, the court and defense counsel were informed that said tapes had been erased after thirty days of storage, per police department policy and the supervisor of communications so testified. The prosecution has failed to produce subsequent to subpoena the tape, a police broadcast allegedly identifying the defendant. You may infer that this evidence could have been adverse to the prosecution."
Defendant argues that despite the favorable instruction, defendant was prejudiced since Szczygiel's testimony of seeing two men was inconsistent with LaFrinere's testimony of seeing one man and also because a playback of the tapes might disclose that Szczygiel identified defendant as wearing something other than a pulled down hat and a short brown jacket. In support of this claim of error, counsel cites Birkla v State, ___ Ind ___; 323 N.E.2d 645 (1975), People v Poe, 388 Mich. 611; 202 N.W.2d 320 (1972), and People v Bendix, 58 Mich. App. 276; 227 N.W.2d 316 (1975).
The argument is implausible and the cases cited are distinguishable. Had Szczygiel's broadcast of defendant's description been different than that to which he testified at trial, the officer who overheard the radio broadcast would have had no reason to arrest defendant. If defendant were prejudiced by the tape erasure, he was no more prejudiced than the prosecution which was deprived of corroborative testimony once defendant raised the issue. No claim is made that the erasure was deliberately designed to deprive defendant of evidence in this particular case. Furthermore, defendant gained an advantage in that the trial court's instruction was given despite strong objections by the people.
Poe, supra, holds only that the police should retain their original written notes and records, especially those made at the scene. In the instant case we are not dealing with written notes. Birkla, supra, holds that a prosecutor may not intentionally destroy evidence which he alone decides is immaterial. The decision to erase the tapes was not made by the prosecutor but was part of routine departmental policy. Bendix, supra, though not directly in point is more favorable to plaintiff than defendant. There, a box allegedly containing the stolen items had been returned by the police to the store from which the items had been stolen. Defendant claimed the prosecutor's failure to produce the evidence constitutes suppression of evidence. In affirming the conviction, this Court held that since the loss of the evidence was not intentionally done by the police there was no error. In the instant case the tapes were not intentionally destroyed by the police for the purpose of erasing evidence in defendant's forthcoming trial. See also United States v Coplon, 185 F.2d 629, 637 (CA 2, 1950).
Judge Learned Hand held that where certain telephone "taps" made in the government's case against Judith Coplon were destroyed in accord with a usual practice of the government, no error was committed.
Affirmed.