People v. Florinchi
People v. Florinchi
Opinion of the Court
Defendant was convicted by a jury of second-degree murder, MCL 750.317, MSA 28.549, and was sentenced to a term of 15 to 25 years imprisonment. He appeals as of right, alleging several errors in the proceedings below.
Defendant was charged with the murder of one Jack Vincent, whose body was found near his muddy and blood-bespattered automobile in Rosevear Park in Owosso on the morning of April 13, 1975. Death apparently resulted either from multiple stab wounds to the chest and back, caused by a large knife, or from crushing of the chest and pelvis, possibly the result of having been run over by an automobile. The muddy area in which the body was found bore numerous automobile tire tracks, and blood of the same type as that of the
In the victim’s automobile were found a jacket containing a small amount of money, the victim’s wallet, and a hunting knife identified as belonging to the victim and stained with blood of the same type as that of the victim. Also found in the mud near the body was a .38-caliber revolver similar to one seen in the possession of the victim on the evening before the body was discovered. Defendant’s fingerprints were found in the victim’s automobile, on both the inside and outside of both car doors.
Rebecca Daniels testified that she danced with defendant at a local bar shortly after midnight on April 13, and accompanied him to a table where the victim was sitting, where defendant attempted to enlist her aid in obtaining money from the victim. She also testified that the victim asked her to marry him. She testified that the victim offered to sell defendant something and that the two men went outside to look at the object for sale, at which time she left the table to join other friends.
Defendant testified that he had been in the company of the victim and Miss Daniels, but denied having said he wanted to get money from the victim. He testified that the victim offered to sell him a gun, and that they went to the victim’s automobile to see it, both men entering through the left door. He testified that when the bar closed, the victim offered him a ride, which he accepted. At that time he entered the automobile through the right side door. According to the defendant, the victim drove him to another bar, where they parted company. The bar being closed, defendant walked home.
The remaining evidence linking defendant with
Other testimony at trial revealed that the victim had been in another local bar earlier on the evening before his death, where he offered to sell a pistol to the bartender and several customers. He also asked a woman patron, one Patricia Shane, to go out with him and to marry him, actions which displeased Ms. Shane’s boyfriend.
There was also evidence that the victim was engaged in a close relationship with one Carolyn Donlan, a relationship of which Mrs. Donlan’s husband had recently become aware. The victim had in fact called Mrs. Donlan and arranged to meet her early in the evening, but failed to keep the appointment. The defense called two witnesses who testified that the victim had on two occasions told them that he carried a weapon in anticipation of a fight with Mrs. Donlan’s husband, an encounter which he expected only one of them to survive.
Prior to trial, defendant filed a motion for discovery of all reports of named police officers and all laboratory reports. The motion was denied by the court on the basis of representations by the prosecutor that he had furnished all such reports to defense counsel.
At trial, it soon became evident that there existed police reports which had not been furnished to defense counsel. Most notably, it was revealed during cross-examination of Detective Bart Barnes that defense counsel had not been furnished certain documents, known as tip sheets, on which the
It has long been the law in this state that a defendant is entitled to have produced at trial all the evidence bearing on his guilt or innocence which is within the control of the prosecutor, including prior statements of witnesses which may be used for impeachment, People v Dellabonda, 265 Mich 486; 251 NW 594 (1933), People v Davis, 52 Mich 569; 18 NW 362 (1884).
The right to pretrial discovery in criminal matters, however, is of more recent origin. At common law, defendant had no right to discover any evidence held by the prosecutor, People v Johnson, 356 Mich 619; 97 NW2d 739 (1959). Considerations of due process and fundamental fairness, however, led the courts to develop a rule that pretrial discovery of things admissible in evidence was a matter within the sound discretion of the trial court, People v Johnson, supra, People v Mara
The United States Supreme Court in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), held that suppression by the prosecutor of evidence favorable to an accused is a violation of due process. Discussing the limits of the prosecutor’s duty, this Court said in People v Eddington, 53 Mich App 200, 206; 218 NW2d 831 (1974):
"While hindsight eases appellate courts’ judgments as to what is favorable evidence, neither prosecution, defense, nor trial judges are so blessed. Favorable evidence is elsewhere defined as all 'evidence which * * * might have led the jury to entertain a reasonable doubt about * * * guilt’. Levin v Katzenbach, 124 US App DC 158, 162; 363 F2d 287, 291 (1966). The test should be liberally construed especially when 'substantial room for doubt’ exists as to the effect disclosure might have. United States v Bryant, 142 US App DC 132, 138; 439 F2d 642, 648 (1971).”
Accord, People v Stark, 73 Mich App 332; 251 NW2d 574 (1977).
In the case now before us, defendant’s motion for discovery was denied by the trial court in an order which noted that the prosecutor had assured the court that all police reports had already been turned over to the defense. Thus, technically, the prosecutor was under no compulsion to afford defense counsel access to potentially favorable evidence prior to trial.
. The prosecutor argues that tip sheets are not police reports and, further, that defendant has no
Defendant next contends that the trial court erred in denying his motion for a change of venue. Such a motion is addressed to the discretion of the trial court, and its decision will not be set aside absent a clear showing of abuse of discretion, People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975). The burden of establishing that prospective jurors have been influenced by pretrial publicity is on the party seeking the change of venue, and merely showing that jurors have been exposed to pretrial publicity is not in itself sufficient, People v Stockard, 48 Mich App 680; 211 NW2d 62 (1973), aff’d, 391 Mich 481; 219 NW2d 68 (1974), People v Moore, 51 Mich App 48; 214 NW2d 548 (1974).
The record does not reveal any abuse of discretion in the denial of a change of venue. Pretrial publicity, although extensive, was not inflammatory or biased, People v Garland, 44 Mich App 243; 205 NW2d 195 (1972), rev’d other grounds, 393 Mich 215; 224 NW2d 45 (1974). Moreover, exten
Defendant has failed to preserve his claim of error regarding improper rebuttal testimony of a police officer by timely objection at trial. Defendant’s other claims of error are without merit.
Reversed and remanded for a new trial.
Dissenting Opinion
(dissenting). I concur in my brother Heading’s opinion on all issues except that pertaining to the prosecutor’s failure to disclose all records and witnesses to defense counsel prior to trial.
The trial court ordered the prosecution to submit a complete list of witnesses as well as all the admissible police reports to defendant. To the best of its ability, the prosecution did so. I would only note that I share the prosecution’s position that witnesses who were not a part of the res gestae of the crime are not required to be endorsed or produced by the prosecution and that internal police "tip sheets” are not discoverable as official "police reports”. See, regarding res gestae witnesses, People v Harrison, 44 Mich App 578, 585-586; 205 NW2d 900 (1973). See, regarding internal departmental police "tip sheets”, People v Walton, 71 Mich App 478, 485; 247 NW2d 378 (1976).
Beyond these matters, the trial court also ordered a private investigation to be conducted by an investigator hired by defendant and paid by Shiawassee County. This investigation occurred and provided defendant valuable information. Generally, in fact, defendant was given wide latitude in regard to all he requested.
Defendant was allowed to develop completely his
In short, defense counsel obtained every advantage for his client which a very strong prosecution, admittedly based on circumstantial evidence, would permit. I thus find no error in the trial court’s consideration and handling of this case. I would vote to affirm defendant’s conviction.
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