People v. Wesley
People v. Wesley
Opinion of the Court
Defendant was convicted as charged of felony murder, MCL 750.316; MSA 28.548, and kidnapping, MCL 750.349; MSA 28.581 by a jury. He was sentenced to life in prison for felony murder and received no sentence for the
This prosecution arose from an incident in a bar parking lot in Flint. Two men approached each side of a car in which two women sat with the car windows rolled down. The men grabbed the women through the windows. One woman escaped and ran for help. The other was driven five blocks from the bar by the two men, a struggle ensued, a shot was fired, and the victim was found dead.
Defendant asserts several claims of error which he contends require reversal. We do not agree.
The trial court determined at the defendant’s Walker
The corpus delicti of the crime was clearly established independently of and prior to the admission of the defendant’s statement into evidence. The prosecution had proven that the victim had been shot and had died prior to the admission of the statement.
Defendant next claims error in the trial judge’s admission of expert evidence relating to identification of the defendant by means of a fingernail analysis and comparison. A fingernail was found in the back seat of the car where the crime oc
The Supreme Court in People v Barbara, 400 Mich 352, 364; 255 NW2d 171 (1977), in discussing the admissibility of evidence of results of polygraph tests stated:
" '[Testimony [must be] offered which would indicate that there is at this time a general scientific recognition of such tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.’ People v Davis, 343 Mich 348, 370; 72 NW2d 269 (1955), quoting People v Becker, 300 Mich 562, 566; 2 NW2d 503 (1942).”
Several expert witnesses in Barbara, had had a great deal of personal experience with polygraph operation and analysis, years of personal involvement with polygraph examinations, and testified that results obtained by use of a polygraph were a respected form of evidence. But the Supreme Court held that the testimony of polygraph examiners themselves was not enough.
"While the special record before us establishes that the polygraph is accepted as reliable by polygraphers, it does not establish that polygraph analysis is accepted as reliable by the scientific community. Credentials of the witnesses, although outstanding for polygraph technicians, are not those of scientists. Therefore, unless we depart from the standard Davis/Frye [v United States, 54 US App DC 46; 293 F 1013 (1923)] test for admissibility, defendant has failed to convince us that the polygraph should be admitted into evidence at trial in our State.” Id., 377.
The expert in the instant case is a civilian employee of the Michigan State Police with a specialty in human hair comparisons. This expert testified that he had read of the fingernail identification technique in five forensic journals (two were English and another was German). There were no cases cited where such a technique was admitted as evidence. In a response to questioning about the technique’s general acceptance in the scientific community, the expert responded:
"I personally have talked to a number of people that I know at meetings. My boss, Lieutenant Nassar went to the meeting of the American Society of Crime Laboratory Directors which is a national meeting of all crime directors asking them to examine them, asking the same questions, and the two things arose. One is that everybody — everybody there seemed to be in general agreement within this forensic science community that fingernails were indeed unique and individual, and could be used as evidence. But that no one had ever had a case involving one.”
The expert’s own experience in analyzing and comparing fingernail specimens has consisted of studying his own nail clippings, those of his boss which had been collected since 1972, and those of three other individuals with a "number of samples from each”. We do not find that this expert’s testimony was sufficient to establish "a general
The admission of the testimony regarding the identification of the defendant by use of the fingernail analysis and comparison was error where the evidence did not show a recognition and acceptance of the technique in the forensic community. We find, however, that this error was "harmless beyond a reasonable doubt” based on the overwhelming proofs, not touched by the taint of error, upon which all reasonable jurors could find guilt beyond a reasonable doubt. People v Christensen, 64 Mich App 23; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).
As to the defendant’s contention that he was denied his right to confront witnesses because his codefendant was found to be incompetent to stand trial, causing the trial court to rule that he was incompetent to testify, we affirm the trial court’s ruling. After testimony by an expert witness that clearly demonstrated the codefendant’s incompetency to stand trial, the trial court determined that the codefendant would not have the capacity to knowingly and intelligently waive his Fifth and Fourteenth Amendment rights against self-incrimination. Accordingly, the codefendant was not allowed to testify. The trial court did not abuse its discretion in determining whether the codefendant was competent to testify, MRE 601. This Court on appeal will not disturb the trial court’s findings in the absence of an abuse of discretion. People v Eugene Johnson, 30 Mich App 284; 186 NW2d 94 (1971), lv den 384 Mich 838 (1971), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975), lv den 399 Mich 866 (1977).
There was no showing that the asportation of the victim was merely incidental to the murder which occurred at the end of the five-block journey. Nor was it shown to be incidental to any other offense. People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), People v Otis Adams, 34 Mich App 546; 192 NW2d 19 (1971).
The defendant charges that the instructions given to the jury on the element of asportation did not make it clear to the jury that the requisite asportation for kidnapping must be determined to be independent of any underlying crime. Although one sentence of the instruction indicates "if the underlying crime involves murder, movement incidental to that is generally sufficient to establish a valid statutory kidnapping”, several sentences of the instructions clearly indicate that the asportation had to be separate from the crime of murder. Taken as a whole, we find that the instructions would leave the jury with the correct impression that asportation must be found to have been independent of the underlying offense. Jones, supra, 109.
Finally, the trial court recognized on the record that People v Wilder, 82 Mich App 358, 364; 266 NW2d 847 (1978), prohibited the court from sen
Affirmed in part, and remanded.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Concurring Opinion
(concurring). I concur in the result reached by the majority. However, I disagree with the Court’s conclusion as to the admissibility of defendant’s fingernail for identification purposes.
In People v Tobey, 401 Mich 141, 145; 257 NW2d 537 (1977), and People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), the Supreme Court reaffirmed its reliance on the test for admissibility of scientific evidence espoused in Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923). Under this test, scientific evidence is admissible when the technique gains "general acceptance in the particular field in which it belongs”.
In this case, after reviewing the results of his own limited tests and the more extensive results of tests conducted and reported in various scientific journals as early as 1957, witness Bisbing stated his belief that fingernail identification had gained recognition and acceptance in the field of forensic identification. We have previously held that the
I also write separately to note a possible shift in the United States Supreme Court’s thinking regarding multiple convictions and punishments therefor. In Whalen v United States, 445 US 684; 100 S Ct 1432; 63 L Ed 2d 715 (1980), the Court analyzed a statute governing the imposition of cumulative punishments committed in the District of Columbia. The statute provides:
" 'A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.’” DC Code § 23-112 (emphasis in original).
The High Court majority initially interpreted this provision as a legislative codification of the rule of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), which held that " '[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
"We think that the only correct way to read § 23-112, in the light of its history and its evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed 'shall, unless the court expressly provides otherwise, run consecutively.’ And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.” Whalen, supra, 693. (Emphasis added.)
Thus, the Court has apparently withdrawn from its position in prior cases making constitutionally impermissible the imposition of cumulative punishments for the "same offense”. See North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), citing Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874), and holding that "the constitutional guarantee against multiple punishments for the same offense” requires a defendant, convicted upon retrial, to be given full credit for time served after the original conviction. Under Whalen, a state legislature, despite the restrictions of the Double Jeopardy Clause, would be able to impose cumulative punishments for the
The confusion brought about by Whalen was discussed at some length in a recent opinion of the Delaware Supreme Court, Hunter v State, 420 A2d 119, 130 (Del, 1980). The Delaware Court, interpreting a statute bearing some factual similarity to our own felony-firearm law, noted that it was faced with a question of validity under the Double Jeopardy Clause when the legislature intends multiple punishments for the same offense. The Court held:
"We are of the opinion that the Double Jeopardy Clause was intended to prevent double punishment regardless of the procedural context in which it is found. We can find no sound basis, in Whalen or elsewhere, to exempt the Legislature from adherence to this constitutional doctrine in the instant case. Multiple sentences in the same trial for the same act are equally as abhorrent to the constitutional guarantee, in our view, as multiple sentences for the same act resulting from multiple trials.
"We are not convinced that Whalen controls the instant case in view of the ambiguities contained therein which we find in unexplained conflict with prior double jeopardy principles which we thought settled. We are unwilling to abandon those principles until the United States Supreme Court has more clearly and definitely abandoned them.”
I would join the Delaware Supreme Court in its critical view of the Whalen decision. To suggest on one hand that the Double Jeopardy Clause applies a constitutional ban against cumulative punishments for the same offenses, Pearce, supra, Ex parte Lange, supra, and then to apparently withdraw from this position without specific mention of the prior decisions, Whalen, supra, suggests more
The facts surrounding the instant case are largely parallel to those in Whalen. In effect, proof of the greater offense (felony murder in both instances) would necessarily prove all the elements of the underlying felony (kidnapping in this case, rape in Whalen). Under the Blockburger test, the offenses in either case thus constitute the "same offense”. Until the United States Supreme Court affirmatively disavows its position prohibiting multiple punishments for conduct violative of more than one statute, I would question the validity of a Whalen alternative.
A recent Iowa Supreme Court ruling has criticized the Frye test and announced that it will not be followed. In State v Hall, 297 NW2d 80 (Iowa, 1980), the majority announced four criticisms of the rule summarized at 28 Criminal Law Reporter 1018 (1980), as follows:
"First, the Frye rule imposes a standard of admissibility not required of other areas of expert testimony. Second, the rule appears inconsistent with modern concepts of evidence that allow an expert to testify about any area of knowledge so long as the testimony assists the trier of fact.
*250 "Third, * * * that [the Iowa Supreme Court] has difficulty distinguishing some scientific evidence from nonscientific evidence.
"Fourth, scientific acceptance seems a 'nebulous’ concept since scientists disagree among themselves as to a method’s acceptance.”
The opinion concludes that proffered evidence " 'need not wait an assessment by the scientific community; the foundation evidence of reliability and the inherent understandability of the evidence itself provided sufficient bases for its admission’ ”.
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