People v. Brassell

236 N.W.2d 99, 64 Mich. App. 445, 1975 Mich. App. LEXIS 1282

• Court: Michigan Court of Appeals
• Decided: September 23, 1975
• Docket: Docket 19681
• Status: Published

Opinions

D. E. Holbrook, P. J.

On November 21, 1973, a jury convicted defendant of armed robbery, contrary to MCLA 750.529; MSA 28.797. On January 17, 1974, defendant was sentenced to 8 to 25 years in prison. Defendant has consistently maintained his innocence. He appeals his conviction as of right.

On August 24, 1973, several men robbed a Benton Harbor tavern at gunpoint. Neither the bartender nor any of the patrons who were in the bar at the time of the robbery were able to identify defendant as one of the holdup men. As a matter of fact, one of the witnesses testified that defendant "wasn’t one of them”. While the fingerprints of some of the other suspects were found in the alleged get-away car, defendant’s fingerprints were not found. The only evidence linking defendant to the crime in question was an unsigned typewritten confession. Defendant took the stand in his own behalf, entered an alibi defense, and denied ever making the statements contained in the confession. Defendant admitted having a conversation with the officer in question on the date the confession was allegedly made, but he claims that conversation was restricted to promises of leniency for defendant’s younger brother should defendant decide to make a statement. The question of the admissibility of the conversation was decided at a Walker hearing well in advance of trial; but the admissibility of the conversation is not the subject of this appeal. We are here concerned with the manner in which the purported confession was introduced into evidence.

At trial, the detective who allegedly took the statement from defendant was allowed to read it into the record verbatim under the "past recollection recorded” exception to the hearsay rule. Defendant makes several allegations of error concerning the application of the doctrine of past recollection recorded to the facts of this case. We are constrained to agree with one of defendant’s allegations, and feel that it requires reversal. Defendant correctly contends that a proper foundation was not laid to allow the admission of this statement as evidence as a past recollection recorded. The rule in Michigan is stated in Jaxon v Detroit, 379 Mich 405, 413; 151 NW2d 813, 816 (1967):

"To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.”

Applying the rule in Jaxon, the Michigan Supreme Court in People v Rodgers, 388 Mich 513, 519; 201 NW2d 621, 624 (1972), said:

"The written memorandum was read to the jury. This constituted its admission in evidence. This was error. The writing was prepared by the Detective Taylor, out of court and was not signed by the witness King. The writing was hearsay. It was an extrajudicial statement (by Taylor) offered to prove the truth of the thing said (that King had spoken the words imputed to him).

"There was nothing to prevent Taylor from testifying verbally. He could have related his conversation with King. If he could not recall the conversation, he could have been shown the memorandum to refresh his memory. If he could not then testify without the aid of the memorandum, the written memorandum might then have been introduced in evidence and read to the jury provided a proper foundation was laid.”

Thus, the first requirement in laying a foundation for the past recollection recorded exception is that the witness have no present recollection of the facts. People v Banks, 50 Mich App 622, 625; 213 NW2d 817, 818 (1973). This was never shown in the case before us:

”Q. [by assistant prosecutor]. And do you recall each and every question you may have asked the defendant and each and every answer he gave?

"A. [by police officer Popp]. No, sir, not offhand.

”Q. Do you have a copy of the record you made of that conversation with the defendant with you?

[A. Yes, sir, I do.

"Q. O.K. 1 ask you do you have it with you?

"A. Yes, sir, I do.

”Q. Would you remove it, please?

"A. Yes, sir.

”Q. All right. At this time 1 will ask you to look at that record, officer, and I will ask you whether by looking at it you can recall each and every question and answer just by look at it?

’A. Not just by looking at it, sir, not enough to testify in a court of law.” (Emphasis supplied.)

Obviously, there is a big difference between having no recollection whatever and recalling "each and every question and answer”. Few humans are blessed with total recall. Fortunately, our courts do not demand total recall of witnesses; nor will they allow a document to be read into evidence merely because a witness cannot remember perfectly the conversation the document embodies.

Had it been established that the witness had no recollection of the conversation in question, the next step in laying a foundation would have been to show that a reading of the document would not refresh his memory. The question is not whether a reading of the document will, in the witness’s own opinion, refresh his memory "enough to testify in a court of law”. He should have been questioned in order to determine whether or not be could testify without the aid of the memorandum after he had read it.

Reversed and remanded for a new trial.

Bronson, J., concurred.