People v. Kurzawa

509 N.W.2d 816, 202 Mich. App. 462

• Court: Michigan Court of Appeals
• Decided: November 15, 1993
• Docket: Docket 140038
• Status: Published

Opinions

Michael J. Kelly, P.J.

Defendant was charged with open murder in connection with the death of Cynthia Schmidt eleven years after she died. Following a jury trial, defendant was convicted of accessory after the fact to murder, MCL 750.505; MSA 28.773; MCL 767.67; MSA 28.1007. On April 22, 1991, defendant was sentenced to serve forty to sixty months in prison. Defendant appeals as of right. We affirm.

Defendant was originally charged with open murder. The jury was instructed regarding the offenses of first- and second-degree murder, aiding and abetting, and, pursuant to the request of the prosecution, accessory after the fact to murder. Defendant did not object to the instructions, including those for the lesser included offenses. The jury convicted defendant of being an accessory after the fact. Following the jury’s verdict, but before sentencing, defendant moved for dismissal, asserting that the trial court lacked jurisdiction to sentence him because the period of limitation had expired for the offense of which he was convicted before he was charged with the greater offense. The prosecution claimed that defendant waived the defense when he failed to raise it at trial and when he failed to object to the jury instructions. The trial court ruled that the statute of limitations defense was waived by defendant’s failure to raise it at or before trial.

i

Defendant’s first claim of error, lack of access to a material witness and denial of his right of confrontation, turns on the court’s refusal to order the prosecution to provide defendant with the home address of a witness. While refusing to order disclosure of the witness’ home address, the court did order that arrangements be made for a meeting between the witness and defendant’s investigator at a neutral location. We hold that a sufficient reason existed to warrant nondisclosure of the home address. People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976). The investigator met with the witness after the ruling, and defense counsel presented no further objection before the lower court, or any indication that an inadequate opportunity had been provided to secure the information defendant needed to obtain the background information he sought. The witness had previously lived with defendant in Florida, and, presumably, defendant received the information he needed to conduct whatever investigation was necessary.

ii

Defendant next contends the trial court erred when it refused to suppress samples from his beard obtained from defendant pursuant to a search warrant. Defendant contends the affidavit in support of the warrant was not signed or dated and contained false information. The trial court opined that the clippings or combings of facial hair taken from defendant did not constitute a search within the meaning of the United States or Michigan Constitutions and that, therefore, no warrant was required. We find no abuse of discretion or error requiring reversal. People v Rankins, 81 Mich App 694; 265 NW2d 792 (1978). We also find no error in the expert hair analysis testimony and follow the precedent of People v Vettese, 195 Mich App 235; 489 NW2d 514 (1992).

in

We likewise find no error requiring reversal in the admission of a pipe wrench as a facsimile of the murder weapon and find no abuse of discretion. People v Watkins, 176 Mich App 428; 440 NW2d 36 (1989). Furthermore, it is obvious that the jury did not use the testimony regarding the pipe wrench as evidence that the defendant inflicted any blows upon the deceased. If there was any error in the admission of the facsimile, it was harmless beyond a reasonable doubt.

iv

Finally, defendant contends that the trial court lacked jurisdiction to sentence him because the statute of limitations for the offense of accessory after the fact had barred prosecution for that offense before he was charged in the instant case. The offense of which defendant was convicted, accessory after the fact, is a felony punishable by imprisonment for five years. MCL 750.505; MSA 28.773; MCL 767.67; MSA 28.1007. In People v Allen, 192 Mich App 592; 481 NW2d 800 (1992), this Court held that the statute of limitations was waivable. If facts are in dispute, the question whether a period of limitation has expired is a question for the jury. People v Price, 74 Mich 37; 41 NW 853 (1889). Federal law is in accord. See United States v Del Percio, 870 F2d 1090 (CA 6, 1989).

Defendant did not object to the trial court’s instructions with regard to the lesser included offense of accessory after the fact. Furthermore, it is not clear that a challenge would have been successful because no factual record exists regarding the tolling of the period of limitation during defendant’s absence from the state. See MCL 767.24; MSA 28.964. It appears that the trial court was of the opinion that defendant’s decision not to press the statute of limitations challenge was trial strategy in view of the more serious charges of first- and second-degree murder and aiding and abetting. It was only after the verdict and dismissal of the jury that defendant moved to dismiss the charge of accessory after the fact and prohibit the court from sentencing him on the contention that the period of limitation had run with regard to the offense of accessory after the fact. Given this Court’s ruling in Allen, supra, pp 598-602, that the statute of limitations defense is a nonjurisdictional, waivable affirmative defense, we find no error in the trial court’s denial of defendant’s motion to dismiss. Defendant’s failure to raise the defense before or during trial resulted in waiver.

Affirmed.

Weaver, J., concurred.