People v. Wallace

301 N.W.2d 540, 102 Mich. App. 386, 1980 Mich. App. LEXIS 3140

• Court: Michigan Court of Appeals
• Decided: December 15, 1980
• Docket: Docket 43885
• Status: Published

Opinions

D. R. Freeman, J.

Defendant, George A. Wallace, was charged with breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305, and was convicted by a jury on that charge on August 18, 1978. He was sentenced to serve six years eight months to ten years on that charge. After the jury was excused, the prosecution filed a supplemental information charging the defendant as a habitual offender. On November 9, 1978, the defendant was convicted of being a habitual offender, contrary to MCL 769.12; MSA 28.1084. His prior sentence was vacated and he was sentenced to serve 15 to 30 years imprisonment and appeals as of right.

The defendant first contends that his due process rights were violated because a police officer’s original notes of a confession made shortly after the defendant’s arrest were not available at trial. In People v Torrez, 90 Mich App 120; 282 NW2d 252 (1979), this Court quoted the suppression of evidence rule embodied in Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), holding that suppression by the prosecution of evidence favorable to an accused after a request for the information has been made by the defendant violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution.

We are persuaded that the police officer’s notes of the interrogation constitute material evidence in this case. People v Eddington, 53 Mich App 200; 218 NW2d 831 (1974). See also United States v Agurs, 427 US 97, 107; 96 S Ct 2392; 49 L Ed 2d 342 (1976), where the Supreme Court found materiality established by a mere "substantial basis for claiming materiality”. The question as to whether the evidence was favorable to the defendant is not so easily answered, however, because it appears that the notes were either lost or destroyed and thus are not available for review by this Court.

In People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), this Court found the prosecution’s failure to remit certain photographs used in a photographic show-up to be conclusive evidence of defense counsel’s inability to properly cross-examine prosecution witnesses. Because the unavailability of the notes herein possibly inhibited defense counsel’s ability to cross-examine the interrogating officer, such evidence will be viewed as beneficial to defendant.

Because the disputed notes were requested by the defendant prior to trial, the only remaining factor to be considered is whether the government can be held to have suppressed the evidence. At trial, the following colloquy occurred between defense counsel and the police officer who interrogated the defendant.

"Q Who was present in the room when you were talking with Mr. Wallace?

"A Myself and Mr. Wallace.

"Q There was not a stenographer there?

"A No, there was not. We do not employ a stenographer.

"Q There was no one else there taking notes?

"A I was taking notes.

"Q You were taking notes. Do you have those original notes, sir?

"A No, I don’t. I thought I did.

"Q You destroyed them?

"A I don’t know.”

Generally, absent intentional suppression or bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. Still, the government has the duty to preserve relevant evidence and the burden to explain non-production thereof. People v Eddington, supra. Where there was no effort made to preserve the evidence initially, this Court has remanded the matter to the trial court for a determination of the quality of the prosecutor’s conduct and the nature of the lost evidence. People v Anderson, supra. However, once bad faith on the part of the prosecution is shown, suppression is required. People v Albert, 89 Mich App 350; 280 NW2d 523 (1979).

In this case, no intentional suppression or bad faith on the part of the prosecution has been demonstrated. At most, it appears that there was a negligent failure to preserve the officer’s notes. If the formal police report submitted to defense counsel was not materially different from the original rough notes, there would be no violation of the Brady standard. United States v McCallie, 554 F2d 770, 773 (CA 6, 1977), United States v Lane, 479 F2d 1134 (CA 6, 1973). The record, however, does not disclose how comprehensive and inclusive the report is or the extent to which the two documents correspond. As a result, the fact that a police report was filed does not eliminate the Brady due process issue.

The record does not indicate the extent of the efforts that the prosecution undertook to preserve the evidence in question. The duty of disclosure required in Brady operates as a duty to preserve prior to a request for discovery. United States v Bryant, 142 US App DC 132; 439 F2d 642 (1971), People v Eddington, supra. As a result, because there has been no explanation of the failure of the prosecution to preserve the officer’s notes of the confession, Brady requires a remand to determine what efforts the police and prosecution made in initially preserving the evidence. Should prosecutorial bad faith be shown to have been present prior to the defendant’s discovery request, reversal of the defendant’s conviction is appropriate. People v Albert, supra, quoting People v Amison, 70 Mich App 70; 245 NW2d 405 (1976).

The defendant next alleges that reversible error resulted from the inclusion of two convictions, later reversed, in the information charging him as an habitual offender. Our review of the record indicates that, in fact, the information charging the defendant as a fourth offender did not mention these two convictions. Rather, the charge brought against the defendant was based upon other prior offenses. Thus, the defendant’s allegation of error is without merit.

Finally, the defendant, in a motion for peremptory reversal, asserts that his habitual offender conviction violates the standards set out in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), in that he was not charged as a habitual offender until after his conviction on the underlying charge. We agree. Accordingly, defendant’s habitual offender conviction is reversed and his enhanced sentence vacated. The original sentence for the underlying felony is hereby reinstated.

The cause is remanded for an evidentiary hearing. If the prosecutor is able to adequately explain the nonproduction of the interrogating officer’s notes, then the breaking and entering conviction should be affirmed. If the prosecutor is unable to explain the nonproduction, or if bad faith or intentional destruction is demonstrated, a new trial should be ordered with all evidence of the interrogation suppressed. People v Albert, supra. We retain jurisdiction.