People v. Wesley

303 N.W.2d 194, 103 Mich. App. 240, 1981 Mich. App. LEXIS 2698
CourtMichigan Court of Appeals
DecidedJanuary 23, 1981
DocketDocket 47368
StatusPublished
Cited by11 cases

This text of 303 N.W.2d 194 (People v. Wesley) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Wesley, 303 N.W.2d 194, 103 Mich. App. 240, 1981 Mich. App. LEXIS 2698 (Mich. Ct. App. 1981).

Opinions

Per Curiam.

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 [244]*244kidnapping conviction. The defendant appeals as of right.

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 Walker1 hearing that the statement the defendant gave implicating himself was voluntary. Upon an examination of the whole record, we do not find that the court’s determination was clearly erroneous and so will "give deference to the trial court’s findings, especially where demeanor of the witnesses [here, two police officers and the defendant] is important, as where credibility is a major factor”. People v Terlisner, 96 Mich App 423, 431; 292 NW2d 223 (1980), People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969).

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[245]*245curred. The court held a hearing out of the presence of the jury to determine the admissibility of evidence of the comparison of this fingernail with fingernail samples taken from the defendant. The admissibility of a fingernail analysis is an issue of first impression in Michigan and, indeed, in the United States.

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.

[246]*246The Court in People v Tobey, 401 Mich 141, 146; 257 NW2d 537 (1977), refused to accept voiceprint evidence despite the testimony of experts (a professor of audiology and a police officer experienced in the area of audiology who had been a student of the professor’s). The Tobey Court was not persuaded that these witnesses "whose reputations and careers have been built on their voiceprint work, can be said to be impartial or disinterested”.

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 [247]*247scientific recognition of the fingernail identification procedure” or the "degree of certainty” from the use of the fingernail technique that would warrant admissibility. Barbara, supra.

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).

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People v. Wesley
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Bluebook (online)
303 N.W.2d 194, 103 Mich. App. 240, 1981 Mich. App. LEXIS 2698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wesley-michctapp-1981.