People v. Gorka ( 1969 )

381 Mich. 515 (1969) 164 N.W.2d 30

PEOPLE
v.
GORKA.

Calendar No. 5, Docket No. 51,735.

Supreme Court of Michigan.

Decided February 3, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Walter A. Kurz, for defendant on appeal.

T.M. KAVANAGH, J.

January 20, 1964, defendant Gorka and Henry Mosden were jointly tried and found guilty of armed robbery^[1] by a jury in recorder's court. Each was sentenced to a term of 10 to 20 years.

March 2, 1964, the attorney who had been trial counsel for Mosden became counsel for both Mosden and defendant Gorka in the postconviction proceedings and filed a motion for a new trial.

April 6, 1964, defendant Gorka and Mosden, acting in propria persona, filed a motion to obtain transcripts and trial records.

June 3, 1964, defendant, acting in propria persona, filed a motion for bond pending appeal.

August 4, 1964, the trial court denied the in propria persona motions for assistance and free transcripts pending appeal. The same day the trial court denied defendant Gorka's in propria persona motion for bail pending appeal.

August 28, 1964, the trial court denied defendant's motion for new trial filed March 2, 1964.

September 30, 1964, this Court, having before it on appeal defendant's motion for appointment of counsel and for transcript, remanded the matter to recorder's court to enter an order providing both Gorka and Mosden with counsel and with such portion of the trial transcript as counsel may require for proper postconviction proceedings.

October 28, 1964, the trial court appointed Paul R. Jackman as legal counsel for both Gorka and Mosden. An appearance, dated October 8, 1964, was filed by attorney Jackman on October 28, 1964.

February 9, 1965, defendant Mosden, acting in propria persona, filed a motion to compel compliance of the court reporter with the court order directing furnishing of transcript.

March 10, 1965, the trial judge, upon motion of the court reporter, ordered that the time within which the transcript was to be furnished be extended to and include June 5, 1965.

June 5, 1965, the court reporter petitioned the trial court for a further extension of time within which to furnish the transcript. The trial court ordered an extension to include August 2, 1965.

No further extensions were given, but it was not until October 22, 1965, that the court reporter filed with the clerk a notice of filing of the transcript of the record on appeal. The record discloses an affidavit of mailing of this notice to Attorney Jackman, but no notice was sent to the defendants, who had been acting in propria persona.

December 14, 1965, Attorney Jackman filed a consent and notice of substitution of attorney. On this same document, Attorney Walter A. Kurz entered his appearance as attorney for defendant Gorka. Notice of substitution of attorney was sent to appellate counsel for the people.

January 17, 1966, Attorney Kurz filed an appearance as attorney for defendant Gorka for postconviction procedures and appeal.

October 26, 1966, Attorney Kurz filed an application for leave to file delayed appeal in the Court of Appeals. Accompanying the application was one for setting of bail pending disposition of appeal.

January 14, 1967, the Court of Appeals denied the application for delayed appeal for the reason that merit is not shown on the grounds presented. Application for rehearing was denied by the Court of Appeals on February 24, 1967.

Defendant Gorka is here on leave granted by this Court on June 8, 1967, 379 Mich. 768.

On appeal in this Court, defendant Gorka contends he was unfairly and unconstitutionally denied and deprived of his timely, adequate, and effective right of appeal, appellate processes, assistance of trial and appellate counsel, and furnishing of trial transcript. He further contends that the trial court, court stenographer, court-appointed trial and appellate counsel, and the Michigan Court of Appeals violated and denied defendant his constitutional rights in that the trial court and court-appointed counsel wrongfully failed to inform him of his absolute right to appeal his conviction and, as an indigent, to have trial counsel and transcript furnished at State expense.

Defendant Gorka also contends that his court-appointed counsel wrongfully failed or refused to file the necessary claim of appeal within 60 days of entry of order appointing him and thereafter failed or refused, for approximately one year, to file and process any appeal, without good cause or reason shown, even though defendant demanded he file plenary appeal.

Defendant further contends that the trial court stenographer obtained and took improper and unauthorized extensions of time to file the trial transcript and did not file said trial transcript until approximately one year after entry of order therefor; also, that the Michigan Court of Appeals wrongfully failed and refused to grant or restore to defendant his absolute right to appeal his conviction, lost through no fault of his own.

We deplore the delays in providing defendant Gorka with a trial transcript, the dilatoriness of certain appellate counsel, and the unnecessary waste of time and energy in perfecting a plenary appeal. However, to a certain extent defendant Gorka hindered his own progress by the numerous in propria persona motions which conflicted with the course of appellate procedures dictated by his counsel.

Nevertheless, the defendant has had a full review of his case in this Court. The circuitous appellate route in this case, caused in part by the dilatoriness and violations of court rule by the court reporter and counsel, has not diminished the right of appeal. He has received from this Court the same appellate review he would have received from the Court of Appeals under an appeal of right. The fact that defendant, on his appellate route, encountered numerous procedural detours, some of his own making, does not compel this Court to grant him a new trial.^[2]

The cases cited by the defendant are not applicable to the instant case. Ellis v. United States (1958), 356 U.S. 674 (78 S. Ct. 974, 2 L. Ed. 2d 1060); and Anders v. California (1967) 386 U.S. 738 (87 S. Ct. 1396, 18 L. Ed. 2d 493), require that an appointed counsel act truly as an advocate for the defendant and not merely as amicus curiae to the court. On appeal to this Court defendant was actively and commendably represented by appellate counsel. Entsminger v. Iowa (1967), 386 U.S. 748 (87 S. Ct. 1402, 18 L. Ed. 2d 501); Eskridge v. Washington State Board of Prison Terms and Paroles (1958), 357 U.S. 214 (78 S. Ct. 1061, 2 L. Ed. 2d 1269); Lane v. Brown (1963), 372 U.S. 477 (83 S. Ct. 768, 9 L. Ed. 2d 892); and Hardy v. United States (1964), 375 U.S. 277 (84 S. Ct. 424, 11 L. Ed. 2d 331), require that a trial transcript be provided an indigent defendant. Here, this Court did comply with the Federal authorities and a free transcript was furnished to the defendant after a regrettably long delay. Hamilton v. Alabama (1961), 368 U.S. 52 (82 S. Ct. 157, 7 L. Ed. 2d 114); Wilson v. Rose (CA 9, 1966, 366 F2d 611; Whitaker v. Warden, Maryland Penitentiary (CA 4, 1966), 362 F2d 838; and Jones v. Cunningham (CA 4, 1963), 313 F2d 347, express the rule that under the Sixth Amendment to the Federal Constitution "assistance of counsel" means an "adequate and effective" counsel. It appears from the record as a whole that trial counsel^[3] and appellate counsel, although hampered by defendant's independent legal maneuvers, ably and competently represented the accused.

A review of the entire record does not disclose any procedural infirmity which would warrant reversal of the defendant's conviction.

The only substantive issue raised is whether the destruction of the notes of the police officers conducting the surveillance violated the defendant's right of confrontation and cross-examination.

The record discloses that five detectives from the criminal intelligence bureau of the Detroit police department had kept defendant Gorka and codefendant Mosden under surveillance for a period of two hours. During this period of surveillance each of the detectives made handwritten notes of the details of his observation. After the defendants were arrested, the five detectives gathered in one room and, each using his own handwritten notes, made an individual typewritten report detailing the defendants' activities. Each detective thereafter destroyed his handwritten notes. These reports were not offered as evidence by the prosecution, but were used — over objection — by the police detectives at the trial to refresh their memories as to specific details.

The defendant here argues that the systematic destruction of the original notes deprived him of an effective means of cross-examination and of impeaching each witness' testimony.

Research discloses that there is one case which apparently supports the defendant's position. In People v. Betts (1947), 272 App Div 737, 741 (74 NYS2d 791, 794), the police had "bugged" the defendant's telephone and made shorthand notes of incriminating conversations. After incorporating these shorthand notes in a report, the police, by their own admission, destroyed the notes to prevent defendant from using them for cross-examination purposes. At trial the witnesses used the reports to refresh their memories. The New York court, on appeal, held at page 741:

"While the general rule is that any paper whatsoever may be used to refresh the recollection of a witness, provided it actually serves that purpose [citations omitted], where, as here, an officer of the law attempts to refresh his recollection from a writing which purports to be a transcript of original and secondary notes wilfully destroyed by him to frustrate cross-examination, the witness should not be permitted to use such a document to aid him."

The distinguishing factor in Betts, supra, however, is the misdirected zeal of the police officers in wilfully and knowingly suppressing evidence favorable to the defendant. The record in the case before us would not support, and neither does defendant-appellant claim, any wilful suppression of evidence.

There appears to be considerable Federal authority dealing with destruction of fragmentary notes which is contrary to the theory advanced by the defendant. These cases, however, uniformly concern the administration of the Jencks act.^[4]

A review of Michigan authorities discloses only two pertinent criminal cases.

In People v. Hobson (1963), 369 Mich. 189, this Court affirmed the trial court's admission into evidence of a typewritten report composed from surveillance notes which were subsequently destroyed. The main issue decided dealt with the admissibility of the report under the rule of past recollection recorded. The ancillary issue of whether destruction of the surveillance notes deprived defendant of the "best evidence" was disposed of by the Court, upon the authority of People v. Johnson (1921), 215 Mich. 221, stating (pp 193, 194):

"We think the testimony of the officers that the memoranda constituted a correct record, although not exact copies, of their notes together with matter drawn from their memories, qualified them for admission and consideration by the judge as to credibility and accuracy. They were prepared by officers who had personal, firsthand knowledge of the matters recorded in the memoranda and the fact that, in the preparation, the officers referred to their notes to supplement their memories, did not render the memoranda secondary evidence and make them inadmissible."

In People v. Johnson, supra, this Court held that it was not error to permit the prosecuting attorney's stenographer to refresh her memory from the transcript of the defendant's statement rather than requiring only the use of her original notes. The Court stated (p 225):

"The stenographer or any one else who heard the defendant's statement would be competent to testify to what he said; and the stenographer may use her minutes for the purpose of refreshing her recollection as to what the defendant stated."

In People v. Hobson, supra, I joined Justice SOURIS in his dissent criticizing the present police practice of destroying important surveillance notes and holding that such a practice unnecessarily threatens the constitutional safeguards of a fair trial by denying effective cross-examination of witnesses. However, I must accede to the majority of the Court, which held that it was not error to permit the prosecution to have admitted into evidence the typewritten report and that the defendant's constitutional right of confrontation and cross-examination was not impaired by the destruction of the police surveillance notes. For the present at least, this is the law in Michigan.

We hold that the destruction of the original notes by the five detectives did not deprive defendant of an effective means of cross-examination and of impeaching each witness' testimony.

While we find no merit in defendant's arguments, one final matter must be considered by the Court for a proper disposition of this case.

In the companion case of People v. Mosden (1968), 381 Mich. 506, which was separately appealed to this Court, it is alleged that the trial court erred in denying Mosden's application for a new trial based upon newly discovered evidence. This claim is predicated on an affidavit of a Charles Page Blackwell confessing to the commission of the armed robbery for which defendants Mosden and Gorka were convicted.

Upon Mosden's motion, a hearing was held on March 2, 1966, but Mosden was denied the opportunity by the trial court to subpoena witnesses, including Blackwell. The trial judge's opinion denied Mosden's motion because "the matter concerning Charles Page Blackwell was thoroughly investigated by the police and determined to be false." (Emphasis added.)

This Court in its PER CURIAM opinion in People v. Mosden, supra, held that this procedure was not a full and fair evidentiary hearing which squares with due process or the holding in Townsend v. Sain (1963), 372 U.S. 293 (83 S. Ct. 745, 9 L. Ed. 2d 770), and remanded the case to recorder's court for a proper evidentiary hearing.

This question, regarding Blackwell's affidavit confessing to a crime of which both defendants were jointly accused and convicted, was never raised by defendant Gorka either by motion for new trial or on appeal. However, this Court can take judicial notice of the facts and issues presented in People v. Mosden, supra.

To avert any miscarriage of justice, which would necessarily result to defendant Gorka if Blackwell's confession proves to be true, we remand this case to recorder's court for the purpose of permitting defendant Gorka to join in defendant Mosden's motion for new trial. Defendant Gorka shall be permitted to subpoena and bring in all relevant witnesses, including Blackwell, for a full and fair evidentiary hearing to determine whether a new trial should be granted.

DETHMERS, KELLY, and ADAMS, JJ., concurred with T.M. KAVANAGH, J.

T.E. BRENNAN, C.J. (dissenting).

I dissent for the reasons expressed in People v. Mosden, 381 Mich. 506, 513.

BLACK, J., concurred with T.E. BRENNAN, C.J.

T.G. KAVANAGH, J., took no part in the decision of this case.

NOTES

[1] CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797). — REPORTER.

[2] This, of course, does not deny the defendant's contention that the Court of Appeals erred in not granting the application for leave to file a delayed appeal. Under the factual circumstances of this case a serious constitutional problem would have been raised if this Court had not granted leave to appeal. Consideration of a petition to file a delayed appeal is not equivalent to an appeal as of right guaranteed by Const 1963, art 1, § 20. The former requires an affirmative showing that delay was not due to defendant's culpable negligence and that there is merit in the claim of appeal. The latter requires no such affirmative showing. GCR 1963, 806.4.

[3] We seriously question whether a 15-minute consultation with the defendant is an adequate preparation for a trial of a capital case. See Jones v. Cunningham (CA 4, 1963), 313 F2d 347. We cannot, however, condemn trial counsel as being inadequate, absent a clear showing of dereliction which prejudiced the defendant. The record on appeal discloses that trial counsel raised and argued all issues known to him at trial. Although trial counsel did fail to note certain alibi witnesses produced by defendant, this defect was cured at trial by the people in putting the alibi witnesses on the stand.

[4] 18 USC, § 3500.