People v. Spencer , 93 Mich. App. 605 ( 1979 )

93 Mich. App. 605 (1979) 286 N.W.2d 879

PEOPLE
v.
SPENCER

Docket Nos. 78-1024, 78-1025.

Michigan Court of Appeals.

Decided October 17, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

Jack Jaffe and Howard Hertz, for defendant.

Before: J.H. GILLIS, P.J., and BEASLEY and R.M. RANSOM,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of two counts of criminal sexual conduct in the third degree, MCL 750.520d; MSA 28.788(4), and one count of assault with intent to commit criminal sexual conduct, MCL 750.520(g)(1); MSA 28.788(7)(1). He was sentenced to prison terms of 3 to 15 years on the first two counts and 3 to 10 years on the assault count. Defendant appeals as of right raising two issues for our consideration.

Defendant first contends it was error to admit into evidence certain clothing which was seized without a search warrant.

The police arrested defendant on October 12, 1977, and took him to the police station. The arresting officer, believing defendant's underwear contained evidence, ordered defendant to disrobe and took his undershorts. Chemical analysis revealed blood stains of blood type A as well as seminal fluid ascertained to have come from a person with blood type A. Both defendant and the complaining witness had blood type A. Moreover, the complaining witness testified she started menstruating heavily immediately after defendant had intercourse with her.

In United States v Edwards, 415 U.S. 800; 94 S. Ct. 1234; 39 L. Ed. 2d 771 (1974), the defendant was arrested for attempted breaking and entering. The attempted entry had been made through a wooden window leaving paint chips on the window sill and screen. The defendant's clothes were seized the morning after the arrest and examination revealed paint chips matching samples taken from the window.

In upholding the validity of the warrantless seizure, the Court stated that the police were entitled to take any evidence of the crime in his immediate possession, including his clothing. 415 U.S. at 806. The Court also noted that the police had probable cause to believe that the articles of clothing were themselves material evidence of the crime for which he had been arrested.

Defendant's arguments that Edwards is distinguishable from the instant case are without merit.

Defendant also contends that even if the underpants were legally seized, admission of laboratory analysis of the blood type into evidence should have been denied since the evidence was more prejudicial than probative. Defendant argues that the blood sample on the underpants, although of the same type as the complainant's, was an extremely common type.

We do not believe the trial court abused its discretion in admitting this evidence. While evidence of matching blood types has been held inadmissible to prove paternity, People v Nichols, 341 Mich. 311; 67 NW2d 230 (1954), Shepherd v Shepherd, 81 Mich. App. 465; 265 NW2d 374 (1978), it has been admitted in criminal cases without comment. See, e.g, People v Lapsley, 26 Mich. App. 424; 182 NW2d 601 (1970), People v Terry, 80 Mich. App. 299; 263 NW2d 352 (1977), People v McNeill, 81 Mich. App. 368; 265 NW2d 334 (1978). In addition, in Anno: Blood Grouping Tests, 46 ALR2d 1000, it is reported that the results of blood grouping tests are generally admissible in criminal prosecutions on the question of whether particular blood was the blood of a specified individual, although insufficient to establish identity in the absence of additional evidence on the issue. The fact that the blood type is a common one affects the weight and not the admissibility of the evidence.

In the instant case there was evidence that the complaining witness started menstruating immediately after the act and she identified the defendant as the perpetrator of the act. Under these circumstances we do not believe the trial court abused its discretion in admitting the evidence.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.