People v. Harris

64 Mich. App. 503 (1975)

PEOPLE
v.
HARRIS

Docket No. 20928.

Michigan Court of Appeals.

Decided September 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

Weisenthal, Mindell & Panzer, for defendant.

Before: BRONSON, P.J., and V.J. BRENNAN and D.E. HOLBROOK, JR., JJ.

V.J. BRENNAN, J.

Defendant was convicted on July 2, 1974, in Detroit Recorder's Court of larceny by conversion under $100 in violation of MCLA 750.362; MSA 28.594. He brings this appeal as a matter of right. We affirm.

Defendant was an employee of the Wayne County Road Commission. He was instructed by his supervisor on May 21, 1974, to deliver certain guardrails which had been removed from a section of I-94 to the Wyoming yard of the Wayne County Road Commission. An employee of a private junkyard in Detroit testified that on that day a Wayne County Road Commission truck with two occupants entered the junkyard and sold certain metal guardrails and were given a receipt therefor. When asked by the prosecuting attorney if he saw the person in court who had sold him the guardrails, the witness replied, "I can't identify anybody."

The testimony of an expert witness tended to show that the signature on the receipt was that of the defendant. A police officer testified that, after being advised of his rights, the defendant made an oral confession.

Defendant brings several allegations of error. Defendant contends that plaintiff failed to establish the corpus delicti aliunde the confession, and that the admission of the confession was, therefore, error. Defendant next contends that the receipt from the junkyard was erroneously admitted into evidence because of the absence of proper authentication as a business record qualifying as an exception to the hearsay rule. Defendant further contends that documents which were admitted to serve as a standard of comparison for the handwriting expert to use in identifying the signature of defendant on the receipt were not authenticated by any foundation which would show that the specimen signatures were genuine.

The corpus delicti of a crime may be established by circumstantial evidence and reasonable inferences. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), Peterson v Oceana Circuit Judge, 243 Mich 215; 219 NW 934 (1928). In the instant case, the defendant's supervisor ordered the defendant to load the guardrails onto a Wayne County Road Commission truck, and to deliver the guardrails to the "Wyoming yard" of the Commission. The supervisor observed the defendant loading the guardrails as ordered. An employee at a private junkyard in Detroit testified that later the same day a Wayne County Road Commission truck entered the junkyard, loaded with guardrails and occupied by two men who sold the guardrails, and signed a receipt for the money received. A reasonable inference to be drawn at this point is that property of the Wayne County Road Commission had been unlawfully converted. The patent unwillingness of the witness to attempt to identify the occupants of the truck (duly noted by the trial judge) does not bear on the question of the corpus delicti, because it is elementary that the identity of the perpetrators of a crime is not an element of the corpus delicti. We find, therefore, that the evidence submitted and reasonable inferences therefrom were sufficient to establish the corpus delicti aliunde the confession. Accordingly, it was not error to admit the confession of the defendant as evidence against him.

Defendant contends that the receipt was not properly authenticated as a business record. The record shows that the court suggested to the prosecutor that he ask the witness who kept and produced the receipt if it was the receipt he gave. The witness responded, "That particular item, there, that's part two of a three-part copy. That's the third part, right. The original goes to the people that brought the stuff in." We think that this statement by the witness was sufficient reasonably to convince the court that the document was entitled to be admitted as a business record exception to the hearsay rule. Whether or not a sufficient foundation has been laid for the admission of evidence is a matter addressed to the discretion of the trial court and its determination as to this matter should not be lightly set aside. People v Krulikowski, 60 Mich App 28; 230 NW2d 290 (1975), Champion v Champion, 368 Mich 84, 97; 117 NW2d 107, 109 (1962).

Finally, defendant contends, in substance, that the use of timesheets purportedly signed by defendant as a standard of comparison by an expert witness to show that it was defendant who signed the receipt at the junkyard was error because a proper foundation had not been laid establishing that it was in fact the defendant whose signature appeared on the timesheets. Upon careful examination of the record we find that defendant did not preserve this error for appeal. While defendant did make a general objection to the admission of the documentary evidence when first offered, and later argued that the evidence did not "tie up the defendant with any crime * * *", we find that the defendant did not object with enough specificity to give the court notice of his grounds, so as to afford the court opportunity to cure or obviate the error. People v Kowalek, 296 Mich 714; 296 NW 856 (1941), People v Hallman, 299 Mich 657; 1 NW2d 28 (1941). Brown v Brown, 338 Mich 492, 503; 61 NW2d 656, 661 (1953), cert den, 348 US 816; 75 S Ct 26; 99 L Ed 644 (1954). The record gives no indication that the plaintiff was unable to produce a witness who could have testified to the genuineness of the defendant's signature on the timesheets if defendant had clearly objected on this ground. We will not consider on appeal error which, upon proper objection, might have been cured in the court below.

Having examined defendant's other allegations of error, we find them to be harmless. Defendant is not entitled to a perfect trial, only to a fair one. Michigan v Tucker, 417 US 433, 446; 94 S Ct 2357, 2365; 41 L Ed 2d 182, 194 (1974).

MCLA 769.26; MSA 28.1096 provides,

"No judgment or verdict shall be set aside or reversed or a new trial granted by any court of this state in any criminal case, on the ground of * * * improper admission or rejection of evidence * * * unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice."

The Michigan Supreme Court has consistently followed this policy. People v Howard, 391 Mich 597; 218 NW2d 20 (1974), People v Kregger, 335 Mich 457; 56 NW2d 349 (1953), People v Cooper, 328 Mich 159; 43 NW2d 310 (1950), People v Hawks, 206 Mich 233; 172 NW 405 (1919). We agree. People v Keiswetter, 7 Mich App 334; 151 NW2d 829 (1967), People v Carr, 2 Mich App 222; 139 NW2d 329 (1966).

Affirmed.

BRONSON, P.J., concurred.

D.E. HOLBROOK, Jr., J. (dissenting).

The testimony of the police handwriting expert was essential to the prosecution in convicting the defendant. Without it the prosecution could not prove that the defendant was the person who delivered the guardrails to the scrapyard and received the money. Whether or not the trial court considered the scrapyard employee a perjurer, his testimony that he could not identify who delivered the guardrails must be controlling unless the handwriting analysis is admissible.

It is a general rule that this Court will not review a claimed error unless a timely objection is made. GCR 1963, 516.2. It is also a rule that an objection without specifying the grounds will not preserve the issue for appeal. Campbell v Charles J Rogers Construction Co, 58 Mich App 411, 416; 228 NW2d 398, 401 (1975). In the present case, although only a general objection was made when the police expert testified, the objection was renewed when the documents were admitted, and in another context, in detail. Furthermore, the documents that the expert relied on were not admitted until the close of the people's proofs and defense counsel during cross-examination of the police expert challenged the expert's basis for relying on the documents.

Turning to the merits of the defendant's claim, I conclude that the prosecution failed to establish that the signature on the receipt was the defendant's. Before a comparison of handwriting can be made it is necessary that there be at least one genuine handwriting sample. MCLA 600.2144; MSA 27A.2144. The police expert acknowledged on cross-examination that he was not familiar with the defendant's handwriting. Champion v Champion, 368 Mich 84; 117 NW2d 107 (1962), Vinton v Peck, 14 Mich 287 (1866), see McCormick, Evidence (2d ed), § 221, p 547. Furthermore, unlike People v Lambath, 297 Mich 349; 297 NW 519 (1941), there was no proof that the defendant signed the receipt, in fact that is what the prosecution was seeking to prove. Consequently, in order to establish that the signature on the receipt was the defendant's the prosecution was required first to show that the signatures on the time sheet were the defendant's. Without establishing that, all the prosecution is able to show is that the signature on the receipt is the same as the signatures on the time sheet. Flickema v Henry Kraker Co, 252 Mich 406, 410; 233 NW 362, 363 (1930), First National Bank of Houghton v Robert, 41 Mich 709, 711; 3 NW 199 (1879). Since the signatures are the only way to link the defendant to the crime, this is not enough to support a conviction.

The relevancy of the time sheet depends on the fact that signatures on the time sheet are in fact the defendant's. Because the statements are being used to prove the truth of the matter asserted, i.e., that the signature is the defendant's, it is necessary to find a hearsay exception. McCormick, Evidence, § 246. The applicable exception in this case is the business records exception to the hearsay rule since the time sheets are kept as a normal course of the employer's business. MCLA 600.2146; MSA 27A.2146, People v Kirtdoll, 391 Mich 370; 217 NW2d 37 (1974). However, it is necessary that a business record be authenticated before it is admitted into evidence. People v Kirtdoll, supra, at 387, Flickema v Henry Kraker Co, supra, at 409.

In this case, the time sheets that were introduced did not have a proper foundation. In order to lay the proper foundation for the admission of the time sheets, the prosecution should have produced the person in charge of the employment records. This would have permitted defense counsel the opportunity to challenge the authenticity of the records and the methods by which they were kept. People v Kirtdoll, supra.

In order to use an expert in handwriting analysis it is necessary to have a proven genuine signature. First National Bank of Houghton v Robert, supra. In this case there is no proven signature of the defendant so that the expert had nothing on which to base his opinion. Without either the expert's opinion or the time sheets as evidence, the trier of fact could not have found through competent evidence that the defendant in fact made the delivery of the guardrails to the scrapyard.

I would reverse and remand for a new trial.