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PEOPLE v. COLLINS

Michigan Court of Appeals.
Oct 24, 1972
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People v. Collins, Docket No. 10896 (Mich. Ct. App. Oct. 24, 1972)

Factual and Procedural Background

John Norman Collins was charged with the first-degree murder of Karen Sue Beineman. The crime occurred on or about July 23, 1969. The prosecution's theory was that the offense occurred at the home of Sergeant David Leik (an uncle of defendant), who had left a key under a doormat so defendant could feed the Leik dog while the Leiks were on vacation July 18–29, 1969. Evidence included a spot of blood of type A found under black paint on the Leik basement floor (the victim's blood type was A) and hair comparisons between hairs found on the Leik basement floor and hairs found on the victim's pants. Neutron activation analysis was performed by Howard Schlesinger; microscopic hair comparison testimony was offered by Walter Holz and Dr. Guinn.

Jury selection began June 2, 1970; trial commenced July 20, 1970. Collins was convicted by jury verdict of first-degree murder, was sentenced, and his motion for new trial was denied. He appealed to the Michigan Court of Appeals. The court considered multiple claims of error and affirmed the conviction.

Legal Issues Presented

  1. Did the trial court commit reversible error by denying defendant's motions for change of venue?
  2. Did impermissible pretrial identification procedure taint in-court identification testimony so that it should have been excluded?
  3. Was defendant identified in a lineup in the absence of his attorney?
  4. Was testimony concerning neutron activation analysis of hair samples inadmissible?
  5. Was testimony concerning microscopic analysis of hair samples inadmissible?
  6. Was the trial court's failure to define "premeditation" in its jury instructions reversible error?

Arguments of the Parties

Appellant's Arguments (Defendant)

  • The trial court abused its discretion by denying change of venue in light of pretrial publicity and therefore an impartial jury could not be drawn in Washtenaw County.
  • Pretrial photographic identification procedures (photos shown after arrest, before lineup, and in the absence of defendant's attorney) impermissibly tainted in-court identifications by witnesses Goshe and Spaulding and should have been suppressed.
  • Defendant was identified at a lineup when his attorney was not present.
  • Neutron activation analysis testimony (Schlesinger) was inadmissible because Schlesinger compared only five components (alleged need for at least ten of ~18–20) and because the analysis involved a mixture of hair of unknown proportions.
  • Microscopic hair-comparison testimony (Holz) is universally recognized as unable to identify hair and therefore should have been inadmissible.
  • Dr. Guinn's statistical probability testimony (including graphs/exhibits 70–77) was improper, particularly because his opinion relied in part on the opinion of another expert (Schlesinger) and because defense experts purportedly disagreed with the underlying data.
  • The court erred by failing to define "premeditation" in the jury instructions.

People's Arguments (Prosecution)

  • It was proper under existing authority to defer a change-of-venue determination until an attempt was made to select a jury in the county where the crime occurred.
  • The in-court identifications by Goshe and Spaulding were based on observations separate and distinct from the photographs; therefore suppression was not warranted.
  • The record does not support the claim that defendant was identified at a lineup in the absence of his attorney.
  • Neutron activation analysis is a valid technique; Schlesinger was qualified and his procedure and equipment were not attacked as invalid. The defendant's criticisms go to the weight of the evidence, not admissibility.
  • Microscopic hair-comparison testimony was admissible; challenges again affect weight rather than admissibility.
  • Although statistical-probability testimony raises issues, much of Dr. Guinn's non-statistical opinion was admissible and the statistical portions were considered separately by the court.
  • The issue concerning failure to define "premeditation" was controlled by existing Michigan authority adverse to defendant's contention.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Freeman, 16 Mich. App. 63, 71, 72 (1969) Exercise of trial-court discretion in granting or denying change of venue is reviewable but requires a definite, clear showing of abuse of discretion to overturn. The court applied this rule and held that the record did not show a clear abuse of discretion in denying change of venue.
People v. Swift, 172 Mich. 473 (1912) It is proper for a trial court to defer determination on a request for change of venue until an attempt has been made to select a jury in the county where the crime occurred. The court followed Swift and found no authority overruling it; adhering to that rule was not an abuse of discretion.
People v. Bowen, 165 Mich. 231, 240 (1911) An expert's opinion testimony that is based in part on the opinion testimony of another expert is not permissible. The court relied on this principle to conclude Dr. Guinn's statistical-probability testimony (which was based in part on Schlesinger's opinion) was not permissible.
People v. Budd, 279 Mich. 110 (1937) Improperly admitted testimony that is merely corroborative of properly admitted evidence is not necessarily reversible error. The court cited Budd when concluding that improperly admitted corroborative testimony (here, parts of Guinn's testimony) did not require reversal where the same conclusions could be reached from properly admitted evidence.
People v. Wolke, 10 Mich. App. 582 (1968) Improperly admitted corroborative testimony is not reversible error in appropriate circumstances. The court cited Wolke alongside Budd to support the conclusion that corroborative but improperly admitted testimony did not mandate reversal.
People v. Bodley, 38 Mich. App. 27, 32 (1972) Addressed the effect (or non-effect) of failing to define "premeditation" in jury instructions (as applied in that case). The court held Bodley disposed of the premeditation-instruction issue contrary to defendant's contention and relied on it to reject the claim of reversible error.

Court's Reasoning and Analysis

The court addressed each enumerated issue by applying statutory, procedural, and case-law principles to the record evidence and trial proceedings:

  • Change of venue: The court observed the governing statute (MCLA 762.7; MSA 28.850) and precedent requiring attempt to select a jury in the county of the crime (People v. Swift). It reviewed the voir dire record (12 volumes), the timing (crime July 1969; jury selection June–July 1970), the trial court's factual finding that there was no strong community feeling or pervasive prejudice, and defendant's acceptance during voir dire ("We have a jury"). Given those facts, and the requirement of a clear showing of abuse to overturn discretion (People v. Freeman), the court concluded denial of change of venue was not an abuse of discretion.
  • Pretrial photographic identification and in-court identification: After a suppression hearing, the trial court found witnesses Goshe and Spaulding could identify defendant from observations independent of photographs. The appellate court found the record supported that finding and affirmed admission of their in-court identifications.
  • Lineup and counsel presence: The court found the record did not support the claim that defendant was identified at a lineup in the absence of his attorney.
  • Neutron activation analysis (Schlesinger): The court noted defendant did not challenge the general validity of the technique, Schlesinger's qualifications, or the operation of the equipment. Defendant's criticisms focused on methodological details (use of only five measured components instead of an asserted preferable ten, and unknown proportions in a hair mixture). The court concluded these criticisms went to the weight of Schlesinger's testimony rather than its admissibility, and therefore admission of Schlesinger's opinion was proper.
  • Microscopic hair analysis (Holz): Holz testified to an opinion, based solely on microscopic observation, that the hairs had a common origin. The court acknowledged testimony that microscopic identification has limits but concluded the defense objection challenged weight, not admissibility, and sustained admission of Holz's opinion.
  • Dr. Guinn's testimony (including statistical probability and graphs): The court sustained admission of Guinn's general opinion testimony except with respect to exhibits 70–77 (graphs) and his statistical-probability testimony. The court observed no Michigan authority on admissibility of such statistical-probability testimony; however, Guinn's statistical opinion was in part based on another expert's opinion (Schlesinger), which the court held was impermissible per People v. Bowen. The court therefore disallowed that statistical evidence. The court then analyzed prejudice: the statistical testimony was corroborative of other properly admitted evidence (Holz, Schlesinger, blood evidence). Applying statutes and precedent that improperly admitted corroborative testimony is not reversible error (MCLA 769.26; MSA 28.1096; GCR 1963, 529.1; People v. Budd; People v. Wolke), the court concluded that any error in admitting Guinn's statistical testimony was not reversible because the same fact findings (that the victim had been in the Leik home) could be sustained without it.
  • Jury instruction on premeditation: The court relied on People v. Bodley to reject the claim that failure to define "premeditation" in the instructions required reversal.

Holding and Implications

Holding: The judgment of the trial court was Affirmed.

Implications:

  • The defendant's conviction for first-degree murder, sentenced after denial of his motion for new trial, was upheld on appeal.
  • The court upheld the trial court's discretionary decisions regarding change of venue and evidentiary rulings, finding that challenges to methodology or expert disagreement generally went to the weight of evidence rather than admissibility, except that Dr. Guinn's statistical-probability testimony (and associated graphs) was disallowed insofar as it relied on another expert's opinion.
  • No new legal precedent was announced; the court applied existing statutory rules and Michigan authorities (as cited) to the record and concluded that any improperly admitted corroborative evidence did not warrant reversal.

Status noted in opinion: Leave to appeal to a higher court was applied for.

Show all summary ...

QUINN, P.J.

Charged with the first-degree murder of Karen Sue Beineman, defendant was convicted by jury verdict of that offense. He was sentenced and his motion for new trial was denied and he appeals.

The appeal raises the following issues:

1. Did the trial court commit reversible error by denying defendant's various motions for change of venue?

2. Did impermissible pretrial identification procedure taint in-court identification testimony to the extent that it should have been excluded?

3. Was defendant identified in a lineup in the absence of his attorney?

4. Was testimony concerning neutron activation analysis of hair samples inadmissible?

5. Was testimony concerning microscopic analysis of hair samples inadmissible?

6. Is the failure of the trial court to define the term "premeditation" in its jury instructions reversible error?

Facts pertinent to the issues raised will be stated in connection with a discussion of those issues.

MCLA 762.7; MSA 28.850 governs change of venue in criminal cases. Grant or denial of the requested change is discretionary. The exercise of that discretion is reviewable, but there must be a definite, clear showing of abuse of discretion for an appellate court to overturn the action of the trial court, People v. Freeman, 16 Mich. App. 63, 71, 72 (1969).

There are two facets to defendant's claim of error in the denial of his motions for change of venue. First, in view of the pretrial publicity in this case, defendant says it was an abuse of discretion to attempt to draw a jury in Washtenaw County. Since People v. Swift, 172 Mich. 473 (1912), it has been the rule that it is proper for a trial court to defer determination on a request for a change of venue until an attempt has been made to select a jury in the county where the crime occurred. Defendant has not cited, nor has independent research disclosed, any authority which overrules Swift. Following an established rule is not an abuse of discretion.

Secondly, does this record demonstrate that denial of change of venue was a definite, clear abuse of discretion? Our answer is no, and it is based on the following:

1. The crime occurred on or about July 23, 1969. The bulk of the pretrial publicity complained of occurred in 1969. Jury selection commenced June 2, 1970 and trial commenced July 20, 1970.

2. A jury selection process was conducted meticulously, running from June 2, 1970 to July 9, 1970, and the voir dire examination transcript comprises 12 volumes. After general questioning of the entire panel of jurors, each prospective juror was examined individually alone. At a point in the jury selection process when he had three peremptory challenges remaining, defendant announced through his counsel, "We have a jury".

3. There is no showing of publicity adverse to defendant which continued up to and through the trial and which pervaded the trial. There is no showing that the news media interfered with pretrial or trial proceedings, which both sides concede were conducted with exemplary decorum.

4. The trial court found that there was no strong community feeling or a pattern of deep and bitter prejudice against defendant and the record does not establish that this finding was clearly erroneous, GCR 1963, 517.1.

5. The record does not demonstrate that defendant had an unfair trial by a partial jury nor that the verdict of guilty was based on evidence outside the record.

Prior to trial, defendant moved to suppress any in-court identification testimony by witnesses Goshe and Spaulding. The basis of the motion was that prior impermissible identification procedure tainted any in-court identification to the extent it was inadmissible. The impermissible procedure was that the police showed photographs of defendant to these witnesses after his arrest, prior to a lineup and in the absence of defendant's attorney. At the hearing on this motion testimony was taken. The trial court denied the motion to suppress on the finding that the witnesses were able to identify defendant from observations separate and distinct from the photographs. The record supports the finding of the trial court and it was not error to permit witnesses Goshe and Spaulding to identify defendant in court.

Defendant's contention that he was identified at a lineup when the attorney was not present is not supported by the record.

It was the theory of the people that the crime was committed at the home of Sergeant David Leik, a member of the Michigan State Police and an uncle of defendant. The Leiks were on vacation from July 18 to July 29, 1969, and they left a key to the house under the doormat to the side door so defendant could feed the Leik dog. A spot of blood found under some black paint on the basement floor was determined to be type A. The victim's blood was type A. Hairs found on the floor of the Leik basement were compared with hairs found on the pants of the victim by a process known as neutron activation analysis. The neutron activation analysis of the hairs was performed by Howard Schlesinger.

A detailed description of the process may be found at 15 Am Jur Proof of Facts, commencing at page 115.

Prior to trial, defendant moved to suppress the testimony of Howard Schlesinger. At the hearing on this motion, extensive testimony was taken on behalf of defendant and the prosecution. The motion to suppress was denied. Howard Schlesinger testified at trial that with a distinct and high level of probability the hair recovered from decedent's pants came from the same source as hair found on the floor of the Leik basement. Defendant asserts that this was reversible error.

Defendant does not question the validity of neutron activation analysis as a reliable technique. Defendant does not claim that Howard Schlesinger was not a qualified expert witness, that his analysis procedure was improper, that the equipment used was defective or was used improperly. In fact, defendant's expert indicated that the technique employed by Schlesinger was the generally accepted technique. Defendant's claim of error is based on two arguments. First, in order to be accurate, neutron activation analysis must compare at least ten components in a hair sample out of a possible 18 to 20 components. Schlesinger used only five components. Secondly, where the analysis is of a mixture of hair, as here, the mixture must be of known proportions, and the proportions of the mixture involved were unknown.

We note that defendant's expert employed the Schlesinger data in reaching a conclusion contrary to that of Schlesinger. We have examined the authorities relied on by defendant to establish the error asserted, and we find none which holds that the expert's testimony is inadmissible for the reasons here advanced. The arguments of defendant go to the weight of the Schlesinger testimony, not to its admissibility. It was proper to receive the Schlesinger testimony.

Dr. Guinn testified after Howard Schlesinger. Error is claimed with respect to this testimony, but we defer consideration of this claim of error until we have disposed of the error asserted with respect to witness Holz.

Walter Holz is chief of the criminalistics division of the crime detection laboratory at the Michigan Department of Health. He conducted a microscopic examination of hairs he removed from the victim's pants and hairs from the Leik basement floor. Over objection, Holz gave his opinion based on reasonable scientific certainty that the hairs removed from the pants and the hairs from the Leik basement floor had a common origin. His opinion was based solely on what he saw through the microscope.

There is testimony to the effect that the inability to identify hair samples by microscopic analysis is universally recognized, but the same witness who gave that testimony stated after microscopic analysis that the hair from the pants was not the same as the hair from the Leik basement floor. We conclude, as did the trial court, that defendant's objection to the Holz testimony went to its weight rather than to its admissibility, and error in its admission is not established.

After being qualified as an expert in neutron activation analysis, Dr. Guinn testified at some length concerning conclusions he had reached and the method of reaching them from working with the data produced by Mr. Schlesinger. Dr. Guinn stated that the hairs from the pants were remarkably similar to the hairs from the Leik basement floor. He stated that there was an indication of high probability that the hairs had a common origin.

Dr. Guinn testified as to making graphs to illustrate his calculations respecting the Schlesinger data. One graph was marked people's exhibit no. 70. After the witness described what the graph portrayed, the prosecuting attorney moved its admission in evidence. At this point, defense counsel stated: "I suggest that these be taken subject to objection later, to find out if the people upon whom he relies actually support his conclusion". The witness then testified in detail as to the methods he used to reach certain statistical probabilities with respect to the hair involved. When the prosecuting attorney asked the witness for his conclusions, defense counsel stated:

"Your Honor, I have to state for the record that I am going to object to any statistical probability when the data upon which the man relies was compiled by men who are in total disagreement with him.

"I don't think it is fair to introduce that in court. He is relying on people's data that was compiled by extensive research, and these people totally and personally contradict what he says.

"So, I don't think an expert can come in and rely on another expert that doesn't support him personally."

The court overruled the objection and defense counsel stated:

"Will you take it subject to finding out whether Dr. Jervis approves of this or not?"

The trial court indicated that he would so take the testimony.

The direct examination of this witness was completed and it contained the objected-to statistical probability testimony. After a brief cross-examination, defense counsel moved as follows:

1. To strike the Holz testimony.

2. To strike the testimony of witnesses Schlesinger and Guinn and "particularly I would move to strike Dr. Guinn's probabilities".

The trial court denied both motions and we have heretofore sustained that action with respect to the Holz and Schlesinger testimony. We have not disposed of the challenge to the Guinn testimony.

We sustain the trial court's denial of the motion to strike Guinn's testimony, except as that motion related to exhibits 70 through 77 (the graphs) and his statistical probability testimony. We do so for two reasons, namely: it was not objected to and defendant's motion to strike indicates his real concern was with the probability testimony.

As to the graphs and the statistical probability testimony, counsel have cited no Michigan authority on the admissibility of statistical probability testimony and independent research has disclosed none. Out-of-state authorities are cited by counsel in support of their respective positions on this issue. It is not necessary to discuss those authorities nor the arguments advanced by counsel for their respective positions. Dr. Guinn's opinion testimony on statistical probability was based in part on the opinion testimony of Schlesinger, another expert. This is not permissible, People v. Bowen, 165 Mich. 231, 240 (1911); 2 Wharton's Criminal Evidence (12th ed), § 522, p 350.

Was the error in not striking Dr. Guinn's statistical probability testimony reversible error? That testimony corroborated the people's evidence supporting the theory that the crime occurred in the Leik basement. If the jury chose to believe it, there was evidence that the victim was last seen in the company of defendant who had access to the Leik home. If the jury chose to believe witnesses Holz, Schlesinger and Guinn as to the similarity of hair samples found on the Leik basement floor and the victim's pants and comparison of her blood with the spot of blood removed from the floor, there was basis for the jury to find that the victim was in the Leik home. Such a finding was permissible and sustainable without the Guinn testimony. In our view, improperly admitted testimony that is merely corroborative of properly admitted evidence is not the basis for holding the error reversible, MCLA 769.26; MSA 28.1096; GCR 1963, 529.1; People v. Budd, 279 Mich. 110 (1937); People v. Wolke, 10 Mich. App. 582 (1968).

Finally, defendant claims reversible error because the trial court failed to define premeditation in the jury instructions. People v. Bodley, 38 Mich. App. 27, 32 (1972) disposes of this issue contrary to defendant's contention.

Affirmed.

All concurred.