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01/27/76 PEOPLE v. HARDAWAY

January 27, 1976

PEOPLE
v.
HARDAWAY



Appeal from Wayne, Thomas Roumell, J.

McGregor, P. J., and Bashara and Allen, JJ.

SYLLABUS BY THE COURT

1. -- Instructions to Jury -- Departure from Standard -- Substantial Departure -- Appeal and Error.

A defendant who states at trial that he is satisfied with the instructions given the jury has not preserved for appeal a later claim that the instructions were reversibly erroneous because they departed from standard jury instructions; error, when properly raised, will be found in such a case only where the charge was a "substantial" departure from standard jury instructions.

2. Burglary -- Aiding and Abetting -- Instructions to Jury -- Record -- Evidence.

A charge to a jury that a criminal defendant could be found guilty of the charged crime of breaking and entering if he was found to have aided or abetted in the crime was not error where the record revealed facts upon which the jury could find the defendant guilty either as a principal, as an accessory, or as both.

3. -- Evidence -- Destruction of Evidence -- Police Departmental Tapes -- Intent -- Department Policy -- Instructions to Jury -- Appeal and Error.

A prosecutor may not intentionally destroy evidence which he alone decides is immaterial, but there was no reversible error because of the destruction of tapes of a police broadcast of a suspect's description at the time of the charged offense where the tapes where erased pursuant to a police departmental policy of erasing such tapes within 30 days, they were not erased for the purpose of destroying evidence in the forthcoming trial, and the court instructed the jury that they could infer that the tapes would have been adverse to the prosecution.

The opinion of the court was delivered by: Allen

Ralph Hardaway was convicted of breaking and entering with intent to commit larceny. Defendant appeals.

Defendant, charged with breaking and entering the Allstate Auto Wash, a business establishment in Dearborn, Michigan, with intent to commit larceny therein, MCLA 750.110; MSA 28.305, was found guilty by a jury and sentenced to a term of 5 to 10 years in prison. On appeal he raises an issue of first impression, viz. was defendant denied his right to meaningful cross-examination when tapes of police broadcasts made at the time of the offense were erased prior to trial based on a police departmental policy of erasing such tapes within 30 days. Defendant also advances two other grounds for reversal which we briefly discuss in advance of the issue of first impression.

Citing People v Sullivan, 392 Mich 324, 334; 220 NW2d 441 (1974), defendant contends reversible error occurred because the trial court substantially departed from the American Bar Association standard jury instructions. We reject this claim. Defendant stated he was satisfied with the instructions given and thus the issue is not preserved on appeal. People v Teaque, 57 Mich App 347; 225 NW2d 761 (1975), People v Szymarek, 57 Mich App 354; 225 NW2d 765 (1975). Even if defendant had raised an objection, we would find no error for the multiple reasons noted below. *fn1

Defendant was charged as a principal in a breaking and entering. When charging the jury, the trial Judge stated that defendant could be found guilty if he was found to have aided or abetted. *fn2 Since other persons were involved in the offense, defendant claims the charge was error. Again, we note that exception was not taken to the instructions and consequently the issue is not preserved on appeal. Additionally, we find that this same objection was rejected by this Court in People v Lamson, 44 Mich App 447; 205 NW2d 189 (1973). See also People v Dockery, 20 Mich App 201; 173 NW2d 726 (1969). Indeed, the record reveals facts upon which the jury could find defendant guilty either as a principal or as an accessory or as both.

We now turn to the main issue. Three police officers arrived at the auto wash while the offense was taking place. Officer LaFrinere saw one man (later identified as James Price) jump from a rear window. The officer gave chase but was unable to apprehend this man. Officers Palka and Szczygiel testified they saw defendant in the car wash building crouching by a cigarette machine. Moments later Szczygiel saw defendant and another man run out of the rear of the building heading south on the sidewalk whereupon Szczygiel made two radio broadcasts in which he described defendant as a black male with a pulled down hat and a short brown jacket. The broadcast was heard by a fourth officer some distance away who, later, while driving through a restaurant parking lot, saw a man matching defendant's description. Defendant was then apprehended. Counsel for defendant subpoenaed the tapes prior to trial but ...


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