Opinion
Docket No. 27648.
Decided June 7, 1977.
Appeal from Muskegon, Charles Larnard, J. Submitted April 6, 1977, at Grand Rapids. (Docket No. 27648.) Decided June 7, 1977.
Nathan Rowan was convicted of eleven counts of bribery and eleven counts of obstruction of justice. Defendant appeals. Remanded for a hearing on the entrapment issue. If the trial court finds entrapment, defendant is to be discharged; if no entrapment is found, affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert C. Ward, Jr., Assistant Attorney General, for the people.
Bell, McSorley, Hudson Daniel, P.C., for defendant.
Before: D.E. HOLBROOK, JR., P.J., and QUINN and ALLEN, JJ.
We agree in full with Judge QUINN on issues 1, 3 and 4. On issue 2, we affirm for reasons different than the non-retroactivity rule of Beavers. In People v Plamondon, 64 Mich. App. 413; 236 N.W.2d 86 (1975), we held that warrantless secret tape recordings made even prior to the decisional date of People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975), were inadmissible in evidence. But, the informant, Sergeant Jurkas, testified as to his face-to-face conversations with defendant. As was stated in Beavers:
Decided April 7, 1975.
"The admissibility of the informant's testimony is in no way affected by ruling inadmissible the testimony of the two police officers. The warrantless monitoring and subsequent testimony of these two witnesses renders tainted the transmitted account of the conversation, but does not in any way prevent the informant from testifying as to the statement spoken to him directly." (Emphasis in original.) 393 Mich at 567.
The fact that Sergeant Jurkas refreshed his memory by referring to his own notes should not make his testimony objectionable. Prior to making his notes he would sometimes listen to the tapes but would then use his independent knowledge and refreshed memory in making the notes. Witnesses testifying from memory are traditionally allowed to refresh their recollection from their own prepared notes. Battle Creek Food Co v Kirkland, 298 Mich. 515; 299 N.W. 167 (1941).
We remand for a hearing on the entrapment issue. If it is determined by the trial court that defendant was entrapped, defendant shall be discharged. If the trial court finds there was no entrapment, this case shall stand affirmed. We retain no further jurisdiction.
D.E. HOLBROOK, JR., P.J., concurred.
Defendant was convicted by a jury of eleven counts of bribery, MCLA 750.117; MSA 28.312, and eleven counts of obstruction of justice, MCLA 750.505; MSA 28.773. He was sentenced to a prison term of from two to four years on each bribery count and two to five years on each count of obstruction of justice, all sentences to run concurrently. He appeals as of right.
Initially, defendant was arrested and charged with one count of conspiracy to bribe, one count of conspiracy to obstruct justice and five counts of conspiracy to violate state gambling laws. After preliminary examination, the bribery and obstruction of justice counts were dismissed. On July 3, 1974, defendant was again arrested and charged with the present counts of bribery and obstruction of justice. Defendant waived preliminary examination and was bound over to circuit court for trial. The arraignment was not held until July 28, 1975, because the Attorney General wanted time to challenge the dismissal of the original conspiracy charges. A complaint for superintending control was filed on June 4, 1975. In October, 1975, the Attorney General agreed to proceed with the trial in the present case even though no decision had been rendered on the complaint for superintending control. In the latter part of October, 1975, the complaint was dismissed.
Defendant filed a motion to dismiss on June 19, 1975. No hearing was held on this motion. The motion was renewed on November 7, 1975; a hearing was held on December 10, 1975, and the motion was denied. Trial commenced on December 17, 1975.
The main prosecution witness was Sgt. John Jurkas. Sgt. Jurkas met with defendant several times from June, 1973 to May, 1974. At these meetings, defendant supplied the officer with information concerning gambling operations in the area. Sgt. Jurkas secretly recorded each of these conversations. The tapes were offered at trial but were not admitted into evidence. However, the officer was allowed to refresh his recollection of the conversations by reference to his field notes and to typewritten notes compiled after listening to the tapes.
At several of these meetings, defendant requested protection for his gambling operation. In return for the protection, defendant supplied Sgt. Jurkas with information and various bribes.
After the prosecution's case in chief, defendant requested a hearing outside the presence of the jury on the issue of entrapment. The trial court refused, stating the motion was untimely. Defendant was allowed to argue entrapment based solely upon the evidence as presented in the prosecution's case. The defendant moved to dismiss on the basis of entrapment, the motion was denied and defendant rested his case.
Defendant raises four issues on appeal:
1. Was defendant denied his right to a speedy trial?
2. Was it error for the prosecution's witnesses to testify about the taped conversations between the defendant and Sgt. Jurkas where the recordings were obtained without a warrant?
3. Was the failure to record the final arguments of counsel reversible error?
4. Was it error for the trial court to refuse to grant defendant's request for a hearing outside the presence of the jury on the issue of entrapment?
The delay in the present case was not a denial of the right to a speedy trial. Defendant was out on bail and represented by counsel during the time in question. There was no demand for a speedy trial. Further, defendant has failed to show the prejudice to his case. People v Abram, 40 Mich. App. 546; 199 N.W.2d 248 (1972).
In People v Beavers, 393 Mich. 554; 227 N.W.2d 511 (1975), the Supreme Court held that participant monitoring requires prior procurement of a search warrant. The Court further held that Beavers was to apply prospectively. It is to be applied to police conduct occurring after its decisional date. People v Pulley, 66 Mich. App. 321; 239 N.W.2d 366 (1976), People v Livingston, 64 Mich. App. 247; 236 N.W.2d 63 (1975). In the present case, the conversations were all recorded prior to the holding in Beavers, supra. It was not error for the witnesses to testify about the tape recordings.
Defendant has failed to show prejudice sufficient to deprive him of a fair appeal due to the lack of a complete transcript, Brown v Forrester Construction Co, 372 Mich. 204; 125 N.W.2d 315 (1963), People v Drew, 26 Mich. App. 337; 182 N.W.2d 566 (1970). There was no reversible error.
Defendant is entitled to a Walker type hearing outside the presence of the jury on the issue of entrapment, People v Keefe, 69 Mich. App. 431; 245 N.W.2d 78 (1976), People v Sheline, 64 Mich. App. 193; 235 N.W.2d 177 (1975), lv granted, 395 Mich. 817 (1975).
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
We remand for a hearing on the entrapment issue. If it is determined by the trial court that defendant was entrapped, defendant shall be discharged. If the trial court finds there was no entrapment, this case shall stand affirmed. We retain no further jurisdiction.