People v. Baldwin

• Decision Date: 18 April 1977
• Docket Number: Docket No. 23191
• Citation: 254 N.W.2d 619,74 Mich.App. 700
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Preston B. BALDWIN, Defendant-Appellant. 74 Mich.App. 700, 254 N.W.2d 619
• Court: Court of Appeal of Michigan — District of US

Page 619

254 N.W.2d 619

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Preston B. BALDWIN, Defendant-Appellant.

Docket No. 23191.

74 Mich.App. 700, 254 N.W.2d 619

Court of Appeals of Michigan.

April 18, 1977.

Rehearing Denied May 23, 1977.

Released for Publication June 22, 1977.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

[74 MICHAPP 702] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Detroit, David H. Wolock, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and BASHARA and HORN, ^* JJ.

BRONSON, Presiding Judge.

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder. M.C.L.A. § 750.84; M.S.A. § 28.279. The charge arose out of an incident occurring in front of the Redmill Bar on Woodward Avenue in Highland Park on September 11, 1974. Defendant admittedly stabbed the victim, a Mr. Rodgers, with a knife. Defendant claimed, however, that he had been defending himself from a knife attack on him by Rodgers.

Defendant received a prison sentence and now appeals raising numerous issues. We find that none require reversal, though four merit discussion.

I.

Defendant first claims error with respect to the trial court's finding that the prosecutor had exercised due diligence in attempting to locate and produce an endorsed res gestae witness. Production[74 MICHAPP 703] of the witness was excused and the prosecutor was permitted to introduce the preliminary examination testimony of that witness. See People v. McIntosh, 389 Mich. 82, 204 N.W.2d 135 (1973), People v. Harringer, 65 Mich.App. 649, 237 N.W.2d 598 (1975).

The witness in question was a Miss Ella Austin, apparently the only known independent witness to the beginnings of the altercation between defendant and Mr. Rodgers. Austin had testified at the preliminary examination and had later been endorsed as a res gestae witness. Her testimony had been somewhat corroborative of what proved to be the defendant's version of the incident, and defense counsel demanded her production when she did not appear on the first day of defendant's trial, a Wednesday.

It is unnecessary to recite all efforts made to locate Miss Austin. Suffice it to say that the efforts made prior to and during the trial were as intensive as in any reported case. When defendant's trial was adjourned for the weekend on Thursday, the second day of trial, his attorney agreed with the trial judge that every possible effort had been made to produce Miss Austin.

As of Thursday evening, the prosecutor had not yet rested, and the police officer in charge of the case, a Detective Quinn, was instructed to continue his efforts to locate Miss Austin over the weekend.

On Monday morning Detective Quinn again testified as to Austin's continued absence from the trial. He stated that she had been in the custody of the police on the previous Friday evening, having been arrested and charged with loitering. Detective Quinn spoke to her and was told that she had been out of town for the previous three or four weeks. Quinn served the subpoena on her and [74 MICHAPP 704] advised her to show up Monday to testify or she would be in contempt of court. She told him that she would definitely be there as she didn't want any more trouble than she already had.

A bench warrant was issued on Monday for Miss Austin's arrest. Detective Quinn attempted one final time to locate Miss Austin during the noon recess by going to the Redmill Bar and to her house, the only places she was known to frequent, but met with no success. The judge then made a finding of due diligence, held that the witness was unavailable, and ruled that the preliminary examination testimony of Miss Austin could be read to the jury.

As we review defendant's claim that due diligence was not shown by the prosecutor's efforts to produce this witness, we keep in mind that this question is a matter primarily within the discretion of the trial court. A finding of due diligence will be overturned on appeal only where an abuse of discretion is found. People v. Harringer, supra, People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970).

In view of the efforts made by the prosecution to locate and produce Miss Austin defendant's only serious contention on the question of due diligence relates to Miss Austin's arrest during the trial. Defendant argues that a failure of due diligence is shown by the fact that the witness was in custody at one point during defendant's trial and yet was not produced to testify. Defendant asserts that the witness, upon coming into the custody of the police, should either have been detained in jail or required to put up a bond in order to guarantee her presence at trial pursuant to the material witness statute, M.C.L.A. § 767.35; M.S.A. § 28.975.

That statute permits a court of record to require [74 MICHAPP 705] a material witness in a criminal case to "enter into a recognizance with such sureties and in such amounts as the court may determine for his appearance at any examination or trial of said cause", or, failing to do so, to be committed to jail. By its own terms, the statute may be invoked only when "there is danger of the loss of testimony of such witness unless he be required to furnish bail or be committed".

Research reveals that this statute has been the subject of little appellate judicial comment. We find no case in which a failure to make use of this procedure in order to detain a res gestae witness has been found to result in a failure of due diligence on the part of the prosecutor.

We do find that bail is properly ordered under this statute only when there is reason to believe that the witness will not be available when her testimony might become necessary. In re Rankin, 330 Mich. 91, 47 N.W.2d 28 (1951). ¹ Such was not the case here.

When the subpoena was served on this witness while she was in custody, the police had no reason to believe that she would not appear to testify on the following Monday. She had appeared voluntarily at the preliminary examination and appeared to be a friend of the defendant's. She gave a reasonable explanation for her former unavailability for service and said she would appear to testify. There was no reason to believe that she had been intentionally avoiding service or that she had any reason not to want to testify at defendant's trial. Under these circumstances, we cannot hold that the failure of the police to seek to detain her until [74 MICHAPP 706] after her testimony at defendant's trial amounted to a failure of due diligence.

We conclude that the trial court's ruling that the prosecutor had used due diligence in attempting to secure the presence of this witness at trial was not an abuse of discretion.

II.

Defendant argues that misconduct by the prosecutor at trial, reflected in his cross-examination of defendant and in his closing arguments, was so prejudicial as to have denied defendant a fair trial. No objections were made at trial to the questioning or the arguments which are now the subject of these claims of error. Consequently, this Court will reverse only if the cross-examination resulted in a miscarriage of justice, People v. Stoudemire, 65 Mich.App. 664, 668, 238 N.W.2d 365 (1975), or if the prosecutor's argument was so prejudicial that appropriate cautionary instructions would not have cured any prejudice. People v. Hall, 396 Mich. 650, 655-656, 242 N.W.2d 377 (1976).

Defendant asserts that reversal of his conviction is required by the Supreme Court decision in People v. Johnson, 393 Mich. 488, 227 N.W.2d 523 (1975). In that case the defendant's conviction for carrying a concealed weapon was reversed because of prejudicially and reversibly erroneous cross-examination of the defendant and prosecutorial argument. The prosecutor had cross-examined the defendant extensively, and nearly exclusively, on his background and his alleged predisposition to criminal activity. The cross-examination made reference to defendant's employment and education record, his marital status, means for supporting his children, and financial history. The prosecutor then argued to the jury that they could consider in [74 MICHAPP 707] deciding whether the defendant was guilty of the alleged C.C.W., that he was "a man with two cents in his pocket and he hasn't worked for a long time". Johnson, supra, p. 496, 227 N.W.2d p. 526.

The Court held that the argument and the cross-examination leading up to it were erroneous and prejudicial since defendant's poverty and unemployment were probative neither of his guilt or innocence nor of his tendency to lie or tell the truth.

We have carefully reviewed the transcript of defendant's trial and we do not find the abuses which required reversal in Johnson.

An examination of some 40 pages of cross-examination of the defendant reveals that only some 31/2 pages concerned defendant's background and character. The prosecutor elicited testimony from the defendant indicating that defendant was married and had three children but was separated from his wife, did not know where his wife and children were, and did not contribute to their support. Defendant was employed part-time at a book store, earning up to $50 a week, and yet regularly spent time and money in the Redmill Bar.

In his closing argument, the prosecutor referred to this testimony as being a permissible source of inferences as to defendant's character and credibility. As noted, no objections were made to any of this cross-examination or this argument, nor were cautionary instructions requested.

Johnson does not require reversal of this defendant's conviction. The cross-examination into this defendant's background was not nearly as long as that which occurred in Johnson, and, more importantly, the purpose for which the examination of the defendant's background was offered, as reflected[74 MICHAPP 708] by the...