People v. Briseno, Docket No. 150959

• Decision Date: 19 May 1995
• Docket Number: Docket No. 150959
• Citation: 535 N.W.2d 559,211 Mich.App. 11
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amador BRISENO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 559

535 N.W.2d 559

211 Mich.App. 11

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amador BRISENO, Defendant-Appellant.

Docket No. 150959.

Court of Appeals of Michigan.

Submitted April 4, 1995, at Grand Rapids.

Decided May 19, 1995, at 9:50 a.m.

Released for Publication Aug. 3, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Ronald J. Frantz, Pros. Atty., and Gregory J. Babbitt, Asst. Pros. Atty., for the People.

State Appellate Defender by F. Michael Schuck, for defendant on appeal.

Before HOOD, P.J., and MacKENZIE and THOMAS, ^* JJ.

PER CURIAM.

Defendant appeals as of right his conviction of conspiracy to deliver marijuana, M.C.L. §§ 750.157a, 333.7401(2)(c); M.S.A. §§ 28.354(1), 14.15(7401)(2)(c). Defendant was sentenced to four to eight years of imprisonment. Defendant's sentence was enhanced pursuant to M.C.L. § 333.7413(2); M.S.A. § 14.15(7413)(2). We affirm defendant's conviction but remand for reconsideration of the enhancement of defendant's sentence.

Defendant was involved with at least two other men in a conspiracy to deliver marijuana between Texas and Michigan. After Ernesto Gonzalez was stopped in Illinois for a traffic violation on January 24, 1991, police seized marijuana from his car. Illinois police informed a special agent with the drug enforcement agency office in Grand Rapids that Gonzalez was willing to cooperate with law enforcement officials, and a controlled delivery was arranged.

Gonzalez had made several trips between Texas and Illinois in 1990 and 1991. Following his arrest and agreement to work with the police, Gonzales telephoned Tim Miller to inform him that he had arrived from Texas with marijuana. Miller met Gonzalez at the hotel where Gonzalez had been taken by the police and the two men took the car that Gonzalez had driven from Texas and drove to a storage unit. Although on prior occasions Gonzalez would take his vehicle to Miller's garage, on this occasion the car was put into a storage facility because Miller already had a car in his garage. The marijuana was concealed in a special bumper. Miller told Gonzalez to wait for a telephone call.

Miller testified at the preliminary examination that on January 24, 1991, a car arrived from Texas and was stored in his garage. Miller removed the marijuana from the bumper of the car. The marijuana was weighed by Miller and defendant, and most of it was put into a boat that defendant had stored in Miller's garage. Defendant left with some of the marijuana and returned with bags of money, which he put into the bumper of the car. Miller testified that defendant told him that the marijuana was being sold, and defendant paid Miller $600 for his participation.

Gonzalez' call to Miller and the storage of Gonzalez' car in the storage unit occurred on January 26, 1991. Police executed a search warrant against defendant and Miller and found the marijuana that had been placed in the boat and approximately $82,000 in the bumper of the car in Miller's garage.

The trial court admitted, over defendant's objection, Gonzalez' preliminary examination testimony as evidence at defendant's trial. Defendant asserts that his constitutional right to confrontation was violated by the admission of this testimony on the basis of an erroneous finding that the prosecution had made diligent attempts to secure the production of Gonzalez as a witness at defendant's trial. Former testimony of a witness is admissible in a later proceeding where that witness is unavailable to testify and the party against whom the testimony is being admitted had an opportunity to cross-examine the witness at that time. MRE 804(b)(1). The declarant is unavailable when he is absent from the hearing and the proponent of his statement has used due diligence to procure his attendance. MRE 804(a)(5).

The party wishing to have the declarant's former testimony admitted must demonstrate that it made a reasonable, good-faith effort to secure the declarant's presence at trial. People v. James (After Remand), 192 Mich.App. 568, 571, 481 N.W.2d 715 (1992). The test does not require a determination that more stringent efforts would not have procured the testimony. Id.

Because a finding of due diligence is a finding of fact, this Court will not set it aside absent clear error. MCR 2.613; see People v. Wolford, 189 Mich.App. 478, 484, 473 N.W.2d 767 (1991). Because the trial court has the discretion to admit evidence, we review its ruling on admissibility for an abuse of discretion. People v. Davis, 199 Mich.App. 502, 516, 503 N.W.2d 457 (1993). An abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court relied in making its decision, would conclude that there was no justification for the ruling. People v. Taylor, 195 Mich.App. 57, 60, 489 N.W.2d 99 (1992).

The court took testimony from police officer Dean Kapenga regarding his attempts to locate Gonzalez. Kapenga had learned that Gonzalez' last known address was in Mercedes, Texas. The Mercedes chief of police was contacted and agreed to go to that address to see if Gonzalez was there. The chief of police talked to Gonzalez' mother at that address and she told him that she had not seen Gonzalez since the beginning of the defendant's trial. According to Gonzalez' mother, Gonzalez told her that he was in California but left her no telephone number or address. In December 1991, Gonzalez had not called his mother in several months.

Kapenga then investigated whether Gonzalez had received a California driver's license in order to get an address for him there. This investigation led to no information, and, after checking with officials in Texas, no new Texas address was discovered for Gonzalez. Kapenga also contacted the man who was with Gonzalez when he was stopped in Illinois, but this man did not know the whereabouts of Gonzalez. Additionally, there was evidence that Gonzalez had left the authorities with a telephone number at which he assured them he could be reached. However, attempts to contact him through this number were fruitless. Furthermore, the court had been assured after prior proceedings that the attorney representing Gonzalez at the preliminary examination would maintain contact with him. This attorney had not remained in contact with Gonzalez. Lastly, according to Kapenga, federal authorities had been contacted in the effort to locate Gonzalez and the local authorities were informed that the federal system had been unable to locate him.

As a result, the trial court concluded that due diligence in attempting to locate Gonzales had been demonstrated and therefore, because Gonzalez was unavailable at trial, his prior recorded testimony could be admitted. Defendant gives several examples of possible methods of locating Gonzalez that were not attempted by the law enforcement authorities. The authorities were not required to exhaust all avenues for locating Gonzalez, but had a duty only to exercise a reasonable, good-faith effort in locating him. We find that the trial court's finding that the prosecution exercised due diligence in attempting to locate Gonzalez was not clearly erroneous. Thus, its admission of Gonzalez' testimony from the preliminary examination, at which time defendant had an opportunity to and did cross-examine Gonzalez, was not clearly erroneous.

Defendant next argues that the trial court erred in admitting his statements regarding his ownership of the boat and the seized money. These statements were made in connection with decedent's filing of a claim of ownership in a forfeiture proceeding. Even if we were to determine that the trial court erred in admitting this evidence, we find that any error was harmless. There was considerable evidence supporting defendant's conviction and it is unlikely that without defendant's admission of ownership of the boat and money defendant would have been acquitted. People v. Oswald (After Remand), 188 Mich.App. 1, 8, 469 N.W.2d 306 (1991). Miller had testified that defendant stored...