People v. Budary, Docket No. 6444

• Decision Date: 24 March 1970
• Docket Number: Docket No. 6444,No. 1,1
• Citation: 22 Mich.App. 485,177 N.W.2d 672
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Melvin Hugh BUDARY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 672

177 N.W.2d 672

22 Mich.App. 485

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Melvin Hugh BUDARY, Defendant-Appellee.

Docket No. 6444.

Court of Appeals of Michigan, Division No. 1.

March 24, 1970.

Released for Publication June 26, 1970.

Raymond J. DeRyck, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for defendant-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

DANHOF, Judge.

Defendant Budary and a co-defendant, Howard Commons, were found guilty of robbery armed by a jury on February 20, 1963 C.L.S.1961, § 750.529 (Stat.Ann.1969 Cum.Supp. § 28.797). It was the theory of the prosecution that Budary and Commons, along with James Murphy and Robert Richter, committed an armed robbery of a Food Fair market in Detroit on December 4, 1961. Initially, only Budary, Commons and Murphy were held for trial, because Richter had left the State and had not yet been apprehended.

Two preliminary examinations were held. The first occurred on January 5, 1962 with Budary, Commons and Murphy as defendants. Attorney Gregory Pillon represented Commons and Murphy. There was no appearance by an attorney for Budary. However, near the conclusion of the examination attorney Pillon made a motion that the case be dismissed as to Commons and Burdary alleging lack of probable cause to believe that the two men were connected with the holdup. The court, however, decided to bind over all three defendants for trial on the charge of robbery armed.

On March 20, 1962 James Murphy pleaded guilty and was later sent to prison. Thereafter, on March 26, 1962 the prosecution moved to dismiss the case against Budary and commons. On July 15, 1962 Budary and Commons were rearrested for the robbery and arraigned on July 16, 1962. A second preliminary examination was held on July 19, 1962 before a different judge than was involved in the first preliminary examination. At this second preliminary examination attorney pillon again represented co-defendant Howard Commons. There was a brief colloquy between the court, Budary and Pillon wherein the court asked Budary why he didn't have a lawyer and he answered that he didn't have the funds. The court then asked attorney Pillon if there was any conflict that he could anticipate and when Mr. Pillon answered none that he could think of the court said, 'You represent both of them for the Examination only.'

By this time Robert Richter had been captured in Chicago, Illinois and returned to Detroit. He also pleaded guilty. At the second preliminary examination he testified for the people, and it is the admissibility of that testimony at trial which is questioned in this appeal.

At the trial which commenced February 14, 1963 defendant was represented by attorney Ted Vincent, appointed by the court, and the co-defendant was represented by Mr. Pillon. The case was tried and decided before the creation of this Court. On October 19, 1967 defendant filed a motion for leave to file a delayed motion for new trial, which was denied January 9, 1969. This Court granted an application for delayed appeal on March 10, 1969.

Defendant argues that the summary appointment of co-defendant's counsel to represent defendant at the second preliminary examination, without the record showing an affirmative determination by the examining magistrate that the defendant intelligently chose to be represented by the same counsel and that his decision was not governed by poverty and lack of information on the availability of assigned counsel to represent him alone, constituted reversible error.

In People v. Dockery (1969), 20 Mich.App. 201, 173 N.W.2d 726, this court held that absent prejudice to the defendant this Court would not reverse because indigent co-defendants were presented at trial by the same appointed counsel. The court's opinion indicated that this was not the most desirable method of procedure and that if there was any conflict of interest in the positions of the co-defendants the result would be different. The Dockery case related to the trial itself. In the instant case we have no question about the actual trial where co-defendants were represented by separate counsel. With regard to the preliminary examination as previously statuted, the court did ask attorney Pillon if he anticipated any conflict and received a negative response. Thereafter attorney Pillon throughout the examination made many objections and cross-examined the people's witnesses vigorously. With regard to witness Richter's testimony there are 10 pages of vigorous cross-examination by Pillon. The fact that near the end of the examination Mr. Pillon indicated that he didn't represent defendant Burdary does not alter the fact that he then went on to represent him by contending that Budary wasn't guilty of the crime inasmuch as the only connection between him and it was that he was some 8 blocks away during its occurrence. Mr. Pillon's remark does not alter the fact that the court at the beginning of the examination did appoint him to represent Budary and he did in fact do so in a competent way.

However, regardless of whether attorney Pillon's representation of the defendant was effective or not, the court in Lundberg v. Buchkoe (C.A.6, 1968), 389 F.2d 154, held that Michigan's arraignment and preliminary examination proceedings did not constitute a critical stage of the proceedings at which counsel for the accused was required. By way of dictum the court said there might be special circumstances in some cases that would suggest that the proceedings were critical and therefore required counsel. However, counsel was in fact appointed for defendant Budary, albeit not in the most exemplary fashion.

Defendant then attempts to buttress his position that he was without effective counsel at a critical stage in the criminal judicial process by stating that actual prejudice is readily discernible. In support of this defendant argues that the critical testimony at the preliminary examination which resulted in defendant's being bound over for trial was that of Robert Richter who upon his capture and return from Chicago pleaded guilty of the same criminal act charged against the defendant and who at the preliminary examination implicated Budary in the robbery. Yet at the trial when Richter was called as a witness for the people he firmly denied that Budary had any connection with the crime. The prosecution then proceeded to read portions of Richter's testimony at the preliminary examination before the jury and over the defense counsel's objections, and this testimony was particularly damaging to Budary's defense. Defendant then says that this testimony was taken at the preliminary examination where Budary did not have his own counsel and where he was denied effective confrontation and cross-examination relative to self-interest, duress or any number of reasons for this damaging testimony.

Defendant cites Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and People v. Chapman (1968), 380 Mich. 74, 155 N.W.2d 827, in support of his position that preliminary examination testimony cannot be admitted at the trial if defendant was not represented by counsel at the preliminary examination. Both cases are readily distinguishable from the instant case because no attempt was made to appoint counsel at the preliminary examination in those cases whereas in this case Pillon was appointed. More significant, however, is the fact that neither of the cases involved use of preliminary examination testimony for the purposes of impeachment as does the instant case. That is true also of People v. Gibbs (1967), 255 Cal.App.2d 739, 63 Cal.Rptr. 471. All of them concerned the admission of preliminary examination testimony as substantive evidence because the witness at the preliminary examination was unavailable to testify at the trial. The point made by the courts was that when defendant wasn't represented by counsel at the preliminary examination or his attorney did not have adequate time to prepare for cross-examination, then defendant had been denied his constitutional right to confront the witnesses against him, which is primarily for the purpose of cross-examination and that, therefore, their testimony could not be used as substantive evidence at the trial. In other words, the people had to bring in the witness at the trial so that the defense counsel had at least one opportunity to cross-examine the witnesses against the defendant. In the present case there is no problem of the defendant not having a complete and adequate opportunity to confront the witness and to cross-examine the witness since Richter took the stand at the trial and the preliminary examination testimony was used only to impeach his testimony at the trial. Clearly this case does not present the 'special circumstances' that the court in the Lundberg case had in mind.

Defendant's counsel argument is that the testimony of the police officer relative to the information given by the allegedly reliable informant did not satisfy the requirements of reliability and particularity of information sufficiently to authorize the trial judge to have denied disclosure of the informant's identity, and that the search incidental to defendant's arrest consequently violated the 4th and 14th amendments of the United States Constitution and the evidence obtained thereby was inadmissible and should have been excluded.

Defendant cites as authority for his position Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 wherein the court said:

'All that the trial court was told in this case was that the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified...