People v. Castaneda

Decision Date22 February 1978
Docket NumberDocket No. 77-676
Citation265 N.W.2d 367,81 Mich.App. 453
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guadalupez B. CASTANEDA, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Mitchell & Vilella, P. C. by H. Eugene Bennett, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and R. B. BURNS and BOYLE, * JJ.

BOYLE, Judge.

Defendant was convicted by a jury of delivery of heroin in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), and was sentenced to five to twenty years imprisonment. He appeals as of right.

The pertinent facts are as follows: On July 28, 1975, in the City of Lansing in this state, an undercover police officer was working with one Alfredo (Freddy) Velasquez, a paid informant, who was to set up a drug deal with defendant. After the deal was arranged, according to the testimony, the officer left Velasquez with defendant while the officer went to get the necessary money for the buy and also police assistance. The officer had been assured by defendant that the heroin would be delivered upon his return.

When the officer returned to the arranged meeting place at 500 East Grand River in Lansing, he was met by Velasquez, who showed him the heroin, which was in a bag in the nearby bushes. Defendant was nearby, and the officer testified he never saw this bag in defendant's possession. When the officer attempted to pay defendant, he refused receipt of the money and the arrest was then made.

At the preliminary examination, Velasquez testified as to arranging with defendant for the drug sale to the officer; that he had known defendant for five or six years and had previously dealt with him in drug transactions; that initially defendant was reluctant to deal with him on this occasion because of rumors Velasquez was a police informant; that defendant eventually agreed to deal with Velasquez and provided a sample for him to try. He testified further that after the officer left to get some money to pay for the drug, defendant took the heroin from his possession and placed it in some bushes. Velasquez identified the heroin as that placed in the bushes by defendant. On the basis of the testimony by the officer and Velasquez, defendant was bound over for trial.

On May 10, 1976, pursuant to a plea agreement, defendant entered a plea of guilty to possession of heroin. However, on May 24, 1976, after a hearing, defendant's motion to vacate the plea was granted. At this hearing, Velasquez repudiated his testimony at the preliminary examination, stating defendant had never given him a sample to try and that the heroin that caused the arrest of defendant actually belonged to Velasquez and had been placed there earlier. He referred to one Jesse Garcia as the person who was the real drug dealer.

The trial judge ordered the guilty plea of defendant vacated and recommended perjury charges against Velasquez. After a motion to dismiss because of entrapment and a motion to quash the information were filed and denied, trial was had before a jury as a result of which defendant was convicted.

Defendant raises a number of issues, each of which we will discuss. We note from the record at the outset that the trial was marked with frequent wrangling between counsel and that the trial judge had the difficult task of keeping the trial under control.

Defendant contends the informant, Velasquez, was improperly declared an unavailable witness thus permitting the introduction of his testimony from the preliminary examination when he claimed his Fifth Amendment privilege because of pending perjury charges against him arising out of his repudiation of his testimony at the preliminary examination. Defendant claims he was denied an adequate opportunity to prepare for argument about his unavailability, and that he should not have been declared unavailable because the prosecutor should have either granted Velasquez immunity or agreed to continue the case in order to dispose of the pending perjury charges against the witness.

We find no merit in defendant's claim as to this issue. Defense counsel was present at the hearing on defendant's plea withdrawal where the trial court recommended perjury charges be considered against Velasquez, who there repudiated his preliminary examination testimony. Moreover, defense counsel admitted having communicated with Velasquez prior to trial. He could not have been surprised that he would assert his Fifth Amendment rights.

M.C.L.A. § 768.26; M.S.A. § 28.1049 clearly permits testimony of a witness at a preliminary examination to be read at the trial.

The trial judge permitted Velasquez's testimony at both the preliminary examination and at the hearing to vacate the guilty plea to be read at the trial. We note here defendant took advantage of the opportunity to examine Velasquez at the hearings. The trial judge properly ruled that in asserting his Fifth Amendment privilege, Velasquez had made himself "unavailable" to testify at trial. M.C.L.A. § 768.26; M.S.A. § 28.1049. The propriety of using former testimony of a witness who asserts his Fifth Amendment privilege has been recognized, People v. Pickett, 339 Mich. 294, 306, 63 N.W.2d 681 (1954), and also that of a witness who merely refuses to testify. People v. Szeles, 18 Mich.App . 575, 577, 171 N.W.2d 550 (1969). A witness's physical unavailability is not required. Nor was it required that the prosecutor grant Velasquez immunity under M.C.L.A. § 780.701; M.S.A. § 28.1287(101). See People v. Towlen, 66 Mich.App. 577, 579-580, 239 N.W.2d 668 (1976). There was no showing by defendant of prejudice on this issue.

Defendant further contends that the production of two res gestae witnesses was not properly excused by the trial court. It appears from the record that when the arrest of defendant was made, it was while he was in a group of his friends and acquaintances. Some of these wanted to be elsewhere at the time and took off without the police being able to find out who were present or where they could be located. The identity of two of them, William Lile and Rudy Vella, was learned. Efforts made to contact Lile for trial included phone calls within and beyond this state, and contacts with an undercover unit which was believed to have means to locate him. It developed Lile could not be located several months previously in connection with another case of which circumstance defense counsel was aware. The court ruled that the people had used due diligence to locate him and excused his production.

Vella's name came into the case as someone allegedly present at the arrest of defendant, and defendant demanded he be produced as a res gestae witness. A continuance was granted until the next day by the court to give the prosecutor time to determine whether Vella could be located. The undercover officer then testified as to his efforts which included police department record checks, known addresses, known associates, phone and postal records. This was testified to the court outside the presence of the jury, which testimony included the statement that Vella was not at the point where Velasquez was arrested and that Vella apparently had been picked up in all the confusion by an officer who could not remember Vella's name.

The trial court, observing that there was a conflict in the testimony as to whether Vella was present at the arrest, ruled that because sufficient reasonable efforts had been made to locate Vella, due diligence had been shown and his production excused.

It is well settled that failure to endorse and produce res gestae witnesses may be excused when the prosecutor makes a showing of diligence in searching for witnesses. People v. Rimson, 63 Mich.App. 1, 233 N.W.2d 867 (1975). A trial judge's findings of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown. People v. Bell, 74 Mich.App. 270, 274-275, 253 N.W.2d 726 (1977). The efforts to locate the witnesses satisfied the requirement of due diligence. People v. Blacksmith, 66 Mich.App. 216, 220-221, 238 N.W.2d 810 (1975). We find no abuse of discretion in this area by the trial judge and no prejudicial error in those rulings.

Defendant contends there was reversible error committed by the prosecutor in impeaching the res gestae witness, Rodriguez, by the use of a prior conviction as the first question to him even though the jury was instructed to disregard the question.

The people were obligated to call res gestae witnesses to testify, whether their testimony be favorable or unfavorable. They may be impeached the same as though such witnesses had been called by the defendant. M.C.L.A. § 767.40a; M.S.A. § 28.980(1). In this instance, Rodriguez was present at the time of defendant's arrest and also was in jail with informant Velasquez when the latter stated defendant was not involved in the drug transaction for which he was being prosecuted. He was a res gestae witness and it was obvious to the prosecutor his testimony was going to be favorable to defendant. He was subject to impeachment by the people, and, in the discretion of the court, such may be done by inquiring...

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    ...We agree that the prosecutor has the discretion to decide whom to charge and on whom to confer immunity. See People v. Castaneda, 81 Mich.App. 453, 265 N.W.2d 367 (1978). However, the issue remains why Alexander refused to testify.10 Ultimately, the defendant in Herrera received a new trial......
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