People v. Claugherty, Docket No. 9009
| Decision Date | 27 October 1971 |
| Docket Number | No. 3,Docket No. 9009,3 |
| Citation | 194 N.W.2d 54,36 Mich.App. 648 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Eugene CLAUGHERTY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
William L. Mackay, Lansing, for respondent-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John M. Jereck, Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and BRONSON and T. M. BURNS, JJ.
Defendant was charged with and convicted by a jury of attempting by word and deed to procure the commission of an act of gross indecency with and upon himself by another male person. M.C.L.A. § 750.338 (Stat.Ann.1954 Rev. § 28.570).
Carl Rencoski, investigator for the Michigan Department of Licensing and Regulation with the knowledge and cooperation of the Albion City Police Department, called on defendant, a chiropractor, used a different name, and complained of fatigue and back pain. During the chiropractic examination that followed, testimony indicated there was provocative conversation, a solicitation to do reciprocal immoral acts, and a touching of Rencoski's private parts by the defendant. Defendant, testifying in his own behalf, denied that any criminal advances were made by him and accused Rencoski of being the aggressor.
On appeal, defendant raises five issues:
'1. Did the trial court err in excusing the production of indorsed police witness Edward Sweet?
2. Was it error to allow, over defense's objection, hearsay testimony by Rencoski concerning the source of complaints which started his investigations?
3. Was it error for the prosecutor to state to the Albion Police Chief, 'and you certainly have done a fine job,' during trial and in the presence of the jury?
4. Did the court err in failing to instruct the jury on the issue of entrapment?
5. Was there sufficient evidence to sustain defendant's conviction?
Detective Edward Sweet was indorsed on the information. There was pretrial testimony that he only signed the report, but took no active part in the investigation.
The prosecutor testified that Sweet could not be present because he was somewhere in the South on vacation. The court excused the production of Sweet. Defendant contends that being on vacation is an insufficient reason to deprive him of his right to confrontation and cross-examination.
It is within the court's discretion to excuse the prosecution from producing an indorsed witness upon a showing of diligence. People v. Costea (1969), 19 Mich.App. 166, 172 N.W.2d 488; People v. Tubbs (1970), 22 Mich.App. 549, 177 N.W.2d 622; People v. Alexander (1970), 26 Mich.App. 321, 182 N.W.2d 1.
In this case there is proof of diligence. The trial started on May 14, 1969. On May 7, 1969, an appearance subpoena naming Edward Sweet issued from the prosecutor's office. On May 8, 1969, the server wrote on the back of the subpoena, 'Det.--Sweet not reached; on vacation.' Sweet's vacation was for two weeks.
The prosecutor did make an effort to produce the witness. There is a showing of diligence upon which the trial judge could correctly conclude that Sweet's attendance could not readily be secured. No clear abuse of judicial discretion is demonstrated.
On cross-examination of Rencoski, defense counsel asked:
Rencoski then admitted that no complaints were made to him personally.
On redirect-examination which followed, the prosecutor asked the following question:
'Defense Counsel: I will object.
The testimony only establishes that Rencoski did not receive complaints personally, but from other sources. In view of defense counsel's initiation of a directly-related question it was not error to allow the prosecutor to clarify this procedure.
When questioning the Albion Police Chief, the prosecutor stated:
Defendant contends this 'pat on the back' was uncalled for and prejudicial. Defendant failed to ask for a corrective instruction or even to object to ...
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