People v. Conner, Docket No. 113685

• Decision Date: 10 April 1990
• Docket Number: Docket No. 113685
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James William CONNER, Defendant-Appellee. 182 Mich.App. 674, 452 N.W.2d 877
• Court: Court of Appeal of Michigan — District of US

Page 877

452 N.W.2d 877

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James William CONNER, Defendant-Appellee.

Docket No. 113685.

182 Mich.App. 674, 452 N.W.2d 877

Court of Appeals of Michigan.

Submitted Jan. 10, 1990.

Decided March 19, 1990.

Released for Publication April 10, 1990.

[182 MICHAPP 675] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Elizabeth L. Jacobs, Detroit, for defendant-appellee.

Before GRIFFIN, P.J., and REILLY and BURNS, ^* JJ.

GRIFFIN, Presiding Judge.

The people appeal by leave granted from a lower court order which denied their motion to use at trial a preliminary examination transcript of the testimony of a material witness whom the prosecution claimed was unavailable. The Recorder's Court felt compelled to bar the use of the former testimony based upon the authority of People v. Dye, 431 Mich. 58, 427 N.W.2d 501[182 MICHAPP 676] (1988), cert. den. 488 U.S. ----, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). We disagree and reverse.

I

Defendant James William Conner was charged with first-degree murder for the May 18, 1988, brutal beating death of Kevin Stanton.

On June 3, 1988, a preliminary examination was held. The first evidence received was an autopsy report on the victim admitted pursuant to stipulation. The report concluded that Stanton died of multiple blunt force injuries to his head, neck, and chest inflicted by a cylindrical object.

Next, Richard Perry testified that on May 18, 1988, he observed and spoke to the defendant at the Adams Apartment Building in the City of Detroit. At that time, the defendant was holding a baseball bat and appeared to be upset. When Perry asked the defendant what was wrong, the defendant responded that "a guy hit him in the face" and that he and his brother "had a little trouble." As the defendant paced back and forth in the hallway, he further told Perry that he was waiting for the man to come down from the upstairs because "he was going to get him." Perry did not witness the subsequent assault but a short time later observed the victim lying in a chair with a bloody towel covering his head.

The last witness called at the preliminary examination was Robert Johnson. Mr. Johnson testified that he was also present in the apartment house on May 18, 1988, at approximately 8:40 p.m., when he heard a noise "like, you know, someone got hit." After hearing the sound, Johnson looked around and saw the defendant with a baseball bat in his hand standing over Stanton's body. According to Johnson, the victim had a fresh injury to [182 MICHAPP 677] his head. Following his direct testimony, Johnson was extensively cross-examined by defense counsel. The cross-examination included detailed questions as to Johnson's powers of observation, abilities of recall, and his previous conviction record. At the conclusion of the preliminary examination, the defendant was bound over to the Recorder's Court for trial on the charge of first-degree murder.

After the bindover, the prosecutor made an oral motion to hold Johnson "in protective custody" for the reason that Johnson had been a reluctant witness whose presence at the preliminary examination was secured only after the issuance of a bench warrant. The prosecutor noted that Johnson had failed to appear at the originally scheduled preliminary examination, although he had been served with a subpoena. In making the motion to incarcerate Johnson, the prosecution conceded ignorance as to the procedure to hold a witness in "protective custody." The district court expressed similar ignorance but nevertheless ordered Johnson detained:

The Court: I don't know it [the procedure] either. I will order him held over. I guess I can.

The parties agree that Johnson was thereafter taken to the overcrowded Wayne County Jail where he was refused admission. Subsequently, the chief judge of the district court vacated the "material witness detainer" on the grounds that the district court had lost jurisdiction of the case following the bindover.

On July 29, 1988, a pretrial conference was held in Recorder's Court. A memorandum prepared in connection with the conference indicated that a three-day jury trial would be scheduled to commence on November 17, 1988. On August 29, 1988, [182 MICHAPP 678] the parties were mailed a trial notice which confirmed the November 17, 1988, trial date.

II

On October 4, 1988, approximately six weeks before trial, the prosecutor resumed his efforts to secure the presence at trial of witness Robert Johnson. On that date, assistant prosecuting attorney Robert Donaldson requested that the officer in charge, Detroit Police Sergeant Kevin Kemp, serve Johnson with a subpoena for trial. Sergeant Kemp promptly proceeded to the Adams Apartment Building, No. 314, 438 Henry Street, Detroit, Michigan, where Johnson had previously been served with the subpoena for his appearance at the preliminary examination and with the bench warrant for his presence at the rescheduled preliminary examination. When Johnson was not found at the apartment, Kemp inquired as to Johnson's whereabouts from the people with whom Johnson had been living, the neighbors, and the management of the building. No one had any information as to Johnson's whereabouts.

Sergeant Kemp then made inquiries with Johnson's known relatives. Contact efforts with Lloyd Johnson proved unsuccessful. Sergeant Kemp, however, was able to speak with Edmund Johnson, brother of the witness, who indicated that he had not seen Robert in months and had no idea where he could be located.

Kemp then attempted to locate Robert Johnson by searching the records of the Secretary of State, the state police, the Michigan Employment Security Commission, and the Department of Social Services. The Secretary of State and Department of Social Services provided Kemp with addresses, but Johnson was not found at either location. The [182 MICHAPP 679] Wayne County morgue, area hospitals, the Wayne County jail, the water department, Detroit Edison, Michigan Bell, Michigan Consolidated Gas Company, and the post office were also contacted to no avail. Johnson's last known place of employment was visited but no one had any information as to Johnson's current whereabouts. Sergeant Kemp testified that there were no leads or information he did not pursue.

Following Kemp's testimony, the prosecution moved for a ruling that Johnson was "unavailable" for the purpose of allowing the use at trial of Johnson's former testimony taken at the preliminary examination. Defendant opposed the motion, arguing that the prosecution failed to exercise due diligence in attempting to produce Johnson for trial.

The Recorder's Court judge denied the motion on the grounds that the prosecution failed to sustain its burden of proving that Robert Johnson was unavailable for trial. The lower court's written order states that the denial was based upon the rationale of People v. Dye, 431 Mich. 58, 427 N.W.2d 501 (1988), cert. den. 488 U.S. ----, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988), and for the reasons stated on the record. The additional reasons stated on the record were: (1) the failure of the prosecution to incarcerate Johnson for the five-month period between the preliminary examination and the scheduled trial; and (2) the tardiness of the people's efforts to serve Johnson for trial. The Recorder's Court judge recognized that "substantial efforts" were made to serve Johnson but felt compelled under Dye to rule that the prosecution's efforts were legally deficient:

[W]hile the prosecution did demonstrate a number of substantial efforts to locate and obtain this [182 MICHAPP 680] witness, the Court is satisfied that it is barred from finding due diligence under Dye, where prosecution's failure to take adequate measures to ensure that a vital witness against a defendant would appear at trial.

III

On appeal, the people argue that the trial court abused its discretion by excluding Johnson's preliminary examination testimony from use at trial. We agree.

A

The Sixth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and Const. 1963, art. 1, Sec. 20, guarantee an accused the right to "be confronted with the witnesses against him...." People v. Dye, 431 Mich. 58, 427 N.W.2d 501 (1988), cert. den. 488 U.S. ----, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). Prior testimony may nonetheless be used by the prosecution consistent with such constitutional guarantees if the witness is "unavailable" ¹ for trial, MRE 804(b)(1), and if the former testimony[182 MICHAPP 681] bears satisfactory indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

In order to establish "unavailability," the prosecution must prove that it exercised diligent good-faith efforts to obtain the witness' presence at trial. Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968); People v. McIntosh, 389 Mich. 82, 86, 204 N.W.2d 135 (1973). The lengths to which the prosecution must go to produce a witness is a question of reasonableness. The test is whether the proponent of the evidence made good-faith efforts to procure the testimony, not whether more stringent efforts would have produced it. Barber v. Page, supra. The Michigan Supreme Court has indicated that, where there are no leads as to the witness' whereabouts, the prosecutor should inquire of known persons who might reasonably be expected to have information that would help locate the witness. Where there are specific leads as to the witness' location, the prosecutor must pursue them. People v. McIntosh, supra at 87, 204 N.W.2d 135.

Whether the prosecution has made a diligent, good-faith effort to produce a missing witness is an evaluation that depends on the particular facts of each case. People v. Dye, supra, 431...