People v. Garcia

• Decision Date: 28 February 1972
• Docket Number: No. 3,Docket No. 10257,3
• Citation: 39 Mich.App. 45,197 N.W.2d 287
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anastacio GARCIA, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 287

197 N.W.2d 287

39 Mich.App. 45

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anastacio GARCIA, Jr., Defendant-Appellant.

Docket No. 10257.

Court of Appeals of Michigan, Division No. 3.

Feb. 28. 1972.

Released for Publication May 12, 1972.

James K. Miller, Pros. Atty., by Michael J. Tummino, Asst. Pros. Atty., and Donald A. Johnston III, Grand Rapids, Chief Appellate Atty., for plaintiff-appellee.

Law, Buchen, Weathers, Richardson & Dutcher, by Patrick M. Muldoon, Grand Rapids, for defendant-appellant.

Before FITZGERALD, P.J., and R. B. BURNS and HOLBROOK, JJ.

PER CURIAM.

The setting and most of the preliminary facts leading to this appeal are contained in People v. Garcia, 19 Mich.App. 465, 466, 172 N.W.2d 888 (1969):

'Bert Crandall was shot and killed in a Grand Rapids bar. Defendant Anastacio Garcia, Jr., was arraigned on an open charge of murder (M.C.L.A. § 767.71 (Stat.Ann.1954 Rev. § 28.1011)); he stood mute, and a plea of not guilty was entered. At a rearraignment he pled guilty to the lesser included offense of manslaughter and subsequently was sentenced to 7 1/2 to 15 years in prison. Later, on defendant's motion, the plea was vacated and a trial ordered for the reason that because of language difficulties Garcia was not fully aware of his constitutional rights when he made the plea of guilty. He was tried by jury on the open charge of murder, found guilty of second degree murder, and sentenced to prison for 10 to 25 years.'

The above sentence was imposed on May 1, 1968. A second De novo trial was commenced on July 20, 1970, pursuant to an order of the United States District Court, based upon its interpretation of Mullreed v. Kropp, 425 F.2d 1095 (CA 6, 1970). Defendant was charged with manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553. He was convicted of the crime charged by jury and sentenced to from 7 1/2 to 15 years.

On Appeal, defendant raises the following issues:

1. Was it error for the circuit court to submit the issue of defendant's guilt to the jury when the prosecution did not produce an indorsed Res gestae witness?

2. Was the trial of the defendant for manslaughter after the trial court had vacated its earlier acceptance of a plea of guilty a violation of defendant's State and Federal right not to be placed in jeopardy more than once for the offense?

3. Was defendant denied the right to counsel by the circuit court's denial of defendant's In propria persona request that his appointed counsel be dismissed?

A showing of due diligence in attempting to produce a witness indorsed on the information will excuse the prosecutor from production of the witness at trial. People v. Barker, 18 Mich.App. 544, 171 N.W.2d 574 (1969); People v. Lewis, 25 Mich.App. 132, 181 N.W.2d 79 (1970). This question of due diligence is a matter within the discretion of the trial court, subject to being overturned on appeal only for clear abuse. People v. Costea, 19 Mich.App. 166, 172 N.W.2d 488 (1969); People v. Tubbs, 22 Mich.App. 549, 177 N.W.2d 622 (1970); People v. Alexander, 26 Mich.App. 321, 182 N.W.2d 1 (1970); People v. Robinson, 30 Mich.App. 372, 186 N.W.2d 12 (1971).

Witness Larry Hall could not be found. Defense counsel admitted that the officer-server had been diligent. Prosecutor notice was received sometime after issuance of the district court order on June 11, 1970. Under these circumstances, to attempt service a week before the scheduled date for trial on June 20, 1970, is not unreasonable. The instant record discloses no reversible abuse of discretion.

The double jeopardy question: Does defendant's plea acceptance and sentencing for manslaughter operate as a bar to a latter charge and prosecution for the same offense? (Plea to manslaughter; second trial charge, manslaughter)

The governing rule is stated in the first case of People v. Garcia, 19 Mich.App. 465, 467, 172 N.W.2d 888, 889 (1969), and affirmed in People v. Harper, 32 Mich.App. 73, 79, 188 N.W.2d 254 (1971):

'When the trial court vacated defendant's plea, the posture of the case was as before the...