People v. Gross, Docket No. 57689
| Decision Date | 06 May 1983 |
| Docket Number | Docket No. 57689 |
| Citation | 123 Mich.App. 467,332 N.W.2d 576 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman L. GROSS, Defendant-Appellant. 123 Mich.App. 467, 332 N.W.2d 576 |
| Court | Court of Appeal of Michigan — District of US |
[123 MICHAPP 468] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Stephen H. Naegele, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for People.
James R. Neuhard, State Appellate Defender by Rolf E. Berg, Deputy State Appellate Defender, for defendant-appellant on appeal.
Before BEASLEY, P.J., and M.J. KELLY and WHITE *, JJ.
Defendant was convicted by a jury of receiving and concealing stolen property exceeding the value of $100, a 1979 Ford Bronco, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. He was sentenced to a term of five years probation with the first year to be served in jail. He was released on bond pending appeal. Defendant appeals as of right.
Defendant argues that the trial court erred in admitting the preliminary examination testimony of an unavailable witness into evidence rather than granting an adjournment so that the witness could testify in person. The defendant argues that without that testimony the prosecution did not present sufficient evidence that the Bronco was stolen.
One of the essential elements of the crime of receiving and concealing stolen property is that the property involved must have been stolen. People v. Tantenella, 212 Mich. 614, 619, 180 N.W. 474 (1920). The owner of the Bronco, Christoper A. Smith, testified at defendant's preliminary examination that on a Friday night he parked and [123 MICHAPP 469] locked the vehicle in his driveway. He did not give anyone permission to take it. When he awoke the next morning, the Bronco was missing. He immediately called the police and reported the vehicle as being stolen.
The trial was scheduled for November 19, 1980. The sheriff, however, was unable to locate and serve process on Smith. As a result, the trial date was adjourned to December 16, 1980. On the second day of trial, the prosecution informed the court that Smith had been hospitalized three days prior to trial, was still in the hospital, and was undergoing extensive tests for a possible aneurysm. The people moved for the admission of Smith's preliminary examination testimony into evidence.
The trial court immediately held a hearing on the unavailability of Smith. Keith Papas testified that he telephoned Harper Hospital and was told by Dr. Gurdjian that he was in the process of performing a spinal or lumbar puncture on Smith and did not know when Smith could be released. Detective Raymond Knuth testified that he was informed by Smith's mother that Smith had been hospitalized due to neurological problems and that it was possible Smith was suffering from an aneurysm. Assistant prosecuting attorney Ronald Tyler testified that he spoke with Smith the previous day. Smith had told him that he had been having severe headaches for the last three or four days. The headaches gave Smith a severe burning sensation which Smith feared to be an aneurysm. Smith's family has a history of aneurysms. Smith told Tyler that he had been in bed constantly and that the doctors were "holding him there". Based on this testimony, the trial court found Smith to be an unavailable witness under MRE 804(a)(4). [123 MICHAPP 470] Smith's preliminary examination testimony was then read into evidence.
MRE 804(a)(4) defines a witness as being unavailable if he is unable to be present because of physical or mental illness or infirmity. If a witness is unavailable, his former testimony may be read into evidence, providing the opposite party had an opportunity and motive to develop the testimony by examining the witness. MRE 804(b)(1). On appeal, defendant argues that the trial court abused its discretion in admitting Smith's testimony because due diligence in producing the witness had not been shown. The due diligence requirement, however, applies only under MRE 804(a)(5) ...
To continue reading
Request your trial
-
People v. Taylor, Docket No. 79360
...of a witness who, it was said, was in New York. The witness, however, had not been subpoenaed and, obviously, as in People v. Gross, 123 Mich.App. 467, 332 N.W.2d 576 (1983), and People v. Knox, 364 Mich. 620, 111 N.W.2d 828 (1961), no one could assure the court when, if ever, the witness w......
-
State v. Whisler
...a witness who, in any event, could not come to court even if subpoenaed, would be an asinine bow to futility."); People v. Gross, 123 Mich.App. 467, 332 N.W.2d 576, 578 (1983).9 Under ER 1101(c)(3), the Rules of Evidence prohibiting hearsay testimony under ER 801(d) would not apply in any e......
-
People v. Pullins
...party had an opportunity and motive to develop the testimony by examining the witness at the prior proceeding. People v. Gross, 123 Mich.App. 467, 470, 332 N.W.2d 576 (1983), lv. den. 417 Mich. 1100.36 (1983). However, M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049 gives way to the defendant's con......
-
People v. Cooper
...528, 535-536, 317 N.W.2d 675 (1982); People v. Whetstone, 119 Mich.App. 546, 552-553, 326 N.W.2d 552 (1982); People v. Gross, 123 Mich.App. 467, 470, 332 N.W.2d 576 (1983), lv. den. 417 Mich. 1100.36 (1983); People v. Morris, 139 Mich.App. 550, 554-556, 362 N.W.2d 830 (1984). See also Havey......