People v. Holleman
| Decision Date | 06 December 1984 |
| Docket Number | Docket No. 70193 |
| Citation | 138 Mich.App. 108,358 N.W.2d 897 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard John HOLLEMAN, Defendant-Appellant. 138 Mich.App. 108, 358 N.W.2d 897 |
| Court | Court of Appeal of Michigan — District of US |
[138 MICHAPP 109] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Fred R. Hunter, III, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.
James M. Neuhard, State Appellate Defender (by Herb Jordan, Asst. State Appellate Defender, Detroit), for defendant-appellant, on appeal.
[138 MICHAPP 110] Before MacKENZIE, P.J., and BEASLEY and GLASER, * JJ.
Defendant, Richard John Holleman, was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to serve not less than 10 nor more than 15 years in prison. Defendant appeals as of right, raising four issues.
The charges arose out of the alleged breaking and entering of a home in Holland Michigan, during which an arson allegedly occurred. Defendant was also charged with arson, but was acquitted of that charge by the jury.
On appeal, defendant's first claim is that the trial court's denial of his request for a continuance was error. On the morning of trial, defense counsel learned that Henry Dykstra, owner of the home and of the property allegedly taken, would not be available to testify. The prosecution informed the court that Dykstra had been hospitalized for heart disease and produced two doctors' letters regarding Dykstra's illness. The prosecutor stated that he had not previously notified defendant that Dykstra would not appear because he had hoped the witness's health would improve by the date of trial.
Defense counsel responded that, although he had noted a doctor's letter in the file concerning Dykstra's illness, he was not aware that the witness would be unable to testify at trial. He requested a continuance on the ground that defendant would be denied his right of confrontation if the court proceeded without Dykstra. The court denied the motion, without obtaining an estimate of how long Dykstra would be unavailable. The [138 MICHAPP 111] trial judge said that his testimony would be cumulative, as Dykstra and his wife were in New Mexico when the incident occurred and he understood that witnesses present at the scene could testify as to the house's contents and condition.
To establish its case, the prosecution relied on the testimony of Lois VandenBosch, Dykstra's daughter, and of Arlene VandenBosch, the daughter's sister-in-law, who had been checking the home daily while the Dykstras were out of town. Arlene VandenBosch testified that she had found everything secure when she checked the home the night before the fire. She said that someone called her the next morning and told her that the house was on fire. After the fire had been put out, Arlene testified that she, her husband, Lois and Lois's husband went into the home to remove valuables because there was no glass in the windows. Among other items, they removed drawers from the master bedroom which were intact and which contained jewelry. Although Arlene testified that she would not be aware if anything was missing from the drawers, she did state that it was apparent that these drawers had not been open during the fire, because their contents were not black.
Lois VandenBosch testified that some of her father's jewelry was missing, including tie clasps, cuff links and a vest chain. She testified that, "I think a couple of watches" were also missing. A number of other valuables, including her mother's jewelry, were left undisturbed. On cross-examination, Lois stated that, though she had been at the house on the day her parents left for vacation, she was only "pretty sure" that they had not taken the missing items with them. She also said that later she had confirmed this information with her father.
Generally, a motion for a continuance is a matter[138 MICHAPP 112] for the discretion of the trial court. 1 In People v. Charles O. Williams, 2 the Supreme Court discussed the review of a trial court's discretion in denying a continuance and quoted the United States Supreme Court, stating:
" [QuotingUngar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).]
In the Williams case, the Supreme Court weighed four factors to determine that there had been an abuse of discretion that required reversal and grant of a new trial. These four factors were stated as follows by this Court in People v. Eddington: 3
"Our Supreme Court has articulated the considerations which should guide the exercise of the trial court's discretion when faced with a request for a continuance in a criminal case: (1) the origin and nature of the right asserted, (2) the defendant's reasons for asserting that right, (3) the defendant's negligence or untimely assertion of the right, and (4) the extent to which previous delays or disruptions are attributable to the defendant."
Defendant contends that his right of confrontation was violated. The prosecution responds that defendant had no constitutional right of confrontation[138 MICHAPP 113] where Dykstra was concerned, since Dykstra never testified against defendant. Instead, the testimony of his daughter was used to establish that items were taken. However, as defendant points out, the prosecution based the assertion that the breaking and entering was done with the intent to commit larceny on the fact that some of Dykstra's possessions were actually taken. We believe that relying solely on the testimony of Lois VandenBosch to establish this fact was error, in view of the circumstances.
Dykstra was endorsed on the information as a witness and defendant anticipated his presence at trial. There is no indication as to what his testimony might have been and, therefore, the trial judge's conclusion that his testimony would be cumulative appears to be unsupported. There was no evidence introduced regarding the length of Mr. Dykstra's incapacity. This information should have been obtained by the trial judge prior to denying the request for a continuance.
Furthermore, this is not the typical breaking and entering case. The fact that defendant was being tried for both the arson and breaking and entering of the same house, the fact that there was a considerable trail of blood in the house, the fact that the prosecution relied on the alleged removal of personal property as the basis for a finding of the necessary element of intent to commit larceny, and the fact that the jury found defendant not guilty of arson, raises defendant's claim that it was an abuse of discretion to deny him a continuance beyond that of a mere technicality.
As to the third and fourth elements of the Williams, supra, test, we do not believe that the request for a continuance was untimely, nor were there previous delays attributable to defendant. If [138 MICHAPP 114] the witness was unavailable due to continuing long-term illness, defendant should have been informed of that fact prior to the date of trial. In light of the importance of Dykstra's testimony to establish larceny and the timing of the discovery of his unavailability, the continuance should have been granted and...
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People v. Grier
...not every sentence must be vacated because a presentence report refers to a reversed conviction, see People v. Holleman,[152 MICHAPP 135] 38 Mich.App. 108, 116, 358 N.W.2d 897 (1984), the successor trial court in this case was unable to determine whether the sentence imposed would have been......