People v. Hunter, Docket No. 14615

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: V. J. BRENNAN; O'HARA
• Citation: 48 Mich.App. 497,210 N.W.2d 884
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Author HUNTER, Defendant-Appellant
• Docket Number: No. 1,Docket No. 14615,1
• Decision Date: 25 July 1973

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210 N.W.2d 884 48 Mich.App. 497 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Author HUNTER, Defendant-Appellant. Docket No. 14615. Court of Appeals of Michigan, Division No. 1. July 25, 1973.
Released for Publication Oct. 4, 1973.
Leave to Appeal Denied Nov. 29, 1973.

[48 Mich.App. 498] Thomas A. Neenan, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

V. J. BRENNAN, Judge.

Defendant was convicted of larceny from a person (M.C.L.A. § 750.357; M.S.A. § 28.589) by a jury in the Detroit Recorder's Court. The evidence against the defendant consisted of the complainant's testimony, the testimony of the arresting police officer, and the testimony of complainant's son. The testimony of complainant's son [48 Mich.App. 499] was read to the jury, over the objection of the defendant, from a transcript of the preliminary examination.

The sole argument raised by the defendant on appeal is that the trial court erred by receiving into evidence the preliminary examination testimony of complainant's son. Provision for the admission

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of such testimony under certain circumstances is made in the statutes:

'Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.'

M.C.L.A. § 768.26; M.S.A. § 28.1049.

However, such a transcript may not be admitted into evidence unless the defendant was afforded 'through counsel an adequate opportunity to cross-examine' the witness (Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923, 928 (1965); People v. Martin #2, 21 Mich.App. 667, 176 N.W.2d 470 (1970)) and unless the prosecution demonstrates its 'due diligence' in attempting to procure the presence of the witness at trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); People v. Nieto, 33 Mich.App. 535, 190 N.W.2d 579 (1971); People v. McIntosh, 389 Mich. 82, 204 N.W.2d 135 (1973).

In the case before us, the prosecution did not attempt to demonstrate its good faith or due diligence in attempting to secure the presence of the witness, but instead attempted to establish that had they exercised the requisite diligence it would have been to no avail. After the trial court originally denied the prosecution's request to admit the [48 Mich.App. 500] transcript, the prosecution recalled the complainant (the mother of the missing witness) to the stand. She testified that she had not seen her son for 4 to 5 months. She did not know anyone who had heard from her son, and did not know his whereabouts. However, she was familiar with the identity of the people with whom her son had left the city. She also testified as follows.

'THE COURT: You don't know where they (withess and friends) went to?

'A. No, because I never--I never even have been in that part of the country.

'THE COURT: Do you know anybody who would know where they went to?

'A. Not for sure.

'THE COURT: Any further questions?

'MR. THOMPSON (assistant prosecutor): Yes.

'Q. In addition, Mrs. Watts, this case has been up for trial a number of times, has it not, and you have had contact with the police in terms of this case. Did you at any time inform the police officers that you had no idea of where your son was?

'A. Yes, a couple of times.

'Q. (defense counsel): Mrs. Watts, did any police officers ever come to your house in an attempt to serve a subpoena on your son?

'A. Well, they have came to the house and left them with the children, and, I mean, other kids. Sometimes we went home and found them in the mailbox.

'Q. Nobody ever served you personally, is that correct?

'A. No.'

Following this testimony, the trial court was prepared to admit the transcript because, '* * * all due diligence in the world would not have availed * * *'. At the insistence of defendant's counsel, the police officer charged with serving the subpoenas[48 Mich.App. 501] for the attendance of witnesses

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in this case was called to testify. His entire testimony, the only testimony which recounts firsthand the efforts of the people to produce the missing witness, appears in the transcript as follows:

'Q. (assistant prosecutor): Witness, would you state your name for the Court.

'A. George Steffler, police officer, City of Detroit.

'Q. What is your particular assignment with the Detroit Police Department?

'A. I serve court papers for the court, subpoenas, any other type of paper that would be necessary.

'Q. Did you have a subpoena to serve on a person identified as Murray Watts?

'A. Yes. By checking the files, in fact, I have had it about four or five different times, subpoenas to serve on him.

'Q. Did you have occasion to go to a previously indicated address?

'A. It's always been the same address.

'Q. What address is that?

'A. 2208 Lakewood.

'Q. Did you ever have any contact with Mrs. Watts at that address?

'A. Not personally, no.

'Q. Did you ever make any effort to determine whether or not he lived there?

'A. Yes. One time I went and I received an answer to my knock. I believe it's the girl that answered and said she was either his sister or the daughter, or...