People v. James

• Decision Date: 21 January 1992
• Docket Number: Docket No. 140964
• Citation: 192 Mich.App. 568,481 N.W.2d 715
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerald JAMES, Defendant-Appellant. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 715

481 N.W.2d 715

192 Mich.App. 568

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerald JAMES, Defendant-Appellant. (After Remand)

Docket No. 140964.

Court of Appeals of Michigan.

Submitted June 7, 1991, at Lansing.

Decided Jan. 21, 1992 at 10:00 a.m.

Released for Publication April 13, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Olga Agnello, Asst. Pros. Atty., for the People.

State Appellate Defender by Debra Gutierrez-McGuire, for defendant-appellant on appeal.

Before WAHLS, P.J., and McDONALD and REILLY, JJ.

WAHLS, Presiding Judge.

This case is before us for the third time. Defendant was convicted in a bench trial of two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and of possessing a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Our first opinion reversed defendant's convictions because of a lack of a record showing that defendant waived his right to a jury trial in open court. People v. James, unpublished opinion per curiam of the Court of Appeals, decided June 14, 1989 (Docket No. 99073). The Michigan Supreme Court subsequently remanded the case to this Court "for consideration as on rehearing granted." 433 Mich. 908, 448 N.W.2d 347 (1989). On rehearing, this Court was provided with a transcript of the final pretrial conference, at which defendant waived his right to a jury trial. We again reversed, holding that the trial court's general finding of a valid waiver did not satisfy the requirements of People v. Pasley, 419 Mich. 297, 353 N.W.2d 440 (1984), and that the prosecutor did not exercise due diligence in locating a key missing witness, thereby precluding the use of the witness' preliminary examination testimony at trial. People v. James, 184 Mich.App. 457, 458 N.W.2d 911 (1990). The Supreme Court subsequently directed us to remand the case to the trial court for a hearing to determine whether defendant's waiver was voluntary, 437 Mich. 988, 469 N.W.2d 294 (1991), as suggested by Judge Reilly's dissenting opinion on rehearing. Following our remand to the trial court, the case is now again before us, and we again reverse.

At the hearing on remand regarding the voluntariness of the waiver, the trial court found that defendant's waiver of his right to a jury trial was made knowingly, voluntarily, and understandingly, on the basis of the trial court's review of the pretrial conference transcript and its memory of the waiver and recollection that it had intended to make such a finding in the first instance. The requirements of Pasley, supra, 419 Mich. at 302, 353 N.W.2d 440, have therefore been met, and we do not believe that the trial court's finding of fact is clearly erroneous. MCR 2.613(C). In his supplemental brief, filed after the hearing, defendant argues that the waiver was invalid because the trial court did not explain to him that a jury must reach a unanimous verdict in order to convict him, while in a bench trial his fate would be decided by a single person. We disagree. Such advice is not required by case law, statute, or court rule, and the authorities upon which defendant relies are not persuasive. We hold that defendant's waiver of his right to a jury trial was made knowingly, voluntarily, and understandingly.

We reverse, however, because we maintain our belief that the prosecution did not exercise due diligence in attempting to produce witness Gregory Hinton at trial and that Hinton's preliminary examination testimony was erroneously admitted into evidence. The facts pertinent to this issue are discussed in our earlier published opinion. James, supra, 184 Mich.App. at 467-468, 458 N.W.2d 911. MRE 804(b)(1) allows the use of former testimony in a proceeding where the declarant of the testimony is unavailable as a witness. MRE 804(a)(5) states that a declarant is unavailable when the declarant "is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means, and in a criminal case, due diligence is shown."

The test for due diligence is one of reasonableness, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it. Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); People v. Conner, 182 Mich.App. 674, 681, 452 N.W.2d 877 (1990).

In this case, our quarrel is not so much with the amount of effort expended by the prosecution to find Hinton, but the time at which the efforts were made. No efforts were made to locate Hinton until the first day of trial, the prosecutor having assumed that, because a subpoena had been mailed to Hinton three weeks before trial and had not been returned, Hinton would appear. ¹ However, there is no indication in the record that the prosecutor had any contact with Hinton for almost 3 1/2 years between the time of the preliminary examination and the time of trial. W...