People v. Martin

• Decision Date: 06 February 1970
• Docket Number: No. 1,Docket No. 7014,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommye Douglas MARTIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 470

176 N.W.2d 470

21 Mich.App. 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommye Douglas MARTIN, Defendant-Appellant.

Docket No. 7014.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Eugene A. Sikora, 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., Arthur N. Bishop, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Defendant was arrested and charged with robbery armed, ¹ assault with intent to commit murder, ² and rape. ³ All three charges grew out of an incident in Detroit on April 9, 1967. It was alleged that on that date appellant entered the apartment of Mr. and Mrs. Clarence Dunning, threatened repeatedly to kill them, robbed them, beat them both severely, and raped Mrs. Dunning.

At the preliminary examination, Mrs. Dunning testified as to the events, and appellant was held for trial. In July, 1967, Mrs. Dunning died.

On October 14, 1967, trial was had without a jury in the recorder's court for the city of Detroit. At trial, over the objection of defense counsel, the people introduced the transcript of Mrs. Dunning's testimony at the preliminary examination. Earlier in the trial, Mr. Dunning had testified as to the robbery and assault with intent to commit murder, but he testified that he was blindfolded and in an adjoining room when the alleged rape took place.

Defendant was found guilty of all three charges against him and sentenced to life imprisonment. He then perfected this appeal.

There is but one issue raised on appeal: did the trial court commit reversible error by admitting the transcript of Mrs. Dunning's testimony at the preliminary examination? Defendant contends that the admission of this testimony violated his right to cross-examination and confrontation of witnesses, which right is guaranteed by the Michigan Constitution. Const.1963, art. 1, § 20. He specifically points out the trial court's remarks at the outset of the preliminary examination:

'The Court: At the outset of this case, before calling it, the Court would like to request counsel on both sides, to bear in mind that this is an Examination where only probable cause is necessary to be established, and that this is not a trial on the merits of the case, and with that in mind the Court suggests that only questions that might be essential to the establishing of probable cause be gone into at this time.

'Now, the Court does not say that with the idea of stopping you at all from going into a full and complete cross examination of the witness, but merely to suggest that you confine your questions to the salient points only.'

Though given the opportunity, the cross-examination of the people's witness, the deceased Mrs. Dunning, consisted of two questions, to wit:

'CROSS EXAMINATION

BY MR. DYE:

Q: You are Mrs. Dunning, is that correct?

A: Yes.

Q: Would you please repeat for me what you said this party was wearing at the time?

A: The only thing I noticed was a light colored jacket, and I think it was beige.

MR. DYE: All right, I have no further questions of the witness.'

Defendant argues that full and vigorous cross-examination was forestalled by the trial court's opening statement to opposing counsel, and that this truncated cross-examination was a direct consequence of said statement.

Under the appropriate circumstances, Michigan criminal procedure permits the introduction of prior recorded testimony (M.C.L.A. § 768.26 (Stat.Ann.1954 Rev. § 28.1049)), in accordance with generally accepted rules of evidence. 5 Wigmore, Evidence (3rd ed.), §§ 1395, 1396, 1402. However, the United States Supreme Court has declared that the 6th Amendment right to cross-examine and confront witnesses is secured to state court defendants through the 14th Amendment. Douglas v. Alabama (1965), 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Accordingly, where a defendant has been effectively denied his rights of cross-examination and confrontation at a preliminary examination, testimony taken at the examination may not be introduced at trial. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

The holding in Pointer is not authority for the instant case in that the defendant Pointer was not represented by counsel at the preliminary examination. The numerous post-Pointer Michigan cases dealing with the admissibility of preliminary examination testimony at trial all indicate that defense counsel did in fact conduct cross-examination of adverse witnesses. People v. Doverspike (1966), 5 Mich.App. 181, 146 N.W.2d 85; People v. Frazier (1969), 16 Mich.App. 38, 167 N.W.2d 481; People v. Havey (1968), 11 Mich.App. 69, 160 N.W.2d 629, and People v. Dusterwinkle (1966), 3 Mich.App. 150, 141 N.W.2d 719. The precise situation here, where defendant's attorney conducted seemingly perfunctory cross-examination, is one of first impression in this state.

Adding to the uncertainty are Dicta from two United States Supreme Court cases, Pointer, supra, and Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. In Pointer, 380 U.S. at p. 407, 85 S.Ct. at p. 1069, the Court said:

'The case before us would be quite a different one had (the) statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.'

In Barber, 390 U.S. at p. 725, 88 S.Ct. at p. 1322, the Court subsequently said:

'The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, * * * (T)here may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause * * *.'

The language of the Michigan cases does not amplify the situation. People v. Doverspike, Supra; People v. Dusterwinkle, Supra, and People v. Frazier, Supra, make no reference to the 'opportunity' for complete cross-examination. The holding in Havey, supra, refers to the fact that 'defendant Havey's counsel was given a complete and adequate opportunity to cross-examine * * * and in fact cross-examined the witness at length,' citing People v. Chapman (1968), 380 Mich. 74, 155 N.W.2d 827, which is virtually identical to Pointer on its facts.

The California courts have grappled with the problem of the admissibility of preliminary examination testimony at trial, and their discussions are worthy of some attention. Of particular importance to the case at bar, where the Nature of the preliminary examination is being challenged, is People v. Gibbs (1967), 255 Cal.App.2d 739, 743, 63 Cal.Rptr. 471, 474. In reversing appellant's conviction, the Court there said:

'Bare existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indicator of the opportunity's adequacy. Pointer v. State of Texas holds the opportunity inadequate when the accused has no lawyer. The presence and participation of counsel, however, do not necessarily ensure the opportunity's adequacy. Qualitative factors play a role. The nature of the proceeding; the character of the witness and his connection with the events; the extent and subject of his direct testimony; the time and preparatory opportunities available to the accused and his attorney--these are some of the influential factors.'

Also highly relevant to the case here is People v. Berger (1968), 258 Cal.App.2d 622, 66 Cal.Rptr. 213. In Berger, appellant claimed that he was denied the right to cross-examination when his attorney failed to cross-examine a witness at a preliminary examination, and a transcript of the testimony was later introduced at trial. The Court responded:

"Innumerable Appellate Court cases in California support the rule of law that where a live and otherwise competent witness is absent from the state, without any complicity to keep him from the court and his testimony has been previously given and recorded before the defendant with adequate opportunity by defendant's counsel to cross-examine, the evidence so given is admissible and not violative of defendant's constitutional rights of due process.' Among the crucial words in the above statement are 'adequate opportunity' for cross-examination of the absent witness as contrasted with the present claim that such witness was not in fact subjected to adequate cross-questioning. The present contention appears to be of the hindsight variety since it goes to the matter of Dunston's motives in testifying as he did. The constitutional guarantees do not go that far, at least in the present case, thus distinguishing it from People v. Gibbs (1968), 255 Cal.App.2d 739, 63 Cal.Rptr. 471.'

People v. Berger was remanded to the California court by the United States Supreme Court (1969), 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, to be considered in the light of Barber v. Page, Supra. On remand, the California court reversed Berger's conviction because the prosecution had made no good-faith attempt to secure the missing witness (1969), 272 A.C.A. 671, 77 Cal.Rptr. 617. In the instant case, the question does not arise, since the witness was deceased.

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