People v. McFall

Decision Date08 July 1997
Docket NumberDocket No. 187722
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Beman McFALL, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Robert J. Engel, Pros. Atty., and William E. Molner, Asst. Atty. Gen., for People.

State Appellate Defender by Kristina Larson Dunne, for defendant-appellant on appeal.

Before SAAD, P.J., and NEFF and JANSEN, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of assault with intent to commit criminal sexual conduct involving sexual penetration, M.C.L. § 750.520g; M.S.A. § 28.788(7), and fourth-degree criminal sexual conduct, M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). Defendant subsequently pleaded guilty of being a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083, and was sentenced to concurrent terms of thirteen to twenty years' imprisonment for the assault conviction and to one to two years for the criminal sexual conduct conviction. We affirm defendant's convictions and sentences.

I

The complainant testified that she met the defendant and his brother, William McFall, at the home of her friend Robert Keschick and that she agreed to give defendant a ride in her van in exchange for $5. The complainant testified that defendant directed her to a house, where he got out and indicated that he would return. Meanwhile, the complainant got out of her van, pulled down her pants, and began to urinate. The complainant testified that she then felt defendant's hand between her legs and that he touched her genital area. She said that when she tried to resist, defendant grabbed her and started choking and hitting her. The complainant testified that defendant forced her inside the van and ordered her to pull her pants all the way down, threatening to kill her. During the struggle, the complainant testified, defendant "was fumbling with his hand down by his pants." According to the complainant, defendant eventually let her go without completing a sexual act.

At trial, defendant testified that, in the van, the complainant repeatedly asked defendant to give her some of the prescription medication she had seen defendant with earlier in the evening. Defendant testified that after the complainant urinated outside the van, she grabbed defendant's bag containing the pills. According to defendant, he choked her "a little bit" until she let go of the bag. Defendant admitted that they were "kind of tussling" and that he hit her a few times. Defendant testified that he eventually picked up his things and walked away. Defendant denied trying to take the complainant's pants down or grabbing between her legs and testified that there was nothing sexual in what he did. Defendant further denied threatening to kill the complainant.

II

Defendant challenges the circuit court's denial of his request to secure at trial the presence of his brother, William McFall, who was incarcerated in Illinois. Specifically, defendant insists that the court's ruling denied defendant his Sixth Amendment right to compulsory process for presenting witnesses in his favor. We disagree.

A

Defense counsel presented a subpoena to the prosecutor for defendant's brother, noting that he was "in care of the Cook County Jail, Chicago, Illinois." At a hearing regarding defendant's request to secure his brother's attendance at trial, defense counsel represented the brother's proposed testimony as follows:

His testimony, as I understand it, would be that he was at the house when [the complainant] showed up, that she came back from dinner, that she had been drinking or imbibing something, that when she walked in, she was asking if someone had drugs and that someone, we don't know who, told her that [defendant] might.

He can testify that, in fact, she was asking for percodan or percocet and some other drug, all of which are prescription and that she left with [defendant] after having been told that he may have the drugs.

Defense counsel acknowledged that defendant's brother was not a res gestae witness and that he had not seen the "actual events," i.e., the alleged assault. Counsel stated defendant wished to present his brother to corroborate his testimony that the complainant was asking for drugs and that she offered to give defendant a ride when she learned that he had some.

B

The Compulsory Process Clause of the Sixth Amendment guarantees every criminal defendant the right to present witnesses in their defense. Washington v. Texas, 388 U.S. 14, 17-18, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). To implement this right when there is a need for the testimony of a material witness who resides beyond the subpoena power of the prosecuting state, Michigan has adopted the uniform act to secure the attendance of witnesses from without a state in criminal proceedings (the Uniform Act), M.C.L. § 767.91 et seq.; MSA 28.1023(191) et seq. 1

Under the Uniform Act, a judge may, in certain circumstances, certify that a proposed witness is material to a criminal proceeding:

If a person in a state, which by law provides for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found. [M.C.L. § 767.93(1); M.S.A. § 28.1023(193)(1).]

The Uniform Act and its attendant judicial process may be invoked by either the prosecutor or the defendant. People v. Williams, 114 Mich.App. 186, 201, 318 N.W.2d 671 (1982).

A criminal defendant's right to compulsory process, though fundamental, is not absolute. To the contrary, it requires a showing that the witness' testimony would be both material and favorable to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982). Accordingly, a defendant requesting the presence of an out-of-state witness pursuant to the Uniform Act must (1) designate the proposed witness' location with a reasonable degree of certainty; (2) file a timely petition; and (3) make out a prima facie case that the witness' testimony is material. Williams, supra at 201, 318 N.W.2d 671. On review, this Court will reverse a trial court's ruling only for an abuse of discretion. Id. 2

The Uniform Act thus requires the presentation of enough facts to enable both the court in the demanding state and the court in the state to which the request is directed to determine whether the witness is material to the criminal proceeding. 3 M.C.L § 767.92; M.S.A. § 28.1023(192). The quality and quantity of evidence necessary to establish a prima facie case of materiality will necessarily vary depending on the particular circumstances surrounding each case; however, we note that "prima facie evidence" is

[e]vidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. [Black's Law Dictionary (6th ed), p 1190.]

Although Michigan authority regarding the Uniform Act is limited, this Court has held that unsupported statements that the witness is material or necessary are insufficient to establish a prima facie case of materiality. Williams, supra at 191-202, 318 N.W.2d 671. Courts from other states have suggested that the party seeking the presence of an out-of-state witness pursuant to the Uniform Act should present evidence in the form of an affidavit of the witness or other competent evidence. 4 See, e.g., State v. Moore, 882 S.W.2d 253 (Mo.App., 1994); People v. McCartney, 38 N.Y.2d 618, 381 N.Y.S.2d 855, 345 N.E.2d 326 (1976). We do not find it unfair to impose upon a defendant such a burden. The right to secure witnesses in one's favor must be balanced against the state's legitimate interest in the integrity of the adversary process and the fair and efficient administration of justice. Taylor v. Illinois, 484 U.S. 400, 414-415, 108 S.Ct. 646, 655-56, 98 L.Ed.2d 798 (1988).

Turning to the case before us, we note that defendant's proposed witness was his own brother, who had visited defendant in jail before traveling to and becoming incarcerated in Illinois. Defendant's counsel had not interviewed defendant's brother either personally or by telephone and thus did not personally verify the substance of his proposed testimony. In his brief to this Court, defendant suggests that an appropriate remedy would be to remand this case for a hearing at which the substance of his brother's proposed testimony could be determined. We disagree. Defendant has already been afforded such a hearing, yet failed to present sufficient evidence to establish a prima facie case that his brother's proposed testimony was material.

C

A trial court must not exercise its discretion to deny a request under the Uniform Act in a manner inconsistent with the Sixth Amendment. As noted above, however, the right to compulsory process is not absolute. Consequently, a defendant's request under the Uniform Act must be carefully scrutinized both to protect the accused's right to compulsory process and to prevent useless or abusive issuance of process. On the record...

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