People v. McIntosh, Docket No. 8515

CourtCourt of Appeal of Michigan (US)
Writing for the CourtT. M. BURNS; LEVIN
Citation191 N.W.2d 749,34 Mich.App. 578
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Franklin McINTOSH, Defendant-Appellant
Docket NumberDocket No. 8515,No. 2,2
Decision Date24 June 1971

Page 749

191 N.W.2d 749
34 Mich.App. 578
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Franklin McINTOSH, Defendant-Appellant.
Docket No. 8515.
Court of Appeals of Michigan, Division No. 2.
June 24, 1971.
Released for Publication Dec. 3, 1971.

[34 Mich.App. 581]

Page 750

William Goldberg, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and T. M. BURNS and HUGHES *, JJ.

T. M. BURNS, Judge.

Defendant appeals his jury conviction of larceny in a building. M.C.L.A. § 750.360 (Stat.Ann.1954 Rev. § 28.592).

On April 27, 1967, defendant and a companion, Joseph Pritchard, stopped at a service station for automobile repairs on defendant's car. While defendant and pritchard were still at the station, the attendant, Jerry Wrenn, noticed that a canvas bag containing the station's receipts was missing. Wrenn phoned the State Police who immediately dispatched two officers to the service station. Upon their arrival, the officers were told by Wrenn that he thought the defendant was the person who took the canvas bag. The officers then searched defendant, his companion, and defendant's car where they found the missing canvas bag. Defendant was charged with larceny in a building, M.C.L.A. § 750.360 (Stat.Ann. § 28.592), and was convicted by a jury and sentenced to serve from 3 1/2 to 4 years in prison. After his motion for a new trial was denied, defendant brought this appeal contending that the court below committed several reversible errors.

[34 Mich.App. 582] The complainant, Jerry Wrenn, could not be located at the time of the trial for purposes of testifying. He had, however, testified at the preliminary examination and that testimony was admitted at trial. Defendant contends that the prosecution's failure to produce the witness at trial violates the confrontation clause of both the United States Constitution 1 and the Michigan Constitution. 2

The United States Supreme Court held that the Sixth Amendment right to the confrontation of witnesses is applicable to the states in Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The Supreme Court there reversed petitioner's conviction because it was based in part upon testimony taken at the preliminary examination where defendant was not represented by counsel. The court pointed out, however, that the result would have been quite different had the defendant been represented by counsel and the witness been cross-examined:

'The case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at

Page 751

which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.'

In the case at bar, defendant was represented by counsel at the preliminary examination and counsel did conduct a cross-examination of the complainant. Although defendant now claims that counsel was inexperienced and that he should have questioned Wrenn about his criminal record for credibility purposes, defendant, in his brief, offers nothing to establish either defense counsel's inexperience or the existence of any criminal record which Wrenn might have. This court finds nothing to indicate that defendant's[34 Mich.App. 583] counsel's performance at the preliminary examination was anything but competent. We find, therefore, that defendant was not deprived of his right to confrontation since the witness was adequately cross-examined at the preliminary examination.

Michigan does require, however, a showing by the prosecution that a reasonable effort has been made to locate the witness before the prior testimony may be admitted. 3 Defendant contends that such a reasonable effort was not made in the case at bar.

Detective Mungeon of the Michigan State Police testified that a subpoena was issued for Wrenn on July 10, 1968. The first place where he attempted to serve the subpoena was the situs of the crime, the gasoline station where Wrenn had been an attendant. Wrenn's boss, Mr. Buchanan, told Detective Mungeon that Wrenn's real name was Danny Hill and that he believed that he was in prison in North Carolina.

Detective Mungeon and Buchanan then went to an uncle of Wrenn in Flint who advised them that Wrenn was in Burlington, North Carolina living on Webb Street.

A Detective Donovan then testified that after learning that Wrenn was in North Carolina, he made long distance calls to that state attempting to contact him. These efforts were without results. Donovan also contacted the Burlington, North Carolina Police and requested them to locate witness Wrenn and also informed them that complainant also went by the name of Danny Hill. Donovan was informed that they would attempt to locate Wrenn, but he testified that the Burlington Police never contracted him.

The trial judge, upon learning that Wrenn was unavailable, adjourned the trial from July 23, 1968, [34 Mich.App. 584] to October 29, 1968. Trooper Dailey of the Michigan State Police testified that he received the subpoena for Wrenn on October 22, 1968. He stated that he called the Burlington, North Carolina Police Department and that they told him that they would contact him by certified mail if Wrenn could be located. The North Carolina Police also told Dailey that they were running a check to determine whether Wrenn was incarcerated in one of their institutions. Dailey stated that he received no communication from the North Carolina Police, and therefore, on the day of trial he made two more calls to the North Carolina authorities but received no further information.

The trial judge, after hearing the above testimony, was satisfied with the attempts of the State to locate the complainant. Under People v. Boyles (1968), 11 Mich.App. 417, 422, 161 N.W.2d 448, the sufficiency of the effort to produce a witness is a question for the trial court and its determination will not be disturbed, absent a showing of an abuse of discretion by the trial judge. Based upon the above testimony, we find no such abuse of discretion, and therefore find no error by the trial judge in admitting the complainant's prior testimony.

Defendant also contends that the people did not make a diligent and reasonable effort to produce defendant's companion

Page 752

at the scene of the crime, Joseph Pritchard, who had been indorsed as a witness. Although we have no confrontation issue involved here, the people must still show that a reasonable effort was made to produce the witness. 4

Detective Mungeon was recalled to the stand to establish the prosecution's diligent effort to locate witness Pritchard. He stated that he received the [34 Mich.App. 585] subpoena for Pritchard about the same time he received the subpoena for Wrenn. Detective Mungeon then testified that he was informed that Pritchard was in Detroit so he sent the subpoena to the State Police there. The State Police then made a check of Pritchard's street address in Detroit but could not locate him.

Detective Mungeon then testified that he had been informed that Pritchard might be in the State Prison in Jackson, Michigan, but that a check with the record officer there indicated that Pritchard had been discharged in 1962 and that they had no further record of him.

Detective Dailey, who had also attempted to locate the complainant, testified that he had personally gone to Pritchard's last known address, but that the party living there had never heard of Pritchard. Dailey also stated that since defendant and Pritchard were friends, he had attempted to locate Pritchard through the defendant who was out on bond at the time. However, neither Dailey nor defendant's attorney were able to locate the defendant for purposes of finding out if defendant knew the whereabouts of his friend.

The trial court, after hearing the above testimony, expressed itself satisfied with the State's effort to produce indorsed witness Pritchard. We find nothing in the record to indicate that the trial court abused its discretion in ruling that the State's effort had been sufficiently diligent. 5 We therefore find defendant's second contention to be without merit.

The defendant next submits that the trial court erred in denying defendant's pre-trial motion to suppress the evidence (the canvas bag and its contents) obtained from a search of the defendant's automobile.

[34 Mich.App. 586] In People v. McDonald (1968), 13 Mich.App. 226, 163 N.W.2d 796, a case involving the search of an automobile, this court stated at pages 232, 233, 163 N.W.2d, at pages 799:

'The Constitutions do not prohibit all warrantless searches. Where a warrant has not been obtained, the validity of the search depends on the law's appraisal of the reasonableness of the search,...

To continue reading

Request your trial
7 cases
  • People v. Adams, Docket No. 3940
    • United States
    • Court of Appeal of Michigan (US)
    • June 24, 1971
    ...seized and held against his will within the prison by inmates. Jury convictions of kidnaping were affirmed in both cases on the law and [34 Mich.App. 578] the facts. The evidence was held sufficient to justify the verdicts. See State v. Randall (1960), 137 Mont. 534, 353 P.2d 1054, and Stat......
  • People v. Harris, Docket No. 13191
    • United States
    • Court of Appeal of Michigan (US)
    • October 26, 1972
    ...witness by which time the given address was useless, not followed by further attempts, was completely insufficient); People v. McIntosh, 34 Mich.App. 578, 191 N.W.2d 749 (1971), leave granted 386 Mich. 762 (1972) (where Judge Levin in his dissenting opinion would find the people's single te......
  • People v. Hooper, Docket No. 12909
    • United States
    • Court of Appeal of Michigan (US)
    • October 30, 1973 the defendant to the questioning. As a general rule, failure to make timely objection precludes appellate review. People v. McIntosh, 34 Mich.App. 578, 191 N.W.2d 749 (1971); People v. Roby, 38 Mich.App. 387, 196 N.W.2d 346 (1972). However, since appellate courts cannot condone manifest ......
  • People v. Roby, Docket No. 10062
    • United States
    • Court of Appeal of Michigan (US)
    • February 22, 1972
    ...cognizance of the errors. We agree. As a general rule, failure to make timely objection precludes appellate review. People v. McIntosh, 34 Mich.App. 578, 191 N.W.2d 749 (1971). However, since appellate courts cannot condone manifest injustice, this Court can react, even in the absence of ti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT