People v. Moore, Docket No. 27272

• Decision Date: 11 August 1977
• Docket Number: Docket No. 27272
• Citation: 78 Mich.App. 294,259 N.W.2d 351
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee MOORE, Defendant-Appellant. 78 Mich.App. 294, 259 N.W.2d 351
• Court: Court of Appeal of Michigan — District of US

Page 351

259 N.W.2d 351

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee MOORE, Defendant-Appellant.

Docket No. 27272.

78 Mich.App. 294, 259 N.W.2d 351

Court of Appeals of Michigan.

Aug. 11, 1977.

Released for Publication Nov. 17, 1977.

[78 MICHAPP 295] William A. Haley, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Charles P. Kellett, Asst. Pros. Atty., for plaintiff-appellee.

[78 MICHAPP 296] Before V. J. BRENNAN, P. J., and WALSH and O'BRIEN, ^* JJ.

PER CURIAM.

This case arose out of an armed robbery, and a murder incident thereto, which resulted in five men being charged with felony murder and robbery armed. Three of these five entered pleas to lesser offenses, while the cases of defendant and one Gregory Houston were consolidated and tried together. Houston was acquitted on both counts, but the defendant was convicted by a jury on November 10, 1975, of robbery armed, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. On December 5, 1975, defendant was sentenced to seventeen to forty years in prison. He appeals as of right.

The defendant and codefendant Houston were charged under separate warrants and informations and were bound over in separate preliminary examinations. At the defendant's preliminary examination, accomplice Rakestraw testified, but at trial he refused to testify despite having already pled guilty and having been sentenced for his role in this crime. Over defendant's objection, the trial court then admitted Rakestraw's preliminary examination testimony as substantive evidence under M.C.L.A. § 768.26; M.S.A. § 28.1049. However, since codefendant Houston and his attorney had not been present at that examination and had never had the opportunity to cross-examine Rakestraw, the jury was instructed to consider that testimony only in determining the defendant's guilt or innocence. Defendant contends on appeal that the admission of this testimony was error, in that the witness was not "unavailable" as required, by the statute, and that the witness Rakestraw was not subjected to "extensive" cross-examination at the [78 MICHAPP 297] preliminary examination, and thus that such use violated the defendant's constitutional rights of confrontation and cross-examination.

Michigan courts have in several cases held that a witness is "unavailable" for purposes of M.C.L.A. § 768.26; M.S.A. § 28.1049, when he refuses to testify. People v. Pickett, 339 Mich. 294, 63 N.W.2d 681 (1954), cert. den., 349 U.S. 937, 75 S.Ct. 781, 99 L.Ed. 1266 (1955); People v. Szeles, 18 Mich.App. 575, 171 N.W.2d 550 (1969); People v. Goldman, 349 Mich. 77, 84 N.W.2d 241 (1957). Defendant's attempt to distinguish the above cases by saying that in the present instance the witness may have had legitimate Fifth Amendment rights to protect since he was appealing, is not persuasive. If the witness had a legal reason not to testify, instead of merely being recalcitrant, his "unavailability" for purposes of the statute would be unaltered. Defendant cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), as authority for his position that without "extensive" cross-examination at the preliminary examination, use of that testimony violated his constitutional rights of confrontation and cross-examination. Those cases, however, involved use of confessions by accomplices or codefendants who did not testify, thus denying the defendants any opportunity for cross-examination. While recognizing that those rights had been violated there, the Court in Douglas stated, "an adequate opportunity for cross-examination may satisfy the (Sixth Amendment confrontation) clause even in the absence of physical confrontation". 380 U.S. at 418, 85 S.Ct. at 1076. Worthy of note is the case of United States v. Allen, 409 F.2d 611 (CA 10, 1969), where the Court considered and rejected an argument similar to defendant's here. [78 MICHAPP 298] Having discussed Douglas v. Alabama, supra, the Court first found that the witness was "unavailable" because of the invocation of the Fifth Amendment at trial, and then addressed the question of extent of cross-examination, saying (at 613):

"The argument is that because of this fundamental difference the cross-examination of a prosecution witness at a preliminary hearing is less searching into the merits and hence does not satisfy the demands of the confrontation clause. We believe that the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity. * * * The extent of cross-examination, whether at a preliminary hearing or at a trial, is a trial tactic. The manner of use of that trial tactic does not create a constitutional right. To paraphrase Pointer ¹ the statements of the witnesses were made 'at a full-fledged hearing' with accused present and represented by counsel who was given 'a complete and adequate opportunity to cross-examine.' " (Emphasis added.)

In the present case, defendant's cross-examination of Rakestraw at the preliminary examination takes up twelve pages of trial transcript; further, it does not appear that the examining magistrate attempted to hurry or cut short the questioning. We thus hold that there was adequate opportunity for cross-examination, and therefore there was no error in admitting the preliminary examination testimony in the present case.

Defendant also contends that the trial court erred in denying the defendant a separate trial. We note that codefendant Houston's attorney moved for a severance just prior to trial and just after Rakestraw refused to testify, the motions being on the basis that there was some adverse [78 MICHAPP 299] evidence relating to the defendant only, that might by association prejudice his client. It was not until after the People rested that defendant's counsel for the first time joined in a renewed motion for severance, this time on the basis of conflicting defenses. Defendant also contends on appeal that the severance was necessary because of the fact that his codefendant testified and he did not, putting him in a bad light before the jury, and because he was prejudiced by the instruction that Rakestraw's testimony was to be...