People v. Oaks

• Decision Date: 09 January 1980
• Docket Number: Docket Nos. 78-4863,78-4864
• Citation: 290 N.W.2d 70,94 Mich.App. 745
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Russell OAKS Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Boyd MAPLES, Defendant-Appellant. 94 Mich.App. 745, 290 N.W.2d 70
• Court: Court of Appeal of Michigan — District of US

Page 70

290 N.W.2d 70

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Russell OAKS Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Boyd MAPLES, Defendant-Appellant.

Docket Nos. 78-4863, 78-4864.

94 Mich.App. 745, 290 N.W.2d 70

Court of Appeals of Michigan.

Jan. 9, 1980.

Released for Publication April 4, 1980.

[94 MICHAPP 747] Terrence F. Cavanagh, Ann Arbor, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., Neil J. Juliar, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

PER CURIAM.

David Russell Oaks and Ronald Boyd Maples were jointly tried before a jury, together with one Terry Scutchfield. They were convicted of the charged offense of breaking and entering an occupied dwelling with intent to commit larceny therein, M.C.L. § 750.110; M.S.A. § 28.305. Another codefendant, Larry Maples, later pled nolo contendere to the same charge. Defendant Oaks was sentenced to a prison term of 5 to 15 [94 MICHAPP 748] years. Defendant Ronald Maples was given a 180-day prison sentence and 3 years probation. Both defendants appeal and the appeals have been consolidated due to the identity of the issues raised.

On the afternoon of February 2, 1978, as a result of a telephone call by an informant to the Washtenaw County Sheriff's Department, surveillance was established at the Wood Creek Apartments in Ypsilanti Township. A moving van was observed parked in front of the apartment. The van left the apartments between 7 p. m. and 7:30 p. m. and proceeded to a house at 7107 Platt Road. The van remained parked for 10 or 15 minutes, and the police observed several persons moving furniture from the house into the van. The police followed the van and stopped it on Golfside Road in Ypsilanti. They then arrested David Oaks who was driving, Ronald Maples who was in the passenger seat, and Larry Maples and Terry Scutchfield, who were in the cargo compartment of the van.

Mary Garrett resided at the house in question with her two children and Bonita Benswinger, the babysitter. On February 2, 1978, Ms. Garrett had left the house to go to work. She returned to find the living room furniture, draperies, pictures, and Ms. Benswinger's stereo missing. The furniture in the van was identified as belonging to Ms. Garrett.

At trial, Ms. Benswinger asserted her privilege against self-incrimination to avoid testifying. The prosecution then offered as evidence the testimony given by Ms. Benswinger at the preliminary examination. Defense counsel objected to the admission of this testimony, claiming that the use of the preliminary examination transcript would deny the defendants their constitutional right to confront witnesses against them. The trial court ruled that the testimony was admissible.

[94 MICHAPP 749] At the preliminary examination, Ms. Benswinger testified that she had known the defendants for several months. She had 2 or 3 telephone conversations with Larry Maples, wherein he said that he wanted to come and take everything out of the house and wanted her to leave the house with the doors open. She would be told when she could return to the house.

The defendants' first issue on appeal is whether the use of Ms. Benswinger's testimony at the preliminary examination denied the defendants their constitutional right to confront witnesses against them.

M.C.L. § 768.26; M.S.A. § 28.1049 authorizes the use of prior testimony where a witness cannot be produced at trial. Several cases have stated that a person is "unavailable" for purposes of the statute 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).

In People v. Moore, 78 Mich.App. 294, 259 N.W.2d 351 (1977), the defendant and a codefendant named Houston were charged with felony murder and armed robbery in separate warrants and were bound over in separate preliminary examinations. An accomplice named Rakestraw testified at the defendant's preliminary examination, then refused to testify at trial despite the fact that he had already pled guilty and had been sentenced for his role in the crime. Despite defendant's objections, Rakestraw's testimony at the preliminary examination was admitted, even though codefendant Houston and his attorney had not been present at that examination and never had an opportunity to [94 MICHAPP 750] cross-examine the witness. The Court upheld the use of Rakestraw's preliminary examination transcript, saying that there had been a fully adequate opportunity for cross-examination. The defendant's cross-examination took up 12 pages of transcript, and the examining magistrate made no attempt to hurry or cut short the questioning. This was held sufficient to satisfy the requirements of the Sixth Amendment confrontation clause.

In People v. Castaneda, 81 Mich.App. 453, 265 N.W.2d 367 (1978), an informant named Velasquez testified at that defendant's preliminary examination concerning an alleged sale of heroin. Velasquez subsequently repudiated his preliminary examination testimony. At the trial, Velasquez claimed his Fifth Amendment privilege because of pending perjury charges against him arising out of the repudiation of his testimony. The Court upheld the trial judge's ruling admitting the use of the preliminary examination transcript under M.C.L. § 768.26; M.S.A....