People v. Phillips

• Decision Date: 27 May 1975
• Docket Number: No. 1,Docket No. 18521,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Marshall PHILLIPS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 333

232 N.W.2d 333

61 Mich.App. 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Marshall PHILLIPS, Defendant-Appellant.

Docket No. 18521.

Court of Appeals of Michigan, Division No. 1.

May 27, 1975.

Released for Publication Sept. 4, 1975.

Lawrence R. Greene, 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., Barry A. Resnick, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and DANHOF and KAUFMAN, JJ.

D. E. HOLBROOK, Presiding Judge.

Defendant, Steven Marshall Phillips, was convicted of armed robbery, in violation of M.C.L.A. § 750.529; M.S.A. § 28.797. Defendant appeals as of right.

The complainant, Ronald Sowder, testified that on February 11, 1973, he was 'watching' the apartment of his friend Randy Peters; also present were George Tizedes and Stephanie Stoicoff, both of whom lived across the hall from Peters. Mr. Sowder said that he was acquainted with the defendant, having seen him with one Brenda Kohsmann at Peters' apartment earlier that same evening along with George Tizedes and John Cassaday.

At approximately midnight, Mr. Sowder heard a knock at the door. When he answered it, he saw Brenda Kohsmann standing outside. He then opened the door farther and an unknown male stepped around the corner with a shotgun, and stuck it in his face. He was directed by this unknown figure to lie down on the floor and not to move. While he was on the floor, he could hear people coming in and taking the 'stereo and things'. The stereo was composed of four speakers, a turntable and an amplifier.

During the course of the robbery, Mr. Tizedes and his girl friend Stephanie, were lying on the couch. At first they were asleep, but when they awakened, the man with the shotgun told them to close their eyes and somebody threw a blanket over their heads. Sowder stated that he did not know exactly how many people were in the apartment besides himself, George and Stephanie, but that there were more than three.

At some point before the robbers left, they bound Sowder. He identified people's exhibits 1--A and 1--B, being two rolls of adhesive tape, that had been previously in the apartment, as the tape used to tie him. Sowder freed himself after the intruders left, and took the blanket off George and Stephanie. Thereafter, Sowder and Tizedes drove to Manchester, Michigan, to contact Randy Peters who was on a camping trip. After Mr. Peters came back, the police were notified of the robbery.

Mr. Tizedes testified to basically the same facts as Mr. Sowder. Stephanie Stoicoff concurred in the events of February 11, 1973, at Peters' apartment.

A co-defendant, Gary Steven Cole, testified for the people. Mr. Cole stated he probably saw the defendant, Phillips, at Stacey's Bar on the night in question. Also present were Brenda Kohsmann and Donald Wells, another co-defendant. Cole was riding with an unknown person after they all left the bar. The car in which Cole road stopped in front of 15795 Garrison Lane, and the driver exited. Mr. Cole saw two people get out of another car and walk into the apartment house with the driver of the car. He stated that the two people could have been Brenda Kohsmann and the defendant, Marshall Phillips, but that the reason he told the police it was Marshall Phillips was because his sister told him that name. He went inside the apartment house because someone waved him to come inside. When he entered Peters' apartment, he discovered the driver of the car with a shotgun over someone's head. Mr. Cole said the man with the shotgun directed him to get the stereo.

Detective Laurence Lokuta, of the Southgate Police Department, testified that he went over to Peters' apartment to investigate the robbery. While he was in the apartment he recovered two items of physical evidence, Viz., the two rolls of adhesive tape, which were lying on the living room floor. These were transported to the Michigan State Police laboratory to be tested for fingerprints. On Monday, or Tuesday after the robbery, he spoke with Gary Cole. Mr. Cole named Donald Wells, Brenda Kohsmann and Marshall Phillips as participants in the robbery.

Detective Sergeant Merlin Mowery, of the police laboratory, who was an expert in fingerprint identification, testified that an examination of the rolls of tape sent to the laboratory by Detective Lokuta revealed the fingerprints of the defendant Marshall Phillips.

Both defendant and Detective John E. Henry testified at a Walker ¹ hearing concerning the voluntariness of a statement made by defendant prior to the giving of Miranda ² warnings. The trial judge ruled that he accepted Detective Henry's version as true which was to the effect that the defendant kept interrupting and giving the subject statement, before the officer could give complete warnings. Consequently, Detective Henry was allowed to repeat defendant's statement that his only part in the crime was to take the stereo out of the room and take it to the car.

The people's last witness was to be Brenda Kohsmann. Miss Kohsmann was never produced by the prosecution. Defense counsel demanded a showing of unavailability. The trial judge ruled after a hearing that he was satisfied every effort had been made to bring Miss Kohsmann in court to testify, and since she was unavailable, her testimony at the preliminary examination could be read to the jury.

The reading of the preliminary examination testimony given by Miss Kohsmann indicated that on the night of February 11, 1973 she was at Stacey's Bar with Donald Wells and others. Brenda left the bar with Donald and Theresa Adhearn and went to Randy Peters' apartment to see if he was at home. Another person answered the door and told them that Randy was not there. Thereafter, they left and went over to a friend's house and stayed for about a half an hour, and then went to Peters' apartment a second time. Miss Kohsmann's reason for going the second time was to 'pull an armed robbery'. She also stated that Steven Cole and Marshall Phillips were there. She said she did not remember what happened inside the apartment because she was 'pretty high', but admitted taking some money while in the apartment. After leaving the apartment, she met Donald and Theresa in the car outside. She indicated Donald and Theresa drove her over to the apartment, and while driving, there was a discussion about the robbery.

At the close of the people's case, defense counsel made a motion for a directed verdict based upon his renewed objections to the court's ruling on the use of the preliminary examination testimony of Brenda Kohsmann, and for failure of the people to endorse, or produce an alleged Res gestae witness, Theresa Adhearn. The court denied the motion.

I

The defendant asserts that the trial court abused its discretion by determining that the prosecutor had shown due diligence in attempting to procure the attendance of the witness Brenda Kohsmann.

In Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968), the Supreme Court wrote:

'(T)here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E.g., Mattox v. United States, supra (156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895)), (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence, §§ 1395--1396, 1402 (3d ed. 1940); C. McCormick, Evidence, §§ 231, 234 (1954).'

Thus, one of the key factors involved in the Sixth Amendment right to confrontation of adverse witnesses is an adequate opportunity on the part of defense counsel to cross-examine. See also Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069--1070, 13 L.Ed.2d 923, 928 (1965).

For a witness to be unavailable for the purpose of exception to the confrontation requirement, the prosecution must show that it has made a good- faith effort to obtain the witness's presence at trial. Barber v. Page, supra, 390 U.S. at 724--725, 88 S.Ct. at 1321--1322, 20 L.Ed.2d at 260. See also People v. Nieto, 33 Mich.App. 535, 538, 190 N.W.2d 579, 581 (1971). Thus, the prosecution must demonstrate to the satisfaction of the trial court that it, with due diligence and in good-faith, attempted to procure the attendance of the witness. See, for instance, People v. Hunter, 48 Mich.App. 497, 503, 210 N.W.2d 884, 887 (1973), and People v. Johnson, 51 Mich.App. 224, 230, 214 N.W.2d 713, 716 (1974). The question of due diligence is a matter within the discretion of the trial court and will be overturned by this Court only when a clear abuse of that discretion is shown. People v. Bersine, 48 Mich.App. 295, 302, 210 N.W.2d 501, 505 (1973), and cases cited therein.

Here, after delays in waiting for the witness, a subpoena issued and was served through another police department. The following occurred:

'The Court: What is the status of Brenda Kohsmann?

'Mr. McMahon (prosecutor): I had my office prepare a bench warrant for her arrest.

'Her mother called me and said that this girl was frightened to death, that she had been threatened.

'Mr. McCann (defense counsel): Your Honor, I am going to object.

'Mr. McMahon: The judge asked me a question.

'The Court: I want to know what the story is on this. The jury has left.

'Go ahead.

'Mr. McMahon: She says she is frightened, has been threatened. She doesn't want to testify. Her mother admitted to me the earlier story that she was sick was fabricated to get her daughter off the hook from testifying.

'She told her...