People v. Pulley, Docket No. 10972

• Decision Date: 20 January 1972
• Docket Number: Docket No. 10972,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Jimmy C. PULLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 283

195 N.W.2d 283

37 Mich.App. 715

PEOPLE of the State of Michigan, Plaintiff-Appellee. v. Jimmy C. PULLEY, Defendant-Appellant.

Docket No. 10972.

Court of Appeals of Michigan, Division No. 3.

Jan. 20, 1972.

Released for Publication March 17, 1972.

Joseph J. Jerkins, McKinley, Jerkins & Reisterer, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and V. J. BRENNAN, JJ.

FITZGERALD, Judge.

Defendant appeals as of right from his nonjury conviction on June 26, 1970, of selling heroin without a license. M.C.L.A. § 335.152, M.S.A. § 18.1122.

On November 1, 1969, Robert Griffin visited the Kalamazoo City Police Department and described alleged narcotics traffic occurring at a Kalamazoo address. He offered to cooperate with the police by making a narcotics purchase at that address. He was then thoroughly searched, given a five-dollar bill, and was kept under continuous surveillance by police officers on his way to and from the house in question. When Mr. Griffin left the house and rejoined his police escort, he turned over to them a small red capsule containing a white powder, which he said he had purchased from defendant inside the house. Laboratory analysis indicated that the white powder in the beforementioned capsule was heroin.

Since this appeal centers about events transpiring during defendant's preliminary examination, the facts pertaining thereto will be carefully scrutinized.

Defendant was arraigned on November 3, 1969. He then demanded preliminary examination within ten days. Defendant refused the offer of a court-appointed attorney and stated that he would hire his own lawyer. Preliminary examination was set for November 5, 1969. On November 5, Pulley indicated that his brother had contacted an attorney, but neither the brother nor the attorney appeared at this time. Therefore the examination was adjourned to November 12, 1969, at 11 a.m.

On November 12, defendant appeared in court without an attorney. He claimed he had talked with an attorney whose name he could not recall and had told this lawyer the date and time of the preliminary examination. The court made several telephone calls in an attempt to locate the attorney or the defendant's brother, who was to have hried a lawyer for defendant. When these efforts proved unavailing, the court decided to proceed and the following colloquy ensued:

'Defendant Pulley: I don't really think I have an attorney.

'The Court: You talked to an attorney last Wednesday.

'Defendant Pulley: That is all I did, was talk to him. He didn't ever tell me he was representing me or anything.

'The Court: It is your duty to hire an attorney, it's not mine, so I am going to allow this witness to testify to preserve his testimony.'

The preliminary examination was then conducted with no counsel present to represent the defendant. Mr. Griffin's testimony was given and the defendant was allowed to cross-examine and recross-examine the witness.

In the interim, Mr. Griffin had been held in jail as a material witness pending his opportunity to testify at the preliminary examination. Griffin was held because he had stated that he intended to leave the area permanently at the earliest opportunity. Plaintiff thereupon obtained an order from the Circuit Court for the County of Kalamazoo detaining Griffin in jail until 9:30 a.m. November 13, when he was to be released. Thus, both the plaintiff and the court were desirous of conducting the November 12 preliminary examination. Plaintiff wished to preserve Griffin's testimony before the latter's departure and the court desired to expedite release of Griffin at the time specified in the hold order.

After receiving Griffin's testimony, the examination was adjourned to November 19, 1969, on which date the examination continued. By that date, defendant had retained an attorney who appeared on his behalf. Defendant's counsel moved to strike all of Griffin's testimony on the ground that defendant had not been represented by counsel at that time. This motion was denied and defendant was bound over for trial.

Since Mr. Griffin could not be found at the time of trial, plaintiff sought to use Griffin's preliminary examination testimony. Defendant's objections were overruled and the testimony was admitted. Defendant was convicted and moved for a new trial. This motion was denied, defendant was sentenced, and he now brings this timely appeal.

The sole issue on appeal is whether defendant was unconstitutionally deprived of his right to counsel at a preliminary examination after his refusal to accept a court-appointed attorney upon his statement that he had obtained or was going to obtain his own counsel. An exhaustive study of the instant case substantiates plaintiff's belief that it is one of first impression in this jurisdiction. The United States Supreme Court, however, has declared that the Sixth Amendment right to cross-examine and to confront witnesses is secured to state-court defendants through the Fourteenth Amendment. Douglas v. Alabama, 380 U.S. 415; 85 S.Ct. 1074; 13 L.Ed.2d 934 (1965). Accordingly, where defendant has been denied his rights to cross-examination and confrontation at a preliminary hearing, testimony taken at the examination may not be introduced at the trial. Pointer v. Texas, 380 U.S. 400; 85 S.Ct. 1065; 13 L.Ed.2d 923 (1965).

The question to be determined then is whether defendant was in fact denied his right to cross-examination at the preliminary examination. In People v. Martin No. 2, 21 Mich.App. 667 (1970) 176 N.W.2d 470, the Michigan Court of Appeals adopte...