People v. Ramsey, 9
| Citation | 187 N.W.2d 887,385 Mich. 221 |
| Decision Date | 07 July 1971 |
| Docket Number | No. 9,A,9 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip D. RAMSEY, Defendant-Appellant. pril Term. |
| Court | Supreme Court of Michigan |
William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Thomas P. Smith, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
State Appellate Defender Office by Arthur J. Tarnow, Detroit, for defendant-appellant.
Before the Entire Bench.
Leo Sinasac, a baking company delivery man, was the victim of an armed robbery at approximately 1:00 p.m. on December 14, 1967. Two days after the robbery, the victim picked defendant out of a police lineup and later identified him in court. At the conclusion of a nonjury trial, held in the Recorder's Court of the city of Detroit, defendant was found guilty of armed robbery and subsequently sentenced to five to ten years in prison. The Court of Appeals affirmed. (25 Mich.App. 576, 181 N.W.2d 553). We granted leave to appeal. (384 Mich. 759).
Defendant has raised four issues on appeal. However, in view of our disposition of the case, we deem it necessary only to discuss the first issue. After the defendant waived his right to trial by jury, the following colloquy occurred:
'THE COURT: Is the transcript of the preliminary examination available?
'MR. SAGE (Assistant prosecuting attorney): Yes, I have it.
Defendant contends that the trial court committed reversible error in looking at the preliminary examination transcript while sitting as the finder of facts.
The relevant statute is M.C.L.A. § 768.26 (Stat.Ann.1954 Rev. § 28.1049), which provides:
'Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.' In addition, Recorder's Court Rule No. 8 1 provides in part as follows:
'Whenever any Judge shall have acted as Examining Magistrate in any case he shall not be assigned to the trial of that case, except with the expressed consent of counsel for all parties entered upon the record in open Court.'
The purpose of both the statute and the Court Rule is to preserve the rights of confrontation and cross-examination and to prevent prejudice by the use of evidence which is not in the record of the trial. Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318; 20 L.Ed.2d 255; People v. Chapman (1968), 380 Mich. 74, 155 N.W.2d 827. The only exception which is recognized is when it is not possible to produce a witness at the trial after a diligent effort has been made to secure the attendance of such witnesses. People v. Hunley (1946), 313 Mich. 688, 21 N.W.2d 923; People v. Hawthorne (1940), 293 Mich. 15, 291 N.W. 205. The present case does not fall within the statutory exception because the complainant, who was the sole witness to the alleged armed robbery, was available and did testify at the trial.
The People contend there is no case directly on point that supports defendant's theory of error. Moreover, the People contend if any error occurred, it was harmless error.
It is true that there is no case precisely on point. However, the policy behind this statute as expressed in both the United States and Michigan Constitutions is clear. 2 It is to assure that an accused has a right to confront all of the witnesses against him in open court, and to have all of the evidence against him placed in the record at the trial. The revised Recorder's Court rules reinforce this policy. We, therefore, hold that the trial court committed reversible error when he viewed the transcript of the testimony taken at the preliminary examination while sitting without a jury as the trier of the facts in the case, the transcript not being placed in evidence as provided by the statute.
This case demonstrates the need for an absolute rule in this situation. There is no way to determine whether or not the trial court was prejudiced by 'glancing' at the transcript. In fact, it is difficult to determine precisely how much, if any, of the transcript was read by the court,...
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People v. Jackson
...witness' subsequent corporeal identification had a source independent of the photographic identification.17 In People v. Ramsey, 385 Mich. 221, 225--226, 187 N.W.2d 887 (1971), this Court held it was reversible error for a trial judge sitting as trier of fact to refer to the transcript of p......
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...read the entire transcript of the preliminary examination. To support his contention defendant cites the case of People v. Ramsey, 385 Mich. 221, 187 N.W.2d 887 (1971). In Ramsey, this Court considered M.C.L.A. § 768.26; M.S.A. § 28.1049, and held '(A)s an absolute rule it is reversible err......
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Cain v. Michigan Dept. of Corrections
...heightened. It is much more difficult, if not impossible, to guard against biased findings of fact. This Court in People v. Ramsey, 385 Mich. 221, 187 N.W.2d 887 (1971), recognized, admittedly under different circumstances, that the Court must proceed cautiously when the trial judge is sitt......
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Goliday v. Rewerts
...and federal courts have identified potential problems that might arise in procedurally distinguishable circumstances. See People v. Ramsey,187 N.W.2d 887 (Mich. 1971); Murchison, 349 U.S. at 133. In Ramsey, the trial judge, acting as the trier of fact, looked at preliminary examination test......