People v. Stanford

• Decision Date: 24 March 1976
• Docket Number: Docket No. 23259
• Citation: 242 N.W.2d 56,68 Mich.App. 168
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Monroe H. STANFORD, Defendant-Appellant. 68 Mich.App. 168, 242 N.W.2d 56
• Court: Court of Appeal of Michigan — District of US

Page 56

242 N.W.2d 56

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Monroe H. STANFORD, Defendant-Appellant.

Docket No. 23259.

68 Mich.App. 168, 242 N.W.2d 56

Court of Appeals of Michigan.

March 24, 1976.

Released for Publication June 4, 1976.

[68 MICHAPP 169] Longworth D. Quinn, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Robert W. Horn, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and KAUFMAN and WALSH, JJ.

KAUFMAN, Judge.

Defendant was convicted of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, after a bench trial in Wayne County Circuit Court. He [68 MICHAPP 170] was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals of right.

Defendant's conviction resulted from the death of Ann Harris, his aunt. The prosecution claimed that Ms. Harris' death on April 8, 1974 was caused by a beating which defendant inflicted with his fists. Robert Hendrix, M.D., a witness for the prosecution, testified that, on April 12, 1974, he did an autopsy on the body of Ms. Harris, deceased; that he observed three surgical wounds on the scalp and bruises on the face, chest, arms and legs. He testified that there were 'many bruises', several days old. He observed bruises on the eyelid and bridge of the eye and testified that the bruises on the various parts of the body were consistent with physical force, such as a fist fight. Internally, there was bleeding 'within the skull and the brain', a subdural hematoma. Direct injury was considered the origin of the bleeding. He testified that, in his opinion, 'the brain lesions were produced by physical violence, multiple blows to the head and to the rest of the body'.

The decedent's niece, Hazel Peace, testified that she had seen Ms. Harris in the hospital on April 8, 1974, shortly after the incident. Ms. Peace related that decedent's face was bruised and swollen and that decedent had stated that defendant had hit her.

At trial, after a motion by the prosecutor, the court allowed the preliminary examination testimony of one Mary Johnson to be read into evidence. The prosecutor was allowed to introduce the testimony pursuant to M.C.L.A. § 768.26; M.S.A. § 28.1049 upon sufficient proof of the witness's unavailability. Ms. Johnson's testimony was challenged by defense counsel as barred by the husband-wife privilege. Defendant and Ms. Johnson [68 MICHAPP 171] had lived together and, at the time of the preliminary examination, were affianced. She had given birth to a child by him. The trial court denied this challenge.

Ms. Johnson testified that she had witnessed the alleged beating and that she had seen decedent swing a board at defendant. She testified that defendant had not hit decedent in the head or chest but later stated that defendant had hit decedent in the eye. The prosecution impeached these statements with a prior one in which Ms. Johnson had related that she saw defendant hit Ms. Harris 'a number of times'.

Defendant took the stand in his own behalf. He testified that on April 8, 1974, decedent had become intoxicated and had started an argument. He claimed that, when his back was turned, decedent swung an object at him. When Mary Johnson yelled, he turned and hit decedent in the eye in a 'reflex' action. He claimed that decedent's eye was red from the blow but that he had hit her only once.

On appeal, defendant raises three claims of error, two of which relate to the admissibility of Mary Johnson's preliminary examination testimony. Defendant first contends that the testimony should have been excluded by the husband-wife privilege. This privilege is embodied in M.C.L.A. § 600.2162; M.S.A. § 27A.2162, which provides with certain exceptions not relevant here, that 'A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent.'

Case law is clear in requiring that the privilege be applicable only where the witness is legally [68 MICHAPP 172] married to the party asserting the privilege. People v. Zabijak, 285 Mich. 164, 280 N.W. 149 (1938), People v. Minchella,268 Mich. 123, 255 N.W. 735 (1934), Cert. denied 293 U.S. 619, 55 S.Ct. 217, 79 L.Ed. 707 (1934), Reh. den., 55 S.Ct. 345, 79 L.Ed. 707 (1935), Habeas petition denied 297 U.S. 692, 56 S.Ct. 384, 80 L.Ed. 985 (1936). Michigan no longer recognizes, as valid, common-law marriages. M.C.L.A. § 551.2; M.S.A. § 25.2; In re Leonard Estate, 45 Mich.App. 679, 207 N.W.2d 166 (1973). Nonetheless, defendant urges that this Court not rigidly apply the requirement of a legal marriage but, instead, look to the relationship of the parties to determine whether the incidents of that relationship are those which the statute was intended to protect. Although the contention is cogent, clear Supreme Court precedent requires that we reject this contention. The Supreme Court or Legislature may alter the rule, but we may not.

Second, defendant asserts that Mary Johnson's preliminary examination testimony should not have been admitted into evidence because plaintiff failed to exercise due diligence in producing her as a res gestae witness. Following a defense objection, the trial court held a hearing to determine if the due diligence requirement had been satisfied. This objection involves the interaction of the res gestae witness rule, M.C.L.A. § 767.40; M.S.A. § 28.980, and the statutory provision allowing admission of a witness's preliminary examination testimony 'whenever the witness giving such testimony cannot, for any reason, be produced at trial.' M.C.L.A. § 768.26; M.S.A. § 28.1049. In examining this interaction,

'the reasons for the witness's unavailability at trial must be weighed against the defendant's constitutional right of confrontation. Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. The Michigan statute [68 MICHAPP 173] must give way to the right of confrontation where a witness's absence from trial stems from the prosecution's lack of good faith efforts to secure the witness's presence.' People v. Nieto, 33 Mich.App. 535, 537--38, 190 N.W.2d 579, 580 (1971). (Footnote omitted.)

See also People v. Herman Brown, 38 Mich.App. 69, 195 N.W.2d 806 (1972). A defendant has the right to have a witness's demeanor placed before the trier of fact.

Defendant, in the instant case, objected to Ms. Johnson's nonproduction under the res gestae witness rule but objected to the introduction of her preliminary examination testimony solely on the basis of privilege. In any case,...