People v. Tees, Docket Nos. 7496

• Citation: 23 Mich.App. 476,179 N.W.2d 33
• Decision Date: 29 April 1970
• Docket Number: No. 2,7497,Docket Nos. 7496,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William TEES and Ivan Batten, Defendants-Appellants
• Court: Court of Appeal of Michigan (US)

Page 33

179 N.W.2d 33

23 Mich.App. 476

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William TEES and Ivan Batten, Defendants-Appellants.

Docket Nos. 7496, 7497.

Court of Appeals of Michigan, Division No. 2.

April 29, 1970.

Released for Publication Aug. 28, 1970.

Kenneth J. Morris, Livonia, for Tees.

James F. Finn, Detroit, for Batten.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for appellee.

Before GILLIS, P.J., and DANHOF and O'HARA, ^* JJ.

DANHOF, Judge.

A summary of the facts of this voluminous case is set forth in People v. Batten (1967), 9 Mich.App. 195, 156 N.W.2d 640, leave to appeal denied. According to the defendants' statement of facts in their appellate brief, legal action followed that decision which resulted on October 10, 1968 in United States district judge Thaddeus Machrowicz granting a petition for a writ of habeas corpus to Peter Lazaros, a joint defendant at the trial, and the remanding of his case for a new trial. On November 1, 1968 a petition for a writ of habeas corpus in the case of William Tees and Ivan Batten was filed and the matter was assigned to United States district judge Damon Keith. The office of the State attorney general filed a motion to dismiss and on January 5, 1969 that motion was granted by judge Keith who stated in his opinion that the defendants had not exhausted their State remedies and that the State courts should be presented the opportunity of deciding whether the case of Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, applies to this matter. Thereafter, defendants filed a delayed motion for a new trial and a brief in support thereof with the trial court. Their motion was based on the denial of the right of confrontation in that two witnesses who testified at the preliminary examination, Connie Wood and Victor Postic, did not appear at the trial and the transcript of their preliminary examination testimony was read at the trial over the objections of the defendants. The judge at the trial was the Honorable Leon R. Dardas and he also heard and denied defendants' delayed motion for a new trial.

Defendants argue on appeal that they should be granted a new trial because joint defendant Peter Lazaros was granted one, and because Barber v. Page, Supra, requires that result.

Relying on Fay v. Noia (1963), 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 as their sole authority, defendants argue that because a joint defendant at the trial was granted a new trial they should be granted one too. That case is readily distinguishable from the present one. In that case it was stipulated that the coercive nature of Noia's confession was established and at issue was whether the federal courts have the Power under the federal habeas corpus statute to grant relief despite the applicant's failure to have pursued a state remedy Not available to him at the time he applies. Clearly, that is not the present case.

We must, however, consider the applicability of Barber v. Page, Supra, which held that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good faith effort to secure the witness' presence. It was given retroactive application in Berger v. California (1969), 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508.

Specifically, we must decide if the admission of the preliminary examination testimony of witnesses Connie Wood and Victor Postic at defendants' trial over objection requires reversal and remanding for a new trial.

Both witnesses had been cross-examined at the preliminary examination by attorneys for the defendants so this is not a case where the holding in Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 is applicable. Pointer held that the 6th amendment's guarantee of an accused's right to be confronted by the witnesses against him, which has been held to include the right to cross-examine those witnesses was made applicable to the states by the 14th amendment. It further held that the introduction at trial, over defendant's objections, of a witness' testimony given at the preliminary hearing, at which defendant was not given an adequate opportunity to cross-examine the witness through counsel, constituted a denial of defendant's constitutional right of confrontation.

We consider first the facts with regard to witness Wood and her testimony. That portion of the trial transcript relative to the people's efforts to obtain the presence of Miss Connie Wood may be summarized as follows: Detective Leaf testified that he was unable to find Connie Wood, that he made a diligent inquiry as to her whereabouts, tht he made a diligent effort to serve a subpoena upon her, that he went to the address that she gave at the time of the preliminary examination but that she wasn't there anymore, that she had said at the time of the examination (over a year before the trial) that she was leaving upon the completion of the testimony for California, tht she refused at that time to tell the police where she was going in California, and that he had talked with defendant Tees regarding Miss Wood's whereabouts and that Tees said he knew sh...