People v. Williams, Docket No. 78-2853

• Citation: 288 N.W.2d 638,94 Mich.App. 406
• Decision Date: 19 December 1979
• Docket Number: Docket No. 78-2853
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sullivan WILLIAMS, Defendant-Appellant. 94 Mich.App. 406, 288 N.W.2d 638
• Court: Court of Appeal of Michigan (US)

Page 638

288 N.W.2d 638

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sullivan WILLIAMS, Defendant-Appellant.

Docket No. 78-2853.

94 Mich.App. 406, 288 N.W.2d 638

Court of Appeals of Michigan.

Dec. 19, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 408] Thomas A. Carlson, Okemos, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter Houk, Pros. Atty., Charles M. Sibert, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and MacKENZIE and CORKIN, ^* JJ.

CORKIN, Judge.

On July 27, 1977, defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny therein, M.C.L. § 750.110; M.S.A. § 28.305. Defendant having waived his right to a jury trial, a bench trial was held before the Honorable James T. Kallman of the Ingham County Circuit Court on February 14, 1978. By written opinion dated March 9, 1978, defendant was found guilty as charged and was, shortly thereafter, sentenced to a term of 4 to 15 years in prison. He appeals as of right from his conviction.

The breaking and entering in question occurred at the residence of Mr. Barry Thompson and wife, located at 6301 Daft Street, Lansing, Michigan. Mr. Thompson testified that he left home for work [94 MICHAPP 409] about 5:45 a. m., July 25, 1977. Having secured the doors and windows at bedtime the night before, he didn't check them again before leaving. His wife was still home when he left, but she apparently left home later.

Mr. Thompson further testified that, on returning home at about 3:20 p. m., he discovered the back door open, the back screen cut and glass on the floor. He immediately called the police, who arrived and inspected the house at about 4 p. m. During the inspection it was found that the bathroom window had been forced open and jammed in that position. The house had been burglarized and several items of personal property were found to be missing, including a unique ceramic buzzard and Thompson's checkbook.

Officer Kuerbitz of the Lansing Police Department testified that he was dispatched in the afternoon of July 25, 1977, to 910 Jerome Street in Lansing to assist officers of the Clinton County Sheriff's Department in a breaking and entering that occurred in their county. After his arrival, he observed a 1972 Chevrolet vehicle fitting the description that he had been given, drive into the parking lot at that address. He thereupon arrested the two occupants of the vehicle, one of whom was the defendant and the other being a Jeffrey Robinson. Officer Teszlewicz, another Lansing Police Officer, then arrived to give assistance. The defendant and Robinson were patted down and placed in the backseat of the patrol car about 3:22 p. m. The defendant was seated directly behind the driver and Robinson was seated to his right. The subjects were then taken to the DeWitt Township, Clinton County, police station and left there.

Some two hours later, Officer Teszlewicz was instructed by Officer Kuerbitz to check the backseat[94 MICHAPP 410] of the patrol car and, on doing so, found the Thompson checkbook directly under the driver's seat.

Officer Woolfe of the Clinton County Investigation Squad, who was present when the defendant and Robinson were arrested, testified that he had searched the 1972 Chevrolet, which had been transported to the DeWitt Township Police Station, and found Mr. Thompson's ceramic buzzard in the trunk. This search was made about 4:30 p. m. on the date of the arrest.

The key prosecution witness was Jeffrey Robinson, an unindicted co-participant in the offense of which defendant was convicted. Robinson testified that defendant and he were staying at Robinson's cousin's house at 910 Jerome Street and that the two of them left the house together before 8 a. m. on the morning of July 25, 1977. Robinson was driving his cousin's navy blue 1972 Chevy. They drove to Clinton County, intending to break and enter a home on Chandler Road. Enroute they discussed their mutual need for money.

Robinson further testified that they both entered the house on Chandler Road, but that no property was removed. They departed from the premises because defendant said he had become nervous because of the Chandler Road break-in. Defendant was dropped off at the house of another cousin of Robinson. It so happened that this cousin was a girlfriend of the defendant.

Robinson then proceeded alone to the Thompson home, where he broke into and entered the house and removed the property described as missing from the house. He took all the property, except the buzzard and checkbook, to one Willie Cole's house on Roselawn Street and then picked defendant up at his cousin's house sometime before [94 MICHAPP 411] noon. They then drove to the Jerome Street address where they were arrested.

Robinson also testified that he stuffed the stolen checkbook in the crease in the back seat of the patrol car after he and defendant had been placed there.

The prosecutor called Robinson's attention to the fact that at the preliminary examination of defendant he had testified that defendant was with him when the breaking and entering of the Thompson house took place. Robinson acknowledged this, but stated that he believed he would be able to go home (as a juvenile), not be charged and get a better deal if he implicated defendant. He also testified that defendant never threatened him in order to force him to change his story and that he had not had any contact with defendant since the preliminary examination.

The record reflects that Robinson was testifying pursuant to a plea bargain agreement whereby he was not charged with the Thompson breaking and entering in return for his preliminary examination and trial testimony.

Officer Kuerbitz testified that he told Robinson he would not be charged with the Thompson breaking and entering, or any other breaking and entering except for the Chandler Road one, if he gave information that would clear up any of them. Robinson had pled guilty to the Chandler Road breaking and entering sometime prior to the instant trial.

Further, the prosecutor, in lieu of calling a witness who lived on Roselawn, a Rose Fleak, stipulated that her testimony, if called, would have been that Robinson brought the stolen property (which was subsequently recovered there) to that [94 MICHAPP 412] residence on July 25, 1977, and that defendant was not with Robinson when he came.

At the close of the people's proofs, defendant moved for a directed verdict of acquittal, based upon a lack of proof connecting him with the crime. The motion was denied. Defendant then rested without submitting any further proof, and the trial judge took the matter under advisement.

The trial judge found the defendant guilty as charged. The trial court, in its written opinion, made the following findings of fact:

"But, even without this testimony (Robinson's preliminary examination testimony) there is clear and unrebutted evidence that ties this defendant into the crime charged here:

"1. Both intended to commit B & E's to get money.

"2. Both committed one B & E around 9 a. m.

"3. Robinson states he committed the B & E in this case.

"4. Both rode in the same car used to commit the first B & E.

"5. Both needed money.

"6. Both were arrested in the same car later in the day.

"7. Stolen property from Thompson's B & E was found in that car's trunk.

"8. Robinson said while in the patrol car he stuffed the check-book into the crease behind him. The stolen check book was found under the front seat in front of the defendant indicating constructive possession in the defendant of the check book.

"9. Both entered into a system or scheme to accomplish satisfying their needs.

"Putting this puzzle together (leaving out and not relying on Robinson's disputed testimony) clearly and logically dictates the defendant's participation in the crime of B & E at the Thompson's. The inference is so strong that defendant participated, this Court is satisfied beyond a reasonable doubt of defendant's guilt."

[94 MICHAPP 413] Two issues are presented for this Court's determination: one concerns the use of Robinson's testimony at the preliminary examination, not only for impeachment purposes, but also as substantive evidence; and the other concerns the sufficiency of the evidence.

The prosecution urges this Court to consider the preliminary examination testimony as substantive evidence, and, thus, find that there was clearly sufficient evidence to support the finding of guilt by the trial court. Strong reasons can be advanced and found in support of the prosecution's argument. The testimony was given under oath. Hearsay problems sometimes attendant with admitting prior statements are not present, because the declarant is available for cross-examination. Since the witness is available for examination, his demeanor and credibility can be assessed by the trier of fact. Prior testimony can be used as substantive evidence if the declarant is found to be unavailable to testify at trial; and the Michigan Rules of Evidence do not expressly prohibit the use of such testimony as substantive evidence. Finally, federal courts, numerous state courts and respected legal scholars support plaintiff's position. See the notes and annotations following MRE 613 in Michigan Court Rules Annotated, Evidence Rules (West Publishing Co., 1979), pp. 445-483.

This issue presented is, however, one to which the Michigan Supreme Court has clearly spoken. In Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967), it was held that prior statements of a witness which are in conflict with his testimony at trial may be used for impeachment purposes, but such statements are not to be considered as substantive evidence in the case. See also Smith v. Woronoff, 75 Mich.App. 24, 31, 254 N.W.2d 637 [94 MICHAPP 414] (1977); Rosenberg v. Mageda, 251 Mich. 696, 699, 232 N.W. 397 (1930), and cases cited therein. It should be noted...