People v. McIntosh

191 N.W.2d 749, 34 Mich. App. 578, 1971 Mich. App. LEXIS 1646
CourtMichigan Court of Appeals
DecidedJune 24, 1971
DocketDocket 8515
StatusPublished
Cited by9 cases

This text of 191 N.W.2d 749 (People v. McIntosh) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McIntosh, 191 N.W.2d 749, 34 Mich. App. 578, 1971 Mich. App. LEXIS 1646 (Mich. Ct. App. 1971).

Opinions

T. M. Burns, J.

Defendant appeals his jury conviction of larceny in a building. MCLA § 750.360 (Stat Ann 1954 Rev § 28.592).

On April 27, 1967, defendant and a companion, Joseph Pritchard, stopped at a service station for automobile repairs on defendant’s car. While defendant and Pritchard were still at the station, the attendant, Jerry Wrenn, noticed that a canvas bag containing the station’s receipts was missing. Wrenn phoned the State Police who immediately dispatched two officers to the service station. Upon their arrival, the officers were told by Wrenn that he thought the defendant was the person who took the canvas bag. The officers then searched defendant, his companion, and defendant’s car where they found the missing canvas bag. Defendant was charged with larceny in a building, MCLA § 750.360 (Stat Ann § 28.592), and was convicted by a jury and sentenced to serve from 3-1/2 to 4 years in prison. After his motion for a new trial was denied, defendant brought this appeal contending that the court below committed several reversible errors.

[582]*582The complainant, Jerry Wrenn, could not be located at the time of the trial for purposes of testifying. He had, however, testified at the preliminary examination and that testimony was admitted at trial. Defendant contends that the prosecution’s failure to produce the witness at trial violates the confrontation clause of both the United States Constitution1 and the Michigan Constitution.2

The United States Supreme Court held that the Sixth Amendment right to the confrontation of witnesses is applicable to the states in Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923). The Supreme Court there reversed petitioner’s conviction because it was based in part upon testimony taken at the preliminary examination where defendant was not represented by counsel. The Court pointed out, however, that the result would have been quite different had the defendant been represented by counsel and the witness been cross-examined:

“The case before us would be quite a different one had Phillips’ statement been taken at a full fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.”

In the case at bar, defendant was represented by counsel at the preliminary examination and counsel did conduct a cross-examination of the complainant. Although defendant now claims that counsel was inexperienced and that he should have questioned Wrenn about his criminal record for credibility purposes, defendant, in his brief, offers nothing to establish either defense counsel’s inexperience or the existence of any criminal record which Wrenn might have. This Court finds nothing to indicate that de[583]*583fendant’s counsel’s performance at the preliminary examination was anything hut competent.. We find, therefore, that defendant was not deprived of his right to confrontation since the witness was adequately cross-examined at the preliminary examination.

Michigan does require, however, a showing by the prosecution that a reasonable effort has been made to locate the witness before the prior testimony may be admitted.3 Defendant contends that such a reasonable effort was not made in the case at bar.

Detective Mungeon of the Michigan State Police testified that a subpoena was issued for Wrenn on July 10, 1968. The first place where he attempted to serve the subpoena was the situs of the crime, the gasoline station where Wrenn had been an attendant. Wrenn’s boss, Mr. Buchanan, told Detective Mungeon that Wrenn’s real name was Danny Hill and that he believed that he was in prison in North Carolina.

Detective Mungeon and Buchanan then went to an uncle of Wrenn in Flint who advised them that Wrenn was in Burlington, North Carolina, living on Webb Street.

Detective Donovan then testified that after learning that Wrenn was in North Carolina, he made long distance calls to that state attempting to contact him. These efforts were without results. Donovan also contacted the Burlington, North Carolina, police and requested them to locate witness Wrenn and also informed them that complainant also went by the name of Danny Hill. Donovan was informed that they would attempt to locate Wrenn, hut he testified that the Burlington police never contacted him.

The trial judge, upon learning that Wrenn was unavailable, adjourned the trial from July 23, 1968, [584]*584to October 29, 1968. Trooper Dailey of the Michigan State Police testified that he received the subpoena for Wrenn on October 22, 1968. He stated that he called the Burlington, North Carolina, Police Department and that they told him that they would contact him by certified mail if Wrenn could be located. The North Carolina police also told Dailey that they were running a check to determine whether Wrenn was incarcerated in one of their institutions. Dailey stated that he received no communication from the North Carolina police, and, therefore, on the day of trial he made two more calls to the North Carolina authorities but received no further information.

The trial judge, after hearing the above testimony, was satisfied with the attempts of the state to locate the complainant. Under People v. Boyles (1968), 11 Mich App 417, 422, the sufficiency of the effort to produce a witness is a question for the trial court and its determination will not be disturbed, absent a showing of an abuse of discretion by the trial judge. Based upon the above testimony, we find no'such abuse of discretion, and therefore find no error by the trial judge in admitting the complainant’s prior testimony.

Defendant also contends that the people did not make a diligent and reasonable effort to produce defendant’s companion at the scene of the crime, Joseph Pritchard, who had been indorsed as a witness. Although we have no confrontation issue involved here, the people must still show that a reasonable effort was made to produce the witness.4

Detective Mungeon was recalled to the stand to establish the prosecution’s diligent effort to locate witness Pritchard. He stated that he received the [585]*585subpoena for Pritchard about the same time he received the subpoena for Wrenn. Detective Mungeon then testified that he was informed that Pritchard was in Detroit so he sent the subpoena to the State Police there. The State Police then made a check of Pritchard’s street address in Detroit but could not locate him.

Detective Mungeon then testified that he had been informed that Pritchard might be in the State Prison in Jackson, Michigan, but that a check with the record officer there indicated that Pritchard had been discharged in 1962 and that they had no further record of him.

Detective Dailey, who had also attempted to locate the complainant, testified that he had personally gone to Pritchard’s last known address, but that the party living there had never heard of Pritchard. Dailey also stated that since defendant and Pritchard were friends, he had attempted to locate Pritchard through the defendant who was out on bond at the time. However, neither Dailey nor defendant’s attorney were able to locate the defendant for purposes of finding out if defendant knew the whereabouts of his friend.

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Related

People v. Hooper
212 N.W.2d 786 (Michigan Court of Appeals, 1973)
People v. McIntosh
204 N.W.2d 135 (Michigan Supreme Court, 1973)
People v. Eugene Harris
204 N.W.2d 549 (Michigan Court of Appeals, 1972)
People v. Mason Jackson
202 N.W.2d 463 (Michigan Court of Appeals, 1972)
People v. Cuyler
196 N.W.2d 870 (Michigan Court of Appeals, 1972)
People v. Roby
196 N.W.2d 346 (Michigan Court of Appeals, 1972)
People v. McIntosh
191 N.W.2d 749 (Michigan Court of Appeals, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
191 N.W.2d 749, 34 Mich. App. 578, 1971 Mich. App. LEXIS 1646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcintosh-michctapp-1971.