People v. McIntosh , 389 Mich. 82 ( 1973 )

T. G. Kavanagh, J.

Defendant appeals his conviction of larceny from a building MCLA 750.360; MSA 28.592. The Court of Appeals¹ affirmed, Levin, J. dissenting.

On April 25, 1967, defendant and a companion, Joseph Pritchard, drove into Buchanan’s Gulf Station on Miller Road in Flint. Defendant claimed to be having some trouble with the engine of his car. At this time there were two employees on duty at the gas station. One, C. O. Wallace, began to check the engine of defendant’s car. The other, Jerry Wrenn, was at the rear of the station burning trash. While Wallace was checking the engine, Pritchard left the car to use the washroom. Upon his return, defendant left to use the washroom. Minutes later, Wrenn entered the station by a rear door, and found defendant inside. Defendant explained that he was returning the key to the washroom, and left. Thereupon Wrenn discovered that the drawer in which the day’s receipts had been kept was open, and that the canvas bag containing the money was gone. Wrenn called the state police, who responded immediately. They questioned defendant, who consented to a search. Defendant was made to undress completely, but nothing was found. The police then searched defendant’s car, and the canvas bag containing the money was found under the front seat.

A preliminary examination was held on May 3. The only witness was Wrenn, who was cross-examined briefly by defendant’s attorney. On May 12, an information was filed against defendant and Pritchard. This case was dismissed on November 6, with a new complaint being filed the next day against defendant alone. A second preliminary examination was held on November 15. Wrenn testified that defendant had a startled look on his face when he (Wrenn) came into the station, that the back of defendant’s sweater was bunched as if something bulky was being carried underneath it, and that upon leaving the station, defendant leaned into the front seat area of his car (where the money was found). A further information was filed December 4, which indorsed Wrenn as a witness and on June 19, 1968, Pritchard was indorsed thereon as a witness.

At trial, neither Wrenn nor Pritchard was present.

The trial court ruled that the prosecutor had made a sufficient attempt to produce the indorsed witnesses, and allowed Wrenn’s November 15 preliminary examination testimony to be read to the jury.

The thrust of defendant’s argument on appeal is that he was deprived of his right to confront the witnesses against him guaranteed to him by the Sixth and Fourteenth Amendments of the Constitution of the United States. More specifically, he argues that the failure of the prosecution to produce indorsed res gestae witnesses Wrenn and Pritchard at trial, and the introduction into evidence of Wrenn’s preliminary examination testimony, constitute error and require reversal.

We first examine the failure to produce Wrenn at trial. In their effort to locate Wrenn, the police checked at his residence and his place of employment in Flint. They were told that Wrenn had left Michigan, and could now be found in North Carolina. One informant told them that Wrenn was in prison in North Carolina, the other that he was living on Webb Avenue in Burlington (possibly under the name "Danny Hill”).

The police efforts to pursue these leads were:

1) They contacted telephone information for Burlington and were told that there was no Wrenn or Hill listed on Webb Avenue.

2) They contacted the Burlington Police Department and asked them to check on the whereabouts of Wrenn. No reply was ever received from the Burlington Police.

North Carolina prison authorities were never contacted before trial.

The sufficiency of prosecution attempts to produce witnesses at trial in satisfaction of the Sixth Amendment confrontation right is the subject of the recent Supreme Court case of Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968). In Barber the Court held that the prosecution must show due diligence in their efforts to produce such witnesses. The efforts in this case will be examined with reference to this constitutional standard.

The negative response received from the telephone operator in Burlington is of doubtful probative value. At best, this showed only that no telephone was listed in the name of Wrenn or Hill on Webb Avenue, not that Wrenn was not living there. By itself, this would not be due diligence.

With reference to the asserted request made to the Burlington Police Department to check on Wrenn’s whereabouts, there is nothing to indicate that a check was ever made. In such a case, the prosecution must show, in writing, that unsuccessful attempts were made to locate the witness. If the Burlington Police were unwilling to do this, due diligence required the prosecution to resort to other means.

The most specific lead was not checked at all by the prosecutor. No effort was made by him to contact North Carolina Prison authorities, and although defendant’s appellate counsel, subsequent to trial, found that Wrenn was not in a North Carolina prison, this is not determinative. The fact that an attempt may prove unsuccessful does not justify the prosecution’s failure to make that attempt, Barber, supra.

We hold therefore that the prosecutor did not show due diligence in his efforts to produce Wrenn at trial.

As a result, it was error to allow Wrenn’s preliminary examination testimony to be read at trial. While the introduction of preliminary examination testimony at trial is governed by statute² in Michigan, the statute must be interpreted in a manner consistent with prevailing constitutional authority.³

The circumstances with regard to the non-production of Pritchard are somewhat different. The prosecution had no specific leads as to his whereabouts. They were simply told that he had left the state. In these circumstances, we find that it was not an abuse of discretion for the trial court to find due diligence on the part of the prosecution in the efforts that were made to locate and produce Pritchard.

Reversed and remanded.

T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with T. G. Kavanagh, J.

1 34 Mich App 578 (1971).

2 MCLA 768.26; MSA 28.1049

3 See for example, People v Nieto, 33 Mich App 535 (1971).