People v. James , 29 Mich. App. 522 ( 1971 )

29 Mich. App. 522 (1971) 185 N.W.2d 571

PEOPLE
v.
JAMES

Docket No. 7875.

Michigan Court of Appeals.

Decided January 20, 1971. Leave to appeal denied April 16, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Don L. Milbourn, Assistant Prosecuting Attorney, for the people.

Harry L. Burkart, for defendant on appeal.

Before: BRONSON, P.J., and R.B. BURNS and HOFF,^[*] JJ.

Leave to appeal denied April 16, 1971. 384 Mich. 829.

BRONSON, P.J.

Defendant was arrested and charged with first-degree murder. Following a seven-day jury trial in Macomb County Circuit Court, defendant was found guilty of murder in the second degree. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). Defendant appeals as a matter of right.

Defendant raises two issues on appeal:

(1) Whether the trial court erred by denying defendant's motion to quash the information; and

(2) Whether the trial court erred by admitting into evidence the testimony of defendant taken at the preliminary examination.

On January 13, 1969, a preliminary examination was held. At the examination, the prosecutor called two witnesses, Mrs. Harrison and the complaining witness, Mr. Strickland. Both witnesses had been present when the defendant allegedly shot the deceased. The defendant, George Earl James, was represented by counsel at the preliminary examination and voluntarily elected to take the stand and to testify on his own behalf.

The record reveals that by inadvertence Mrs. Harrison was not administered the oath prior to testifying at the preliminary examination as required by MCLA § 766.4 (Stat Ann 1954 Rev § 28.922). No objection was made by defense counsel. Mrs. Harrison was cross-examined by defense counsel. On the basis of testimony presented at the preliminary examination, the examining magistrate bound the defendant over for trial on the charge of first-degree murder.

Four days after the preliminary examination, an ex parte hearing was held, at which time Mrs. Harrison was belatedly administered the oath. Mrs. Harrison testified under oath that her former testimony was accurate and truthful. Although neither defendant nor his counsel were present at this ex parte hearing, the examining magistrate and the prosecutor stated for the record that the defense counsel had no objection to this procedure.

Prior to defendant's trial, defendant's counsel withdrew from the case and the court appointed another attorney to represent the defendant. Defendant's appointed attorney presented the motions to strike the preliminary examination and to quash the information on the basis that Mrs. Harrison's testimony was not taken under oath as required by statute. Furthermore, defense counsel argued that the oath administered at the ex parte hearing did not cure the error because defendant, being absent from the hearing, was denied his Sixth Amendment right to confront his accuser. US Const, Am 6. See Const 1963, art 1, § 20.

We agree with defendant's contention that the procedure by which Mrs. Harrison's testimony was received, as well as the subsequent ex parte hearing, violated the express statutory mandate which requires that the examination of a witness be "on oath in the presence of the prisoner". MCLA § 766.4 (Stat Ann 1954 Rev § 28.922).^[1] However, we do not agree with defendant's argument that the trial court erred by denying defendant's motion to quash the information and strike the preliminary examination.

The purpose of the preliminary examination is to establish that the crime charged has been committed and that there is probable cause to believe that the accused is the guilty party. See People v. Gerndt (1928), 244 Mich. 622; People v. Jackson (1967), 8 Mich. App. 643. Totally disregarding the incompetent testimony of the unsworn witness, Mrs. Harrison, a review of the testimony of the sworn witness, as well as defendant's own testimony, provides sufficient grounds to bind the defendant over for trial. Even granting the fact that Mrs. Harrison's testimony was incompetent, sufficient competent evidence was presented to establish the commission of the offense and probable cause that defendant committed the crime. See People v. Rice (1919), 206 Mich. 644; People v. Matthews (1939), 289 Mich. 440.

At trial, over objection by defense counsel, the prosecutor was permitted to read to the jury the entire transcript of defendant's preliminary examination testimony. Defendant did not take the stand at trial and defense counsel argues on appeal that the reading of the preliminary examination transcript constituted a violation of the defendant's Fifth Amendment right against self-incrimination. We disagree.

In the instant case, defendant, while represented by counsel, voluntarily took the stand at the preliminary examination. Defendant apparently took the witness stand in an attempt to exonerate himself, but in the course of his examination defendant made certain inculpatory statements. Defendant, of course, could not be compelled to testify at the preliminary examination. US Const, Am 5; Const 1963, art 1, § 17. See MCLA § 600.2159 (Stat Ann 1962 Rev § 27A.2159). Experience indicates that this tactic is rarely employed. However, testimony given by the defendant at the preliminary examination for the sole purpose of defeating a finding of probable cause can be used at trial, whether defendant testifies at trial or not. See Powers v. United States (1911), 223 U.S. 303 (32 S. Ct. 281, 56 L. Ed. 448); People v. Butler (1897), 111 Mich. 483.

Defendant's decision to testify at the preliminary examination does not prevent the defendant from asserting his Fifth Amendment right not to testify at trial. See 8 Wigmore, Evidence, § 2273, pp 450, 451, § 2276, pp 456, 459; McCormick, Evidence, § 131, pp 274-276 (1954). See, also, In re Mark (1906), 146 Mich. 714. However, the Fifth Amendment does not preclude the use of testimony voluntarily given by the defendant under the solemnity of oath at the preliminary examination.

In Harrison v. United States (1968), 392 U.S. 219, 222 (88 S. Ct. 2008, 2010; 20 L. Ed. 2d 1047, 1051), the Court, although specifically referring to defendant's testimony at a former trial, stated:

"A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him." (Emphasis supplied.)

Defendant does not contend that his voluntary testimony at the preliminary examination was motivated by unlawful evidence presented against him. The instant case is not similar to the situation where the defendant testifies for the purpose of suppressing evidence allegedly seized in violation of the Fourth Amendment. Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247). Nor was defendant's testimony induced by the prosecution's use of an involuntary confession. Harrison v. United States, supra. In the latter situations, provided timely objections are made, defendant's testimony could not be admitted against him at trial on the issue of guilt. Simmons v. United States, supra; Harrison v. United States, supra.

In this case the trial court properly admitted into evidence the transcribed testimony of the defendant, given under oath, while represented by counsel at the defendant's preliminary examination.

Judgment affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Arguably, the failure of defense counsel to object to the unsworn testimony at the preliminary examination and apparent consent to the ex parte hearing held to correct the oversight constituted a waiver of defendant's right to object. See Mettetal v. Hall (1939), 288 Mich. 200.