People v. Pace , 98 Mich. App. 714 ( 1980 )

98 Mich. App. 714 (1980) 296 N.W.2d 345

PEOPLE
v.
PACE

Docket No. 78-4073.

Michigan Court of Appeals.

Decided July 22, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people.

Robert E. Slameka, for defendant on appeal.

Before: BEASLEY, P.J., and M.F. CAVANAGH and W.A. PORTER,^[*] JJ.

M.F. CAVANAGH, J.

Defendant was convicted by a jury of third-degree criminal sexual conduct, MCL 750.520(d); MSA 28.788(4), and was sentenced to a term in prison from 3-1/2 to 15 years. He claims this appeal by right.

Defendant first contends that the prosecution failed to demonstrate due diligence in its unsuccessful attempts to produce an endorsed res gestae witness, the examining physician. The trial court found, at the motion hearing for a new trial, that there was no absence of due diligence, that the jury was given a due diligence instruction, and that the absence of the witness was not prejudicial to the defendant. The complaining witness was examined by the physician on September 20, 1977. The physician left the hospital at which he worked on November 30, 1977, and returned to his native country, Turkey, on December 8, 1977. Police efforts to produce the physician included a telephone call to the hospital where he worked "early in December, 1977", at which time it was learned that "the doctor was to return to Turkey", and one other telephone call to immigration authorities on January 24, 1978, which established that the doctor had left the country on December 8, 1977. Additionally, the physician's office was called and his telephone was found to have been disconnected, but no date was given for that call. Sometime after the trial began on February 14, 1978, the jury was told that the doctor had left the country due to his expired visa, but they were instructed that, if this explanation was not satisfactory to excuse his nonproduction as a trial witness, they could infer that his testimony would have been unfavorable to the prosecution.

These efforts on behalf of the prosecution to produce the doctor at trial do not convince us that due diligence was shown. For instance, at the intrial hearing on this matter, the prosecutor indicated that he had been aware of the doctor's impending departure and had preserved testimony by deposition for a different case, although he was unaware of the doctor's involvement in the present case. Also, the police officer's testimony suggests that after the telephone call in early December, it was still possible that the doctor was in the area, yet no further attempt was made to locate him until late January. People v Willie Pearson, 404 Mich. 698, 716-717; 273 NW2d 856 (1979).

Despite the lack of due diligence, however, we find that this failure constitutes harmless error. Defendant's defense was one of consent. The trial judge requested that the prosecution subpoena the doctor's report on the examination of the complaining witness so that it could be reviewed at the hearing on the motion for a new trial. That report was read into the record at the hearing, and it indicated that evidence of intercourse was found. The complaining witness testified that defendant threatened her repeatedly and that he struck her but that no bruises resulted from the blows. Given these circumstances, we affirm the finding of the trial court that no reversible error occurred through the nonproduction of the doctor. Pearson, supra, 725.

Next, defendant argues that his statement given to the police shortly after being taken into custody and after he was given the Miranda^[1] warnings was involuntary because he thought he was speaking to an investigator for an attorney. The statement was inculpatory to the extent that defendant admitted meeting the complainant on the night in question, driving around with her and eventually stopping on a side street where they discussed religion for about three hours. At that point, however, defendant ceased talking and requested an attorney. A motion to suppress was made during trial at which time a separate hearing was conducted. The trial court ruled at the hearing on the motion for a new trial that the statement was given voluntarily. Defendant admitted that he had been given the Miranda warnings prior to speaking with the officer and that he had signed a copy thereof. He was unable to explain how he became aware that the perceived investigator was actually a police officer. None of the practices condemned with regard to taking defendant's statements in People v Brannan, 406 Mich. 104; 276 NW2d 14 (1979), are evident here. It appears that defendant's alleged confusion was self-induced and, thus, we affirm the ruling of the trial court on this issue.

Defendant also takes issue with certain cross-examination of the defendant's brother where the prosecutor asked him whether he had ever used an alias in general or two different, specific names. These questions were not objected to at trial, but were mentioned in defendant's motion for a new trial. In ruling upon this argument, the trial court stated that such inquiries could become a problem where they are replete throughout the record, but one isolated instance as this was not a problem. This Court has stated that a witness's use of an alias is highly probative of his or her credibility. People v Dietrich, 87 Mich. App. 116, 139; 274 NW2d 472 (1978). Where, as here, the inquiries are not emphasized in an attempt to discredit a witness through innuendo, especially when the witness was the defendant's brother, they do not constitute error.

Defendant's final contention is that he was denied effective assistance of counsel by virtue of two mistakes committed by his trial counsel. They were that no pretrial motion to suppress defendant's statement was made, and, that defense counsel through his questioning allowed the jury to become aware of the fact that defendant had curtailed his statement by invoking his Fifth Amendment privilege. Concerning the first mistake, defense counsel did instigate a hearing on the voluntariness of defendant's statement, albeit at trial, and it was found to be admissible. Our above review of that determination makes it clear that the statement was not obtained illegally, and thus, it is clear that a failure to litigate the issue prior to trial had little effect upon defendant's conviction. People v Degraffenreid, 19 Mich. App. 702, 714-715; 173 NW2d 317 (1969). Defendant had terminated his statement to the police in mid-sentence as he was saying, "We sat there for three hours talking about religion * * *." After ruling that the statement was admissible, the trial court cautioned counsel not to mention defendant's assertion of his right to an attorney. Nevertheless, defense counsel questioned the officer as to the completeness of the statement and as to the fact that the last sentence ended with a comma. This was deemed to have opened the door to the prosecution's inquiry as to why the statement was incomplete. The jury was instructed that defendant's assertion of the privilege was not to be taken in a prejudicial manner. Defense counsel, in support of his theory of consent, elicited from the complainant the admission that she and defendant had discussed sex. By demonstrating that defendant's statement was incomplete he was able to bolster this theory by indirectly adding to defendant's statement the fact that they had also discussed sex. A failure to show the statement's incompleteness may have negated that contention. This appears to be a conscious choice of trial strategy and we find that defendant was afforded representation that meets the standard adopted in People v Garcia, 398 Mich. 250, 266; 247 NW2d 547 (1976).

Affirmed.

NOTES

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

[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).