141 N.W.2d 719 | Mich. Ct. App. | 1966
PEOPLE
v.
DUSTERWINKLE.
Michigan Court of Appeals.
*152 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James W. Bussard, Prosecuting Attorney, for the people.
Harry Lieffers, Jr., for defendant.
Leave to appeal denied by Supreme Court July 11, 1966. See 378 Mich. 722
McGREGOR, J.
Defendant was convicted in the circuit court by a jury on November 4, 1964, of the offense of statutory rape (CLS 1961, § 750.520 [Stat Ann 1954 Rev § 28.788]). The alleged victim of the offense was a 13-year-old female. At the preliminary examination a doctor was called as a witness. The doctor had examined the complaining witness on the night of the alleged assault and had taken certain specimens from within her female organs, from which said specimens he was able to determine that sperm was present. The record shows that the defendant, through his attorney, at the preliminary examination, did have a complete and adequate opportunity to, and did, cross-examine the doctor. Upon trial, despite the issuance of a subpoena and efforts to secure the attendance of the doctor at the trial, he was not available. The doctor's testimony taken at the preliminary examination was read to the jury, over objections by defendant's counsel, on the grounds that defendant was constitutionally entitled to confrontation of the witness.
The pertinent issue before us appears to be whether or not the defendant's constitutional right of confrontation was violated when the court allowed the reading into evidence of the testimony, taken at the defendant's preliminary examination, of a witness unavailable at trial, now in the military service, whom defendant's counsel had cross-examined. Under the provisions of the Michigan Constitution *153 (1963, art 1, § 20), the defendant in a criminal prosecution is entitled to be confronted with the witnesses against him.
Use of the testimony of the doctor witness from the preliminary examination is provided by CL 1948, § 768.26 (Stat Ann 1954 Rev § 28.1049) as follows:
"Testimony taken at an examination * * * may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial."
In a prosecution for statutory rape, testimony by an examining physician may be received for the purpose of establishing that an act of sexual intercourse has been committed against the victim. People v. Inman (1946), 315 Mich. 456.
Although the defendant, in his brief, contends that there was not a sufficient showing of the unavailability of the witness, the record indicates that his counsel said, at the time of the trial court's consideration thereof, "I am satisfied that every effort has been made to bring him here." Sufficient effort to secure the attendance of a material witness is a question for determination by the trial judge, and there is no showing of judicial abuse of discretion under the circumstances in the instant matter. The ruling of the trial court therein will not be disturbed.
In People v. Hunley (1946), 313 Mich. 688, the defendant was not represented by counsel at the preliminary examination, but she did cross-examine a witness who was unavailable at her trial. The Supreme Court held that the use of the transcript of such testimony at the trial of the defendant did not violate the defendant's constitutional right of confrontation.
The defendant herein, as supporting his claim, cites the analogous holding of the United States *154 Supreme Court in Pointer v. Texas (1965), 380 U.S. 400 (85 S. Ct. 1065, 13 L ed 2d 923). In that case, the preliminary hearing was merely a determination of probable cause, which is similar to the requirements of an examination in Michigan. In the Pointer Case, defendant was not represented by counsel and did not cross-examine the witness at the preliminary examination, and the United States Supreme Court held that the use of such testimony of an unavailable witness at the subsequent trial constituted a denial of the defendant's constitutional right of confrontation. Inter alia the majority opinion supports the people's contention in the instant case, when the court went on to say (p 407):
"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."
This defendant's constitutional right of confrontation was not violated where the preliminary examination testimony of a witness, unavailable at trial, was received in evidence, when the defendant's attorney had cross-examined said witness at the preliminary examination.
Defendant contends that one of the determinative issues before this Court is the adverse ruling of the trial court to a portion of his attempted argument to the jury. There is no transcript of the respective arguments to the jury, objections thereto, or rulings by the court, except as contained in a very short excerpt. In the absence of a complete transcript, this Court may not pass on such claimed error. The *155 short excerpt does not indicate any reversible error on the part of the trial court.
The record does not show any reversible error. The conviction is affirmed.
HOLBROOK, P.J., and BURNS, J., concurred.
NOTES
[*] Phillips was the one who was robbed, was not available at the the trial, and whose testimony given at the preliminary hearing was used over defendant's objection at his trial.
