People v. Oaks
290 N.W.2d 70
Mich. Ct. App.
1980
Check Treatment
Per Curiam.

David Russell Oaks and Ronald Boyd Maples were jointly tried before a jury, together with one Terry Scutchfield. They were convicted of the charged offense of breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305. Another codefendant, Larry Maples, later pled nolo contendere to the same charge. Defendant Oaks was sentenced to a prison term of 5 to 15 *748 years. Defendant Ronald Maples was given a 180-day prison sentence and 3 years probation. Both defendants appeal and the appeals have been consolidated due to the identity of the issues raised.

On the afternoon of February 2, 1978, as a result of a telephone call by an informant to the Washtenaw County Sheriffs Department surveillance was established at the Wood Creek Apartments in Ypsilanti Township. A moving van was observed parked in front of the apartment. The van left the apartments between 7 p.m. and 7:30 p.m. and proceeded to a house at 7107 Platt Road. The van remained parked for 10 or 15 minutes, and the police observed several persons moving furniture from the house into the van. The police followed the van and stopped it on Golfside Road in Ypsilanti. They then arrested David Oaks who was driving, Ronald Maples who was in the passenger seat, and Larry Maples and Terry Scutchfield, who were in the cargo compartment of the van.

Mary Garrett resided at the house in question with her two children and Bonita Benswinger, the babysitter. On February 2, 1978, Ms. Garrett had left the house to go to work. She returned to find the living room furniture, draperies, pictures, and Ms. Benswinger’s stereo missing. The furniture in the van was identified as belonging to Ms. Garrett.

At trial, Ms. Benswinger asserted her privilege against self-incrimination to avoid testifying. The prosecution then offered as evidence the testimony given by Ms. Benswinger at the preliminary exam-. ination. Defense counsel objected to the admission of this testimony, claiming that the use of the preliminary examination transcript would deny the defendants their constitutional right to confront witnesses against them. The trial court ruled that the testimony was admissible.

*749 At the preliminary examination, Ms. Ben-swinger testified that she had known the defendant for several months. She had two or three telephone conversations with Larry Maples, wherein he said that he wanted to. come and take everything out of the house and wanted her to leave the house with the doors open. She would be told when she could return to the house.

The defendants’ first issue on appeal is whether the use of Ms. Benswinger’s testimony at the preliminary examination denied the defendants their constitutional right to confront witnesses against them.

MCL 768.26; MSA 28.1049 authorizes the use of prior testimony where a witness cannot be produced at trial. Several cases have stated that a person is "unavailable” for purposes of the statute when he refuses to testify. People v Pickett, 339 Mich 294; 63 NW2d 681 (1954), cert den, 349 US 937; 75 S Ct 781; 99 L Ed 1266 (1955), People v Szeles, 18 Mich App 575; 171 NW2d 550 (1969), People v Goldman, 349 Mich 77; 84 NW2d 241 (1957).

In People v Walter Moore, 78 Mich App 294; 259 NW2d 351 (1977), the defendant and a codefendant named Houston were charged with felony murder and armed robbery in separate warrants and were bound over in separate preliminary examinations. An accomplice named Rakestraw testified at the defendant’s preliminary examination, then refused to testify at trial despite the fact that he had already pled guilty and had been sentenced for his role in the crime. Despite defendant’s objections, Rakestraw’s testimony at the preliminary examination was admitted, even though codefendant Houston and his attorney had not been present at that examination and never had an opportunity to *750 cross-examine the witness. The Court upheld the use of Rakestraw’s preliminary examination transcript, saying that there had been a fully adequate opportunity for cross-examination. The defendant’s cross-examination took up 12 pages of transcript, and the examining magistrate made no attempt to hurry or cut short the questioning. This was held sufficient to satisfy the requirements of the Sixth Amendment confrontation clause.

In People v Castaneda, 81 Mich App 453; 265 NW2d 367 (1978), an informant named Velasquez testified at that defendant’s preliminary examination concerning an alleged sale of heroin. Velasquez subsequently repudiated his preliminary examination testimony. At the trial, Velasquez claimed his Fifth Amendment privilege because of pending perjury charges against him arising out of the repudiation of his testimony. The Court upheld the trial judge’s ruling admitting the use of the preliminary examination transcript under MCL 768.26; MSA 28.1049, saying that defendant took advantage of the opportunity to examine Velasquez at the hearing. The Court added that the prosecutor was not required to grant Velasquez immunity under MCL 780.701; MSA 28.1287(101), citing People v Towlen, 66 Mich App 577, 579-580; 239 NW2d 668 (1976).

In the case at bar, Ms. Benswinger asserted her Fifth Amendment privilege and refused to testify at trial. The preliminary examination transcript reveals that she was cross-examined by the attorney for defendants Ronald Maples and Oaks and then by the attorney for Scutchfield. The cross-examination took up approximately 14 pages of transcript and there was no attempt by the magistrate to hurry or cut short the questioning. The prosecutor was not required to offer the witness immunity in exchange for her testimony. We *751 therefore find no error in the use of Ms. Benswinger’s preliminary examination transcript.

The defendants’ second allegation on appeal is that Ms. Benswinger’s preliminary examination testimony was erroneously admitted because it contained inadmissible hearsay, consisting of an account of a conversation between the witness and Larry Maples. Defendants contend that this hearsay does not fall under any exception to the hearsay rule, since Larry Maples was present and available to testify at the trial, as he had never asserted his privilege against self-incrimination.

This contention is without merit. The declarant of the hearsay was Bonnie Benswinger, who became unavailable by asserting her Fifth Amendment privilege. Her preliminary examination testimony was admissible under MRE 804(b)(1). It was immaterial that Larry Maples, the participant to this telephone conversation, was available at trial. His statements were not hearsay under MRE 801(d)(2)(E), which excepts from the hearsay definition any statement by a coconspirator of the party which was made during the course and in furtherance of the conspiracy. See generally, People v Stewart, 397 Mich 1; 242 NW2d 760 (1976), modified on other grounds, 400 Mich 540; 256 NW2d 31 (1977). The telephone conversations between Larry Maples and Ms. Benswinger were designed to facilitate the removal of Ms. Garrett’s furniture, and were therefore in furtherance of the conspiracy. In any case, even if we deem Larry Maples’ statements to be hearsay, they would be admissible under MRE 803(3) to show the declarant’s intent, plan, motive, or design. The availability of the declarant is immaterial for the purpose of MRE 803. See People v Paintman, 92 Mich App 412; 285 NW2d 206 (1979).

Affirmed.