Opinion
Docket No. 70553.
Decided March 5, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by R. Steven Whalen), for defendant on appeal.
Defendant appeals as of right from a jury conviction of receiving and concealing stolen property, MCL 750.535; MSA 28.803. Following conviction on a supplemental information charging him with being a fourth-felony offender, defendant was sentenced to a term of from 5 to 10 years in prison. We reverse.
On July 20, 1982, twelve Lansing police officers executed a search warrant at a private residence located at 1521 Reo Road where they discovered several TV's, stereos, jewelry boxes, bedspreads and firearms, all of which were later identified as stolen property. At trial, the prosecution introduced evidence establishing that the owner or tenant of the home was Alla Fay Thornsbury and that defendant resided there with her, at least for the two-month period immediately preceding the execution of the search warrant.
Thornsbury was the only defense witness presented at trial. She testified on direct examination that she had lived at the Reo Road residence for approximately five years with her three sons and one daughter. During the two months prior to July 20, 1982, defendant was a regular visitor at the residence and spent some nights. According to Thornsbury, defendant paid no rent or bills or maintenance costs and had no authority or control over the house. The witness further testified that a friend had asked her if he could leave the stolen property at her home and that defendant was unaware of the arrangement.
On cross-examination, Thornsbury refused to divulge the name of the friend who had deposited the stolen property at her house. Thornsbury continued to refuse even after the court instructed her to answer. The prosecutor then asked the court to strike her testimony. The court complied and the jury was instructed to disregard her entire testimony.
On appeal, defendant contends that the trial court erred in striking Thornsbury's entire testimony and that the effect of the error was that he was denied his constitutional right to present a defense. Upon analysis of this very difficult question, we find that it was error for the trial court in this case to strike the entire testimony of the noncooperative witness.
In Washington v Texas, 388 U.S. 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967), the United States Supreme Court held that a fundamental element of due process is the right of a criminal defendant to present his or her own witnesses at trial to establish a defense. That right is not absolute, however, and must in some cases be weighed against the need for "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence". Chambers v Mississippi, 410 U.S. 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). The balancing of these competing interests in determining the admissibility of a witness's testimony is a matter within the discretion of the trial judge. People v Carter, 96 Mich. App. 694, 703; 293 N.W.2d 681 (1980), lv den 410 Mich. 872 (1980).
In cases where a prosecution witness testifies on direct examination and then refuses to answer certain questions on cross-examination, courts have generally focused upon three criteria in deciding whether to strike the witness's testimony. (1) If the information sought on cross-examination closely relates to the issues being tried and if the inability to develop the information deprives the defendant of his right to test the credibility of the witness, then the noncooperative witness's entire testimony should be stricken. (2) A less drastic approach is preferred where the information sought on cross-examination is only partly connected to the issues being tried or to the information obtained on direct examination. Under these circumstances a partial striking of the witness's testimony on direct examination is sufficient. (3) Finally, where the information sought on cross-examination is merely collateral or cumulative, the refusal of a witness to be cross-examined on those matters does not require that any testimony be stricken and an instruction to the jury is all that is necessary. United States v Stephens, 492 F.2d 1367, 1374-1375 (CA 6, 1974).
We believe that the same general considerations are applicable in cases where a defense witness refuses to submit to cross-examination by the prosecutor. In this case, the only information that was refused on cross-examination was the name of the person who delivered the stolen property to the witness's home. While that information may have been probative of the witness's credibility on the question of how she and the defendant came to possess the property, it did not relate to testimony regarding her sole possessory interest in the Reo Road residence or to testimony regarding the defendant's pattern of visitation during the two months preceding the execution of the search warrant. We conclude that a balancing of the competing interests requires, at most, a striking of the witness's testimony only as it relates to the circumstances under which the stolen property was delivered to her house.
We cannot say that the error in this case was harmless. While we believe, contrary to the defendant's position on appeal, that the evidence introduced at trial was sufficient to support his conviction, we are persuaded that the case presented by the prosecution to the jury was a close one. As explained to the jury by way of CJI 26:1:03, concealment involves the intentional hiding, putting out of sight, disguising or disposing of property to avoid discovery or observation. The evidence introduced at this trial established that defendant resided at the Reo Road residence and occupied the bedroom in which much of the stolen property was discovered. Defendant's residency spanned the time period during which the property had been stolen from the owners. Further, the evidence established that defendant used some of that property. We find that a reasonable trier of fact could have concluded from this evidence that defendant intentionally aided in the concealment of property stolen, People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979), cert den 149 U.S. 885; 101 S Ct 239; 66 L Ed 2d 110 (1980), particularly given the court's instruction that defendant was not under a duty to report stolen property to the police.
Because of the closeness of the case, however, we find that Thornsbury's testimony was particularly critical to a fair determination of defendant's guilt or innocence. Since we cannot say that the exclusion of that testimony was harmless error we must reverse the defendant's conviction.
Defendant also contends that the charge against him should be dismissed because his preliminary examination was conducted more than 12 days after his arraignment. He was arraigned on July 28, 1982, and the preliminary examination was conducted on August 19, 1982, resulting in a 22-day delay.
MCL 766.4; MSA 28.922 provides:
"The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent."
Until recently, this Court has declined to reverse criminal convictions for noncompliance with the 12-day rule where there was no showing of prejudice to the defendant. In People v Weston, 413 Mich. 371; 319 N.W.2d 537 (1982), however, the Michigan Supreme Court rejected the "no prejudice/no reversible error" rule, interpreting the 12 day rule as "an unqualified statutory command that the examination be held within 12 days". 413 Mich. 376.
The prosecution argues that the intent of the Legislature in enacting MCL 766.4; MSA 28.922 was to prohibit the state from holding a presumptively innocent defendant in custody for longer than 12 days in the absence of any probable cause hearing. The prosecution then reasons that because defendant in this case was arrested at Thornsbury's house on an escape charge, the time spent in custody between the arraignment and the preliminary examination would have been served regardless of the results of the probable cause hearing. We conclude that this argument falls within the "no prejudice/no reversible error" rule rejected by the Supreme Court in Weston. Thus, reversal of defendant's conviction is also required under MCL 766.4; MSA 28.922. As in Weston, however, reversal is without prejudice to the prosecutor's right to reinstate a prosecution.
Reversed.