249 N.W.2d 345 (Mich.App. 1976), 24491, People v. Abrego

Docket Nº:Docket No. 24491.
Citation:249 N.W.2d 345, 72 Mich.App. 176
Opinion Judge:Before DANHOF, CJ, and D E HOLBROOK and MUNRO
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas ABREGO, Defendant-Appellant.
Attorney:[72 Mich.App. 177] Bennett, Vilella & Mitchell, by H. Eugene Bennett, Lansing, for defendant-appellant. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David L. Smith, Pros. Atty., for plaintiff-appellee.
Judge Panel:Before DANHOF, C.J., and D. E. HOLBROOK and MUNRO, JJ.
Case Date:November 08, 1976
Court:Court of Appeals of Michigan

Page 345

249 N.W.2d 345 (Mich.App. 1976)

72 Mich.App. 176

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Thomas ABREGO, Defendant-Appellant.

Docket No. 24491.

Court of Appeals of Michigan.

November 8, 1976

Released for Publication Jan. 27, 1977.

Page 346

[72 Mich.App. 177] Bennett, Vilella & Mitchell, by H. Eugene Bennett, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David L. Smith, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C.J., and D. E. HOLBROOK and MUNRO, JJ.

MUNRO, Judge.

On March 25, 1975, defendant was convicted in a trial before the court of possession of heroin with intent to deliver, contrary to M.C.L.A. § 335.341(1) (a); M.S.A. § 18.1070(41)(1)(a), and was sentenced on April 10, 1975, to a prison term of 2 to 20 years. He now appeals as of right, arguing that the prosecutor erred in failing to indorse and produce an alleged res gestae witness and that insufficient evidence of an intent to deliver heroin was introduced at trial.

On July 11, 1974, the police approached the residence located at 4208 W. Michigan Avenue, Delta Township, Eaton County, for the purpose of executing a search warrant. When the officers drove their vehicle onto the lawn, four persons hurried from the house. Defendant, who was the first to exit, threw what appeared to be a cellophane bag. Officer Ballis of the Lansing [72 Mich.App. 178] Police Department retrieved the bag which was subsequently found to contain heroin. Defendant was arrested for possession of heroin with intent to deliver. A total of eleven people, every person in or leaving the premises over 17 years of age, were arrested.

At the preliminary examination, Officer Ballis identified two of the persons who followed defendant out of the house when the police arrived as Esmerelda Abrego, defendant's sister, and Santiago Martinez. He was unable to identify the fourth individual.

On March 12, 1975, the day originally set for trial, defense counsel moved for the indorsement of the three persons who followed defendant out of the house as res gestae witnesses. Trial was adjourned and a Robinson 1 hearing was held on March 20, 1975. At the conclusion of the hearing, the trial court ruled that Esmerelda Abrego and Santiago Martinez were res gestae witnesses and that Magdalena Sanchez, Diane Sanchez, Christina Sanchez and Mary Santos Abrego, the other women at the residence who were arrested, should be indorsed and produced at trial for purposes of ascertaining the identity of the fourth individual who, testimony at the hearing indicated, was a female.

At trial, Santiago Martinez testified that he saw Diane Sanchez outside the residence and saw her being led back into the house by the police. Neither Christina nor Diane Sanchez were at trial. The prosecution requested that it be excused from producing the two as a diligent effort had been made to secure their attendance. The trial court ruled that the unidentified individual was Diane [72 Mich.App. 179] Sanchez, that she was not a res gestae witness because she was not in a position to observe the events giving rise to the prosecution, and that even if it was assumed she was a res gestae witness, the prosecution had demonstrated due diligence in attempting to locate her.

The prosecutor is required to indorse on the information and produce at trial all res gestae witnesses. M.C.L.A. § 767.40; M.S.A. § 28.980, People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973). This Court has broadly defined a res gestae witness to include not only one who witnesses a crime but one who is present at the time and place of the crime, observes the surroundings, and sees nothing. That is, one whose testimony is necessary

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to protect the defendant against false accusation or...

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