People v. Abrego, Docket No. 24491

• Decision Date: 08 November 1976
• Docket Number: Docket No. 24491
• Citation: 72 Mich.App. 176,249 N.W.2d 345
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas ABREGO, Defendant-Appellant. 72 Mich.App. 176, 249 N.W.2d 345
• Court: Court of Appeal of Michigan — District of US

Page 345

249 N.W.2d 345

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas ABREGO, Defendant-Appellant.

Docket No. 24491.

72 Mich.App. 176, 249 N.W.2d 345

Court of Appeals of Michigan.

Nov. 8, 1976.

Released for Publication Jan. 27, 1977.

[72 MICHAPP 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[72 MICHAPP 178] bag. Officer Ballis of the Lansing 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 MICHAPP 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 to protect the defendant against false accusation or without whose testimony any part of the transaction may remain undisclosed. People v. Anderson, 64 Mich.App. 218, 235 N.W.2d 746 (1975); People v. Harrison, supra. Persons present at the time and scene of the crime are presumed to be res gestae witnesses and the prosecutor must prove otherwise. People v. Hicks, 63 Mich.App. 595, 234 N.W.2d 720 (1975); People v. Samuels, 62 Mich.App. 214, 233 N.W.2d 520 (1975). Every reasonable doubt should be resolved in favor of indorsing and producing a person as a res gestae witness when a defendant insists on his rights. People v. Harrison, supra; People v. Hicks, supra. The decision of the lower court as to the status of a witness will not be overturned unless clearly erroneous. People v. Dixon, 45 Mich.App. 64, 205 N.W.2d 852 (1973), Rev'd on other grounds, 392 Mich. 691, 222 N.W.2d 749 (1974). The conclusion of the trial court, in the present case that Diane Sanchez was not a res gestae witness, was supported by the evidence. The testimony taken at the Robinson hearing and at [72 MICHAPP 180] trial indicates that defendant was the first one out of the door, followed by his sister Esmerelda Abrego and Santiago Martinez. Diane Sanchez would necessarily be the last to exit. Esmerelda Abrego testified that the defendant was outside the house 30 seconds before she herself exited. She variously testified that she was one foot and three feet from him when leaving. Two officers present at the scene testified that defendant was the only person outside the house when he threw the cellophane bag. Defendant's testimony itself indicates that Esmerelda and Martinez who were ahead of Diane Sanchez may still have been inside the door when he tossed what, according to him, was a marijuana cigarette. Diane Sanchez therefore was still inside the house when officers saw defendant throw the cellophane bag. Since she was not in a position to witness the events resulting in the present prosecution,...