People v. Allen, Docket No. 28909
| Decision Date | 07 July 1977 |
| Docket Number | Docket No. 28909 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont ALLEN, Defendant-Appellant. 76 Mich.App. 585, 257 N.W.2d 263 |
| Court | Court of Appeal of Michigan — District of US |
[76 MICHAPP 585] Vater & Krellwitz by Michael W. Krellwitz, Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., for plaintiff-appellee.
Before WALSH, P. J., and QUINN and HUNTER D. STAIR, * JJ.
Defendant was charged with armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He [76 MICHAPP 586] was tried by jury and convicted. He appeals, assigning as reversible error the trial court's denial of his motion to require the prosecutor to produce certain res gestae witnesses. No motion for new trial was filed in the trial court prior to the filing of defendant's brief on appeal.
In People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), the Supreme Court made the filing of a motion for new trial a mandatory prerequisite to the raising of the failure to produce issue on appeal.
"In appeals filed after this opinion is published, a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial." (Emphasis added.) People v. Robinson, supra, at 634, 213 N.W.2d at 109.
Defendant argues that since he made a motion for production of the missing witnesses at trial and the trial judge made a ruling on the sufficiency of the efforts made by the prosecutor to identify and/ or produce the witness, the requirements of Robinson have been satisfied. We disagree.
The purpose of the Robinson rule is to prevent the ordering of what may be "useless" new trials. People v. Robinson, supra, at 633, 213 N.W.2d 106. Specific directives relating to the conduct of the hearing on the motion for new trial were embodied in the rule to insure the desired result. 1
First, the prosecutor is required to produce the [76 MICHAPP 587] witness and the witness must be examined regarding his knowledge of the crime. From this the court can determine whether any prejudice resulted to the defendant from the fact that the testimony of the witness was not presented at trial. It may be that the testimony would be totally corroborative of the prosecution's theory of the case; or it may be that the testimony would be merely cumulative; or it may be that the witness is unable to testify as to any facts which are in any way probative of the guilt or innocence of the accused. In such a case, a new trial would not be required even if it could be shown that the prosecutor had failed to exercise due diligence in his efforts to produce the witness at trial.
Second, if the prosecutor is unable to produce the witness, he must explain why he cannot do so. From this the court can determine whether the witness could be produced at a new trial if one were ordered. It would certainly be an exercise in futility to order a new trial if the missing witness could not be produced.
It is only when the procedure directed in Robinson has been followed, therefore, that the appellate court will have a proper record to review and a reasonable basis from which to determine whether a new trial is required to assure that all testimony which may be favorable to the defendant and which can be produced is presented to the trier of fact. When this procedure is not followed, the appellate court cannot properly perform its reviewing function, even in cases like this one where the failure to produce issue was raised at trial and the court has ruled on the sufficiency of the efforts of the prosecutor to identify and/or produce the missing witness. See, People v. Ebejer, 66 Mich.App. 333, 344, 239 N.W.2d 604 (1976). Even [76 MICHAPP 588] if we were to agree with the defendant in this case (which we are not inclined to do) and order a new trial because of the...
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...evidence and rendered findings on the failure to produce some of these witnesses, Robinson remains unsatisfied. See People v. Allen, 76 Mich.App. 585, 257 N.W.2d 263 (1977), People v. Ebejer, 66 Mich.App. 333, 239 N.W.2d 604 (1976), and People v. Carpenter, 69 Mich.App. 81, 244 N.W.2d 338 (......
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