People v. Baines, Docket No. 22369

• Citation: 242 N.W.2d 784,68 Mich.App. 385
• Decision Date: 05 April 1976
• Docket Number: Docket No. 22369
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BAINES, a/k/a Willie Johnston, Defendant-Appellant. 68 Mich.App. 385, 242 N.W.2d 784
• Court: Court of Appeal of Michigan — District of US

Page 784

242 N.W.2d 784

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel BAINES, a/k/a Willie Johnston, Defendant-Appellant.

Docket No. 22369.

68 Mich.App. 385, 242 N.W.2d 784

Court of Appeals of Michigan.

April 5, 1976.

Released for Publication June 14, 1976.

[68 MICHAPP 386] Eskin, Bradford & Lakind, by William N. Bradford, Southfield, for defendant-appellant.

[68 MICHAPP 385] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, [68 MICHAPP 386] Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK, Jr. and KELLY, JJ.

D. E. HOLBROOK, Jr., Judge.

Defendant was convicted by a jury on October 31, 1974, of larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. On November 18, 1974, the trial court sentenced the defendant to a term of from 2 to 4 years in prison. On December 9, 1974, defendant filed his claim of appeal as of right with this Court.

At trial the prosecution presented two witnesses, a security guard and a sales person from Hughes & Hatcher's Northland store where the larceny occurred. Over objection, the prosecution was excused from producing another person who had assisted in detaining the defendant outside of Hughes and Hatcher and was indorsed on the information. ¹ This is the basis for defendant's first claim of error.

Initially, we note that defendant did not move for a new trial. Such a motion is required under People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). Although in that case the Supreme Court remanded for an evidentiary hearing as to the testimony that the witness would have given or [68 MICHAPP 387] the reason why the witness was not produced, the holding in that case explicitly states:

'In appeals filed after this opinion is published (January 28, 1974) 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.' ² (Emphasis supplied.) People v. Robinson, supra at 634, 213 N.W.2d at 109.

The purpose behind the remand in People v. Robinson, supra, was to give that defendant the opportunity to make his motion for a new trial since he could not have known of the new requirement. Likewise, the early decisions of this Court ³ followed the action taken and not the holding of People v. Robinson, supra. This was a correct procedure since most of these cases were necessarily filed with this Court before the publication of People v. Robinson, supra.

The language of the holding is clear, before the appellate courts of this state will review a claim that the prosecutor failed in his statutory duty to produce a witness ⁴ a motion for a new trial is required. The holding does not excuse a motion for a new trial when a hearing has already been held and the trial court has already excused the witness's production. But see, People v. Wynn, 60 Mich.App. 636, 640, 231 N.W.2d 269 (1975). A motion for a new trial should have been filed in this case since defendant could not have filed his claim of appeal until over nine months had elapsed from [68 MICHAPP 388] the publication of People v. Robinson, supra, and it was not filed until 10 1/2 months had elapsed.

At the trial the Hughes & Hatcher security officer used a box with a Hughes & Hatcher label on it to store the evidence that he brought including the shirt in question. The defendant argues that this is reversible error since his defense was that the shirt did not come from Hughes & Hatcher. In his closing argument defense counsel pointed out that the shirt was one of five in a Hudson's bag. The other four shirts definitely had Hudson labels on them while the shirt in question was a brand sold at both Hughes & Hatcher and Hudson's. Furthermore, the shirt in question did not have any sales tag on it. ⁵ However, the box was never introduced into evidence, only the contents.

It cannot be denied that the jurors observing the shirt in question being removed from a Hughes & Hatcher box might be influenced against defendant's claim that the shirt might have come from another store. Cf. People v. Kudla, 223 Mich. 137, 193 N.W. 844 (1923), People v. Benberry, 24 Mich.App. 188, 180 N.W.2d 391 (1970). However, in this case defense counsel did not object to the box being present. He only objected to its admission. Nor did he request a curative instruction. In fact, during his closing argument he attempted to use the box in his favor by pointing out that the prosecution must be trying to influence the jurors' minds by such a device. When defendant attempts to use a possible error to his tactical advantage and the results are not to his liking, this Court will not allow him to use that as grounds for [68 MICHAPP 389] reversal. People v. Morgan, 50...