People v. Barker

• Decision Date: 31 July 1969
• Docket Number: Docket No. 6167,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel BARKER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 574

171 N.W.2d 574

18 Mich.App. 544

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel BARKER, Defendant-Appellant.

Docket No. 6167.

Court of Appeals of Michigan, Division No. 1.

July 31, 1969.

Released for Publication Nov. 6, 1969.

Arthur I. Gould, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Detroit, for appellee.

Before FITZGERALD, P.J., and T. M. BURNS and LEVIN, JJ.

T. M. BURNS, Judge.

This is an appeal from the Wayne County Circuit Court wherein the trial judge, sitting without a jury, convicted defendant of possession of marijuana, M.C.L.A. § 335.153 (Stat.Ann.1969 Cum.Supp. § 18.1123), and sentenced him to serve four to ten years in prison.

The record shows that on July 23, 1966, defendant voluntarily followed his two nephews to Redford Township Police Headquarters where the boys were questioned about an alleged attempt to commit larceny at the Gay Drugstore in Redford. From the record on appeal, it appears that when the defendant's nephews were arrested they were in defendant's car and that he followed the police immediately to the station. Further, it appears that he parked his car in front of the police station and went inside to wait for his nephews. While he was waiting, the Redford police called the Detroit police and discovered that defendant had several outstanding traffic warrants. Defendant was placed under arrest to be held for the Detroit police.

At trial, Detective Sergeant Johnson testified that he 'inventoried' defendant's car, while defendant was awaiting removal to Detroit, without defendant's permission. This 'inventory', which was in reality a thorough search produced two cigarettes believed to be marijuana and some little particles thought to be marijuana seeds. These were subsequently analyzed and were found to be Cannibis sativa or marijuana.

Defendant filed a timely motion to quash the information and suppress the evidence, and this motion was denied by the Honorable Carl M. Weideman on June 28, 1968. Defendant waived his right to a jury trial and was found guilty by Judge Burdick. Defendant appeals from this decision.

The defendant on appeal objects to the failure of the People to produce Res gestae witnesses as required. M.C.L.A. § 767.40 (Stat.Ann.1969 Cum.Supp. § 28.980); People v. Kayne (1934), 268 Mich. 186, 255 N.W. 758.* The People claim that they made a diligent effort to insure the presence of these witnesses and the trial court agreed. We do not.

Although the defendant and his nephews were arrested on the same day in July of 1966, and all the police officers who might incriminate the defendant were indorsed on the original complaint, it was not until a motion was made by defendant in January of 1968, that the People asked the court to indorse these possibly very important Res gestae witnesses.

The record shows that the police made no attempt to question the two boys who were arrested while in defendant's car about the marijuana, nor did they make any effort to find these witnesses for over a year and a half after the arrest of the defendant or to preserve their testimony. When they finally did make an attempt to subpoena the witnesses for trial the police relied on the addresses given to them at the time of arrest and assert that they sought to serve these witnesses only to find that they had moved some months before. No further attempt was made to locate these witnesses. Compare People v. O'Dell (1968), 10 Mich.App. 87, 158 N.W.2d 805.

The indorsement of the name of a witness on the information either voluntarily or under order, as in this case, creates a duty in the prosecution to produce such witness at the trial, and the defendant may rely upon the prosecutor to fulfill the obligation. People v. Lummis (1932), 260 Mich. 170, 244 N.W. 438, people v. Ivy (1968), 11 Mich.App. 427, 430, 161 N.W.2d 403.

The trial court here improperly attempted to shift the responsibility for the production of these witnesses onto the defendant by its implied assertion that since defendant had not been in custody the entire time between arrest and trial he should have found them and produced them.

Although certainly a showing of due diligence in attempting to produce a witness will excuse the prosecutor from production, People v. Ivy, Supra, People v. Kern (1967), 6 Mich.App. 406, 149 N.W.2d 216, we cannot help but find that the trial court erred in its finding that there was due diligence under the facts of this case. See also People v. Tiner, Supra.

This case seems to us to be paradigmatic of the command set down in People v. Kayne, Supra, p. 194, 255 N.W. p. 761, under which,

'the state is required to indorse and call the witness or witnesses whose testimony is necessary to protect the accused from being the victim of a false accusation.'

Therefore, we must reverse the conviction and remand for a new trial. At the retrial, if the People again fail to produce these Res gestae witnesses and a showing of due diligence is not made, we think it would be proper under People v. Ivy, Supra, for the court to consider that the testimony of such witnesses would be adverse to the People's case.

Reversed and remanded.

FITZGERALD, J., concurring.

LEVIN, Judge (concurring).

I concur in Judge Burns' opinion reversing defendant's conviction and granting him a new trial. I write separately because I think we are also obligated to consider and decide the defendant's claim that the trial court ¹ erred when it denied his motion to suppress the marijuana seized in his automobile.

At the new trial, the admissibility of the marijuana is a question which is bound to arise again. Accordingly, we should now decide that question. ² If the marijuana is inadmissible, then the defendant, who has already spent over a year in jail, is entitled to have that evidence excluded at his new trial. He should not be required possibly to spend still another year or so in jail before we reach and decide this meritorious question. ³

The constitutions of the United States and of this state prohibit violation of the right of the people to be secure against 'unreasonable' searches and seizures. U.S. Const. Am. 4, and Const.1963, art. 1, § 11. The people's brief makes no claim that the search and seizure of the marijuana was 'reasonable'. At the outset of the people's oral argument in our Court, the assistant prosecuting attorney conceded that the search and seizure was unreasonable. The people, nevertheless, defend the search and seizure of the marijuana claiming that while it was obtained as the result of an unreasonable search and seizure, it is admissible because of the proviso in the Michigan constitution which excepts narcotics and certain dangerous weapons seized outside the curtilage of a dwelling ⁴ from the rule of law (the so-called 'exclusionary rule') which makes illegally seized evidence inadmissible at trial.

However, in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, the United States Supreme Court declared that the exclusionary rule, devised to implement the Fourth Amendment's prohibition of unreasonable searches and seizures, applies to the States through the Fourteenth Amendment. ⁵ This means that, as to both State and Federal trials, the Fourth Amendment and the exclusionary rule are 'the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' United States Const. art. 6, § 2.

The people's argument in this case, in essence, is that, despite the just quoted supremacy clause, Michigan is free to modify the governing Federal constitutional guarantee.

It has been suggested that support for this novel proposition can be found in certain language used by the United States Supreme Court in Ker v. California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. ⁶ However, the pertinent portion of the Ker opinion concluded with the observations that the Court did not intend to imply any (p. 34, 83 S.Ct. p. 1630) 'derogation of uniformity in applying federal constitutional guarantees' and that it was deciding the case in the application of the 'federal constitutional standard.'

Any doubt that there is but one applicable standard, namely, the Federal standard, was dispelled by Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. In that case the United States Supreme Court observed that it had held that the guarantees of the First Amendment, the prohibition of unreasonable searches and seizures of the Fourth Amendment (citing Ker v. California) and the right to counsel guaranteed by the Sixth Amendment (p. 10, 84 S.Ct. p. 1495) 'are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. * * * The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights'.' Similarly, see Aguilar v. Texas (1964), 378 U.S. 108, 110, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723; People v. Wolfe (1967), 5 Mich.App. 543, 550, 147 N.W.2d 447; People v. McDonald (1968), 13 Mich.App. 226, 163 N.W.2d 796.

Also relevant in our consideration of the constitutionality of the Michigan proviso making a distinction between searches within and outside the curtilage of a dwelling is the shift in emphasis in the application of the constitutional right to be protected against warrantless, unreasonable searches from the protection of places to the protection of individual privacy. ⁷

'We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on...