People v. Baskin

Decision Date26 December 1985
Docket NumberDocket No. 80409
Citation378 N.W.2d 535,145 Mich.App. 526
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wesley BASKIN, Defendant-Appellant. 145 Mich.App. 526, 378 N.W.2d 535
CourtCourt of Appeal of Michigan — District of US

[145 MICHAPP 529] Mark P. Stevens, Marquette, for defendant-appellant.

Before CYNAR, P.J., and HOOD and OLZARK *, JJ.

PER CURIAM.

FACTS

Defendant appeals from his jury conviction of two counts of assault on a prison employee, M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3). As a result of these convictions and a subsequent conviction as a habitual offender pursuant to M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082, defendant was sentenced to two concurrent terms of from 3 to 6 years imprisonment to run consecutively to his prior sentence.

Defendant's convictions stem from an incident [145 MICHAPP 530] occurring on February 14, 1983, at the Marquette Branch Prison. On that date, defendant, a Marquette prisoner, became involved in an altercation with two prison guards. Defendant claimed at trial that he was acting in self-defense.

According to defendant, he had learned through another inmate that one of the prison guards, Officer Richard Smith, had placed a contract on his life. At the time of the incident, defendant was returning from the yard when a scuffle broke out between Officer Smith and two other inmates. Then the defendant felt someone hitting him from behind. Defendant perceived this as the predicted assault on his life and began to fight. He then realized he was fighting two prison guards. Defendant stopped fighting when more prison guards responded to the scene.

Officer Martin testified for the prosecution that as he was escorting several inmates to their cells he was jumped from behind and assaulted by an unknown number of inmates. Martin identified defendant as one of his assailants. Officer Bellhorn testified that he saw defendant hitting Martin and, when he tried to stop defendant, defendant assaulted him.

Defendant raises several points of claimed error on appeal.

I

Defendant first contends that he was denied his right to a fair trial because the prosecutor failed to endorse certain res gestae witnesses, specifically, Officer Richard Smith, inmates John Brown and Eddie Julian, and other prison inmates who may have witnessed the incident.

A res gestae witness has been described as " 'an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony [145 MICHAPP 531] will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense' ". People v. Carter, 415 Mich. 558, 591, 330 N.W.2d 314, 315 (1982), quoting People v. Hadley, 67 Mich.App. 688, 690, 242 N.W.2d 32 (1976). One need not be an actual eyewitness in order to be a res gestae witness if his or her testimony would assist in developing a full disclosure of the facts. People v. Buschard, 109 Mich.App. 306, 312, 311 N.W.2d 759 (1981); People v. Abdo, 81 Mich.App. 635, 643-644, 265 N.W.2d 779 (1978), lv. den. 405 Mich. 805 (1979). An affirmative duty resides in the people to endorse and produce at trial all res gestae witnesses. M.C.L. Sec. 767.40; M.S.A. Sec. 28.980. If the prosecutor does not comply, however, it is incumbent upon the defendant to move for an evidentiary hearing before, during, or after a new trial, in order to perfect the issue for appeal. People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106 (1973); People v. Pearson, 404 Mich. 698, 723, 273 N.W.2d 856 (1979).

Defendant requested the production of these witnesses before trial and also requested a jury instruction concerning the prosecutor's failure to endorse the requested res gestae witnesses. The trial court ruled that Officer Smith was not a res gestae witness and denied defendant's requests. The trial court also decided that the prosecution's failure to produce those prison inmates who may have been res gestae witnesses was excused by its diligent but futile efforts to locate and produce them. We discuss the merits of each decision separately.

Officer Richard Smith

The decision of a trial court concerning the status of an alleged res gestae witness will not be overturned unless clearly erroneous. People v. Abrego, 72 Mich.App. 176, 249 N.W.2d 345 (1976); [145 MICHAPP 532] People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973). In this case, the basis for the court's decision that Officer Smith was not a res gestae witness was its finding that Smith did not see the assault as it happened because Smith was around the corner and was rendered semi-conscious if not unconscious at the time as a result of the beating that he took from another inmate. We find this decision clearly erroneous and unsupported by the record.

All three prison guards involved in this case testified at the preliminary examination that, at the time of the incident, the inmates and the three guards were on the first gallery of the cellblock. Officer Smith was located approximately three-fourths of the way down the gallery toward the far east end, Officer Martin was in the middle and Officer Bellhorn was at the west end. Officer Smith was not around the corner as the trial court indicated. Further, Smith testified that he was not rendered unconscious until 2 or 3 minutes after the assault on him began. Therefore, Smith did have some ability to observe the incident prior to being rendered unconscious.

John Brown and Eddie Julian

While defendant does not contend that John Brown and Eddie Julian were eyewitnesses to the assault at issue, he does contend that their involvement with this incident qualifies them as res gestae witnesses. Both individuals were called by the defense. Eddie Julian testified that Officer Smith had offered him a contract to kill defendant and two other inmates. Julian testified that he asked John Brown to do it instead. John Brown testified that two days before the assault in question, he sent a note to another inmate, Kenny Smith, informing Smith that Officer Smith had [145 MICHAPP 533] entered into a contract to kill Smith and defendant.

On various occasions, this Court has classified a witness as a res gestae witness even though the witness did not personally observe the act in question. See e.g., People v. Harrison, supra, p. 592, 205 N.W.2d 900; People v. Williams # 2, 45 Mich.App. 630, 635, 207 N.W.2d 180 (1973). The res gestae rule encompasses not only eyewitnesses but witnesses whose testimony may aid the making of a fair presentation of the res gestae of the crime charged and may be necessary to protect the accused from being victimized by false accusations. People v. Fudge, 66 Mich.App. 625, 629, 239 N.W.2d 686 (1976).

Here, neither Brown nor Julian witnessed the assault. Nor did they have any contact with the defendant which was reasonably contemporaneous with the crime or which tended to show the state of mind with which the criminal act was done. Cf., People v. Williams # 2, supra. Indeed, defendant does not argue that Brown and Julian knew that defendant had knowledge of the alleged contract. At most, Brown and Julian could testify as to the existence of the contract and Brown could corroborate the existence of the letter he wrote to Smith. But this evidence does not go to the actual res gestae of the crime. Therefore, the prosecutor was not required to produce them at trial.

Cohen, Paige and the Other Non-Accomplice Inmates

Defendant further argues that the failure to endorse those other inmates who were housed in Block B and allegedly observed the incident was also error. When defense counsel raised this issue prior to trial, the prosecutor agreed to deliver a box of form letters to the prison requesting inmates to contact the prosecutor's office if they had [145 MICHAPP 534] any information about the incident. While the prosecutor fulfilled this agreement, no inmates came forth.

Subsequently, defense counsel brought another motion to endorse these alleged res gestae witnesses. At that time, the trial court declined to order the prosecutor to interview each inmate to substantiate who or was not a res gestae witness, stating that the delivery of the form letters constituted a sufficiently reasonable effort in light of the generalization that inmates "dummy up" and in this case refused to cooperate with the prosecutor. The trial court did, however, order the prosecutor to provide defense counsel with a list of those inmates housed in the cellblock at that time so that defense counsel might contact the inmates to determine who among them were res gestae witnesses and then make a motion to endorse them.

After both sides had entered their proofs at trial, defense counsel requested that a "missing witness" instruction be given to the jury concerning the prosecutor's failure to produce inmates Paige, Cohen, Jones and those unidentified inmates who witnessed the incident. The trial judge refused to give the instruction because defendant never requested the endorsement of additional witnesses after the prosecutor had supplied defense counsel with the list of those inmates housed in the cellblock at the time.

In essence, the trial judge ruled that the prosecution had used due diligence in its efforts to determine which inmates were res gestae witnesses and, therefore, was excused from having these witnesses endorsed. This Court will not overturn a trial judge's findings of due diligence on appeal unless an abuse of discretion is shown. People v. Castaneda, Mich.App. 453, 460, 265 N.W.2d 367 [145 MICHAPP 535] (1978). We find that an abuse of discretion has been shown here.

The purposes of requiring the production of res gestae witnesses include: (1) protecting the defendant against false accusation; (2) preventing suppression of testimony favorable to the accused; and (3) ensuring the disclosure of all the circumstances. People v. Norwood, 123 Mich.App. 287, 294, 333 N.W.2d 255 (1983), lv. den. 417...

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