People v. Bersine

• Decision Date: 23 July 1973
• Docket Number: No. 2,Docket No. 10741,2
• Citation: 210 N.W.2d 501,48 Mich.App. 295
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene O. BERSINE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 501

210 N.W.2d 501

48 Mich.App. 295

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene O. BERSINE, Defendant-Appellant.

Docket No. 10741.

Court of Appeals of Michigan, Division No. 2.

July 23, 1973.

Released for Publication Sept. 26, 1973.

George Hamilton Foley, Stackable & Foley, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

The defendant was convicted by a jury of unlawfully selling heroin and was sentenced to 20 to 30 years in prison.

A complaint was filed and warrant issued on March 6, 1970, charging defendant with the unlawful sale of heroin. A preliminary examination on this matter was held on July 8, 1970. The defendant was bound over to Ingham County Circuit Court and arraigned in that court on July 10, 1970.

The prosecution's case rested on the testimony of Daniel Snell. Snell testified at trial that on March 2, 1970, acting in cooperation with the police, he went to the defendant's apartment and purchased a packet of heroin from the defendant and paid him $10.00.

After the prosecution had rested its case, the defendant moved to dismiss the charge on the ground that the prosecution had not produced a res gestae witness. This charge was countered by showing that the police officers had been unsuccessful in attempting to locate the witness. The trial court denied his motion to dismiss.

On September 21, 1971, this Court granted the defendant's motion to remand the cause to the trial court for further proceedings, whereupon the defendant filed an application in the lower court for leave to file a motion for a new trial. Defendant's motion for a new trial was supported by an affidavit, executed by Daniel Snell, recanting his previous trial testimony implicating the defendant in the alleged sale of heroin. After conducting a hearing, the trial court denied the motion for a new trial. From this ruling the defendant appeals, raising six claims of error.

Defendant first contends that the trial court erred in denying his motion for a new trial on the basis of newly discovered evidence.

The granting of a motion for a new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown. People v. Dailey, 6 Mich.App. 99, 148 N.W.2d 209 (1967); People v. Keiswetter, 7 Mich.App. 334, 151 N.W.2d 829 (1967); People v. Harris, 31 Mich.App. 100, 187 N.W.2d 502 (1971). The standard to be used in determining whether the trial court abused its discretion was stated by this Court in People v. Harris, Supra, as follows:

'Appellate relief from a denial of a motion for a new trial on basis of newly-discovered evidence is granted if it is demonstrated that the trial court abused its discretion in such denial. 'Abuse' in such a case would be evidenced by a result that is palpably and grossly violative of fact and ligic, such that it evidences '* * * not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias.' People v. Wolschon (1966), 2 Mich.App. 186, 188, 139 N.W.2d 123, 124.'

A review of the record in the instant case reveals the following facts. In his recanting affidavit, Snell implicated another person in the crime. This party testified at the hearing on the motion for a new trial and denied selling any heroin to Snell on the date in question. The trial court in denying the motion observed that Snell's affidavit was not forthcoming until shortly after the affiant and defendant had come into contact with each other in prison and the lengthy period of time which had elapsed between defendant's conviction and the execution of the recanting affidavit.

It is well settled that this Court is not impressed by recanting affidavits of witnesses who attempt to show that they perjured themselves at trial. People v. Dailey, Supra; People v. Bradford, 10 Mich.App. 696, 160 N.W.2d 373 (1968); People v. Harris, Supra. Under the circumstances present in the instant case, the trial court did not abuse its discretion.

Next, the defendant contends that the trial court erred in denying his motion for acquittal on the ground of entrapment. However, he denied making the sale. The defense of entrapment is not available when the offense is denied. Tomita v Tucker, 18 Mich.App. 559, 171 N.W.2d 564 (1969); People v. White, 26 Mich.App. 35, 181 N.W.2d 803 (1970; People v. Claugherty, 36 Mich.App. 648, 194 N.W.2d 54 (1971).

Defendant also urges that he was denied a fair trial and due process of law due to the fact that the preliminary examination was not held within the then statutory period of ten days. Although the circumstances which led to the delay are somewhat sketchy, a review of the facts is helpful in disposing of this issue. The warrant was issued and arraignment held on March 6, 1970, and the preliminary examination was set for March 13, 1970. The record indicated that the defendant would retain counsel to represent him. On March 16, 1970, the examination was adjourned because he did not have counsel and there was no available time on the court's docket. On April 28, 1970, a petition for court-appointed counsel was filed and on May 1, 1970, the district court was notified that counsel had been appointed. A written appearance was filed by defendant's counsel on May 11, 1970, and the examination was held on June 8, 1970.

M.C.L.A. § 766.4; M.S.A. § 28.922 then provided that a preliminary examination be held within ten days. However, this provision is tempered by M.C.L.A. § 766.7; M.S.A. § 28.925 allowing for adjournment of the examination when good cause is shown. This Court has frequently stated that the failure to hold an examination within the statutory period is reversible error only when the defendant can show he was prejudiced by the delay. People v. Wickham, 13 Mich.App. 650, 164 N.W.2d 681 (1968); People v. Connors, 27 Mich.App. 47, 183 N.W.2d 348 (1970); People v. Grasty, 21 Mich.App. 106, 174 N.W.2d 860 (1970). In the instant case, the defendant has failed to show any prejudice.

Furthermore, the failure to hold an examination within the statutory period is not reversible error where the delay can be adequately explained. In People v. Pulley, 37 Mich.App. 715, 720, 195 N.W.2d 283, 285 (1972), this Court stated:

'It is not reversible error, however, to hold a preliminary examination more than ten days after arrest where the delay, as in the present case, can be adequately explained. People v. Farley, 13 Mich.App. 132 (163 N.W.2d 692) (1968). M.C.L.A. 766.1; M.S.A. 28.919 states that it is the duty of all courts and public officers having duties to perform in connection with such examination to bring them to a final determination Without delay except as it may be necessary to secure to the accused a fair and impartial examination.'

In the instant case, one reason for the adjournments was to make certain the defendant had counsel representing him at the examination. Thus, the delay in this cause was adequately explained and no prejudice resulted from the delay.

Defendant also claims that the trial court committed reversible error by denying his motion to dismiss the charge on the ground that the prosecution had failed to produce a res gestae witness.

The first time that the alleged res gestae witness was mentioned was during the preliminary examination. The prosecution's witness, Daniel Snell, testified that a woman named Kathy Young might have been in the room when the alleged transaction occurred. However, later during his testimony, the witness indicated that he had seen Kathy Young upstairs and that no one else was present in the defendant's apartment when the transaction occurred. At the trial, Snell's testimony indicated that Kathy Young might have been present. After the prosecution had rested, defense counsel moved to dismiss the charge based on the prosecution's failure to produce a res gestae witness. The prosecution then called Detective Swerdfeger who testified that he had received a subpoena for Miss Young the previous evening. He testified that he had contacted the East Lansing Police Department and discovered that Miss Young's mother might be working at a local supermarket. After attempting to locate the supermarket unsuccessfully, he attempted to contact two girls who might have known Miss Young and checked the Michigan State University Union Building several times for the presence of Miss Young or her friends. These efforts were without success. After hearing this testimony the trial court excused the prosecution from producing the witness, finding that the prosecution had made a diligent effort in attempting to locate her.

Defendant is correct in his contention that as a general rule the prosecution is obligated to produce res gestae witnesses. People v. Dickinson,...