People v. Biondo

• Decision Date: 19 March 1979
• Docket Number: Docket No. 77-3767
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvatore Stephen BIONDO, Defendant-Appellant. 89 Mich.App. 96, 279 N.W.2d 330
• Court: Court of Appeal of Michigan — District of US

Page 330

279 N.W.2d 330

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Salvatore Stephen BIONDO, Defendant-Appellant.

Docket No. 77-3767.

89 Mich.App. 96, 279 N.W.2d 330

Court of Appeals of Michigan.

March 19, 1979.

Released for Publication June 15, 1979.

[89 MICHAPP 97] Cornelius Pitts, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, [89 MICHAPP 98] App. Chief, Asst. Pros. Atty., Anne B. Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and V. J. BRENNAN and BASHARA, JJ.

V. J. BRENNAN, Judge.

The defendant, Salvatore Stephen Biondo, was convicted of receiving stolen property (a certain late model automobile) over the value of $100, M.C.L. § 750.535; M.S.A. § 28.803, by a Recorder's Court jury on June 23, 1977. Defendant was sentenced to one to five years in prison and appeals by right under GCR 1963, 806.1. Defendant raises three issues, only two of which merit discussion here.

Defendant first contends that there was insufficient evidence on the element of guilty knowledge to sustain his conviction.

We find the defendant's contention without merit. A review of the arresting officer's testimony shows that when the key to the car was taken from the defendant and placed in the ignition the switch operated; then when the officer attempted to pull the key out of the ignition the entire ignition switch was pulled out of the housing. Upon further inspection the officer noted that the housing was damaged. Given the fact that the tampered-with ignition switch was readily detectable, People v. Salata, 79 Mich.App. 415, 423, 262 N.W.2d 844 (1977), we find sufficient evidence from which the jury could infer the element of guilty knowledge. See People v. Palmer, 392 Mich. 370, 375-376, 220 N.W.2d 393 (1974).

Defendant next contends that the trial court erred reversibly in finding that due diligence had [89 MICHAPP 99] been exercised by the prosecution in attempting to secure the presence of an indorsed witness. The defendant had challenged the prosecution's failure to produce and a hearing was held on the issue. However, the defendant failed to move for a new trial based upon the nonproduction as set forth in People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973).

A split of authority had developed in this Court on the question of whether a hearing during trial on the prosecution's failure to produce an indorsed res gestae witness obviates the Robinson motion requirement. Cf. People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975), People v. Blacksmith, 66 Mich.App. 216, 220, 238 N.W.2d 810 (1975), with People v. Niswonger, 87 Mich.App. 57, 273 N.W.2d 586 (1978); People v. Allen, 76 Mich.App. 585, 257 N.W.2d 263 (1977).

The Supreme Court in the recent case of People v. Pearson, 404 Mich. 698, 715, 273 N.W.2d 856, 860 (1979), specifically addressed this question and held:

"In cases where the trial court has ruled that a missing witness is not a res gestae witness or that the prosecution was sufficiently diligent in its efforts to produce * * * a Robinson hearing would be superfluous and is not required prior to an appeal."

In the present case since a hearing was held and due diligence was found, the issue is preserved for appeal even absent the post-trial Robinson motion.

Initially it must be pointed out that the witness's testimony would have been material to the defendant's claim that he lacked the requisite guilty knowledge. Defendant contended that he borrowed the car from the witness, that the witness had represented that he had just purchased [89 MICHAPP 100] the car and was still using the dealer plate without need for the car registration. The witness's testimony most certainly would have shed light on the defendant's contention.

Upon review of the record it is found that the prosecutor on the day of trial knew that the missing indorsed witness was on probation to the court in Broward County, Florida. The prosecutor learned of the witness's whereabouts the day before the trial through a suggestion by defense counsel to employ a computer readout. A Detroit police officer testified that he attempted to subpoena the witness the week before trial but was told by the witness's mother and father that the witness went to Florida. The day before trial the officer obtained the witness's Florida address.

Although the prosecutor made every effort to locate the witness the week before trial, a finding of due diligence is precluded by...