People v. Blacksmith

• Decision Date: 10 December 1975
• Docket Number: Docket No. 21936
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rejal BLACKSMITH, Defendant-Appellant. 66 Mich.App. 216, 238 N.W.2d 810, 89 A.L.R.3d 1021
• Court: Court of Appeal of Michigan — District of US

Page 810

238 N.W.2d 810

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rejal BLACKSMITH, Defendant-Appellant.

Docket No. 21936.

66 Mich.App. 216, 238 N.W.2d 810, 89 A.L.R.3d 1021

Court of Appeals of Michigan.

Dec. 10, 1975.

Released for Publication March 2, 1976.

Leave to Appeal Denied March 17, 1976.

[66 MICHAPP 217] Arthur J. Tarnow, Detroit, for defendant-appellant.

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

Before R. B. BURNS, P.J., and D. E. HOLBROOK and WALSH, JJ.

D. E. HOLBROOK, Judge.

Defendant was convicted, by a jury, of the crime of felonious assault. M.C.L.A. § 750.82; M.S.A. § 28.277. He was sentenced to 1 1/2 to 4 years in prison. He now appeals as of right.

Defendant's conviction arose out of a high speed chase on the I--96 and I--696 expressways. The chase involved defendant's car and five police cars. At trial, eight police officers gave testimony concerning the incident. The defendant himself was the only defense witness.

The first police car to begin pursuit of defendant on the date in question contained two troopers from the Michigan State Police. Both testified at trial. Their testimony tended to show that they began pursuit of defendant's vehicle after their radar indicated that it was traveling 98 miles per hour in a 70 mile an hour speed zone. They pursued defendant's vehicle, and signaled for him to stop. Defendant responded by accelerating, and when the police caught up with him again he swerved into the lane occupied by the state police [66 MICHAPP 218] car forcing it into the median. The officers in the first car then radioed for help and resumed the chase. Soon thereafter, two more fully marked state police cars joined the pursuit. Also as a result of the radio call, a fully marked car from the Wixom City Police Department responded by blocking two of the eastbound lanes of the expressway on which the chase was taking place. This attempt to halt defendant's progress was unsuccessful, as he swerved around the blockade. At this point the Wixom City Police car joined the chase. Meanwhile, there was testimony from one of the officers in the more recently arrived state police cars that he had observed defendant's vehicle striking the police cars that were attempting to apprehend him 'a couple of times'.

The last car to enter the chase was a fully marked state police vehicle driven by a Trooper Walton who was accompanied by Trooper Webb. Defendant was convicted of assaulting these two officers with his vehicle. Responding to a radio call concerning the chase, the officers entered the freeway at a point ahead of the on-coming defendant and his pursuers. They pulled onto the freeway and attempted to stop the on-coming car. Unsuccessful in that attempt, they took up the pursuit. Traveling at speeds in excess of 120 miles an hour, they overtook the other vehicles and attempted to bring defendant's vehicle to a stop. Roof lights flashing and hood light on, the police car pulled up alongside of defendant's vehicle. Trooper Walton shined his spotlight in the vehicle and when the driver looked at him he pointed to the side for him to stop. Trooper Walton testified that the defendant swerved his car into the police vehicle causing a collision. He attempted to stop defendant again, and again defendant swerved into him forcing the [66 MICHAPP 219] police car partially off the road at speeds of over 100 miles an hour. Trooper Walton was able to bring his car alongside defendant's vehicle for a third time, at which point Trooper Webb displayed a shotgun to defendant and indicated for him to pull over. Defendant was finally forced into the median. He crossed over the median and began fleeing in the opposite direction, but the police cars which had been bringing up the rear of the chase observed this attempt, and were able to cross over the median and successfully blockade defendant, bringing him and his vehicle to a halt. Defendant and the other two occupants of his vehicle were placed under arrest.

Defendant took the stand in his own behalf and testified that as he was proceeding along the highway from Grand Rapids to Detroit a young man in a Cadillac pulled up alongside of him and challenged him to a race. Defendant engaged in a race for a short time with this other person, but soon backed off the pace and proceeded at the legal speed limit. After a time, a state police vehicle pulled up alongside defendant and an officer rolled down the window, stuck a shotgun out, and demanded that defendant pull over. Defendant claims this was his first contact with the police on the date in question. It was his testimony that he panicked and decided to flee rather than stop his vehicle. He further testified that his vehicle never made physical contact with any of the pursuing police vehicles except for one instance when the police rammed him from behind. He testified that at no time did he attempt to run a police vehicle off the road, or attempt to cause his vehicle to come in contact with a police vehicle.

Defendant's first allegation of error is that the trial court should not have excused the prosecution's[66 MICHAPP 220] nonproduction, at trial, of the other two occupants of defendant's vehicle. Admittedly, these persons were res gestae witnesses. As such, the prosecution was duty-bound to produce them at trial. M.C.L.A. § 767.40; M.S.A. § 28.980. If, however, the prosecution makes reasonable efforts to locate the res gestae witnesses, and exercises due diligence in attempting to locate and...