People v. Brown

• Decision Date: 07 April 1981
• Docket Number: Docket Nos. 78-4902
• Citation: 104 Mich.App. 803,306 N.W.2d 358
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard BROWN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvia RANGEL, Defendant-Appellant. 78-4903; 46502-46505. 104 Mich.App. 803, 306 N.W.2d 358
• Court: Court of Appeal of Michigan — District of US

Page 358

306 N.W.2d 358

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard BROWN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvia RANGEL, Defendant-Appellant.

Docket Nos. 78-4902 78-4903; 46502-46505.

104 Mich.App. 803, 306 N.W.2d 358

Court of Appeals of Michigan.

April 7, 1981.

Released for Publication June 16, 1981.

[104 MICHAPP 810] James R. Neuhard, State Appellate Defender, Peter J. Van Hoek, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty. (in 46503-46505); Patrick O. Duggan, Asst. Pros. Atty. (in 78-4920; 46502); Eugene C. Penzien, Pros. Atty. (in 78-4921 thru 78-4923), for plaintiff-appellee.

[104 MICHAPP 811] Before J. H. GILLIS, P. J., and KAUFMAN and MAHER, JJ.

J. H. GILLIS, Presiding Judge.

Codefendants Howard Brown and Sylvia Rangel were each charged with four counts of forgery, M.C.L. § 750.248; M.S.A. § 28.445, and four counts of uttering and publishing, M.C.L. § 750.249; M.S.A. § 28.446. Defendant Brown was convicted as charged and subsequently pled guilty to a supplemental information charging him with being a second-time habitual offender. He was sentenced to serve eight concurrent sentences of from 6 to 21 years in prison. He now appeals as of right. Before trial, the prosecutor moved to dismiss the uttering and publishing charges against defendant Rangel. She remained charged with four counts of forgery and was convicted as charged. She subsequently pled guilty to a supplemental information charging her with being a third-time offender. She was sentenced to serve 5 years on probation.

Both defendants raise a multitude of issues with regard to the lower court proceedings. Specific facts will be discussed as each issue is considered. Generally, however, the testimony and exhibits presented at trial indicated that, in May, 1977, Brown induced Julie Reif to cash four stolen checks in the name of Kraxner, which were forged by Rangel and negotiated by Reif through the use of stolen identification belonging to Debra Tacey. After cashing the checks, Ms. Reif retained one-half of the cash received and gave the other half to Brown. The stolen identification was traced from Debra Tacey to Stacey Huff, who gave it to her boyfriend, Woodrow Blakely. When Brown gave Ms. Reif the forged checks, made payable to Debra Tacey by Rangel, he also handed her Ms. Tacey's identification.

[104 MICHAPP 812]

I

At trial, testimony indicated that defendant Brown might have received Debra Tacey's identification directly from Woodrow Blakely, Stacey Huff's boyfriend. Ms. Huff testified that, after she took Ms. Tacey's wallet from her purse, and removed a small amount of money from it, she threw the wallet in a trash bin. Later, she retrieved the wallet and gave it to Blakely at his request. Subsequently, Ms. Huff and Blakely encountered defendant Brown and the two men entered a bar together at a time Huff thought Blakely might have had the stolen identification on his person. Although Blakely had been present under a defense subpoena at some earlier point in the trial, ¹ he was not endorsed or produced by the prosecutor at trial.

When the prosecutor questioned Brown about Blakely, during Brown's case in chief, the issue of Blakely's production was fully discussed by the trial court. Noting that Blakely was convicted of receiving and concealing the stolen identification, the court ruled that if Blakely had been a party to passing the identification to Brown "in the hope and expectation that (it was) going to be used illegally," regardless of whether Blakely was a [104 MICHAPP 813] "formal accessory" or "merely a link in the chain", the prosecutor would not be required to endorse him. The defense was given the opportunity to call Blakely and cross-examine him without adopting his testimony as that of a defense witness.

Both defendants now claim on appeal that Blakely was a nonaccomplice, res gestae witness whom the prosecutor was obligated to produce. The prosecutor responds by arguing that Blakely was not a res gestae witness or that, if he was, the trial court properly ruled that he was an accomplice.

We affirm the trial court's ruling that the prosecutor was not obligated to endorse Blakely as a res gestae witness. Our conclusion on the issue stems from our belief that Blakely was not a res gestae witness.

People v. Austin, 95 Mich.App. 662, 674, 291 N.W.2d 160 (1980), defined a res gestae witness as "one who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged offense". The criminal transaction with which the defendants were charged involved forgery and uttering and publishing. The factual premise for the charges was the defendants' involvement in the use of a third party's checks to secure cash from a bank through the use of stolen identification. Nothing in the record suggests that Blakely was involved in this transaction. More importantly, there is no part of the transaction which could be more fully disclosed through Blakely's testimony. Julie Reif's testimony established Brown's possession of the stolen checks and stolen identification. Four bank tellers identified their teller stamps on the canceled[104 MICHAPP 814] checks, thus establishing that the checks were cashed through the use of the stolen identification the driver's license number on the back of each check was that assigned to Ms. Tacey.

The rule requiring the endorsement and production of res gestae witnesses is directed at preventing the suppression of evidence, Bonker v. People, 37 Mich. 4, 8 (1877), protecting the defendant from false accusations, and promoting full disclosure of the entire criminal transaction. People v. Abrego, 72 Mich.App. 176, 179, 249 N.W.2d 345 (1976). Blakely's presence at trial for purposes of cross-examination by the defense attorney would not have materially affected the jury's understanding of either defendant's involvement in the forgery or uttering and publishing of the checks. To paraphrase the Court in Bonker, "The record discloses no fact that renders it at all material (how) the defendants (received possession of the stolen identification). * * * Evidence as to how or why (they got possession) was proper as introductory or explanatory, but nothing depended upon it." 37 Mich.App. 4, 7. We thus affirm the trial court's ruling that Blakely was not required to be endorsed or produced by the prosecutor.

II

Defendants also take issue with the admission into evidence of certain testimony regarding Brown's possession of stolen checks in the name of Van Wormer, which he allegedly asked Julie Reif to cash shortly after the Kraxner checks were negotiated, and testimony that a third set of checks in the name of Hardy were found under a bed during the execution of a search warrant at 1218 North Van Buren, the house where Brown and Rangel induced Reif to cash the Kraxner [104 MICHAPP 815] checks. The challenged testimony was introduced on the prosecutor's behalf as evidence of similar acts, the Van Wormer checks against Brown only, the Hardy checks against both Brown and Rangel. In both instances, the defendants objected on the grounds of inadmissibility, but the objections were overruled.

In People v. Major, 407 Mich. 394, 285 N.W.2d 660 (1979), the Michigan Supreme Court analyzed the admissibility of similar acts evidence, beginning with the proposition that the legitimacy of such evidence "generally is its tendency either to identify the defendant as the unknown actor in an alleged criminal act or to negate the suggestion * * * that the act in question * * * was not criminal because it was unintended, accidental, a mistake or otherwise innocent". 407 Mich. 394, 398, 285 N.W.2d 660. In the case at bar, the prosecutor argues that evidence as to both sets of checks was admissible to show "scheme, common plan, identity, preparation or system".

Four propositions must be established before similar acts evidence is admissible under M.C.L. § 768.27; M.S.A. § 28.1050. First, the criminal act in question must have "distinguishing, peculiar or special characteristics". Major, supra, 398, 285 N.W.2d 660. Second, the similar act must also bear these characteristics. Id. Third, the similar act must have been performed by defendant. Id. The fourth proposition arises as an inference from the first three, that is, that the crime in question was committed by the defendant. Id. See also, People v. Horton, 98 Mich.App. 62, 296 N.W.2d 184 (1980).

It is our conclusion that the evidence regarding the Van Wormer checks meets the foregoing admissibility requirements. Defendant Brown's defense was that he was not involved in the Kraxner [104 MICHAPP 816] check cashing scheme. Julie Reif's testimony that shortly after Brown induced her to cash the forged Kraxner checks he asked her if she wanted to cash "some more" checks (in the name of Van Wormer), tends to establish Brown's "plan or system" for securing money by having stolen checks cashed by another person who would then split the money with him. To the extent that Reif's testimony was credible, it left no doubt that Brown was the instigator of the attempted similar act. Finally, because of the distinguishing characteristics of the scheme, the similar acts evidence tends to establish that Brown committed the charged offense. See, e. g., People v. Worden, 91 Mich.App. 666, 682-683, 284 N.W.2d 159 (1979).

The Hardy checks found under a bed at 1218 North Van Buren present a different question entirely. This evidence was admitted as probative of the involvement of both defendants in the charged offenses. We have reviewed the record, however, and conclude that it was admissible against neither Brown nor Rangel. Our conclusion rests particularly on the fact that there was no evidence that either defenda...