People v. Buero

• Decision Date: 24 March 1975
• Docket Number: Docket No. 15540,No. 2,2
• Citation: People v. Buero, 229 N.W.2d 880, 59 Mich.App. 670 (Mich. App. 1975)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne William BUERO, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 880

229 N.W.2d 880

59 Mich.App. 670

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne William BUERO, Defendant-Appellant.

Docket No. 15540.

Court of Appeals of Michigan, Division No. 2.

March 24, 1975.

Released for Publication June 11, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

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

Before D. E. HOLBROOK, P.J., and R. B. BURNS and BEBEAU, ^* JJ.

BEBEAU, Judge.

On July 21, 1972, defendant Wayne William Buero was found guilty by a jury in Oakland County Circuit Court of armed robbery, and was sentenced August 18, 1972 to a term of 10 to 30 years in prison. He appeals as of right.

At trial complainant Floyd Hanson testified that at about 12:30 a.m. on May 3, 1972, he was awakened by loud knocking at his front door. Upon opening the door, Mr Hanson saw a man whom he identified at trial as the defendant. At that moment, another man, who was never identified, pushed through the door and pointed a sawed-off shotgun at Mr. Hanson. Mr. Hanson saw only one gun and did not, at this time, observe the defendant as armed. Mr. Hanson testified that he was forced into his living room and made to lie, face-down, on the floor. About five minutes later, he was taken into the bedroom of his nin-year old daughter where his wife, son, and daughter were being held. All four Hansons were then tied up while the men robbed the house.

Mrs. Hanson testified that she was awakened by a man who was pointing a sawed-off shotgun at her. She identified the defendant at trial as this man. She was then taken to her daughter's bedroom and later tied up.

The son, Larry Hanson, was taken to his sister's room by a man whom he could not identify at trial. The Hanson's minor daughter, who was awakened when her parents and brother were herded into her room, did not testify at trial.

Numerous articles were taken from the Hanson home, and the Hanson's Dodge van was seized. The van was found abandoned. The only article recovered was a credit card bearing Floyd Hanson's name. It was recovered when defendant's wife attempted to use it four days after the robbery. Defendant, who was with his wife at the time, was questioned but not arrested until May 11, 1972, when his house was searched, but none of the other articles taken from the Hansons were found.

On appeal, defendant raises a number of causes of error. The most cogent of these is the claim that the prosecutor's failure to endorse and produce the Hanson's daughter, Linda, as a res gestae witness requires reversal. The prosecutor has an affirmative duty to endorse on the information and produce all res gestae witnesses known to him. M.C.L.A. § 767.40; M.S.A. § 28.980; People v. Blazenzitz, 212 Mich. 675, 180 N.W. 370 (1920); People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973). However, the prosecutor argues he was under no duty to endorse or produce Linda Hanson because she was not a res gestae witness. Alternatively, prosecutor claims that, even if she were, her testimony would have been cumulative and, thus, exempt from mandatory endorsement; People v. Bartlett, 312 Mich. 648, 20 N.W.2d 758 (1945). Prosecutor further claims that defendant's failure to object or move at trial to endorse Linda Hanson precludes his claim of error. People v. Bennett, 46 Mich.App. 598, 208 N.W.2d 624 (1973), rev'd on other grounds, 393 Mich. 445, 224 N.W.2d 840 (1975).

An examination of the record indicates that Linda Hanson is a res gestae witness, though her testimony may have been cumulative.

Except for a credit card, which police took from defendant's wife, the only evidence against the defendant was the Hansons' identifications; since the accused entered and left Linda Hanson's room several times, it is reasonable to assume that this nine-year old child may have viewed the intruder and such view may have left an impression on her mind. It is possible that Linda's description, if she could give one of the accused, would not necessarily be repetitive. Her inability to identify the defendant may have further supported the people's case.

The prosecutor also raises the possibility that Linda's youth would have made her incompetent to testify. However, since M.C.L.A. § 600.2163, M.S.A. § 27A.2163 requires the court to determine a child's competency, and since youth, per se, does not make her testimony inadmissible, Linda's age did not render endorsement unnecessary.

The general rule in Michigan requires that res gestae witnesses are to be endorsed on the information and produced for examination at trial. However, the Michigan Supreme Court and this Court have established several exceptions to that general rule requiring production of res gestae witnesses for examination at trial. They are:

(1) When the prosecution makes a showing of due diligence in attempting to produce the witness.

(2) Where the testimony of the missing witness would be merely cumulative.

(3) Where the missing res gestae witness was a participant in the crime.

(4) Where the identity of the res gestae witness is made known to the defendant during or before trial and defendant does not move for endorsement or production of the witness. People v. Bennett, 46 Mich.App. 598, 208 N.W.2d 624 (1973), rev'd on other grounds, 393 Mich. 445, 224 N.W.2d 840 (1975).

The last exception to the rule so established, appears to have been changed by the Supreme Court. It should not be ignored that Robinson, infra, also applies to Possible res gestae witnesses.

The applicability of People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), to this case will determine whether defendant's failure to move for endorsement of Linda Hanson precludes him from raising the nonendorsement on appeal. At the time the defendant was convicted and filed his appeal, our law clearly held that failure to endorse or produce a res gestae witness was not grounds for reversal if the defendant knew of the witness's existence but failed to move for endorsement or production. After this appeal was filed, however, the Supreme Court held in Robinson, supra, that failure to move for endorsement would not preclude appellate review and that only a formal waive at trial by a defendant would excuse endorsement. There is no such waiver in the record here, and it is obvious that defense counsel knew of her existence prior to trial and, from a tactical standpoint, may have kept silent either because he preferred not to have her as a witness or he remained silent for the purpose of having an issue to raise in the appellate court.

This Court in People v. Koehler, 54 Mich.App. 624, 638, 221 N.W.2d 398, 405 (1974), stated:

'However, we cannot ignore the Michigan Supreme Court's recent decision in People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), in which Justice Coleman, writing on behalf of a unanimous Court, stated:

"There is but one issue. Is defendant denied a fair trial when the prosecutor fails to endorce on the information the name of the possible res gestae witness who was, or should have been, known to him prior to trial and he fails to produce such witness at trial?

"Defendant says that the duty of the prosecutor to indorse and produce all res gestae witnesses is an essential ingredient of a fair trial. Although no objection was raised during trial, failure of the prosecutor to act is said to demand reversal."

This Court in Koehler further stated at 640, 221 N.W.2d at 406:

'In accordance with People v. Robinson, Supra, and People v. James, 51 Mich.App. 777, 784--785, 216 N.W.2d 473 (1974), we retain jurisdiction of this case and remand to the trial court for a hearing to determine whether or not Mrs. Stevens' (res gestae witness) testimony would have been cumulative. The trial judge shall require the prosecutor to produce Mrs. Stevens (res gestae witness) at a hearing within 45 days from the release of this opinion. Mrs. Stevens shall be examined regarding her knowledge of the crime of which the defendant was convicted. At the conclusion of the hearing, the trial judge shall either grant the defendant a new trial or shall, within 10 days after the end of the hearing, state his reasons for denying defendant a new trial. The trial judge's findings and a transcript of the hearing shall be forwarded to this Court. Defendant may file a supplemental brief within 15 days after the trial court reaches its decision, and the people may file their brief within 15 days after receipt of defendant's brief. If Mrs. Stevens cannot be located, the prosecutor must 'bear the consequences' of the same and defendant shall be granted a new trial. People v. King, 50 Mich.App. 487, 491, 213 N.W.2d 597 (1973).'

The above cited case contained a dissenting opinion by Judge O'Hara which opinion has considerable merit. However, this matter is remanded to the trial court for further proceedings consistent with the controlling opinion of this Court in Koehler which interpreted Robinson. Prior to Koehler and Robinson, the defendant would have had a fair trial as to this aspect of the case.

Defendant's additional claim of error in the identification process is that counsel should have been present at the May 8th photographic showup since the police investigation had 'focused' on the defendant. People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), as most recently elucidated by People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974), is dispositive of this issue. Anderson, supra, held that police may, under certain circumstances, hold a photographic showup, instead of a lineup, when a suspect is in custody. In such cases, an attorney is required just as with a lineup. Lee, supra, stressed that 'the Franklin Anderson rule attaches with custody * * *. We decline to extend the reasoning of Franklin Anderson to the pre-custody, prequestioning, and mere suspicion phase' Id. at 625, 218 N.W.2d at 658. Defendant here was not in...