People v. Calhoun
Decision Date | 30 August 1989 |
Docket Number | Docket No. 101330 |
Citation | 444 N.W.2d 232,178 Mich.App. 517 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James CALHOUN, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Joseph A. Puleo, Asst. Pros.Atty., for the people.
Steven J. Parzen, Detroit, for defendant-appellant.
Before GRIBBS, P.J., and HOLBROOK and REILLY, JJ.
Following a bench trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317;M.S.A. Sec. 28.549, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b;M.S.A. Sec. 28.424(2).Defendant was sentenced to eight to twenty years imprisonment on the murder conviction and a consecutive two-year term of imprisonment on the firearm conviction.In this appeal as of right, defendant asserts that he was denied a fair trial because the prosecution failed to indorse a known res gestae witness and because he did not receive effective assistance of counsel.We agree with the former assertion and remand for an evidentiary hearing in accordance with this opinion.
Defendant did not testify at his trial and no witnesses were presented in his defense.Rather, defendant was convicted following testimony from the two prosecution witnesses, Ruth Davis, the victim's mother, and Anthony Jones, an acquaintance of both the defendant and the victim.This testimony established that defendant and the victim formerly worked together selling narcotics and that they had fought with each other on the day before the victim was killed.Following this fight, defendant allegedly said he was going to "get" someone.According to Jones, the fight arose because the victim had been selling fake narcotics to defendant's customers.
On the day after the fight, Jones and the victim's sister, Molly, were sitting on the steps of a house adjacent to that of the victim.Defendant approached the victim's home, the victim came out and the two talked.When the victim turned to reenter his house, Jones witnessed defendant pull a gun from his waistband and shoot the victim.Following the shooting, Jones and Molly left.
At trial, Jones testified that Molly had also witnessed the shooting: However, Jones admitted making prior inconsistent statements to the police about Molly's having witnessed the shooting.The first statement, given while Jones was in police custody on an unrelated charge, was that he had only heard about the shooting from Molly, who was an eyewitness.In his second statement, given after defendant had been arrested, and while Jones was still in custody, Jones recanted the first statement and related that he had been the only eyewitness to the shooting.
Following his conviction, defendant filed a motion for a new trial.This motion asserted, in part, that the prosecution had failed to produce Molly as a res gestae witness at trial, despite the belief that she was then residing in Chicago, Illinois.Defendant claimed that Molly's examination would reveal new evidence which could "render the probability of a different result at a new trial."This motion was denied immediately prior to the imposition of defendant's sentence.
In the instant appeal, defendant asserts that he was denied a fair trial by the prosecution's failure to indorse Molly as a res gestae witness.We first note that our review of this issue is appropriate since defendant's claim was raised in his motion for a new trial.SeePeople v. Lamar, 153 Mich.App. 127, 138, 395 N.W.2d 262(1986).However, we also note that the res gestae witness statute, M.C.L. Sec. 767.40;M.S.A. Sec. 28.980, as amendedeffective July 1, 1986, no longer requires the prosecutor to indorse on the information the names of the witnesses known to him.Instead, a lesser, though still affirmative, burden is now mandated by M.C.L. Sec. 767.40a(1);M.S.A. Sec. 28.980(1)(1).
The prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.
Regardless, we find that defendant's claim has merit, insofar as the prosecution failed to comply with the amended statute.
A res gestae witness is a person who witnesses "some event in the continuum of a criminal transaction" and whose testimony will "aid in developing a full disclosure of the facts."People v. Baskin, 145 Mich.App. 526, 530-531, 378 N.W.2d 535(1985).In the instant case, Jones' testimony at trial raises a strong possibility that Molly is a res gestae witness.Additionally, the police were aware of this strong possibility after Jones' first statement, which pinpointed Molly as the only eyewitness to the victim's murder.Since the police arrested defendant after this first statement, we reject any assertion that the investigating officers discounted Molly's res gestae status.Thus, under M.C.L. Sec. 767.40a;M.S.A. Sec. 28.980(1), the prosecution erred by failing to list Molly as a res gestae witness on an attachment to the information.However, a conclusion as to the appropriate remedy for this failure requires additional analysis.
Pursuant to the previous res gestae statute, M.C.L. Sec. 767.40;M.S.A. Sec. 28.980, the remedy for such nonconformance was a remand for an evidentiary hearing.People v. Willie Pearson, 404 Mich. 698, 273 N.W.2d 856(1979);People v. Robinson, 390 Mich. 629, 633-634, 213 N.W.2d 106(1973).At this hearing, the prosecutor was either to produce the witness, or detail why he could not then produce the witness, and explain why he did not initially indorse and produce the witness at trial.Robinson, supra;see alsoLamar, supra.If the witness was produced at the hearing, the court was to determine if the defendant had been prejudiced by the absence of the witness at trial.Pearson, supra;see alsoLamar, supra.
As noted, the amended statutes replace the prosecutor's duty to indorse res gestae witnesses with the lesser requirement that a list of their names be included with the information.M.C.L. Sec. 767.40a(1);M.S.A. Sec. 28.980(1)(1).Additionally, the prosecutor's duty to produce res gestae witnesses has been replaced with an obligation to provide "reasonable assistance" to defendant in locating them, should defendant request such assistance.M.C.L. Sec. 767.40a(5);M.S.A. Sec. 28.980(1)(5).Thus, some of the purposes for an evidentiary hearing pursuant to Robinson, supra, have been obviated by the statute's amendment.For example, it is no longer necessary to determine whether the prosecutor acted with due diligence in trying to locate or produce a res gestae witness.SeePeople v. George, 130 Mich.App. 174, 178, 342 N.W.2d 908(1983).
However, other purposes of the hearing remain valid.In the instant case, these purposes include determining whether the witness could have been located and produced, and whether the witness' absence at trial was prejudicial to defendant.Moreover, the amended statute also makes necessary a new inquiry into whether the defendant knew of the res gestae witness, despite the prosecution's failure to list the witness.Since the amended statute requires the defendant to make a request before the prosecution must assist in locating the res gestae witness, the purpose of the "listing" requirement is merely to notify the defendant of the witness' existence and res gestae status.Therefore, if the defendant knew of the res gestae witness in any event, the prosecutor's failure to list the witness would be harmless error.Thus, in the instant case, we remand to the trial court to determine (1) whether defendant knew prior to trial that Molly was a possible res gestae witness, and, if not, (2) whether Molly could have been located...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 7-day Trial
-
Diaz v. Howes
...ID# 163. Under Michigan law, counsel's decision to make an opening statement is a matter of trial strategy. See People v. Calhoun, 178 Mich. App. 517, 524 444 N.W.2d 232 (1989); People v. Powelczak, 125 Mich. App., 231, 242, 336 N.W.2d 453 (1983). Indeed, petitioner acknowledged that "[i]t ......
-
People v. Lawton
...of the "listing" requirement is merely to notify the defendant of the witness' existence and res gestae status. People v. Calhoun, 178 Mich.App. 517, 523, 444 N.W.2d 232 (1989). At the evidentiary hearing, defense counsel conceded that defendant had never requested the production of "James"......
-
People v. Gadomski
...of the 'listing' requirement is merely to notify the defendant of the witness' existence and res gestae status." People v. Calhoun, 178 Mich.App. 517, 523, 444 N.W.2d 232 (1989). In this case, given the victim's preliminary examination testimony, defendant could not have been surprised that......
-
People v. Wolford
...and produce res gestae witnesses survived amendment of the statute. See and compare DeMeyers, supra, with People v. Calhoun, 178 Mich.App. 517, 522, 444 N.W.2d 232 (1989). Unless the prosecutor seeks to delete a witness from his witness list as provided in M.C.L. Sec. 767.40a(4); M.S.A. Sec......