People v. Carr

• Decision Date: 22 May 1985
• Docket Number: Docket No. 65195
• Citation: 141 Mich.App. 442,367 N.W.2d 407
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dana CARR, Defendant-Appellant. 141 Mich.App. 442, 367 N.W.2d 407
• Court: Court of Appeal of Michigan — District of US

Page 407

367 N.W.2d 407

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dana CARR, Defendant-Appellant.

Docket No. 65195.

141 Mich.App. 442, 367 N.W.2d 407

Court of Appeals of Michigan.

Submitted Aug. 15, 1984.

Decided March 18, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 444] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., E. Grant, Pros. Atty., and Joseph A. Greenleaf, Chief, Appellate Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Rolf E. Berg, Detroit, for defendant-appellant.

[141 MICHAPP 445] Before CYNAR, P.J., and WAHLS and FINCH, ^* JJ.

PER CURIAM.

Defendant was jury convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Following a guilty plea as a third-time felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083, defendant was sentenced to a term of from 8 1/2 to 20 years' imprisonment. Defendant appeals from his convictions as a matter of right.

Defendant filed a claim of appeal with this Court on February 4, 1980 (Docket No. 49967). On December 20, 1980, defendant filed a late motion in this Court to remand for the purpose of having the trial court hold a Robinson ¹ hearing. The motion was denied by this Court in an order issued February 24, 1981, because the motion lacked merit on the grounds presented and was not timely filed pursuant to GCR 1963, 817.6. Defendant sought leave to that decision to the Supreme Court, which denied leave to appeal. See 411 Mich. 1060 (1981).

Thereafter, following the filing of appellate briefs by both the prosecution and defendant, the prosecution filed a motion to affirm in this Court on May 6, 1981. The issues raised by defendant were whether defendant was entitled to a remand for a Robinson hearing and whether a prior conviction for negligent homicide was a proper basis for supplementing defendant's sentence under the habitual offender statute. The motion to affirm was granted on September 25, 1981.

Defendant again sought leave to appeal to the Michigan Supreme Court. In an order entered June 18, 1982, in lieu of granting leave to appeal, the Supreme Court determined that, since defendant's[141 MICHAPP 446] motion to remand identified an issue sought to be reviewed on appeal which should initially be decided by the trial judge (the Court making no reference to the motion's lack of timeliness), this Court should have granted defendant's motion to remand to the trial court. As a result, the Supreme Court vacated the orders of this Court denying defendant's motion to remand and granting the prosecution's motion to affirm. The case was remanded to this Court with instructions to remand to the circuit court, while retaining jurisdiction, for a hearing on defendant's allegation that the prosecution failed to endorse and produce res gestae witnesses. The Supreme Court retained no jurisdiction.

In an order entered July 14, 1982, this Court remanded the case to the Jackson County Circuit Court for a hearing on defendant's "allegations that plaintiff failed to endorse and produce res gestae witnesses". This Court retained jurisdiction. Following a hearing on the remand, the trial court found that the three persons who were not endorsed on the information (two people from the Cabaret Bar and the person at the 7-11) were not res gestae witnesses.

On remand, defendant's counsel received copies of police reports in response to his motion for discovery after his earlier informal requests had been denied. The police reports contained facts not revealed to the jury concerning the reliability of the identification of defendant as the robber. The facts were: (1) Donald West, the cab driver, admitted in his initial statement that he and the robber had been driving back streets smoking marijuana prior to the robbery; (2) the cab driver could not pick defendant out of a photographic line-up on the night of the offense and convinced the detective in charge of the investigation that he would [141 MICHAPP 447] not be able to make an identification; and (3) that one of the two persons in the bar, who positively identified defendant at trial, was unable to pick defendant's photograph from the same photographic array the day after the offense. Defendant's counsel sought permission to raise the additional issue of newly discovered evidence in the remand hearing. Permission was denied since the trial court believed the issue was outside the scope of the remand order. The trial court decided not to hear the newly revealed evidence issue unless this Court directed it to do so in a further order of remand.

On March 23, 1983, defendant filed a motion for peremptory reversal in this Court. Defendant requested that this Court grant: (1) a peremptory reversal based on what was characterized as the clearly erroneous decision of the trial court in refusing to recognize the store clerk as a res gestae witness; or (2) a further remand for a hearing on "the newly-revealed issues of newly-discovered evidence and/or ineffective assistance of counsel" in order that all issues which would eventually be litigated would be consolidated in a single appeal; or (3) that the case be placed on this Court's case call so that defendant would have the benefit of oral argument and formal submission which were denied him on his appeal as of right.

Defendant's motion for peremptory reversal was denied by an order of this Court dated November 23, 1983. However, the case was again remanded to the circuit court for a hearing on defendant's issue of "newly-discovered evidence and/or ineffective assistance of counsel". This Court retained jurisdiction.

An evidentiary hearing was held on December 15, 1983. Defendant withdrew his claim of newly discovered evidence and at the hearing relied on [141 MICHAPP 448] his claim of ineffective assistance of counsel. The entire matter is now before this Court on the merits.

Defendant entered the Cabaret Bar in Jackson at approximately 1:30 a.m. on April 12, 1979. The owner of the bar, Ray Eicher, testified that defendant asked him to call for a cab. Eicher called the Trolz Cab Company. At 1:37 a.m., a cab, driven by Donald West, was dispatched to the bar. Defendant left the bar and entered the cab.

The complainant, Donald West, testified that he was driving a cab in the early morning hours of April 12, 1979, and that he picked up defendant at the Cabaret Bar. Defendant asked to be driven to 1021 First Street in Jackson, Michigan, but on the way defendant changed his mind, stated he wanted to go to WC's, but finally asked to be driven to a 7-11 store. West drove to a 7-11 store and defendant went in and then came out of the store. After the cab left the store and was moving, defendant held a knife to West's neck. Defendant threatened West and forced him to hand over $50 in cash, along with a Timex watch. Defendant made West drive around for a short period of time and then ordered the cab to stop. Defendant took the cab keys and threw them out of the cab. Defendant then ran away.

West reported the robbery and police officer Duane Vinton responded to the call. The officer testified that, when he arrived at the scene, West had a slight laceration on his neck, approximately 3 1/2 inches long. In the back seat of the cab the officer found a brown paper bag containing a can of pop. West told the officer that the bag was not in the cab prior to the time he picked up his last fare at the Cabaret Bar. The can of pop was checked for fingerprints, however the prints on the can were not those of defendant.

[141 MICHAPP 449] Defendant lived at 1021 First Street in Jackson, the address to which the assailant had initially requested to be driven. Apparently, this address was well known to the local police because defendant was an informant for the police.

After defendant was arrested and given his Miranda ² warnings, he stated that he had spent the early evening of April 11, 1979, working with officers of the Metro Squad and that they had dropped him off at the Town Bar. Defendant said that he had a few drinks at the Town Bar, went to the Cabaret Bar for a drink, and then walked home. Defendant's statement was corroborated in part by the testimony of a detective who indicated that he had continued surveillance of defendant until approximately 8:30 that evening, at which time he saw an undercover officer take defendant to the area of the Town Bar and drop him off. At the trial, defendant was identified by Ray Eicher, the owner of the Cabaret Bar, and by Mrs. Eicher, who worked at the bar. Both were present when defendant left the bar. After instruction the jury returned a guilty verdict.

Two claims of error remain which must now be addressed. First, defendant contends that he is entitled to a new trial because the trial court erred in ruling that the missing clerk was not a res gestae witness. We disagree.

A res gestae witness is 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 commission of the charged offense. People v. LeFlore, 122 Mich.App. 314, 333 N.W.2d 47 (1983). The prosecutor is under a duty to endorse and [141 MICHAPP 450] produce all res gestae witnesses. M.C.L. Sec. 767.40; M.S.A. Sec. 28.980; People v. Norwood, 123 Mich.App. 287, 333 N.W.2d 255 (1983), lv. den. 417 Mich. 1006 (1983).

In reviewing a decision of the trial court as to the status of a witness, this Court will reverse only if the decision was clearly erroneous. People v. Abrego, 72 Mich.App. 176, 249 N.W.2d 345 (1976). Although the trial court did not use the "continuum of the criminal transaction" language, we believe the court ruled correctly.

There is a rebuttable presumption that persons present at the time and place of the commission of a crime are res gestae witnesses and the burden is on the prosecutor to prove otherwise. People v. Samuels, 62 Mich.App. 214, 233 N.W.2d 520 (1975)....