People v. Cortez

• Decision Date: 20 March 1984
• Docket Number: 65021,Docket Nos. 64662
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman CORTEZ, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fernando Hugo GONZALES, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Merquiades N. CESPEDES, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 540

346 N.W.2d 540

131 Mich.App. 316

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman CORTEZ, Defendants-Appellants.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fernando Hugo GONZALES, Defendants-Appellants.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Merquiades N. CESPEDES, Defendants-Appellants.

Docket Nos. 64662, 65021.

Court of Appeals of Michigan.

Submitted July 21, 1983.

Decided Jan. 3, 1984.

Leave to Appeal Denied Oct. 26, 1983.

Rehearing Denied Feb. 29, 1984.

Released for Publication March 20, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty. and Rosemary A. Gordon and Jeffrey Caminsky, Asst. Pros. Attys., for the People.

Bell & Hudson, P.C. by Edward F. Bell, Detroit, for Herman Cortez and Fernando H. Gonzales.

John C. Mouradian, Detroit, for Merquiades N. Cespedes.

Before J.H. GILLIS, P.J., and GRIBBS and GAGE ^*, JJ.

GAGE, Judge.

After a joint jury trial, defendants Cortez and Gonzales were convicted of possession of more than 650 grams of a mixture containing cocaine with intent to deliver, M.C.L. Sec. 333.7401(2)(a)(i); M.S.A. Sec. 14.15(7401)(2)(a)(i). Defendant Cespedes was convicted of the same crime in a separate nonjury trial. Defendants were sentenced to imprisonment for life, and they appeal as of right.

I

Defendant Gonzales argues that the trial court erred by ruling that evidence of his prior conviction of delivery of cocaine could be used to impeach him if he testified. In making such a ruling, a court must consider the nature of the prior offense, whether it is for substantially the same conduct for which the defendant is on trial, and the effect on the decisional process if defendant does not testify from fear of impeachment. See People v. Jackson, 391 Mich. 323, 333, 217 N.W.2d 22 (1974), citing Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967). MRE 609(a)(2) requires the trial court to determine whether the probative value of the evidence of the prior conviction outweighs the prejudicial effect and to articulate on the record the factors considered in making its determination. An appellate court reviews such a ruling by determining whether the trial court committed an abuse of discretion. People v. Worden, 91 Mich.App. 666, 675-676, 284 N.W.2d 159 (1979).

Here, the trial court recognized the prejudicial effect of the similarity of the prior offense to the offense for which defendant was on trial. The trial court was informed that defendant Gonzales might not testify if the court decided to permit use of the prior conviction, and the court expressly considered the adverse effect on the decisional process that would result. However, the court had heard the testimony of defendant Gonzales at a previous trial which ended in a mistrial. The defendant, a citizen of Colombia, claimed that he entered this country illegally at short notice in order to attempt to secure a commission to paint a portrait and that his presence at the place where the cocaine was found was purely coincidental. In concluding that under these circumstances the probative value of the evidence of the prior conviction outweighed its prejudicial effect, the court pointed to People v. Jones, 98 Mich.App. 421, 428-429, 296 N.W.2d 268 (1980), in which the Court said:

" People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), held that the similarity of a prior conviction to the offense charged increases its prejudicial effect and is a factor to be weighed against its use for impeachment. But frequently the probative value of a conviction, or series of convictions, is increased, proportionally or greater, on the issue of credibility because of that similarity. The principles underlying MRE 404(b) may bear upon the credibility issue, depending in part on the nature of the defense defendant's testimony presents, even if the similarities are not great enough so that the evidence would qualify under that rule.

"When a victim says 'He did it!' and the defendant says 'I didn't,' or 'I was so drunk I didn't mean to,' or even 'I was ten miles away at the time,' it is relevant to the central issue of who is telling the truth that the defendant has been guilty of similar criminal conduct before, perhaps repeatedly. Both the prejudicial effect and the probative value on the issue of credibility are because of the true fact of life, based on human experience and fundamental to human insight, that it is more probable that a person has committed a crime if he has done it before, maybe several times. A jury should not be deprived of that information simply because the crimes are similar or because the criminal record is extensive. When it comes to whom to believe, it should not benefit the defendant that he is a repeater, perhaps specializing in this kind of crime, or that his record is so bad that it will weigh heavily against him. After all, he committed the previous crimes and they tell a great deal about him and about whether he is lying now."

We agree with the reasoning of the Jones opinion, and on this record we cannot say that the trial court committed an abuse of discretion.

II

Defendants complain of the prosecution's failure to produce two alleged res gestae witnesses, Phyllis Lambros and Marlena Eric, at either trial. In 7 Wigmore, Evidence (Chadbourne Rev), Secs. 2079, 2080, pp. 536-543, it is pointed out that Michigan's rule requiring the prosecution to endorse and call all res gestae witnesses is virtually unique, and the rule is critized as unnecessary to assure defendants fair trials and as unfair to prosecutors. We believe that the rule serves no useful purpose, because defendants may obtain the testimony of favorable witnesses through compulsory process without the assistance of the prosecution. See U.S. Const., Am. VI; Const.1963, art. 1, Sec. 20; M.C.L. Sec. 767.32; M.S.A. Sec. 28.972, and M.C.L. Sec. 767.33; M.S.A. Sec. 28.973. We therefore urge abolition of the rule.

The prosecution's duty to call res gestae witnesses does not extend to accomplices. People v. McCullough, 81 Mich. 25, 45 N.W. 515 (1890); People v. Resh, 107 Mich. 251, 65 N.W. 99 (1895); People v. Knoll, 258 Mich. 89, 242 N.W. 222 (1932); People v. White, 401 Mich. 482, 257 N.W.2d 912 (1977); People v. Belenor, 408 Mich. 244, 289 N.W.2d 719 (1980). A potential witness need not be actually charged with the crime in order to fall within the accomplice exception. People v. Threlkeld, 47 Mich.App. 691, 695, 209 N.W.2d 852 (1973). A potential witness falls within the accomplice exception if he or she could have been charged with the same crime as the defendant. Threlkeld, supra, p. 696, 209 N.W.2d 852; People v. John Moore, 78 Mich.App. 150, 154, 259 N.W.2d 403 (1977). See also People v. Belenor, supra, 408 Mich. p. 246, 289 N.W.2d 719, in which the Court held that a witness fell within the accomplice exception because the witness was "thought" and "perceived" by the prosecutor to be an accomplice.

In People v. Raider, 256 Mich. 131, 135-136, 239 N.W. 387 (1931), the Court explained the purpose behind the accomplice exception and similar exceptions:

"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own."

At each trial, the court ruled that Lambros and Eric were accomplices. Defendant Cespedes claimed that there was no evidence before the court at his trial to support this ruling. However, after the court ruled, Cespedes himself testified that Lambros and Eric brought the cocaine at issue onto the premises concealed under their skirts. Because this testimony conclusively established that Lambros and Eric could have been charged with the same offense as Cespedes, any deficiency in the evidence before the court at the time of its ruling was harmless beyond a reasonable doubt.

Defendants Cortez and Gonzales argue that, because they had no opportunity to cross-examine Cespedes at his previous trial, and because the testimony of Cespedes fell within no exception to the hearsay rule, the court should not have relied on that testimony to conclude that Lambros and Eric were accomplices for the purpose of the trial of Cortez and Gonzales. However, this argument is based on a fundamental misconception concerning the accomplice exception. The prosecution was not required to prove that Lambros and Eric were guilty in order to invoke the exception; rather, the prosecution was merely required to show that Lambros and Eric could have been charged or were thought or perceived to be accomplices. In his testimony, Cespedes asserted that Lambros and Eric were guilty, but at the subsequent trial of Cortez and Gonzales the testimony was used merely to show that Lambros and Eric had been accused and that testimony to support that accusation could be produced. The testimony was not hearsay when used for such purpose; see MRE 801(c). Because the testimony was not offered to prove the truth of the matter asserted, we fail to see how the absence of an opportunity to cross-examine Cespedes concerning the truth of the matter asserted was relevant. The accusations of Cespedes created the "community of interest" discussed in Raider between Lambros, Eric, Cortez, and Gonzales.

Defendant Cespedes also complains of the prosecutor's delay in disclosing that Lambros and Eric would not be produced. The names of Lambros and Eric were originally endorsed on the information. At the beginning of trial, counsel for defendant Cespedes demanded to know whether the prosecutor would be able to produce all endorsed witnesses; the prosecutor declined to respond. At the close of his proofs, the prosecutor informed the court that he could not produce Lambros and...