People v. O'Dell
| Decision Date | 22 March 1968 |
| Docket Number | Docket No. 2742,No. 1,1 |
| Citation | 158 N.W.2d 805,10 Mich.App. 87 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Frederick O'DELL, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Frederick M. Maddock, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Richard J. Padzieski, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before FITZGERALD, P.J., and T. G. KAVANAGH and LEVIN, JJ.
Defendant Paul Frederick O'Dell was convicted of resisting an officer in discharge of his duty. C.L.1948, § 750.479 (Stat.Ann.1954 Rev. § 28.747)
The defendant had been renting property from Maria Grigorian and Arthur Murry. They left a notice for the defendant to move and padlocked the door of the property. Discovering this, the defendant borrowed a screwdriver and tore the padlock off the door. Shortly thereafter he became embroiled in an argument with Maria Grigorian and Arthur Murry.
Two police officers testified Arthur Murry and Maria Grigorian told the officers that the defendant assaulted them with a screwdriver, hitting her on the head and slashing him on the arm. The police officers then went to arrest the defendant for felonious assault; he resisted and they had to use force to subdue him.
Shirley Brock, from whom the defendant borrowed the screwdriver, corroborated the defendant's claim that the borrowed screwdriver was returned before the alleged assault on Maria Grigorian and Arthur Murry. Other witnesses corroborated his claim that he did not resist an arrest.
After the 2 police officers testified, the following colloquy between the prosecutor and the court occurred:
'Mr. Mazer: Defense counsel agreed to waive the remainder of the witnesses.
'The Court: Oh, wait a minute, now. No. There is testimony here of a woman, and a man being wounded on felonious assault.
'Mr. Mazer: They are not present, your Honor.
'The Court: Why aren't they present'
'Mr. Mazer: The man refuses to come to court under any circumstances.
'The Court: Well, that shouldn't be concealed from the Court.
'Mr. Mazer: Det. Caldwell, will you please take the witness stand.'
Thereupon, another police officer was called. His testimony was as follows:
'By Mr. Mazer:
'Q. Will you tell me your name, please?
'A. Lee Caldwell.
'Q. And you are one of the officers assigned in charge of this case?
'A. Yes, I am.
'Q. With regard to an Arthur Murry, who is one of the people's witnesses, who is not present in court today, can you explain why?
'A. Due to the numerous adjournments, he called me by phone and stated that he no longer wanted to prosecute. He had some ill health, and he also sent a copy of the letter to the prosecuting attorney's office, and he said he no longer had any interest in the case, he wouldn't come down.
'I asked him if he wouldn't go to the prosecutor and tell the prosecutor this, and he said he wouldn't, he couldn't come down under any circumstances, he was too busy with his business.
'The warrant that was issued on Mr. Murry's complaint was nolle prosequi on the 16th of September, this year.
'Q. Can you tell us whether a warrant was issued in connection with this particular matter.
'Mr. Salowich: I will stipulate it was August 24--.
'A. August 25, 1965.
'Q. And Arthur Murry was the complaining witness?
'A. Yes, he was.
'Q. Now, can you explain to us further in connection with Maria Grigorian? Is she present in court?
'A. No, she isn't. She was, to my understanding, served with a subpoena. Why she isn't here, I don't know.
'The Court: All right, that's all, step down.
(Witness excused)
This appeal asserts that the failure to produce indorsed witnesses Maria Grigorian land Arthur Murry was error.
The prosecutor maintains that the silence of defense counsel, when the prosecutor advised the court the defense waived production of the remaining witnesses, constituted a waiver of the right to have them produced. He also asserts the defendant must demand the production of such witnesses or their production will be deemed waived.
In response, the defendant claims the prosecutor must produce indorsed witnesses or satisfactorily explain their nonproduction. He also asserts that the court rejected the alleged agreement, thereby rendering unnecessary any response to the prosecutor's proffer of the alleged agreement.
In Michigan, it is a well-established principle, subject to certain exceptions, that, as part of his affirmative case, the prosecutor should put in all the evidence he has the means to produce relative to the whole transaction, whether its tendency is to prove guilt or innocence, before the defendant is put to his defense. The failure to do so constitutes reversible error. People v. Dickinson (1966), 2 Mich.App. 646, 141 N.W.2d 360. 1 However, the prosecuting attorney is not obliged to place on the stand an indorsed witness 2 who is not a Res gestae witness; the prosecuting attorney's duty is performed when he either produces such a witness in court and gives the defendant an opportunity to examine him, or satisfactorily explains why the witness cannot be produced in court. People v. Kern (1967), 6 Mich.App. 406, 410, 149 N.W.2d 216. 3
The defendant may, as the prosecutor asserts, waive the production of an indorsed witness. It is, of course, arguable that where the defendant remains silent, as appears on this record, in the face of an assertion that the defendant has agreed to waive the remaining indorsed witnesses, he may be understood to have acknowledged the assertion's accuracy and properly held to the agreement. We think it equally arguable, however, that it is reasonable to expect an agreement which affects a substantial right of the accused to clearly appear on the record.
We see no need to decide the possible significance of defendant's silence. For here, while the defendant remained silent, the trial judge did not. The trial judge indicated his discontent with having any agreement of counsel dispose of the matter and required an explanation for the nonproduction of indorsed witnesses Maria Grigorian and Arthur Murry, after which a police officer was put on the stand to explain their failure to appear.
Defendant's appellate counsel asserts the defendant understood the trial judge's response to be a rejection of the alleged agreement concerning waiver of the remaining indorsed witnesses. We have no way of knowing whether the defendant or his trial counsel so regarded the trial judge's response, but we cannot say the interpretation advanced by the defendant's appellate counsel is unreasonable. Rather, it appears entirely reasonable. The court's first words following the offer of the alleged stipulation could well have been understood to be a rejection of the alleged stipulation:
(Emphasis supplied.)
The proofs in explanation of the witnesses' failure to appear in court adds to the validity of that impression. Accordingly, we would not be justified in proceeding either as if total silence of everyone followed the prosecuting attorney's offer, or on the assumption that by silence the defendant acquiesced in the prosecutor's statement.
The prosecutor claims that a defendant must request production of indorsed witnesses and his failure to do so will be deemed a waiver of their production. He refers us to our earlier opinion in People v. Rimson (1966), 3 Mich.App. 713, 143 N.W.2d 587. We have already indicated it is, in general, the prosecutor's duty to produce, and give the defendant the opportunity to examine, all indorsed witnesses, even those indorsed witnesses who are not Res gestae witnesses. However, in order to decide this case it is not necessary to attempt resolution of any conflict between that duty and our opinion in People v. Rimson,...
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