People v. Donald
| Citation | 103 Mich.App. 613,303 N.W.2d 247 |
| Decision Date | 05 February 1981 |
| Docket Number | Docket No. 49156 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee DONALD, Defendant-Appellant. 103 Mich.App. 613, 303 N.W.2d 247 |
| Court | Court of Appeal of Michigan (US) |
[103 MICHAPP 614] Elwood S. Berry, Jr., Baldwin, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward Carl Duckworth, Pros. Atty., for plaintiff-appellee.
[103 MICHAPP 615] Before ALLEN, P. J., and GILLIS and WALSH, JJ.
On April 27, 1979, defendant was convicted by a Lake County Circuit Court jury of felonious assault in violation of M.C.L. § 750.82; M.S.A. § 28.277. Defendant was sentenced to two to four years imprisonment and appeals as of right raising two issues.
First, defendant maintains that the trial court committed reversible error in ruling that the prosecution was not required to produce two alleged res gestae witnesses. The first of these witnesses was one Willie Thomas. The prosecution detailed the extensive efforts used in an attempt to locate Thomas. These efforts included telephoning every hospital in Grand Rapids and Saginaw. The trial court ruled that the prosecution exercised due diligence in its attempts to produce Thomas. Determination of due diligence rests within the sound discretion of the trial court and will not be overturned on appeal absent a clear abuse of discretion. People v. Fournier, 86 Mich.App. 768, 778-779, 273 N.W.2d 555 (1978), People v. Rimson, 63 Mich.App. 1, 233 N.W.2d 867 (1975). We find no such abuse of discretion and concur in the trial court's finding that the prosecution followed through on every lead in their futile attempt to locate Mr. Thomas.
The second alleged res gestae witness was Horace Watson. Complainant's trial testimony indicated for the first time that Watson was present at the scene of the assault. The prosecution immediately issued a subpoena for Watson to appear at trial. The subpoena was taken to Watson's residence where it was learned that Watson had not been seen for two or three weeks and that nobody knew of Watson's whereabouts. All other witnesses [103 MICHAPP 616] at the trial indicated that Watson was not present at the scene. The trial court ruled that the existence of Watson at the scene of the assault was a surprise to the prosecutor. The trial court further found that all of the witnesses who testified on behalf of the defendant indicated that Watson was not present at the scene. The trial court concluded by ruling that the nonproduction of Watson did not prejudice the defendant and therefore excused the prosecution from producing him. Again, this Court will not overturn the trial court's determination absent a clear abuse of discretion. Fournier, supra, Rimson, supra. Although the defendant is presumed to be prejudiced by nonproduction of res gestae witnesses, if the prosecution can establish that the missing testimony would have been of no assistance to defendant, that it merely constitutes cumulative evidence, that its absence constitutes harmless error or that the witness could not have been produced at trial, the burden of showing that the defendant has not been prejudiced, has been met and the conviction should be affirmed. People v. Pearson, 404 Mich. 698, 725, 273 N.W.2d 856 (1979). In the present case, the prosecution did show that Watson's testimony would have been no help to the defendant. First, had Watson supported defendant's other witnesses, his testimony would have been cumulative. Secondly, had Watson testified differently, he would have discredited all of defendant's other witnesses and destroyed defendant's alibi. Additionally, it should be noted that defendant did not ask for a continuance for the opportunity of producing Watson. The prosecution did exercise due diligence in attempting to produce Watson in the short time span available upon learning that he may have been at the scene. For the above reasons, we can not find a clear abuse of discretion.
[103 MICHAPP 617] Defendant's other claim of error involves the use of a tape recording of a witness's preliminary examination testimony for impeachment purposes. At the time of trial, the preliminary examination court reporter had not yet transcribed the preliminary examination proceedings. It...
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