People v. Dupuie, Docket No. 13883

• Decision Date: 26 April 1974
• Docket Number: No. 1,Docket No. 13883,1
• Citation: 217 N.W.2d 902,52 Mich.App. 510
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Dale DUPUIE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 902

217 N.W.2d 902

52 Mich.App. 510

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Dale DUPUIE, Defendant-Appellant.

Docket No. 13883.

Court of Appeals of Michigan, Division No. 1.

April 26, 1974.

Released for Publication May 24, 1974.

Raymond L. Miller Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and Van VALKENBURG, JJ.

VanVALKENBURG, Judge.

Defendant was found guilty by a jury on April 11, 1969, of the felony of robbery armed, M.C.L.A. § 750.529; M.S.A. § 28.797, was sentenced to a prison term of from 10 to 20 years on May 16, 1969, and appeals on leave granted.

On December 1, 1967, a certain Detroit bar was held up by Andrew Goeppner and John Carl, III. Goeppner and Carl were found guilty in a joint nonjury trial and were sentenced to life imprisonment. Their convictions were affirmed by this Court. See 20 Mich.App. 425, 174 N.W.2d 143 (1969). Subsequent to that trial Carl implicated defendant. Both Carl and Goeppner testified at defendant's trial to the effect that defendant herein planned the robbery, furnished the information as to where the money was kept within the bar, supplied the gun, and divided the proceeds; but that defendant remained in the automobile outside the bar during the perpetration of the robbery. Defendant took the stand and testified that while he knew Goeppner and Carl, he took no part in the robbery.

Somewhat more than two years after defendant's conviction, Goeppner and Carl moved for new trials before the trial court. Their motions were granted. They thereafter pled guilty to armed robbery and were sentenced to 7 1/2 to 15 years.

On appeal defendant argues that he was denied due process and equal protection of the laws by reason of the fact that he received a harsher sentence than Goeppner and Carl received upon retrial. Defendant further argues that he did not receive a fair trial since the jury should have been informed of the deal made with Goeppner and Carl to secure their testimony and the jury should have been instructed as to the caution with which an accomplice's testimony should be viewed.

Defendant's argument with respect to equal protection of the laws is not well founded. Equal protection does not demand equal sentences, providing the different sentence or treatment was not based upon some arbitrary classification such as race or religion. See People v. Sawicki, 4 Mich.App. 467, 145 N.W.2d 236 (1966), and People v. Smyers, 47 Mich.App. 61, 209 N.W.2d 281 (1973).

There is no question that if Goeppner's and Carl's testimony was secured by promises of leniency, the jury must be apprised of that fact. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); People v. Nettles, 41 Mich.App. 215, 199 N.W.2d 845 (1972). The question thus becomes whether there was, in fact, some deal made by the prosecutor to secure the testimony.

It should be noted that the question of whether a deal had been made was explored and argued at trial. Both the witnesses and the prosecutor denied that there was any deal made. Defendant, however, points to the fact that the witnesses were later granted new trials which resulted in reduced sentences. Had the temporal relationship between the giving of the testimony and the granting of the new trials been closer, we would be inclined to remand the matter to the trial court for a hearing to determine whether a deal had been made at the time of defendant's trial. Here the very fact that the motions for new trial were made more than two years after the testimony was given militates against a finding that there was any deal made by the prosecutor to secure the testimony. The fact that the trial court may have taken the witnesses' cooperation into consideration of granting the new trial would not affect the fairness of defendant's trial, providing there was no hidden promise of leniency made to secure the witnesses' testimony. Upon this record we find that there is not a sufficient showing of any deal to justify further inquiry.

While defendant was probably entitled to an instruction as to the caution with which an accomplice's testimony should be viewed, there is no need for the trial court to give such an instruction Sua sponte. Defendant's failure to request such an instruction precludes his raising such failure as error on appeal. GCR 1963, 516.2; see also People v. Love, 43 Mich.App. 608, 204 N.W.2d 714 (1972).

The remainder of defendant's allegations of error are of no merit. The question of the failure of the prosecutor to endorse and produce an alleged res gestae witness is not properly before this Court, since defendant failed to preserve the question by a motion to endorse before ...