People v. Filip, Docket No. 19561

• Decision Date: 12 February 1975
• Docket Number: Docket No. 19561,No. 1,1
• Citation: 58 Mich.App. 564,228 N.W.2d 464
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael David FILIP, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 464

228 N.W.2d 464

58 Mich.App. 564

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael David FILIP, Defendant-Appellant.

Docket No. 19561.

Court of Appeals of Michigan, Division No. 1.

Feb. 12, 1975.

Released for Publication May 7, 1975.

Norton Rosin, 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., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and McGREGOR and CARLAND, ^* JJ.

CARLAND, Judge.

The defendant was convicted by a jury of carrying a dangerous weapon in a motor vehicle contrary to the provisions of M.C.L.A. § 750.227; M.S.A. § 28.424, and appeals as a matter of right.

The circumstances of defendant's arrest which are important to the disposition of this case are not in dispute. Either in the late evening of October 11, 1973 or in the early morning hours of October 12th, police officer Bryant and his partner apprehended the defendant and one Daniel Smith as they were in the process of stealing a truck from 'Walter's Appliance' in Livonia, Michigan. At the time of this apprehension, Smith was driving the truck from the store's parking lot and the defendant was following him in a Buick automobile previously rented by Smith. The police stopped both vehicles and requested that the drivers get out of the cars. After the defendant left the Buick, Officer Bryant, using a flashlight, observed a revolver on the floor of the car partially concealed under the driver's seat.

Before the defendant's trial, Smith, who had pled guilty to unlawfully driving away a motor vehicle, was endorsed on the information as a res gestae witness. Smith was called by the prosecution and testified that he had rented the Buick which was being driven by the defendant at the time of his arrest. Smith further testified that defendant had driven the same Buick on at least two previous occasions. However, when asked whether Smith had a gun in the Buick, he refused to answer on grounds of self-incrimination. Smith also denied making any statement to a detective Benson concerning defendant's knowledge of the presence of the gun in the car.

At that point, the prosecutor requested the court to declare Smith to be a hostile witness for the purposes of cross-examination and impeachment, asserting that Benson would testify that Smith had told him that the defendant knew about the gun being in the car prior to his arrest. The trial court made no ruling on this request but advised the prosecutor that Smith could be cross-examined and impeached as a res gestae witness. No objection was made by the defendant to this ruling. Accordingly, the prosecutor again asked Smith whether he had made any statement to Benson in relation to the gun. Smith repeatedly denied the making of any statement of this nature. Similarly, under questioning by defense counsel, Smith disclaimed any knowledge as to defendant's knowledge of the gun being in the car.

Detective Benson then testified on behalf of the people to the effect that Smith had stated that defendant knew about the gun and its presence in the car. He further testified that Smith later recanted his statement as to the defendant's knowledge of the weapon.

Did the trial court err in allowing the prosecution to impeach the testimony of Smith who it is claimed was the accomplice of the defendant? The defendant explicitly concedes that Smith was a res gestae witness to the concealed weapon offense, but was Smith an accomplice of the defendant. If Smith was such an accomplice, the prosecution was under no obligation to produce or call him as a witness. Having no obligation to produce under the rule of People v. Fidel, 37 Mich.App 338, 194 N.W.2d 732 (1971), the people could not impeach Smith's testimony with the testimony of detective Benson.

'We hold here that the right of the prosecution to impeach its own witness is derivative of, and coextensive with, the obligation to call that witness. Absent the obligation, a witness thus called becomes the people's witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.'

In a recent similar case, People v. West, 56...