People v. Gordon

• Decision Date: 23 April 1975
• Docket Number: Docket No. 17085--6,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Gene GORDON and William C. Broaden, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 409

231 N.W.2d 409

60 Mich.App. 412

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Gene GORDON and William C. Broaden, Defendants-Appellants.

Docket No. 17085--6.

Court of Appeals of Michigan, Division No. 1.

April 23, 1975.

Released for Publication July 24, 1975.

Robert R. Mallory, Detroit, for Broaden; Carl Ziemba, Detroit, of counsel.

Ellen C. Wallaert, East Detroit, for Gordon.

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

Before ALLEN, P.J., and McGREGOR and CAVANAGH, JJ.

CAVANAGH, Judge.

This appeal considers consolidated cases involving convictions of two defendants of unarmed robbery, M.C.L.A. § 750.530; M.S.A. § 28.798, from the same basic facts. In the mid-afternoon of January 8, 1973, Mrs. Hattie Sue Hill was standing with her 11-year-old daughter Connie at a street corner in Detroit. A silver Mark IV automobile stopped in front of her and one man jumped out, struck her and grabbed her purse. Before the car sped off, several other people had opportunities to view the perpetrators. Approximately fifteen minutes later, the defendants and another female, Yvonne Brooks, were stopped in a silver Mark IV with a license number matching that taken down by a safety patrol boy at the scene of the robbery, about five blocks away. A police officer found Mrs. Hill's purse lying on the front floor of the car.

This appeal involves two issues: the prosecutor's failure to endorse a res gestae witness and the sufficiency of the evidence for the conviction of defendant Broaden.

At trial it became apparent that another safety patrol boy, Perry Micensky, had witnessed the robbery but had not been endorsed as a res gestae witness on the information. Perry had been brought to the police station after defendants' arrest but had been unable, after a lineup, to identify either of the defendants as the perpetrators of the robbery. The prosecution offered little explanation as to why he had not been endorsed on the information.

Although the existence of this witness was apparently known to defendants' preliminary-exam counsel and trial counsel, no request to endorse or produce this witness was made by the defendants at any time before or during the trial. In his charge to the jury, the trial judge instructed that evidence of the missing res gestae witness must be presumed to be disfavorable to the prosecution:

'Now in this case, members of the jury, a Perry Mysinski (sic) appeared at the lineup in this case but did not identify the defendants. It is the opinion of the Court that he should have been endorsed as a res gestae witness in this case and you should have had the opportunity to have him testify in person. The people's failure to produce him raises a presumption that his testimony would not have been favorable to the people's case.'

Subsequent to his conviction and sentence, defendant Gordon petitioned this Court to remand the case for an evidentiary hearing concerning the prosecutor's failure to produce the res gestae witness. On September 5, 1974, this Court granted the defendant's motion and ordered the hearing, at which Perry Micensky testified that he was eleven years old and was a patrol boy at the corner where Mrs. Hill was robbed. He testified that he witnessed the robbery but at a lineup two days later he could not identify defendant Gordon as the perpetrator. The trial judge concluded that 'he could not offer any testimony on retrial of this cause which would differ in any material respect from the testimony adduced at the first trial'. Therefore, he denied defendants' motion for a new trial.

Although a defendant's failure to request either endorsement or production of an unendorsed res gestae witness at one time was thought to excuse the prosecutor, that view has seemingly been overruled by the Michigan Supreme Court in People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). See also People v. Koehler, 54 Mich.App. 624, 221 N.W.2d 398 (1974).

An exception to the general rule requiring endorsement of res gestae witnesses exists when the testimony of the witness would be merely cumulative or when the prosecution makes a showing of due diligence in attempting to produce the witness. People v. Bennett, 46 Mich.App. 598, 208 N.W.2d 624 (1973), Lv. to app. granted, 390 Mich. 772 (1973).

In the present case neither of these exceptions apply. There has been no showing by the prosecutor of why the witness was not endorsed. Although the witness's testimony concerning the description of the robbery was cumulative, the fact that he had a favorable vantage point and yet was unable to subsequently identify the defendant was relevant testimony. See People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973).

However, the crucial question is whether the remedy chosen by the trial court, an explanative instruction, was sufficient to cure the prosecutor's failure to endorse the witness. Every failure to endorse a res gestae witness and every failure to exercise due diligence in the production of an endorsed witness does not require reversal of the conviction. People v. James, 51 Mich.App. 777, 216 N.W.2d 473 (1974).

In People v. Harris, 56 Mich.App. 267, 224 N.W.2d 57 (1974), an instruction was given which was similar to the one given in the present case. Nevertheless, this Court reversed the conviction because the prosecution had failed to endorse a witness who had knowledge which would have rebutted important circumstantial evidence presented by the prosecutor. Harris, however, does not forbid the use, in all cases, of the adverse presumption instruction to cure the prosecutor's failure to endorse a res gestae witness.

The present case is one where such an instruction does avoid the necessity of a new trial. Much of the witness's testimony would have been detrimental to the defendant. The only favorable evidence was the adverse inference from the fact that he could not identify the defendant in a lineup. A new trial so that the witness could make this simple statement does not seem justified. Considering the fact that defendant could have, but chose not to, compel the witness's production, the instruction gave the jury every iota of evidence which would have been favorable to the defendant.

We do not hold that such an instruction is sufficient in all cases where a res gestae witness was not endorsed. If the witness's testimony gives complicated or detailed corroboration of the defendant's version of the facts or if the testimony contains complicated or detailed...