People v. Harrison, Docket No. 11447
| Citation | 205 N.W.2d 900,44 Mich.App. 578 |
| Decision Date | 20 February 1973 |
| Docket Number | No. 2,Docket No. 11447,2 |
| Parties | PEOPLE of the State of Michigan, PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thaddeus R. HARRISON, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
Morton Leitson, Leitson, Dean, Dean, Segar & Hart, P.C., Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.
Before QUINN, P.J., and R. B. BURNS and C.J. BYRNS, * JJ.
Tried on an information charging him with assault with intent to do great bodily harm less than the crime of murder, M.C.L.A. § 750.84; M.S.A. § 28.279, defendant was convicted by a jury of felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277, sentenced to serve 40 days in jail, assessed a fine and court costs, and placed on 5 years probation. Because of the importance of the legal issues raised on this appeal, the pertinent facts will be set forth in some detail.
On March 19, 1970, a demonstration on the Ann Arbor Campus of the University of Michigan attracted a large crowd, estimated to contain as many as 1500 persons. A confrontation between police officers and demonstrators occurred, during the course of which Officer Paul Bunten of the Ann Arbor Police Department was struck by a rock, allegedly thrown at him by the defendant.
At trial, Officer Bunten testified that as he attempted to maintain order at the scene of the disturbance he observed the defendant throw a rock, which struck Bunten on the thigh, causing injury. Five other policemen testified for the people, all but one of whom confined their testimony to describing the circumstances surrounding defendant's apprehension and arrest; the fifth corroborated Officer Bunten's version of the incident, and identified defendant as the person who threw the rock. No other witnesses were produced or called by the prosecution.
Defendant, who testified in his own behalf, denied that he ever hurled any missible of any kind at anyone. One other defense witness corroborated defendant's testimony.
On this appeal, defendant presents two assignments of error for our consideration. Defendant first challenges the failure of the trial judge to require the prosecutor to endorse the names of five persons on the information as res gestae witnesses, and also alleges that he was denied a fair trial by virtue of certain improper remarks made by the prosecutor in closing argument.
At defendant's preliminary examination on April 8, 1970, defense counsel questioned a police witness regarding an article entitled 'A Day in the Life of T. R. Harrison', which appeared in the March 21, 1970 issue of The Michigan Daily, accompanied by several pictures of defendant's arrest. The newspaper by-line identified the author and photographer, respectively, as Eric Siegel and Sara Krulwich. The witness denied having any knowledge of the story or the reporters involved.
On November 13, 1970, defense counsel filed a motion to require the prosecutor to endorse on the information the names of certain witnesses, unidentified in the motion, who purportedly testified before a civic committee which was investigating the compus disturbance. It was also noted in the motion that video tapes of the disturbance were taken by photographers for the local television stations, and that the prosecutor had failed to endorse the photographers as res gestae witnesses or to subpoena their video tapes. The trial court ordered the prosecutor 'to endorse on the information all witnesses known to the prosecutor', without specifying any names, no later than December 31, 1970.
On January 18, 1971, defendant filed a second motion, maintaining generally that the prosecutor had failed to endorse res gestae witnesses, and requesting the court to order the endorsement on the Information of 'all res gestae witnesses known to the Prosecutor, including witnesses Sara Krulwich and Eric Siegel'.
At the hearing on this second motion, on January 22, 1971, defense counsel presented a third motion, requesting the endorsement of three additional res gestae witnesses, Darryl Conliffe, Robert Evans, and Maurice Tate, and listing their respective addresses. Defense counsel informed the court that he had personally served subpoenas on all five of the named witnesses, on January 20, to assure their presence at trial. Based on certain arguments made by the prosecutor, the trial judge adjourned the hearing until the morning of trial, January 25, 1971, to permit the prosecutor to contact the alleged res gestae witnesses named in defendant's various motions.
When the hearing commenced on January 25, the prosecutor argued that none of the five persons was a res gestae witness, and that he therefore had no duty to endorse their names on the information or to call them as witnesses at trial. The prosecutor contended, respectively, as follows:
(1) Eric Siegel: not an eyewitness
(2) Sara Krulwich: not an eyewitness
(3) Robert Evans: The prosecutor claimed to have a photograph taken at the demonstration showing Evans with a rock in his hand. It was argued that Evans was defendant's accomplice by virtue of his participation in the incident, and accordingly that the prosecutor was thereby excused from his duty to endorse Evans on the information.
(4) Darryl Conliffe: The prosecutor conceded that Conliffe claimed to have been close to the defendant at all times before and during demonstration until defendant's arrest, but averred that Conliffe was not telling the truth, and by virtue of that 'fact', and the fact that Conliffe is a close friend of the defendant, that there was no duty on the part of the prosecution to endorse Conliffe as a res gestae witness.
(5) Maurice Tate: The prosecutor stated that the police had been unable to contact Tate as of the hearing date. At oral argument before this Court it was established that Tate was seated in the courtroom throughout the four-day trial, but the prosecutor made no uttempt to interview Tate at that time.
Of these five persons, two, Tate and Evans, were present at trial but did not testify. Siegel and Krulwich were called by the defense, and both testified that they first noticed defendant as he was being placed under arrest. 1 In admitting the photographs taken by Krulwich into evidence, over the prosecutor's objection, the trial judge ruled that defendant's arrest was related so closely to the alleged offense as to constitute part of the res gestae.
Darryl Conliffe, called as a witness by the defense, testified that he ate lunch with the defendant, and together the two went to the scene of the demonstration. Although concededly he did not have his eyes on the defendant every moment, Conliffe did not see the defendant pick up or throw a rock at any time.
M.C.L.A. § 767.40; M.S.A. § 28.980 provides in relevant part:
The term 'all witnesses' encompasses only res gestae witnesses. People v. Keywell, 256 Mich. 139, 239 N.W. 288 (1931); People v. Banks, 27 Mich.App. 331, 183 N.W.2d 429 (1970); People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). Moreover, this Court has held that the prosecutor's duty under this statute is limited to witnesses whose identity is known. People v. Loggins, 17 Mich.App. 388, 169 N.W.2d 519 (1969). In the case at bar, the record affirmatively discloses that the prosecutor was fully apprised concerning these witnesses by defense counsel's repeated and timely motions. At or before the time of trial, the prosecutor knew these witnesses existed. Cf. People v. Kaczor, 14 Mich.App. 724, 165 N.W.2d 899 (1968).
Generally, permitting the late endorsement of witnesses is within the discretion of the trial court. People v. Blue, 255 Mich. 675, 239 N.W. 361 (1931); People v. Hodges, 34 Mich.App. 90, 190 N.W.2d 703 (1971). However, the discretion thus entrusted to the trial judge is not unfettered; it must be exercised with due regard for the defendant's right to a fair trial. People v. Lakin, 30 Mich.App. 441, 186 N.W.2d 867 (1971). Consequently, this Court will review a trial court's action to determine whether such discretion has been abused. People v. Tann, 326 Mich. 361, 40 N.W.2d 184 (1949); People v. Costanza, 306 Mich. 415, 11 N.W.2d 10 (1943); People v. Tamosaitis, 244 Mich. 258, 221 N.W. 307 (1928).
As to the timeliness of a motion to endorse specified witnesses after the filing of the information, trial courts have been frequently upheld when they permitted prosecutors to endorse witnesses on the day of trial. People v. Lakin, Supra; People v. Snow, 26 Mich.App. 510, 182 N.W.2d 820 (1970); People v. Spears, 241 Mich. 67, 216 N.W. 398 (1927); or even after trial has begun, People v. Moore, 306 Mich. 29, 10 N.W.2d 296 (1943), cert. den., 321 U.S. 787; 64 S.Ct. 783, 88 L.Ed. 1078 (1944); People v. Powers, 203 Mich. 40, 168 N.W. 938 (1918); People v. Baker, 112 Mich. 211, 70 N.W. 431 (1897); People v. Cormandy, 16 Mich.App. 517, 168 N.W.2d 430 (1969); People v. Rowls, 28 Mich.App. 190, 184 N.W.2d 332 (1970); and in extreme cases after defendant rested. People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921); People v. Pena, 3 Mich.App. 26, 141 N.W.2d 677 (1966), reversed on other grounds, 383 Mich. 402, 175 N.W.2d 767 (1970).
Names of witnesses cannot be endorsed at time of trial where their existence and identify were known earlier, the delay is not satisfactorily explained, and their unanticipated presence at...
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