People v. Hicks

• Decision Date: 25 August 1975
• Docket Number: Docket No. 19898
• Citation: 234 N.W.2d 720,63 Mich.App. 595
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory HICKS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 720

234 N.W.2d 720

63 Mich.App. 595

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory HICKS, Defendant-Appellant.

Docket No. 19898.

Court of Appeals of Michigan.

Aug. 25, 1975.

Released for Publication Nov. 10, 1975.

Townsend & Bibb by Leonard Townsend, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, App. Chief, Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and CAVANAGH and O'HARA, ^* JJ.

T. M. BURNS, Presiding Judge.

We accept in its entirety Judge O'Hara's recitation of the facts in this case. However, although we agree with his resolution of the issue concerning the alleged error in the jury instructions, we respectfully disagree with his legal conclusions concerning whether or not the prosecution's failure to indorse the loiterers as res gestae witnesses was reversible error.

In the case at bar, out of all the people present at the time of the alleged offense, the prosecutor only indorsed the police officers as res gestate witnesses. However, the prosecutor has an affirmative duty to produce all res gestae witnesses. People v. Unsworth, 43 Mich.App. 741, 204 N.W.2d 759 (1972); People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934). In Unsworth, this Court said, 43 Mich.App. at 743, 204 N.W.2d at 761:

'The prosecutor is duty bound to indorse all witnesses known to him at the time an information against a defendant is filed. Additional witnesses may be indorsed sometimes referred to as a 'dope pad'. court. Indorsement is not a mere formality, but a substantial right designed to protect an accused against suppression of testimony favorable to him and against a false accusation. People v. Long, 44 Mich. 296, 6 N.W. 673 (1880), People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), People v. Brown, 35 Mich.App. 173, 192 N.W.2d 337 (1971).'

In the present case although the prosecutor knew the names and addresses of those persons arrested for loitering, he did not indorse any of them as res gestae witnesses. Since the defense claimed that these witnesses would not only testify that it was not the defendant who aimed the shotgun at the police officer but could testify as to what they saw and heard in the adjoining room at the time the offense allegedly occurred, their testimony was crucial to the defense. Although the question may be a close one, every reasonable doubt must be resolved in favor of indorsing and calling a witness when the defendant insists on his rights. People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975); People v. Harrison, 44 Mich.App. 578, 593, 205 N.W.2d 900 (1973); People v. Kayne, supra. Furthermore, since there is a rebuttable presumption that persons present at the time and place are res gestae witnesses, the prosecutor must prove otherwise. People v. Samuels, 62 Mich.App. 214, 233 N.W.2d 520 (1975); People v. Johnson, 58 Mich.App. 1, 7, 226 N.W.2d 730 (1975); People v. Jones, 52 Mich.App. 522, 217 N.W.2d 884 (1974). We are not convinced that the prosecutor has sustained his burden of proof in this case. Accordingly, we hold that the trial court's finding that the loiterers were not res gestae witnesses was clearly erroneous.

Reversed and remanded for a new trial.

O'HARA, Judge (dissenting).

This is an appeal of right from convictions of felonious assault ¹ and possession of cocaine. ²

The case arose out of a raid on what is sometimes referred to as a cdope pad'. The enforcement officers, as was their duty, first obtained a search warrant. Then they sought entrance by virtue thereof. The premises were protected by steel bars and a steel door. True to their public dity some of the raiding party but a ladder up against the house and one of them attempted to gain entrance by an upstairs window.

He was most uncordially greeted by the defendant pointing a shotgun in his direction. Somehow the officer got in (alive). The defendant was found to have envelopes of cocaine on his person.

A number of other persons were in the building and they were charged with loitering in a place where narcotics or narcotic paraphernalia was kept.

The defendant contends that the failure of the prosecution to indorse the loiterers as res gestae witnesses was reversible error.

There was extensive oral argument at the time of defendant's Belated motion ³ to indorse the other persons present in the building as res gestae witnesses. Both the prosecutor and defense counsel vigorously argued their positions pro and contra as to the people's alleged obligation to indorse and produce the witnesses in question. I read the trial judge's ruling to have in effect held that the loiterers were not res gestae witnesses and that there was no dity owed by the people with respect thereto.

The rule of law in this state is that the trial court's ruling as to who is or is not a res gestae witness is not to be distrubed on appeal unless it is clearly erroneous. See People v. Dixon, 45 mich.App. 64, ...