People v. James

• Decision Date: 05 March 1974
• Docket Number: No. 2,16288,Docket Nos. 16287,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lafayette JAMES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 473

216 N.W.2d 473

51 Mich.App. 777

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lafayette JAMES, Defendant-Appellant.

Docket Nos. 16287, 16288.

Court of Appeals of Michigan, Division No. 2.

March 5, 1974.

Released for Publication April 3, 1974.

James R. Neuhard, State Appellate Defender, Detroit, 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 DANHOF and ALLEN, JJ.

ALLEN, Judge.

Two cases were consolidated and tried before a jury which, in case 16288, found defendant guilty of breaking and entering with intent to commit felonious assault, M.C.L.A. § 750.110; M.S.A. § 28.305, and in case 16287 found defendant guilty of assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279. Defendant received respective concurrent sentences of 5 to 15 years and 5 to 10 years in prison and appeals.

On the evening of April 8, 1972, Cassandra Cleveland was having a birthday party in her apartment. At about 9:00 p.m., defendant, an uninvited guest, arrived at the party and remained for about an hour. After an argument with Cassandra's sister, defendant was directed to leave the party. The party continued until the early morning hours of April 9, 1972. At about 5:00 a.m. on that day, Cassandra responded to a knock on the kitchen door. She opened the door, recognized defendant, slammed the door shut and locked it. With the assistance of Eugene Harris, Cassandra returned to the back door, unlocked it, and noticed that defendant was holding a gun. She and Harris slammed the door. Defendant broke the full-length glass window located in the door, and pointed his gun at Cassandra. She grabbed the barrel of the gun, diverting it away from herself. The gun discharged, and Harris pushed her to the floor. Defendant then fled.

At the time of the incident, Harris, Cassandra, and James Taylor, Jr., Cassandra's father, were in the kitchen. Mr. Taylor corroborated his daughter's testimony, and identified defendant as the assailant. While Harris was indorsed on the information as a res gestae witness pursuant to defendant's motion on the first day of trial, he was not produced at trial. His production was excused by the trial court on the alternate grounds that due diligence had been shown and that Harris' testimony would have been cumulative.

Responding to a radio call regarding the incident, Ypsilanti police officers arrived at Cassandra Cleveland's apartment at approximately 5:10 a.m. They took down the names of those people present, including that of Harris. This event occurred on April 9, 1972, and trial was not held until October 17, 1972.

While on the back porch looking for empty shell casings, one officer observed defendant standing near a building located across the parking lot, saw defendant raise a gun to his shoulder, saw a muzzle flash, heard a shot being fired, and then heard a bullet ricochet off the metal clothes pole located about ten feet from the rear door. The second officer also observed defendant pointing his gun and discharging it toward the officers. Defendant fled in an automobile and was unsuccessfully pursued by the officers.

About one hour later, defendant was located at Patricia Taylor's duplex apartment. Ms. Taylor was unrelated to the other Taylors involved in the above incident. She let the officers into her home and they saw defendant lying on the living room couch. The officers grabbed him, a brief struggle ensued, and defendant was arrested. The officers found that defendant had been lying upon a sawed-off .22-caliber rifle. A .25-caliber automatic pistol was found in defendant's pocket. The officers also discovered a clip for a .22 rifle and a live .22 shell under a couch cushion.

A spent .22-caliber shell casing was located near the area from which defendant had fired upon the officers. This shell later proved to have been fired from the gun found in defendant's possession at the time of his arrest. Three live .22 shells were also found near the rear door to Cassandra Cleveland's apartment.

Defendant testified that after leaving the party, he returned to Cassandra's apartment and knocked on the kitchen door. He said that it was opened, slammed in his face, and that the glass broke. Defendant said that as he was walking away, he heard a gunshot and ran towards Patricia Taylor's residence.

At the beginning of the first day of trial, defense counsel moved to have Eugene Harris indorsed on the information as a res gestae witness. After the prosecutor told the trial court that Harris had not been located, the trial court ordered Harris to be added as a res gestae witness, and instructed the police officers to exercise due diligence in locating him. A hearing in the absence of the jury disclosed the following efforts to locate Harris:

Officer Stenning said that shortly before trial, he went to Harris' Sheehan Drive address with a subpoena and was told by a neighbor that Harris had moved. He said that he 'did some running around' and checked with various people in the neighborhood. He then discovered Harris' telephone number and testified that he 'made contact with a female' who supposedly told the officer that she would contact Harris regarding the case.

However, Harris never made any contact with the police officer. The officer received no response when he telephoned the above telephone number on the first day of trial. He said that he had made repeated attempts to contact someone at that number, but that no one had answered the phone. Other witnesses supposedly told the officer that Harris had moved from the Sheehan Drive address.

Officer Stenning stated that the Ypsilanti Police Department had a 'double entry type of (telephone) directory' but that he did not use this directory to locate the address which corresponded to the telephone number. He stated that he had failed to contact the telephone company to determine if there was a new listing for a Eugene Harris, and that he had relied upon the person who answered the phone and who had told him that she would contact Harris. Officer Stenning failed to check the hospitals or jails to see if Harris could be located therein.

The circuit judge found that the people had sued due diligence in an attempt to locate Harris, and that in any event, his testimony would have been cumulative. The circuit court ordered the prosecutor to give defense counsel the telephone number to which the police officer had referred. The officer was directed to use the double entry telephone book to determine the address at which the telephone number was located. The trial court felt that defense counsel could exercise the '* * * subpoena power to subpoena the witness if he wishes'.

After the noon recess on that second day of trial, Officer Adams said that he had used the double entry telephone book and found that the number was listed to Sue Johnson, 1440 Pear Street, Ann Arbor. Officer Adams went to that address, discovered Sue Johnson's name on the mailbox, as was the name of Eugene Harris. The officer contacted various neighbors, and discovered that Harris was not known in the area. The landlord was contacted, and Officer Adams found that Harris was not listed as a tenant. The circuit court judge then 'reaffirmed' its earlier ruling that the people had exercised due diligence in an attempt to locate Harris. The prosecutor was then excused from presenting Mr. Harris as a witness and defendant claims this was error.

A trial court's decision to excuse the people from producing a res gestae witness will not be reversed unless there is a clear abuse of the trial court's discretion. People v. Bersine, 48 Mich.App. 295, 302, 210 N.W.2d 501 (1973). Our Court must determine whether the trial court abused its discretion in view of defendant's right to a fair trial. People v. Harrison, 44 Mich.App. 578, 585, 205 N.W.2d 900 (1973). The people have argued that the trial court did not abuse its discretion, and that defendant had failed to make a timely request to have Mr. Harris indorsed.

Contrary to the people's assertions, defense counsel made a timely request to have Mr. Harris indorsed and produced as a res gestae witness. Defendant has not waived any objection as far as this issue is concerned. People v. Harrison, 44 Mich.App. 578, 586--587, 205 N.W.2d 900 (1973). Defense counsel's request came at the very beginning of the first day of trial, and was not met with an argument by the prosecutor that the request was something less than timely.

Generally, all res gestae witnesses must be indorsed on the information and produced for examination at trial. M.C.L.A. § 767.40; M.S.A. § 28.980. Two relevant exceptions to this rule are that production may be excused on a showing of due diligence in an attempt to locate and produce the witness, and production may be excused where the testimony of the witness would be merely cumulative. People v. Bennett, 46 Mich.App. 598, 619, 208 N.W.2d 624 (1973), lv. to app. granted, 390 Mich. 772 (1973). The record before us does not establish the use of due diligence in an effort to locate and produce Harris, nor does it establish that his testimony would have been merely cumulative.

However, rather than to order what might turn out to be a 'useless new trial', but to 'avoid a possible miscarriage of...