People v. Johnston

• Decision Date: 20 June 1977
• Docket Number: Docket No. 27382
• Citation: 256 N.W.2d 782,76 Mich.App. 332
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James M. JOHNSTON, Defendant-Appellant. 76 Mich.App. 332, 256 N.W.2d 782
• Court: Court of Appeal of Michigan — District of US

Page 782

256 N.W.2d 782

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James M. JOHNSTON, Defendant-Appellant.

Docket No. 27382.

76 Mich.App. 332, 256 N.W.2d 782

Court of Appeals of Michigan.

June 20, 1977.

Released for Publication Aug. 18, 1977.

[76 MICHAPP 334] Ellen C. Wallaert, East Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Craig L. John, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P. J., and BASHARA and WILLIAM F. HOOD, ^* JJ.

WILLIAM F. HOOD, Judge.

Defendant was charged in a single count information with the crime of carnal knowledge by force of a female over the age of 16 years, M.C.L.A. § 750.520; M.S.A. § 28.788 repealed by 1974 P.A. 266, effective April 1, 1975. The date of the offense was March 9, 1975.

Following defendant's conviction and sentence, appellate counsel was appointed, which counsel filed a motion for a new trial and, following denial of such motion, brought this appeal as of right.

Defendant raises four issues, which will be discussed separately.

1. Did the trial court reversibly err in limiting defense counsel's cross-examination of the complaining witness regarding a civil suit brought by the complainant?

[76 MICHAPP 335] The defendant was the assistant manager of an apartment complex in which the complainant resided and where the alleged attack took place. While the complainant was being cross-examined, the following occurred:

"Q. (by Mr. Wieferman, Defense Counsel ) Isn't it true that you are suing Mr. Johnston for $500,000.00?

"MR. ROBERTS: (Assistant Prosecuting Attorney ): Objection, your Honor.

"THE COURT: Sustain the objection.

"THE WITNESS: No.

"THE COURT: Witness, when there is an objection don't answer the question until I rule on the objection.

"MR. WIEFERMAN: Your Honor, I think that question goes directly to the

"MR. ROBERTS: (Interposing) Excuse me, counsel. If the counsel is going to argue the case, it should be without the jury.

"THE COURT: I already sustained the objection."

Later, defense counsel pursued the same line of questioning:

"Q. Didn't you decide that you wanted to blame this on Mr. Johnston, so you could sue the apartment complex where he works?

"MR. ROBERTS: Again, your Honor, the same objection.

"THE WITNESS: No.

"THE COURT: Well, he is directing these questions for the purpose of testing her credibility and for that reason, I will take the answer and the answer is no.

"Q. (By Mr. Wieferman, continuing): You are suing the apartment complex in this case, aren't you?

"A. For what reason?

"Q. For money.

"A. That is not a reason.

"Q. Did you or did you not file a civil complaint?

"A. Yes.

[76 MICHAPP 336] "Q. Against the apartment complex?

"A. Yes, but not just because of this.

"Q. You are asking for $500,000.00 in this case?

"MR. ROBERTS: Your Honor, you ruled on this.

"THE COURT: I don't think that is pertinent, counsel, and I am going to sustain the objection."

It is a well-settled rule of law in Michigan that where civil actions have been commenced on the same matter as the action being tried, it is reversible error for the trial court to refuse to allow inquiry and argument regarding such connected action since the bias or interest of a witness is a proper subject of inquiry. People v. Field, 290 Mich. 173, 287 N.W. 422 (1939); People v. Drolet, 157 Mich. 90, 121 N.W. 291 (1909); People v. Richmond, 35 Mich.App. 115, 192 N.W.2d 372 (1971).

As above noted, however, defendant's counsel succeeded in getting before the jury the fact that complainant had indeed started suit against the apartment complex. Moreover, the trial transcript shows that, without objection, defense counsel referred to the civil suit in his summation when he was discussing reasons why the complainant might have fabricated her accusation against the defendant.

The scope of cross-examination of witnesses to show bias or interest rests in the sound discretion of the trial court and an appellate court will not reverse, absent a clear showing of abuse. Richmond, supra, at 121, 192 N.W.2d 372. Although more latitude in the cross-examination of the complaining witness on this subject would have been preferable, we hold that, since defense counsel did succeed in showing the evidence of the civil suit, and was permitted to argue the effect of such suit on complainant's credibility, reversible error did not occur.

[76 MICHAPP 337] 2. Was there error because the prosecution failed to indorse as witnesses and produce at the trial certain persons claimed to be res gestae witnesses?

One of such witnesses was the physician who examined the complainant at a hospital the morning of the alleged offense. It has been held in this state that the results of examination by a physician of a victim following a rape are part of the res gestae and essential to the case. People v. Dickinson, 2 Mich.App. 646, 141 N.W.2d 360 (1966). The examining physician is a res gestae witness. People v. Crable, 33 Mich.App. 254, 189 N.W.2d 740 (1971); Dickinson, supra, 2 Mich.App. at 652, 141 N.W.2d 360. However, the waiver of production of a res gestae witness is a trial tactic within the province of counsel. People v. Johnson, 70 Mich.App. 349, 247 N.W.2d 310 (1976). The record in this case clearly indicates that immediately prior to the trial defense counsel waived the production of the examining doctor at the hospital, stipulating to the introduction of the hospital record itself. Defendant cannot now be heard to complain.

Defendant claims that plaintiff's parents should have indorsed and produced. The complainant testified that after defendant raped her and left her apartment she telephoned her father and asked him to come and get her. Her parents arrived in approximately 25 minutes and took her to the hospital. Her parents did not pick complainant up at her apartment. Rather, after defendant left, complainant got dressed and went out to her car to await her father's arrival.

A res gestae witness is broadly defined as a witness whose testimony is necessary to illuminate some important aspect of the case. People v. Jones, 38 Mich.App. 512, 196 N.W.2d 817 (1972). It would [76 MICHAPP 338] be stretching even this broad definition to find complainant's parents were res gestae witnesses. They were not present at the time and place of the crime; they did not view her apartment; plaintiff had altered her appearance before seeing them; and the parents had no independent knowledge of any of the facts surrounding the commission of the offense. They were, therefore, not res gestae witnesses, and indorsement and production were not required.

Defendant also claims error that the complainant's 6 1/2-year-old daughter was not indorsed and produced as a witness. The complainant testified that such daughter was present in claimant's apartment during the time of the rape. Complainant testified as follows:

"Q. (by Mr. Roberts ) What did he do?

"A. He chased me.

"Q. Did he catch you?

"A. He yeah, he came back behind me and dragged me back in the bedroom and I screamed

"Q. Where was your daughter?

"A. She was in her room sleeping. I was trying to keep quiet because I didn't want to wake her up and have her come in there, but when he did that I just panicked and screamed.

"Q. Was your daughter in the room at that time?

"A. She woke up. He drug me back in the bedroom and slammed the door and she woke up and she was beating on the door crying and said, 'I want to come in', and he was behind me with one arm on the door holding it shut and the other one at my throat and shoving me into the door, and Donna and she was crying and I said, 'Let me go to her.' He said, 'No. You get her out of here or it's all over for both of you.' And she kept crying and I told her to go to bed and

"Q. (Interposing) Where were you standing at that time?

[76 MICHAPP 339] "A. I was shoved up against the door.

"Q. In your daughter's room?

"A. No, mine. He drug me back to my room. She said, 'Can I turn on my light?' I said, 'Yes.' And she said, 'I don't want to go back to bed.' And I started yelling, 'If you don't go back to bed I'm going to spank you.' * * * And she was crying and I could hear her running and she got back in her bed and he was really mad at that point.

"Q. Did she finally go back to bed?

"A. I don't know if she ever went to sleep. She got in bed."

It is clear from complainant's testimony that the daughter slept in an adjoining bedroom during the time of the alleged rape; that the daughter woke up and may have seen or heard something that went on.

In People v. Tann, 326 Mich. 361, 40 N.W.2d 184 (1949), the Supreme Court found an abuse of judicial discretion on the part of the trial court for failing to require the indorsement and production of a witness who the prosecutor knew was outside the office door of a doctor charged with rape from the time the victim entered until she left.

The defendant did move for a new trial in this case, one of the grounds being the failure to indorse and produce complainant's daughter as a witness in the trial. At the hearing on such motion, however, the prosecutor did not produce the daughter for examination regarding her knowledge of the crime, as required by People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). This cause is, therefore, remanded to the trial court for a supplemental evidentiary hearing on defendant's motion for a new trial. At such evidentiary hearing, the daughter shall be produced and examined regarding her knowledge of the crime. The trial [76 MICHAPP 340] court shall determine whether her testimony would serve to illuminate an important aspect of the crime, or would merely be cumulative. If the former question is answered in the affirmative and the trial judge should decide that the child has sufficient intelligence and sense of obligation to testify under the mandates of M.C.L.A. § 600.2163; ...