People v. Jones, Docket No. 18385

CourtCourt of Appeal of Michigan (US)
Citation64 Mich.App. 659,236 N.W.2d 531
Docket NumberDocket No. 18385
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus J. JONES, Defendant-Appellant. 64 Mich.App. 659, 236 N.W.2d 531
Decision Date13 October 1975

[64 MICHAPP 660] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

[64 MICHAPP 661] Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.

V. J. BRENNAN, Presiding Judge.

Defendant Rufus J. Jones was convicted of delivery of heroin in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a) by a jury in Jackson County Circuit Court on August 8, 1973, and was sentenced on August 17, 1973, to 12 to 20 years in prison. He appeals as of right.

An informant, Gary Ile, arranged a meeting between defendant and Michael Robinson, an undercover agent for the Michigan State Police, to discuss the purchase of heroin. The meeting took place at Kresge's store in downtown Jackson at about 5 p.m. on March 12, 1973. Trooper Robinson was equipped with a body transmitter to enable two detectives of the Michigan State Police to monitor the conversations on a receiver in a parking lot a short distance away. During the meeting, which involved the informant, Robinson, defendant and one Zaheer Syed, a heroin purchase was negotiated, money was exchanged, and the defendant left to procure the heroin while Trooper Robinson waited. During this period one of the surveillance team, Detective Paul Whitford, left the scene leaving Detective Stuart Hampton to continue the surveillance alone. The defendant returned about 7 p.m. He and Trooper Robinson entered an automobile operated by the defendant and the defendant handed over a substance which was subsequently identified as heroin.

On or about March 20, 1973, Trooper Robinson attempted to purchase a larger quantity of heroin from the defendant. The defendant was paid $250 for material which was later determined to be a [64 MICHAPP 662] non-controlled substance. Defendant was arrested on March 30, 1973, for the March 12, 1973, delivery. When the defendant encountered Trooper Robinson at the county jail and realized that Robinson was an undercover agent, he allegedly said, 'when I get out of here you are a dead man', or words to that effect. Trooper Robinson testified that he retorted by saying that if it hadn't been for the rip off, the defendant would have been left on the street. On appeal, the defendant raises a number of issues, some of which merit discussion.

Defendant contends that it was reversible error for the trial court to refuse to indorse Detective Paul Whitford and Mr. Zaheer Syed as res gestae witnesses. Detective Whitford had assisted in the surveillance during the negotiation meeting at which Mr. Syed was present, but apparently had left prior to the actual delivery. Mr. Syed had not returned with the defendant for the delivery.

Determining what is to be considered as part of the res gestae is not without difficulty. The Michigan Supreme Court recognized the problem and discussed it at some length in People v. Kayne, 268 Mich. 186, 192, 255 N.W. 758, 760 (1934).

"No inflexible rule has ever been and probably one never can be, adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto, but it may be stated as a fixed rule that included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.' Chicago & Erie Ry. Co. v. Cummings, 24 Ind.App. 192, 209, 53 N.E. 1026, 1031.'

In the case at bar the prosecutor chose to charge the defendant with Delivery, and contended that [64 MICHAPP 663] the witnesses to the exchange of money some two hours prior to delivery were not res gestae witnesses. We disagree. The prosecutor could have produced proofs that the defendant came to a certain place and delivered a quantity of heroin to a certain party without going into any of the facts leading up to that transaction and made out a prima facie case of a violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Assuming without deciding that in that event the exchange of money prior to delivery of the substance would not constitute part of the res gestae, that is not the situation in the instant case. The prosecutor chose to put in evidence showing the negotiation and sale prior to delivery, and we think that he cannot then be heard to argue that he need not produce other witnesses to that event because those facts and circumstances are no part of the Res gestae. See People v. Skowronski, 61 Mich.App. 71, 232 N.W.2d 306 (1975). The question still remains, however, whether the court's refusal to indorse the names of the two witnesses to the negotiation and sale constitutes reversible error.

The prosecutor may not select a part of a transaction to make out his case against a criminal defendant, leaving to the defendant the proof of the other part. Hurd v. People, 25 Mich. 405, 415 (1872). This rule seeks to protect the accused against suppression of evidence favorable to him and to give him the benefit of cross-examination. People v. Raider, 256 Mich. 131, 135, 239 N.W. 387 (1931). It is thus well established in this state that a prosecutor must indorse and call all res gestae witnesses, but the rule has a number of exceptions. See 1 Gillespie, Michigan Criminal Law & Procedure (2d Ed.), § 343, pp. 416--418.

The Michigan Supreme Court reversed a conviction in People v. Castelli, 370 Mich. 147, 121 N.W.2d [64 MICHAPP 664] 438 (1963), for the failure of the prosecution to call a res gestae witness to a robbery, where neither the defendant nor his counsel had heard of the witness until trial, and where there was a clear indication that the witness would give testimony favorable to the defendant. The Court said:

'Inasmuch as identity of the robber was a major issue in the case, the testimony of every witness who could describe him was of utmost importance. If, as the police report indicates, the description by one not called as a witness would be in conflict with that of those who did testify, defendant was entitled to the benefit thereof before the jury. Her testimony would not have been merely cumulative.' Castelli, supra, at 155, 121 N.W.2d at 442.

In the case at bar, Detective Whitford has been indorsed originally by the prosecution, so there was no issue of the suppression of evidence. Further, there is every indication that his testimony would have been cumulative. Defendant contends that he was misled by the motion of the prosecutor to strike Whitford's name as a res gestae witness, arguing that he did not oppose the motion because, as he understood an affidavit of Whitford, the witness was out of town during the entire transaction. We note that the affidavit in question was careful to state that the witness was out of town during the Delivery, but we can see how this could have misled defense counsel. Even if we concede that defense counsel could have been misled by the prosecutor, however, such would require that we assume that defense counsel had not contacted Detective Whitford prior to trial to find out what he knew. We are unimpressed by defendant's claim of unfair surprise.

Whatever may have been the maneuvers of prosecution or defense in this matter, it is clear [64 MICHAPP 665] that the defendant could not have been prejudiced by the failure of the prosecution to call the two res gestae witnesses. The defendant's sole defense was entrapment, which he attempted to establish by showing repeated encounters with the informant who constantly 'bugged' him about getting him some heroin. There was no dispute, however, about the facts of the March 12 meeting where the sale was negotiated. An exchange between the defendant and defense counsel on direct examination is illustrative of the posture of the defense.

'Q. Around what time was it that you arrived at Kresge's?

'A. About 5 minutes to 5.

'Q. Now, you heard the officers testify to the conversation. Is that what occurred?

'A. Yes.

'Q. Is your recollection of that conversation any different?

'A. No.

'Q. Who was present during that conversation?

'A. Me, I met Michael Robinson at that conversation. Gary Ile, and Syed, Mr. Syed.

'Q. Who introduced you to Mr. Robinson?

'A. Gary Ile.

'Q. And, what did he say with regard to Mr. Robinson? How did he introduce him?

'A. He said 'this is my partner, the one that I have been talking about.'

'Q. Now, tell me what happened after--tell the Ladies and Gentlemen of the Jury, what happened after the introduction.

'A. Me and Mr. Robinson went to talking about what was the price for a spoon of heroin in Jackson, and how much he was willing to pay for it, and then I told him that I could get him a spoon for fifty dollars, and he told me that he couldn't give me all the money, because the price was too steep, and they had just been ripped off about a week or two weeks before that. So, I poured [64 MICHAPP 666] out $17.00 out of my pocket, and told him if he give me $33.00 I would use my 17, and bring him back the spoon of heroin.

'Q. Did you in fact go upon this errand?

'A. Yes.'

It is readily apparent that this encounter does not contain any allegations which bear on defendant's theory of entrapment. Choosing to admit the details of the negotiation and sale, defendant places sole reliance on accounts leading up to that meeting to show that he was seduced into the act by the constant 'bugging' of the informant. The two res gestae witnesses were not present on those occasions, and thus had nothing to contribute on that point.

'* * * it is the duty of the prosecuting attorney to call all eyewitnesses or...

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