People v. Jones, Docket No. 20003

• Citation: 65 Mich.App. 619,237 N.W.2d 584
• Decision Date: 14 November 1975
• Docket Number: Docket No. 20003
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sidney JONES, Defendant-Appellant. 65 Mich.App. 619, 237 N.W.2d 584
• Court: Court of Appeal of Michigan — District of US

Page 584

237 N.W.2d 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sidney JONES, Defendant-Appellant.

Docket No. 20003.

65 Mich.App. 619, 237 N.W.2d 584

Court of Appeals of Michigan.

Nov. 14, 1975.

Released for Publication Jan. 30, 1976.

[65 MICHAPP 620] McCallum & Ziolkowski by Robert L. Ziolkowski, East Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Barry J. Siegel, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and BRONSON and T. M. BURNS, JJ.

PER CURIAM.

Defendant was found guilty by a jury of felonious assault, contrary to M.C.L.A. 750.82; M.S.A. 28.277. He was sentenced to a term of from 32 months to four years in prison, and appeals by right.

Defendant contends for the first time on appeal that the prosecutor's remarks during the closing arguments impermissibly infringed upon defendant's[65 MICHAPP 621] right to refuse to testify. The prosecutor merely stated that certain evidence was uncontradicted. Such a statement was permissible and did not affect defendant's right to remain silent. People v. Balog, 56 Mich.App. 624, 629, 224 N.W.2d 725 (1974), People v. Sullivan, 290 Mich. 414, 287 N.W. 567 (1939), People v. Hammond, 132 Mich. 422, 93 N.W. 1084 (1903).

Defendant also argues that the prosecutor committed reversible error by failing to indorse and produce an alleged res gestae witness. That issue is not preserved for review here, as defendant failed to make a motion for a new trial. People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106 (1973), People v. Lovett, 63 Mich.App. 656, 234 N.W.2d 749 (1975).

Finally, defendant claims that the trial judge committed reversible error by excusing the prosecutor's failure to produce two indorsed res gestae witnesses. Although defendant made no motion for a new trial we find this issue to be preserved for appeal. People v. Robinson, supra, speaks broadly of the necessity for a new trial motion when challenging the prosecutor's failure to produce a res gestae witness whether indorsed or unindorsed. Yet Robinson involved a case where no mention of this issue was made at trial. We hold that the Robinson requirements are satisfied when the defendant, as here, objects at trial to the prosecutor's failure to produce a res gestae witness, and evidence is taken on that question. That result is in keeping with the holding of another panel of this Court in People v. Lovett, supra, that a motion for mistrial at the close of the prosecution's proofs, when an evidentiary hearing is held, preserves this issue for appeal.

The trial judge ruled that the prosecutor had [65 MICHAPP 622] exercised due diligence in an attempt to locate the two missing witnesses. We agree. The record shows that the day following the alleged assault upon the complaining witness in his apartment, the police went to the apartment down the hall where the two witnesses lived. The police were unable to find anyone at home, and they left a card for the witnesses to contact the police.

One of the two witnesses appeared at the police station the next day, and talked to the police officer in charge of the investigation. That witness told him that she was moving, and gave him her new address. However, when the police attempted to contact the witnesses at a later date prior to trial, the occupants at the new address knew nothing of these witnesses. The postal authorities were contacted, but they had no listing of the new address as a forwarding address. A subpoena was issued and returned unserved at some...