People v. Keys

• Decision Date: 19 March 1968
• Docket Number: Docket No. 2008,No. 1,1
• Citation: 9 Mich.App. 482,157 N.W.2d 419
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John KEYS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 419

157 N.W.2d 419

9 Mich.App. 482

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John KEYS, Defendant-Appellant.

Docket No. 2008.

Court of Appeals of Michigan, Division No. 1.

March 19, 1968.

Released for Publication April 10, 1968.

Rehearing Denied May 31, 1968.

Fred G. Burton, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and LEVIN and VANDER WAL, ^* JJ.

VANDER WAL, Judge.

Defendant was charged with felonious assault on Clayton Richardson with a revolver contrary to C.L.1968, § 750.82 (Stat.Ann.1962, Rev. § 28.277). The source of the dispute was defendant Keys' intimate personal relationship with Jo Anne Julian, daughter of Elizabeth Richardson by a previous marriage and wife of Dallas Julian. Jo Anne's family apparently did not approve of her relationship with defendant Keys.

At trial there was conflicting testimony as to who was present when the shot was fired. According to Clayton Richardson, complaining witness and stepfather of Jo Anne Julian, the gun, immediately before it was fired, was aimed directly at him. Richardson's testimony was substantially corroborated by that of two Res gestae witnesses, his wife Elizabeth and his daughter-in-law, Juanita Marlow, the wife of Raymond Marlow.

Defendant Keys testified that he fired the revolver into the air on the driver's side of his automobile in order to defend himself against Raymond Marlow, the son of Elizabeth Richardson by a previous marriage and stepson of the complaining witness. Defendant's story that Raymond was approaching with two butcher knives in his hands was supported by the testimony of Brenda McCullough who was seated beside defendant Keys in his automobile when the shot was fired. Her testimony was that the shot was fired across her and out the window on her side of the automobile, but that it was fired into the air rather than directly at anyone.

The case was tried on two diametrically opposed theories. The people claimed that the assault was made upon one Clayton Richardson and the defense claimed that no assault was made upon Richardson, but that if an assault was made, it was made upon one Raymond Marlow and in self-defense.

On appeal the defendant seeks reversal of the trial court judgment and either a new trial or a court order for the entry of a verdict of not guilty. Appellant raises two issues for our consideration:

1. Did the prosecutor's failure to indorse and call Raymond Mafrlow as a Res gestae witness deny the accused his right to be protected against false accusation?

2. Did the trial court err in instructing the jury that the defense of self-defense was not available to the appellant?

The legislature has spoken concerning the first issue.

'All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.' C.L.S.1961, § 767.40 (Stat.Ann.1965, Cum.Supp. § 28.980).

Defendant made no showing on the record that the prosecuting attorney at the time of filing the information knew that Raymond Marlow was a Res gestae witness. It is clear from the statute, therefore, that the indorsement of Raymond Marlow as a Res gestae witness after the information was filed was solely a matter of judicial discretion. We quote the controlling case of People v. McCrea (1942), 303 Mich. 213, 272, 6 N.W.2d 489, 512: 'The test to be applied in the present case is whether the trial court abused its discretion in ordering the names of certain witnesses, alleged to be Res restae witnesses, to be indorsed on the information after filing.' The Court in that case quoted with approval People v. Blue (1931), 255 Mich. 675, 678, 239 N.W. 361, 362, to the following effect:

"Under the Code, The indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances. * * * The ultimate question, on review, Is whether the court abused its discretion, with the burden ordinarily on the party asserting abuse." (Emphasis added.)

See, also, People v. Jackson (1947), 318 Mich. 506, 509, 28 N.W.2d 890 and People v. Tamosaitis (1928), 244 Mich. 258, 261, 221 N.W. 307.

Defendant in the instant case fails in his burden of showing an abuse of judicial discretion. It appears from the record that defendant Keys made no statutement to the prosecuting attorney and waived preliminary examination. The prosecutor learned of the presence of Brenda McCullough at the scene only after the trial had begun. In his opening statement defense counsel did not mention Raymond Marlow's name and failed to make a motion for his indorsement as a witness at any time during the trial. The first 2 witnesses for the prosecution did not testify to facts placing Raymond Marlow at the scene. There is nothing on the record to indicate that the prosecuting attorney and the court did not learn of Raymond Marlow for the first time late in the trial when Juanita Marlow testified that Raymond Marlow had gone to the Julian home also. Brenda McCullough testified that defendant Keys was defending himself against Raymond Marlow.

After defendant Keys also testified to facts placing Raymond Marlow at the scene, the prosecutor and the court were faced with conflicting testimony upon which a conclusion of fact was to be based. On appeal we cannot concern ourselves with the judgment of the prosecutor. If the court decided that Raymond Marlow was not an eyewitness, it was not compelled to order his indorsement on the information. The only evidence to substantiate defendant's own testimony placing Raymond Marlow at the scene was the word of defendant's teen-age girl friend whose story did not coincide in certain important details with that of defendant. It is not established upon the record that Raymond Marlow was a Res gestae witness. It was not error, therefore, to fail to indorse his name upon the information and call him as a Res gestae witness. Ultimately, of course, it was for the jury to determine against whom force was offered. Considering the diametrically opposed testimony, it is clear from the jury's verdict that the jury did not believe that Raymond Marlow was at the scene of the offense; this Court cannot and will not interfere with any supported factual determination by the jury.

There is reason to believe from the record that although the prosecuting attorney was unaware that the defendant would claim as a defense that his altercation was with Marlow and not Richardson, nevertheless, defense counsel had full knowledge concerning Raymond Marlow's alleged presence at the scene after interviewing his client, Keys, because that was his whole defense. Yet, counsel for defense never made a motion to require the indorsement on the information. No motion was ever made to require the prosecutor to produce Raymond Marlow. The defendant never subpoenaed Raymond Marlow nor called him as a witness in his own behalf although he had an established right to do so. Immediately after Brenda McCullough's testimony which placed Raymond Marlow at the scene, the following colloquy took place out of the hearing of the jury when counsel approached the bench:

'Mr. Laster: I have discussed with counsel relative to producing the balance of the witnesses listed on the information, namely David Mason, Merle Harrington, Glenn Apers, Edward Rea, Robert Carr, Keith Chesney, Robert Green, Walter Lorkowski, and Raymond Garstecki. All of these are police officers.

'Mr. Polk: And none of them are eyewitnesses?

'Mr. Laster: No eyewitnesses.

'The Court: Who is Merle Harrington?

'Mr. Laster: He is here. He is the one sitting there.

'The Court: I have a hard time with names. Who did she say?

'Mr. Laster: She said Raymond Marlow.

'The Court: Isn't here?

'Mr. Laster: No. The husband of Juanita Marlow.

'The Court: Raymond?

'Mr. Laster: Yes.

'The Court: Okay.

'Mr. Polk: We will waive them.

'The Court: Now, when the jury is gone I am going to ask your client if he waives these people.

'Mr. Polk: Yes. I know what you mean.

'The Court: All right.'

Defendant is precluded by his own express waiver at trial from complaining of any failure to indorese or produce Raymond Marlow.

Where the record fails to affirmatively establish that the prosecuting attorney had any knowledge of the identity of a person alleged to be an eyewitness to the crime, particularly when there has been no conclusive showing on the record that such person was, in fact, a Res gestae witness and defendant has made no motion to have the alleged witness indorsed upon the information nor called such witness on his own behalf, the failure of the court to order the indorsement on its own motion does not constitute an abuse of judicial discretion. People v. McCrea (1942), 303 Mich. 213, 267--275, 6 N.W.2d 489; People v. Kynerd (1946), 314 Mich. 107, 113--116, 22 N.W.2d 90; People v. Bartlett (1945), 312 Mich. 648, 653--656, 20 N.W.2d 758; People v. Jackson (1947), 318 Mich. 506, 508, 509, 28 N.W.2d 890; People v. Mangiapane (1922), 219 Mich. 62, 68, 188 N.W. 401; People v. Todaro (1931), 253 Mich. 367, 370, 235 N.W. 185; People v. Hoffman (1908), 154...