People v. King, Docket No. 15731

• Decision Date: 02 November 1973
• Docket Number: Docket No. 15731,No. 1,1
• Citation: 213 N.W.2d 597,50 Mich.App. 487
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas R. KING, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 597

213 N.W.2d 597

50 Mich.App. 487

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas R. KING, Defendant-Appellant.

Docket No. 15731.

Court of Appeals of Michigan, Division No. 1.

Nov. 2, 1973.

Released for Publication Jan. 15, 1974.

Gerald M. Lorence, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Gerald A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and R. B. BURNS and QUINN, JJ.

R. B. BURNS, Judge.

At approximately 2:15 a.m. on June 2, 1972, the automobile in which defendant was one of three passengers was stopped by two Detroit police officers for failing to obey a stop sign. One of the officers claims that, while approaching the stopped automobile, he observed defendant, who was seated next to the driver, insert something into a purse being held by the driver, defendant's sister. The officer seized the purse and found in it a .45-caliber automatic. Defendant, the driver, and two other passengers were arrested for carrying a concealed weapon in an automobile contrary to M.C.L.A. § 750.227; M.S.A. § 28.424. A search of the automobile located a clip of live ammunition wedged between the cushions of the backseat.

Eventually, the charges against everyone except defendant were dropped. At defendant's bench trial the only witnesses presented by the prosecution were the two arresting officers. The officer who claims to have seen defendant handle the gun testified as to his observations. The other officer candidly admitted that, from where he was standing, he could not see defendant's actions in the car. The driver testified for the defense that she had placed the gun in her purse and that defendant had, at no time, handled the gun. An adjournment was then granted to allow defense counsel time to locate a second defense witness, Grady Dixon, one of the two backseat passengers. The next morning the court was advised that Dixon could not be located, and defense counsel demanded an explanation why Dixon had not been endorsed as a res gestae witness. The prosecutor argued that Dixon was not a res gestae witness because he denied any knowledge of the presence of a gun in the automobile. The court ruled that Dixon was not a res gestae witness and that, therefore, his endorsement and production were excused. The defense rested. Defendant was found guilty as charged.

Defendant now appeals, claiming that it was reversible error not to require the prosecution to endorse Grady Dixon as a res gestae witness and then produce him at trial as a prosecution witness--or satisfactorily explain his absence. The prosecution responds that it was under no obligation to endorse and produce Dixon because either he is not a res gestae witness or he is an accomplice. Thus, the issues are framed: (1) Who is a res gestae witness? and (2) Who is an accomplice?*

Generally speaking, the endorsement of witnesses is a matter within the discretion of the trial court. However, the discretion thus entrusted to the trial judge is not without limits; it must be exercised with due regard to the defendant's right to a fair trial. Consequently, this Court will review a trial court's action to determine whether such discretion has been abused. People v. Tamosaitis, 244 Mich. 258, 221 N.W. 307 (1928); People v. Costanza, 306 Mich. 415, 11 N.W.2d 10 (1943); People v. Lakin, 30 Mich.App. 441, 186 N.W.2d 867 (1971).

Our research has discovered two cases which we find particularly instructive: People v. Tann, 326 Mich. 361, 367, 40 N.W.2d 184, 186 (1949), and People v. Brown, 35 Mich.App. 173, 192 N.W.2d 337 (1971).

In People v. Tann, Supra, a physician was convicted of having raped a woman while examining her preparatory to performing forming an abortion. The conviction was reversed because the prosecution failed to endorse and produce as a res gestae witness another woman who was in an adjoining room during the alleged rape. Although the door between the rooms was slightly ajar, there was no indication in the opinion that the witness saw what transpired in the next room. Nonetheless, her endorsement was required because '(s)he was in a position to give evidence of some of the events that occurred from the time Frances Lessard entered Dr. Tann's office until she lef...