People v. Lakin

• Decision Date: 16 February 1971
• Docket Number: No. 1,Docket No. 7462,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Patrick LAKIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 867

186 N.W.2d 867

30 Mich.App. 441

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Patrick LAKIN, Defendant-Appellant.

Docket No. 7462.

Court of Appeals of Michigan, Division No. 1.

Feb. 16, 1971.

Released for Publication May 20, 1971.

Robert M. Hetchler, Detroit, for defendant-appellant.

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

Before V. J. BRENNAN, P.J., and McGREGOR and AGER, ^* JJ.

AGER, Judge.

Defendant was convicted by a jury of larceny in a building, M.C.L.A. § 750.360 (Stat.Ann.1954 Rev. § 28.592), and sentenced to a term of 2 1/2 to 4 years.

Defendant was charged with stealing a coat and four pairs of socks in the K-Mart Department Store in the city of Detroit. A store defective testified that she observed the defendant put on a coat taken from the K-Mart racks and attempt to leave the store without paying for it. She arrested the defendant and took him to her office in the store. At the opening of the trial the court granted the prosecutor's motion to indorse on the information the name of a witness, Kathleen Lowrey, who was an employee of K-Mart. She testified that she was behind the defendant when he was following the store detective to her office and that she observed the defendant throw certain socks into a Christmas display.

Defendant raises three claims of error.

Defendant first claims that the trial court erred in permitting the People to indorse the name of Kathleen Lowrey on the information. Just before the jury was drawn the following conversation took place:

'MR. REGNIER: (Assistant Prosecutor) If the Court please, at this time the People will move to indorse to the list of witnesses on the information the name of Kathleen Lowrey, L-o-w-r-e-y, who is a store employee at K-Mart.

'THE COURT: Any objection?

'MR. LAKIN: (Defense counsel of the same name as defendant) Well, I would normally, I would object at this late date. We are about to start the trial. I don't know who the witness is and the exact effect on the case.

'THE COURT: Draw the jury and you can have time to talk to him and find out.'

It appears from the record that defendant's attorney had an opportunity to talk to the witness after the jury was impaneled and no further objection was made at any time during the trial to the indorsement of this witness's name or to the witness's testifying. The defendant's attorney did not request any further time to prepare his case because of the late indorsement of this witness's name, nor did he show (or for that matter even claim) that the defendant suffered any prejudice because of the late indorsement of this witness's name at the time of trial.

A trial court is given authority by statute to permit the indorsement of additional names of witnesses to the information before or during the trial. ¹ The question before this Court is whether the trial court abused its discretion, with the burden ordinarily on the party asserting the abuse. People v. Blue (1931), 255 Mich. 675, 239 N.W. 361. The action of the trial judge in the present action was within the discretion given to him under the statute. It is fundamental that such discretion must be exercised with due regard to the protection of the right of the defendant to prepare a defense and be accorded a fair trial. However, any claimed error in this respect is to be reviewed upon the showing made in the light of the circumstances. People v. Blue, Supra. No specific instance of any miscarriage of justice has been shown, nor for that matter claimed, in the instant case. M.C.L.A. § 769.26 (Stat.Ann.1954 Rev. § 28.1096) provides:

'No judgment * * * shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of * * * improper admission * * * of evidence, or for error as to any matter of * * * procedure, unless in the opinion of the Court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.'

The admission of the testimony of the previously unindorsed witness did not result in a miscarriage of justice.

The defendant was not surprised or prejudiced by the action of the court. The record discloses no objection to the testimony nor a request for a continuance. Where a defendant does not request a continuance, the trial judge may properly assume that a continuance was not desired. People v. Ranney (1908), 153 Mich. 293, 116 N.W. 999. The court had no duty on its own motion to grant a continuance or to require a showing justifying indorsement when neither a continuance nor a showing was requested by counsel for appellant. There was no showing that defendant's counsel did not have all the imformation that compliance with the procedure now demanded by defendant's attorney would have provided him. There was no showing, or claim, that the name of the witness was intentionally omitted from the information at the time of indorsement.

A defendant should not be permitted to decide to proceed with trial, without firmly and unequivocally objecting to the indorsement of a witness and to the witness testifying, hoping to be acquitted, but then later objecting if he guesses wrong and is convicted.

'It has been said on good authority that 'It is only in furtherance of good practice to hold that a defendant who chooses to take the chances of an acquittal on the...