People v. Lawton

• Decision Date: 19 October 1992
• Docket Number: 130998,Docket Nos. 121200
• Citation: 196 Mich.App. 341,492 N.W.2d 810
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus LAWTON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilbert E. CANNON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 810

492 N.W.2d 810

196 Mich.App. 341

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus LAWTON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilbert E. CANNON, Defendant-Appellant.

Docket Nos. 121200, 130998.

Court of Appeals of Michigan.

Submitted June 17, 1992, at Detroit.

Decided Oct. 19, 1992, at 9:40 a.m.

Released for Publication Dec. 21, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Brian D. Marzec and Carolyn M. Breen, Asst. Pros. Attys., for the People.

Gerald S. Surowiec, Farmington Hills, for Marcus Lawton.

Craig A. Daly, Detroit, for Wilbert E. Cannon.

Before JANSEN, P.J., and MICHAEL J. KELLY and CORRIGAN, JJ.

CORRIGAN, Judge.

Marcus Lawton and Wilbert E. Cannon were each convicted in separate trials of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, three counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Both were sentenced to one to four years for felonious assault and to two years for felony-firearm. Cannon was sentenced to eight to twelve years for each of the three counts of assault with intent to murder, while Lawton was sentenced to ten to twelve years for each of the same offenses. On their consolidated appeals as of right, we affirm.

Lawton was arrested and charged along with codefendant Kines Glover, but tried alone before a judge in June 1989. Glover's case was severed when he was seriously injured in a firebombing shortly before trial. When victim Reynard May arrived at Lawton's trial, he saw Cannon outside the courtroom and identified him as one of the shooters. Defendant Cannon On January 17, 1989, Reynard May and "James" or "J.D." were working on an automobile parked in front of the home of Reynard's brother on Dwyer Street in Detroit. A brown Ford Thunderbird drove up and parked behind them. Defendant Cannon was driving; Lawton and Glover were passengers. All three men left the car, displaying guns. Glover forced Reynard May to the side door of the house, while "James" fled. Lawton went into the back yard. Glover knocked on the door, and Truman May, Reynard's brother, answered. When Truman saw the gun, he tried to slam the door shut, but it jammed on the gun barrel. Truman kicked the gun free and locked the door. Lawton ran to the side of the house, looked in the kitchen window, and began to shoot. Irene May, Truman's wife, took their six-year-old daughter, LaTasha, into a bedroom and hid on the floor.

was then arrested and tried by jury in December 1989.

As Truman moved through the house to the front room, Lawton and Glover followed outside. They began shooting as they moved to the front of the house. Irene and LaTasha hid in a bedroom closet, but LaTasha was struck when two bullets penetrated the walls.

Lawton offered an alibi defense. His witnesses testified that he and James Conte had been together during the relevant time as Conte took delivery of a pickup truck. A witness from the dealership, however, could say only that he was "pretty sure" that Lawton was with Conte for a portion of that time. However, Conte was discredited because he had apparently offered Truman May $5,000 to drop the charges against Lawton.

At Lawton's trial, on a separate record, Glover's counsel said that Cannon's testimony could exculpate Lawton. Cannon, after consulting with appointed counsel, invoked his right against compelled self-incrimination and was excused. At Cannon's trial, Glover's counsel testified that Cannon admitted driving the car, but claimed that only Lawton and Glover had fired shots in response to gunfire from inside.

LAWTON

1. Cannon Testimony

Defendant Lawton subpoenaed Cannon as a defense witness. Lawton claims that the trial court erroneously excused Cannon, a res gestae witness, when he asserted his right against self-incrimination without submitting Cannon to any further questioning. We disagree.

Under any version of the res gestae witness law, M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1), the prosecutor's duty has never extended to calling or listing accomplices. People v. O'Quinn, 185 Mich.App. 40, 45, 460 N.W.2d 264 (1990). The prosecutor had no duty to grant Cannon immunity so he could testify for defendant. Indeed, defendant made no such request below, so the issue is not squarely preserved. Moreover, contrary to defendant's apparent suggestion, defendant lacks power to immunize witnesses. He cannot compel a grant of immunity. People v. Dyer, 425 Mich. 572, 583, 390 N.W.2d 645 (1986) (Levin, J., concurring); People v. Watkins, 78 Mich.App. 89, 95, 259 N.W.2d 381 (1977).

Defendant seems to advocate such powers in reliance on the Dyer concurrence. Other authorities raise serious doubts about the views expressed in Dyer. See, e.g., United States v. Doe, 465 U.S. 605, 616-617, 104 S.Ct. 1237, 1244-1245, 79 L.Ed.2d 552 (1984); Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983); United States v. Angiulo, 897 F.2d 1169, 1190-1193 (C.A.1, 1990); United States v. Pennell, 737 F.2d 521 (C.A.6, 1984).

Nor was the trial court required to probe Cannon further on the propriety of asserting the Fifth Amendment privilege. Once Cannon exercised the privilege, defendant did not request further probing. He

cannot now complain of the court's procedure in so sensitive a matter, where testimony having even a possible tendency to incriminate is protected against compelled disclosure. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Any statement during such questioning[196 Mich.App. 347] might tend to incriminate Cannon. The court already knew that he had been named as a participant. On this record, the decision to excuse Cannon without further interrogation was the only proper course.

2. The "Missing Witness"

Defendant Lawton also claims that the prosecutor was required to produce "James" or "J.D.," the man who apparently fled the scene. At an evidentiary hearing, both sides stipulated that the existence of "James" was unknown to them before Reynard May's reference to him at trial. Under the amended statute, the defendant must first request the prosecution to assist in locating res gestae witnesses. The purpose of the "listing" requirement is merely to notify the defendant of the witness' existence and res gestae status. People v. Calhoun, 178 Mich.App. 517, 523, 444 N.W.2d 232 (1989). At the evidentiary hearing, defense counsel conceded that defendant had never requested the production of "James". Accordingly, the prosecutor had no duty to aid in producing "James."

Defendant further suggests that the police efforts to identify additional witnesses did not satisfy the "reasonableness" standard of the statute. A police investigator testified that Reynard May had not mentioned "James" during questioning. Although the investigator did not ask who else was there, he did canvass the area for possible witnesses. An investigating officer need not do "everything possible" to identify a potential witness. People v. DeMeyers, 183 Mich.App. 286, 292, 454 N.W.2d 202 (1990), citing People v. Cummings, 171 Mich.App. 577, 585, 430 N.W.2d 790 (1988). Even where the prosecution does know of a potential witness, the test is whether it has made a "diligent, good-faith effort" to produce that witness. People v. Conner, 182 Mich.App. 674, 681, 452 N.W.2d 877 (1990). A trial court's determination of due diligence will not be overturned on appeal absent an abuse of discretion. Id. That determination is a factual matter, and the court's findings will not be reversed unless clearly erroneous. People v. Wolford, 189 Mich.App. 478, 484, 473 N.W.2d 767 (1991).

On the record before us, the trial court properly found the prosecution's efforts to locate witnesses were not unreasonable.

3. Request for Continuance

Defendant also contends that the trial court should have continued the trial for codefendant Glover's allegedly exculpatory testimony. Glover, hospitalized with extensive burns, was not competent to testify.

We review a denial of a continuance for abuse of discretion. People v. Davis, 343 Mich. 348, 361, 72 N.W.2d 269 (1955). Some factors to be considered include whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments. People v. Charles O. Williams, 386 Mich. 565, 578, 194 N.W.2d 337 (1972). Defendant must also demonstrate prejudice. People v. Sinistaj, 184 Mich.App. 191, 201, 457 N.W.2d 36 (1990).

The trial court did not abuse its discretion. Although Lawton had asserted his right to call witnesses, had not been negligent, and had not requested previous adjournments, his offer of proof that defendant Glover would exonerate him was inadequate. Glover, a charged codefendant, enjoyed Fifth Amendment protection. He was obviously not present to speak for himself. The court had no reason to believe that Glover would surrender his privilege in order to exonerate his codefendant. The court properly denied a continuance on the inadequate grounds furnished.

4. Felonious Assault

Lawton next contends that the evidence was insufficient to convict him of felonious assault of Reynard May. A challenge to sufficiency tests whether all the evidence, considered as a whole, justifies submitting the case to the trier of fact. People v. Hampton, 407 Mich. 354, 367, 285 N.W.2d 284 (1979). On review, this Court views the evidence in the light most favorable to the prosecution and determines whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Metzler, 193 Mich.App. 541, 546-547, 484 N.W.2d 695 (1992).

The elements of felonious assault, M.C.L....