People v. McPherson, Docket No. 30151

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM; J. H. GILLIS
• Citation: 269 N.W.2d 313,84 Mich.App. 81
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Dillworth McPHERSON, Defendant-Appellant. 84 Mich.App. 81, 269 N.W.2d 313
• Docket Number: Docket No. 30151
• Decision Date: 06 June 1978

Page 313

269 N.W.2d 313 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Robert Dillworth McPHERSON, Defendant-Appellant. Docket No. 30151. 84 Mich.App. 81, 269 N.W.2d 313 Court of Appeals of Michigan. June 6, 1978.
Released for Publication Sept. 7, 1978.

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[84 MICHAPP 83] John C. Mouradian, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., William A. Wertheimer, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and J. H. GILLIS and RILEY, JJ.

PER CURIAM.

Defendant was charged with the first-degree murder of Yvonne Johnson, M.C.L. § 750.316; M.S.A. § 28.548. A jury convicted him of manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and he was sentenced to 9 to 15 years imprisonment. He appeals by right.

Ms. Johnson's nude and partially burned body was found in the bedroom of defendant's apartment. Death was caused by five gunshot wounds to the head and neck. The wounds were made by a gun fired while its muzzle was in contact with the victim's skin. A police expert in firearms identification testified that the bullets came from defendant's gun.

On prior occasions defendant and the deceased had been seen playing pool and drinking together. Witnesses observed both of them at the same bar on the evening preceding Ms. Johnson's death, but they were not together.

In a statement to the police, defendant gave the [84 MICHAPP 84] following account of the events. The deceased accompanied defendant to his apartment, where they had sexual intercourse. During the night the deceased, armed with defendant's gun, wakened defendant and demanded his money. When defendant replied that he had none, the deceased accused him of lying and said that she had seen him cash his check at the bar. Defendant, afraid that Ms. Johnson would pull the trigger, wrestled the gun away from her, at which time she fell on the bed and the first shot hit her. The deceased then "got shot again out of fear and panic", after which defendant fled the apartment.

At some time the mattress caught fire, and the firemen responding to the call discovered the body.

The first issue raised on appeal is whether the trial court erred in finding that the people had exercised due diligence in attempting to procure the presence of an endorsed witness, one Reverend Morgan, and in ruling the nonproduction of the witness excused. Reverend Morgan resided in defendant's apartment house. When interviewed by the police the day the body was found, he told them that he had seen smoke coming from the upstairs window but had not heard any gunshots the night before or that morning. The police had no further contact with the witness until the time of trial, at which time a subpoena for the witness was returned with no response and with no forwarding address. A police sergeant testified that on May 3, 1976, the third day of trial, in an attempt to locate

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the witness, the police had checked the place of employment which the witness had listed in the November interview, the Wayne County Morgue, the church of which the witness was a pastor, Wayne County Social Services, the Detroit House of Corrections, the Wayne [84 MICHAPP 85] County Jail, Detroit Edison, the Gas Company, and the post office, all to no avail.

The trial court, after reading the statement which the witness had given the police, ruled that he was not a res gestae witness and found that the prosecution, surprised by the witness's absence, had made a showing of due diligence in attempting to produce the witness.

While the prosecutor need not endorse the name of a person who is not a res gestae witness, the voluntary endorsement of such a witness carries with it the burden of production. People v. Mitchell, 48 Mich.App. 361, 364, 210 N.W.2d 509, 510 (1973), Lv. den., 391 Mich. 752 (1973), and cases cited therein. The non-production of an endorsed witness will be excused when the prosecution's efforts to obtain the witness's presence at trial are diligent. Id. at 365, 210 N.W.2d at 511, People v. Schwartz, 62 Mich.App. 188, 191, 233 N.W.2d 517, 519 (1975), Lv. granted, 395 Mich. 794 (1975). The diligence required of the prosecution is "devoted and painstaking application to accomplish an undertaking." People v. Johnson, 51 Mich.App. 224, 230-231, 214 N.W.2d 713, 716 (1974). The question of due diligence is within the discretion of the trial judge, and the exercise of that discretion will not be overturned unless a clear abuse is shown. People v. Bersine, 48 Mich.App. 295, 210 N.W.2d 501 (1973), Lv. den., 391 Mich. 837 (1974).

People v. Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972), upon which defendant...