People v. Moore

• Decision Date: 07 September 1977
• Docket Number: Docket No. 30187
• Citation: 259 N.W.2d 403,78 Mich.App. 150
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John MOORE, a/k/a George Moore, Defendant-Appellant. 78 Mich.App. 150, 259 N.W.2d 403
• Court: Court of Appeal of Michigan — District of US

Page 403

259 N.W.2d 403

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John MOORE, a/k/a George Moore, Defendant-Appellant.

Docket No. 30187.

78 Mich.App. 150, 259 N.W.2d 403

Court of Appeals of Michigan.

Sept. 7, 1977.

Rehearing Denied Oct. 13, 1977.

Released for Publication Nov. 16, 1977.

[78 MICHAPP 152] George E. Thick, II, George C. Bush, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert K. Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

DANHOF, Chief Judge.

Defendant was convicted on October 2, 1975, by a circuit court jury of one count of delivery of a controlled substance, heroin, in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Defendant was sentenced on November 17, 1975, to a term of 10 to 20 years in prison and appeals as of right.

At trial the prosecution presented testimony by an undercover State Police narcotics officer. He testified that on January 9, 1975, he had gone with Rosemary (Lottie) Hanes to a Saginaw residence occupied by the defendant and an unidentified woman. There defendant had sold the officer 5 grams of heroin. Defendant testified that although he owned the residence in question he did not live there, had not been there at the time of the purported heroin sale, and had never sold any heroin to the complaining witness. No other evidence directly implicating the defendant was produced. Neither Rosemary Hanes nor the unidentified woman were produced to testify. In this appeal defendant puts forth several allegations of error.

Defendant argues that he was denied his Sixth Amendment right of confrontation in that both the magistrate at his preliminary examination and [78 MICHAPP 153] the trial court refused to order the complaining witness to divulge his home address. The circumstances here are almost identical with those found in People v. Pleasant, 69 Mich.App. 322, 244 N.W.2d 464 (1976). Under the circumstances of this case there was no error in permitting the undercover officer to keep secret his address.

Defendant also asserts that the trial court improperly excluded, as inadmissible hearsay, testimony by a witness that Rosemary Hanes had told the witness that she was an agent of the Michigan State Police. Since the only purpose the defendant advanced for the introduction of the testimony was to show that Rosemary Hanes was a police agent, the proffered testimony was hearsay. The defendant fails to cite any exception to the hearsay rule which would allow introduction of this testimony. Therefore we believe that the trial court's exclusion of the testimony was a proper exercise of its discretion. See People v. Jones, 48 Mich.App. 102, 106, 210 N.W.2d 145 (1973).

Defendant further contends that Rosemary Hanes and the unidentified woman should have been indorsed as res gestae witnesses and that since they were not the court compounded its error by refusing to instruct the jury that absent the production of these witnesses or diligent efforts by the prosecutor to produce them, the jury could presume their testimony would be adverse to the prosecution. People v. Simpson, 57 Mich.App. 320, 225 N.W.2d 748 (1975). In refusing to give the requested instruction the trial court stated on the record:

"Mr. Thick had asked the Court that I give this instruction in regard to witnesses: 'I further instruct you that unless the prosecution has shown a diligent effort to identify all witnesses, they are not excused [78 MICHAPP 154] from producing them at trial. Therefore, if you find that the prosecution has not made a diligent effort to identify all witnesses and you thereby have been deprived of the testimony of the unidentified witnesses, you may presume that the witness, if called, would testify adversely to the People's case.'

"Now, as the evidence will show in this case, there were two other individuals present at the actual transfer of the controlled substance in this case, as testified by the People's witnesses. One was a Lottie Hanes, who herself has been charged in this case, and has not yet been apprehended by the People or tried. The other was an unidentified black female, who let the witness Maddox and Lottie Hanes into the house on that particular day.

"The Court had an extensive pretrial hearing in this regard about failure to endorse the witnesses. The People have at that time indicated to the Court that they do not know the identity of this witness. And, of course, the other one was a officially charged as an accomplice. Under the law, as it stands in Michigan, there is no duty even if endorsed to call or produce an accomplice.

"Also, from the testimony as elicited at this trial, it was very evident that the People could have if they could probably identify have charged the black female as an accomplice in this case."

The record does disclose testimony that Ms. Hanes had been charged and that the other unidentified woman had admitted the complainant and Ms. Hanes into the house and had been present at the actual transfer of the controlled substance. This evidence produced at trial supports the trial court's finding that both of these witnesses were "chargeable" as accomplices. Therefore, neither was a res gestae witness for purposes of indorsement. People v. Penn, 70 Mich.App. 638, 647, 247 N.W.2d 575 (1976).

Defendant further asserts that the trial court showed bias in its questioning of the complaining [78 MICHAPP 155] witness. A careful review of the entire record shows that the trial court's questions had the apparent intent and effect of resolving ambiguities and bringing out additional relevant testimony that potentially could have aided either the prosecution or the defense. The record does not show any interjection of the trial court's personal views or bias. The trial court's questions did not have the effect of unfairly influencing the jury's verdict against the defendant and therefore there was no error. People v. Redfern, 71 Mich.App. 452, 456, 248 N.W.2d 582 (1976). People v. Gray, 57 Mich.App. 289, 295, 225 N.W.2d 733 (1975).

During cross-examination of the defendant, the prosecutor brought out the fact that the defendant had a prior conviction for alteration of a pistol. Defendant claims this was reversible error citing People v. Renno, 392 Mich. 45, 55, 219 N.W.2d 422 (1974). In Renno the Court held that a criminal defendant could not be impeached through the use of municipal ordinance or misdemeanor convictions. Alteration of a...