People v. Norwood

• Citation: 123 Mich.App. 287,333 N.W.2d 255
• Decision Date: 06 May 1983
• Docket Number: Docket No. 53617
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee NORWOOD, Defendant-Appellant. 123 Mich.App. 287, 333 N.W.2d 255
• Court: Court of Appeal of Michigan — District of US

Page 255

333 N.W.2d 255

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee NORWOOD, Defendant-Appellant.

Docket No. 53617.

123 Mich.App. 287, 333 N.W.2d 255

Court of Appeals of Michigan.

Submitted June 30, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 290] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and Angela Baryames, Asst. Pros. Atty., for the people.

State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant.

Before KELLY, P.J., and MAHER and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Defendant was convicted by a jury of assaulting a jail custodian, M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3), and appeals by leave granted. We reverse because the trial court erred in concluding that the defendant was not prejudiced by the failure of the prosecution to exercise due diligence to produce two endorsed res gestae witnesses at trial.

On February 18, 1979, defendant was arrested on a charge of assault with intent to murder and was taken to the Berrien County Jail for booking.

While incarcerated in a holding cell near the front desk, defendant observed the booking of Roy Coleman. One of the police deputies misidentified Coleman as Ricky Norwood, defendant's brother. [123 MICHAPP 291] Defendant immediately denied that Coleman was his brother. Coleman resisted when the deputies began to search him and was advised to place his hands on top of a screen to permit the officers to search him. When Coleman refused to remove his shoelaces, the deputies "laid him on the ground". Deputy Chandler produced a pocket knife and threatened to cut off the shoelaces, so Coleman relented and removed them himself.

Defendant felt the guards were using unnecessary force with Coleman, and there is credible testimony that excessive force was in fact used. Defendant began to yell that the guards were abusing Coleman and that he would testify for Coleman if a police brutality suit were brought.

The guards responded to defendant's outbursts by telling him to "shut up". There is a dispute whether the guards threatened defendant with "the same" treatment given to Coleman. Although defendant and other prisoners testified that Officer Chandler threatened defendant with physical harm, the guards testified that Chandler merely threatened to move defendant to a rear cell.

What next occurred is hotly disputed. According to Chandler, he walked over to the front holding cell, opened the door, and ordered defendant to come out in order to transfer him to a rear cell. Defendant, on the other hand, testified that he thought Chandler was coming to rough him up. In any case, defendant refused to leave the cell and stated that Chandler would have to remove him forcibly.

Chandler entered the cell and grabbed for defendant's arm. Defendant yanked his arm away, and a scuffle ensued. The testimony is inconsistent as to who struck first. The guards and prisoners Forker and Hurst testified that defendant struck [123 MICHAPP 292] first, but prisoners Harrell and Kimble, and defendant himself, testified that Chandler struck first.

Deputy Doak testified that when the scuffle broke out, he immediately went to Chandler's aid. According to Doak, he and Chandler attempted to restrain defendant, but defendant managed to punch Doak in the face. Defendant and Chandler then fell to the floor struggling.

Defendant's account of the scuffle differs materially. He testified that Chandler entered the cell and hit him and that he tried to defend himself. Doak then entered the cell and grabbed him around the neck. Doak held him from behind and together the three fell to the floor, with Doak on the bottom, defendant in the middle, and Chandler on top. Defendant suggested that Doak may have been injured in the fall, but denied punching him. The fight ended when two other guards came into the cell, and defendant agreed to accompany them to the rear cell. Both defendant and Doak suffered bruises and scrapes requiring minor medical attention, and assault charges were filed against defendant.

I

Defendant first claims that the trial court erred in denying his motion for a new trial following a Pearson ¹ hearing held four months after his conviction. The hearing was held to determine whether the prosecution had failed to exercise due diligence in producing two res gestae witnesses, Claude Lawrence and Lawrence Kimble, and whether the defendant had been prejudiced as a result. The trial judge ruled that the two individuals were res gestae witnesses and that the prosecution[123 MICHAPP 293] had not been duly diligent in its efforts to produce them at trial. However, the trial judge concluded that their testimony was cumulative to that of other witnesses and thus their nonproduction did not prejudice the defendant. Accordingly, the motion for a new trial was denied.

We review the trial court's determination that the witnesses' nonproduction did not prejudice the defendant only to ascertain whether there was an abuse of discretion. People v. Donald, 103 Mich.App. 613, 303 N.W.2d 247 (1981). We are convinced that the trial judge abused his discretion in ruling that the testimony would be cumulative and therefore reverse the defendant's conviction.

At the Pearson hearing, Claude Lawrence testified that he was in the cell with defendant when Coleman was brought in for booking. Lawrence was moved to another cell immediately before the scuffle broke out and could not see the fight. However, he did testify that undue force was used to subdue Coleman and that this provoked defendant's vociferous protests.

Lawrence Kimble testified that he, too, was in the cell with defendant when the fight occurred. Contrary to the guards' testimony that Coleman was rather gently "laid" on the ground, Kimble stated that the guards "slammed" him to the floor. Kimble also refuted Deputy Chandler's testimony that he did not threaten defendant with the same treatment given Coleman.

The trial court erred in ruling this testimony to be "merely cumulative". "Merely cumulative" usually means cumulative to the prosecution's case; cumulative evidence which rebuts the prosecutor's case should be admissible if it assists the defendant. People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973). Clearly, the testimony of these [123 MICHAPP 294] two witnesses would have been helpful to defendant, since their testimony supported defendant's account of the incident in several particulars and would likely have enhanced his credibility in the eyes of the jury.

The purposes of requiring the production of res gestae witnesses include protecting the defendant against false accusation, People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); preventing suppression of testimony favorable to the accused, People v. Phillips, 61 Mich.App. 138, 232 N.W.2d 333 (1975); and ensuring the disclosure of all the circumstances, People v. Fudge, 66 Mich.App. 625, 239 N.W.2d 686 (1976). All these purposes were thwarted by the nonproduction of Kimble and Lawrence.

One other issue was raised at the Pearson hearing and on appeal here, although not addressed by the trial court. The prosecutor argues that, because defendant had taken the names and addresses of these witnesses soon after the incident occurred, the prosecution was excused from endorsing them.

The burden of producing res gestae witnesses is on the prosecution. An exception to this rule excuses the prosecution only when the witness's identity is known only to the defendant. People v. Gillam, 93 Mich.App. 548, 286 N.W.2d 890 (1979). Here, the prosecutor was also aware of the identities of Kimble and Lawrence.

II

Defendant next claims that no evidence was presented on the element of "lawful imprisonment" to sustain a conviction under M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3).

[123 MICHAPP 295] Mindful that evidence must be introduced on each element of the crime charged to sustain a conviction and that a conviction unsupported by the evidence violates due process, People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), we reject defendant's allegation.

Evidence was introduced that defendant was lawfully arrested at the time of the incident. It is immaterial that the charge of assault with intent to murder was later dismissed. Evidence of a lawful arrest suffices to establish the required element of lawful imprisonment under the statute.

III

Defendant's third allegation of error is that the trial judge erred in failing to instruct the jury that it must find that defendant acted with specific intent in order to convict him of assault. In People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), the Supreme Court held that it is reversible error not to instruct on the element of intent in an assault case. The Court held that the jury must be instructed that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery. 407 Mich. 210.

In light of the need for a new trial, we will not address the question of Johnson's retroactivity, compare, e.g., People v. Ideis, 101 Mich.App. 179, 300 N.W.2d 489 (1980), lv. den. 411 Mich. 854 (1981), and People v. Starghill, 99 Mich.App. 790, 298 N.W.2d 641 (1980). We merely hold that on retrial the jury should be instructed on the element of intent.

IV

Defendant's fourth claim of error is that the [123 MICHAPP 296] trial court failed to specifically instruct the jury that the prosecution had the burden of disproving self-defense.

When a defendant introduces evidence of self-defense, the burden of proof to exclude the possibility that the defendant did act in self-defense rests on the prosecution. People v. Watts, 61 Mich.App. 309, 232 N.W.2d 396 (1975). However, if the charge to the jury, when read as a whole, is not misleading, the instructions will be upheld. Watts, p. 311, 232 N.W.2d 396.

Although we are not convinced that the instructions given in ...