People v. Potts

• Citation: 55 Mich.App. 622,223 N.W.2d 96
• Decision Date: 25 September 1974
• Docket Number: No. 3,Docket No. 17275,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis C. POTTS, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 96

223 N.W.2d 96

55 Mich.App. 622

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis C. POTTS, Defendant-Appellant.

Docket No. 17275.

Court of Appeals of Michigan, Division No. 3.

Sept. 25, 1974.

Released for Publication Nov. 18, 1974.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

HOLBROOK, Presiding Judge.

On February 3, 1971, the defendant was charged with aiding a prisoner, namely one Weldon Fossey, to escape from the Van Buren County Jail. M.C.L.A. § 750.183; M.S.A. § 28.380. On February 9, the defendant was charged as a second offender in a supplemental information. M.C.L.A. § 769.10; M.S.A. § 28.1082 and M.C.L.A. § 769.13; M.S.A. § 28.1085. Defendant pled guilty to both charges and was sentenced to 7 to 10 1/2 years in prison.

Thereafter, appeal was had. This Court affirmed, 39 Mich.App. 104, 197 N.W.2d 139 (1972). However, the Supreme Court, by order, granted leave, vacated the judgment, and remanded to the circuit court for further proceedings 'consonant with People v. Jaworski', 387 Mich. 21, 194 N.W.2d 868 (1972). Upon remand, at arraignment, the defendant stood mute and a plea of not guilty was entered. An amended supplemental information was filed on August 7, 1972, which charged defendant as a fourth felony ofender. M.C.L.A. § 769.12; M.S.A. § 28.1084.

On August 9, the people filed a motion to strike the name of Weldon Fossey from the list of witnesses indorsed on the information. The people alleged that Fossey was an accomplice and was outside of the state. The motion was granted and an order in accord was entered striking the name on September 8, 1972.

Trial proceeded on December 6, and defendant was convicted by a jury of aiding an escape. On December 21, another supplemental information was filed which recited that the recent conviction was defendant's second. Defendant pled guilty to this charge and the previous amended supplemental information charging him as a fourth offender was dismissed. Defendant was sentenced to 7 to 10 1/2 years in prison.

Defendant here appeals as of right and sets out a number of issues which will be dealt with in proper order.

I

Defendant asserts that the trial court erred in granting the prosecution's motion to strike the witness Fossey from the information on the basis that there is not an absolute accomplice exception to M.C.L.A. § 767.40; M.S.A. § 28.980, and that under the circumstances of this case the interests of justice would have been served by the production of the witness. Further, defendant asserts that an accomplice that has been voluntarily indorsed cannot be stricken solely on the basis of the so-called accomplice exception. The statute provides:

'All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.'

It is a settled rule of law that the prosecution is not required to call accomplices, even though indorsed upon the information. See People v. Brown, 15 Mich.App. 600, 603, 167 N.W.2d 107, 108 (1969), and cases cited therein; and People v. Jones, 48 Mich.App. 334, 339--340, 210 N.W.2d 396, 398--399 (1973), wherein Judge Bronson wrote:

'We find no need for the accomplice to be formally charged before the accomplice exception is applicable. Cf. People v. Raider, 256 Mich. 131, 239 N.W. 387 (1931); People v. Moore, 29 Mich.App. 597, 185 N.W.2d 834 (1971); People v. Peck, 39 Mich.App. 150, 197 N.W.2d 346 (1972).' (See also People v. Threlkeld, 47 Mich.App. 691, 696, 209 N.W.2d 852, 855 (1973).)

and

'After reviewing the cited authorities, we recognize the persuasive appeal of defendant's argument. Due to the duration of controlling precedents we decline defendant's invitation to establish a new rule of law. This argument is more properly addressed to our Supreme Court. See, E.g., People v. Henderson, 47 Mich.App. 53, 209 N.W.2d 326 (1973).'

We agree that defendant's argument is more properly directed to the Supreme Court, rather than our Court. See also People v. Mitchell, 48 Mich.App. 361, 363, 210 N.W.2d 509, 510 (1973), and People v. Irwin, 47 Mich.App. 608, 610, 209 N.W.2d 718, 720 (1973). As an intermediate court we are constrained to follow precedent. As to this issue the precedent is clear, namely, that the prosecution was under no duty to call the witness Fossey, notwithstanding having indorsed him on the information.

II

The defendant next asserts that the trial court erred in its comments on the evidence to the jury in that it failed to point out conflicting prosecution evidence and misrepresented the defendant's position.

'The people claim that about 2:30 in the afternoon Mr. Vorpagel was taken to the visitors' room by David McGuire, the turnkey; that after visiting with his relatives, Mr. Vorpagel was returned to cell block 9 by Mr. McGuire, and that as Mr. McGuire opened the door to return Mr. Vorpagel to the cell, defendant and Mr. Fossey assaulted and beat Mr. McGuire, rendering him unconscious, and that defendant and Mr. Fossey then went to the visitors' room and escaped through the window. It is the claim of the people that defendant by joining in an assault on the turnkey assisted in rendering the turnkey unconscious and thereby assisted and aided Mr. Fossey in his escape as well as procuring his own escape from the jail.

'The defendant denies his guilt and asserts his innocence. He says that on the day in question he was confined in the jail and that he saw an opportunity to escape from jail and availed himself of that opportunity. He says that he did not aid or assist Mr. Fossey in any way, nor did he intend to aid or assist Mr. Fossey to escape, and that whatever he did was done solely to effect his own escape from jail, and did not in fact assist in Mr. Fossey's escape or his attempt to escape.'

If a judge elects to comment on the evidence, 'he must take great pains to make sure his comment is at least an accurate representation of the subject'. People v. King, 384 Mich. 310, 315, 181 N.W.2d 916, 918 (1970). The review should be fair and impartial. People v. Wichman, 15 Mich.App. 110, 115, 166 N.W.2d 298, 301 (1968). We find the trial court's comments to be fair, impartial and accurate.

III

The defendant asserts that the instructions as to the required intent were insufficient. The jury was instructed:

'It is not necessary to show that there was a prior agreement or conspiracy between Mr. Fossey and the defendant, nor is it necessary to show that defendant's acts were done for the express and sole purpose of aiding Mr. Fossey in his attempt to escape.

'It is sufficient if defendant acted knowingly and intentionally, and if his act did in fact aid or assist Mr. Fossey in his attempt to escape.

'In determining intent, you may determine the intent with which an act was done by any evidence in the case which fairly establishes its existence. In the absence of any reasonable explanation to the contrary, a person is considered to intend the natural and ordinary consequences of his act. Thus, in this case, if you find that defendant assaulted David McGuire and that the natural and ordinary consequences of his assault on McGuire would be to assist Mr. Fossey in an attempted escape, you may presume that the assault was made with the intent to aid or assist Mr. Fossey's attempt to escape.'

The statute provides:

'Any person who shall convey into any jail, prison, or other like place of confinement, any disguise or any instrument, tool, weapon or other thing, adapted or useful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, Or shall by any means whatever, aid or assist any such prisoner in his endeavor to make his escape therefrom, whether such escape be affected or attempted, or not, and every person who shall forcibly rescue any prisoner, held in custody upon any conviction or charge of an offense, shall be guilty of a felony, * * *.' (Emphasis supplied.) M.C.L.A. § 750.183, Supra.

In People v. Vraniak, 5 Ill.2d 384, 390--391, 125 N.E.2d 513, 517 (1955), the Illinois Supreme Court was faced with a similar issue. The Court wrote:

'When the rule of the cited cases is applied to the statute under consideration, it is clear that it was the legislative purpose and intent that the crime defined woudl be committed in any one of three ways: (1) by conveying an instrument into a place of confinement With the intent to facilitate a prisoner's escape; (2) by aiding a prisoner to escape or attempt to escape; or (3) by concealing or assisting a prisoner after he has so escaped. Intent is an element of only the first. Since the defendant was here indicted and tried for 'aiding, abetting, and assisting' in an attempted escape, intent was not a material element of the crime and need not have been alleged.

'Next, defendant argues in several different ways that the 'Aiding Escape Statute' is unconstitutional because it punishes only the aider, and not the escapee. It is urged that this creates an arbitrary and unreasoanble classification. Although arbitrary and capricious legislation is prohibited, a reasonable classification based upon some natural principle of public policy will be sustained. People v. Gordon, 274 Ill. 462, 113 N.E. 864 (1916). An equally familiar point of decision is that it is strictly within the...