People v. O'Quinn

• Decision Date: 25 September 1990
• Docket Number: Docket No. 114444
• Citation: 460 N.W.2d 264,185 Mich.App. 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert James O'QUINN, Defendant-Appellant. 185 Mich.App. 40, 460 N.W.2d 264
• Court: Court of Appeal of Michigan — District of US

Page 264

460 N.W.2d 264

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Robert James O'QUINN, Defendant-Appellant.

Docket No. 114444.

185 Mich.App. 40, 460 N.W.2d 264

Court of Appeals of Michigan.

Submitted May 10, 1990.

Decided Aug. 7, 1990.

Released for Publication Sept. 25, 1990.

[185 MICHAPP 41]Vincent Schumacher, Detroit, for defendant-appellant.

Before MacKENZIE, P.J., and SAWYER and DOCTOROFF, JJ.

PER CURIAM.

Defendant appeals his conviction of breaking and entering an occupied building, M.C.L. Sec. 750.110;M.S.A. Sec. 28.305.A jury trial took place before Detroit Recorder's Court Judge Kaye Tertzag in December 1987.On December 30, 1987, defendant was sentenced to two years six months to ten years imprisonment.This Court granted defendant's application for delayed appeal on January 10, 1989.On appeal, defendant raises three issues.First, defendant argues that prejudicial error occurred when the prosecutor violated the trial court's order in limine prohibiting evidence that the car involved was stolen.We agree and reverse defendant's conviction.Second, defendant argues that his conviction should be reversed because the prosecutor did not render reasonable assistance to locate and produce a witness.We disagree.Third, defendant argues that his right to a speedy trial was violated.We disagree.

At approximately 5:00 a.m. on May 23, 1987, Livonia Police Officers Michael Burke and Terrence Webb were on routine patrol when they observed a moving car in the parking lot of the [185 MICHAPP 42] Wine Palace Party Store.The officers became suspicious and followed the car.A white male with dark hair and a white female with long hair were in the front seat of the car.At that time, the officers received information over the police radio that the alarm at the Wine Palace Party Store had sounded.

As the police followed the car, it accelerated up to sixty miles per hour and the officers lost sight of the vehicle.The officers subsequently located the car, which had crashed into a chain link fence.It was unoccupied.One hundred fifty-eight unopened cigarette packs, some lighters and a female's purse were inside the car.Officer Webb searched the area and found defendant and a female companion, Theresa Simpson, in a wooded lot about a block away from the car.According to Officer Webb, defendant and Simpson were kneeling down on all fours with their heads down, as if hiding.Officer Webb arrested defendant and Simpson.Defendant's fingerprints were found on the exterior left mirror of the car.

The owner of the Wine Palace Party Store testified that cigarettes and cigarette lighters were missing from the store after the robbery.

Defendant denied breaking into the Wine Palace Party Store.Defendant claimed that he had fallen asleep in the back seat of the car and that Theresa Simpson woke him and told him to run because they were being chased.

Prior to trial, Judge Sharon Tevis Finch granted defendant's motion in limine to suppress evidence that the car was stolen.At trial before Judge Tertzag, the prosecutor asked Officer Burke if he received any information relative to the license plate, and Burke answered: "The plate came back as being stolen."Defendant objected and moved for a mistrial.The trial court denied defendant's [185 MICHAPP 43] motion on the ground that, although the pretrial order prohibited any evidence that the car was stolen, it did not prohibit reference to a stolen license plate.

On appeal, defendant contends that the prosecutor violated the trial court's order by deliberately eliciting testimony that the license plate was stolen.Defendant argues here, as below, that a reference to the stolen license plate was not different than a prohibited reference to a stolen car.We agree.

The role of a prosecutor is to seek justice, not merely to convict.People v. Wallace, 160 Mich.App. 1, 10, 408 N.W.2d 87(1987).The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.People v. Foster, 175 Mich.App. 311, 317, 437 N.W.2d 395(1989).

The order granting defendant's motion in limine was broad enough to prohibit introduction of evidence that the license plate was stolen.Evidence that the car was stolen was excluded on the ground that it was prejudicial.Evidence that the car's license plate was stolen is similarly prejudicial.The jury could infer from either piece of evidence that defendant was involved in an additional theft act.The evidence added nothing to the case except to suggest that defendant was a bad man.The prosecutor's question was clearly designed to elicit the information that the license plate was stolen.Furthermore, the information that the car was stolen was revealed and repeated three times by Officer Burke during cross-examination in response to questions asking why a police report had been written.Defense counsel's request that the answers be stricken as nonresponsive was denied.

Although Judge Tertzag issued a cautionary instruction, it is unlikely that the jury could have [185 MICHAPP 44] disregarded the evidence.The prejudicial effect could not be overcome by the cautionary instruction.Hence, the repeated admission of evidence that the car and the car's license plate were stolen constituted prejudicial error requiring reversal.

Under his second issue, defendant argues that his conviction should be reversed because the prosecutor did not render reasonable assistance to locate and produce a witness.

Defendant's motion for assistance to locate and serve process upon Theresa Simpson was granted on November 16, 1987.The trial court denied defendant's motion for mistrial on the basis of the prosecutor's failure to produce Simpson at trial.

Defendant incorrectly asserts that Simpson was not a res gestae witness.A res gestae witness is a person who witnesses some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts.People v. Calhoun, 178 Mich.App. 517, 521, 444 N.W.2d 232(1989);People v. Baskin, 145 Mich.App. 526, 530-531, 378 N.W.2d 535(1985).We note that the present version of the res gestae witness statute, which applies in the present case, does not require the prosecutor to endorse and produce all res gestae witnesses.M.C.L. Sec. 767.40a;M.S.A. Sec. 28.980(1).However, the statute does require a prosecuting attorney to provide reasonable assistance to a defendant in locating and serving process upon witnesses.M.C.L. Sec. 767.40a(5);M.S.A. Sec. 28.980(1)(5).

At the hearing on this matter, the investigating officer testified that he was not notified by the prosecutor to give defendant assistance in locating Simpson.Therefore, the prosecutor did not provide reasonable assistance to defendant in locating Simpson.The relevant inquiry is whether the prosecutor's failure to render assistance in obtaining Simpson prejudiced defendant.In the present [185 MICHAPP 45] case, we conclude that the prosecutor's failure to assist did not prejudice defendant.

Under the former res gestae statute, a prosecutor was required to endorse and produce all res gestae witnesses.Baskin, supra, p. 531, 378 N.W.2d 535.An exception to the production requirement existed when the res gestae witness was an accomplice.People v. Jerry Smith, 122 Mich.App. 106, 113, 332 N.W.2d 428(1982), rev'd on other grounds417 Mich. 1100.39, 338 N.W.2d 890(1983).The rationale behind the accomplice exception is equally applicable to the present statute.Hence, we conclude that the prosecutor does not have a duty to provide reasonable assistance to a defendant in locating and serving process upon an accomplice.The record contains sufficient indicia that Simpson was an accomplice.As an accomplice, Simpson would not be required to testify.Id.Hence, defendant was not prejudiced by the prosecutor's failure to act.

Defendant's final claim is that he was deprived of a speedy trial because he remained in custody longer than the six-month period provided in MCR 6.109.¹Defendant remained in custody from his arrest on May 23, 1987, until trial commenced on December 8, 1987.A hearing on defendant's motion for release on personal bond was held on November 19, 1987.The trial court denied the motion.An order was entered on November 23, 1987.

Initially, we note that defendant appears to confuse the right to a speedy trial with...