People v. Rimson

• Decision Date: 23 July 1975
• Docket Number: Docket No. 20251
• Citation: 233 N.W.2d 867,63 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert RIMSON, Defendant-Appellant. 63 Mich.App. 1, 233 N.W.2d 867
• Court: Court of Appeal of Michigan — District of US

Page 867

233 N.W.2d 867

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

Docket No. 20251.

63 Mich.App. 1, 233 N.W.2d 867

Court of Appeals of Michigan.

July 23, 1975.

Released for Publication Oct. 22, 1975.

[63 MICHAPP 2] McKinley & Jerkins by Roman T. Plaszczak, Kalamazoo, for defendant-appellant.

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

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

PER CURIAM.

On March 14, 1974, defendant was convicted by a Kalamazoo County Circuit Court jury of delivery of heroin, a controlled substance, in violation of M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He was sentenced to a term of from 12 to 20 years and appeals by right.

On appeal, defendant raises several claims of error, three of which merit discussion. His first contention is that the trial court committed reversible error when it ruled that the prosecutor did not have to endorse and produce a res gestae witness. The witness involved was a young woman who was the only other individual present at the time defendant sold heroin to a police undercover agent, Floyd Love. After a hearing on defendant's motion to endorse, the trial court ruled that the young woman was a res gestae witness, but that [63 MICHAPP 3] the prosecutor had made a showing of due diligence sufficient to excuse her endorsement and production. Defendant claims that this finding of due diligence was erroneous.

A prosecutor must endorse on an information the names of all witnesses known to him at the time of filing, M.C.L.A. § 767.40; M.S.A. § 28.980. The mandatory requirement of endorsement and production applies only to res gestae witnesses. People v. Tann, 326 Mich. 361, 40 N.W.2d 184 (1949); People v. Simpson, 57 Mich.App. 320, 225 N.W.2d 748 (1975); People v. Bersine, 48 Mich.App. 295, 210 N.W.2d 501 (1973), Lv. den., 391 Mich. 837 (1974). The failure to satisfy this requirement may be excused where the prosecutor makes a showing of due diligence in searching for a res gestae witness. People v. Gibson, 253 Mich. 476, 235 N.W. 225 (1931); People v. Simpson, supra; People v. Bersine, supra. The question of whether due diligence has been shown is a matter for the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown. People v. Tann, supra; People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970).

The record shows that the prosecutor's search was hampered by the fact that the informer did not know the name of the witness. The informer testified that he had seen the girl before, that he never learned her name and that he knew some people with whom she 'hung out' but that they had moved away. One of the arresting officers testified that, using the description supplied by the informer, he had attempted to find the girl. He interviewed one individual whom he suspected to be the girl, but she denied being the witness. The officer then went to her home and spoke again to the suspected witness and to her parents. She [63 MICHAPP 4] again denied being the eyewitness, and her parents supported this denial. The officer made other attempts to find a girl matching the description given by the informer but was unsuccessful. On the basis of this record, we cannot say that the court's denial of defendant's motion to endorse was an abuse of discretion.

Defendant's second claim is that the trial court committed error by allowing into evidence testimony by the police informer relating to general methods of procuring and distributing narcotics. The challenged testimony did not relate directly to defendant's alleged drug operation but was in response to an inquiry by the prosecutor as to whether those people known 'on the street' to be selling drugs always had drugs available for sale. Defendant's objection to the admission of this testimony was denied as were his motions for a mistrial and for a cautionary instruction. Defendant argues that the challenged testimony was irrelevant and should not have been admitted.

A determination of whether or not evidence is relevant rests within the discretion of the court, and the court's determination will not be upset on appeal unless a clear abuse of discretion has occurred. People v. Hodo, 51 Mich.App. 628, 638, 215 N.W.2d 733 (1974). Under the broad Michigan standard, evidence is admissible if it is 'helpful in throwing light upon any Material point in issue', People v. Becker, 300 Mich. 562, 565, 2 N.W.2d 503, 505 (1942); People v. Kozlow, 38 Mich.App. 517, 196 N.W.2d 792 (1972), Lv. den., 387 Mich. 798 (1972). (Emphasis supplied.) We find that the challenged testimony should have been excluded because it was immaterial to the issue being tried. The issue at trial was whether defendant sold heroin to the informer. The informer's testimony about drug [63 MICHAPP 5] trafficking in general did not bear upon this issue. Plaintiff claims that the...