People v. Robinson

• Citation: 213 N.W.2d 106,390 Mich. 629
• Decision Date: 18 December 1973
• Docket Number: No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald G. ROBINSON, Defendant-Appellant. 390 Mich. 629, 213 N.W.2d 106
• Court: Supreme Court of Michigan

Page 106

213 N.W.2d 106

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald G. ROBINSON, Defendant-Appellant.

No. 2.

390 Mich. 629, 213 N.W.2d 106

Supreme Court of Michigan.

Dec. 18, 1973.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by: Judith K. Munger, Asst. Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

COLEMAN, Justice.

Defendant is appealing his conviction for manslaughter. Defendant and Howard Wright became involved in an argument concerning use of a barroom pool table. Defendant left the bar. When Mr. Wright left, the two met at the door and Mr. Wright was fatally stabbed.

At trial, defendant claimed he acted in self-defense. He testified that Mr. Wright attacked him with a beer bottle. The other defense witness, who was standing across the street, said the door opened and he saw a hand with a bottle in it. Those witnesses testifying for the prosecution did not agree with these versions, nor did the jury.

The Court of Appeals granted the prosecution's motion to affirm on September 29, 1972. Leave to appeal was grant July 26, 1973.

There is but one issue. Is defendant denied a fair trial when the prosecutor fails to endorse on the information the name of a possible res gestae witness who was, or should have been, known to him prior to trial and when he fails to produce such witness at trial?

Defendant says that the duty of the prosecutor to endorse and produce all res gestae witnesses is an essential ingredient of a fair trial. Although no objection was raised during trial, failure of the prosecutor to act is said to demand reversal.

The people reply by claiming that the record does not show that the prosecution knew of the unindorsed witness before trial. Even if they had, any testimony in addition to that presented at trial would have been cumulative. The people also remind us that defendant's trial counsel did not seek an adjournment or move that the witness be indorsed or even mention his existence.

Of the approximately three dozen individuals named in the information, at the preliminary exam or during trial, only one was not accounted for at trial. ¹ It is the unexplained omission of this individual's name from the information and his nonproduction at trial that is the basis of defendant's claim in this Court.

The first witness at the preliminary examination was David Brown, Howard Wright's brother-in-law. During cross-examination by defendant's counsel, the following exchange occurred:

'Q. All right. Now, going through that front door was Mr. Wright, is that right?

'A. Yes.

'Q. And who was right behind him?

'A. A guy named Eugene Smith.

'Q. James Smith, did you say?

'A. Not James, no; Eugene Smith.

'Q. All right. Now, did you tell this officer, or any of these other fine gentlemen sitting here at the table, that Eugene Smith was there?

'A. Yes.

'Q. All right, And who went out the door first?

'A. Howard went out first.

'Q. Howard went out first, and who was second?

'A. A guy named Eugene Smith.

'Q. A guy named Eugene Smith?

'A. Yes.

'Q. And you are next, is that right?

'A. Yes, I was next.'

Mr. Brown repeated the substance of this testimony at trial. The prosecutor conducting the examination did not try this case. Defendant's counsel was the same at both proceedings.

During the trial, defendant's attorney on two occasions affirmatively waived the presence of certain witnesses. Three were unable to be brought into court despite the prosecution's diligent efforts. One witness was deceased. The doctor who pronounced Howard Wright's death and two police officers stationed at the hospital were waived. Two other patrolmen were waived as their testimony would have been cumulative. At no time was the presence of Eugene Smith formally waived or excused. At no time did defendant's counsel seek to have Eugene Smith indorsed or produced.

The controlling statute is M.C.L.A. § 767.40; M.S.A. § 28.980:

'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.'

In order to prevent what might possibly be a useless new trial, but also in order to avoid a possible miscarriage of justice, we retain jurisdiction and remand to the trial court pursuant to GCR 1963, 865.1(5). It shall be the obligation of the judge to require the prosecutor to produce or explain why he cannot produce Eugene Smith at such hearing and why he was not indorsed and produced at the trial. If Eugene Smith is produced he shall be examined regarding his knowledge of the crime of which the defendant was convicted.

At the conclusion of the remand hearing, the trial judge shall take such action as he deems required. If a new trial is not ordered, the trial judge shall state his findings and the transcript of that hearing and the judge's statements shall be forwarded to this Court. Defendant may file a supplemental brief within 30 days and the people within 20 days after receipt of the...