People v. Stewart

Decision Date27 May 1975
Docket NumberDocket No. 19024,No. 2,2
Citation61 Mich.App. 167,232 N.W.2d 347
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilburn Dean STEWART, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Lawrence R. Greene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas J. Kizer, Jr., Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BASHARA and D. E. HOLBROOK, Jr., JJ.

DANHOF, Presiding Judge.

Defendant was convicted by a jury of murder in the first degree, M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced to life imprisonment, and he appeals alleging several errors in the conduct of his trial. We affirm.

Trial was originally scheduled to commence on September 26, 1973. However, the prosecutor sought leave in this Court to appeal from the trial court's order granting a motion to suppress a confession. On August 29, 1973 defense counsel made a demand for a speedy trial. This Court denied the application for leave and trial began on October 16, 1973.

At trial it was established that the body of Charles Harbaugh was found in a remote area in southern Livingston County. He had been shot numerous times in the head, neck and shoulders. Time of death was estimated at between 7 p.m. March 11, 1973 and 7 a.m. March 12, 1973. Tire track impressions taken at the scene led police to the purchaser of the tires, Paul Hassler. Hassler and decedent had been friends for some time. He and his girlfriend, Carol Gorden, were arrested and they gave information to the police which resulted in the arrest of the defendant, Wilburn Dean Stewart. The defendant and the decedent worked at the same supermarket warehouse in Detroit.

According to Hassler's testimony, he was introduced by the decedent to the defendant from whom he began buying heroin. When Hassler went to the defendant on March 10, 1973 to make a purchase, the defendant indicated that Harbaugh owed him money. Hassler agreed to help arrange a meeting.

On March 11, Hassler asked Harbaugh if he wanted to go with him and his girlfriend to Livingston County to 'rip off' a doctor's office. This was a pretext to get Harbaugh to a remote area where they were to meet the defendant who followed them in another car. The defendant and Harbaugh briefly discussed the debt, and as they were walking towards Hassler's car, the defendant fired a shot which struck Harbaugh in the arm. Hassler ran to his car and he and Carol Gorden fled the area; but not before they heard Harbaugh beg for his life, followed by the sound of four more shots.

On October 19, 1973, the third day of trial, the prosecution moved to indorse an additional witness, Thomas Doherty. Defendant had shared a jail cell with Doherty while awaiting trial. The prosecutor explained that he had only the day before, through a remark made by Hassler during a pretrial interview, become aware of the testimony Doherty could give. The trial court granted the motion and denied a motion by the defendant for a continuance. Doherty took the stand over the defendant's objection and testified in essence that the defendant said that he shot the decedent, and that he considered shooting Hassler and his girlfriend also in order to 'cover up the whole mess'.

Defendant argues on appeal that the trial court abused its discretion by allowing the late indorsement of the witness and by thereafter refusing his motion for a continuance. Defendant recognizes the controlling significance of the applicable statute, M.C.L.A. § 767.40; M.S.A. 28.980, which provides in part:

'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.'

When considering the trial court's exercise of the authority conferred by the statute, 'The ultimate question, on review, is whether the court abused its discretion, with the burden ordinarily on the party asserting abuse'. People v. Blue, 255 Mich. 675, 678, 239 N.W. 361, 362 (1931), People v. Griner, 30 Mich.App. 612, 615, 186 N.W.2d 800 (1971).

In an attempt to meet this burden, defendant maintained that the trial court abused its discretion because the prosecution should have sooner discovered the information which Doherty revealed since he was already in custody. The trial court determined that the prosecutor acted promptly to indorse the witness as soon as he had learned the relevant facts. Nothing in the record provides any basis to disturb this finding.

Defendant contends that his trial strategy would be entirely changed by the late indorsement because he would have cross-examined differently the witnesses who had already testified. It is not at all clear what defendant proposes to have done differently, but the record does disclose that the trial court offered to recall any and all witnesses for further cross-examination in light of this witness's testimony.

The argument that defendant was surprised by the production of witness Doherty is unconvincing. The defendant and Doherty had spent considerable time together in the same jail cell. While defense counsel may have been unaware of Doherty, the defendant himself was thoroughly familiar with this witness. The information that this witness revealed, if accurate, would also have been well-known to the defendant. The credibility of the witness was for the jury to decide.

Probably the strongest argument in favor of defendant's position in this issue is that his timely request for a continuance was denied. Nevertheless, the decided cases have established that this factor under circumstances similar to those of the present case is insufficient to sustain the defendant's burden of demonstrating an abuse of discretion. When a late indorsement of a witness is allowed, the granting to the defense of a continuance is a matter of discretion. People v. Heading, 39 Mich.App. 126, 129, 197 N.W.2d 325 (1972), Lv. den., 389 Mich. 782 (1973).

In People v. Cormandy, 16 Mich.App. 517, 519, 168 N.W.2d 430 (1969), Lv. den., 382 Mich. 756 (1969), the prosecutor moved during trial for the indorsement of an additional witness. The lower court 'granted the motion and denied defendants' motion for a continuance'. On appeal, no abuse of discretion was found in that 'defendants did not present sufficient reason to grant the continuance and there was ample time to interview the witness before his actual trial testimony began'. Similarly in People v. Snow, 26 Mich.App. 510, 519--520, 182 N.W.2d 820 (1970), Affirmed in substantial part, 386 Mich. 586 (1972), two prosecution witnesses were indorsed immediately before trial and a defense motion for a continuance was denied. This Court declined to find an abuse of discretion because the defendant could not demonstrate that he was prejudiced by the late indorsement. Again in People v. Zaluski, 28 Mich.App. 647, 648, 185 N.W.2d 198 (1970), prosecution witnesses were indorsed on the first day of trial, and the defendant's motion for a continuance was denied. This Court affirmed the action of the lower court in part because the defendant had two days to interview the witness because of an interruption caused by the scheduling of motion day.

The Michigan Supreme Court has had occasion to address itself to this issue in People v. Davis, 343 Mich. 348, 361--362, 72 N.W.2d 269 (1955). There, the trial court allowed a prosecution witness by the name of Mr. Pesch to be indorsed on the day before trial, Monday, January 12,...

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9 cases
  • State v. Edwards
    • United States
    • Arizona Supreme Court
    • March 27, 1979
    ...right to a speedy trial. Edwards attempts to distinguish Osuna-Sanchez, supra, and similar cases, E. g., People v. Stewart, 61 Mich.App. 167, 232 N.W.2d 347 (1975), that approve the use of interlocutory appeals by the state by pointing out that these cases involve appeals from trial court o......
  • People v. Missouri
    • United States
    • Court of Appeal of Michigan — District of US
    • July 25, 1980
    ...and defendant's application for leave to appeal to the Supreme Court are taken out of the calculation. People v. Stewart, 61 Mich.App. 167, 174, 232 N.W.2d 347 (1975), Hammond, supra, 84 Mich.App. at 67, 269 N.W.2d 488. Moreover, the record reflects that part of the delay was due to defenda......
  • People v. Barritt
    • United States
    • Court of Appeal of Michigan — District of US
    • October 14, 2021
    ...at 321, cited to a different case for the proposition, People v Stewart, 61 Mich.App. 167, 174; 232 N.W.2d 347 (1975). The panel in Stewart cited Supreme Court precedent and stated the rule in more general terms, explaining that "[t]he taking of an appeal by the state constitutes a good cau......
  • People v. Hence
    • United States
    • Court of Appeal of Michigan — District of US
    • October 6, 1981
    ...properly may determine the credibility of the witnesses. People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976), People v. Stewart, 61 Mich.App. 167, 232 N.W.2d 347 (1975), People v. Nettles, 41 Mich.App. 215, 199 N.W.2d 845 (1972). Here, that requirement was fulfilled, thus protecting defe......
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