People v. Toneff
| Decision Date | 26 November 1971 |
| Docket Number | No. 2,Docket No. 10182,2 |
| Citation | 37 Mich.App. 221,194 N.W.2d 390 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry N. TONEFF, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
E. J. McCormick, Jr., McCormick & McCormick, Monroe, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and HOLBROOK and VanVALKENBURG *, JJ.
Defendant was found guilty by a jury of breaking and entering with intent to commit a larceny. M.C.L.A. § 750.110 (Stat.Ann.1971 Cum.Supp. § 28.305). Defendant appeals and asserts that reversible error resulted from (1) the failure of the prosecutor to indorse on the information and call two accomplices and (2) the trial court's admission of a statement made by defendant to the police.
Although the prosecutor is under a general obligation to indorse and call as witnesses all noncumulative Res gestae witnesses, this duty does not extend to the calling of accomplices. People v. Brown (1969), 15 Mich.App. 600, 167 N.W.2d 107; People v. Chaney (1970), 21 Mich.App. 120, 174 N.W.2d 919; People v. Morgan (1970), 24 Mich.App. 660, 180 N.W.2d 842; People v. Sanders (1970), 28 Mich.App. 510, 184 N.W.2d 487; People v. Moore (1971), 29 Mich.App. 597, 185 N.W.2d 834. No error resulted from the failure of the prosecutor to indorse and call the two accomplices.
At trial defendant asserted that the statement given by him to the police was induced by a promise of leniency. A Walker 1 hearing was held. The trial court found that the statement was freely and voluntarily given and was not induced either by threats or promises. A determination of voluntariness by the trial court following a Walker hearing will not be overruled by this Court unless clearly erroneous. People v. Hummel (1969), 19 Mich.App. 266, 172 N.W.2d 550; People v. Stewart (1970), 25 Mich.App. 204, 181 N.W.2d 14; People v. Werner (1970), 26 Mich.App. 109, 182 N.W.2d 13; People v. Kelly (1971), 30 Mich.App. 154, 186 N.W.2d 72. A review of the record fails to substantiate any claim that the trial court's determination was clearly erroneous. The statement was, therefore, properly admitted into evidence.
Affirmed.
* WADE VanVALKENBURG, former Circuit Court Judge, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.
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People v. Gilbert, Docket No. 15536
... ... The trial court found that the confessions were voluntarily made. The findings of a trial court in a Walker hearing will only be reversed on appeal if they are clearly erroneous. People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969), and People v. Toneff, 37 Mich.App. 221, 194 N.W.2d 390 ... (1971). A review of the record fails to substantiate any claim that the trial court's determination was clearly erroneous ... Defendant also challenges the propriety of the trial court's jury instructions. After the defendant's confession ... ...
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...834 (1971). No error resulted from the failure of the prosecutor to indorse and call the two accomplices.' People v. Toneff, 37 Mich.App. 221, 222, 194 N.W.2d 390, 391 (1971). I am perfectly willing to concede that the accomplice exception rule may be bad law, but it remains the law. As Jud......
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