People v. Watkins, Docket Nos. 8938
| Decision Date | 24 March 1971 |
| Docket Number | 9047,Docket Nos. 8938,8975,No. 2,2 |
| Citation | 31 Mich.App. 599,188 N.W.2d 53 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry WATKINS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy VAUGHN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Judge JONES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
W. Schuyler Seymour, Jr., Draper, Daniel & Ruhala, Flint, for vaughn.
Jeffrey Chimovitz, White & White, Flint, for Jones.
John T. Connolly, Flint, for Watkins.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
The basic facts concerning this criminal action are as follows:
At approximately 6:45 a.m. on August 3, 1969, a group of people were congregated at a house at 617 East Baker Street, Flint, Michigan. At that time, three men entered the dwelling together and mingled with the persons already there, some of whom were shooting dice and some of whom were drinking. Some 45 minutes later, the trio went into action. One pointed a shotgun, previously concealed, at the group, another stood by and a third wandered among the victims, picking or emptying their pockets. The shotgun wielder, in fact, told the wanderer, The three, after taking over $410, fled from the house. The police were immediately called by the victims and a complaint was subsequently filed with the Flint police department by Roy Beauregarde, the owner of the house. Defendants Willie Judge Jones, Henry Watkins, and Tommy Vaughn were arrested in the next few weeks. All were convicted by a jury of the crime of armed robbery, M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797), and sentenced to various terms in prison.
Among those present at the house that morning were four witnesses who were not indorsed on the information, although they were known by nicknames to both the prosecutor and defendants as early as the preliminary examination. At trial all defendants moved for a mistrial on the basis of the people's failure to indorse the witnesses and their motion was denied. The prople then moved to indorse these witnesses; that motion, opposed by defendants, was granted and the additional witnesses were indorsed, subpoenaed, and produced. Before it came time for these witnesses to testify, defendants were allowed a brief period with which to confer with the witnesses regarding their testimony. Surprisingly enough, the testimony of the two witnesses who were actually called was favorable to defendants. All defendants claim reversible error on this issue.
M.C.L.A. § 767.40 (Stat.Ann.1971 Cum.Supp. § 28.980), requires that the prosecutor prior to trial indorse on the information the names of all witnesses known to him at that time who form part of the Res gestae. It further provides that, '(n)ames 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.'
Pursuant to the above statute, the Court has very wide discretion in this matter of late indorsement and such discretion will not be upset unless abuse is clearly shown. This discretion should be and is even wider where the identity of the witness is known to the defendants as well as the prosecutor, and, therefore, no surprise can be shown. People v. Rasmus (1967), 8 Mich.App. 239, 154 N.W.2d 590. The law concerning late indorsement has frequently been before this Court, and we have consistently followed the familiar rule stated in People v. McCrea (1942), 303 Mich. 213, 6 N.W.2d 489, and People v. Davis (1955), 343 Mich. 348, 72 N.W.2d 269, reaffirming that the ultimate question for a reviewing court is whether the trial court abused its discretion and that the burden ordinarily rests on the party asserting the abuse. Defendants fall far short of sustaining that burden.
The next contention by defendant Vaughn is that his representation by counsel was insufficient. He claims that even though the preliminary examination was rather lengthy and the trial lasted 19 hours with all defense counsel vigorously protecting the rights of all the defendants, that his counsel was inadequate under the rule of People v....
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