People v. Wingfield

• Decision Date: 11 June 1975
• Docket Number: Docket No. 20520,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Seeber Timothy WINGFIELD, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 220

233 N.W.2d 220

62 Mich.App. 161

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Seeber Timothy WINGFIELD, Jr., Defendant-Appellant.

Docket No. 20520.

Court of Appeals of Michigan, Division No. 2.

June 11, 1975.

Released for Publication Oct. 6, 1975.

Richard P. King, Flint, for defendant-appellant.

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

PER CURIAM.

Defendant was convicted by a jury of larceny in a building contrary to M.C.L.A. § 750.360; M.S.A. § 28.592, and appeals.

On August 20, 1973, at approximately 5:30 p.m. a man, later identified as the defendant, entered a service station driving a Cadillac automobile. The defendant asked the service station attendant to check under the hood and entered the station building for the apparent purpose of using the restroom. Mr. John Maser, a co-owner of the establishment, testified that as he entered the building to fill out a credit card billing for another customer the defendant was exiting the restroom. The defendant then asked Maser about the cost of new tires, whereupon Maser told defendant that he would give him a price when he finished with his other customer. Maser testified that upon returning to the station the defendant was leaving and that he went almost immediately into the office where the money was kept only to find it missing. Maser also testified that before the defendant entered the station the money was there and that no one else had entered the station.

Mr. Maser further testified that he got in his car and drove to another service station where he saw the defendant's car. Maser unsuccessfully attempted to block his exit but he was able to observe the license number of the Cadillac. One of the employees of that gas station called the police and defendant was later apprehended. Defendant first contends that there was insufficient evidence to support a jury verdict of guilty. While the prosecution's case was based solely on circumstantial evidence, such evidence is sufficient to support a verdict of guilty, if the facts proven not only point to the defendant's guilt but also are inconsistent with any other reasonably hypothesis upon which the defendant's innocence may be maintained. People v. Crown, 33 Mich.App. 266, 189 N.W.2d 810 (1971), People v. Morrow, 21 Mich.App. 603, 175 N.W.2d 523 (1970).

The defendant's being left alone in the service station coupled with the fact that the money was there when he entered and gone when he left, and the testimony that no one else was in the station prior to the money's being stolen was sufficient to support defendant's conviction.

Defendant next contends that the court erred in excusing the prosecution from producing a witness endorsed on the information.

The witness not produced was one Angela Nash who may have been in the automobile with defendant, although none of the witnesses got a good look at defendant's passenger. The car defendant was driving was registered to Ms. Nash. At trial officer Richard Lindstrom testified that on four occasions within a six-day span between the hours of 9:00 a.m. and 4:30 p.m. he went to the address listed on Nash's automobile registration. He found that the address had Nash's name on the door but on each visit no one was home. Officer Lindstrom also testified that he left his police department calling card, requesting her to telephone him and that upon returning to Nash's home the card was no longer in the door.

Officer Lindstrom further testified that he had a folder on Ms. Nash with a photograph of her. On cross-examination, the officer admitted he never attempted to reach Ms. Nash by telephone, nor did he check the telephone directory for her number, nor did he make any inquiries of her neighbors.

The trial court, after hearing arguments on defendant's motion, found that it was 'speculation' that Ms. Nash was a res gestae witness but did accept the assumption that Ms. Nash was the person accompanying the defendant in the Cadillac. The court, after elaborating that it was a question of discretion, held that the prosecutor was excused from producing Ms. Nash because their efforts satisfied the due diligence exception for nonproduction of a witness.

We feel obligated to comment on two statements of law made by the trial judge. First, the court stated that since the defendant presumably knew the witness, 'I believe that there is some duty on this defendant to produce that which he can produce * * *'. The court then indicated that since Ms. Nash was known to the defendant it is reasonable to infer that it was his trial tactics to tell her to hide out.

Until the prosecutor moved to excuse the production of Ms. Nash, the defendant had the right to presume, unless informed otherwise, that the prosecutor would produce all witnesses endorsed on the information. People v. Zabijak, 285 Mich. 164, 280 N.W. 149 (1938). The defendant had no 'duty' to produce Ms. Nash. Further, even assuming Ms. Nash was friendly to the defendant, the prosecutor was not relieved of his obligation to produce an endorsed witness. People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973).

If Ms. Nash was not a res gestae witness, the prosecutor was ¹ not required to endorse her name on the information. However, once she was endorsed the prosecutor was duty bound to produce her. People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). People v. Mitchell...