People v. Wynn
| Decision Date | 25 April 1975 |
| Docket Number | Docket No. 19808,No. 1,1 |
| Citation | 231 N.W.2d 269,60 Mich.App. 636 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie WYNN, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Townsend & Bibb, by Leonard Townsend, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and T. M. BURNS and MAHER, JJ.
Defendant Willie Wynn was originally charged with assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278, and was convicted by a jury on January 30, 1974, of assault with intent to do great bodily harm less than murder. M.C.L.A. § 750.84; M.S.A. § 28.279. He was sentenced on February 27, 1974, to a term of from 4 1/2 to 10 years in prison and now appeals.
The offense occurred on August 24, 1973, in the city of Detroit. Defendant went to the home of the complainant, Armstead Berry, in the company of James Moore and another person called Lavis, whose full name is unknown. Defendant's former girlfriend, Jeannette Riley, had allegedly been assaulted by Earl Berry, the brother of the complainant. The three men went to the Berry home to 'straighten things out' with Earl Berry. James Moore entered the Berry home and asked for Earl Berry, Mrs. Riley's alleged assailant. While James Moore was talking to Armstead Berry, the defendant entered the home and fired one shot. After the shot was fired, defendant was disarmed by persons inside the house. Defendant claimed at trial that the gun went off accidentally.
The prosecution failed to produce one indorsed witness, William Smith, complainant's borther-in-law, who was upstairs asleep at the time of the shooting. Furthermore, the prosecutor failed to indorse as witnesses James Moore, Lavis, and James Jones. According to the testimony of Police Officer Harrison Tolliver, one of the persons at the scene when Officer Tolliver arrived gave the name of James Jones to the police. Officer Tolliver testified that Jones was present during the altercation but had nothing to do with the shooting. He was told he could leave and was never produced. His name and address were taken and made a part of the preliminary complaint report. Police Officer Otis Eveans testified that he had talked to James Moore and James Jones and asked them both to leave the scene.
Defendant moved at trial to have Moore, Lavis, and Jones indorsed as res gestae witnesses. After listening to argument from both parties, the trial court not only ruled that these three men were res gestae witnesses, but also held that William Smith was a res gestae witness. The court further ruled that there was no showing of due diligence to produce any of them and that their nonproduction would not be excused.
As mentioned earlier, William Smith was asleep upstairs at the time of the shooting. The complainant and another witness testified that the people upstairs could not have known who was involved in the shooting In view of this testimony, it is clear that Smith's testimony would not have been significant even if he had been called.
The individual known only as Lavis was allegedly one of the parties that accompanied defendant to the Berry home. However, complainant testified at the preliminary examination that Lavis entered the home only after the shot went off. Judy Berry also testified to this at trial. Under these circumstances, we must conclude that since Lavis apparently did not witness the actual shooting, his testimony also would have been of little significance.
Next we come to the mysterious James Jones. Neither defendant nor complainant ever testified that anyone named James Jones was involved in the events prior to the shooting. Furthermore, none of the other witnesses who were present at the scene mentioned anyone named James Jones. The only time this name came up was during the testimony of the two police officers. In light of these facts, we cannot say that the testimony of this alleged witness was crucial to this case.
In its instructions the trial court told the jury that it was the duty of the people to produce all of the witnesses to a crime, and that if the people failed to do so, the jury 'was at liberty to draw the inference that if those witnesses were produced, their testimony would be unfavorable to the people's case'.
It is the clear trend of appellate authority in this state that every failure to indorse a res gestae witness and that every failure to exercise due diligence to produce an indorsed...
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People v. Pearson
...jury that it could infer Moore's testimony would have been unfavorable to the prosecution. The Court of Appeals reversed. 60 Mich.App. 636, 231 N.W.2d 269 (1975). We agree that there was a lack of due diligence. Of particular concern is the fact that an obvious res gestae witness was not in......
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People v. Khan
...69 Mich.App. 81, 244 N.W.2d 338 (1976). But see, People v. Schwartz, 62 Mich.App. 188, 233 N.W.2d 517 (1975), People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975), People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975), and People v. Staples, 68 Mich.App. 220, 242 N.W.2d 74 Next, defen......
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People v. Mays
...was error to fail to indorse her name on the information and call her as a prosecution witness. [64 MICHAPP 459] Cf. People v. Wynn, 60 Mich.App. 636, 231 N.W.2d 269 (1975). Since no reversible error results from the prosecutor's failure to indorse and produce res gestae witnesses whose tes......
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People v. Baines, Docket No. 22369
...when a hearing has already been held and the trial court has already excused the witness's production. But see, People v. Wynn, 60 Mich.App. 636, 640, 231 N.W.2d 269 (1975). A motion for a new trial should have been filed in this case since defendant could not have filed his claim of appeal......