People v. Yarborough

• Decision Date: 28 May 1975
• Docket Number: Docket No. 19665,No. 1,1
• Citation: 61 Mich.App. 303,232 N.W.2d 394
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony YARBOROUGH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 394

232 N.W.2d 394

61 Mich.App. 303

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony YARBOROUGH, Defendant-Appellant.

Docket No. 19665.

Court of Appeals of Michigan, Division No. 1.

May 28, 1975.

Released for Publication Sept. 9, 1975.

Johnson, Sabbath & Smith, by William L. Johnson, 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., Steven Rabinowitz, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and BASHARA, JJ.

LESINSKI, Chief Judge.

Defendant, Anthony Yarborough, was charged with second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. A juty in Detroit Recorder's Court found the defendant guilty of the lesser included offense of manslaughter. M.C.L.A. § 750.321; M.S.A. § 28.553. He was sentenced to a prison term of from 10 to 15 years. He appeals as of right.

The information charged that the defendant murdered the two-year-old Michelle Test by pouring gasoline over her and lighting it. The offense occurred in the home of the deceased child's parents, Robert and Paulette Test. During the morning of May 9, 1973, Robert Test was painting his living room in the company of several friends, Sherry Lynn Johnson, Dannie Brown, John Henry Harris, and the defendant. All those present in the house were taking one or more of a variety of drugs including heroin, marijuana and pills. Although the testimony of the witnesses was conflicting at many points, they generally agreed that the defendant poured gasoline over the little girl, that a fight between Robert Test and the defendant ensued, that defendant was holding a pack of matches in his hand, and that the girl then burst into flames. Test stated that the defendant came after him with a lighted match and threw it at his daughter. The defendant denied having poured gasoline on the girl or having held a burning match. Sherry Johnson testified that she had not seen anyone throw a match, but in a statement she had given the police the day of the incident, she said that the defendant held a lighted match in his hand. John Henry Harris was not present at trial.

On appeal, defendant claims that the prosecution failed to exercise due diligence in its attempts to produce John Henry Harris at trial, and that the failure to produce a res gestae witness requires us to grant a new trial.

John Henry Harris was indorsed on the information and the prosecution was under a duty ot produce him to testify at trial. On the first day of trial, however, the police could not locate the witness and were unable to find him before the trial ended. The question thus became whether the prosecuting had exercised due diligence in its attempts to discharge its duty to produce the witness. The trial judge submitted this question to the jury:

'It is the duty of the People to produce all of the available eyewitnesses or exclude (sic) nonproduction in the proper way. It is the duty of the People to produce witnesses whose names were endorsed on the Information. A certain witness was not produced. There has been testimony offered of an effort to locate that witness with a subpoena for the purpose of bringing him into court and putting him on the stand in order that you might hear his story. Now, if that was a reasonable effort, if the Prosecutor has shown reasonable pain to find that witness and bring him here, then that duty has been discharged. If the Prosecutor has not used due diligence and failed to produce testimony that would be material and assist in unravelling this charge, then that duty has not been discharged. That is a matter that is fair and right for the jurors to take into consideration in determining the outcome of the case.

'As I said before, it is the duty of the Prosecutor to summon all witness--eyewitnesses to the crime. If the prosecutor fails to do so and in a sense such witnesses not satisfactorily explained or excused, you as jurors are at liberty to draw inferences that if such a witness was produced his testimony would be unfavorable to the People's case. The witness I am speaking of is John Henry Harris.'

This Court has held that a trial judge may determine the question of due diligence or may submit the issue to the jury with the instruction that the jury should presume the testimony of the absent witness to be unfavorable to the prosecution if due diligence was not exercised. People v. Dixon, 46 Mich.App. 754, 208 N.W.2d 535 (1973); People v. Ivy, 11 Mich.App. 427, 161 N.W.2d 403 (1968); People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). See People v. Serra, 301 Mich. 124, 3 N.W.2d 35 (1942). In order to justify sending the question to the jury, however, there must be sufficient evidence in the record to support a finding of due diligence. See People v. Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972); People v. Brown, 38 Mich.App. 69, 195 N.W.2d 806 (1972). The judge should not sent the issue of due diligence to the jury if it could be said as a matter of law that the prosecution did not exercise due diligence.

The evidence indicated that two weeks before a police officer had delivered a subpoena to the witness' supposed address and left the subpoena in the mailbox. Police assumed the subpoena had been delivered....