People v. Ball

389 N.W.2d 122, 150 Mich. App. 535

• Court: Michigan Court of Appeals
• Decided: April 8, 1986
• Docket: Docket No. 80814
• Status: Published

Opinion

Per Curiam.

Defendant, Phillippe Francois Ball, was charged with malicious destruction of lawns and turf, MCL 750.382; MSA 28.614, and reckless driving, MCL 257.626; MSA 9.2326. Following a jury trial in district court, he was convicted of reckless driving. The jury was unable to reach a verdict on the malicious destruction charge. Defendant appealed to circuit court. There he argued that (1) the evidence did not establish the crime of reckless driving and that (2) the trial court erred in failing to instruct the jury that a missing res gestae witness’s testimony should be presumed favorable to defendant. The circuit court reversed defendant’s conviction because of the district court’s failure to give the res gestae instruction, subject to the prosecutor’s right to seek a post-remand hearing as to whether due diligence had been used to secure the witness’s presence and whether defendant had been prejudiced by the witness’s absence. The circuit court also found that the evidence was sufficient to establish the crime of reckless driving beyond a reasonable doubt. We granted the prosecutor’s application for leave to appeal.

First we consider whether the circuit court erred in applying the res gestae rule to a misdemeanor case such as this one. We believe that the circuit court improperly applied the res gestae rule to this misdemeanor case. The prosecutor’s duty to endorse and produce all res gestae witnesses arises from statute, MCL 767.40; MSA 28.980:

"Sec. 40. All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names 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.”

We stated in People v Chapman, 73 Mich App 547, 553; 252 NW2d 511 (1977), lv den 400 Mich 835 (1977), cert den 434 US 956 (1977), that:

"However, the duty to indorse res gestate witnesses is statutory, MCL 767.40; MSA 28.980, and we are aware of no statute or case requiring the indorsement of witnesses when a misdemeanor prosecution proceeds directly from a complaint rather than an information.”

Under the statute, the duty attaches where a felony prosecution results from an information. Because we find that the prosecutor was under no duty to produce the witness, Ms. McElmeel, we find no reversible error arising from the failure to produce her. Therefore, we think that the circuit court erred in ruling that the res gestae instruction should have been given, and we therefore reverse the circuit court’s reversal of defendant’s conviction and affirm the district court’s conviction of defendant.

Defendant also claims on appeal that the evidence was insufficient to convict him of reckless driving. We cannot consider this improperly raised claim, given defendant’s failure to file a claim of cross-appeal after March 1, 1985, the date that the new court rules became effective and MCR 7.207(A)(1) extended the right of filing cross-appeals to criminal defendants. Moreover, we think that this claim is without merit and that the evidence was sufficient for a rational trier of fact to find defendant guilty of reckless driving beyond a reasonable doubt.

Reversed.