People v. Barker

171 N.W.2d 574, 18 Mich. App. 544

Opinions

T. M. Burns, J.

This is an appeal from the Wayne County Circuit Court wherein the trial judge, sitting without a jury, convicted defendant of possession of marijuana, MCLA § 335.153 (Stat Ann 1969 Cum Supp, § 18.1123), and sentenced him to serve four to ten years in prison.

The record shows that on July 23, 1966, the defendant voluntarily followed his two nephews to Bedford Township Police Headquarters where the boys were questioned about an alleged attempt to commit larceny at the Gay Drugstore in Bedford. From the record on appeal, it appears that when the defendant’s nephews were arrested they were in defendant’s car and that he followed the police immediately to the station. Further, it appears that he parked his car in front of the police station and went inside to wait for his nephews. While he was waiting, the Bedford police called the Detroit police and discovered that defendant had several outstanding traffic warrants. Defendant was placed under arrest to be held for the Detroit police.

At trial, Detective Sergeant Johnson testified that he “inventoried” defendant’s car, while defendant was awaiting removal to Detroit, without defendant’s permission. This “inventory”, which was in reality a thorough search, produced two cigarettes believed to be marijuana and some little particles thought to be marijuana seeds. These were subsequently analyzed and were found to be cannabis sativa or marijuana.

Defendant filed a timely motion to quash the information and suppress the evidence, and this motion was denied by the Honorable Carl M. Weideman on June 28, 1968. Defendant waived his right to a jury trial and was found guilty by Judge Burdick. Defendant appeals from this decision.

The defendant on appeal objects to the failure of the people to produce res gestae witnesses as required. MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980); People v. Kayne (1934), 268 Mich 186.

* The people claim that they made a diligent effort to insure the presence of these witnesses and the trial court agreed. "We do not.

Although the defendant and his nephews were arrested on the same day in July of 1966, and all the police officers who might incriminate the defendant were indorsed on the original complaint, it was not until a motion was made by defendant in January of 1968, that the people asked the court to indorse these possibly very important res gestae witnesses.

The record shows that the police made no attempt to question the two boys who were arrested while in defendant’s car about the marijuana, nor did they make any effort to find these witnesses for over a year and a half after the arrest of the defendant or to preserve their testimony. When they finally did make an attempt to subpoena the witnesses for trial the police relied on the addresses given to them at the time of arrest and assert that they sought to serve these witnesses only to find that they had moved some months before. 'No further attempt was made to locate these witnesses. Compare People v. O’Dell (1968), 10 Mich App 87.

The indorsement of the name of a witness on the information either' voluntarily ' or under order, as in this' case, creates a duty in the -prosecution' to produce such witness at the trial, and the defendant may rely upon the prosecutor to fulfill the obligation. People v. Lummis (1932), 260 Mich 170, People v. Ivy (1968), 11 Mich App 427, 430.

The trial court here improperly attempted to shift the responsibility for the production''of these-witnesses on to the defendant by its implied assertion that since defendant had not been in • custody thfe entire time between arrest and trial he should have found them and produced them. i ■ ¹

Although' certainly a showing of due diligenOe' in attempting to produce a witness will -excuse the prosecutor from production) People v. Ivy, supra, People v. Kern (1967), 6 Mich App 406, we cannot help but fold that the trial court erred ih its finding that there was due diligence under the facts of this case. See also People v. Tiner (1969), 17 Mich App 18.

This case seems to us to be paradigmatic of the command set down in People v. Kayne, supra, p 194 under which,

“the state is .required to indorse and call the witness or 'witnesses whose testimony is, necessary to protect the accused from, being the victim of ^ false accusation.” ' .

Therefore, we must reverse the conviction and remand for a new trial. At the retrial, if the people again fail to produce these res gestae witnesses.-and a showing of due diligence is not made,-we’think' it would be proper under People v. Ivy, supra, for..the coujd to consider that the' testimony of such witnesses w-ould. he adverse to the people’s case,

Reversed and remanded.

Bitzgerald, J., concurred-.

Among the res gestae witnesses whieh the people failed to produce at trial was the partner of the arresting officer. This officer was not indorsed, however, and defendant failed to make a timely objection. In fact, defense counsel specifically waived the production of this witness. Compare People v. Tiner (1969), 17 Mich App 18.