People v. Gawthrop

308 N.W.2d 621, 106 Mich. App. 722

• Court: Michigan Court of Appeals
• Decided: June 3, 1981
• Docket: Docket 46055
• Status: Published

Opinions

R. H. Campbell, J.

Defendant appeals as of right after a jury convicted him on February 20, 1979, of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and felonious assault, MCL 750.82; MSA 28.277. On April 19, 1979, defendant was sentenced to concurrent prison terms of 4-1/2 to 15 years for the breaking and entering conviction and 2-1/2 to 4 years for the assault conviction.

Defendant argues that the trial judge erred in permitting the prosecutor to introduce at trial the testimony of an alleged accomplice who was not indorsed on the information. We agree but find that it was not reversible error for the reasons herein indicated.

During trial, defense counsel objected to the prosecutor’s calling Lionel Gonzales as a witness because Gonzales had not been indorsed on the information as one of the prosecution’s witnesses and because defendant had not received notice that Gonzales would testify. The trial court overruled defendant’s objection, holding that, because Gonzales was an alleged accomplice of defendant, it was not necessary for the prosecutor to have indorsed him before offering his testimony. MCL 767.40; MSA 28.980 requires the prosecutor to indorse on the information and produce at trial all res gestae witnesses whose identities are known by the prosecutor at the time the information is filed. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). The purpose of this rule is to insure a full disclosure of the facts surrounding the criminal incident, to protect the accused against the suppression of any testimony that may be favorable to him, and to give the defendant the benefit of cross-examination. People v Raider, 256 ; 239 NW 387 (1931). However, this general rule is not without exceptions.

One of these exceptions is that the prosecutor is not required to indorse or call as a witness any accomplice of the defendant. People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975), People v Czymanski, 52 Mich App 605; 218 NW2d 95 (1974). The reason for this exception was stated by the Supreme Court in People v Raider, supra, 135-136.

"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.”

In People v Thomas, 49 Mich App 682, 686-687; 212 NW2d 728 (1973), a panel of this Court rejected the claim of a defendant that the trial judge had erred in granting a prosecution motion to indorse an alleged accomplice after the jury had been impanelled. The Court concluded that because the prosecutor was not required to indorse an accomplice of the defendant, "error cannot be predicated upon his late, albeit unnecessary, motion to do so”. Similarly, in People v Lytal, 96 Mich App 140, 162; 292 NW2d 498 (1980), a panel of this Court considered the identical issue and found it to be without merit, "since the prosecutor has no obligation to indorse, produce or call an accomplice witness, his decision to do so at trial cannot be deemed improper”. We do not agree that these two cases were properly decided and we decline to follow them.

Both Lytal and Thomas based their conclusions upon the argument that, because a prosecutor has no duty to indorse or call an alleged accomplice of the defendant, the prosecutor may do so if he wishes without giving prior notice to the defendant. However, we believe that the conclusion of this argument does not follow from its premise. That is, the rationale for the rule that the prosecutor need not indorse or call an accomplice of the defendant is that a requirement that he do so would create an anomalous situation in which the prosecutor would be calling as his own a witness more likely to be favorable to the defendant. But that reasoning has no application in this or similar cases in which the prosecutor wishes to call an alleged accomplice whose testimony will not be adverse to the prosecutor. Thus, under these circumstances, the purpose of this exception to the general rule that the prosecutor must call all res gestae witnesses has no application and the prosecutor should be permitted to call the witness only if he has satisfied the dictates of the general rule.

Lytal and Thomas were wrongly decided because they applied a rule of criminal procedure to a situation in which it was not intended to be applicable. In doing so, these two cases used the rule, which was meant to be a shield for the prosecutor, in such a way as to permit it to become a sword. Finally, when critically examined, the rule that the prosecutor need not indorse or call witnesses who are alleged accomplices of the defendant violates the due process safeguards to which an accused is entitled.

We observe that the accomplice exception has been questioned by this Court. In People v Potts; 55 Mich App 622; 223 NW2d 96 (1974), this Court questioned the rule that a prosecutor has no duty to call an accomplice but found that the question was one for the Supreme Court and refused to modify what it regarded as binding precedent. In People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), another panel of this Court stated that it was not unlikely that the rule permitting -the prosecution not to indorse accomplices should be re-examined. Again, the Court considered itself bound by Supreme Court precedent that held that the prosecution is not obligated to indorse accomplices.

The Supreme Court itself has suggested that the accomplice exception need not apply in the instant situation. In People v Koukol, 262 Mich 529; 247 NW 738 (1933), the defendant was jointly charged with three other individuals. The prosecution moved to indorse these witnesses when the case was brought on for trial. The defendant objected at that point, claiming surprise and seeking a continuance. The Supreme Court found that, if these witnesses were indorsed, the defendant was entitled to a reasonable opportunity to prepare for trial. The Court found error in denying the defense motion for a continuance. While the Koukol Court made no reference to the accomplice exception in its opinion, it clearly applied the general rules regarding res gestae witnesses. Had the Court intended the accomplice exception rule to leave a prosecutor free to call an unindorsed accomplice witness at trial, without any notice to the defendant, the Koukol Court would not have found reversible error in the failure to grant a continuance.

We recognize that a prosecutor need not indorse any accomplice witness he does not anticipate calling. If, however, a prosecutor believes he might call an accomplice witness, we hold that he must indorse that accomplice, as he would any other res gestae witness. The prosecutor should designate on the information that he believes the witness is an accomplice. Should the prosecutor not wish to call that witness, he must move to strike that witness’s name from the information.

This rule provides a defendant with notice that the prosecution plans to call an accomplice. It also leaves intact the general accomplice exception, which was formulated to protect a prosecutor from calling accomplice witnesses who would be likely to perjure themselves for defendant’s benefit. People v Raider, supra. This new rule should be applied prospectively.

In the case at bar, although the defendant objected to the prosecutor calling Gonzales as a witness, he did not claim surprise. The trial record also discloses that cross-examination of Gonzales was very thorough. No issue raised by defendant in this appeal presents reversible error.

Thus, any error was harmless and we affirm the conviction.

M. F. Cavanagh, P.J., concurred.