People v. Heading

197 N.W.2d 325, 39 Mich. App. 126, 1972 Mich. App. LEXIS 1413
CourtMichigan Court of Appeals
DecidedMarch 21, 1972
DocketDocket 9264, 9336
StatusPublished
Cited by31 cases

This text of 197 N.W.2d 325 (People v. Heading) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Heading, 197 N.W.2d 325, 39 Mich. App. 126, 1972 Mich. App. LEXIS 1413 (Mich. Ct. App. 1972).

Opinion

Bronson, J.

After a joint jury trial in the Bay County Circuit Court, defendants were convicted of armed robbery (MCLA § 750.529 [Stat Ann 1971 Cum Supp § 28.797]) and kidnapping (MCLA § 750.349 [Stat Ann 1954 Rev § 28.581]). Defendants were represented by separate counsel. Each defendant now appeals the denial of his motion for a new *129 trial. This Court ordered the cases consolidated for hearing on the merits.

During the second day of trial, the trial court granted the prosecution’s motion for leave to indorse on the information the name of one Rosemary Weisheim and to call her as a prosecution witness. Defense counsel objected then and renew their objections now.

The prosecution must indorse on all informations filed by it the names of all res gestae witnesses known to it at the time of filing. MCLA § 767.40 (Stat Ann 1971 Cum Supp § 28.980). The late indorsement of witnesses on an already filed information is a matter within the trial judge’s discretion. People v Cor mandy (1969), 16 Mich App 517. Similarly, when a late indorsement of a witness is allowed, the granting to the defense of a continuance is a matter of discretion. People v Cormandy, supra. We do not believe that the trial judge in this case abused his discretion.

Miss Weisheim was arrested with defendants and charged in juvenile court as an accomplice. She was not cleared of such charges until the first day of defendants’ trial. The prosecution need not indorse individuals charged as accomplices. People v Chaney (1970), 21 Mich App 120; People v Geer (1970), 22 Mich App 47. Therefore, it was not improper for the prosecution to withhold her name from the information until she had been cleared of complicity in the affair.

Defendants, have not convinced us that the late indorsement of Miss Weisheim prejudiced the preparation and presentation of their case. See People v Lee (1943), 307 Mich 743, 750; People v Schoonover (1943), 304 Mich 355, 362; and People v Talison (1970), 21 Mich App 459, 463. Prior to their joint arrest, Miss Weisheim had spent the entire day with *130 defendants and defendant Grenier’s stepson. She was an acquaintance of the stepson. It is inconceivable that defense counsel, after interviewing their clients, did not know and could not find the name of their female passenger and that she had been turned over to the juvenile authorities. In addition, the trial judge granted defendants a four-day recess. Counsel had ample time to investigate Miss Weisheim and to prepare adequate cross-examination.

Defendants next claim it was error for the trial judge to have been present when their counsel first interviewed Miss Weisheim in chambers. Defendants have shown no prejudice by the trial judge’s advance knowledge of Miss Weisheim’s probable testimony. Subsequent to permitting her late indorsement, the trial court was not called upon to consider the admissibility of any part of her . testimony nor to make any preliminary determinations of fact based thereon. Furthermore, the trial judge offered to absent himself from the interview, but defense counsel did not think that necessary.

Shortly after their arrest defendants were identified by the victim in a lineup. That lineup was recorded on video tape, and the tape was accepted into evidence as a prosecution exhibit. Defendants’ counsel was present at the lineup. Defendants do not challenge the propriety of the lineup. However, they cto challenge the video tape’s admission into evidence.

Defendants argue that the video tape of the lineup violated defendants’ privilege against self-incrimination. We disagree. Participation in a lineup does not compel a defendant to be a witness against himself. United States v Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). Participants in a lineup may be required to make gestures, wear specified clothes, or give voice samples. Schmerber *131 v California (1966), 384 US 757 (86 S Ct 1826, 16 L Ed 2d 908); United States v Wade, supra. As video tapes merely reproduce an accused’s physical participation in a lineup, they aid in reconstructing lineups for trial judges who are called upon to determine their legality; a problem alluded to in Wade. A mere reproduction of an accused’s participation in a lineup does not involve testimony or communication by the accused and is not violative of the privilege against self-incrimination.

A video tape of a lineup, however, may not replace in-court testimony by the identifying party. If the identifier does not testify, showing the tape is hearsay evidence which denies an accused his right to confront the witnesses against him. Cf. Bruton v United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476). In this case the victim did testify and was thoroughly cross-examined on his identification of defendants.

The legality of a lineup is a question for the trial judge. If a lineup is found to be legal, the jury is limited to determining the weight and credibility to be given to that and any subsequent identification. People v Walker (1965), 374 Mich 331, 337-338; People v Hutton (1970), 21 Mich App 312. The question before us is what evidence may a jury hear in such a case. In Walker, a case dealing with voluntary confessions, our Supreme Court did not decide what evidence the jury could hear if the confession was admitted. The traditional rule is that all of the evidence admissible on the question of voluntariness may be shown to the jury on the question of the weight and credibility to be accorded the confession. 3 Wigmore on Evidence (3d ed), § 861, p 570; 1 Gillespie, Michigan Criminal Law & Procedure (2d ed, 1971 Cum Supp), § 527, p 214. Analogously, the circumstances of a lineup considered by the trial *132 court in determining the propriety of that lineup may be introduced to the jury for its determination of weight and credibility. Since the trial judge may use the video tape to determine the legality of the lineup, the jury may consider the video tape to determine the weight and credibility it should be given. As the defendants do not challenge the propriety of the lineup in which they participated, the video tape recording was properly submitted to the jury, if a proper foundation was laid for its admission.

A video tape is nothing more than a motion picture synchronized with a sound recording. Therefore, a complete video tape may be received into evidence if the offering party lays the foundation necessary to admit a motion picture and the foundation necessary to admit a sound recording.

Because it was garbled, the trial judge refused to admit into evidence the video tape’s audio portion. That was within his discretion. People v Cash (1970), 28 Mich App 1, 6-7.

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Bluebook (online)
197 N.W.2d 325, 39 Mich. App. 126, 1972 Mich. App. LEXIS 1413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-heading-michctapp-1972.