People v. Horace Williams

258 N.W.2d 737, 77 Mich. App. 402, 1977 Mich. App. LEXIS 1025

• Court: Michigan Court of Appeals
• Decided: August 22, 1977
• Docket: Docket 24440
• Status: Published

Opinions

D. E. Holbrook, P. J.

We concur in the factual findings contained in the dissenting opinion. However we find no "dilemma” with respect to raising the issue of production of res gestae witnesses. Appellate counsel was appointed on April 9, 1975, and had 60 days in which to either file a motion for new trial on the res gestae witness issue or file a claim of appeal, GCR 1963, 803.1. Claim of appeal was filed on June 9, 1975. Neither defendant nor the dissent cite any reason as to why a motion for new trial could not have been filed within that time. Defendant did finally file a motion for remand on September 26, 1975, however, this motion was too late to preserve the issue. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).

Furthermore, we are convinced that another reason bars appellate review. Defendant could, and should, have raised this issue at trial. Defendant contends that all of the people who attended the fashion show were res gestae witnesses. We agree with the dissent that resolution of this issue is not ripe for appellate review. However, defendant knew who these people were and failed to move for their production. Defendant selectively produced several of these people as defense witnesses. Defendant did not move for the indorsement of any additional witnesses. It appears that defendant had lists of people who had purchased tickets, modeled in the show and engaged in various activities connected with the show. Failure to move for indorsement and production of these known witnesses should bar the claim on appeal. People v Bennett, 68 Mich App 446; 243 NW2d 15 (1976), People v Howell, 396 Mich 16; 238 NW2d 148 (1976). The defendant should have moved for their production and we cannot help but conclude that failure to so move was a matter of trial strategy. In addition, the dissent allows defendant to raise his own error on appeal. Defendant has gambled and lost. At trial selective production by the defense of several of these witnesses did not result in a favorable verdict for defendant. Now, defendant desires to try the other alternative, production of everyone connected with the show. Defendant’s failure to properly pursue this issue especially when it does not appear likely that these people were in fact res gestae witnesses should preclude appellate review of this issue.

Defendant’s failure to move at trial for production of these witnesses and his later failure to move for a new trial precludes him from raising this issue.

We remand for resentencing as explained in the dissenting opinion. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975).

Affirmed, except for remand for resentencing.

R. E. A. Boyle, J., concurred.