People v. Saunders

243 N.W.2d 679, 68 Mich. App. 546, 1976 Mich. App. LEXIS 1029

• Court: Michigan Court of Appeals
• Decided: April 26, 1976
• Docket: Docket No. 21029
• Status: Published

Opinions

J. H. Gillis, P. J.

A jury found defendant, charged with armed robbery, guilty of larceny from a person, MCLA 750.357; MSA 28.589. He received a sentence of 3-1/2 to 10 years imprisonment. On defendant’s motion, this Court ordered a remand for a rehearing, in accordance with People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), to determine whether a new trial should be granted for failure of the prosecution to produce a res gestae witness at trial. From the trial court’s denial of a new trial, defendant appeals.

At trial the complaining witness, Ann Baker, testified that defendant held a knife against her back and took her purse containing $40 as she was carrying her wash from a Detroit laundry. Her son, James, although he did not see a knife, substantially corroborated his mother’s testimony. Ann Baker’s sister, Zinnia Baker, was helping Ann carry the laundry at the time of the alleged robbery. She was indorsed on the information but not produced at trial. At trial the court found that the prosecutor did not exercise due diligence in his attempts to produce this res gestae witness.

Defendant claimed that he was falsely accused of robbery. Characterizing himself as a con artist, he testified that he had tricked Ann Baker out of $40 by purporting to sell her a "hot” television in the alley behind the laundry. When the box supposedly containing a television was found to be empty, defendant alleges, Ann Baker invented a robbery to get even.

At the hearing on remand, Zinnia Baker offered extensive testimony concerning her recollection of the transactions involved on the day of the alleged robbery. She corroborated in all pertinent parts the basic testimony that her sister had previously given at trial. Minor inconsistencies between the sisters’ testimony did occur, the same as they generally occur between any two eyewitnesses. For example, the precise point where the defendant first appeared with the knife was inconsistent in minor details. There was a minor inconsistency as to whether or not a telephone call was immediately made by one of the sisters or was made a few minutes later. The trial court concluded that because the conflicts involved minor incidental matters, "it would not affect the outcome of the case no matter whose testimony of the two was believed in this regard”.

Having read the transcripts of the testimony taken at the remand, we are convinced that the trial court was correct in this determination. It is rather clear to the majority of this panel that the witness’s testimony was cumulative and not only would not have aided the defendant, but such testimony would have been beneficial to the prosecution.

We, therefore, conclude that Zinnia Baker’s testimony was cumulative and there was no miscarriage of justice.

Affirmed.

Quinn, J., concurred.