People v. Johnson
272 N.W.2d 672
Mich. Ct. App.
1978
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*1 App 86 REMAND) (AFTER v JERRY JOHNSON PEOPLE 9, 1978, Rapids. February at Grand No. 77-1573. Submitted Docket denied, —. 406 Mich appeal Leave to 1978. Decided October possession marijuana Jerry R. Johnson was convicted Appeals appealed. The Court of intent to deliver. The defendant hearing to trial court for a Robinson deter- remanded to the witness, testimony gestae who was mine of a res whether trial, might produced in have affected the results App 697 The witness was located produced hearing. Barry in Circuit After Robinson, J., it was determined that testi- Richard mony merely and that the defendant was not cumulative appeals, alleging that the entitled to a new trial. in that the of the witness trial court erred cumulative. Held: quite to a new trial since it is clear The defendant is entitled may to a of this witness well lead different verdict. Reversed and remanded. Gillis, P.J., H. dissented. He would hold that the trial correct because the

court’s determination was witness offered no further as to the transaction question. He would affirm.

Opinion op the Court Gestae Witnesses —Failure 1. Witnesses —Criminal Law —Res Hearing. Witness —New Trial —Robinson Produce upon prosecu- to a new trial based A defendant is entitled where, produce gestae at trial tion’s failure to a res appeal, Appeals remanded defendant’s initial the Court of at which to the trial court to hold a Robinson testified, Appeals formerly and the Court clearly more now convinced that [1, [3] 81 Am Jur Witnesses 2.§ 2] 58 Am Jur Am Jur 2d, 2d, References 2d, Criminal Law New Trial §§ for Points §§ 41,169,171, 351-353. Headnotes Opinion of the Court' than cumulative well lead to a different verdict at a new trial. *2 J. H. J.P. 2. Law —Res Witnesses —Criminal Gestae to Witnesses —Failure Hearing Produce Witness —Robinson —New Trial. trial, A defendant is not to prosecu- entitled on new based produce gestae trial, tion’s failure to a res witness at where the court, subsequent trial, trial hearing to held a Robinson testiñed, missing which the witness and careful of review the supports record the trial court’s determination that the wit- testimony ness’s offered no further as to the testimony transaction other than originally presented at the defendant’s trial. Privilege 3. Witnesses —Criminal Law —Constitutional Law — Against Self-Incrimination. improper prosecution It is or defense to call a witness to testify where it is going known before-hand that the witness is against privilege to assert his Fifth Amendment self-incrimina- questions. tion and refuse to answer Kelley, Frank Robert A. General, Attorney Derengoski, Gary General, R. Hol- Solicitor man, Prosecuting Attorney (Prosecuting Attorneys Nelson, Service, Thomas C. Appellate Assistant General, counsel), Attorney of people. Wickett, Erickson, P.C., Haslett, Bartl & defendant on appeal. P.J.,

Before: J. H. and R. B. Burns JJ. Allen, 31, 1974, J. On October defendant was

Allen, convicted Barry County Circuit Court possession of deliver, with intent to to contrary 335.341(1)(c); MCL MSA 18.1070(41)(l)(c). The case was ap subsequently pealed 68 App 697; Mich 243 NW2d 715 and re- Mich op Opinion the Court hearing pursuant Robin- to manded record son, 555; 218 NW2d produce a res failed reveals gestae been could have whose witness disputed important at trial. issues relevant gestae Upon witness remand, res pur- held for was and a was located pose September taking ruled that the trial court After missing merely cumula- to a not entitled and, hence, tive contending appeals, Defendant new court erred trial cumulative. hearing upon agree theAt defendant. We gestae formerly res remand occasions. on four invoked *3 questions key evasive. his On transcript illustrative: simple. Wickett, very It’s defense "Q. counsel] [Mr. bag you that Sunday. Did see there Question: You were time? there at that I said I Wickett, you once. already I asked "A. Mr. attorney over this my have to advise really would getting involved. it’s because your I think Magnum, Mr. don’t "THE COURT: I you, so incriminate question would answer to that you to answer. direct rights Well, my own I think I have "THE WITNESS:

too, I?” attorney to an don’t "Q. you that cost? Do know how much — "A. Well possibly Again, your answer "THE COURT: know, you incriminate, I instruct I so so don’t could' again you may not answer. that. going I to answer "THE ain’t WITNESS: Wickett) any you Did contribute "Q. (By Charles op Opinion the Court money purchase? Again you towards its ask should Judge. Again, your

"THE might COURT: answer tend to you you incriminate so have that in mind an- before swer. am answering ques-

"THE WITNESS: I no more tions.” strongly

We are convinced—and so—that had jury heard at trial the same as the gave jury at the Robinson viewed and heard the witness’s on the evasiveness key forming of the transaction the basis conviction, had defense counsel been able impeach prior to receiving the witness for a conviction of property,1 jury

stolen verdict well have been different. Because the witness was prosecution not called did not hear testimony. effect, In the defendant was denied being so, a fair trial. but This Giacalone, (1977), 645; 250 NW2d 492 proper procedure this case would be new preclude people

Does Giacalone a new trial? The argue "yes” the answer is since Giacalone prosecution holds that where either the or defense knows witness will assert Fifth Amendment rights it is error to call such witness. "The American relating Bar Association standards provide

the unprofessional and defense it functions prosecutor conduct lawyer or a *4 representing a defendant 'knowingly purpose bringing and for the inad- "— missible matter to the the judge jury attention of or to evidence’; offer inadmissible "—'to call a witness who he will claim a valid knows prior At the Robinson witness he had indicated receiving property. conviction for stolen App 430 86 Mich Gillis, by H. P.J. J. impressing purpose of testify, for the not to privilege ” privilege.’ the fact of the claim

upon Giacalone, supra, goes far. that Giacalone so persuaded We are ac as a witness an There, called prosecutor in advance prosecutor knew whom complice, case, of the assertion Fifth. In that take the would to prejudicial rights highly since Here, situation is reversed the defendant. silent, if remaining to the witness’s resort here prejudices the defendant helps anything, reasons, is clearly Giacalone these For plaintiff. in this opinion initial In our distinguishable. 697; call the failure to we held that NW2d sufficient error gestae witness was missing res Now, remand, quite it is on mandate remand. to well the witness’s to us that clear so, being This verdict. to a different lead Ac more than is clearly cumulative. and remand trial court we reverse the cordingly, new trial.2 remanded for a new Reversed J., Burns, R. B. concurred. out (dissenting). pointed H. P.J. As contends, inter defendant appeal majority,

alia, court erred the trial witness was cumulative. of the During appeal his first of the argued two reasons. his defense important able to First, have been might prison April of defendant’s sentence On execution pending the years stayed by the trial court 18 months to 4 appeal. present outcome *5 Jerry Gillis, by J. H. P.J. Dissent testify marijuana about the how came to be defendant’s house trailer since he had visited previous police day Also, trailer during to the raid. marijuana the raid some was found in the Second, witness’s automobile. police witness could have the secret been infor- provided police mant who had with informa- concerning tion found defend- trailer. ant’s put Defendant had indicated desire entrapment police

forth an defense if the informant could be located. recognized materiality

This Court of defend- arguments ant’s and stated: and, produced, "If the hearing witness is after his testimony, merely court is at that time convinced it that is cumulative, then Jerry defendant Johnson’s conviction will be affirmed. If produced, and, testimony, after court convinced nature, that it contains new evidence of a material then Jerry new trial is ordered toas Johnson.” 697, App 702-703; Mich NW2d 715 opinion,

The circuit court’s which concluded that cumulative, summarized the witness’s as follows: January "That on he was in defendant’s home the time the present Johnson, officers arrived also defendant, wife, were Marty defendant’s Dawn wife, Warner; Warner and Warner’s Mary Sue gone that witness business; there on that he did recall what present; the officers said he while that in, the officers came went from room to room and found 'pot’ some it; doesn’t know they where found —he placed the officers this substance on at in the counter and the time plastic bags; it was in that he had been defendant’s home for one-half to one hour before the arrived; officers defendant was friend 86 by J. H. P.J. home defendant’s went and that witness part no owned the witness every day; nor did he by the officers was seized marijuana which it; he acquired he go the defendant when *6 the raid Sunday night before house on in defendant’s time; did not that he bag 'pot’ at saw no and inform the in de- presence of police of the his 5th point exercised at one house. Witness fendant’s by defense questioned he right when Amendment drug in related possible involvement to his counsel as

activities.” supports the trial record review of the

A careful missing witness’s testi- determination. court’s mony as to no further offered other than transaction originally People presented v trial. at defendant’s App 431; 245 NW2d 78 Keefe, 69 Mich 546; 243 NW2d Saunders, 68 Mich (1976). is no indica- noted that there It also be should any tion whatsoever investigation resulted which connection with witness’s use arrest. The in defendant’s response coun- to defense Fifth Amendment suggests questions well have that he sel’s light accomplice. Additionally, been an rights, assertion of his improper de- or it would be subsequent testify any fense to call him to Giacalone, 642; 250 NW2d by do The other issues raised not, in do this Court and warrant discussion my opinion, reversible error. constitute

I affirm the conviction. would