*1 52 v JONES PEOPLE of Witnesses—Res Gestae of Wit- 1. Criminal Law—Indorsement During Crime. nesses—Presence presence persons at occurrence does mean of an mere testimony as make such as witnesses so are gestae; only upon light res if their would cast persons light do the res such become casts some subject prosecutor’s therefore the of a and res produce. duty and to indorse of Witnesses—Res Gestae Wit- 2. Criminal Law—Indorsement Crime—Presumptions. During nesses—Presence persons presumption established to have It is a rebuttable perpetration proximity a crime its are close light gestae; upon the would cast witnesses whose therefore, improperly persons two concluded that a trial court it was where uncontroverted were not res crime, of an and time tending no record evidence rebut where the contains presumption that the two 3. Criminal Law—Indorsement Witnesses—Cumulativeness— Appeal Error. excusing calling ruling from A trial which results whom have a as a witness one cumulativeness, prosecutorial ground claims of where timely objection, carefully. defendant has made scrutinized 4. Criminal Law—Indorsement Witnesses—Cumulativeness— Probative Value. concept of cumulativeness envisions that therefore, value; probative additional witnesses has little or no preceding record where witness had an extensive criminal [1, 2, 6, [3—5] [7] 41 Am Jur 58 Am Witnesses 554. 8] 21 Am Jur Jur, 2d, References Indictments and 2d, Criminal § for Points in Headnotes Law Informations § 118. §§ 221-225. v Jones prison, of trial incarcerated in was at the time his testi- given weight mony may jury, little have been and it testimony by even identical cannot be said that the excluded persuasive been so devoid of witnesses would have value and *2 merely cumulative. as to be effect Witnesses—Accomplices—Evi- 5. Criminal Law—Indorsement of dence. prosecutor’s duty A that he should relieved assertion be of his produce by indorse and witnesses reason of the accomplices of the were defendant was without where there no evidence that the two merit witnesses were involved the crime. 6. of Criminal Law—Indorsement Witnesses—Res Gestae Wit- nesses—Accomplices—Appeal and Error. argue A will heard to both not be that witnesses he failed to indorse were not res and witnesses and accomplices. Information—Separate 7. Indictment Offenses—"Sell or Dis- pense” Heroin. ground duplicity An infirm on information was not because statutory language "selling dispensing” it used the (MCLA335.152). or heroin Brennan, V. J. J. Concurrence 8. Criminal Law—Indorsement of Witnesses—Res Gestae Wit- nesses—Accomplices—Evidentiary Hearing. evidentiary hearing persons
An to determine whether two prosecution indorsed as were res nesses should include determination whether those witnesses accomplices of the defendant because there is no part as indorse charged accomplices. those who could have been Appeal Washtenaw, from Conlin, John W. J. 8, 1973, Submitted Division 2 October Lansing. (Docket 14403.) No. April Decided 1974. Frank Jones was convicted of unlawfully selling or dispensing heroin. Defendant Re- appeals. manded for further proceedings with instructions. op
Frank Robert A. General, Attorney Kelley, J. F Delhey, General, William Derengoski, Solicitor Baker, Basil A. Assist- Attorney, Prosecuting people. for the Prosecuting Attorney, ant Pierce, for defendant. W Richard J., Burns, P. and V. J. M. Brennan Before: T. Valkenburg,* JJ. and Van Valkenburg, J. Defendant was found Van or unlawfully selling dispensing guilty by jury 335.152; 18.1122, MCLA MSA contrary to heroin term of from 20 prison to a was sentenced right. appeals as years, and at trial showed that an testimony adduced agent went to a certain motel narcotics undercover *3 to heroin from purchase in de- room Ann Arbor room which was agent entered the fendant. defendant, wife, his another adult occupied by males, female, or three three other adult in the testified that while agent children. The packets from four he defendant purchased room packet. for heroin $5 prior to trial defendant moved
Some six months (de- Maggie Jones on the information to indorse Luckett, wife), Cole, Myron Teresa Ricky fendant’s Luckett, these Drewery, alleging Thomas the in the room at time individuals and were thus res wit- alleged sale time, at which hearing A was held nesses. Cole testified that he and above-men- Ricky at the time of individuals were in the room tioned apparently court took sale. trial however, advisement; there is no the matter under * sitting by assign judge, Appeals circuit on the 6, Former Court pursuant ment to Const art 23 as in 1968. § amended Jones v passed he indication motion to prior trial. indorse to of trial
Prior to the commencement defendant to indorse. The his motion renewed court .trial had not been a sufficient showing ruled there were, fact, nesses; however, the court indicated that he would if the indorse said witnesses evidence adduced at trial showed that the witnesses were res gestae During witnesses. trial defendant renewed his mo- tion to At time indorse. or- of Ricky dered indorsement Cole and Thomas however, Drewery; the court refused to indorse the Lucketts. testified,
Drewery essence, was called and that he was the room the time the Cole, agent hand, there. other testified that he inwas the room at the the agent time there, but defendant did not sell the heroin agent but gave it to agent. rather Following yet Cole’s testimony again moved indorse the Lucketts as res In response to this renewal the trial court stated: "However, the Court feel does such if it would be in the nature of Mr. Cole’s only be cumulative if is in the nature of [and] * * * Drewery’s Thomas ful help- it wouldn’t be anybody, Iso believe I will deny the for motion them be added as res witnesses.” *4 The defense thereafter brought rested and the jury in the aforementioned verdict.
Defendant in his for motion trial new raised as one of his issues the failure of the to indorse ánd the Lucketts as gestae res witnesses. The trial court opinion its denying the motion for a new trial stated: App 522 52 Mich
526 testimony again moved to Cole’s after "The defendant The res witnesses. the Lucketts as add again the reason that there had for the motion denied witnesses, the showing they no Jackson, v 30 Mich People Jessie Court relied 438.” it appears that at from the fact
Quite apart refused order indorse- ultimately trial the court it felt testi- because of the Lucketts ment merely cumulative rather than mony would be showing they were res no because there was witnesses, court’s feel we Jackson, Mich App People v Jessie 30 reliance (1971), 898 438, 439-440; mis- 185 NW2d Jackson, supra, stated: placed. This Court trial contends the "The defendant also dealing refusing give requested instruction erred prosecution to indorse and call the with failure prosecution That must certain gestae witnesses known to the call all res indorse and (Stat MCLA 767.40 Ann people is well established. § 28.980); Barlett, People 312 Mich Supp v 1970 Cum § 268 648; (1945); Kayne, v NW2d (1934). 186; fallacy in defendant’s NW showing no on this record argument that nesses. The defendant bases mony is that there is were res the witnesses not indorsed his contention on testi- when he testified that of officer Kramer who Secretary there were arrived at of State’s office present. people approximately a halt-dozen who were Fields, only were Mr. Mrs. witnesses indorsed However, Fields, Washington. Mr. the officer talked to all further shows all had the names of and stated he obtained people may be witnesses. The fact that certain at to occurrence does not mean that are an testify occurrence or that could gestae. or circumstances facts which constitute the of a pertain failure Cases cited prosecutor to call known to him and where *5 People v Jones op Opinion in evidence were there some res Thus, showing absent gestae some witnesses. present persons alleged have been were in fact other witnesses, gestae the refusal of the trial court res not give requested instruction was error.” Clearly, Court, the Jackson as stated presence persons an of they occurrence mere does mean are witnesses so as to make light upon as would cast their such gestae. Only light if res casts some upon gestae persons do such res become res gestae subject witnesses and therefore the of the prosecutor’s duty produce. to indorse and We opinion note, however, that the Jackson is silent as to it was whether ever established on the alleged gestae that the record other res present at the time the crime was committed merely present or rather were when the officer arrived. alleged
Where, here, it is established that the gestae proximity res witnesses were close to the alleged perpetration, crime its a presumption persons rebuttable such light indeed witnesses whose would cast upon gestae thereupon the res must arise. It be- comes incumbent to use due diligence persons pres- to ascertain whether those are ent witnesses. It is clear Jackson police spoke that present officer to all only and obtained the names of those who had, fact, been witnesses. The thereby any presumption rebutted the re- maining persons present were res point showing At that some must be made that the other were res witnesses. We do language not, however, read the in Jackson to showing mean that the defendant must make person witness where is a person at the said established proof is no adduced there of the crime time *6 presumption rebutting prosecutor the that said the person witness. was a it was case uncontroverted the instant
Since in
present at the time of the
the Lucketts
extremely
proximity
close
to
in
and were
crime
giving
rise
this criminal
transaction
the
charge,
contains
record
no evidence
the
and since
presumption
tending
the Luck-
the
to rebut
(in
gestae
the
record
etts were
attempt
clearly
no
was made
establishes
whether the Lucketts
to ascertain
crime),
anything
the trial court
knew
improperly
about
the Lucketts
not
concluded
procedure
proper
to be
employed
type
was set forth in
of instance
this
People
Harrison,
590;
v
(1973):
900, 908
NW2d
prudent practice,
"Preliminarily, we note that
cases,
conditionally.
a witness
doubtful
is to endorse
may
subject
voir dire
then be
The witness
trial
intelligently
rule
thereby
enabled to
court
or
is a res
witness.
question of whether
not he
v McCrea,
213;
(1942),
(1943).
303 Mich
produce them. At trial People v Jones op ordering that he was not their indicated indorse- would ment because be cumula- Harrison, supra, 590: tive. As noted in level, prosecutorial "At the trial claims of cumula- jaundiced viewed with a eye; tiveness should be appeal, court’s from a objection.” carefully this Court will scrutinize the lower ruling excusing when results in calling whom have a one witness, here, where, as defendant has made timely The trial court noted that "if it Lucketts’ [the testimony] would be nature Mr. Cole’s is, be cumulative”. There [it] course, way knowing no whether the testimony of the Lucketts would have been "in the nature of Mr. testimony”. Cole’s Even if the Lucketts’ testi- *7 mony given Cole, were identical to that by trial great court should exercise restraint in dis- charging the prosecutor from his statutory duty produce indorse and the witnesses. pros- While the ecutor should required not be an inordi- witnesses, nate number of neither should defend- right ant’s to confront those witnesses who could light shed on the nature of the crime be crucified judicial cross of efficiency. We would also note that very concept of cumulativeness envi- sions that of the additional wit- nesses has or no probative little value. Since Cole had an extensive criminal record and was at time of trial incarcerated prison, Jackson his testimony may have given been weight little the jury; therefore, it cannot be said that even identical testimony by the Lucketts would have been so of probative devoid value and persuasive effect as be to merely cumulative.
The urged both below and on appéal that he should be relieved of the Brennan, by V. J. J. Concurrence production of the Lucketts as res
indorsement of the fact that reason accomplices. determined trial court were merit, since there was without assertion this were involved in Lucketts evidence no this regard. agree in this with crime. We that the add further We argue both that the Lucketts heard will not be and that not res accomplices. proportions occurred reversible
Since error fact, only were, in if Lucketts point remedy appropriate at this is to nesses, the hearing if the to determine Lucketts for remand If the Lucketts indicate res they witnesses.1 were that agent and the did observe agent room,2 in the the time the conviction and defendant’s court shall reverse trial grant trial. him a new information
Defendant’s assertion ground duplicity because used infirm on the dispense”, language statutory of "sell or claim- the ing separate offenses, has the same envision lacking in merit. found considered and proceedings trial court for to the Remanded opinion. this inconsistent with J., M. P. T. Burns, concurred. (concurring). J. I would concur
V. J. Brennan, can, course, hearing dispensed with if remand the be *8 the Lucketts were res otherwise determines that the trial have and so informs witnesses who should court. been indorsed being is sufficient a res witness it Note that constitute agent during the and the that the Lucketts observed defendant necessary period agent that saw was in the room. It is not agent during activity, for if observed defendant and the criminal that the showing nothing probative period yet this is of time and saw (or nonexistence) gestae of the crime. of the res existence People v Jones Brennan, J.V. J. Concurrence Valkenburg’s opinion; Judge Van there with Lucketts were that aware of that in the room activity heroin in, open therein, there was heroin arrested there, of the heroin was the sale that heroin had been there was evidence used in room. There was also tinfoil up there. being made The undercover decks had, time, that he at one dealt agent testified with Lucketts, although his in this area vague. little is a remand, judge,
I would ask inquire into that area so as determine whether and, accomplices; the Lucketts were if he so finds, then clear quite the law is there is no part to endorse as witnesses those who could have and, charged accomplices therefore, conviction should be affirmed.