*1 64 (AFTER REMAND) PEOPLE v KIMBLE Opinion of the Court 1. Witnesses —Criminal Law —Res Gestae Witnesses —Prosecutors —Duty Diligence—Cumulative Testimony. to Produce — prosecutor by produce Failure gestae a trial an indorsed res apparently witness who had moved to another state is reversi- prosecution ble error statutory where the failed follow the procedure securing for an out-of-state witness’s attendance at trial, failed to a obtain for the witness an eviden- tiary remand, hearing upon held failed obtain the witness’s employer, married name or the name of her husband’s and present failed to testimony that the evidence witness’s would be merely cumulative.
Dissent M. J. 2. Witnesses —Criminal Law —Res Gestae Witnesses —Prosecutors —Duty Testimony. to Produce —Cumulative production gestae The of a res witness was excusable where her testimony uttering would have been cumulative a trial for publishing forged and missing a instrument where the witness merely conduit, pre- a the teller to whom the defendant check; ample testimony sented the there was at the trial that present place defendant was at the time and the checks stolen, presented were came into the bank and the check to one tellers; employees of the part other bank testiñed to the main transaction; jury had the defendant’s confession to weigh against unsupported defense; his belated and alibi and clearly unequivocally defendant was per- identified as the presented son who the check. Uttering Publishing 3. Criminal Law — —Element of Crime— Corpus Presentment of Instrument — Delicti. Testimony, uttering publishing forged in a trial for a instru- ment, a presented that defendant came into bank and a check forged payment which was one the tellers for establishes Reference for Points in Headnotes 2d, 29 Am Jur Evidence 713. [1-3] §§ Remand) (After op Opinion the Court paid corpus delicti; money need not have been defendant. Wal, *2 Kent, H. Vander Appeal from John 5, 1975, Rapids. at Grand Submitted March 20286.) (Docket 23, 1975. September No. Decided Kimble, of uttering R. Jr. was convicted Walter forged instrument. Defendant publishing and a proceedings, juris- for further appealed. Remanded (1975). retained, 690 App 60 Mich After diction remand, a new trial. and remanded for reversed General, Robert A. Kelley,
Frank J. Attorney S. Sawyer, Harold General, Derengoski, Solicitor III, A. Johnston Prosecuting Attorney, Donald Craig S. Prosecuting and Attorney, Chief Assistant Neckers, Prosecuting for the Attorney, Assistant people. Neff, Mclnerney, &
Murphy, Burns for defend- ant. J., P. D. E. Holbrook, and Bronson
Before: M. J. JJ.
After Remand opinion in previous P. D. E. J. Our Holbrook, 690; 233 NW2d App Mich at 60 is found this case (1975). in accord with remanded Therein we 26 820.1(5) in accord with 1963, hearing a GCR Robinson, 106 629; 213 NW2d 390 Mich People v 698; 233 (1973). App at 60 said therein We at 30: NW2d require obligation judge of the trial "It be the shall explain why he cannot produce or prosecutor hearing, why she Roth át such produce Edrita 64 Mich op Opinion the Court produced produced trial. If Roth is she [Miss] regarding knowledge
shall be examined crime which defendant was convicted.” 28, The 1975, remand hearing May was held several Jack witnesses testified. Billingsley, officer, Rapids Grand police testified as follows concerning the produce failure to Edrita an gestae witness, indorsed res at the trial: "Q attorney]: my question though, To answer [defense prior 7, date, 7, January if January is the trial, days prior January two no before had made attempt subpoenas? to serve the Not that recall. "Q. Specifically respect Edrita Roth made no subpoena? effort to serve the
'A. Not that I recall. *3 ”Q. you 7, When out went to the bank on January you someone told that longer Edrita no worked
there?
’A. Yes. "Q. you You don’t recall who informed of that? ’A. I don’t specifically remember who that was. ”Q. your To the best of simply recollection someone said she lived in Seattle? manager teller, 'A. Whether it was a or another I
don’t remember. ”Q. you Did talk employer to her to find out her home address? going 'A. I my to procedure, back if standard talked — I find out someone of town— Well, Officer, "Q. respect, in all due I you try want to to your memory recall of this case. say specifically 'A. To I talking if remember to them time, point at this I do not. ”Q. You have no attempting recollection then of to subpoena serve the on Edrita any Roth at home address Rapids in the Grand area? having them,
’A. I don’t recall a home address on sir. Remand) (After Opinion of the Court Well, you try did to to "Q. you what obtain do recall home address on them? recall, I and received the "A. As I to bank went any recall if I point. don’t information from that or other information not. then, Officer, say you that ”Q. it to Would be fair prior days to the two approximately
went the bank subpoena on Edrita Roth? scheduled trial serve ’A. Yes. ”Q. true that someone at the it further be Would
bank, whether it was you are not sure person whom manager you that she lived coemployee, or informed a in Seattle, Washington?
'A. Yes. nothing you that "Q. Is that after it further true than to advise attempt other to serve prosecutor’s of the situation? office recall, yes.
'A. As I family? of her ”Q. nothing any to contact You did that, 'A. I no. don’t recall ”Q. try to home address nothing You did locate Rapids area? for Edrita Roth the Grand have, doing so. may 'A. I but I don’t recall one “Q. talking anyone Do other than you recall Seattle, now lived in person you who said to that she Washington? people subpoe- other ’A. As I recall there were two both of I discussed with each of those or naed. Whether those, time, point remember. at this don’t given prosecutor’s any directions Were undertake as to further efforts should office serve Edrita Roth?
'A. remember. None making telephone conversa- you recall Do *4 Edrita telephone anyone try to to locate or calls to tions Roth? "A. can recall. None that Officer, subpoenas of ”Q. are familiar as a server the authorizes one secure that the statute which state? in the a witness who resides sister attendance of [sic.] App 64 Mich Opinion of the Court No, I am not. ”Q. You request made then I take it to no efforts subpoena from the trial court a certificate or a for
purposes subpoena on of Edrita service of this Roth in the state Washington? of 'A. any subpoenas On mail or no cases do handle
persons prosecutor is city. outside of the It done the the city subpoenas or or handles attorney whoever the originally. then, particular In my ques- this to answer case tion, you apply did not to the court for the issuance for out of the state service? No,
’A. I did not. your knowledge To one else this particular case?
’A. Not my knowledge.”
It is
prosecution
obvious that
failed
follow
the statutory
procedure
securing
the out-of-
trial,
further,
state
at
witness’s attendance
the people failed to exercise the
degree
due
required. Harrison,
v
diligence
44 Mich
(1973),
People Nieto,
App 578; 205
NW2d 900
(1971).
535;
We the Assistant Neckers, Attorney, Craig S. testified as follows at hearing concerning remand efforts obtain presence Edrita Roth’s hearing: at the remand Johnston, ”Q Iby Mr. prosecuting attorney. assistant *5 People Remand) (After 489 Opinion of the Court Neckers, your full name for the you state Mr. would record, please. Craig S. Neckers. "Q. employed? you How are attorney prosecuting for the "A. I am an assistant County of Kent. prose- an assistant "Q. long you For have been how
cuting County? attorney for Kent year. A of a ’A. little short had occasion to work "Q. capacity, you have In that prosecu- of the appellate case load extensively on the office? tor’s Yes,
’A. I have. by you, was there among handled ”Q. And the cases the court the case of before the matter here included against R. Kimble? Walter ’A. That is correct. in the Court of argue this case you Did brief
Appeals? it submitted on briefs it. I we 'A. I briefed believe argue it. orally
and did opinion rendition of ”Q. Subsequent to the 1975, steps take April you Appeals on of Court hearing we are hold- the remand preparing for towards ing particular time? at this 1975, after Yes, May the second ’A. did. On go going to Murphy Mr. how we were discussing with matter, I called the particular logistics of this about the and I Bank here in town of the Central personnel office by the name of personnel office spoke to a man believe, Beal, him as to a last questioned and I Mr. known Roth. Rapids for Edrita city of Grand address office of personnel in the his files "He checked no such me that he had and informed Central Bank no last Rapids; that he had city of Grand in the address period. Roth for Edrita known address me, however, he did have informed "He further of Miss Roth’s name, telephone number address Mrs. Arthur me Mr. & gave as parents, and he Michigan, and Wyandotte, Plumb Street 555 telephone number. gave me the op Opinion the Court Did make an effort reach Edrita Roth through parents pursuant the last known address of to the information from Mr. Beal? obtained Yes, ’A. occasions on did. On several the second of *6 May, precisely according to the —to some notes that I made, through date, telephone six calls on that in the morning, afternoon, telephoned parents’ I the num- in Wyandotte, Michigan, ber and was successful late in speaking the afternoon in with Mrs. Arthur Edrita’s mother. "She daughter her informed me that indeed was
married, and that she travels with her husband wher- goes ever he told me she that he travels from Pittsburgh, Pennsylvania Waterloo, to Iowa.
"She further informed me that Edrita calls home ever week and Mrs. Roth assured me she [sic] would let me know where I her could reach or have Edrita call possible. me as soon as gave "I my telephone her prosecutor’s number in office. "Q. Now, having information, obtained that what did you do your next in efforts to locate Edrita Roth? telephone 'A. transpired That conversation on the of May. second I nothing heard from Edrita or her mother for days, several eighth, on the on two attempted different occasions I to telephone reach the Wyandotte number in and received no answer. On the again 12th and on telephoned the 13th also I in Wyandotte number 20th of and received no answer. On the however, May, I called approximately at 11:00 morning, o’clock in parents’ once telephone number in Wyandotte spoke again with Edrita’s mother, Mrs. Arthur Roth. She indicated that she had spoken indeed with Edrita prior Roth on some occasion and she informed me that Edrita had tried call me at given the number office and had had some I prosecutor’s had her in the difficulty. up It ended with her speaking in police someone department. She had get my tried to to do so. number at home and had been unable "She further informed upon talking me that case, Edrita about this and about the information had (After Remand) Opinion Court her, given knowledge Edrita without or anything transpired couldn’t what remember on 1973,
the third of July, at the Bank Central that we talked about. Murphy ’Mr. attorney]: Objection, its hear- [defense
say. 'Mr. Johnston: I think most of this is. What I am trying the nature of our efforts to find the happened witness tempting and what here. am not really at- prove anything the witness knows. "Having May obtained this information on your have further contact efforts locate Edrita Roth? Well, Mrs. me Roth informed that Edrita was to weekend, come Day home over the Memorial and that anticipated she Wyandotte her on Saturday, arrival gave believe the 24th IMay. my telephone her number here in the Hall of Justice at the Prosecutor’s gave my phone Office and also home number please Grandville. I asked that she call me when she *7 Saturday night morning, arrived either or Sunday asked specifically that call me she at 9:00 a.m. on Sunday morning. 25, 1975, May "On Sunday, approx- which was last at imately my 9:15 a.m. I at received a call home from indicating Mrs. Arthur daughter Roth that her had not home, come that was; she did not where know she she days; absolutely had no contact with her in prior five being May 25th, 20th from the of to the she did not know where she was. also should indicate that I wrote on May a letter the 20th of to Edrita parents, in had care sent it to the address that parents, indicating for her a little bit of this what asking please matter entailed and her to contact me. "I have nothing heard from Edrita Roth and never direct contact with Edrita Roth. ”Q. you Did the letter that you wrote come back to all? No,
"A. I never received the letter. The letter was as as I received far know. words, it In other wasn’t returned undelivered prosecutor’s office? 64 Opinion op the Court No,
"A. it wasn’t. "Q. particular And this is the extent to this moment contact, your family attempt with the Roth and the locate Edrita Roth?
"A. That is correct. "Mr. questions Johnston: I have no further witness.
CROSS BY MR. EXAMINATION MURPHY: "Q. Neckers, Mr. you anything did do other than telephone make attempting calls and send one letter in to locate Edrita Roth? No,
"A. I did not. "Q. you When were informed that Edrita Roth was to go parents to her Wyandotte, Michigan, home in for the 24, 1975, May weekend of procure any steps take to have served at that address on purposes hearing Edrita Roth for the today? of this No, I did not. "Q. police agencies Have utilized the forces of the attempting to locate Edrita Roth?
"A. Not at all. Now, "Q. respect your telephone with conversation Beal, with Mr. parents, where he indicated the name of Edrita’s number, telephone
their address and would it be fair to conclude that that same information was January available on 1974?" be, "A. I would assume it certainly would but I have knowledge no direct of that. But he did this information employ- from her ment file?
"A. I believe so. "Q. And if I correctly you your understand learned conversations Edrita’s mother that she calls home every weekend? *8 "A. She regular informed me that she had a habit of calling her at least once a week.
"Q. you Did ask her mother what her address was? "A. I asked her if anywhere mother there was Edrita could be reached. She told me that she is on the day, days road 24 hours a seven a week there is (After Remand) by M. J. Dissent J. Kelly, absolutely no fixed address where Edrita Roth can be reached. "Q. you daughter Did ask her she reaches her where emergency?
in case of an
"A. She told me that her daughter calls her. She does daughter. call her you She did not advised she know of an daughter? for her address "A. That is correct. This told was after her who were and your purpose
what was? "A. That is correct. She was informed, Mrs. Roth was her, spoke informed when I spoke all three with times that I her, why speak with who I was and I wanted to daughter or at least contact with her daughter.”
It is Prosecuting also obvious that Assistant Attorney did not see fit to obtain a court, appearance Edrita Roth’s nor did he find name, out her married nor her husband’s em- ployer, which would have possibly greatly aided obtaining gestae the res witness’s appearance hearing. remand
Reversed and remanded for a new trial. Bronson, J., concurred. (dissenting).
M. J. question The of due aside, diligence now believe that the trial judge in excusing production was correct missing gestae ground res witness on the that her testimony would be cumulative. This forces me to myself previous holding reverse on our that "there no evidence that Mrs. testimony Roth’s [sic] opin- would be cumulative”. In our remand merely posited might ion we that defendant and the teller have had a conversation. It is inconceivable totally how conversation could me the defendant *9 64 Mich J. Dissent M. J. Kelly, by exculpatory. have had could with Miss Roth be part main The of the transaction was between the manager, Gully, the defendant. bank Mr. and Mr. Gully had conversation with an extensive the Gully defendant. the defendant Both Mr. testi- clearly fied. The transaction are details the unequivocally supported by the teller the stall adjoining hasty signing Miss Roth’s. I was remand order and I should not have done so. quarrel absolutely
There is no reasonable positive of the defendant identification at place time and the theft of the checks. There positive also was of the defendant identification at missing merely the bank. The duit —the witness was a con- presented to teller whom defendant Having previously alerted, check. supervisor been the teller’s manager
and the bank
obtained the
plate
defendant’s driver’s
license
the license
on
number
the car he entered when he left the
ample testimony
bank. There was
at the trial that
presented
the defendant came into the bank and
payment.
the check to one of the
tellers
This
corpus
money
establishes the
delicti. The
need not
paid. People
Brigham,
have been
v
”Q. say What else did he about that check? “A. Well he said that he went into the bank with the get any money check but that he did from it. He person present also named another that was with him time that he into went the bank. alright it Well is to tell us what he said. got you’ve "A. Well to understand first when we (After Remand) J. Dissent M. talking him, signed started he after it card took us a little while to to what we really down wanted kept to talk about beating because he around the bush. finally agreed told him that if talk if he he couldn’t tell the truth I didn’t to talk him at want all and I got up to going leave. I was to take him back. I told him *10 check, that we already prints had his on the he didn’t have tell anything got us if he didn’t want to. I ready well, just leave then he a minute I’ll said talk to I will tell he the truth. This is when told me that check, try he did to cash the that he didn’t the money from the check. And asked him who was with you with him Smith, and he guy told me that named Smith was Yarbrough and a man by the name of was driving the car. He said that when he left Smith was the supposed one that was have been in there after change. When he left that Smith down the laid seat of the car why only people and this is the man saw two in the car when he saw car.” the compelled am agree with the trial court that the teller’s production was excusable because her testimony would be cumulative. Lynn Sandra Ham, bank, a teller at the clearly unequivo- and cally identified the defendant. She was stationed in the stall next to the one manned the missing gestae res witness. After identifying defendant she was asked: you away How far things going were from these
on? maybe pretty Two feet who well—I saw check was made out to and the driver’s license matched the check.” manager bank,
Shelton Gully, branch of the only identified the defendant but as to testified the conversation he with the defendant bank, then followed the defendant out of drove his own automobile into direct with confrontation App 64 by M. J. Dissent " * * * cars our were the defendant’s automobile: make, model face”, down face and wrote vehicle. license number strong case. extremely Under The people had an agree compelled to I am the circumstances of the teller production the trial court would testimony be was excusable because minute alibi de- last cumulative. The defendant’s testimony, completely fense was on his own flimsy whatso- corroborating witness unsupported by any the names had contained ever. The notice alibi were not called they but supporting witnesses given they was that did not The excuse testify. had the dates confused. excep- of the second
I would affirm on the basis pro- rule: gestae tion to the res witness because her was excusable duction of the witness cumulative. would have been testimony (1974). Koehler, 624; 221 54 Mich NW2d