*1 Mitchell PEOPLE v MITCHELL Accomplices—Indorsed Duty 1. Criminal Law — Witnesses — to Produce. voluntary prosecutor
The of a indorsement witness a carries production with it burden of the attendant because a defendant right rely a to has the fact that such a witness will be present; therefore, prosecutor voluntarily when a indorsed an accomplice, required although accomplice not to under the exception gestae required produce he is to producing witness at trial and not excused from inability showing witness absent his to do after so a of due diligence attempting him. Accomplices—Indorsed Duty 2. Criminal Law — Witnesses — Produce. excusing prosecutor producing The trial court erred in from at accomplice voluntarily an trial who was indorsed on the infor- mation where made to secure the no.effort production witness, grounded and where the case was testimony of another with the remainder circumstantial, testimony of the evidence of the absent critical; Appeals speculate was Court of testimony whether the would be cumulative but will reverse and remand for a new trial. by O’Hara, Dissent J. Accomplices—Indorsed Duty 3. Criminal Law — Witnesses — Produce. accomplice exception requiring to the res rule to indorse all res witnesses excuses producing from at who was voluntarily indorsed. Reference for Points in Headnotes 2d, 21 Am Jur [1-3] Criminal Law 118. § Opinion op the Court Livingston, Mahinske, Paul R. Appeal from 6,1973, February Submitted Division at Lansing. 13463.) 23, 1973. Leave *2 (Docket July Decided No. denied, —. appeal of breaking was convicted and Gary Mitchell felony. to commit a Defend- entering with intent and remanded. appeals. ant Reversed A. General, Kelley, Attorney Frank J. Robert Derengoski, and Thomas General, Solicitor Kizer, Jr., Prosecuting people. for the Attorney, Moran,
Michael C. Appellate Assistant State Defender, for defendant. Fitzgerald Bronson, J.,P.
Before: and and O’Hara,* JJ.
Bronson, P. J. Defendant was convicted jury breaking entering verdict of and with intent prison commit a and sentenced to serve a felony 750.110; years. term of five to ten appeals 28.305. From this conviction defendant as right, raising allegations a matter three of allegation challenges error: one the trial failure to indorsed at remaining allegations challenge the trial record judge’s juvenile consideration of defendant’s discharge sentencing pur- for and dishonorable poses. as briefly
The relevant facts summarized companions, Michael follows. Defendant and two Parks, charged and were Clayton McGuire participation the instant crime for their Sta- Woody’s theft of items from Sunoco various trial, At Livingston County. tion defendant’s * Justice, Appeals by sitting Former on the Court 1963, 6, assignment pursuant in 1968. to Const art 23 as amended § Clayton people. for Parks testified the Parks de- breaking entering by stating scribed that tires, he and defendant confiscated two a case of gauges tools, oil, various and some while McGuire Although stood watch outside. in- McGuire was information, dorsed rested production. its case without his Defendant’s coun- accepted objected prose- but the trial court sel argument obligation it cution’s produce had no accomplice.1
this ruling by judge provides impe- This allegation tus for first defendant’s error. Defend- spearheads allegation ant upon awith direct attack underlying
the rationale ex- ception requirement to the must indorse all res witnesses. After evalu- ating controlling arguments, authorities, *3 competing considerations, we too are concerned propriety about the of this rule. A shadow of doubt upon vitality by is cast 767.40a; its 28.980(1) permits impeach which gestae obligated res witnesses he is to call. unambiguous Supreme The abundance of precedent, binding not, whether or ill-conceived is upon appellate argu- court and defendant’s properly ments are more addressed to it. The frequency being argument with which this is by raised attract the much needed review the e.g., People See, Henderson, Court. v 45 App (1973); People 511; Mich 206 NW2d 771 v Margaret Jones, 334; 48 Mich 210 NW2d 396 (1973). recognition accomplice excep-
Our current of by tion to the res indorsement dictated 1 accomplice although McGuire was considered sponsored prosequi charge breaking entering the nolle of the against subsequently upon him entered induction the mili his into tary service. Mich 361
364 48 the Court the strictures of affords the precedent, Although no relief. had no obliga- McGuire, tion to indorse the it chose to In him. view of voluntarily indorse this voluntary indorsement, undaunted reliance exception violates notions of logic. elementary It is the voluntary indorse- ment of a carries with it attendant People Lummis, v In production. burdens of 260 170, 173; (1932), 244 438 Mich NW stated: "If, however, [prosecutor] does he indorse the name of witness, he must not a have him in person
a
court,
him as a
(Emphasis
but need not call
witness.”
added.)
Whittemore,
Accord,
People v
435;
230 Mich
203
(1925); People
v
Zabijak,
87
285
NW
Kern,
(1938); People
v
App 406;
NW
O'Dell,
People
(1967);
The rationale for this rule is found
the state-
the Lummis Court that
ment
defendant has
"[a]
right
rely
fact
such witness
present”.
This direct
statement
will
consequences
flowing
practices
realistic
ignored.
logical
therefrom cannot be
We see no
applying
reason for
a different
rule because the
*4
indorsed witness
is an
for which no
present
The
original burden of indorsement
exists.
defendant,
preparation
whose
of his case revolved
of Me-
part
potential
testimony
around the
the Court
injured
prosecution
Guire, was no less
when the
producing
accomplice.2
rested its case without
nonproduc-
The cited authorities will excuse the
prosecution’s
tion of an indorsed witness when the
presence
diligent.
efforts to obtain his
at trial are
diligence
This
apply
due
standard should likewise
to the indorsement of an
In the case at
bar,
produce
made no effort to
McGuire, consistent
duty
with its belief that no
Thus,
against
existed.
there are no efforts to test
diligence
the due
standard. The fact that McGuire
army
was in the
and out of the state did not
requirement
alleviate the
that efforts to secure his
including
made,
attendance be
utilization of the
Uniform Act to Secure the Attendance of Wit-
nesses From Without a State in Criminal Proceed-
ings.
28.1023(191)
seq.;
MCLA 767.91 et
et
seq.
e.g., People
See,
App
Crable,
v
254;
Mich
(1971); People
366 Dissent O’Hara, by J. to reverse and plice, we are constrained remand disposition, In view of this for a new trial. the not be remaining issues need considered or dis- cussed.
Reversed remanded. and J., concurred. Fitzgerald, (dissenting). It seems to me O’Hara, J. there is n an conflict between Michigan irreconcilable Su- preme precedent has both implicitly the prosecution and excused from explicitly calling though an accomplice, eyewitness, an to obligation people eyewitnesses call all given great transaction unless the number is so as to make the testimony merely cumulative. In case, present Michael McGuire was an eyewitness also appears
Thus it that on the one hand prose- obligated cution was to endorse McGuire as a res and call him to the stand so that he would be subject by cross-examination the de- fense.
On the other hand the was excused calling from him under "accomplice so-called exception” rule.
Such a situation is It prejudicing intolerable. is rights persons of accused of crimes and it is placing position not knowing what its legal obligation is. question is us squarely before because
prosecuting attorney relied ex- ception rule and the trial judge sustained him on prosecuting that basis. The attorney a virtual has. litany support agree law to him. I certainly Judge frequency as to the with which the Bronson problem arises. As late as this Court held:
"Although general obliga- is under a People O’Hara, Dissent as witnesses tion indorse call all noncumulative witnesses, duty does not extend calling accomplices. People Brown, v Chaney, Morgan, 174 NW2d *6 Sanders, 184 NW2d Moore, (1971). No error resulted from the failure of the accomplices.” People Toneff, indorse and call the two 221, 390, 194 NW2d willing perfectly I am to concede accom- plice exception law, rule be bad but it re- Judge correctly points mains the law. As out we Bronson change it. We need a court Supreme statute, or a decision Court to do voting Supreme it. I am to affirm because there is precedent supports position judge trial riage I find no indication of a miscar- justice.1 colleagues join my respectful hope I for the benefit of the trial bench and the bar Court will take the case the event appeal. Hopefully, seeks leave profoundly disturbing too, the Court will settle the question precisely accomplice what an is within meaning any the rule and what extent if accomplice remains an in relation to the of another.
In the case at bar the addressed the court as follows: * * * "He’s an We didn’t have obli- [the]
gation though him as an even [against the case has been still dismissed. He him] accomplice.” remains an stated, For the reasons herein I vote to affirm. 769.26; MSA 28.1096.