Docket 8605 | Mich. Ct. App. | Dec 9, 1970
PEOPLE
v.
ZALUSKI
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
I. Goodman Cohen, for defendant on appeal.
*648 Before: LEVIN, P.J., and T.M. BURNS and J.E. HUGHES,[*] JJ.
PER CURIAM.
Defendant was found guilty of leaving the scene of a personal injury accident[1] and was sentenced to serve one to five years in prison. On appeal defendant contends that the trial court committed reversible error in permitting the indorsement of certain res gestae witnesses and excusing the production of other res gestae witnesses.
On the first day of defendant's trial, the people moved to indorse the names of three witnesses. The defendant objected and requested a continuance based upon surprise. The continuance was denied by the trial court. Defendant contends that the trial court's action in allowing three witnesses to be indorsed on the first day of trial and its denial of the requested continuance constituted an abuse of discretion and reversible error.
The trial court did adjourn the trial for one day. Since the next day happened to be motion day, defendant did have two full days to interview the witnesses before they were called to testify. It further appears that only two of the three witnesses testified. An examination of their testimony reveals that it was detrimental to the people's case and helpful to the defendant. Therefore, even if we were to find error on the part of the trial court, which we do not,[2] the error would most certainly be harmless.
Defendant also contends that the trial judge erred when he decided that the people had made a satisfactory explanation for the non-production of two indorsed witnesses. However, a review of the record *649 by this court reveals that the trial judge made no such decision.
The defendant made no objection to the non-production of the indorsed witnesses. Rather, he desired the court to instruct the jury that the failure of the people to produce the indorsed witnesses permits the jury to assume that the witnesses' testimony would be favorable to the defendant.
It is apparent from reading the transcript that defense counsel was satisfied with the explanation for the non-production of one witness, Arthur Raley. It is also apparent that the assistant prosecutor was willing to concede that the explanation for the non-production of the other witness, Sherry Roman, was inadequate. Therefore, counsel agreed, without any ruling by the court, that the requested instruction would be given as to Sherry Roman only. The trial court gave the instruction as requested.
We agree with the people that there was no reversible error because the objection now made was not voiced below.[3] It is apparent that defendant's trial counsel was satisfied with the explanation for the non-production of Arthur Raley. The only relief that he requested was the instruction referred to because of the non-production of Sherry Roman and that relief was granted.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCLA §§ 257.617, 257.619 (Stat Ann 1968 Rev §§ 9.2317, 9,2319).
[2] People v. Davis (1955), 343 Mich. 348" court="Mich." date_filed="1955-10-03" href="https://app.midpage.ai/document/people-v-davis-2225865?utm_source=webapp" opinion_id="2225865">343 Mich. 348; People v. Cormandy (1969), 16 Mich. App. 517" court="Mich. Ct. App." date_filed="1969-03-25" href="https://app.midpage.ai/document/people-v-cormandy-2162720?utm_source=webapp" opinion_id="2162720">16 Mich. App. 517.
[3] People v. Lewis (1970), 26 Mich. App. 290" court="Mich. Ct. App." date_filed="1970-08-26" href="https://app.midpage.ai/document/people-v-lewis-2115466?utm_source=webapp" opinion_id="2115466">26 Mich. App. 290.