People v. Kelly , 30 Mich. App. 154 ( 1971 )

30 Mich. App. 154 (1971) 186 N.W.2d 72

PEOPLE
v.
KELLY

Docket No. 8104.

Michigan Court of Appeals.

Decided January 26, 1971. Leave to appeal denied October 13, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people.

D. Michael Kratchman, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and J.H. GILLIS and JEANNETTE,^[*] JJ.

Leave to appeal denied October 13, 1971. 386 Mich. 756.

PER CURIAM.

Defendant was convicted by a jury of having carnal knowledge of a female over 16 years of age, MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). He raises five issues in this appeal, taken of right.

The complaining witness testified at trial that on the morning of March 16, 1968, she was with Anderson Johnson, her companion, in a motel room. At 7 a.m. when she awakened, there was a masked man in the room who was holding a gun on Johnson and herself. The defendant locked Johnson in the bathroom. During the 1/2 hour that the defendant was in the room, he raped the complainant three times. Johnson testified at trial that upon being released from the bathroom, he detailed his personal possession losses to be the loss of his identification, wallet, $70 cash, a $175 check, and a watch.

Defendant alleges that the trial court erred when it failed to give a limiting instruction to the jury regarding defendant's alleged robbery of the complaining witness's male companion. We disagree. The testimony given had a direct bearing upon the motive and intent of the defendant concerning the act charged. MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050); People v. Nawrocki (1967), 6 Mich. App. 46; People v. Hislope (1968), 13 Mich. App. 63; People v. Anderson (1968), 13 Mich. App. 247. Further, absent a request therefor or an objection for failure to so instruct, the court is not required to give limiting instructions. GCR 1963, 516.1; Hunt v. Deming (1965), 375 Mich. 581; People v. Stevens (1970), 25 Mich. App. 181.

Defendant also argues that it was reversible error for the prosecution to fail to produce the examining physician.

MCLA § 767.40 (Stat Ann 1970 Cum Supp § 28.980) provides in pertinent part:

"[The prosecutor] shall indorse [on the information] the names of the witnesses known to him at the time of filing the same. * * * Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine."

However, the prosecution is required to indorse and produce a witness only when that witness is part of the res gestae. People v. Dickinson (1966), 2 Mich. App. 646. Although the examining physician's name was not on the information, he was still a res gestae witness. However, at the time of trial, it was shown that the doctor had returned to Africa. In People v. Melvin Jackson (1970), 21 Mich. App. 129, 130, 131, this Court held:

"[R]easonable efforts had been made by the prosecution to produce this witness, and [the court] instructed the jury to assume that her testimony would have been favorable to the defendant. The question of due diligence in attempting to produce an indorsed res gestae witness is a matter within the judicial discretion of the trial court, and the court's ruling will not be overturned unless there is a clear abuse of its discretion". [Citations omitted.]

No abuse of discretion by the trial court has been shown. This Court will not disturb that court's holding without such a showing. People v. McLaughlin (1966), 3 Mich. App. 391.

Defendant next objects to the introduction, at trial, of testimony regarding the pretrial lineup identification of him by the complaining witness. Below, defendant neither objected to the court's receipt of the lineup testimony nor the admissibility of the in-court identification.

The Detroit police department record of the showup, dated March 23, 1968, indicates that the defendant was represented by an attorney at the lineup now in question. This Court has held that any post-arrest confrontation requires that warnings be given which conform with the standards set in United States v. Wade (1967), 388 U.S. 218 (87 S. Ct. 1926, 18 L. Ed. 2d 1149); Gilbert v. California (1967), 388 U.S. 263 (87 S. Ct. 1951, 18 L. Ed. 2d 1178); and Stovall v. Denno (1967), 388 U.S. 293 (87 S. Ct. 1967, 18 L. Ed. 2d 1199).^[1] There was such conformity. In addition, after an independent examination of the record before us, we conclude that the in-court identification was not tainted by the prior lineup identification. People v. Love (1969), 18 Mich. App. 228; People v. Wilson (1969), 20 Mich. App. 410; People v. Bratton (1969), 20 Mich. App. 523; People v. Childers (1969), 20 Mich. App. 639. After closely reviewing the record now before us on appeal, we are convinced that the complainant's in-court identification of the defendant was based upon an independent recollection gleaned from the opportunity to observe him during the three acts of sexual assault he committed upon her. That the defendant failed to object bolsters this conclusion.

Defendant asserts that it was error to admit into evidence testimony given by a Detroit police detective concerning statements made to him by the defendant while the defendant was in police custody. The trial judge admitted this evidence after a hearing, pursuant to People v. Walker (On Rehearing, 1965), 374 Mich. 331. It is well settled that this Court will not overrule the outcome of a Walker hearing unless it is shown that the trial court's determination was clearly erroneous. People v. Werner (1970), 26 Mich. App. 109; People v. Stewart (1970), 25 Mich. App. 205. Such error has not been shown.

Defendant's final contention is that the trial court erred when it instructed the jury regarding the defendant's right to remain silent. This contention is without merit, because defendant failed to object to those instructions. People v. Waters (1969), 16 Mich. App. 33; People v. Lewis (1970), 26 Mich. App. 290.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] People v. Yopp (1970), 25 Mich. App. 69.