People v. Oliver , 29 Mich. App. 402 ( 1971 )

29 Mich. App. 402 (1971) 185 N.W.2d 433

PEOPLE
v.
OLIVER

Docket No. 6983.

Michigan Court of Appeals.

Decided January 18, 1971. Leave to appeal denied June 29, 1971.

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

Arthur J. Tarnow (Defenders' Office — Legal Aid and Defender Association of Detroit), for defendant on appeal.

Before: FITZGERALD, P.J., and McGREGOR and O'HARA,^[*] JJ.

Leave to appeal denied June 29, 1971. 385 Mich. 758.

McGREGOR, J.

Defendant Daniel Oliver was originally tried for robbery unarmed, MCLA § 750.530 (Stat Ann 1954 Rev § 28.798), in February 1968. The first trial ended in a mistrial when the jury could not agree on a verdict. At the second trial, defendant was convicted and sentenced to 10 to 15 years in prison. Defendant appeals his conviction.

On July 22, 1967, at 3 a.m. in the City of Highland Park, the complaining witness was attacked and robbed by a man whom she identified as the defendant. She testified that he threw a sweater over her head, knocked her down, dragged her toward an alley, and started to tear her clothing off; that when she screamed, she was beaten; and that she fired a small tear-gun at her assailant at which time he grabbed her purse and fled. Policemen in a patrol car arrived at the scene and after hearing the complaining witness's story, drove with her a few hundred feet, where they encountered the defendant. He was identified by the complaining witness as her attacker. A search of the defendant revealed certain personal effects which had been taken from the victim's purse a few moments before.

Defendant, an indigent, contends that he was denied equal protection of the laws, when he was refused a transcript of the testimony from his first trial. During the second trial, and for the first time, defendant's attorney sought a copy of the transcript of the first trial for use in an attempt to impeach a prosecution witness. The court denied defendant's motion.

Our Court in the past has held that a trial judge does not necessarily abuse his discretion in refusing to interrupt a trial to order a transcript, as was done in the instant case. People v. Burrell (1970), 21 Mich. App. 451; People v. Haugabook (1970), 23 Mich. App. 356. We have stated that it is incumbent upon the defendant timely to ascertain that portion of the transcript needed and to offer substantial reasons for its need. People v. Burrell, supra, p 458. See United States ex rel. Wilson v. McMann (CA 2, 1969), 408 F2d 896.

Defendant also contends that the trial court erred in failing to instruct the jury on their function relevant to the missing res gestae witnesses, citing People v. Barker (1969), 18 Mich. App. 544.

In the instant case, these alleged res gestae witnesses were not indorsed on the information and the people claim that they were unknown. Furthermore, there is nothing in the record to establish that the unidentified men who came to the scene of the crime were res gestae witnesses. There is no evidence that they witnessed the attack or that they could identify the assailant. No motion was made prior to trial that these men be indorsed nor was there any motion made by defendant for the court to instruct the jury that the testimony of such witnesses would have been adverse to the people's case. People v. Ivy (1968), 11 Mich. App. 427, 430, 431. No error was committed.

Defendant's mere allegation that he was denied the right to have the court use compulsory process to obtain witnesses in his behalf is devoid of merit, especially in view of no request ever having been made. US Const, Am 6; Mich Const 1963, art I, § 20.

Defendant's final claim of error stems from the remarks made by the prosecutor in making his final argument to the jury. This Court notes that no objection was made by the defendant to the people's argument to the jury and that, furthermore, a review of the remarks made indicates that such error, if any, was harmless. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).

After a careful consideration of the records, briefs, and appellate oral argument, we find no reversible error.

Conviction affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.