People v. Rimson

63 Mich. App. 1 (1975) 233 N.W.2d 867

PEOPLE
v.
RIMSON

Docket No. 20251.

Michigan Court of Appeals.

Decided July 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Michael Slaughter, Assistant Prosecuting Attorney, for the people.

Jerkins, Plaszczak & Silaski, for defendant.

Before: McGREGOR, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.

PER CURIAM.

On March 14, 1974, defendant was convicted by a Kalamazoo County Circuit Court jury of delivery of heroin, a controlled substance, in violation of MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). He was sentenced to a term of from 12 to 20 years and appeals by right.

On appeal, defendant raises several claims of error, three of which merit discussion. His first contention is that the trial court committed reversible error when it ruled that the prosecutor did not have to endorse and produce a res gestae witness. The witness involved was a young woman who was the only other individual present at the time defendant sold heroin to a police undercover agent, Floyd Love. After a hearing on defendant's motion to endorse, the trial court ruled that the young woman was a res gestae witness, but that the prosecutor had made a showing of due diligence sufficient to excuse her endorsement and production. Defendant claims that this finding of due diligence was erroneous.

A prosecutor must endorse on an information the names of all witnesses known to him at the time of filing, MCLA 767.40; MSA 28.980. The mandatory requirement of endorsement and production applies only to res gestae witnesses. People v Tann, 326 Mich. 361; 40 NW2d 184 (1949), People v Simpson, 57 Mich. App. 320; 225 NW2d 748 (1975), People v Bersine, 48 Mich. App. 295; 210 NW2d 501 (1973), lv den 391 Mich. 837 (1974). The failure to satisfy this requirement may be excused where the prosecutor makes a showing of due diligence in searching for a res gestae witness. People v Gibson, 253 Mich. 476; 235 N.W. 225 (1931), People v Simpson, supra, People v Bersine, supra. The question of whether due diligence has been shown is a matter for the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown. People v Tann, supra, People v Russell, 27 Mich. App. 654; 183 NW2d 845 (1970).

The record shows that the prosecutor's search was hampered by the fact that the informer did not know the name of the witness. The informer testified that he had seen the girl before, that he never learned her name and that he knew some people with whom she "hung out" but that they had moved away. One of the arresting officers testified that, using the description supplied by the informer, he had attempted to find the girl. He interviewed one individual whom he suspected to be the girl, but she denied being the witness. The officer then went to her home and spoke again to the suspected witness and to her parents. She again denied being the eyewitness, and her parents supported this denial. The officer made other attempts to find a girl matching the description given by the informer but was unsuccessful. On the basis of this record, we cannot say that the court's denial of defendant's motion to endorse was an abuse of discretion.

Defendant's second claim is that the trial court committed error by allowing into evidence testimony by the police informer relating to general methods of procuring and distributing narcotics. The challenged testimony did not relate directly to defendant's alleged drug operation but was in response to an inquiry by the prosecutor as to whether those people known "on the street" to be selling drugs always had drugs available for sale. Defendant's objection to the admission of this testimony was denied as were his motions for a mistrial and for a cautionary instruction. Defendant argues that the challenged testimony was irrelevant and should not have been admitted.

A determination of whether or not evidence is relevant rests within the discretion of the court, and the court's determination will not be upset on appeal unless a clear abuse of discretion has occurred. People v Hodo, 51 Mich. App. 628, 638; 215 NW2d 733 (1974). Under the broad Michigan standard, evidence is admissible if it is "helpful in throwing light upon any material point in issue", People v Becker, 300 Mich. 562, 565; 2 NW2d 503 (1942), People v Kozlow, 38 Mich. App. 517; 196 NW2d 792 (1972), lv den 387 Mich. 798 (1972). (Emphasis supplied.) We find that the challenged testimony should have been excluded because it was immaterial to the issue being tried. The issue at trial was whether defendant sold heroin to the informer. The informer's testimony about drug trafficking in general did not bear upon this issue. Plaintiff claims that the testimony was offered to bolster the informant's credibility. We disagree. The testimony was not material as to whether the informer's claim that defendant sold heroin to him was credible. Also, the informer was not offered as an expert witness, and, therefore, his credibility could not be bolstered prior to being attacked by defendant. People v Greene, 42 Mich. App. 154; 201 NW2d 664 (1972), lv den 388 Mich. 783 (1972), People v Gardineer, 2 Mich. App. 337; 139 NW2d 890 (1966). We find, however, from a review of the record, that the admission of this evidence did not result in the "miscarriage of justice" required to necessitate reversal, MCLA 769.26; MSA 28.1096. See also People v Murray, 54 Mich. App. 723, 727; 221 NW2d 468 (1974).

Defendant's third contention is that testimony by the informer as to prior purchases from defendant was so prejudicial as to require reversal. We find no error. First, this testimony was a nonresponsive answer to proper questioning and, as such, was not erroneous. People v Todaro, 253 Mich. 367, 375; 235 N.W. 185 (1931), People v Histed, 56 Mich. App. 630, 635; 224 NW2d 721 (1974). Second, such testimony would be properly admissible under MCLA 768.27; MSA 28.1050, as tending to show "scheme, plan or system", People v Harper, 39 Mich. App. 134; 197 NW2d 338 (1972).

We find defendant's other claims of error to be without merit.

Affirmed.