People v. Biondo

89 Mich. App. 96 (1979) 279 N.W.2d 330

PEOPLE
v.
BIONDO

Docket No. 77-3767.

Michigan Court of Appeals.

Decided March 19, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

Pitts, Mann & Patrick, P.C., for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and V.J. BRENNAN and BASHARA, JJ.

V.J. BRENNAN, J.

The defendant, Salvatore Stephen Biondo, was convicted of receiving stolen property (a certain late model automobile) over the value of $100, MCL 750.535; MSA 28.803, by a Recorder's Court jury on June 23, 1977. Defendant was sentenced to one to five years in prison and appeals by right under GCR 1963, 806.1. Defendant raises three issues, only two of which merit discussion here.

Defendant first contends that there was insufficient evidence on the element of guilty knowledge to sustain his conviction.

We find the defendant's contention without merit. A review of the arresting officer's testimony shows that when the key to the car was taken from the defendant and placed in the ignition the switch operated; then when the officer attempted to pull the key out of the ignition the entire ignition switch was pulled out of the housing. Upon further inspection the officer noted that the housing was damaged. Given the fact that the tampered-with ignition switch was readily detectable, People v Salata, 79 Mich. App. 415, 423; 262 NW2d 844 (1977), we find sufficient evidence from which the jury could infer the element of guilty knowledge. See People v Palmer, 392 Mich. 370, 375-376; 220 NW2d 393 (1974).

Defendant next contends that the trial court erred reversibly in finding that due diligence had been exercised by the prosecution in attempting to secure the presence of an indorsed witness. The defendant had challenged the prosecution's failure to produce and a hearing was held on the issue. However, the defendant failed to move for a new trial based upon the nonproduction as set forth in People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973).

A split of authority had developed in this Court on the question of whether a hearing during trial on the prosecution's failure to produce an indorsed res gestae witness obviates the Robinson motion requirement. Cf., People v Jones, 65 Mich. App. 619; 237 NW2d 584 (1975), People v Blacksmith, 66 Mich. App. 216, 220; 238 NW2d 810 (1975), with People v Niswonger, 87 Mich. App. 57; 273 NW2d 586 (1978), People v Allen, 76 Mich. App. 585; 257 NW2d 263 (1977).

The Supreme Court in the recent case of People v Willie Pearson, 404 Mich. 698, 715; 273 NW2d 856 (1979), specifically addressed this question and held:

"In cases where the trial court has ruled that a missing witness is not a res gestae witness or that the prosecution was sufficiently diligent in its efforts to produce * * * a Robinson hearing would be superfluous and is not required prior to an appeal."

In the present case since a hearing was held and due diligence was found, the issue is preserved for appeal even absent the post-trial Robinson motion.

Initially it must be pointed out that the witness's testimony would have been material to the defendant's claim that he lacked the requisite guilty knowledge. Defendant contended that he borrowed the car from the witness, that the witness had represented that he had just purchased the car and was still using the dealer plate without need for the car registration. The witness's testimony most certainly would have shed light on the defendant's contention.

Upon review of the record it is found that the prosecutor on the day of trial knew that the missing indorsed witness was on probation to the court in Broward County, Florida. The prosecutor learned of the witness's whereabouts the day before the trial through a suggestion by defense counsel to employ a computer readout. A Detroit police officer testified that he attempted to subpoena the witness the week before trial but was told by the witness's mother and father that the witness went to Florida. The day before trial the officer obtained the witness's Florida address.

Although the prosecutor made every effort to locate the witness the week before trial, a finding of due diligence is precluded by the fact that the witness's address was found the day before trial and no further effort was made to produce. In addition this Court in People v Gaffney, 51 Mich. App. 526, 531; 215 NW2d 587 (1974), lv den 392 Mich. 806 (1974), held that "where an indorsed res gestae witness is without this state and the prosecution knows what court of record, if any, in the involved state has jurisdiction to compel attendance" the prosecution's failure to employ the uniform act to secure attendance of witnesses, MCL 767.91, et seq.; MSA 28.1023(191), et seq., precludes a finding of due diligence. Accordingly, the trial court's finding of due diligence was erroneous.

We next must determine the proper disposition of the case at bar. The Supreme Court in People v Willie Pearson, supra, p 724, stated:

"A new trial is not automatically warranted simply because the prosecution has failed to exercise due diligence in the production of a missing res gestae witness. The key issue in determining the proper remedy for the defendant when the prosecution has failed to fulfill its responsibilities is whether the defendant is prejudiced."

The Court then prescribed a post-remand (from the Court of Appeals) hearing to determine whether the failure to exercise due diligence:

"* * * did not adversely affect the defendant's right to a fair trial (i.e., the defendant is presumed prejudiced until the contrary is established). 404 Mich. 698, 725.

The Court set forth what the prosecution must establish in order to overcome the presumption of prejudice as follows:

"If the prosecution can establish that the missing testimony would have been of no assistance to the defendant, that it merely constitutes cumulative evidence, that its absence constitutes harmless error or that the witness could not have been produced at trial, then this burden has been met and the conviction should be affirmed." (Footnotes omitted.) 404 Mich. 698, 725.

In accordance with Pearson we remand the cause to the trial court in order to give the prosecution the opportunity to rebut the presumption of prejudice as per the criteria set forth above. If the prosecution cannot rebut the presumption, the matter shall be remanded for a new trial.

We retain no further jurisdiction.