People v. Broaden

60 Mich. App. 412 (1975) 231 N.W.2d 409

PEOPLE
v.
GORDON
PEOPLE
v.
BROADEN

Docket Nos. 17085, 17086.

Michigan Court of Appeals.

Decided April 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Ellen C. Wallaert, for defendant Gordon on appeal.

Robert R. Mallory (Carl Ziemba, of counsel), for defendant Broaden on appeal.

Before: ALLEN, P.J. and McGREGOR and M.F. CAVANAGH, JJ.

M.F. CAVANAGH, J.

This appeal considers consolidated cases involving convictions of two defendants of unarmed robbery, MCLA 750.530; MSA 28.798, from the same basic facts. In the mid-afternoon of January 8, 1973, Mrs. Hattie Sue Hill was standing with her 11-year-old daughter Connie at a street corner in Detroit. A silver Mark IV automobile stopped in front of her and one man jumped out, struck her and grabbed her purse. Before the car sped off, several other people had opportunities to view the perpetrators. Approximately fifteen minutes later, the defendants and another female, Yvonne Brooks, were stopped in a silver Mark IV with a license number matching that taken down by a safety patrol boy at the scene of the robbery, about five blocks away. A police officer found Mrs. Hill's purse lying on the front floor of the car.

This appeal involves two issues: the prosecutor's failure to endorse a res gestae witness and the sufficiency of the evidence for the conviction of defendant Broaden.

At trial it became apparent that another safety patrol boy, Perry Micensky, had witnessed the robbery but had not been endorsed as a res gestae witness on the information. Perry had been brought to the police station after defendants' arrest but had been unable, after a lineup, to identify either of the defendants as the perpetrators of the robbery. The prosecution offered little explanation as to why he had not been endorsed on the information.

Although the existence of this witness was apparently known to defendants' preliminary-exam counsel and trial counsel, no request to endorse or produce this witness was made by the defendants at any time before or during the trial. In his charge to the jury, the trial judge instructed that evidence of the missing res gestae witness must be presumed to be disfavorable to the prosecution:

"Now in this case, members of the jury, a Perry Mysinski (sic) appeared at the lineup in this case but did not identify the defendants. It is the opinion of the Court that he should have been endorsed as a res gestae witness in this case and you should have had the opportunity to have him testify in person. The people's failure to produce him raises a presumption that his testimony would not have been favorable to the people's case."

Subsequent to his conviction and sentence, defendant Gordon petitioned this Court to remand the case for an evidentiary hearing concerning the prosecutor's failure to produce the res gestae witness. On September 5, 1974, this Court granted the defendant's motion and ordered the hearing, at which Perry Micensky testified that he was eleven years old and was a patrol boy at the corner where Mrs. Hill was robbed. He testified that he witnessed the robbery but at a lineup two days later he could not identify defendant Gordon as the perpetrator. The trial judge concluded that "he could not offer any testimony on retrial of this cause which would differ in any material respect from the testimony adduced at the first trial". Therefore, he denied defendants' motion for a new trial.

Although a defendant's failure to request either endorsement or production of an unendorsed res gestae witness at one time was thought to excuse the prosecutor, that view has seemingly been overruled by the Michigan Supreme Court in People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). See also People v Koehler, 54 Mich App 624; 221 NW2d 398 (1974).

An exception to the general rule requiring endorsement of res gestae witnesses exists when the testimony of the witness would be merely cumulative or when the prosecution makes a showing of due diligence in attempting to produce the witness. People v Bennett, 46 Mich App 598; 208 NW2d 624 (1973), lv to app granted, 390 Mich 772 (1973).

In the present case neither of these exceptions apply. There has been no showing by the prosecutor of why the witness was not endorsed. Although the witness's testimony concerning the description of the robbery was cumulative, the fact that he had a favorable vantage point and yet was unable to subsequently identify the defendant was relevant testimony. See People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973).

However, the crucial question is whether the remedy chosen by the trial court, an explanative instruction, was sufficient to cure the prosecutor's failure to endorse the witness. Every failure to endorse a res gestae witness and every failure to exercise due diligence in the production of an endorsed witness does not require reversal of the conviction. People v James, 51 Mich App 777; 216 NW2d 473 (1974).

In People v Cornell Harris, 56 Mich App 267; 224 NW2d 57 (1974), an instruction was given which was similar to the one given in the present case. Nevertheless, this Court reversed the conviction because the prosecution had failed to endorse a witness who had knowledge which would have rebutted important circumstantial evidence presented by the prosecutor. Harris, however, does not forbid the use, in all cases, of the adverse presumption instruction to cure the prosecutor's failure to endorse a res gestae witness.

The present case is one where such an instruction does avoid the necessity of a new trial. Much of the witness's testimony would have been detrimental to the defendant. The only favorable evidence was the adverse inference from the fact that he could not identify the defendant in a lineup. A new trial so that the witness could make this simple statement does not seem justified. Considering the fact that defendant could have, but chose not to, compel the witness's production, the instruction gave the jury every iota of evidence which would have been favorable to the defendant.

We do not hold that such an instruction is sufficient in all cases where a res gestae witness was not endorsed. If the witness's testimony gives complicated or detailed corroboration of the defendant's version of the facts or if the testimony contains complicated or detailed rebuttal of prosecution evidence, the only remedy may be a new trial. Since the present case involves considerably less forceful evidence which was completely presented to the jury in a light favorable to the defendant, the instruction was sufficient. See People v Dixon, 46 Mich App 754; 208 NW2d 535 (1973), People v Zaluski, 28 Mich App 647; 185 NW2d 198 (1970), and People v Barker, 18 Mich App 544, 548-549; 171 NW2d 574 (1969).

The second issue is whether there was sufficient evidence to justify a conviction of defendant Broaden of the offense of unarmed robbery. An appellate court should not disturb the verdict of guilty beyond a reasonable doubt where sufficient evidence of each element of the offense existed to support the verdict. People v Palmer, 392 Mich 370; 220 NW2d 393 (1974).

In the present case the only evidence against defendant Broaden was that he was found in the automobile within 15 minutes of the robbery and the fruits of the robbery were on the floor of the automobile near the front seat.

Since the prosecution does not contend that defendant committed the act of the robbery or that he drove the automobile, it must establish inferentially that he somehow aided and abetted the perpetrator. We conclude that to do this, the prosecutor impermissibly pyramided the necessary inferences.

Possession of the fruits of a robbery plus certain other facts and circumstances permits the inference that the possessor is the thief. See People v Brown, 42 Mich App 608; 202 NW2d 493 (1972). Arguably, having the goods in his possession at a time and place close to the crime would be a sufficient circumstance. See People v Rankin, 52 Mich App 130; 216 NW2d 620 (1974).

The problem arises, however, when one tries to find possession. Riding in the car in which the fruits of the crime were presumably in plain sight on the floor would justify the inference of possession. Cf. People v Cunningham, 20 Mich App 699; 174 NW2d 599 (1969).

In order to establish the inference that defendant Broaden participated in the robbery, one must utilize the inference that he possessed the fruits of the robbery. Possession, in turn, is inferred from the defendant's presence in the automobile in which the fruits of the robbery are discovered. The result is impermissibly building one inference upon another. See People v Atley, 392 Mich 298; 220 NW2d 465 (1974). We can see no legally significant difference between this case and people v McGregor, 45 Mich App 397; 206 NW2d 218 (1973).

Beyond the pyramiding of inferences problem, the evidence is insufficient from a purely common sense approach. One aids and abets another to commit a crime when the former takes conscious action to seek to make the criminal venture succeed. People v Cooper, 326 Mich 514; 40 NW2d 708 (1950). There has been no evidence to show that defendant Broaden either knew of his associates' wrongful purpose or took any action to further that purpose. Both elements are required to find aiding and abetting. People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969).

Under our system of criminal justice, association with evil men is not sufficient to establish an inference of guilty participation. People v Blakes, 382 Mich 570; 170 NW2d 832 (1969). In order to be guilty of a criminal offense, there must be a showing of personal, individualistic fault. See People v Sobczak, 344 Mich 465, 470; 73 NW2d 921 (1955).

The conviction of Billy Gene Gordon is affirmed. The conviction of William C. Broaden is reversed.