People v. Green

32 Mich. App. 482 (1971) 189 N.W.2d 122

PEOPLE
v.
GREEN

Docket No. 8431.

Michigan Court of Appeals.

Decided April 21, 1971.

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

Abba I. Friedman, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and LEVIN and PETERSON,^[*] JJ.

PETERSON, J.

In the deluge of criminal appeals facing this Court, it is inevitably contended that the evidence before the trial court was insufficient to establish guilt beyond a reasonable doubt. People v. Williams (1962), 368 Mich. 494. Where the matter was heard without jury, the convicted appellant hastens to add that the findings of the trial judge were "clearly erroneous". People v. Hummel (1969), 19 Mich. App. 266.

Thus sayeth Green, adding that we are precluded from upholding the trial judge's findings of fact since there were none. This, he claims, is in itself basis for reversal. So, once again, the failure of a trial judge, sitting without jury, to adequately comply with GCR 1963, 517.1, is before us. The rule provides:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in subrule 504.2. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it."

Rules 1 and 785.1 make the General Court Rules applicable to criminal cases except where in conflict with other rules or statutes, and GCR 1963, 517.1 specifically has been held applicable to criminal cases in People v. Beaudoin (1967), 7 Mich. App. 461; People v. George Scott (1970), 21 Mich. App. 217. Fact finding, or the lack thereof, has since been the subject of frequent comment. See People v. Owens (1968), 13 Mich. App. 469, 483; People v. Martinovich (1969), 18 Mich. App. 253; People v. Hubbard (1969), 19 Mich. App. 407; Commercial Construction Co. v. Elsman Enterprises, Inc. (1970), 22 Mich. App. 238; and Papin v. Demski (1970), 383 Mich. 561, 569, where the Court said:

"What has perhaps not been sufficiently stressed in our opinion is the need for the trial judge to make careful, considered findings of fact rather than shooting from the bench. In this case, as we read the opinion of the Court of Appeals, it gave consideration to the findings of the trial judge, insofar as such findings could be determined but, from its own examination of the evidence, it concluded that the trial judge had clearly erred." (Emphasis supplied.)

In Nicpon v. Nicpon (1968), 9 Mich. App. 373, failure to make findings resulted in remand.^[1] In the criminal cases cited above in which there was a reversal, the reversal in each case was predicated not upon the absence of findings but upon the absence of proof in the record to substantiate one or more of the elements of the offense charged. Each tacitly holds, therefore, that a general verdict of guilty by the court may be affirmed where the elements of the offense are uncomplicated, there is some evidence tending to prove each element of the offense, and where it appears that the trial court must have found such evidence credible.

We do not remand in the instant case because that tacit assumption of Beaudoin, Martinovich, and Hubbard is borne out by the record here, and there was evidence tending to prove all of the elements of the offense. Green was convicted of attempted^[2] robbery, unarmed,^[3] the elements of which offense are few in number and relatively simple in nature.^[4] The crucial point of contention, as shown by the trial record and argument of counsel, was the identification of Green, turning upon an either/or view to be taken of the conflicting testimony of prosecution and defense witnesses. It would strain things considerably to call the trial judge's brief statement^[5] a finding of fact, but it does, in the light of the trial record and arguments, leave no doubt that the judge did weigh the conflicting testimony about defendant's identity in an act in which all elements of the offense occurred virtually simultaneously, and that the prosecution's witnesses were believed. In this case we are able to conclude that there has been no miscarriage of justice and that the defective form of the findings does not warrant its reversal nor its remand for explicit findings. GCR 1963, 529.1; MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).

Defendant also contends that the prosecutor had a duty to indorse all known res gestae witnesses, and that failure to do so warrants reversal. The person in question, however, was an accomplice whom the prosecutor was under no duty to indorse or call. People v. Leroy Morgan (1970), 24 Mich. App. 660. Further, his identity was known to defendant who made no effort to call him and no request of the prosecution or the court that he be called. The matter cannot now be raised. People v. Turner (1952), 333 Mich. 547.

Affirmed.

All concurred.

NOTES

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

[1] See Dauer v. Zabel (1967), 9 Mich. App. 176.

[2] MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).

[3] MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).

[4] Cf. the dissenting opinion in People v. Owens (1968), 13 Mich. App. 469, fn 7, p 483, as to situations in which the legal or factual nature of the elements of the offense are more complex.

[5] "The Court: Thank you, Mr. Carter.

"Based on all of the testimony — and I have considered these things about relationships between witnesses and so forth as the quantum of proof is concerned — there has been a quantum on both sides. But I seem to find myself without a doubt that the quality of the proofs and the evidence on the part of the people is much more than sufficient to carry the burden of proof which they must carry in order to gain a conviction. And I say that partially because when one hears testimony — and a lot of testimony was volunteered — and it comes out so methodically and so much like other testimony, but then in some crucial areas — which people have not rehearsed or have not had an opportunity to think of — something odd comes out of everyone's testimony, even though in essentials they are identical. When put to a test, people go off in all different directions when they have been rehearsed and they have not had an opportunity to rehearse what would be unrehearsable. And that is the questions asked by opposing counsel. And some of the questions that are asked by defense counsel brought some rather surprising answers.

"I do find myself sincerely convinced beyond a reasonable doubt of the guilt of Mr. Major." (Court meant Mr. Green.)